Cool v. Commissioner of Social Security

Filing 20

DECISION AND ORDER that Pltf's motion for judgment on the pleadings is denied. Signed by Senior Judge Thomas J. McAvoy on 7/23/14. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------DENISE F. COOL,
Plaintiff,
-vs-

No. 6:13-CV-218

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
------------------------------Thomas J. McAvoy,
Senior United States District Judge

DECISION and ORDER
Plaintiff brought this action under § 205(g) and § 1631(c)(3) of the Social Security
Act, codified as 42 U.S.C. § 405(g) and § 1383(c)(3), to review a final determination of
the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s application for
Social Security Disability benefits and Supplemental Security Income benefits. Before the
Court is Plaintiff’s motion for judgment on the administrative record and pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The parties have
submitted briefing and evidence on the issues raised in Plaintiff’s motion.
I.

Facts
a.

Procedural History

Dennise F. Cool (“Plaintiff”) filed an application for Social Security Disability benefits

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and Supplemental Security Income benefits with a protective filing date of September 3,
2009, alleging disability beginning January 29, 2008, due to mid-carpal instability in her
right hand, cervical spine degeneration, numbness in her left hand, and pain in her neck.
See Administrative Transcript (“T”), dkt. # 9 at 156–67, 209. Her application was denied
on November 25, 2009. T at 63–64. On January 22, 2010, Plaintiff timely requested a
hearing with an Administrative Law Judge (“ALJ”). T at 80–82. A video hearing took place
before ALJ Elizabeth W. Koennecke on January 27, 2011. T at 45–62. Information from
a Vocational Expert (“VE”) was obtained after the hearing date, and a supplemental
hearing was held on September 2, 2011 so that Plaintiff’s counsel could question VE
Esperanza Distefano. T at 31–44.
The ALJ issued an unfavorable decision dated October 24, 2011. T at 13–30. On
December 2, 2011, Plaintiff requested review of the ALJ’s decision. T at 12. On
December 26, 2012, the Appeals Council denied the request. T at 1–6. Upon this denial,
the Plaintiff filed the instant action. See Complaint, dkt. # 1.
b.

