Parker v. Astrue

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Parker's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 3/5/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BRIANNE PARKER,
Plaintiff,

6:13-cv-3
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter W. Antonowicz
148 West Dominick Street
Rome, NY 13440
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

PETER W. ANTONOWICZ, ESQ.

SIXTINA FERNANDEZ
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Brianne Parker challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI), seeking judicial
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.)1 After reviewing
the administrative record and carefully considering Parker’s arguments, the
court affirms the Commissioner’s decision and dismisses the complaint.
II. Background
On May 22, 2008, Parker filed an application for SSI under the Social
Security Act (“the Act”), alleging disability since April 30, 2008. (Tr.2 at 88,
162-67.) After her application was denied, (id. at 89-92), Parker requested
a hearing before an Administrative Law Judge (ALJ), which was held on

1

In her complaint, Parker appeals the denial of her “claim for Social Security Disability
Benefits.” (Compl. ¶ 3.) Contrary to Parker’s allegations, she applied for SSI and not for
Disability Insurance Benefits (DIB). (Id. ¶ 4.) On various occasions Parker’s counsel has
initiated actions before the court challenging the denial of DIB, using similarly imprecise
language. See, e.g., Rimmer v. Colvin, No. 6:12-cv-775, 2013 WL 3880138, at *1 n.2
(N.D.N.Y. July 26, 2013); Comito v. Colvin, No. 6:12-cv-22, 2013 WL 2444189, at *1 n.2
(N.D.N.Y. June 5, 2013). In the interest of justice, the court will examine Parker’s claims on
the merits. The court’s patience with counsel’s inartful pleading practices has grown thin,
however, and this generous ruling should not be mistaken for an endorsement or condonation
of counsel’s careless methods, which could create a jurisdictional defect requiring dismissal.
Further, the court appreciates that this action was pending at the time it first warned counsel of
his unacceptable practices in Comito.
2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

2

October 8, 2010, (id. at 35-64, 95). On June 28, 2011, a supplemental
hearing was held to take the testimony of medical expert Donald Goldman.
(Id. at 65-85.) On August 19, 2011, the ALJ issued an unfavorable
decision denying the requested benefits, which became the
Commissioner’s final determination upon the Appeals Council’s denial of
review. (Id. at 1-4, 18-34.)
Parker commenced the present action by filing her complaint on
January 2, 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. 8, 9.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 13, 14.)
III. Contentions
Parker contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 13, Attach. 1
at 11-17.) Specifically, Parker claims that the ALJ’s errors in weighing the
medical opinions of record resulted in a residual functional capacity (RFC)
determination that is unsupported by substantial evidence. (Id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and his decision is also supported by substantial evidence. (Dkt.
3

No. 14 at 6-11.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 13, Attach. 1 at 3-8; Dkt. No. 14 at 2.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)3 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
According to Parker, the ALJ’s RFC determination is unsupported by

substantial evidence because “the weight accorded to [the] opinion
evidence is flawed.” (Dkt. No. 13, Attach. 1 at 17.) Specifically, Parker

3

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI

claims.

4

argues that the Commissioner gave inappropriate weight to non-examining
and non-treating medical sources, and failed to accord “great weight” to the
opinions of her treating physicians. (Id. at 11-16.) The Commissioner
counters, and the court agrees, that the ALJ properly evaluated the
medical opinions of record, and his RFC determination is supported by
substantial evidence. (Dkt. No. 14 at 6-11.)4
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 416.945(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. § 416.945(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence5 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).
Here, the ALJ determined that Parker retains the RFC to “perform the
full range of sedentary work” as defined in the regulations. (Tr. at 24.) The
4

Notably, Parker does not contest the ALJ’s assessment of her mental impairments.
(See generally Dkt. No. 13, Attach. 1.)
5

“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).

