Beach v. Commissioner of Social Security

Filing 13

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

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KEVIN P. BEACH, SR.,
Plaintiff,

7:13-cv-323
(GLS)

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

LAWRENCE D. HASSELER,
ESQ.

KATRINA M. LEDERER
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 Kevin P. Beach, Sr. challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB), seeking judicial
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.)1 After reviewing
the administrative record and carefully considering Beach’s arguments, the
court affirms the Commissioner’s decision and dismisses the complaint.
II. Background
On May 3, 2010, Beach filed an application for DIB under the Social
Security Act (“the Act”), alleging disability since July 6, 2009. (Tr.2 at 79,
172-78.) After his application was denied, (id. at 80-85), Beach requested
a hearing before an Administrative Law Judge (ALJ), which was held on
August 12, 2011, (id. at 45-78, 86-87). On January 10, 2012, the ALJ
issued an unfavorable decision denying the requested benefits, which
became the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (Id. at 1-6, 12-29.)
Beach commenced the present action by filing his complaint on
1

Because no application for Supplemental Security Income (SSI) appears in the record
and it is otherwise clear that Beach’s request for review pertains only to his application for DIB,
the court ignores the mistaken reference to SSI in his complaint. (Compl. ¶ 2.)
2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)

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March 21, 2013 wherein he sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 7, 8.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 10, 11.)
III. Contentions
Beach contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 10 at 15-24.)
Specifically, Beach claims that the ALJ erred in: (1) developing the record;
(2) evaluating his impairments under listing 1.04; (3) applying the treating
physician rule; and (4) rendering his residual functional capacity (RFC)
determination. (Id.) The Commissioner counters that the appropriate legal
standards were used by the ALJ and his decision is also supported by
substantial evidence. (Dkt. No. 11 at 5-11.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 10 at 1-15; Dkt. No. 11 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
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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.

Development of the Record
First, Beach argues that the ALJ neglected his duty to fully develop

the record by failing to hold the record open for a sufficient amount of time,
and failing to obtain additional records from Beach’s treating sources.
(Dkt. No. 10 at 15-18.) The Commissioner counters, and the court agrees,
that the ALJ fulfilled his duty to develop the record, and, further, the record
was sufficiently robust to allow the ALJ to render a determination. (Dkt.
No. 11 at 5-7.)
While the ALJ has an affirmative obligation to develop the
administrative record, his duty to do so is not without limit. See Guile v.
Barnhart, No. 5:07-cv-259, 2010 WL 2516586, at *3 (N.D.N.Y. June 14,
2010); see also 20 C.F.R. § 404.1512(d) (stating that, generally, a
complete record contains a “medical history for at least the [twelve] months
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preceding the month in which” the claimant files his application). Indeed, if
all of the evidence received is consistent and sufficient to determine
whether a claimant is disabled, further development of the record is
unnecessary, and the ALJ may make his determination based upon that
evidence. See 20 C.F.R. § 404.1520b(a). Consistent with that notion,
where there are no “obvious gaps” in the record, the ALJ is not required to
seek additional information. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.
1999).
Here, because the record was sufficiently robust for the ALJ to make
a disability determination, he was not obligated to further develop the
record by either: (1) holding the record open for receipt of additional
medical records; or (2) obtaining “updated statements” from Beach’s
treating physicians. (Dkt. No. 10 at 15-16); see Streeter v. Comm’r of Soc.
Sec., No. 5:07-CV-858, 2011 WL 1576959, at *3 (N.D.N.Y. Apr. 26, 2011).
In particular, the ALJ had before him Beach’s extensive treatment records,
objective medical evidence, including x-rays and MRIs, and a medical
expert’s opinion with regard to Beach’s functional capabilities. (See
generally Tr. at 256-448.) Further, the ALJ held the record open for three
weeks following the administrative hearing, to permit Beach’s counsel the
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opportunity to obtain medical source statements from Beach’s treating
sources. (Id. at 48.) Thereafter, Beach’s counsel submitted updated
treatment notes from treating physician John Krawchenko, who performed
Beach’s two back surgeries, as well as a recent MRI of Beach’s lumbar
spine. (Id. at 242-43, 365-67, 449-54, 511-13.) Beach’s counsel also
informed the ALJ that Dr. Krawchenko would not complete an “[RFC] form,”
but that his treatment notes contained his opinion with respect to Beach’s
functional limitations. (Id. at 242.) Subsequently, Beach’s counsel
submitted additional treatment records from Dr. Krawchenko as well as
physical therapy treatment notes. (Id. at 244-45, 455-61.) On September
8, 2011 Beach’s counsel informed the ALJ that the record was complete
and requested he make a fully favorable decision on the evidence before
him. (Id. at 245.) Thereafter, the ALJ obtained the medical source
statement of non-examining medical expert Thomas Weiss. (Id. at 246-47,
462-80.)3 After reviewing Dr. Weiss’ medical source statement, Beach’s