Medical History

On February 20, 2008, Plaintiff reported right arm pain after an alleged fall at work
on January 29, 2008, and was treated by John B. Ayres, M.D. T at 330–31. Dr. Ayres
noted that Plaintiff may have suffered a bone injury to her wrist and recommended a nerve
conduction study and an MRI. T at 331. Dr. Ayres also noted that Plaintiff was unable to
work until the studies were completed. Id. On March 26, 2008, Plaintiff underwent a
nerve conduction test and the results were normal. T at 323.
From April 9, 2008 to May 9, 2008, Plaintiff attended physical therapy for her right
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wrist. T at 334–45.
On April 23, 2008, Plaintiff saw Dr. Ayres for continued right arm pain. T at 325–26.
The doctor noted that Plaintiff had pain on the ulnar side of her wrist and that she might
have a triangular fibrocartilage ligament. T at 325. Dr. Ayres further noted that Plaintiff
was taping her wrist which seemed to stabilize it. Id. He recommended that Plaintiff
continue physical therapy for her wrist and start therapy for her shoulder. Id.
On May 28, 2008, Jonathan Richman, M.D., noted a possible triangular
fibrocartilage complex tear in Plaintiff’s right wrist. T at 338.
On June 10, 2008, W. David Ferraraccio, M.D., performed an orthopedic evaluation
on Plaintiff. T at 342-45. The doctor noted that Plaintiff had decreased palmar flexion in
her right wrist. T at 344. He also noted that Plaintiff’s elbow and AC joint by her shoulder
were tender. Id. He diagnosed Plaintiff with probable low-grade impingement syndrome
in her right shoulder, contusion at the right elbow, right wrist pain with a possible
Triangular fibrocartilage complex (TFCC) injury, and possible right carpal tunnel. Id. He
assessed Plaintiff as having a moderate to marked level of causally related disability. T at
345.
On August 29, 2008, Dr. Louis A. DiGiovanni, M.D., a treating physician, examined
Plaintiff. T at 256–58. Plaintiff reported her pain severity as a six out of ten during the
day, and a ten out of ten at night. T at 256. The doctor assessed Plaintiff with sprains,
strains, and likely TFCC in her right wrist. T at 257. Plaintiff requested an injection in her
right wrist. Id. The doctor completed a Workers’ Compensation form and stated that
Plaintiff was totally disabled from regular work duties. T at 258.
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On September 30, 2008, Dr. DiGiovanni treated Plaintiff for her right wrist pain. T
at 259–61. Plaintiff received a right wrist arthogram and an injection into the right wrist
joint at the ulnar fibrocartilage region. T at 261.
On October 29, 2008, Plaintiff saw Dr. DiGiovanni again for her right wrist pain. T
at 262–64. Plaintiff reported that the injection relieved her pain for a few days; however,
the pain returned after she lifted a cup of coffee. T at 263.
On November 25, 2008, Carl J. Spivak, M.D., consultatively examined Plaintiff. T at
258–60. Plaintiff reported headaches, neck pain, right shoulder pain, and right wrist pain,
and stated that nothing relieved her pain. T at 358. The doctor noted that Plaintiff was
tender on her occipital nerves bilaterally, midlines lower cervical spine, right parasacpular
area, and right shoulder apex. T at 359. He assessed that Plaintiff had cervical
spondylosis and bilateral occipital neuralgia. Id. Plaintiff stated that she wanted to try
injections again. Id.
On December 11, 2008, Plaintiff saw Dr. Ayres for continued pain. T at 498. The
Plaintiff reported that she had burns on her left hand from touching a hot plate, and that
she did not feel the burning. Id.
On January 8, 2009, Dr. Spivak performed bilateral occipital nerve steroid blocks
and a cervical epidural steroid block on Plaintiff. T at 292–93.
On January 27, 2009, Dr. Spivak again treated Plaintiff. T at 355. Plaintiff reported
that the injections did not provide her with any pain relief. Id. The doctor noted that
Plaintiff ‘s occipital nerves and midline cervical were still very tender. Id.
On February 2, 2009, Margaret A. Miller, D.C., a treating Chiropractor, saw Plaintiff.
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T 267–69. The doctor noted that Plaintiff had loss of cervical curve and mild degenerative
changes at C5 and C6, and diagnosed her as having “C/S” subluxation and brachial
neuritis or radiculitis. T at 269. The doctor submitted a progress report to the Workers’
Compensation Board that indicated that Plaintiff was temporarily completely impaired and
could not return to work due to severe pain. T at 380–82. Dr. Miller submitted similar
reports with the same findings on July 6, 2009, August 6, 2009, September 3, 2009,
October 6, 2009, November 12, 2009, and December 7, 2009. T at 364–79, 585–92.
On February 17, 2009, Dr. Richard Whipple, M.D., noted a chronic strain in
Plaintiff’s right wrist. T at 271.
On July 22, 2009, Dr. Ayres treated Plaintiff for right wrist and right should pain. T
at 362. He noted that Plaintiff’s shoulder was still “bothering her quite a bit on the right
