Beeman v. Colvin
DECISION and ORDERED, that the decision of the Commissioner is AFFIRMED. Signed by Senior Judge Lawrence E. Kahn on March 31, 2016. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CAROLYN W. COLVIN,
Commissioner of Social Security,
DECISION and ORDER
This case has proceeded in accordance with General Order 18, which sets forth the
procedures to be followed in appealing a denial of Social Security benefits. Both parties have filed
briefs. Dkt. Nos. 15 (“Plaintiff’s Brief”); 22 (“Defendant’s Brief”). For the following reasons, the
judgment of the Social Security Administration (“SSA”) is affirmed.
On October 26, 2011, Plaintiff Colleen Beeman (“Plaintiff”) filed an application for Social
Security Disability Income (“SSDI”) under the Social Security Act. Dkt. No. 11 (“Record”) at 11;1
Pl.’s Br. at 2. Plaintiff alleged disability due to lower back and neck injuries, arthritis, diabetes, and
anxiety beginning March 1, 2006. R. at 153, 157. The claim was initially denied on February 17,
2012, and on March 29, 2012, Plaintiff filed a timely request for a hearing. R. at 11.
Administrative Law Judge (“ALJ”) Brian W. Lemoine (“Lemoine”) held a video hearing on August
10, 2012 and issued an unfavorable decision on November 29, 2012. R. at 22, 31. Plaintiff
Citations to the Record are to the pagination assigned by the SSA.
appealed the ALJ’s decision, and the Appeals Council denied review on April 29, 2014, R. at 1.
Plaintiff commenced the instant action on May 19, 2014. Dkt. No. 1 (“Complaint”).
A. Plaintiff’s Medical Records
Plaintiff was born on October 31, 1971. R. at 142. Plaintiff resides with her two sons. R. at
143. Immediately before her claimed disability, she worked full-time as an administrative assistant
from February to March 2006. R. at 158. Before that, she had held jobs as a cashier, delivery
driver, receptionist, and in food preparation. Id.
During a visit to Dr. Karl Hafner (“Dr. Hafner”), Plaintiff’s primary care physician, on
September 23, 1999, Plaintiff mentioned pain in her left thumb as well as numbness in her hand and
wrist. R. at 269. Dr. Hafner suspected that it was tendonitis and prescribed Naprosyn. Id. On
February 21, 2000, Dr. Hafner treated Plaintiff for knee problems, specifically aches, tightening, and
reported instances where “they give way.” R. at 270. Dr. Hafner noted that Plaintiff had lost
significant weight and recommended that Plaintiff commence physical therapy. Id. Four days later,
Plaintiff met again with Dr. Hafner, stating that there was pain and numbness in her left leg, and that
the pain was a daily occurrence. Id. She also noted that she felt depressed, was not sleeping, and
felt prone to emotional swings, particularly in the past month. Id. Platintiff was prescribed
Wellbutrin for her depression. R. at 329. Dr. Hafner switched Plaintiff’s medication from
Wellbutrin to Paxil on May 26, 2000 and from Paxil to Serzone on November 21, 2000 after further
indications that her symptoms of depression were not improving. R. at 325, 328. Plaintiff was also
prescribed Prilosec on June 2, 2000 after having symptoms of acid reflux disease. R. at 328.
On December 18, 2001, Dr. Hafner saw Plaintiff again regarding symptoms of depression as
well as pain in her right wrist and acid reflux symptoms. R. at 274. Dr. Hafner assessed Plaintiff’s
wrist pain as DeQuervain’s Tenosynovitis and prescribed Naprosyn. Id. He also re-prescribed
Prilosec for her acid reflux symptoms and Prozac for her depression. Id. At a follow-up
appointment on January 15, 2002, Plaintiff stated that the Prozac and the Prilosec were helping. Id.
However, she also noted that she had significant pain up and down her left arm to the extent that she
could not pick up her left arm, and that the Naprosyn had not been effective in relieving the pain.
Id. Dr. Hafner referred Plaintiff to physical therapy and ordered an electromyogram (“EMG”),
which was later cancelled. R. at 275, 322. On March 8, 2002, Plaintiff returned to Dr. Hafner and
indicated that her arm pain had subsided but that three fingers on her left hand were numb. R. at
275. Dr. Hafner once again scheduled Plaintiff for an EMG appointment. Id.
On June 13, 2002, Plaintiff saw Dr. Hafner regarding her right ear. R. at 276. She stated
that she could not hear out of it and that it hurt. Id. She noted that this had happened in March, but
that it had resolved on its own. Id. Dr. Hafner prescribed Amoxicillin and Nasonex. Id. Plaintiff
discussed similar pain during an October 28, 2002 visit, which she described as on the right side of
her face. Id. She also stated at this time that the Prozac had stopped working. Id.
Dr. Hafner reported at a December 13, 2002 appointment that Plaintiff had been having
lower back discomfort, and that she had a history of such issues. R. at 319. Plaintiff denied that the
pain was radiating down her legs in any way. Id. Dr. Hafner prescribed Mobic and advised Plaintiff
to alter her activities accordingly. Id. At an appointment with Dr. Hafner on October 13, 2003,
Plaintiff noted that her lower back discomfort had dissipated. R. at 279. She complained of further
hearing problems regarding her right ear and also mentioned that she was having trouble sleeping.
Id. Plaintiff was prescribed Effexor and referred to an otolaryngologist for her ear. Id. Dr. Hafner
also noted that Plaintiff had separated from her husband shortly before this visit. Id. Plaintiff
reported a significant positive change from the Effexor at a follow-up on December 4, 2003. R. at
Plaintiff returned to Dr. Hafner on January 2, 2004 after slipping on ice, hitting her head on
her car, and landing on her back on December 13, 2003. R. at 281. She stated that it hurt to sit and
that she had been getting regular headaches. Id. Dr. Hafner doubled her dose of Effexor and told
her to follow up if she did not feel better over the coming months. Id. At a follow-up appointment
on August 19, 2004, Plaintiff stated that her headaches had improved, with the pain “down to a
four,” and that she was comfortable not pursuing further treatment. R. at 283.