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Beach argues that Dr. Weiss completed his medical source statement without
reviewing the updated treatment records. (Dkt. No. 10 at 17.) He bases his argument on the
ALJ’s declaration that all of the medical documents submitted after the administrative hearing
were part of the interrogatory sent to Dr. Weiss. (Id.; Tr. at 252.) According to Beach, as
“[t]he ALJ does not state the same regarding Dr. Weiss’[ m]edical [s]ource [s]tatement[,] it
appears Dr. Weiss did not review all relevant medical evidence in the [r]ecord before issuing
his opinion.” (Dkt. No. 10 at 17.) Semantics aside, it is clear from the ALJ’s November 14,
2011 letter and the request for interrogatory sent to Dr. Weiss, which contained the medical

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counsel again requested the ALJ make a fully favorable finding on the
record before him, or, in the alternative, hold the record open for the results
of Beach’s scheduled back surgery. (Id. at 170-71.)
In this instance, the ALJ made considerable efforts to fully develop
the administrative record, and the record fails to disclose any critical gaps.
The court notes that the lack of a medical source statement from a treating
physician, will not, by itself, necessarily render the record incomplete. See
20 C.F.R. § 404.1513(b)(6); Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir.
2013). Even if the ALJ erred in failing to obtain treatment notes
subsequent to Beach’s November 2011 back surgery, Beach submitted a
postoperative treatment note to the Appeals Council, after the ALJ
rendered his decision, which indicates that Beach experienced
improvement after the surgery and was pleased with the results. (Tr. at
510.) For the foregoing reasons, the court is satisfied that further
development of the record was unnecessary.
B.

Listing 1.04
Next, Beach contends that the ALJ erred in failing to find that Beach

source statement questionnaire, that Dr. Weiss had the benefit of all of the medical documents
submitted to the ALJ, prior to completing the medical source statement. (Tr. at 252, 462-72.)

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has an impairment or combination of impairments which meet or medically
equal listing 1.04. (Dkt. No. 10 at 18-19.) According to Beach, the
November 28, 2011 postoperative examination note of record
demonstrates the clinical findings required to meet listing 1.04(A). (Id. at
19.) On the other hand, the Commissioner argues that the diagnostic
images of record fail to reveal evidence of nerve root compression, and,
thus, Beach’s impairments do not satisfy the requirements of listing
1.04(A). (Dkt. No. 11 at 7-9.) Again, the court agrees with the
Commissioner.
If a claimant’s “impairment(s) meets or equals a listed impairment”
and “meets the duration requirement,” he will be found disabled. 20 C.F.R.
§ 404.1520(d). To satisfy listing 1.04(A), a claimant must show that he
suffers from a spinal disorder resulting in compromise of a nerve root or
the spinal cord with evidence of: (1) nerve root compression characterized
by neuro-anatomic distribution of pain; (2) limitation of motion of the spine;
(3) motor loss accompanied by sensory or reflex loss; and (4) if there is
involvement of the lower back, positive straight-leg raising test. See 20
C.F.R. pt. 404, subpt. P, app. 1, § 1.04(A).
Here, in August 2011, Dr. Krawchenko reviewed Beach’s July 2011
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lumbar spine MRI and explained that, although he suffered a disc
herniation, there was no nerve root compression or significant
displacement. (Tr. at 453, 455.) Further, while the medical record shows
some instances of muscle weakness in Beach’s lower extremities, the
clinical findings were not present on a continual basis, and, indeed,
Beach’s November 28, 2011 treatment note reveals “good strength on
muscle testing.” (Compare id. at 281, 358, 372, 375, 378-79, 400, 434,
449, 510, with id. at 451, 455, 509.) Thus, even if the results of Beach’s
November 28, 2011 examination demonstrated that his spinal disorder is
accompanied by neuro-anatomic distribution of pain, limitation of motion of
the spine, sensory loss, and positive straight leg raise tests, (Dkt. No. 10 at
19), he failed to prove the existence of other specified medical criteria
required under the listing. See 20. C.F.R. pt. 404, subpt. P, app. 1,
§ 1.04(A). In fact, in order to qualify for listing severity, the claimant must
show that he meets all the requirements of the listing consistently. See
Evans v. Astrue, No. 12-CV-6002, 2012 WL 6204219, at *3-4 (W.D.N.Y.
Dec.12, 2012). Accordingly, the court affirms the ALJ’s step-three