side when she elevates.” Id.
On August 19, 2009, Dr. Ayres treated plaintiff for continued pain. T at 363. He
noted that X-rays of Plaintiff’s neck “show significant degenerative disease of C5-C6 and
C6-C7.” Id. The hospital record of the X-Ray reports minimal degenerative change in the
cervical spine. T at 274.
On October 6, 2009, Kevin J. Setter, M.D., treated Plaintiff. T at 394. He noted
that Plaintiff could not return to normal activities because she was completely impaired by
her wrist pain. Id.
On November 6, 2009, Shehzad Ali, M.D., performed an internal medicine
examination on Plaintiff. T at 296–300. The doctor noted that Plaintiff’s cervical spine
forward flexion was limited to 20 degrees, her lateral flexion was limited to 10 degrees,
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and extension was limited to 15 degrees. T at 298. He also noted a paraspinal muscle
spasm in the cervical region bilaterally, which was worse on the left side. Id. He noted
that her right wrist dorisflexion was limited to 40 degrees, and her palmar felxion was
limited to 50 degrees. T at 298–99. The doctor diagnosed Plaintiff with right hand pain
and wrist pain, right carpal tunnel syndrome, neck pain with occipital neuralgia, cervical
spondylosis, and degenerative joint disease at C5-C6 cervical spine. T at 299. He
recommended that Plaintiff avoid using her right hand for zipping, buttoning and tying
shoes, and avoid doing computer work due to her neck pain. T at 300.
On November 10, 2009, Dr. David Ferraraccio, M.D., measured the range of motion
in her wrist, finding dorsiflexion at 53 degrees on the right, compared to 77 degrees on the
left, and palmar flexion at 49 degrees on the right, compared to 74 degrees on the left. T
at 344.
On October 6, 2010, Dr. Setter performed an arthroscopy, TFCC debridement, and
injection on Plaintiff’s right wrist. T at 518. A week later, the doctor noted that Plaintiff
was doing “absolutely fantastic with regard to her right wrist and pain.” Id.
On January 28, 2010, Vincent V. Sportelli, D.C., performed an Independent Medical
Examination of Plaintiff. T at 403-06. He reported that her cervical compression and
distraction tests were positive. T at 405. He also noted that Plaintiff’s cervical range of
motion was limited to 25 degrees in flexion, and 15 degrees in extension. T at 404. He
further noted that testing caused Plaintiff pain and discomfort in the cervicothoracic area.
Id. Furthermore, he found that Plaintiff had decreased range of motion in her right
shoulder as compared to the left in flexion, extension, abduction and adduction. Id. He
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diagnosed Plaintiff with “cervicothoracic sprain/strain with myalgia,” cervical radiculitis, and
“right cervical brachial syndrome with cervical disc syndrome C6-7 on the right.” T at 405.
Dr. Sportelli consequently found that Plaintiff was moderately to markedly disabled. Id.
On February 9, 2010, Darlene Euler, D.C., submitted a progress report to the
Workers’ Compensation Board and stated that Plaintiff was completely temporarily
impaired and could not return to work due to severe pain. T at 459–62.
On April 12, 2010, Dr. Ayres treated Plaintiff for continued neck and right arm pain.
T at 481. He noted that Plaintiff remained completely disabled. T at 481.
On May 26, 2010, Plaintiff saw Dr. Ayres again for continued pain. T at 479.
Plaintiff reported pain from her neck to the tips of her fingers. Id. She also reported
tingling into her fingers on the left wrist, similar to the pain she experiences on the right.
Id. The doctor found that Plaintiff seemed uncomfortable and frustrated during her
examination. Id.
On June 21, 2010, Plaintiff underwent an MRI which indicated a disc bulge at C5-6,
but no nerve root compression. T at 409.
On July 14, 2010, Dr. Setter performed surgery on Plaintiff’s right shoulder after
diagnosing her with pain, impingement, acromioclavicular arthritis, adhesive capsulitits and
a superior labral tear, all in her right shoulder. T at 522.
On October 6, 2010, Dr. Setter again performed surgery on Plaintiff. T at 415. He
reported that Plaintiff had a central TFCC tear, “significant synovisits and dorsal capsulitis
in the radiocarpal joint as well as a significant amount of synovisits within the intercarpal
joint.” Id.
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On October 14, 2010, Dr. Setter treated Plaintiff. T at 518. Plaintiff reported that
she believed that she hit her left wrist in the initial fall, and that she was starting to notice
the pain more now that her right wrist was feeling better. Id. Dr. Setter therefore believed
that her left wrist pain was casually related to the fall. Id.
On October 22, 2010, Gerald A. Coniglio, M.D., performed an Independent Medical
Examination on Plaintiff, pursuant to her Workers’ Compensation claim. T at 421-32. He
noted well-healed arthroscopic puncture wounds and no atrophy of the shoulders. T at
426. The doctor noted that Plaintiff’s cervical range of motion included: flexion at 35
