Monroe v. Commissioner of Social Security

Filing 16

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Monroe's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 11/21/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SUSAN G. MONROE,
Plaintiff,

7:10-cv-1259
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Conboy, McKay Law Firm
Carthage Office
307 State Street
Carthage, NY 13619
FOR THE DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

LAWRENCE D. HASSELER,
ESQ.

PETER W. JEWETT
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Susan G. Monroe challenges the Commissioner of Social
Security’s denial of her claim for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI), seeking judicial review under 42 U.S.C.
§ 405(g). (See Compl., Dkt. No. 1.) After reviewing the administrative record
and carefully considering Monroe’s arguments, the court dismisses the
Complaint.
II. Background
In April 2006, Monroe filed applications for DIB and SSI under the
Social Security Act (“the Act”), alleging an onset date of July 2, 2003. (See
Tr.1 at 91-106.) After the applications were denied, Monroe sought
reconsideration, and a hearing before an Administrative Law Judge (ALJ)
was held on April 21, 2008. (See id. at 65, 79-83, 701-23.) On July 24, 2008,
the ALJ issued an unfavorable decision and found that Monroe was not
disabled. (See id. at 65-71.) At Monroe’s request, the Appeals Council
remanded the decision to the ALJ to further develop the record and obtain
testimony from a vocational expert (VE). (See id. at 42-61.) A second
administrative hearing was held on May 13, 2009. (See id. at 724-46.) On

1

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

9.)

2

July 6, 2009, the ALJ issued an unfavorable decision again denying the
benefits. (See id. at 12-22.) That decision became the final decision of the
Commissioner when the Appeals Council denied Monroe’s request for review.
(See id. at 6-8.)
Monroe commenced the present action by filing her Complaint on
October 20, 2010, wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 8, 9.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt. Nos.
10, 12.)
III. Contentions
Monroe contends that the Commissioner’s decision is tainted by errors
of law and is not supported by substantial evidence. (See Dkt. No. 10 at
12-20.) Specifically, Monroe claims that the ALJ: (1) erred in failing to find
that her leg edema, hand numbness, and musculoskeletal impairments
constituted severe impairments; (2) incorrectly found that she could perform
light work; (3) failed to adequately evaluate her credibility; and (4) erred in
finding that there were a significant number of positions in the economy that
she could perform. (See id.) The Commissioner counters that the

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appropriate legal standards were used by the ALJ and her decision is also
supported by substantial evidence.2 (See Dkt. No. 12 at 4-10.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See Dkt.
No. 10 at 1-12; Dkt. No. 12 at 1-2.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under 42
U.S.C. § 405(g)3 is well established and will not be repeated here. For a full
discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous opinion in Christiana v. Comm’r of Soc.
Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-3 (N.D.N.Y. Mar. 19,
2008).
VI. Discussion
A.

Severity Findings
Monroe contends that the ALJ erred in failing to find that her leg edema,

2

“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 citation omitted).
3

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

claims.

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hand numbness, and musculoskeletal impairments were severe. (See Dkt.
No. 10 at 12-51.) The Commissioner argues that the ALJ’s findings at step
two of the sequential evaluation are supported by substantial evidence. (See
Dkt. No. 12 at 4-6.)
A finding of not severe is appropriate when an impairment, or
combination of those impairments “does not significantly limit [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R.
§§ 404.1521(a), 416.921(a). The court will turn first to Monroe’s
musculoskeletal impairments. The ALJ noted that Monroe “sought treatment
for musculoskeletal pain in multiple areas, such as her back, neck, right hip,
right shoulder, and knees. However, x-rays and MRI scans show[ed] no
more than mild abnormalities . . . leading the [ALJ] to conclude that [Monroe]
d[id] not have a ‘severe’ musculoskeletal impairment.” (Tr. at 16.) Monroe
challenges the ALJ’s findings, and argues that she suffered several injuries to
her back. (See Dkt. No. 10 at 14-15.) Monroe further claims that these
injuries resulted in a limited range of motion in her neck, shoulders, and back,
and also a slowed gait which required a cane on occasion. (See id.)
Although Monroe contends that her musculoskeletal impairments
limited her ability to work, substantial evidence supports the ALJ’s finding that