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determination that Beach’s lumbar impairment did not meet listing 1.04(A).4
(Tr. at 18.)
C.

Treating Physician Rule
Beach also argues that the ALJ erred in applying the treating

physician rule. (Dkt. No. 10 at 19-22.) Specifically, Beach claims that the
ALJ erred in failing to give the opinions of Drs. Krawchenko and Owen
controlling weight, as such opinions were uncontradicted by other
substantial evidence. (Id. at 20-21.) Further, Beach contends that the ALJ
failed to provide good reason, considering the regulatory factors, for the
weight afforded the opinions of Drs. Krawchenko and Owen. (Id. at 21-22.)
The court disagrees.
Controlling weight will be given to a treating source’s opinion on the
4

To the extent that Beach’s arguments can be construed as a contention that his
cervical spine impairment meets listing 1.04(A), (Dkt. No. 10 at 19), the court notes that a May
2010 MRI, taken after Beach’s neck surgery, revealed no spinal cord compression. (Tr. at
360.) Additionally, although the record shows that, prior to Beach’s July 2009 neck surgery, he
exhibited some diminished strength, sensation, and range of motion, these clinical findings
were not consistent. (Id. at 358, 362-64, 368-75, 378.) For example, on June 4, 2009, treating
physician Michael Owen, who performed Beach’s neck surgery, noted that Beach had good
strength in his bilateral biceps, triceps, and deltoids, as well as good grip strength, and intact
and symmetrical reflexes. (Id. at 362-64, 375.) On June 22, 2009, Dr. Owen found “some
mild right triceps and possibly right biceps weakness,” but deep tendon reflexes were
“normoactive symmetrically” in Beach’s upper extremities, and no “anatomic areas of sensory
loss” were demonstrable. (Id. at 372.) Further, on his first postoperative visit in July 2009,
Beach reported no arm pain, numbness, or tingling, and he had good strength in his upper
extremities on examination. (Id. at 371.) Thus, the ALJ’s determination that Beach’s cervical
spine impairment does not meet the requirements of listing 1.04(A) is supported by substantial
evidence. (Id. at 18.)

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nature and severity of a claimant’s impairments where it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
When a treating source’s opinion is given less than controlling weight, the
ALJ is required to consider the following factors: the length, nature and
extent of the treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ
must provide “good reasons for the weight given to the treating source’s
opinion.” Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011) (internal
quotation marks and citations omitted). “Nevertheless, where the evidence
of record permits [the court] to glean the rationale of an ALJ’s decision,” it
is not necessary that the ALJ “have mentioned every item of testimony
presented to him or have explained why he considered particular evidence
unpersuasive or insufficient to lead him to a conclusion of disability.” Id.
(internal quotation marks and citation omitted).
Here, the ALJ gave “little weight” to the opinion of Dr. Krawchenko,
that Beach “is totally disabled from any type of gainful occupation.” (Tr. at
11