On October 1, 2004, Plaintiff stated that her left knee issues had returned. R. at 284. Dr.
Hafner noted that her left foot was significantly flatter than her right foot. Id. An X-ray showed that
Plaintiff had a bone spur in her left heel, but X-rays on her left knee were negative. Id. Dr. Hafner
referred her to a podiatrist and prescribed Naprosyn but did not initiate further treatment regarding
her left knee. Id.
Plaintiff fractured her left fifth finger in early 2003. R. at 360; see also R. at 353
(confirming fracture through X-ray). Plaintiff met with Dr. Hafner on November 29, 2004 regarding
recovery from that fracture. R. at 285. Dr. Hafner noted that an X-ray had shown proper healing,
and he referred Plaintiff back to the surgeon for further treatment. Id. Dr. Hafner also mentioned
that Plaintiff had been previously diagnosed with carpal tunnel syndrome. Id. On January 20, 2005,
Plaintiff discussed that she was finding it difficult to lift at work due to pain in her right hand. R. at
286. Dr. Hafner noted that an EMG had registered unspecified abnormal results and referred her to
a specialist and put together a note for her employer. Id. Dr. Hafner worried that “at the restrictions
that she probably needs they may say there is no work for her.” Id. He also stated that her balance
issues appeared indicative of vertigo. Id.
Plaintiff saw Dr. Hafner due to a cold with a cough on January 17, 2006. R. at 305. Dr.
Hafner observed that she had been using Tessalon for the cough based on prior appointments on
June 17 and September 30, 2005 but decided to rely on cold medicines instead. Id. Dr. Hafner
noted that Plaintiff had a history of COPD that might have been related to the cough. Id. On
January 20, 2006, Plaintiff and Dr. Hafner agreed that Plaintiff should quit smoking, and Dr. Hafner
prescribed an albuterol inhaler as well as Zyban and nicotine patches. R. at 304.
On July 24, 2007, Plaintiff complained of panic attacks, noting that she had had three
episodes. R. at 290. She stated that her gynecologist had stopped the Effexor and had placed her on
Celexa instead. R. at 303. Dr. Hafner doubled her dosage of Celexa but did not grant Plaintiff’s
request to switch to Xanax due to concerns regarding addiction. Id. Plaintiff stated at a March 17,
2008 appointment that she had fallen on her backside a month prior. R. at 291, 302. She noted that
her condition had been improving but had gotten much worse recently, and that she could not bend
fully. Id. Plaintiff stated that the pain was rated around a four out of ten, and that pain and
numbness ran down her legs to her feet. R. at 302. Dr. Hafner determined, after an X-ray, that
Plaintiff suffered from lumbar radiculopathy but noted only minimal degenerative change. R. at
302, 348. Plaintiff requested a sleeping aid to help sleep through the pain as well as a change of
antidepressants. R. at 291. Dr. Hafner prescribed Neurontin and Elavil. R. at 302. On May 23,
2008, Plaintiff was assessed to have a further exacerbation of her COPD/asthma, for which Dr.
Hafner prescribed prednisone, Advair, and albuterol. R. at 295. Dr. Hafner also noted that Plaintiff
claimed a return of her right ear pain as well. Id.
Plaintiff’s right arm started experiencing pain in her right arm in December 2008, and on
December 20, 2008, she met with Dr. Sanjeev Verma (“Dr. Verma”) after a CT scan. R. at 434. Dr.
Verma noted that Plaintiff was having difficulty turning her neck to the right. Id. The scan
indicated that there was slight herniation at the C4-5 vertebrae. R. at 345, 434. Furthermore,
Plaintiff’s right side presented signs of mastoiditis. R. at 434. Dr. Verma prescribed Plaintiff
Vicodin and antibiotics. R. at 435. Dr. Hafner reveiwed the results of the CT scan with Plaintiff on
December 29, 2008. R. at 296, 429. Dr. Hafner also confirmed that Plaintiff’s pain and range of
motion were both worse when she tilted her head to the right. R. at 296. Plaintiff became
combative with Dr. Hafner when he expressed concern about increasing the dosage of her current
medication and was asked to leave the office. Id.
Plaintiff visited Joanne Lomber (“Ms. Lomber”), a nurse practitioner working under her new
primary care physician, Dr. Dilip Roy (“Dr. Roy”), on January 4, 2010, stating that she had
significant lower back pain. R. at 427. Ms. Lomber observed that Plaintiff’s back was tender and
referred her to an orthopedic specialist. Id. At a February 2, 2010 appointment, Plaintiff discussed
a return of her right ear pain with Ms. Lomber. R. at 428. Ms. Lomber noted that her ear was
swollen and some discharge was occurring. Id.
On March 22, 2010, Plaintiff visited Dr. John Cambareri (“Dr. Cambareri”) at Syracuse
Orthopedic Specialists upon the referral of Dr. Roy to discuss lumbar pain that radiated to her left
side. R. at 259. Plaintiff claimed that this had been a problem for slightly over a year, but that she
had a history of back pain dating back more than ten years. R. at 260. She claimed that the pain
was moderate and getting worse, and that it consisted of “aching, soreness and sharp” pains. R. at
259. She stated that NSAIDs and pain medication generally relieved the pain. Id. Dr. Cambareri
reported that Plaintiff had a medical history of anxiety and COPD, and that she smoked one and a
half packs per day. R. at 259-60. Dr. Cambareri recommended an MRI and prescribed Darvon. R.
at 262. The results of the MRI, dated April 2, 2010, indicated degenerative disc disease in the L5S1 junction. R. at 263, 265-66.
