Lamphier, III v. Colvin
Filing
18
DECISION AND ORDER denying # 15 Plaintiff's motion for judgment on the pleadings; and granting # 16 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 6/23/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
JOSEPH J. LAMPHIER, III,
Plaintiff,
v.
6:15-CV-0225
(GTS)
CAROLYN W. COLVIN
Acting Commissioner of Social Security,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
IACONIS LAW OFFICE, PLLC
Counsel for Plaintiff
501 Genesee Street
Chittenango, NY 13037
CHRISTOPHER D. THORPE, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL– REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
EMILY M. FISHMAN, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Joseph J. Lamphier, III
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 15, 16.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is denied and Defendant’s motion for judgment on the pleadings is
granted.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born on March 30, 1976. Plaintiff has a tenth grade education, and has past
work as a warehouse worker, a construction laborer, a scrap sorter, a pizza delivery person, and a
cook helper. Generally, Plaintiff’s alleged disability consists of spontaneous pneumothorax,1
depression, headaches, and impairments of the neck, left shoulder, arm, and hand. Plaintiff’s
alleged disability onset date is August 14, 2010.
B.
Procedural History
On May 18, 2011, Plaintiff applied for Disability Insurance Benefits and Supplemental
Security Income. Plaintiff’s application was initially denied on September 9, 2011, after which
he timely requested a hearing before an Administrative Law Judge (“ALJ”). On July 29, 2013,
Plaintiff appeared in a video hearing before the ALJ, Edward I. Pitts. (T. 49-97.) On August 2,
2013, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security
Act. (T. 12-31.) On December 24, 2014, the Appeals Council denied Plaintiff’s request for
review, rendering the ALJ’s decision the final decision of the Commissioner. (T. 1-4.)
C.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 17-24.) First, the ALJ found that Plaintiff met the insured status
1
Pneumothorax is a collapsed lung that occurs when air escapes from the lung. A
spontaneous collapsed lung occurs without any cause. Common symptoms include sharp chest
or shoulder pain, shortness of breath, and nasal flaring. A larger pneumothorax causes more
severe symptoms, including bluish color of the skin due to lack of oxygen, chest tightness,
lightheadedness and near fainting, easy fatigue, and rapid heart rate. U.S. National Library of
Medicine, National Institute of Health, https://www.nlm.nih.gov/medlineplus/ency/article/
000087.htm (last visited May 18, 2016).
2
requirements through December 31, 2013, and has not engaged in substantial gainful activity
since August 14, 2010, the alleged onset date. (T. 17.) Second, the ALJ found that Plaintiff has
the following severe impairments: residuals of pneumothorax, cervical spine degenerative disc
disease, and depression. (T. 17-18.) The ALJ found that Plaintiff’s following impairments are
not severe: headaches, back pain, congenital left shoulder disorder, and various orthopedic issues
including costochondritis. (Id.) Third, the ALJ found that Plaintiff’s severe impairments, alone
or in combination, did not meet or medically equal one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, App. 1. (T. 19-20.) The ALJ considered Listings 1.04 and 12.04. (Id.)
Fourth, the ALJ found that Plaintiff
has the residual functional capacity [“RFC”] to lift and carry up to 20
pounds occasionally and ten pounds frequently, sit, stand, and walk
without limitations; and push and pull up to 20 pounds for only 10-to15 minutes. He can only occasionally bend at the waist and he
should not be required to engage in activities that require
compression of the chest. He cannot be required to run or perform
strenuous activity for more than 10-to-15 minutes at one time. He
should avoid respiratory irritants. He is generally capable of
unskilled work, but he should have no more than frequent contact
with supervisors, coworkers, or the general public.
(T. 20-23.) Fifth, the ALJ found that Plaintiff is unable to perform any past relevant work. (T.
23.) Sixth, and finally, the ALJ found that there are other jobs that exist in significant numbers
in the national economy that Plaintiff can perform. (T. 23-24.)
D.