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her injuries did not significantly impact her ability to perform basic work
activities. As for Monroe’s claims regarding limited range of motion, both
state agency consultative examining physicians found few, if any, limitations
in that area. Dr. Gerald R. Amatucci examined Monroe on November 5,
2003. (See Tr. at 250-53.) Dr. Amatucci found “excellent range of motion” in
her cervical spine, “relatively good range of motion of her lumbosacral spine,”
“normal range of motion” in her shoulders, and “good range of motion of her
hips.” (Id. at 251-52.) Monroe was subsequently examined by Dr. James
Naughten, on May 30, 2006. (See id. at 434-37.) Dr. Naughten found the
following:
“[c]ervical spine shows full flexion, extension, lateral
flexion bilaterally, and full rotary movement bilaterally .
. . Lumbar spine shows flexion [eighty] degrees, full
extension, full lateral flexion bilaterally, and fully rotary
movement bilaterally . . . Full [range of motion] of
shoulders, elbows, forearms, and wrists bilaterally. Hip
flexion on the right is 90 degrees. Full [range of motion]
of left hip.”
(Id. at 436.)
Several medical sources also noted that Monroe experienced a normal
gate. For example, Dr. Douglas Sloan, found in July 2003, that Monroe’s
“[g]ait was essentially normal, [she was] able to go up on the heel and toes
without difficulty.” (Tr. at 245.) Dr. Amatucci similarly found, in November
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2003, that Monroe “had excellent tandem walking, heel/toe walking and could
bend relatively well.” (Id. at 252.) In October 2004, Rodney Richmond,
Monroe’s treating physician’s assistant, noted that her “[g]ait [wa]s normal.”
(Id. at 334.) At Monroe’s May 2006 consultative examination, Dr. Naughten
stated that she “decline[d] walking on toes and ha[d] moderate difficulty
walking on heels.” (Id. at 435.) However, he also noted that she “[n]eeded
no help changing for [the] exam.” (Id.) A “[n]ormal steady gait” was again
found in February 2009. (Id. at 679.)
Based on the foregoing, substantial evidence supports the ALJ’s finding
that Monroe’s musculoskeletal impairments did not significantly limit her
ability to perform basic work functions and were therefore not severe.
Turning next to Monroe’s leg edema, the ALJ found that it was a nonsevere impairment because it was “controlled with treatment” and had “not
been shown to more than minimally affect [her] ability to engage in work
activity.” (Tr. at 17.) Substantial evidence supports this finding. At several
points throughout the record, no edema was found. For example, in
December 2003, Dr. John Jepma found Monroe’s extremities to be free of
“clubbing, cyanosis4 [and] edema.” (Id. at 275.) In September 2004,
4

Cyanosis is defined as “a bluish discoloration, applied especially to such discoloration
of skin and mucous membranes due to excessive concentration of reduced hemoglobin in the

7

Richmond similarly found that her extremities “show[ed] no edema.” (Id. at
324.) Dr. Edmund Roache also noted “[n]o cyanosis, clubbing, or edema,” in
her extremities, in February 2006. (Id. at 369.) In May 2006, Dr. Naughten, a
consultative physician, found “[n]o cyanosis, clubbing, or edema,” in Monroe’s
extremities. (Id. at 436.) Richmond noted “no edema,” in Monroe’s
extremities, in August 2006. (Id. at 500.) Sharen Yaworski, a nurse
practitioner, also stated in July and September 2008, that Monroe’s leg
edema was “well controlled” by her medication. (Id. at 621, 624.)
Accordingly, the court finds that substantial evidence supports the ALJ’s
determination that Monroe’s leg edema was not severe.
Finally, with respect to Monroe’s hand numbness, the ALJ noted that
Monroe “ha[d] reported a loss of feeling in both hands, but no medically
determinable impairment ha[d] been identified to explain this condition.” (Id.
at 17.) Monroe claims that she suffers from diabetes with peripheral
neuropathy,5 and that this has caused her hand numbness. (See Dkt. No. 10
at 14.) However, Monroe fails to cite to any evidence in the record that in fact
establishes that her hand numbness resulted from her peripheral neuropathy.
blood.” Dorland’s Illustrated Medical Dictionary 410 (28th ed. 1994)
5

