Garner v. Colvin

Filing 28

MEMORANDUM-DECISION and ORDER- That the decision of the Commissioner is AFFIRMED and Garner's complaint (Dkt. No. 1) is DISMISSED. Signed by Judge Gary L. Sharpe on 9/18/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JEANNIE GARNER,

Plaintiff,

6:14-cv-602
(GLS)

v.
CAROLYN W. COLVIN, as
Commissioner of the Social
Security Administration,
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
District Judge

PETER W. ANTONOWICZ, ESQ.

JOSHUA L. KERSHNER
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Jeannie Garner challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI), seeking judicial
review under 42 U.S.C. § 405(g).1 (Compl., Dkt. No. 1.) After reviewing
the administrative record and carefully considering Garner’s arguments,
the court affirms the Commissioner’s decision and dismisses the
complaint.
II. Background
On January 27, 2011, Garner filed an application for SSI under the
Social Security Act (“the Act”), alleging disability since July 28, 2010. (Tr.2
at 65, 136-45.) After her application was denied, (id. at 79-82), Garner
requested a hearing before an Administrative Law Judge (ALJ), which was
held on January 3, and May 8, 2013, (id. at 83, 316-52). On June 4, 2013,
the ALJ issued an unfavorable decision denying the requested benefits
which became the Commissioner’s final determination upon the Social
1

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

2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. Nos.

claims.
10, 23.)

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Security Administration Appeals Council’s denial of review. (Id. at 1-5, 1129.)
Garner commenced the present action by filing her complaint on May
22, 2014 wherein she sought review of the Commissioner’s determination.
(Compl.) The Commissioner filed an answer and a certified copy of the
administrative transcript. (Dkt. Nos. 9, 10.) Each party, seeking judgment
on the pleadings, filed a brief. (Dkt. Nos. 14, 27.)
III. Contentions
Garner contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 14 at 11-17.)
Specifically, Garner claims that the ALJ erred in failing to: (1) adequately
assess her subjective complaints; and (2) properly evaluate the medical
opinion evidence.3 (Id.) The Commissioner counters that the appropriate
legal standards were used by the ALJ and his decision is also supported

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Although Garner also makes the bare-bones assertion that the ALJ failed to develop
the medical evidence, (Dkt. No. 14 at 14), she fails to point out any gaps in the record or
explain what additional information the ALJ needed to determine whether Garner was
disabled. Thus, it is unclear which opinion(s) or evidence Garner claims the ALJ failed to
develop. Accordingly, and because a review of the record fails to uncover any obvious gaps,
this contention warrants no further discussion. See Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d
Cir. 1999) (“[W]here there are no “obvious gaps” in the record, the ALJ is not required to seek
additional information.”); see also 20 C.F.R. § 416.912(d) (stating that, generally, a complete
record contains a “medical history for at least the [twelve] months preceding the month in
which” the claimant files her application).