On April 9, 2010, Dr. Cambareri discussed the results of the MRI with Plaintiff. R. at 258.
Dr. Cambareri determined that surgery was unlikely to help and recommended more conservative
forms of treatment. Id. Plaintiff returned to Dr. Cambareri on June 28, 2010 to discuss her MRI in
more detail. R. at 254, 430. Plaintiff stated that at that time, her pain was moderate and mild and
centered on the left side of her back radiating down to her left knee, and she described it as “aching
and soreness.” R. at 255. She noted that sitting or bending made the pain worse, and that NSAIDs
had helped with the pain. Id. Dr. Cambareri diagnosed Plaintiff with lumbosacral radiculitis and a
herniated disc. R. at 256. Plaintiff expressed that she would seek treatment at a pain clinic. R. at
At a January 19, 2011 visit, Dr. Mahesh Kuthuru (“Dr. Kuthuru”) fully evaluated Plaintiff’s
condition. R. at 469. Plaintiff’s pain was centered on the lower back and radiated down the left leg
“with numbness, and sharp shooting pains.” Id. Plaintiff rated her pain as an eight out of ten and
stated that it was constant. Id. Her pain was made worse by “walking, sitting, standing, lifting,
prolonged activity and twisting” but could be alleviated by “lying down, sitting, massage and
medication.” Id. Plaintiff reported being prescribed Darvocet, Vicodin, Neurontin, Voltaren ER,
Robaxin, and Hydrocodone as well as undergoing physical therapy. Id. Dr. Kuthuru recommended
further X-rays, an increase in Plaintiff’s Hydrocodone dosage, balance testing, hot and cold packs,
and home exercise focusing on flexibility and range of motion. R. at 472-73.
Plaintiff met with Ms. Lomber on August 4, 2011 as a result of “throbbing shooting pain” in
her right ear. R. at 425. At an October 6, 2011 for a follow-up on her ear infection, Ms. Lomber
noted Plaintiff’s complaints of continued anxiety and foot pain; Plaintiff had been wearing a boot on
her right foot since X-rays were taken in August. R. at 406.
On October 4, 2011, Plaintiff visited Dr. Mahender Goriganti, (“Dr. Goriganti”) a physical
medicine and rehabilitation specialist who worked with Dr. Kuthuru, for her back and neck pain. R.
at 36, 454. She described the pain as “heavy, burning, achy and throbbing” and rated the pain as
between five and eight out of ten. Id. Sitting and standing both made the pain worse, although heat,
ice, lying down, massage, and medication all helped. Id. Plaintiff had tried physical therapy,
chiropractic care, and medication, including Vicodin, Soma, and Voltaren, to control the pain in the
past. Id. Plaintiff also reported fatigue, anxiety, joint pain, and numbness in her extremities. Id.
Dr. Goriganti observed that Plaintiff had tenderness around her back and neck. Id. Dr. Goriganti
diagnosed Plaintiff with lumbago, cervical root lesions, and other disorders of Plaintiff’s bursae and
tendons in the shoulder region. R. at 454-55. He ordered an X-ray and an MRI. R. at 455. The Xray was carried out on November 14, 2011. R. at 357. The X-ray found mild curvature of the
lumbar spine and degenerative disc disease at every lumbar level, most prominently at the L5-S1
junction. Id. At a follow-up on November 15, 2011, Dr. Goriganti recommended a continuation of
Plaintiff’s pain medication and the use of heat and cold compacts to help relieve pain. R. at 453.
Plaintiff returned to Dr. Goriganti on December 16, 2011 stating that “her neck went out again.” R.
at 449. Dr. Goriganti noted that the pain averaged around seven out of ten and was “heavy, burning,
achy and throbbing.” Id. He recommended preserving the treatment plan as it stood. R. at 450. At
a follow-up visit on January 31, 2012, Plaintiff stated that nothing had improved. R. at 447. Dr.
Goriganti declined to change the treatment plan. R. at 448.
Plaintiff completed a Function Report on November 28, 2011. R. at 177. Plaintiff described
her daily routine as getting her kids up for school, doing dishes, doing laundry, resting, making
dinner, further resting, and helping her kids with homework. R. at 166. In addition to caring for her
children, she stated that she took care of her grandmother’s finances. Id. She also cared for pets but
stated that her children helped with those duties. Id. She specifically listed sleeping through the
night and sitting and standing for extended periods as things she could no longer do due to her pain.
Id. She stated that she had difficulty tying shoes and was unable to stand long enough to shower.
Id. Her cooking was limited to simpler meals and meals that could be prepared in a slow cooker,
and she did not bake anymore as a result of her pain. R. at 167-68. Both mowing and raking the
lawn were too much of a strain on her neck. R. at 168. She stated that she was able to leave the
house, which she did primarily to buy groceries, and was able to manage her money. R. at 168-69.
She listed reading as one of her hobbies, but noted that she could not hold a book for long periods
due to shoulder and neck tightness. R. at 169-70. She reported watching TV and taking her
children to the park. R. at 169. Before the onset of her symptoms, Plaintiff would go to bingo two
to three times per week and to dance but was unable to do either anymore. R. at 170.
Lifting a laundry basket would affect her neck and radiate pain through Plaintiff’s shoulder.
Id. If she held the same position for more than thirty minutes, her left leg would go numb and her
pain would spread to her hip. Id. Walking short distances was not problematic, and taking stairs
slowly was feasible, but even sitting would require the ability to stand and shift if her back
tightened. R. at 170-71. Walking more than sixty to seventy-five feet at a time would require her to
stop and rest for a few minutes. R. at 172. She could not kneel, rise from squatting, or reach over
her head. R. at 171. Plaintiff described her pain, which she had first experienced more than ten
years prior, as a constant ache, like a “toothache,” that would be sharp and at times and shoot to her
left hip and down her left leg. R. at 173. She stated that her neck pain would radiate to her
shoulders in a “burning shooting pain.” Id. She stated that her prescriptions for Hydrocodone and
Naprosyn helped with the worst of the pain for an hour or two, and that Flexeril relaxed her enough
to help her fall asleep. R. at 174. She noted that she used ice packs and a heating pad to help with
the pain. R. at 175.