degrees, extension at 30 degrees, right lateral rotation at 60 degrees, and left lateral
rotation at 50 degrees. T at 425. He also found a decreased range of motion in Plaintiff’s
right wrist, and noted that the dorsiflexion and volar flexion were both 70 degrees. T at
427. He further noted that Plaintiff’s right and left wrists had a “positive Phalen’s test . . .
which produces numbness and tingling in the right thumb and little finger.” T at 427–28.
The doctor also noted that Plaintiff had “a Tinel’s which begins in the ulnar cubital groove
and proceeds down the inside of the forearm to the right little finger and right finger. She
[had] decreased sensation beginning just distal to the ulnar cubital groove proceeding
distally to the ulnar side of the hand.” T at 427. He therefore diagnosed Plaintiff with
“sprain/stain syndrome of cervical spine,” “right ulnar cubital nerve entrapment syndrome
at the elbow,” and “left wrist cubital tunnel syndrome.” T at 431. He found that Plaintiff had
the following work restrictions:
Lifting: Up to 5 pounds with the right hand and raise it from floor to tabletop
level. She cannot carry 5 pounds greater than 10 feet. She may work with
the right arm above shoulder level. She may push, pull, turn, twist, with a
force up to 10 pounds occasionally with the right arm. She can do repetitive
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work approximately 5 minutes with the right hand or wrist and then must rest
for 10 minutes. She cannot restrain uncooperative clients. These restrictions
refer both to the claimant’s cervical spine and right upper extremity.
Restrictions related to the left hand and wrist. The claimant may lift 20
pounds with the left hand and wrist. She may push, pull, turn, twist, with a
force up to 20 pound [sic] with the left hand and wrist. She may not climb
ladders. She cannot restrain uncooperative hostile individuals. She can carry
up to 20 pounds with the left hand and wrist 50 feet. She can perform
repetitive work with her left upper extremity 20 minutes and then must rest
the left hand and wrist for 20 minutes.
T at 431-32.
Dr. Coniglio also found that Plaintiff may require left carpal tunnel release if a
cortisone injection did not provide her with relief. T at 432. Additionally, he reported that
Plaintiff still had significant weakness in her right hand. Id.
On November 18, 2010, Dr. Ayres treated Plaintiff for continued pain. T at 472.
Plaintiff reported that her left wrist had been in pain and that she was concerned about
needing neck surgery. Id.
On November 30, 2010, Dr. Setter saw Plaintiff for continued pain and noted that
she had 75% impairment in both her shoulder and wrist. T at 517. He recommended that
Plaintiff do no “lifting, pushing, or pulling with the right upper extremity whatsoever at the
present time.” Id.
On January 4, 2011, Dr. Miller submitted a progress report to the Workers’
Compensation Board stating that Plaintiff was completely temporarily impaired and could
not return to work due to severe pain. T at 532-35.
On January 13, 2011, Dr. Setter saw Plaintiff for post-operative care of her shoulder
and wrist. T at 593. He wrote that Plaintiff should not lift, push, or pull with the right upper
arm at this time. Id. He stated that while Plaintiff had a 75% impairment in both her
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shoulder and wrist, both were “better than preoperatively.” Id.
On March 14, 2011, Dr. Ayres treated Plaintiff for neck, right shoulder, and right
and left wrist difficulties. T at 626. Plaintiff reported some problems with her left hand
in “differentiating between hot and cold,” and continued pain in her neck. Id. The doctor
reported that Plaintiff was completely disabled and “still unable to work.” Id.
On April 22, 2011, Dr. Coniglio performed an Independent Medical Examination on
Plaintiff. T at 595-604. He noted that Plaintiff’s cervical range of motion was as follows:
flexion at 20 degrees, extension at 10 degrees with pain, right lateral rotation at 45
degrees with pain, and left lateral rotation at 45 degrees with pain. T at 600. He also
noted that Plaintiff had “a Tinel’s which begins in the ulnar cubital groove and proceeds
down the inside of the forearm . . . she has decreased sensation in both forearms.” T at
602. He diagnosed Plaintiff with “multiple level degenerative disc disease cervical spine,
symptomatic, with right later C6 and C7 radiculopathy, right greater than left” and “likely
bilateral double crush syndrome of the cervical spine and upper extremities.” T at 608.
He recommended that she continue with physical therapy and noted her work restrictions
as follows:
[Plaintiff] may lift up to 20 pounds occasionally with both arms and arise it
from floor to tabletop level occasionally; she can push, pull, turn and twist
with a force of 20 pounds, she can do repetitive work for 5 minutes with the
[sic] either hand then must rest for 10 minutes; she cannot restrain
uncooperative clients; she cannot climb ladders.