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by substantial evidence. (Dkt. No. 27 at 6-13.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 14 at 3-7; Dkt. No. 27 at 3.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 1383(c)(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. Credibility Determination
First, Garner complains that the ALJ failed to properly assess her
credibility. (Dkt. No. 14 at 11-14; Dkt. No. 26 at 1-3.) According to Garner,
the ALJ failed to explain how Garner’s daily activities “‘replicate’
capabilities necessary for obtaining and maintaining employment.” (Dkt.
No. 14 at 13.) Additionally, Garner claims that the ALJ failed to address
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the limitations she suffers in performing these activities, as described in her
hearing testimony. (Id.; Dkt. No. 26 at 1-3.) Lastly, Garner argues that her
testimony is supported by the opinion of her treating physicians and the
consultative examiner. (Dkt. No. 14 at 14.) The court disagrees.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” he “must evaluate the intensity and persistence of
those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the
ALJ “must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg.
34,483, 34,485 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
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other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
§ 416.929(c)(3)(i)-(vi)).
Here, the ALJ concluded that Garner’s testimony concerning the
intensity, persistence, and limiting effects of her symptoms was “not
credible.” (Tr. at 21.) Specifically, the ALJ considered Garner’s daily
activities, sporadic work history, treatment records, and the consistency of
her own statements. (Id. at 21-22); see 20 C.F.R. § 416.929(c)(3)(i), (v),
(vii). With respect to her daily activities, Garner informed consultative
examiner Kalyani Ganesh that, although prolonged standing was painful,
she showered, dressed, bathed, cleaned her home, and cared for her
children. (Tr. at 252.) She further acknowledged that she cooked meals a
couple of times a week, did laundry twice a week, and shopped once a
week. (Id.) On a Social Security Administration Function Report, Garner
reported that she was able to pay bills and regularly attended medical
appointments for herself and her children. (Id. at 171-72.) The ALJ noted
Garner’s complaints of difficulty with some housework due to her back
problems. (Id. at 19, 21.) However, the ALJ concluded that,
“notwithstanding some impairments,” Garner has engaged “in a reasonably
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normal level of daily activities,” which require physical and mental
capabilities as well as social interactions that “replicate those necessary for
obtaining and maintaining employment.” (Id. at 21.)
Garner complains that the ALJ failed to address her testimony that
she was very restricted in her ability to perform these daily activities or
explain how such limited activities “replicate” the capabilities necessary for
obtaining and maintaining employment. (Dkt. No. 14 at 13-14.) However,
information about a claimant’s daily activities recorded by medical sources
and reported in the medical evidence “can be extremely valuable in the
adjudicator’s evaluation of an individual’s statements about pain or other
symptoms.” SSR 96-7p, 61 Fed. Reg. at 34,486. Here, the ALJ properly
considered the reports of Garner’s daily activities throughout the record,
and, in fact, noted that she complained of difficulty with housework due to
her back pain. (Tr. at 19, 21.) While Garner’s daily activities alone do not
create an independent basis for finding her not credible, taken as a whole,
the ALJ’s credibility determination is not “patently unreasonable.” Pietrunti
v. Director, Office of Workers’ Comp. Programs, 119 F.3d 1035, 1042 (2d
Cir. 1997) (“Credibility findings of an ALJ are entitled to great deference
and therefore can be reversed only if they are patently unreasonable.”
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(internal quotation marks and citation omitted)). In particular, as noted by
the ALJ, Garner worked sporadically prior to filing her application for
benefits, demonstrating only limited attachment to the workforce. (Tr. at
21, 178, 328-32); see Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998)
(explaining that work history is “one of many factors that the ALJ is
instructed to consider in weighing the credibility of claimant testimony”).
Moreover, Garner’s testimony regarding the severity of her symptoms and
her functional limitations is inconsistent with her own statements to medical
providers as well as the medical signs and findings contained in her
treatment records. See SSR 96-7p, 61 Fed. Reg. at 34,486 (“One strong
indication of the credibility of an individual’s statements is their
consistency, both internally and with other information in the case record.”).
For instance, at the May 2013 hearing, Garner testified that she is
capable of sitting with her hands elevated for use for only five minutes,
cannot stand without leaning against something, and cannot walk one city
block. (Tr. at 336, 340-41.) However, in December 2012 and March and
April 2013, she reported to treating physician Ivan Antonevich that she
could sit comfortably for thirty minutes, stand for fifteen minutes, walk for
twenty feet without having to stop, and did not have difficulty caring for
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herself, but could not pick up objects from the floor comfortably. (Id. at
292, 303, 311.) Further, throughout the record, on examination, Garner’s
gait was normal and she used no assistive devices. (Id. at 231, 252, 293,
313.) In December 2011, Garner reported to treating physician Vivienne
Taylor that she was exercising in an effort to loose weight. (Id. at 270.)
Garner also testified that pain medications did not relieve her pain. (Id. at
339.) However, Garner’s treatment records indicate that, in January 2011,
she reported that she had not taken any medication in two weeks because
“she did not have a lot of pain.” (Id. at 211.) Thereafter, Dr. Taylor refused
to prescribe Garner narcotics because her drug screen was negative for
her medication. (Id. at 277.) Moreover, Garner informed Dr. Antonevich
that hydrocodone provided great relief of her pain. (Id. at 292, 303, 311.)
In addition to Garner’s poor work history and inconsistent statements,
the ALJ properly considered the lack of objective medical evidence
supporting Garner’s allegations of debilitating symptoms. (Id. at 22); see
SSR 96-7p, 61 Fed. Reg. at 34,487 (explaining that the absence of
objective medical evidence supporting a claimant’s statements about the
intensity and persistence of pain or other symptoms is one factor that the
ALJ must consider, in the context of all the evidence, when assessing a
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claimant’s credibility). Here, Dr. Taylor’s treatment records reveal few, if
any, objective findings. (Tr. at 211, 213-14, 216, 228, 266, 270, 274, 277.)
Although Dr. Antonevich’s treatment notes indicate mild to severe
tenderness on Garner’s back, a positive Patrick’s test, and painful facet
loading, (id. at 293, 313), her gait was normal, she walked unassisted, her
skin temperature was normal, straight leg raising was negative, and
Garner’s neurological examination was within normal limits. (Id.) In
addition, Garner’s consultative examination revealed that she needed no
help changing for the exam or getting on and off of the exam table, and
was able to rise from a chair without difficulty. (Id. at 252.) Although there
was tenderness in Garner’s lumbar spine and her range of motion was
reduced, straight leg raising was negative, deep tendon reflexes were
physiologic and equal, and she had 5/5 strength in her upper and lower
extremities. (Id. at 253.) Moreover, MRI results from December 2012 and
February 2011 revealed no significant new abnormalities from Garner’s
June 2008 MRI, taken two years prior to Garner’s alleged onset date. (Id.
at 209-10, 290-91.) These MRIs revealed only small to moderate central
disc herniation at the L5-S1 levels, and mild disc bulging and mild facet
degenerative change. (Id.)
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Based on the foregoing, the court is satisfied that the ALJ’s credibility
finding is based on the appropriate legal standards and supported by
substantial evidence.4
B.