The ALJ found that Monroe suffered from “type 2 diabetes mellitus . . . and ha[d]
developed peripheral neuropathy of the lower extremities as a result of her diabetes.” (Tr. at 16
(emphasis added).)

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Instead, Monroe cites to an outside source, to support her claim that
peripheral neuropathy “entails damage to the nerves peripheral to (beyond
those which are connected to) [her] spinal cord, often resulting in numbness.”
(Id. at 14 (citing Peripheral Neuropathy, WebMD, http://www.webmd.com/
brain/understanding-peripheral-neuropathy-basics (last visited Nov. 6,
2012)).) Thus, even assuming that peripheral neuropathy may cause hand
numbness in some individuals, Monroe has not cited to any medical evidence
from the record establishing that her medically determinable peripheral
neuropathy did in fact cause her hand numbness.
Furthermore, several medical sources found that Monroe had no
numbness, weakness, or paresthesia, and maintained good grip strength.
For example, in August 2003, Dr. Sloan found that Monroe had “[n]o
numbness, weakness or paresthesias in [her] upper or lower extremities.”
(Tr. at 247.) Dr. Amatucci similarly found, in November 2003, that Monroe
“had excellent range of motion of her wrists and hands. No areas of
tenderness, erythema, edema, warmth or deformity. Her grip strength was
normal at 5/5 bilaterally.” (Id. at 251.) In October 2004, despite complaining
to her treating physician’s assistant of “heaviness in her arms,” Dr. Rodney
was unable “to re-produce any weakness in her upper extremities.” (Id. at

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333-34.) Dr. Naughten also found that Monroe’s “[h]and and finger dexterity
[was] intact” and her “[g]rip strength [was] 5/5 bilaterally” in May 2006. (Id. at
436.) Accordingly, substantial evidence supports the finding that Monroe’s
hand numbness was not a severe impairment.
Based on the foregoing, the court finds that substantial evidence
supports the ALJ’s findings that Monroe’s musculoskeletal impairments, leg
edema, and hand numbness, were not severe.
B.

Residual Functional Capacity (RFC) Finding
An individual’s RFC “is the most [she] can still do despite [her]

limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416,945(a)(1). In order to
determine a claimant’s RFC, the ALJ must consider “all of the relevant
medical and other evidence,” and evaluate her “ability to meet the physical,
mental, sensory, and other requirements of work.” 20 C.F.R.
§§ 404.1545(a)(3), (4), 416.945(a)(3), (4). The claimant’s physical and
mental abilities must also be assessed “on a regular and continuing basis.”
Id. §§ 404.1545(b), (c), 416.945(b), (c). This is defined as “[eight] hours a
day, for [five] days a week, or an equivalent work schedule.” SSR 96-8p, 61
Fed. Reg. 34,474, 34,475 (July 2, 1996).
Monroe argues that the RFC finding is not supported by substantial

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evidence. (See Dkt. No. 10 at 15-17.) Monroe bases her argument largely
on her contention that the ALJ failed to properly evaluate the severity of
several of her impairments. (See generally id.) However, as previously
discussed, the ALJ’s severity findings are supported by substantial evidence.
The court further finds that the ALJ’s RFC determination is also supported by
substantial evidence.
The ALJ found that Monroe retained the ability “to perform the full range
of light work.” (Tr. at 17.) More specifically, the ALJ found that Monroe could
“lift and/or carry [twenty] pounds occasionally and ten
pounds frequently, stand and/or walk for a total of six
hours in an eight-hour workday, sit for a total of six
hours in an eight-hour workday, and push and/or pull
[twenty] pounds occasionally and ten pounds frequently.
She should avoid concentrated exposure to respiratory
irritants.”
(Id.)