Id.
On June 2, 2011, Louis A. Noce, M.D., a surgeon, performed an anterior cervical
diskectomy on Plaintiff. T at 643-45. The surgery included a partial “vertebractomy
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C6-C7,” “anterior cervical discectomy and interbody arthrodesis,” “anterior plating Orthofix
System C6-7,” “placement of biomechanical intervertebral device,” and “iliac crest bone
marrow aspirate.” T at 643.
On July 7, 2011, Dr. Setter treated Plaintiff. T at 680. Plaintiff reported that she is
still “having some pain and stiffness at nighttime.” Id. The doctor noted that Plaintiff had a
75% impairment in her shoulder and her wrist but that “range of motion of her shoulder is
near full.” Id. He advised under her work status that “no lifting, pushing or pulling” should
be done with the right upper arm. Id.
c.

ALJ Analysis

In determining whether a claimant may receive Social Security Disability benefits
and Supplemental Security Income the issue is whether the claimant is disabled.
Disability is defined as the “inability to engage in 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.” 42 U.S.C. § 423(d). An ALJ must determine whether the
claimant is disabled by performing a five-step evaluation based on 20 CFR §§ 404.1520
or 416.920. The Supreme Court recognized this test in Bowen v. Yuckert, 428 U.S. 137,
140-42 (1987), and it is still the proper analysis for the determination of a claimant’s
disability. The five step evaluation process is as follows:
First, the Secretary considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the Secretary next considers
whether the claimant has a “severe impairment” which significantly limits
his physical or mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is listed in
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Appendix 1 of the regulations. If the claimant has such an impairment, the
Secretary will consider him disabled without considering vocational factors
such as age, education, and work experience; the Secretary presumes that
a claimant who is afflicted with a “listed” impairment is unable to perform
substantial gainful activity. Assuming the claimant does not have a listed
impairment, he has the residual functional capacity to perform his past
work. Finally, if the claimant is unable to perform his past work, the
Secretary then determine whether there is other work which the claimant
could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
In this case, the ALJ found that, at Step One, Plaintiff had not engaged in
substantial gainful activity since January 29, 2008, the alleged onset date of disability. T
19. At Step Two, the ALJ found that Plaintiff’s cervical spondylosis, right shoulder
impingement, and right wrist injury were severe impairments. Id. At Step Three, the ALJ
concluded that Plaintiff did not have an impairment or combination of impairments that met
or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. § 415.925 and § 416.926). T 20. At Step Four, the ALJ found
that Plaintiff had the residual functional capacity (“RFC”) to lift up to five pounds with the
right hand, carry that weight up to ten feet, raise that weight from the floor to tabletop level,
work with her right arm above shoulder level, and push, pull, turn, and twist with a force of
up to ten pounds occasionally. Id. She could work repetitively with the right hand or wrist
for five minutes, followed by a ten-minute rest. Id. The ALJ further found that with her left
hand and wrist, Plaintiff could lift up to twenty pounds and push, pull, turn, and twist with a
force up to twenty pounds. Id. Plaintiff could not, however, climb ladders or restrain
uncooperative clients. Id.
Fourth, the ALJ concluded that Plaintiff could not perform her past relevant work as

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a machine operator. T 23. Fifth, the ALJ determined, with the assistance of a VE, that
someone of Plaintiff’s age, education, work experience, and RFC could perform the
representative occupations of order clerk, ticket taker, and new accounts clerk. T 23–24,
241-43. Plaintiff, therefore, did not meet the definition of disability during the relevant
period. T 24–25.
II.

STANDARD OF REVIEW
The Court’s review of the Commissioner’s determination is limited to two inquiries.

See 42 U.S.C. § 405(g). First, the Court determines whether the Commissioner applied
the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999);
Balsamo v. Charter, 142 F.3d 75, 79 (2d Cir. 1998); Cruz v. Sullivan, 912 F.2d 8, 11 (2d
Cir. 1990); Shane v. Charter, No. 96-CV-66, 1997 WL 426203, at *4 (N.D.N.Y. July 16,
1997) (Pooler, J.) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). Second,
the Court must determine whether the Commissioner’s findings are supported by
substantial evidence in the administrative record. See Trejada, 167 F.3d at 773; Balsamo,
142 F.3d at 79; Cruz, 912 F.2d at 11; Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982). A Commissioner’s finding will be deemed conclusive if it is supported by
substantial evidence. See 42 U.S.C. § 405(g); see also Perez, 77 F.3d at 46; Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (“It is not the function of a reviewing court to
determine de novo whether a claimant is disabled. The [Commissioner’s] findings of fact,
if supported by substantial evidence, are binding.”) (emphasis in original) (citations
omitted). In the context of Social Security cases, substantial evidence consists of “‘more
than a mere scintilla’” and is measured by “‘such relevant evidence as a reasonable mind

13

might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Where
the record supports disparate findings and provides adequate support for both the
Plaintiff’s and the Commissioner’s positions, a reviewing court must accept the ALJ’s
factual determinations. See Quinones v. Charter, 117 F.3d 29, 36 (2d Cir. 1997) (citing
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)); Alston v. Sullivan, 904 F.2d 122,
126 (2d Cir. 1990). While the reviewing court must give deference to the Commissioner’s
decision, the Social Security Act is ultimately “‘a remedial statute which must be liberally
applied; its intent is inclusion rather than exclusion.’” Vargas v. Sullivan, 898 F.2d 293, 296
(2d Cir. 1990) (quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).
III.

DISCUSSION
a.