The Parties’ Briefings on Their Cross-Motions
Generally, Plaintiff advances four argument in support of his motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ committed reversible error by failing to find that
Plaintiff’s left shoulder impairment, emphysema, and removal of a portion of his lung were
severe impairments. (Dkt. No. 15, at 2-11 [Pl.’s Mem. of Law].) Second, Plaintiff argues that
3
the ALJ committed reversible error by failing to follow the regulatory factors in weighing the
opinions of Plaintiff’s various treating practitioners and the consultative physicians. (Id. at 1119.) More specifically, Plaintiff argues that (1) the ALJ should have afforded greater weight to
the opinion of treating physician, Sunny Nelson, M.D., and improperly substituted his own
opinion in assessing Dr. Nelson’s opinion, (2) the ALJ improperly afforded great weight to the
opinion of consultative examiner, Jennifer Hsu, M.D., because Dr. Hsu was not fully aware of
Plaintiff’s medical history of emphysema and left shoulder and arm complaints, (3) the ALJ
erred in considering the opinion of treating pulmonologist, Pedro Del Pino, M.D., because Dr.
Del Pino last treated Plaintiff in October 2008 and did not have Plaintiff’s latest spirometry test
results, and (4) the ALJ failed to afford significant weight to the opinion of treating source, Daria
Yourick.2 (Id.)
Third, Plaintiff argues that the ALJ failed to consider and implement the regulatory
factors properly in assessing Plaintiff’s credibility. (Id. at 19-23.) Fourth, and finally, Plaintiff
argues that the ALJ committed reversible error by failing to develop the record adequately by
not recontacting Dr. Nelson and Dr. Del Pino. (Id. at 23-27.) More specifically, Plaintiff argues
that the ALJ should have recontacted (1) Dr. Nelson for clarification of inconsistencies between
his opinion and other medical evidence of record, and (2) Dr. Del Pino for clarification of the
word “strenuous” in his opinion that Plaintiff should not perform strenuous activity or heavy
lifting. (Id.)
2
Plaintiff argues that the ALJ erred in affording limited weight to the opinion of
“Daria York, FNP.” Although Plaintiff does not provide a citation to the Decision or the record,
it appears that he is referencing the ALJ’s assessment of the opinion provided by “Daria
Yourick, P.A.” (T. 16-18.) For the purpose of the analysis below in Part III.iv. of this Decision
and Order, the Court notes that opinions from nurse practitioners and physician assistants are
both considered “other source” opinions under the regulations. 20 C.F.R. §§ 404.1513(a), (c)(d), 416.913(a), (c)-(d).
4
Generally, Defendant advances three arguments in support of her motion for judgment on
the pleadings. First, Defendant argues that the ALJ properly weighed all of the opinion evidence
and was not required to develop the record further. (Dkt. No. 16, at 5-17 [Def.’s Mem. of Law].)
Second, Defendant argues that the ALJ properly considered Plaintiff’s credibility. (Id. at 17-20.)
Third, and finally, Defendant argues that the ALJ properly considered Plaintiff’s shoulder and
lung impairments. (Id. at 20-22.)
II.
RELEVANT LEGAL STANDARD
A.
Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
5
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.
Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the
[Commissioner] 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 Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without considering
vocational factors such as age, education, and work experience; the
[Commissioner] 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, the fourth
6
inquiry is whether, despite the claimant’s severe impairment, he has
the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner]
then determines whether there is other work which the claimant could
perform. Under the cases previously discussed, the claimant bears
the burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.
ANALYSIS
For the ease of analysis, Plaintiff’s arguments are reorganized below.
A.
Whether the ALJ’s Step Two Finding was Supported by Substantial
Evidence
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 16, at 20-22 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
According to Social Security Regulations, “[a]n impairment or combination of
impairments is not severe if it does not significantly limit a [claimant’s] physical or mental
ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a), 416.921(a). The regulations
define “basic work activities” as the “abilities and aptitudes necessary to do most jobs,” with
examples including the following: (1) physical functions such as walking, standing, lifting,
pushing, pulling, carrying or handling; (2) capacities for seeing, hearing, and speaking; (3)
understanding, carrying out, and remembering simple instructions; (4) using judgment; (5)
responding appropriately to supervision, co-workers and usual work situations; and (6) dealing
with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b). Accordingly, the
severity of an impairment is determined by the limitations imposed by the impairment, and not
7
merely by diagnosis of the impairment. Ellis v. Comm’r, 11-CV-1205, 2012 WL 5464632, at *4
(N.D.N.Y. Sept. 7, 2012) (citing Coleman v. Shalala, 895 F. Supp 50, 53 [S.D.N.Y. 1995]); see
also McConnell v. Astrue, 03-CV-0521, 2008 WL 833968 (N.D.N.Y. Mar. 27, 2008).