Plaintiff also reported anxiety issues, which had first presented themselves about two and a
half years prior. Id. She mentioned her pain, her deceased grandfather, and her inability to take care
of her family as triggers. R. at 176. She described weekly anxiety attacks as involving sweating,
crying, and “fear of something bad happening” and lasting for thirty to sixty minutes. Id. When an
anxiety attack would happen, Plaintiff would take a Xanax and go outside to calm down, which
would make her anxiety less severe. Id.
Plaintiff was evaluated by Dr. Marilee Mescon (“Dr. Mescon”) on February 3, 2012. R. at
359. Dr. Mescon noted Plaintiff’s ten-year history with lower back pain. Id. Plaintiff described her
back pain as “burning.” Id. The pain radiated to both hips as well as to the left foot, and Plaintiff
reported numbness in both feet. Id. Plaintiff also noted neck pain that started after turning her head
quickly while driving. Id. Her neck pain was described as “sharp” and “burning,” and was worse
when she turned her head toward her right. Id. Scans showed that she had two herniated discs in
the back of her neck. Id. Plaintiff reported that medication brought both her back and neck pain
from a seven out of ten to a five. Id.
Dr. Mescon noted Plaintiff’s diabetes, for which she had never been hospitalized. R. at 360.
Plaintiff reported that she was always very thirsty and that when her blood sugar levels were
particularly high, her vision would become blurry. Id. Plaintiff noted that she was able to care for
herself and her children but that other family members typically cleaned. Id. Dr. Mescon observed
Plaintiff walking normally and that she was able to squat, sit, and stand without trouble. R. at 361.
She also noted that Plaintiff’s range of motion was not severely limited. Id. However, Plaintiff had
diminished sensation in her legs and diminished motor strength in each extremity. Id. Dr. Mescon
diagnosed Plaintiff with radiculopathic neck pain, radiculopathic back pain with arthritis,
gastroplasty, diabetes, and neuropathy and noted that Plaintiff’s long-term prognosis is fair to poor.
R. at 362. She assessed Plaintiff’s ability to sit or stand for short periods of time as not limited but
expected that Plaintiff may have moderate limitations on her ability to climb, push, pull, or carry
heavy objects. Id.
Plaintiff underwent a psychiatric examination with Dr. Dennis Noia (“Dr. Noia”) on
February 3, 2012. R. at 365. Dr. Noia recorded Plaintiff’s nightly difficulty falling asleep and
staying asleep as well as panic attacks approximately three times per month. R. at 365-66. While
Plaintiff had improved with medication, her symptoms still persisted. R. at 366. Plaintiff also
reported that she was able to care for herself, drive and take public transportation, handle her
finances, and do household chores. R. at 367. However, she noted that she had to take frequent
breaks while doing chores. Id. Dr. Noia diagnosed Plaintiff with panic disorder, not otherwise
specified, and recommended that pharmacological treatment continue in conjunction with regular
intervention and support. R. at 368.
On February 13, 2012, Dr. M. Apacible (“Dr. Apacible”) prepared a Psychiatric Review
Technique and Mental Residual Functional Capacity (“RFC”) Assessment. R. at 369, 373. In the
Psychiatric Review Technique, Dr. Apacible noted that the impetus for the Mental RFC Assessment
was depression, by history, and panic disorder not otherwise specified. R. at 376, 378. Dr.
Apacible found that Plaintiff had moderate limitations in her ability to understand, remember, and
carry out detailed instructions; to accept instructions and respond appropriately to criticism from
supervisors; and to respond appropriately to changes in the work setting; but no significant
limitations in any other mental activities. R. at 369-70. Dr. Apacible further noted that Plaintiff
alleged depression but appeared in all aspects in the consultation to be able to socialize, perform
simple and complex work, and care for herself and her children. R. at 371. Of the four areas of
functional limitation, Dr. Apacible found only a mild limitation in maintaining concentration,
persistence, or pace. R. at 383. In the areas of restriction of activities of daily living and
maintaining social functioning, Dr. Apacible found no limitation, and he also found no repeated
episodes of decompensation. Id. Furthermore, the evidence presented did not establish the presence
of C criteria under either the affective or anxiety-related disorder categories. R. at 384.
Plaintiff returned to Dr. Goriganti on April 3, May 11, June 8, July 10, and August 7, 2012.
R. at 456-65. Plaintiff’s symptoms were generally unchanged at each visit other than on May 11,
2012, when she rated her pain at a ten out of ten. R. at 458. Dr. Goriganti, both at this visit and the
others, recommended a continuation of the same treatment plan. R. at 457-65.
Dr. Goriganti, with Terry Salmonsen, a family nurse practitioner, completed a Medical
Source Statement for Plaintiff on August 7, 2012. R. at 466. Plaintiff was assessed to be able to
carry ten pounds or less on either an occasional or a frequent basis. Id. The Statement also
estimated that Plaintiff could not sit or stand continuously for one hour or more and would need to
lay down and elevate her feet throughout the day at an unpredictable frequency. Id. With regard to
postural activities, Plaintiff was determined to be able to occasionally kneel, crouch, crawl, or stoop,
but never able to balance or climb. Id. Plaintiff’s back and neck pain was estimated to cause her “to
be off-task for at least 25% of the time in an 8-hour workday.” R. at 468. Her pain also would
likely be responsible for good days and bad days and cause at least four days of absences from work
per month. Id.
B. ALJ Hearing
Plaintiff testified at a hearing before ALJ Lemoine on August 10, 2012. R. at 31. She stated
that the herniated discs in her lower back have “caused damage” and “led to arthritis.” R. at 38.