Medical Opinions

Plaintiff challenges the Commissioner’s finding on the ground that the ALJ erred in
assigning no weight to the November 30, 2010 opinion of treating orthopedic physician Dr.
Setter, and little weight to the November 6, 2009 report of consultative examiner, Dr. Ali.
Plaintiff contends that Dr. Setter’s opinion is well supported because Dr. Setter is an
orthopedic specialist, and he has a treating relationship with Plaintiff. (Plaintiff’s
Memorandum in Support of Motion for Judgment on the Pleadings (“Pl. Mem.”), dkt. #13
at 13). Furthermore, Plaintiff contends that his opinion is consistent with Dr. Noce’s July 1,
2011 report, in which he stated that Plaintiff had a 75% impairment. (Id. at 15). Plaintiff
also notes that even though Dr. Setter’s opinion is post-operative, he had made the same
findings before the surgery occurred and therefore, his opinion is not limited to post-

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operative restrictions. (Id.). Plaintiff further contends that it was an error for the ALJ to
cite Dr. Ali’s reliance on Plaintiff’s subjective complaints as a basis for assigning his
opinion less weight. (Id. at 16). Plaintiff argues that a patient’s subjective complaints are
“an essential diagnostic tool,” especially in indicating whether pain treatments are
effective. (Id.). Furthermore, Plaintiff points out that Dr. Ali also performed a complete
physical examination. (Id.).
Defendant contends that Dr. Setter‘s findings are not supported by the record.
First, Defendant notes that while Dr. Setter reported that Plaintiff could not use her right
arm for pulling, pushing, or lifting, Dr. Coniglio reported normal strength in Plaintiff’s arm
just one month prior to Dr. Setter’s report and again upon re-examination on April 22,
2011. (Defendant’s Memorandum in Opposition of Motion for Judgment on the Pleadings
(“Def. Mem.”), dkt. # 18 at 7, 8). Moreover, Defendant argues that Dr. Setter’s opinion is
not supported by Dr. Noce’s findings, because Dr. Noce’s findings related to Plaintiff’s
neck, not her shoulder and wrist. (Id. at 9). Additionally, Defendant notes that Dr. Setter’s
report is inconsistent with his own earlier reports in which he noted “great range of motion”
in Plaintiff’s shoulder. (Id.). Defendant also claims that the ALJ was correct in assigning
Dr. Ali’s opinion little weight because his findings were based on “very few clinical findings
and an insufficient review of the medical records, and were also inconsistent with Plaintiff’s
activities of daily living. (Id. at 11).
Upon review, the Court finds no error. The ALJ afforded Dr. Setter’s opinion “no
weight” because it had “no probative value as far as longer-term restrictions,” because he
conducted his report shortly after Plaintiff’s shoulder operation. T 22. The ALJ further

15

noted that Plaintiff had another surgery after Dr. Setter’s evaluation, and “[a]ny restrictions
from that surgery would be expected to resolve in less than 12 months.” T 23. “[W]hile an
ALJ must consider the data provided by a physician as to the nature and severity of an
applicant’s impairments, the legal determination of an applicant’s RFC is reserved to the
Commissioner.” Rice v. Barnhart, 127 F. App’x 524, 526 (2d Cir. 2005) (citing 20 C.F.R. §
404.1527(d)(2), (e)(2)). “The ALJ is bound to give the treating physician’s opinion
controlling weight if it is supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in the
record.” Id. (citing 20 C.F.R. § 404.1527(d)(2); Rosa v. Callahan, 168 F.3d 72, 78–79 (2d
Cir.1999)); see also 20 C.F.R. §§ 404.1527(c)(2), (4), 416.927(c)(2), (4) (“the more
consistent an opinion is with the record as a whole, the more weight we will give to that
opinion”). Here, Dr. Setter’s opinion contradicts with other substantial evidence in the
record, including his own reports, Dr. Coniglio’s reports, Plaintiff’s testimony, and Plaintiff’s
daily activities. T 19, 21, 52, 593. Therefore, the ALJ did not err in affording his opinion
no weight.
Additionally, Dr. Ali’s opinion of Plaintiff’s limitations is not supported by sufficient
medical evidence. In determining that Plaintiff should “avoid zipping, buttoning, and typing
shoes with her right hand,” and “avoid activities like computer work,” Dr. Ali apparently
relied on Plaintiff’s subjective complaints of having difficulty such activities because he
supplied few clinical findings, and an insufficient review of the medical record. T 22; see
20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (“The more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory findings,