“The second step requirement under the prescribed disability analysis is truly de minimis,
and intended only to screen out the truly weakest of cases.” Davis v. Colvin, 11-CV-0658, 2013
WL 1183000, at *8 (N.D.N.Y. Feb. 27, 2013) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 [2d
Cir. 1995]). When an ALJ finds that one or more of a plaintiff’s impairments are severe, an error
in the severity analysis at step two may be harmless because the ALJ continued with the fivestep analysis and did not deny the claim based on lack of a severe impairment alone. Ellis, 2012
WL 5464632, at *5; Tyron v. Astrue, 10-CV-0537, 2012 WL 398952, at *3 (N.D.N.Y. Feb. 7,
2012); Kemp v. Comm’r, 10-CV-1244, 2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011).
Moreover, when “an ALJ has omitted an impairment from step two of the sequential
analysis, other courts have declined to remand if the ALJ clearly considered the effects of the
impairment in the remainder of his analysis.” Chavis v. Astrue, 07-CV-0018, 2010 WL 624039,
at *12 (N.D.N.Y. Feb. 18, 2010); see also 20 C.F.R. §§ 404.1523, 416.923 (stating that the ALJ
is required to consider the “combined effect of all of [a plaintiff’s] impairments without regard to
whether any such impairment, if considered separately would be of sufficient severity”).
i.
Left Shoulder Impairment
Here, the ALJ considered Plaintiff’s left shoulder impairment at step two and in the
remainder of the sequential analysis. (T. 18-23.) At step two, the ALJ noted that Plaintiff has
complained of numbness in his left arm and has shown a limited range of motion of the left arm
due to discomfort. (T. 18.) Upon examination in August 2011, Dr. Hsu observed that Plaintiff
had mild tenderness to palpation of his left shoulder, yet retained a full range of motion and
8
stability of the joint, and had no redness, heat, swelling, or effusion. (T. 949.) In May and June
of 2011, Plaintiff reported to Dr. Follette that, despite numbness in his left hand when he raises
his arm, his arm and neck pain was “okay” and he continued to “soldier through” his difficulties.
(T. 21-22.) The ALJ noted that Plaintiff did not identify his left shoulder disorder as a disabling
impairment at the hearing, and there is no evidence to support any functional restrictions based
on this condition. (T. 18.) Nonetheless, the ALJ noted that Plaintiff complained of difficulty
lifting with his left arm, and included lifting, carrying, pushing, and pulling limitations in the
RFC determination. (T. 20-23.)
ii.
Emphysema and Lung Surgery
The ALJ considered Plaintiff’s respiratory impairments and lung surgery at step two and
in the remainder of the sequential analysis. (T. 17-23.) At step two, the ALJ noted that a CT
scan in April 2012 and a CT pulmonary angiography in January 2013 showed bilateral upper
lobe pulmonary emphysema and atypical postoperative changes on the left. (T. 18.) While the
ALJ did not specifically find that Plaintiff’s emphysema and surgery to remove a portion of his
lung were severe impairments, he nonetheless found that Plaintiff had a severe respiratory
impairment at step two, specifically Plaintiff’s residuals of pneumothorax. (T. 17-18.) Further,
the ALJ included limitations in his RFC finding to account for Plaintiff’s respiratory impairment,
such as finding that Plaintiff could not engage in activities that require compression of the chest,
could not run or perform strenuous activity for more than ten to 15 minutes at a time, and should
avoid respiratory irritants. (T. 20-23.)
Moreover, because the ALJ found that Plaintiff’s residuals of pneumothorax, cervical
spine degenerative disc disease, and depression were severe at step two, the ALJ did not deny
benefits based on lack of a severe impairment. (T. 17-18.) Finally, the ALJ properly considered
9
the effects of Plaintiff’s combined impairments in the remainder of his analysis and included
limitations in the RFC for Plaintiff’s combined impairments. (T. 17-23.) The ALJ expressly
stated that, in determining Plaintiff’s RFC, he must “consider all of the claimant’s impairments,
including impairments that are not severe,” and noted Plaintiff’s complaints of difficulty lifting
with his left arm and shortness of breath. (T. 16, 22.) Accordingly, even if the ALJ’s failure to
find additional impairments severe at step two of the sequential analysis was error, it would be
harmless. Ellis, 2012 WL 5464632, at *5; Tyron, 2012 WL 398952, at *3.