She noted that both standing and sitting caused a lot of pressure on her back, and that after fifteen
minutes of sitting, she was often in significant pain. Id. She mentioned that she had been
prescribed Xanax for anxiety and that she also had diabetes. R. at 39. In 1999, she had worked as a
receptionist at a mobile home dealer, where she would have to sit for a half hour at a time. R. at 4142. She stated that she would not be able to do that job today, because sitting for that length of time
would not be feasible. R. at 42. Plaintiff worked part-time at a sub shop in 2001, where during
busy periods she would have to stand for an hour or two in between breaks. R. at 41. She had been
a cashier as recently as 2005, but she went on leave for carpal tunnel surgery, and there were no
positions open when she was cleared to return. R. at 40. Plaintiff clarified that her carpal tunnel
syndrome had been successfully resolved with surgery. Id. After that, she had held an
administrative assistant job for two months but found that she was unable to sit for sufficient
amounts of time. R. at 39-40.
Plaintiff’s pain was centered on her lower back, and radiated to her left side and down her
left leg. R. at 42. Her left leg would go numb “about four to five times a day” for “at least a half
hour to an hour.” Id. Typically, after standing up, Plaintiff would be unable to walk and would
need a few minutes before being able to move and stretch. Id. Plaintiff rated her back pain as a
seven or eight out of ten, but she stated that pain medication generally helped enough for her “to
have minimal function.” R. at 43-44. She said that roughly three to four days a week, her pain
would be markedly worse. R. at 44. On a daily basis, Plaintiff would have weakness in her left leg
that would require her to steady herself on an object of furniture, or her leg would buckle. Id.
Plaintiff also had a herniated disc in her neck that caused throbbing pain that would shoot into her
shoulder. R. at 43. Plaintiff rated this pain as a five out of ten, and stated that roughly three to four
days a week, this pain would be markedly worse. R. at 43-44.
When Plaintiff took her medication, she rated her pain at about a five in her back and a four
in her neck. R. at 57. She did not identify any side effects from her medications. Id. Her primary
pain medication was Hydrocodone, which she had been prescribed for roughly two years. R. at 5758. Plaintiff’s pain was severe enough that she would have trouble concentrating on a regular basis.
R. at 45. She would be unable to focus on reading, writing, or watching television. Id. She also felt
the effects of neuropathy, explaining that her toes would go numb constantly and that she would
have to use a heating pad for her feet on a daily basis to warm them up, even during the summer. R.
at 46. Plaintiff’s anxiety would also impact her life once or twice per week. Id. The anxiety could
be triggered by her pain or other stress, including her children. R. at 47. Plaintiff also reported
having regular trouble sleeping through the night, usually waking up every hour in order to shift
Plaintiff described her routine for getting up in the morning, which involved stretching her
back in bed before slowly sitting up and sitting for a few minutes to ensure her legs were not numb.
R. at 48. Plaintiff typically did the laundry but relied on her children to transfer clothes to the dryer
and to carry the clean laundry to the kitchen to be folded. R. at 49. Afterward, she would typically
alternate between sitting and lying down, which she would have to do six to eight times a day for
fifteen to twenty minutes at a time. Id. She would only be able to sit in her padded office chair for
fifteen minutes at a time. R. at 50.
Plaintiff discussed her ability to do household chores, including washing dishes. R. at 5051. She stated that she could stand and do the dishes for only ten minutes at a time. R. at 50. Her
neck issues prevented her from reaching upper cupboards, and her back issues required her to squat
instead of bending down to reach lower cupboards. R. at 50-51. Plaintiff noted that she was unable
to bend at the waist. R. at 51. While she was able to vacuum, sweeping and mopping were not
feasible for her because the motion of turning the broom or mop caused pain and muscle spasms.
Id. When vacuuming, she would typically have to rest for fifteen minutes between rooms. R. at 52.
Plaintiff was able to grocery shop as long as the list was not particularly long and she could
complete the trip within thirty minutes. Id. A longer trip would run the risk of significant pain and
muscle spasms, even while leaning on the shopping cart, so her mother would handle larger trips.
R. at 52-53. Plaintiff would not be able to carry the groceries herself; the store employees had to
bring them to her car, and her children would bring them in from the car. R. at 53. Plaintiff
typically cooked, but if cooking took more than ten minutes, she would have to take a break and sit
down to “take the pressure off my spine.” Id. She liked to read, but it was difficult because reading
would either require her to tilt her neck downward or to hold a book up, either of which would
aggravate her neck pain. R. at 53-54.
Plaintiff worked in 2011 selling Avon products. R. at 58. She spent no more than ten hours
a week working and was mostly on the phone with potential customers. Id. Her children typically
handled the products ordered when they arrived, and her mother delivered the orders. R. at 58-59.
Longer phone calls required Plaintiff to toggle the speaker phone and stand up to stretch. R. at 59.
On days where Plaintiff’s pain was worse, she did not do any work. Id. Plaintiff stated that she
typically made $300 per month before expenses. R. at 60.
Plaintiff indicated that she was sitting with her arms on the armrests to take some of the
pressure off her back, and that this would be necessary for a job where she would have to sit for
longer than fifteen minutes continuously. R. at 54-55. She would be able to walk for five to ten
minutes continuously, but after that, she would have to sit for at least fifteen minutes. R. at 55-56.
She cited the walk from the parking lot to the hearing building that morning, which was roughly one
city block, as an example, as she had to rest in the middle of the walk, which took her about fifteen
minutes. R. at 56. Plaintiff could carry roughly ten pounds, but she would not be able to carry them
for a distance. R. at 56-57. She typically bought things, like milk and laundry detergent, in smaller
sizes because they were lighter and easier to handle. R. at 49, 57.