Evaluating Medical Opinion Evidence
Next, Garner argues that the ALJ erred in weighing the opinion of her

treating physician. (Dkt. No. 14 at 14-17.) Specifically, Garner contends
that because Dr. Antonevich’s opinion was supported by objective findings,
and the opinion of Dr. Ganesh was not, Dr. Antonevich’s opinion should
have been given controlling weight, or, at least, greater weight than that of
Dr. Ganesh. (Id.) Further, Garner claims that the ALJ erred in according
greater weight to the “nonspecific” opinions of consultative examiners than
the “very specific opinions expressed by treating specialist sources.” (Id. at
16.) The Commissioner counters, and the court agrees, that the ALJ
properly evaluated the medical opinion evidence in determining Garner’s
residual functional capacity (RFC).5 (Dkt. No. 27 at 10-13.)

4

“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

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).

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Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 416.927(c). Controlling
weight will be given to a treating physician’s opinion that is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” Id. § 416.927(c)(2);
see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Unless
controlling weight is given to a treating source’s opinion, the ALJ is
required to consider the following factors in determining the weight
assigned to a medical opinion: whether or not the source examined the
claimant; the existence, length and nature of a treatment relationship; the
frequency of examination; evidentiary support offered; consistency with the
record as a whole; and specialization of the examiner. See 20 C.F.R.
§ 416.927(c).
Here, the ALJ determined that, due to lumbar spine degenerative
disc disease, depression, and anxiety, Garner was limited to performing
the full range of light work.6 (Tr. at 20.) The ALJ further concluded that

6

Light work requires lifting no more than twenty pounds at a time with frequent lifting or
carrying of up to ten pounds. See 20 C.F.R. § 416.967(b). Further, “the full range of light
work requires standing or walking, off and on, for a total of approximately [six] hours of an
[eight]-hour workday.” SSR 83-10, 1983 WL 31251, at *6 (1983).