22, 452, 455-56.) The ALJ explained that he discounted Dr. Krawchenko’s
opinion because it is on an issue reserved to the Commissioner, and,
further, Dr. Krawchenko’s examination findings were inconsistent with the
diagnostic imaging, his treatment course, and the findings in Beach’s
physical therapy treatment notes. (Id. at 22); see 20 C.F.R.
§ 404.1527(c)(2), (4), (d)(1), (3). Thus, it is clear that the ALJ properly
applied § 404.1527(c), and his assessment of Dr. Krawchenko’s opinion is
legally sound. See SSR 06-03p, 71 Fed. Reg. 45,593, 45,596 (Aug. 9,
2006) (“Not every factor for weighing opinion evidence will apply in every
case.”).
Beach’s argument that the ALJ’s decision to give less than controlling
weight to Dr. Krawchenko’s assessment is not supported by substantial
evidence5 is similarly unavailing. (Dkt. No. 10 at 20.) Indeed, Dr.
Krawchenko examined Beach in May 2009, almost two months prior to
Beach’s alleged onset date, and noted that Beach was in no acute distress
with a normal gait, and good strength in his lower extremities. (Tr. at 377.)
However, Beach did have some mild to moderate lumbar spasms on

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“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).

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palpation, tenderness on palpation, and a “[m]inimally positive straight leg
raise on the right.” (Id.) Notably, Beach was working as a bartender at this
time. (Id. at 53-55.) Dr. Owen performed an anterior cervical discectomy
and fusion on July 6, 2009—Beach’s alleged onset date. (Id. at 362-64.)
As the ALJ pointed out, Beach’s medical records show improvement
following the surgery, with Beach reporting in November 2009 that he was
feeling much better with only occasional stiffness and no arm pain,
numbness, or tingling. (Id. at 20, 368-71.) Thereafter, in May 2010, Dr.
Owen examined Beach who reported that “his low back has been doing
very well,” although he was experiencing neck pain. (Id. at 358.) Beach
was noted to be in no acute distress, with good strength in his upper and
lower extremities, and a negative Tinel’s sign in his upper extremities, but a
reduced range of motion of his head and neck. (Id.)
Subsequently, in September 2010, Beach fell off of a ladder while
installing storm windows, and returned to Dr. Krawchenko complaining of
increasing pain in his neck and back. (Id. at 449.) Upon examination,
Beach was found to be in moderate discomfort, with tenderness and
muscle spasms. (Id.) He had limited range of motion of his neck and
lower back, and pain with straight leg raising to ninety degrees on the right,
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but his motor exam was normal. (Id.) Beach did not treat with Dr.
Krawchenko again until July 2011, when he found Beach to suffer
diminished range of motion of his back and neck, positive straight-leg
raising, and diminished sensation and weakness in the right lower
extremity. (Id. at 451-52.) In August 2011, Dr. Krawchenko reviewed
Beach’s MRI, which revealed a “[s]mall disc herniation at L5-S1, not
compressing or displacing neural elements,” and recommended Beach
attend physical therapy for his legs and back, as surgery only had a “50/50
chance” of relieving his symptoms. (Id. at 453-55.) Beach’s physical
therapy treatment records reveal that he quickly progressed, with no more
than minimal loss of movement in his back by August 26, 2011. (Id. at
457-60.) Beach underwent a second back surgery in November 2011, and
thereafter reported a decrease in his back and right leg symptoms. (Id. at
510-13.) In sum, the treatment records and diagnostic images of record
support the ALJ’s decision to discount Dr. Krawchenko’s opinion that
Beach was totally disabled. (Id. at 22.)
Turning to Dr. Owen, Beach argues that the ALJ failed to state what
weight he afforded Dr. Owen’s opinion. (Dkt. No. 10 at 20.) However, the
court could not locate a medical opinion authored by Dr. Owen in the
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record. Notably, Beach does not provide a citation to the supposedlyoverlooked opinion, and, instead, cites to an April 2007 treatment record in
which Dr. Owen noted Beach’s complaints that his low back and left leg
pain “affect the quality of his life and the things that he can and [cannot]
do. He is able to continue to work but in terms of free time[,] of . . . doing
anything enjoyable after work, it seems that he . . . rests and takes it easy
just to go back to work.” (Tr. at 388; Dkt. No. 10 at 20.) Clearly this is not
an assessment of Beach’s functional limitations, but, rather, a notation of
Beach’s subjective complaints. Further, as the Commissioner aptly notes,
this treatment record was penned over two years prior to Beach’s alleged
onset date, and two months prior to Beach’s first back surgery. (Tr. at 36567, 388; Dkt. No. 11 at 10.) Notably, after his June 2007 back surgery,
Beach reported decreased pain and, by September 2007, requested a
release from Dr. Krawchenko to return to work, which was granted. (Tr. at
383-85.) Thus, Beach’s arguments with respect to Dr. Owen’s opinion are
without merit.
Beach also argues that the ALJ erred in granting “great weight” to the
opinion of Dr. Weiss. (Dkt. No. 10 at 21.) Dr. Weiss opined that Beach
can occasionally lift and carry up to fifty pounds, and frequently ten
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pounds. (Tr. at 477-80.) According to Dr. Weiss, Beach can sit, stand,
and walk for six hours a day respectively, and can occasionally perform
postural activities. (Id. at 477-78.) The ALJ gave Dr. Weiss’ opinion “great
weight,” because he had the opportunity to review all of the medical
evidence of record, which supports his opinion. (Id. at 22.) Contrary to
Beach’s assertions, (Dkt. No. 10 at 22), “an ALJ is entitled to rely upon the
opinions of both examining and non-examining State agency medical
consultants, since such consultants are deemed to be qualified experts in
the field of social security disability.” Baszto v. Astrue, 700 F. Supp. 2d
242, 249 (N.D.N.Y. 2010); see Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d
Cir. 1995) (noting that the applicable regulations “permit the opinions of
nonexamining sources to override treating sources’ opinions provided they
are supported by evidence in the record”); Florez v. Apfel, No. CV 97-3052,
1998 WL 760334, at *6-7 (E.D.N.Y. Aug. 31, 1998) (“Given that [the
medical expert’s] opinions are supported by the record, and [the treating
physician’s] opinion that the [claimant] was disabled is not, the ALJ was
free to find the non-examining expert’s testimony persuasive.”).
D.