Plaintiff stated, upon questioning from ALJ Lemoine, that she had completed an associate’s
degree in 2010. R. at 60. She attended classes two to three days a week, leaving classes and
walking in the hallway after stretching her back. R. at 60-61. Her class blocks were no longer than
fifty minutes at a time. R. at 62-63. She would drive five minutes to the campus and sometimes
would have to carry books to class. R. at 61. Plaintiff also confirmed to ALJ Lemoine that she was
on diabetes medication but was not receiving active treatment for diabetes or for her mental health
concerns. R. at 62.
C. Procedural History
ALJ Lemoine issued an unfavorable decision on November 29, 2012. R. at 22. While ALJ
Lemoine found that Plaintiff had not engaged in substantial gainful activity and that she had chronic
lower back pain with a herniated disk as well as obesity, R. at 13, none of her other impairments,
such as diabetes, carpal tunnel syndrome, and panic disorder, were determined to be severe
impairments. R. at 13-14. ALJ Lemoine further determined that Plaintiff did not have a
combination of impariments that met or medically equaled the severity of one of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”), giving specific consideration to
Listing 1.04, disorders of the spine. R. at 16; 20 C.F.R. § 404.1520(a)(4)(iii). ALJ Lemoine found
that Plaintiff had the RFC to perform the full range of sedentary work in 20 C.F.R. § 416.967(a), as
he found Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her
symptoms not consistent with the rest of the record. R. at 16-19. Accordingly, ALJ Lemoine
concluded that there were jobs that existed in significant numbers in the national economy that
Plaintiff could perform. R. at 21-22. Therefore, Plaintiff was not disabled under the Social Security
Act since October 26, 2011, the date the application was filed. R. at 22.
A. Standard of Review
When the Court reviews the SSA’s final decision, it determines whether the ALJ applied the
correct legal standards and if the decision is supported by substantial evidence in the Record. 42
U.S.C. § 405(g); Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010) (Kahn, J.) (citing
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)). Substantial evidence amounts to “more than
a mere scintilla,” and it must reasonably support the decision maker’s conclusion. Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court defers to the Commissioner’s decision if it is supported by substantial evidence, “‘even if
it might justifiably have reached a different result upon a de novo review.’” Sixberry v. Colvin, No.
12-CV-1231, 2013 WL 5310209, at *3 (N.D.N.Y. Sept. 20, 2013) (quoting Valente v. Sec’y of
Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). However, the Court should not
uphold the ALJ’s decision when it is supported by substantial evidence, but it is not clear that the
ALJ applied the correct legal standards. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
B. Standard for Benefits
According to SSA regulations, disability is “the inability to do any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 20 C.F.R. § 404.1505(a). An individual seeking disability benefits “need
not be completely helpless or unable to function.” De Leon v. Sec’y of Health & Human Servs.,
734 F.2d 930, 935 (2d Cir. 1984) (quoting Gold v. Sec’y of Health, Educ. & Welfare, 463 F.2d 38,
41 n.6 (2d Cir. 1972)). In order to receive disability benefits, a claimant must satisfy the
requirements set forth in the SSA’s five-step sequential evaluation process. 20 C.F.R.
§ 404.1520(a)(1). In the first four steps, the claimant bears the burden of proof; at step five, the
burden shifts to the SSA. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the SSA is able to determine that the claimant is disabled
or not disabled at any step, the evaluation ends. 20 C.F.R. § 404.1520(a)(4). Otherwise, the SSA
will proceed to the next step. Id.
At step one, the SSA considers the claimant’s current work activity to see if it amounts to
“substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If it does, the claimant is not disabled
under SSA standards. Id. At step two, the SSA considers whether the claimant has a severe
medically determinable physical or mental impairment, or combination of impairments that is
severe, that meets the duration requirement in 20 C.F.R. § 404.1509. Id. § 404.1520(a)(4)(ii). If he
or she does not have such an impairment, the claimant is not disabled under SSA standards. Id. At
step three, the SSA considers the severity of the claimant’s medically determinable physical or
mental impairment(s) to see if it meets or equals an impairment and the requisite duration listed in
20 C.F.R. § 404(P), Appendix I. Id. § 404.1520(a)(4)(iii). If it does not, the SSA moves on to step
four to review the claimant’s RFC and past relevant work. Id. § 404.1520(a)(4)(iv). The claimant is
not disabled under SSA standards if the RFC reveals that the claimant can perform past relevant
work. Id. If the claimant cannot perform his past relevant work, the SSA decides at step five
whether adjustments can be made to allow the claimant to work somewhere in a different capacity.
Id. § 404.1520(a)(4)(iv). If appropriate work does not exist, then the SSA considers the claimant to
be disabled. Id.
Plaintiff argues that the Commissioner’s final decision was not based on substantial
evidence because the ALJ (1) did not properly assess Plaintiff’s credibility; (2) failed to properly
develop, assess, and weigh the medical evidence, and (3) erroneously referred to a nurse practitioner
as a non-medical source. Pl.’s Br. at 7-15.
A. Plaintiff’s Credibility
ALJ Lemoine found that Plaintiff’s descriptions of her symptoms could be reasonably
expected from her medically determinable impairments. R. at 19. However, he did not credit
Plaintiff’s statements to the extent that they surpassed the RFC assessment. Id. ALJ Lemoine
pointed to several factors that supported his credibility finding. First, Plaintiff’s work history prior
to her alleged onset date was poor. Id. Second, Plaintiff’s work history with Avon was inconsistent
with Plaintiff’s own allegations of her symptoms. Id. Third, Plaintiff was able to obtain an
associate’s degree and stated that she could move and carry her books as needed. Id. Fourth,
Plaintiff’s treatment was far more conservative than would be necessary if her disability was as
serious as claimed. Id. Fifth, Plaintiff’s daily living activities showed an ability for her to function
with only minor limitations. Id. Sixth, ALJ Lemoine’s observations of Plaintiff were that she was
not in obvious pain or discomfort, and she was able to rise from her chair at the end of the hearing
without any difficulty. Id.