5

ALJ based his determination on the diagnostic test results and clinical
exam findings contained in the record before him, as well as the opinions
of consultative examiner Kaylani Ganesh and Goldman, a non-examining
medical expert. (Id. at 25-28.) The ALJ discounted the opinion of treating
physician Nathaniel Gould because he failed to provide examination
findings in support of his “check-the-box” assessment, and the objective
evidence of record does not support his conclusions. (Id. at 28, 285-86.)
Additionally, the ALJ afforded “little weight” to the opinion of treating
physician Paula Vecchio because she failed to provide examination
findings in support of her opinion and, further, did not respond to the ALJ’s
request for clarification of her opinion. (Id. at 381-83, 385-89.)
Controlling weight will be given to a treating source’s opinion on the
nature and severity of a claimant’s impairments where it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 416.927(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
When a treating source’s opinion is given less than controlling weight, the
ALJ is required to consider the following factors: the length, nature and
extent of the treatment relationship; the frequency of examination;
6

evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. 20 C.F.R. § 416.927(c)(2)-(6). 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) (internal
quotation marks and citations omitted). “Nevertheless, where the evidence
of 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 him or have explained why he considered particular evidence
unpersuasive or insufficient to lead him to a conclusion of disability.” Id.
(internal quotation marks and citation omitted).
Parker contends that the ALJ gave “little weight” to the opinions of
both of her treating sources for “very specious reasons.” (Dkt. No. 13,
Attach. 1 at 12.) The court disagrees. The ALJ properly declined to give
controlling weight to the opinions of Drs. Gould and Vecchio because they
were not supported by clinical findings and laboratory techniques and were
inconsistent with other substantial evidence in the record. (Tr. at 28); see
20 C.F.R. § 416.927(c)(2)-(4). Specifically, Dr. Gould consistently found
Parker to be in no acute distress, with a normal gait, but reduced lumbar
spine range of motion, and, at times, tenderness in her lumbar spine. (Tr.
7

at 291-93, 300-02, 307-08, 371-73, 392-94.) Dr. Gould reviewed Parker’s
January 2010 lumbar spine x-ray, which revealed “normal alignment and
position of the vertebral bodies,” as well as “intervertebral disc spaces and
vertebral body heights” that were “within normal limits.” (Id. at 287.) Dr.
Gould also assessed Parker’s February 2007 MRI, which revealed “mild
diffuse annular disc bulging” at L4-5 and “a fairly small” broad-based
central disk protrusion. (Id. at 292, 369.) In June 2008, Dr. Gould found
that Parker could flex so that her fingers touched the floor, and he opined
that, while she was totally temporarily disabled from working as a
bartender, she was only “mild[ly] to moderate[ly] partial[ly]” disabled
“overall.” (Id. at 292.) In May 2010, Dr. Gould noted that a steroid injection
had helped reduce Parker’s pain, and she now reported that her baseline
pain was mild, although her pain increased with activity. (Id. at 307.)
Further, in records submitted to the Appeals Council after the ALJ’s
decision was rendered, Dr. Gould noted that Parker complained of
intermittent “5/10” low back pain, and that a TENS unit and lumbar roll
provided some pain relief. (Id. at 392); see Perez, 77 F.3d at 46 (“When
the Appeals Council denies review after considering new evidence, [the
court] simply review[s] the entire administrative record, which includes the
8

new evidence, and determine[s], as in every case, whether there is
substantial evidence to support the decision of the Secretary.”) As, the
ALJ noted, Dr. Gould’s treatment records contain no clinical findings or
diagnostic evidence to support his restrictive opinion as to Parker’s ability
to sit,6 and, instead, support the determination that she can perform
sedentary work. (Tr. at 28, 357-66.)
Dr. Ganesh examined Parker in June 2008 and found her to be in no
acute distress, with a normal gait, and the ability to squat in full. (Id. at
253.) Parker suffered a reduced range of motion of her lumbar spine, and
straight leg raising was negative when sitting, but positive at fifteen
degrees lying down. (Id. at 254.) Parker had 5/5 strength in her upper and
lower extremities, no motor or sensory deficits, and no muscle atrophy.
(Id.) Dr. Ganesh opined that Parker suffered only “mild to moderate”
limitations to lifting, carrying, pushing, and pulling. (Id.) Subsequently, Dr.
Goldman reviewed the entirety of the medical record and completed two

6

In particular, Dr. Gould opined that Parker can sit for less than four hours a day. (Tr.
at 285-86.) Dr. Gould further opined that Parker can lift and carry twenty pounds occasionally
and five pounds frequently, stand and/or walk for less than four hours a day, occasionally
perform postural activities, and occasionally reach in all directions. (Id. at 286.) The full range
of sedentary work requires the ability to remain in a seated position for approximately six hours
in an eight-hour work day and involves lifting no more than ten pounds at a time. See SSR 969p, 61 Fed. Reg. 34,478, 34,480 (July 2, 1996).