16

the more weight we will give that opinion.”).
Furthermore, Dr. Ali’s report was inconsistent with Plaintiff’s daily activities. Id.; see
also 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“the more consistent an opinion is with
the record as a whole, the more weight we will give to that opinion”). While Plaintiff
reported difficulty with buttons, zipping, and tying with the right hand, Dr. Ali found her to
have only “slightly weak grip strength on the right side” and “no motor or sensory deficit.”
T 297, 299. Furthermore, during her testimony at the ALJ hearing, Plaintiff stated that her
right arm was doing “[a] lot better” since the surgery, that she had no difficulties in dressing
herself, and that she could use a computer for twenty minutes at a time. T 21, 52, 55,
60–61. The ALJ noted that Plaintiff’s habit of smoking 1-2 packs of cigarettes a day
demonstrates her ability to manipulate small objects. T 22. The Court therefore finds that
the ALJ’s decision to afford no weight and little weight to the opinions of Dr. Setter and Dr.
Ali, respectfully, is supported by substantial evidence.
b.

Credibility of Plaintiff’s Testimony

Plaintiff next challenges the Commissioner’s finding on the ground that the ALJ
erred in evaluating the credibility of Plaintiff’s subjective complaints. Plaintiff argues that
the ALJ improperly discounted her testimony regarding her ability to drive and turn her
head. (Pl. Mem. at 18). Plaintiff maintains that her testimony was consistent despite the
fact that she stated that she cannot drive, but then admitted she drove only four days prior
to the hearing. (Id.). Plaintiff claims that her function report explains the discrepancy as
she stated in it that she can drive only if she has “someone with [her] to watch,” because
she cannot turn her head. (Id.). Defendant, however, contends that the ALJ properly

17

considered Plaintiff’s testimony and correctly decided not to fully credit her subjective
complaints because the complaints were inconsistent with the other evidence of record.
(Def. Mem. at 14).
In determining a petitioner’s ability to do basic work activities, the ALJ considers a
petitioner’s subjective symptoms, as well as the extent to which the symptoms “can
reasonably be accepted as consistent with the objective medical evidence, and other
evidence.” 20 C.F.R. §§ 404.1529(a), 416.929(a). However, “[n]o symptom or
combination of symptoms can be the basis for a finding of disability . . . unless there are
medical signs and laboratory findings demonstrating the existence of a medically
determinable physical or mental impairment(s) that could reasonably be expected to
produce the symptoms.” SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996); see also id.
at §§ 404.1529(b), 416.929(b). Only then will the ALJ “evaluate the intensity and
persistence of [the] symptoms so that [he] can determine how [the] symptoms limit [the
petitioner’s] capacity for work.” 20 C.F.R. §§ 404.1529(c)(1)-(2), 416.929(c)(1)-(2). If the
symptoms “suggest a greater severity of impairment than can be shown by objective
medical evidence alone,” the ALJ will carefully consider other information in the record,
such as “how the symptoms may affect [the petitioner’s] pattern of daily living.” Id. at §§
404.1529(c)(3), 416.929(c)(3); ); see also SSR 96-7p, 1996 WL 374186, at *3.
Here, the ALJ decided not to fully credit Plaintiff’s subjective complaints. T at 21.
Where Plaintiff’s complaints suggested limitations more severe than those in the RFC
assessment, the ALJ found them not to be credible. Id. Upon review, the Court finds no
error. There is substantial evidence that Plaintiff’s claim that she cannot turn her head

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due to neck pain lacked credibility, since her statement regarding her ability to drive
undermined it. Furthermore, her statement that she is in constant pain is not consistent
with the record as she admitted to performing regular errands on a daily basis and to
feeling better since the surgeries. Id. (citing T at 201). As such, the Court finds that the
ALJ’s determination that Plaintiff’s statements in these regards were not entirely credible,
is supported by the record.
c.

Residual Functional Capacity

Plaintiff challenges the Commissioner’s finding on the ground that the ALJ erred
concerning the Plaintiff’s residual functional capacity (“RFC”). Plaintiff argues that the ALJ
erred by relying on an incomplete hypothetical in determining that Plaintiff could perform
jobs in the national economy. (Pl. Mem. 19).
The ALJ posed a hypothetical limitation to the VE and asked the expert to identify
occupations Plaintiff would be able to perform with her limitations. T at 241–42. The
hypothetical individual, which the ALJ adopted as Plaintiff’s RFC, had a ninth grade
education, no GED, had completed an FTD course in floral design, and has work
experience as a machine operator. Id. Furthermore, with her right hand, she can lift up to
five pounds and raise that weight from floor to tabletop level, but she cannot carry it further
than ten feet. T at 431. She cannot work with the right arm above shoulder level, but she
can push, pull, turn, and twist with a force of up to ten pounds occasionally with the right
arm. Id. She can do repetitive work for approximately five minutes with the right hand or
wrist, but she must rest afterwards for ten minutes. Id. She cannot restrain uncooperative
clients, or climb ladders. Id. With her left hand and wrist, she can lift and carry up to