Plaintiff argues that the ALJ erred in assessing Plaintiff’s credibility in two ways: (1) he
mischaracterized Plaintiff’s demeanor during the hearing due to a lack of video recording, and (2)
he gave unwarranted consideration to Plaintiff’s work as an Avon representative despite her limited
work for Avon. Pl.’s Br. at 9-10. Plaintiff specifically objects to ALJ Lemoine’s characterization of
her appearance at the hearing and her lack of obvious pain or discomfort as sufficient reasons to
doubt her credibility. Id. at 9. Defendant notes that an ALJ is allowed to include their observations
of a claimant at the hearing in determining credibility, and that an ALJ can also consider Plaintiff’s
work for Avon in determining her credibility. Def.’s Br. at 10.
Defendant correctly points out that an ALJ’s observations of a claimant are allowed to
influence the ALJ’s credibility analysis. SSR 96-7p, 1996 WL 362209 (S.S.A. 1996). Since inperson hearings are not videotaped, Plaintiff’s claim that the lack of a recording caused her
prejudice is not cognizable. Further, the Court must judge the ALJ’s decision on a substantial
evidence standard. Sixberry, 2013 WL 5310209, at *3. Therefore, there must merely be reasonable
support for ALJ Lemoine’s finding, and Plaintiff’s testimony regarding her work with Avon could
reasonably support Plaintiff having “a greater residual functional capacity than alleged.” R. at 19.
Given that Plaintiff’s work history is a relevant part of the credibility determination, Schaal v.
Apfel, 134 F.3d 496, 502 (2d Cir. 1998), ALJ Lemoine’s consideration of Plaintiff’s work for Avon
was proper. As a result, Plaintiff’s specific objections to ALJ Lemoine’s credibility finding are
The Court also will address whether ALJ Lemoine’s credibility finding was not based on
substantial evidence. “ALJs are specifically instructed that credibility determinations should take
account of ‘prior work record.’” Schaal, 134 F.3d at 502 (quoting SSR 96-7p). The extent of prior
work history can weigh in favor of or against a finding of credibility, either by showing that a
plaintiff has been truly struggling to find appropriate work or by showing that a plaintiff does not
have significant motivation to work. Id. However, as “[a] claimant’s failure to work may stem
from her inability to work as easily as her unwillingness to work,” the Second Circuit has cautioned
that such an inquiry “must be undertaken with great care.” Id. Therefore, an ALJ should only infer
“a weak attachment to the work force” from a claimant’s prior work record when a lack of
employment cannot be explained adequately. Woodside v. Comm’r of Soc. Sec., No. 14-cv-1234,
2016 WL 796075, at *6 (N.D.N.Y. Feb. 23, 2016). In this case, ALJ Lemoine’s analysis of
Plaintiff’s work history omits the fact that Plaintiff separated from her husband in 2003, prior to
which she may not have been the head of her household. R. at 279. Plaintiff’s work history is more
sporadic before 2003 when compared to the period of time between 2003 and her claimed disability
date. R. at 158. ALJ Lemoine has not noted these differences in Plaintiff’s work history, merely
mentioning a “poor work history prior to her alleged onset date.” R. at 19. This calls into question
whether he has undertaken this analysis with the required “great care.”
This error, however, is harmless. See Medovich v. Colvin, No. 13-cv-1244, 2015 WL
1310310, at *2 (N.D.N.Y. Mar. 23, 2015) (denying a remand when error was harmless). Given the
significant number of other factors that ALJ Lemoine has found in support of his determination of
Plaintiff’s credibility, and mindful of the deferential standard upon review, the Court finds that the
ALJ’s finding of Plaintiff’s limited credibility is based on substantial evidence and thus not subject
B. Development, Assessment, and Weighing of Medical Evidence
In considering the opinions on the record, ALJ Lemoine assigned great weight to Dr.
Kuthuru and Dr. Mescon. R. at 20. He further assigned great weight to portions of Dr. Goriganti’s
opinion as far as he stated that Plaintiff could lift and carry items weighing ten pounds and had no
limitations with respect to reaching, handling, fingering and feeling. Id. However, he assigned little
weight to Dr. Goriganti’s opinion that Plaintiff could only sit for short periods, stand or walk for one
hour of an eight-hour day, and never or occasionally kneel, crouch, crawl, stoop, climb, or balance.
Id. ALJ Lemoine stated that these opinions were not supported by the objective signs observed by
Dr. Goriganti. R. at 20-21. Finally, ALJ Lemoine assigned less than controlling weight to Ms.
Salmonsen’s opinions, which were not well supported by objective symptoms. R. at 21. However,
Ms. Salmonsen’s opinion “was duly considered.” Id.
Plaintiff argues that ALJ Lemoine has failed to properly develop, assess, and weigh the
medical evidence in the following ways: (1) by discounting an unspecified treating physician’s
opinion for being based on subjective complaints; (2) by failing to clarify the opinions of a
consultative physician, unspecified but indicated to be Dr. Mescon, (3) by affording greater weight
to opinions offered by physicians other than the consultative and treating sources, who were in
agreement; (4) by accepting an opinion from Dr. Kuthuru that Plaintiff was not disabled; and (5) by
affording greater weight to nonspecific opinions than specific opinions, neither specified by
Plaintiff. Pl.’s Br. at 11-15. Defendants counter that treating sources are not necessarily entitled to
the greatest weight, that an opinion that Plaintiff was not disabled was properly subject to careful
consideration before it was given any weight, and that the weight given to various sources was
directly related to their consistency with the record as a whole. Def.’s Br. at 12-15.