The ALJ’s findings are supported by the following evidence. The only
examining medical sources to provide opinions of Monroe’s ability to work
despite her impairments, were two state agency medical consultants, Drs.
Amatucci and Naughten. Dr. Amatucci examined Monroe in November 2003,
and found only that she had a “mild decreased functional capacity regarding
heavy work to some extent, and probably the largest extent from today’s
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examination, due to her obesity.” (Tr. at 252.) Dr. Naughten examined
Monroe in May 2006, and found the following: “[s]he should avoid all known
smoke, dust, and respiratory irritants due to her asthma. No limitations to
seeing, hearing, talking, sitting, or standing. Mild to moderate limitation
walking and climbing stairs. No limitation pushing, pulling, or reaching. Mild
to moderate limitation lifting, carrying, and handling objects.” (Id. at 437.)
The opinions of two state agency disability analysts further support the
ALJ’s RFC finding. In November 2003, a disability analyst found that Monroe
could: occasionally lift and/or carry twenty pounds; frequently lift and/or carry
ten pounds; stand and/or walk about six hours in an eight-hour workday; sit
about six hours in an eight-hour workday; and had an unlimited ability to push
and/or pull, other than as found for lift and/or carry. (See id. at 258.) The
disability analyst also found no postural, manipulative, visual, or
communicative limitations, but opined that Monroe would need to avoid a
concentrated exposure of extreme cold, extreme heat, and hazards (including
machinery, and heights). (See id. at 259-60.) A second disability analyst
reviewed the record in June 2006, and found that Monroe could: occasionally
lift and/or carry twenty pounds; frequently lift and/or carry ten pounds; stand
and/or walk about six hours in an eight-hour workday; sit about six hours in

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an eight-hour workday; and had an unlimited ability to push and/or pull, other
than as found for lift and/or carry. (See id. at 444.) The analyst further found
no postural, manipulative, visual, or communicative limitations, but opined
that Monroe would need to avoid a concentrated exposure of fumes, odors,
dusts, gases, and poor ventilation. (See id. at 445-46.) Based on the
foregoing, the court finds that the ALJ’s RFC determination is supported by
substantial evidence.
C.

Credibility
“[A] claimant’s subjective evidence of pain is entitled to great weight

where . . . it is supported by objective medical evidence.” Simmons v. U.S.
R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir. 1992) (citations omitted).
“However, the ALJ is ‘not obliged to accept without question the credibility of
such subjective evidence.’” Martone v. Apfel, 70 F.Supp.2d 145, 151
(N.D.N.Y. 1999) (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)).
In analyzing credibility, the ALJ must first determine whether the claimant has
medically determinable impairments, “which could reasonably be expected to
produce the pain or other symptoms alleged.” 20 C.F.R. §§ 404.1529(a),
416.929(a); SSR 96-7p, 1996 WL 374186, at *2 (1996). Second, if medically
determinable impairments are shown, then the ALJ must evaluate the

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intensity, persistence, and limiting effects of the symptoms to determine the
extent to which they limit the claimant’s capacity to work. See 20 C.F.R.
§ 404.1529(c); SSR 96-7p, 61 Fed. Reg. 34,483, 34,484 (July 2, 1996).
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,” SSR 96-7p, 61 Fed. Reg. at 34,485, an ALJ will consider the factors
listed in 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii)6 in making
her credibility determination.
If the ALJ finds that the claimant’s pain contentions are not fully
credible, she must state her reasons “explicitly and with sufficient specificity
to enable the [c]ourt to decide whether there are legitimate reasons for the
ALJ’s disbelief.” Young v. Astrue, No. 7:05-CV-1027, 2008 WL 4518992, at
*11 (N.D.N.Y. Sept. 30, 2008) (quoting Brandon v. Bowen, 666 F.Supp 604,
608 (S.D.N.Y. 1987)).
Monroe argues that “[t]he ALJ failed to make any credibility finding and
failed to properly review [her] subjective allegations.” (Dkt. No. 10 at 18.)