Therefore, the ALJ’s step two determination was supported by substantial evidence, and
remand is not necessary on this basis.
B.
Whether the ALJ’s Assessment of the Medical Opinion Evidence was
Supported by Substantial Evidence
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 16, at 5-17 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
Under the “treating physician’s rule,” controlling weight is afforded to a plaintiff’s
treating physician’s opinion when (1) the opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques, and (2) the opinion is consistent with other
substantial evidence in the record, such as opinions of other medical experts. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004);
Brogan-Dawley v. Astrue, 484 F. App’x 632, 633-34 (2d Cir. 2012). Regulations require an ALJ
to set forth his or her reasons for the weight afforded to a treating physician’s opinion. Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000).
When controlling weight is not afforded to the opinion of a treating physician, or when
assessing a medical opinion from another source, the ALJ should consider the following factors
10
to determine the proper weight to afford the opinion: (1) the source’s examination relationship
and treatment relationship, including the length, nature, and extent of the treatment relationship,
if applicable, (2) the opinion’s supportability, (3) the opinion’s consistency with the record as a
whole, (4) the source’s specialization, if any, and (5) other factors, such as the source’s
knowledge of disability programs and familiarity with the case record. 20 C.F.R. § 404.1527(c),
416.927(c)(2); Halloran, 362 F.3d at 32 (listing regulatory factors).
i.
Treating Primary Care Physician, Sunny Nelson, M.D.
On November 15, 2012, Dr. Nelson opined that Plaintiff could sit for 45 minutes at a
time and for two hours total, stand/walk for 15 minutes at a time and for less than two hours
total, and occasionally lift less than ten pounds in an eight-hour workday. (T. 22.) Dr. Nelson
opined that Plaintiff could never climb, balance, crawl, or twist during an eight-hour workday,
would likely require unscheduled work breaks four to five times per day, and would likely be
absent from work about once per month due to his symptoms and treatments. (Id.) The ALJ
afforded limited weight to Dr. Nelson’s opinion, reasoning that the opinion is not supported by
Dr. Nelson’s own clinical findings and treatment records (including Dr. Nelson’s consistent
suggestions that Plaintiff exercise as much as possible without limitation), the objective evidence
of record (including pulmonary reports interpreted by medical professionals), and the opinions of
consultative examiner, Dr. Hsu, and treating pulmonologist, Dr. Del Pino (discussed below in
Part III.B.ii. and Part III.B.iii. of this Decision and Order. (Id.)
Plaintiff argues that the ALJ substituted his own lay opinion concerning the findings in
the medical reports in assessing the opinion of Dr. Nelson. (Dkt. No. 15, at 11, 14-15 [Pl.’s
Mem. of Law].) It is well established that “the ALJ cannot arbitrarily substitute his own
judgment for competent medical opinion.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)
11
(quoting McBrayer v. Sec’y of Health & Human Servs., 712 F.2d 795, 799 [2d Cir. 1983]);
see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). While an ALJ “is free to resolve
issues of credibility as to lay testimony or to choose between properly submitted medical
opinions, he is not free to set his own expertise against that of a physician.” McBrayer, 712 F.3d
at 779.
However, here, the ALJ indicated that Dr. Nelson’s restrictive opinion was inconsistent
with the opinions of Dr. Hsu and Dr. Del Pino. (Id.) The ALJ noted that Dr. Hsu opined that
Plaintiff had no limitation in sitting, and standing, and mild limitation in prolonged strenuous
activity such as climbing, or pushing or pulling heavy loads. (T. 22.) Additionally, the ALJ
noted that Dr. Del Pino opined that Plaintiff could not perform strenuous activities or heavy
lifting, but did not have environmental work limitations. (Id.) Accordingly, the ALJ did not
impermissibly set his own expertise against that of Dr. Nelson, but relied on the “properly
submitted medical opinions” from Dr. Hsu and Dr. Del Pino. McBrayer, 712 F.3d at 779.
Moreover, the ALJ properly applied the regulations in evaluating Dr. Nelson’s opinion.