Plaintiff’s first argument is wholly premised on Nix v. Astrue, No. 07-CV-344, 2009 WL
3429616 (W.D.N.Y. Oct. 22, 2009), which she claims reversed an ALJ’s decision for rejecting
medical opinions based on subjective complaints. Pl.’s Br. at 11. However, Plaintiff
mischaracterizes the holding of Nix, which reversed the ALJ’s conclusion regarding “the basis on
which these physicians produced their reports.” 2009 WL 3429616, at *9. Plaintiff’s argument
refers to ALJ Lemoine’s consideration of Plaintiff’s own testimony, which is an issue of credibility
and thus legally distinct from Nix. Since the Court has already addressed the issue of Plaintiff’s
credibility, this argument is without merit.
Plaintiff’s second argument is that the ALJ should have clarified the opinion of Dr. Mescon
with respect to her medical source statement, which noted that “there are no limitations in the
claimant’s ability to sit or to stand for short periods of time.” R. at 363. ALJ Lemoine specifically
mentioned this language in his decision and determined that it was consistent with Plaintiff’s own
testimony that she could clean, do laundry, do dishes, vacuum, and grocery shop. R. at 20. The
Court therefore finds that ALJ Lemoine’s finding that Dr. Mescon’s opinion was entitled to great
weight was supported by substantial evidence and is not subject to remand.
Plaintiff also alleges that consultative and treating sources were improperly given less
weight than other sources. However, the sources directly considered by ALJ Lemoine appear to be
the four treating and consultative sources that form the vast majority of the record: Dr. Kuthuru, Dr.
Mescon, Dr. Goriganti, and Ms. Salmonsen. R. at 19-21. Furthermore, the only consultative
source, Dr. Mescon, received great weight. R. at 20. Plaintiff has not identified which sources are
the consultative or treating sources that have erroneously been given less weight, or which sources
have improperly received more weight. Pl.’s Br. at 13. Therefore, Plaintiff’s third argument is
Plaintiff objects to the great weight afforded to Dr. Kuthuru as improper, as ALJ Lemoine
appears to directly credit Dr. Kuthuru’s conclusion that Plaintiff was not disabled. R at 20.
Plaintiff’s argument also ignores the ability of an ALJ to give weight to an opinion without
necessarily crediting the conclusion of the source. Here, ALJ Lemoine assigned this opinion great
weight “since it is consistent with the minimal objective findings found by the physician.” Id. ALJ
Lemoine cites to the third page of Dr. Kuthuru’s comprehensive summary, which discusses the
results of his physical examination, rather than the page at which Dr. Kuthuru states that Plaintiff is
not disabled. R. at 471. These indications are consistent with ALJ Lemoine properly considering
Dr. Kuthuru’s observations and opinions rather than crediting Dr. Kuthuru’s conclusion directly.
Therefore, ALJ Lemoine’s decision to give Dr. Kuthuru’s opinions great weight is supported by
Finally, Plaintiff argues that ALJ Lemoine has given greater weight to less specific medical
sources. Pl.’s Br. at 14-15. The two sources given less weight by the ALJ are Dr. Goriganti, in part,
and Ms. Salmonsen. As discussed below, Ms. Salmonsen’s opinion was properly considered. The
portion of Dr. Goriganti’s opinion not given great weight was found by ALJ Lemoine to be
inconsistent with the record as a whole, including Dr. Goriganti’s own findings. R. at 20-21. Dr.
Goriganti claimed that Plaintiff could not sit or stand for more than one hour combined in an eighthour workday. R. at 466. ALJ Lemoine specifically found that Plaintiff had the ability to sit or
stand for at least two hours per day based on her description of her household tasks and on Dr.
Mescon’s opinion. R. at 20. The Court therefore finds that the weight assigned to Dr. Goriganti’s
opinion was supported by substantial evidence.
C. Nurse Practitioner as a Non-Medical Source
Plaintiff claims that ALJ Lemoine erred in referring to Ms. Salmonsen, a nurse practitioner,
as a “non-medical source.” Pl.’s Br. at 15; R. at 21. Defendant argues that while the ALJ used the
term “non-medical source,” he clearly meant to use the term “acceptable medical source,” and Ms.
Salmonsen’s opinion was still duly considered, even if it was not given controlling weight. Def.’s
Br. at 13-14.
Federal regulations consider medical sources “for example, nurse-practitioners” as well as
non-medical sources as “other sources.” 20 C.F.R. § 404.1513(d). An ALJ “may use evidence from
‘other sources’ . . . . [I]nformation from such ‘other sources’ may be based on special knowledge of
the individual and may provide insight into the severity of the impairment(s) and how it affects the
individual’s ability to function.” SSR 06-03p, 2006 WL 23929939, at *2-3 (S.S.A. 2006). “The
ALJ is free to conclude that [other sources are] not entitled to any weight, however, the ALJ must
explain that decision.” Saxon v. Astrue, 781 F. Supp. 2d 92, 104 (N.D.N.Y. 2011). ALJ Lemoine
explained that he was considering Ms. Salmonsen’s opinion but would not give it controlling weight
due to its inconsistency with the rest of the record. R. at 21. ALJ Lemoine was entitled to give Ms.
Salmonsen’s opinion less weight due to its inconsistency with the remainder of the record. Given
that the weight given to nurse practitioners and non-medical sources are the same under both
§ 404.1513 and SSR 06-03p, the Court finds that the ALJ’s error in characterizing Ms. Salmonsen’s
opinion as non-medical evidence is harmless and does not warrant a reversal of his decision.
In conclusion, ALJ Lemoine was correct in his determination of Plaintiff’s limitations
because he reasonably evaluated all of the relevant evidence and properly assessed Plaintiff’s
credibility. His decision is adequately explained and supported by substantial evidence in the
Accordingly, it is hereby:
ORDERED, that the decision of the Commissioner is AFFIRMED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the local rules.
IT IS SO ORDERED.
March 31, 2016
Albany, New York
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