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twenty pounds for fifty feet, and can push, pull, turn, and twist with a force up to twenty
pounds. T at 431–32. Additionally, she can perform repetitive work with her left arm for
twenty minutes, but she must rest afterwards for twenty minutes. T at 432.
In adopting this hypothetical as Plaintiff’s RFC, the ALJ considered Plaintiff’s
symptoms and “the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence . . . [and] also
considered opinion evidence.” T at 20. Plaintiff challenges the ALJ’s determination and
argues that all lifting, pushing and pulling with her right upper arm was precluded by her
RFC. (Pl. Mem. at 20). Furthermore, she argues that all work should be precluded by her
need to rest for at least three hours during the workday. Id.
Plaintiff relies on Dr. Setter’s medical opinion and argues that “the VE should have
been presented with a hypothetical with [sic] included this limitation.” Id. In relation to her
need for bed rest, she presents no evidence aside from her own testimony that she needs
to lie down for at least three hours a day, from 11:00 a.m. until 2:00 p.m., to give her “neck
muscles a rest.” T at 59. Plaintiff relies on an exchange that occurred during a hearing
before the ALJ, in which the Plaintiff’s attorney asked the VE what occupations a
hypothetical individual would be able to perform if she needed a fifteen minute break from
work each hour. T at 39. The VE responded that such a restriction would prevent an
individual from maintaining employment. Id. However, the ALJ did not include this
limitation in her hypothetical because it was not supported by the record. The ALJ only
included the limitation that Plaintiff would need ten minute breaks after five minutes of
repetitive work with her right arm, and twenty minute breaks after twenty minutes of

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repetitive work with her left arm. T at 38. In accounting for all of Plaintiff’s limitations, the
VE concluded that Plaintiff could perform such unskilled occupations as an order clerk,
ticket taker, and new accounts clerk. T at 24. The VE testified that these positions
account for Plaintiff’s RFC as they do not involve any repetitive performance. T at 38.
Upon review, the Court finds no error. The ALJ had adequate evidence concerning
Plaintiff’s ability to work. Plaintiff previously worked in various occupations and is able to
adjust to other work that exists in significant numbers in the national economy. T at 24.
The conclusions in the consultative reports were consistent with one another and the other
available medical evidence. While Dr. Setter stated that Plaintiff could do no lifting,
pushing or pulling with her right arm, the ALJ correctly determined his opinion to be of no
value, as discussed above. Additionally, while Dr. Ali stated that Plaintiff should avoid
activities like computer work, and zipping, buttoning and tying shoes with her right hand,
the ALJ correctly discounted his opinion, as also discussed above. Furthermore, while Dr.
Sportelli stated that Plaintiff can only sit for three hours in a workday, and can only stand
for three hours in a workday, the ALJ concluded that his assessment was entitled to little
weight as he saw Plaintiff prior to all of her surgeries. T at 23. Moreover, his assessment
was based on a less thorough examination than the one performed by Dr. Coniglio. Id.
In any event, the other examining physicians found Plaintiff to have increasingly normal
strength, range of motion, and reflexes in her upper extremities since her surgeries. T at
325, 427–30. Such findings are consistent with an ability to do light work.
The ALJ considered the opinions of Dr. Coniglio since he had the opportunity to
review all of Plaintiff’s records and his findings were consistent with the objective evidence

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in the record. T at 21–22. The ALJ also gave some weight to the opinions of Dr.
Ferrarccio, Dr. Ali and Dr. Sportelli. T at 22. In considering the physicians’ conclusions
that Plaintiff was able to perform light work, Plaintiff’s improvements since her two
surgeries, and Plaintiff’s own testimony regarding her daily activities, the ALJ found that
Plaintiff’s RFC was supported by the objective evidence. T at 23.
IV.

CONCLUSION
For the foregoing reasons, the Court finds that the ALJ’s determination is supported

by substantial evidence. Therefore, Plaintiff’s motion for judgment on the pleadings is
DENIED.
IT IS SO ORDERED.
Dated:July 23, 2014

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