As discussed above, the ALJ considered Dr. Nelson’s professional credentials, treating
relationship with Plaintiff, treatment notes, and cited inconsistencies between the opinion and
other substantial evidence of record, including her own treatment notes and the opinions of Dr.
Hsu and Dr. Del Pino. (T. 17-23.) Where, as here, an ALJ’s reasoning and adherence to the
regulations are clear, the ALJ is not required to review explicitly each and every factor of the
regulation. Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (holding that, where plaintiff
challenged ALJ’s failure to review explicitly each factor provided for in 20 C.F.R. §
404.1527[c], “no such slavish recitation of each and every factor [was required] where the ALJ's
reasoning and adherence to the regulation [was] clear”).
12
Accordingly, the ALJ’s assessment of Dr. Nelson’s opinion was supported by substantial
evidence.
ii.
Consultative Examiner, Jennifer Hsu, M.D.
On August 2, 2011, Dr. Hsu diagnosed Plaintiff with status post left partial
pneumonectomy and headaches. (T. 495.) Dr. Hsu opined that Plaintiff had no limitations in
sitting and standing, and had mild limitations in prolonged strenuous activity such as climbing,
or pushing or pulling heavy loads secondary to his reduced respiratory function. (T. 22.)
Upon examination, Dr. Hsu observed that Plaintiff appeared to be in no acute distress,
had normal gait and normal stance, and could walk on his heels and toes without difficulty. (T.
21, 493.) Dr. Hsu observed that Plaintiff could perform a full squat, needed no help changing for
the exam or getting on and off the exam table, and was able to rise from a chair without
difficulty. (T. 21, 493.) Dr. Hsu further observed that Plaintiff’s chest and lungs were clear to
auscultation with normal percussion and diaphragmatic motion, and no significant chest wall
abnormality. (Id.) Finally, Dr. Hsu observed that Plaintiff had full motion of the cervical spine
and full strength and normal reflexes in the upper and lower extremities. (Id.)
The ALJ afforded great weight to Dr. Hsu’s opinion, reasoning that it was rendered after
a thorough examination and best reflects the medical evidence from 2010 to the present time.
(T. 22.) Plaintiff argues that the ALJ improperly afforded great weight to Dr. Hsu’s opinion
because Dr. Hsu was not fully aware of Plaintiff’s medical history of emphysema and his history
of left shoulder and arm complaints. (Dkt. No. 15, at 18-19 [Def.’s Mem. of Law].) However,
Dr. Hsu’s medical report explicitly notes Plaintiff’s history of respiratory problems, including
repeated pneumothorax that required surgical intervention, and Dr. Hsu included limitations in
her opinion to account for Plaintiff’s reduced respiratory function. (T. 492, 495.) Additionally,
13
Dr. Hsu observed that Plaintiff had mild tenderness to palpation of his left shoulder, yet retained
full range of motion and stability of the joint, and had no redness, heat, swelling, or effusion. (T.
949.)
An ALJ is entitled to rely on the opinions of both examining and non-examining State
agency medical consultants, because those consultants are deemed to be qualified experts in the
field of social security disability. 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(e),
416.912(b)(6), 416.913(c), 416.927(e); see also Little v. Colvin, 14-CV-63, 2015 WL 1399586,
at *9 (N.D.N.Y. Mar. 26, 2015) (“State agency physicians are qualified as experts in the
evaluation of medical issues in disability claims. As such, their opinions may constitute
substantial evidence if they are consistent with the record as a whole.”); Cobb v. Comm’r, 2014
WL 4437566, at *6 (N.D.N.Y. Sept. 9, 2014).
Accordingly, the ALJ’s assessment of Dr. Hsu’s opinion was supported by substantial
evidence.
iii.
Treating Pulmonologist, Pedro Del Pino, M.D.
On June 17, 2013, Dr. Del Pino opined that Plaintiff could not perform strenuous
activities or heavy lifting due to his lung condition, that he is subject to spontaneous
pneumothorax which can be life threatening and requires prompt medical attention, but there are
no environments in which Plaintiff could not work. (T. 699.) The ALJ noted Dr. Del Pino’s
specialty in pulmonology and afforded significant weight to his opinion, reasoning that it is
generally consistent with the record as a whole and is from a treating source who is familiar with
Plaintiff’s progress. (T. 22.) Plaintiff argues that the ALJ erred in considering Dr. Del Pino’s
opinion as a medical source statement because he last treated Plaintiff in October 2008, two
years before his alleged onset date, and did not have Plaintiff’s latest spirometry test results from
July 2010 and February 2011. (Dkt. No. 15, at 15-16 [Pl.’s Mem. of Law].)