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Garner could perform unskilled work7 that requires interaction with others
for simple tasks, but should avoid work requiring more complex interaction
with others or joint effort to achieve work goals. (Id. at 20, 25.) In making
this determination, the ALJ relied on the medical opinions of consultative
examiners Ganesh and Dennis Noia. (Id. at 24.)
Garner objects to the ALJ’s failure to give controlling weight to the
opinion of Dr. Antonevich. (Dkt. No. 14 at 14-17.) In April 2013, Dr.
Antonevich opined that, due to low back pain that radiates to her right
lower extremity, Garner was restricted to lifting and carrying ten pounds
occasionally, and five pounds frequently. (Tr. at 300-01.) According to Dr.
Antonevich, in an eight-hour day, Garner could sit for two hours and stand
and/or walk for two hours, and would need to lay down intermittently. (Id.
at 300.) Dr. Antonevich also reported that Garner suffered mild limitations
in her ability to reach and handle. (Id.)
The ALJ declined to give Dr. Antonevich’s opinion controlling weight,
because it was not well-supported by clinical findings and laboratory

7

“The basic mental demands of competitive, remunerative, unskilled work include the
abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to
respond appropriately to supervision, coworkers, and usual work situations; and to deal with
changes in a routine work setting.” SSR 85-15, 1985 WL 56857, at *4 (1985).

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diagnostic techniques, and inconsistent with the opinion and findings of Dr.
Ganesh. (Id. at 24.) This determination is legally sound and supported by
substantial evidence. Specifically, as discussed above, see supra Part
VI.A, a review of Garner’s treatment records reveals few clinical findings,
and MRIs taken in February 2011 and December 2012 were consistent
with the minimal findings on her June 2008 MRI. (Tr. at 209-10, 211,
213-14, 216, 228, 266, 270, 274, 277, 290-91, 293, 313.) Further, in Dr.
Ganesh’s opinion, Garner was not limited in her ability to sit, stand or walk,
and only mildly limited in her ability to lift, carry, push, and pull. (Id. at
254.) Notably, the mere use of phrases such as “moderate” or “mild” does
not render a doctor’s opinion vague or non-substantial for purposes of an
ALJ’s RFC determination. See Mancuso v. Colvin, No. 12-cv-6425, 2013
WL 3324006, at *4 (W.D.N.Y. July 1, 2013). Here, Dr. Ganesh’s opinion is
well supported by her extensive examination and not in any way
conclusory. See Kinder v. Colvin, No. 13-CV-06368, 2014 WL 4184820, at
*7 (W.D.N.Y. Aug. 21, 2014).
With respect to her mental limitations, Dr. Noia opined that, although
she appeared to be having some difficulty dealing with stress, Garner was
capable of understanding and following simple instructions and directions,
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performing simple and some complex tasks with supervision and
independently, maintaining attention and concentration for tasks, regularly
attending to a routine and maintaining a schedule, making appropriate
decisions, and relating to and interacting moderately well with others. (Tr.
at 232.) The ALJ gave this opinion greater weight than that of Mark
McDowell, a mental health counselor who opined that Garner had
moderate limitations in her ability to understand and remember
instructions, interact appropriately with others, maintain socially
appropriate behavior, and function in a work setting at a consistent pace.
(Id. at 298-99.) As the ALJ noted, (id. at 24), McDowell is not an
acceptable medical source whose opinion is deserving of controlling weight
under the regulations, and, further, he had only just begun treating Garner
at the time he rendered his opinion. See 20 C.F.R. § 416.913(a), (d)(1); cf.
SSR 06-03p, 71 Fed. Reg. 45,593, 45,596 (Aug. 9, 2006) (“[I]t may be
appropriate to give more weight to the opinion of a medical source who is
not an ‘acceptable medical source’ if he or she has seen the individual
more often.”).
In sum, considering Garner’s examination results, as well as the
opinions of Drs. Ganesh and Noia, the ALJ did not err in weighing the
15

opinions of Garner’s treating sources. See Halloran v. Barnhart, 362 F.3d
at 32 (“[T]he opinion of the treating physician is not afforded controlling
weight where, as here, the treating physician issued opinions that are not
consistent with other substantial evidence in the record, such as the
opinions of other medical experts.”); Baszto v. Astrue, 700 F. Supp. 2d
242, 249 (N.D.N.Y. 2010) (“[A]n 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.”).
C.

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

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Garner’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.

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IT IS SO ORDERED.
September 18, 2015
Albany, New York

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