9

medical source statements with respect to Parker’s functional abilities. (Id.
at 335-43, 357-66.) According to Dr. Goldman, Parker can stand and/or
walk for four hours, and sit for six hours of an eight-hour day. (Id. at 335,
358.) Dr. Goldman further opined that Parker can occasionally climb stairs
and ramps, crawl, and withstand frequent exposure to unprotected heights,
moving mechanical parts, and operating a motor vehicle. (Id. at 339, 361.)
In his first medical source statement, Dr. Goldman opined that Parker can
occasionally lift and carry up to thirty pounds, but, in his second
assessment, he indicated that Parker can occasionally lift and carry up to
fifty pounds. (Id. at 335, 357.)7
In addition to the limited findings on examination by Drs. Gould and
Ganesh, the ALJ’s determination that Parker can perform sedentary work
is supported by the exam findings of treating physician Rudolph Buckley.
(Id. at 24, 294-96.) Dr. Buckley noted in May 2007 that Parker took no

7

Parker argues that the ALJ erred in relying on Dr. Goldman’s opinion because he
“acknowledg[ed] the importance of a physical examination” in evaluating a person’s abilities.
(Dkt. No. 13, Attach. 1 at 16; Tr. at 77.) However, Dr. Goldman also testified that he disagrees
with the opinions of Parker’s treating physicians because, other than Parker’s subjective
complaints, the examination notes of record are devoid of clinical findings suggesting
impairments of the severity these physicians describe. (Tr. at 80-82.) Importantly, “an ALJ is
entitled to rely upon the opinions of both examining and non-examining State agency medical
consultants, since such consultants are deemed to be qualified experts in the field of social
security disability.” Baszto v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y. 2010).

10

pain medication for her complaints of back and leg pain, was in no acute
distress, and had a normal gait, symmetric deep tendon reflexes, intact
sensation, and no atrophy or weakness in her lower extremities, although
she did exhibit decreased range of motion in her lumbar spine due to pain.
(Id. at 294-96.) In January 2008, Dr. Buckley performed a follow-up
examination of Parker and noted no abnormal findings on his physical
examination. (Id. at 289-90.) In November 2009, physician assistant Brian
Berry examined Parker for complaints of back and leg pain, and noted that
she was in no acute distress, with no tenderness, and good active forward
and backward movement in her lumbar spine. (Id. at 282-83.) Parker had
a “[n]ormal flowing tandem gait,” negative bilateral straight leg raise and
“FABER” tests, and could heel-and-toe walk without difficulty. (Id. at 283.)
Further, her motor strength was 5/5 bilaterally, and she had equal reflexes
and intact sensation. (Id.)
Turning to the opinion of Dr. Vecchio, again the court agrees with the
ALJ that her opinion is not supported by the clinical signs and laboratory
findings of record. (Tr. at 28.) In June 2011, Dr. Vecchio opined that
Parker can lift and carry ten pounds frequently, stand and/or walk for three
hours or less, and sit for two hours or less in a workday. (Id. at 381-82.)
11

According to Dr. Vecchio, Parker can never perform any postural activities,
and must lay down intermittently throughout the day. (Id. at 381.) Dr.
Vecchio also opined that Parker’s pain causes her to be off-task between
twenty-five percent and fifty percent fo the day, and would cause her to
miss work more than four days per month. (Id. at 383.)8 In addition to
being inconsistent with the limited objective medical findings of record, Dr.
Vecchio’s opinion is inconsistent with that of Drs. Gould, Ganesh, and
Goldman. (Id. at 254, 285-86, 335-43, 357-66.)
In sum, the weight afforded to the various opinions by the ALJ, for
reasons which are fully articulated in his written decision, is supported by
substantial evidence. (Id at 24-28.) The ALJ also undertook a thorough
discussion of the medical and testimonial evidence of record, which
indicates that Parker can perform sedentary work. (Id.) As such, the court
affirms the ALJ’s RFC determination. Perez, 77 F.3d at 46.
B.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of
8

After the ALJ rendered his decision, Parker submitted a second medical source
statement from Dr. Vecchio to the Appeals Council. (Tr. at 408-09.) Dr. Vecchio’s April 2012
medical source statement indicated less severe limitations than those contained in the June
2011 assessment with respect to Parker’s postural abilities, but limited Parker to lifting less
than five pounds as “advised by Dr. Gould,” and restricted her to standing and/or walking two
hours or less of the work day. (Id. at 408.)

12

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
Parker’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 5, 2014
Albany, New York

13