6

The listed factors are: (i) claimant’s daily activities; (ii) location, duration, frequency,
and intensity of claimant’s symptoms; (iii) precipitating and aggravating factors; (iv) type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (v) other
treatment received to relieve symptoms; (vi) any measures taken by the claimant to relieve
symptoms; and (vii) any other factors concerning claimant’s functional limitations and
restrictions due to symptoms. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii).

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Contrary to Monroe’s argument, the ALJ clearly found that her statements
were less than fully credible. (See Tr. at 19.) The ALJ first noted that
Monroe’s “subjective complaints of disability when she testified in 2008 were
not fully credible.” (Id.) The ALJ then found that Monroe’s “more recent
testimony was somewhat inconsistent and included comments regarding
symptoms that [we]re not reflected in the medical treatment notes, casting
doubt about the credibility of at least some of her statements.” (Id.)
In making her finding that Monroe’s statements were not fully credible,
the ALJ discussed several of the relevant factors. (See id.) For example, the
ALJ considered Monroe’s daily activities, her failure to follow a diabetic diet,
and that her medications have not caused side effects. (See id.) The court
acknowledges that the ALJ failed to complete step one of the two-step
credibility finding by failing to explicitly state whether Monroe’s medically
determinable impairments could reasonably be expected to produce her
symptoms. (See id. at 12-22.) However, despite this failure, the ALJ’s
credibility analysis remains supported by substantial evidence, and her failure
to complete step one amounts to, at most, harmless error. See Schaal v.
Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (citing Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987)) (“Where application of the correct legal standard

15

could lead to only one conclusion, we need not remand.”)
D.

Step Five Finding
The ALJ found that Monroe could perform the full range of light work,

and therefore “a finding of ‘not disabled’ [wa]s directed by Medical-Vocational
Rule 202.21 and 22 and Rule 202.14 and 15 (depending on whether or not
[Monroe] had transferable work skills).” (Tr. at 21.) The ALJ also relied upon
the testimony of a VE. The VE testified that an individual with Monroe’s RFC,
“age, educational and vocational history” could perform the jobs of
companion, blood donor unit assistant, and assembler. (Id. at 21, 741-42.)
Monroe challenges several portions of the ALJ’s finding at step five of
the sequential evaluation. (See Dkt. No. 10 at 18-20.) Monroe first reiterates
her previous contentions, that the ALJ failed to properly assess the severity of
her impairments and determine the RFC. (See id. at 19.) Monroe further
argues that because she suffered from non-exertional impairments, the ALJ
erred in relying upon the grid guidelines. (See id.)
The use of the grid guidelines is inappropriate “where the claimant’s
work capacity is significantly diminished beyond that caused by h[er]
exertional impairment.” Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986).
“Significantly diminished” means “the additional loss of work capacity beyond

16

a negligible one or . . . one that so narrows a claimant’s possible range of
work as to deprive him of a meaningful employment opportunity.” Id. at 606.
Here, when determining Monroe’s RFC, the ALJ found that she “should
avoid concentrated exposure to respiratory irritants.” (Tr. at 17.) Along with
considering the grid guidelines, the ALJ elicited the testimony of a VE. The
VE stated that an individual with Monroe’s educational-vocational background
and RFC could perform several positions, both nationally and locally. (See
id. at 21, 741-43.) In questioning the vocational expert in this case, the ALJ’s
hypothetical question accurately reflected her RFC assessment which, as
discussed above, was supported by substantial evidence. (Compare id. at
741, with id. at 17.) As a result, the ALJ was entitled to rely upon the VE’s
testimony when determining the availability of jobs in the economy.
Accordingly, the ALJ’s finding that Monroe could perform a significant
number of positions in the economy, 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
Monroe’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this

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Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
November 21, 2012
Albany, New York

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