14
First, “the ALJ must consider all of the relevant medical and other evidence in the case
record to assess the claimant’s ability to meet the physical, mental, sensory and other
requirements of work.” Domm v. Colvin, 12-CV-6640, 2013 WL 4647643, at *8 (W.D.N.Y.
Aug. 29, 2013) (citing 20 C.F.R. §§ 404.1545[a][3]-[4], 416.945[a][3]-[4]). The ALJ must
consider all of the relevant evidence, including medical opinions and facts, physical and mental
abilities, non-severe impairments, and the plaintiff’s subjective evidence of symptoms. 20
C.F.R. §§ 404.1545(b)-(e), 416.945(b)-(e). Therefore, the ALJ did not err in considering Dr. Del
Pino’s opinion.
Second, in assessing the medical opinion evidence, the ALJ recognized that other
medical sources examined Plaintiff more recently than Dr. Del Pino. For example, the ALJ
afforded great weight to Dr. Hsu’s opinion, reasoning that it was rendered after a thorough
examination and best reflects the medical evidence from 2010 to the present time. (T. 22.)
Further, the ALJ considered Plaintiff’s complete medical record, which included the latest
spirometry test results,3 and determined that Dr. Del Pino’s opinion was generally consistent
with the record as a whole. (T. 22.)
Accordingly, the ALJ’s assessment of Dr. Del Pino’s opinion was supported by
substantial evidence.
iv.
Treating Physician Assistant, Daria Yourick, P.A.
On July 3, 2012, Ms. Yourick completed an assessment of Plaintiff’s physical and mental
functional limitations based on his “chronic pain.” (T. 552-53.) Regarding Plaintiff’s physical
3
Plaintiff’s July 2010 pulmonary function test indicated “normal spirometry,” and
reviewing pulmonologist, Dr. Wassel, indicated that Plaintiff’s February 2011 test findings “do
not suggest the presence of either obstructive or restrictive defect. Diffusion capacity is normal.
No significant response to bronchiodilators, however this does not preclude clinical
improvement.” (T. 465, 474.)
15
functioning, Ms. Yourick opined that he was “moderately limited” in walking, standing, lifting,
carrying, pushing, pulling, bending, and climbing stairs or other climbing, and had “no evidence
of limitation” in sitting, seeing, hearing, speaking, or using his hands. (T. 553.) Regarding
Plaintiff’s mental functioning, Ms. Yourick opined that Plaintiff was “moderately limited” in
understanding, remembering, and carrying out instructions, maintaining attention and
concentration, interacting appropriately with others, and functioning in a work setting at a
consistent pace, and had “no evidence of limitation” in making simple decisions, maintaining
socially appropriate behavior without exhibiting behavior extremes, and maintaining basic
standards of personal hygiene and grooming. (Id.)
The ALJ afforded limited weight to Ms. Yourick’s opinion. (T. 23.) The ALJ stated that
he considered Ms. Yourick’s opinion based on her treatment of Plaintiff, but noted that the sum
of the evidence demonstrates that Plaintiff has greater functional abilities than opined by Ms.
Yourick. (Id.) Additionally, the ALJ noted that Ms. Yourick assessed Plaintiff’s physical and
mental limitations, however she is not a specialist with regard to with either aspect of Plaintiff’s
treatment. (Id.)
First, a physician assistant is not an acceptable medical source under the regulations. 20
C.F.R. §§ 404.1513(a), 416.1913(a). An ALJ may consider a physician assistant’s opinion as an
“other source” opinion to show the severity of a plaintiff’s impairments and how the
impairments affect his or her ability to work. 20 C.F.R. §§ 404.1513(a), (c)-(d), 416.913(a), (c)(d). However, an opinion from a physician assistant is not a medical opinion that is entitled to
any particular weight under the regulations. 20 C.F.R. §§ 404.1513(a), 404.1527(b),
416.1913(a), 416.927(b).
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Second, the ALJ properly applied the regulations in evaluating Ms. Yourick’s opinion.