RFC Determination
Finally, Beach contends that the ALJ failed to properly calculate his
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RFC. (Dkt. No. 10 at 22-24.) According to Beach, as Dr. Weiss’ medical
source statement failed to indicate any limitations for Beach’s use of his
hands or feet, and failed to indicate how often Beach would need to
change positions between sitting, standing, and walking, his opinion cannot
constitute substantial evidence to support the ALJ’s RFC determination.
(Id. at 23.) Again, the court disagrees.
A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(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. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Here, the ALJ determined that Beach can lift no more than fifty
pounds, and frequently lift and carry ten pounds. (Tr. at 19.) Further, the
ALJ concluded that Beach can sit, stand, and walk for up to six hours in a
work day, and only occasionally balance, bend, stoop, kneel, crouch, crawl,
and climb. (Id.) Dr. Weiss’ opinion indicates that Beach can sit, stand, and
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walk for up to six hours without interruption. (Id. at 477.) Thus, although
Beach may disagree with Dr. Weiss’ opinion in this regard, it clearly
supports the ALJ’s RFC determination. (Dkt. No. 10 at 23.) Additionally,
although Dr. Weiss did not indicate any limitations for reaching, handling,
fingering, feeling, pushing, pulling, or operating foot controls, (Tr. at 478),
no treating, examining, or consulting physician opined that Beach lacks
such functional capacities. Rather, consultative examiner Robert
Athanasiou opined that Beach suffers no limitation in his ability to reach or
handle objects, based upon his examination results, which revealed intact
hand and finger dexterity, 5/5 grip strength, and 5/5 motor strength in
Beach’s upper and lower extremities. (Id. at 400.) Further, Beach testified
that he was able to work in a heavy exertional job after his June 2007 back
surgery and up and until his cervical fusion surgery, is able to mow the
lawn, and sleeps nightly on his sofa. (Id. at 53-56, 63-64, 67-68.) The ALJ
appropriately considered such testimony in discounting Beach’s subjective
complaints of pain and functional limitation. (Id. at 21.) Thus, taking the
entire case record into consideration, substantial evidence supports the
ALJ’s RFC determination.
E.

Remaining Findings and Conclusions
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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
Beach’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
March 5, 2014
Albany, New York

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