As discussed above, the ALJ considered Ms. Yourick’s professional credentials, treating
relationship with Plaintiff, lack of specialty, and cited inconsistencies between the opinion and
“the sum of the evidence.” (T. 23.) Where an ALJ’s reasoning and adherence to the regulations
are clear, the ALJ is not required to review explicitly each and every factor of the regulation.
Atwater, 512 F. App'x at 70.
For these reasons, the ALJ’s assessment of the opinion of Ms. Yourick was supported by
substantial evidence, and remand is not required on this basis.
C.
Whether the ALJ was Required to Recontact Dr. Nelson and Dr. Del Pino
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 16, at 14-15 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
The ALJ has an affirmative duty to develop a claimant’s complete medical history. 20
C.F.R. §§ 404.1512(d), 416.912(d); Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d
Cir. 2009). By statute, an ALJ is required to develop a claimant’s complete medical history for
at least twelve months before an application for benefits was filed, and for a longer period when
there is reason to believe that additional information is necessary to reach a decision. DeChirico
v. Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998). This duty exists even when a claimant is
represented by counsel, due to the non-adversarial nature of a benefits proceeding. DeChirico,
134 F.3d at 1184; Lamay, 562 F.3d at 509.
Recontacting medical providers is necessary when the ALJ cannot make a disability
determination based on the evidence of record. 20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1).
Additional evidence or clarification is sought when there is a conflict or ambiguity that must be
17
resolved, when the medical reports lack necessary information, or when the reports are not based
on medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §§
404.1520b(c)(1)-(4), 416.920b(c)(1)-(4); Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999);
Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998). However, reviewing courts hold that an ALJ
is not required to seek additional information absent “obvious gaps” in the administrative record
that preclude an informed decision. Rosa, 168 F.3d at 79 n.5; see also Hart v. Comm’r, 07-CV1270 2010 WL 2817479, at *5 (N.D.N.Y. July 16, 2010).
Here, the record contains Plaintiff’s complete medical treatment records for the relevant
time period. Moreover, as discussed above in Part III.C.ii. of this Decision and Order, the record
contains a comprehensive physical examination and opinion of Plaintiff’s physical limitations
from consultative examiner, Dr. Hsu. (T. 492-95.) The record also contains a comprehensive
psychiatric evaluation and opinion of Plaintiff’s mental limitations from consultative examiner,
Christina Caldwell, Psy. D. (T. 684-88.) An ALJ is entitled to rely on the opinions of State
agency medical consultants, because those consultants are deemed to be qualified experts in the
field of social security disability. 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(e),
416.912(b)(6), 416.913(c), 416.927(e); see also Little, 2015 WL 1399586, at *9. Accordingly,
there were no obvious gaps in the administrative record that precluded the ALJ from making an
informed decision.
For these reasons, the ALJ was not required to recontact Dr. Nelson and Dr. Del Pino,
and remand is not necessary on this basis.
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D.
Whether the ALJ’s Credibility Analysis was Supported by Substantial
Evidence
After carefully considering the matter, the Court answers this question in the affirmative,
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 16, at 17-20 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
A plaintiff’s allegation of pain is “entitled to great weight where . . . it is supported by
objective medical evidence.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009)
(quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 [2d Cir. 1992]). However, the ALJ “is
not required to accept [a plaintiff’s] subjective complaints without question; he may exercise
discretion in weighing the credibility of the [plaintiff’s] testimony in light of the other evidence
in the record.” Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15
2012). “When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s
disbelief.” Rockwood, 614 F. Supp. 2d at 270.
“The ALJ’s credibility assessment must be based on a two step analysis of pertinent
evidence in the record. First, the ALJ must determine whether the claimant has medically
determinable impairments, which could reasonably be expected to produce the pain or other
symptoms alleged.” Id., at 271 (citing SSR 96-7p, 1996 WL 374186, at *2 [July 2, 1996].)
Second, if medically determinable impairments are shown, then the
ALJ must evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limit the
claimant’s capacity to work. Because an individual’s symptoms can
sometimes suggest a greater level of severity of impairment than can
be shown by the objective medical evidence alone, an ALJ will
consider the following factors in assessing a claimant’s credibility:
(1) claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating
factors; (4) type, dosage, effectiveness, and side effects of any
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medication taken to relieve symptoms; (5) other treatment received
to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s
functional limitations and restrictions due to symptoms.
Rockwood, 614 F. Supp. 2d at 271 (citing §§ 404.1529[c][3], 416.929[c][3]). Further, “[i]t is the
role of the Commissioner, not the reviewing court, ‘to resolve evidentiary conflicts and to
appraise the credibility of witnesses,’ including with respect to the severity of a claimant’s
symptoms.” Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (quoting Carroll v. Sec’y of
Health & Human Servs., 705 F.2d 638, 642 [2d Cir. 1983]).
Here, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms, but that statements concerning
the intensity, persistence and limiting effects of these symptoms are only partially credible
because they are not fully supported by medical and other evidence of record, competent medical
opinion, and testimony. (T. 21.) Throughout his opinion, the ALJ articulated the inconsistencies
that he considered in assessing the allegations of Plaintiff’s symptoms, and in determining that
Plaintiff is not as limited as alleged, including (1) opinion evidence and examination findings
from acceptable medical sources, (2) Plaintiff’s medical treatment history and compliance with
medical advice, (3) Plaintiff’s reported activities, and (4) Plaintiff’s sparse work history. (T. 1723.)
First, the ALJ considered medical evidence of record that was inconsistent with the level
of severity alleged by Plaintiff, including the opinions of Dr. Hsu and Dr. Del Pino discussed
above in Part III.B.ii. and Part III.B.iii. of this Decision and Order. (T. 17-23.) For example, the
ALJ noted that Dr. Hsu opined that Plaintiff had no limitations in sitting, and standing, and had
mild limitations in prolonged strenuous activity such as climbing, or pushing or pulling heavy
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loads. (T. 22.) Additionally, the ALJ noted that treating pulmonologist, Dr. Del Pino, opined
that Plaintiff could not perform strenuous activities or heavy lifting, but did not have
environmental work limitations. (Id.)
Second, the ALJ considered Plaintiff’s treatment history and compliance with medical
advice. (T. 21.) The ALJ noted that Plaintiff’s only treatment between 2010 and 2012 was
occasional monitoring of the residuals of pneumothorax, and Plaintiff did not begin to attend
pain management treatments until 2012. (T. 22.) A plaintiff may be deemed less credible “if the
level or frequency of treatment is inconsistent with the level of complaints.” SSR 96-7p, 1996
WL 174186, at *8 (July 2, 1996); accord, Sickles v. Colvin, 12-CV-0774, 2014 WL 795978, at
*22 (N.D.N.Y. Feb. 27, 2014) (finding that the ALJ properly cited Plaintiff’s conservative
treatment as a reason for discounting Plaintiff’s credibility).
Additionally, the ALJ noted that “despite his respiratory complaints, the claimant has
continued to smoke cigarettes against medical advice. This fact suggests that his respiratory
problems are not as severe as he alleges.” (T. 21.) A plaintiff’s “statements may be less credible
if the medical reports or records show that the individual is not following the treatment as
prescribed and there are no good reasons for this failure. SSR 96-7p, 1996 WL 374186, at *7
(July 2, 1996); Campbell v. Astrue, 465 F.App’x 4, 6 (2d Cir. 2012).
Third, the ALJ considered Plaintiff’s activities of daily living that were inconsistent with
his complaints of disabling symptoms. (Id.) For example, the ALJ noted that Plaintiff testified
that he cares for his children and had recently played basketball, baseball, and Frisbee with them,
albeit in short intervals. (Id.) The ALJ noted that Plaintiff testified that he climbs stairs four to
six times per day and testified that he exercises for about three hours throughout the day. (Id.)
In May and June of 2011, Plaintiff reported to Dr. Follette that, despite numbness in his left hand
21
when he raises his arm, his arm and neck pain was “okay” and he continued to “soldier through”
his difficulties. (T. 21-22.) Finally, the ALJ found that Plaintiff’s “sparse work history also
detracts from his credibility regarding motivation to work.” (T. 21.)
In sum, the Court finds that the ALJ complied with the regulations and articulated the
inconsistencies upon which he relied in discrediting Plaintiff’s allegations of disabling
impairments. (T. 17-23.) When the evidence of record “permits us to glean the rationale of an
ALJ’s decision, we do not require that he 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.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983).
For these reasons, the ALJ’s credibility analysis was supported by substantial evidence,
and remand is not necessary on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 15) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 16) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: June 23, 2016
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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