Disotell v. Colvin
MEMORANDUM-DECISION & ORDER: as to Amy Jo Disotell. It is Ordered that Plaintiff's # 10 Motion for Judgment on the Pleadings is DENIED, it is further Ordered that Defendant's # 11 Motion for Judgment on the Pleadings is GRANTED, that the Defendant's unfavorable determination is AFFIRMED and that Plaintiff's # 1 Complaint is DISMISSED. Signed by Magistrate Judge William B. Carter on 8/14/2017. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
AMY JO DISOTELL,
COMMISSIONER OF SOCIAL SECURITY,
OLINSKY LAW GROUP
Counsel for Plaintiff
300 S. State St., Ste. 420
Syracuse, NY 13202
HOWARD OLINSKY, 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
ARIELLA ZOLTAN, ESQ.
William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local
Rule 73.1 and the consent of the parties. (Dkt. Nos. 13, 14.).
Currently before the Court, in this Social Security action filed by Amy Jo Disotell
(“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. 10, 11.) For the reasons set forth
below, Plaintiff’s motion is denied and Defendant’s motion is granted.
Plaintiff was born in 1971. (T. 145.) She completed the eighth grade. (T. 150.)
Generally, Plaintiff’s alleged disability consists of scoliosis, blood disorder, poor vision,
and depression. (T. 149.) Her alleged disability onset date is May 10, 2010. (T. 57.)
Her date last insured is June 30, 2015. (T. 160.) She previously worked as a cook,
waitress, and dishwasher. (T. 150.)
On June 25, 2012, Plaintiff applied for a period of Disability Insurance Benefits
(“SSD”) under Title II, and Supplemental Security Income (“SSI”) under Title XVI, of the
Social Security Act. (T. 56.) Plaintiff’s applications were initially denied, after which she
timely requested a hearing before an Administrative Law Judge (“the ALJ”). On October
24, 2013, Plaintiff appeared before the ALJ, Marie Greener. (T. 36-55.) On May 5,
2014, ALJ Greener issued a written decision finding Plaintiff not disabled under the
Social Security Act. (T. 17-33.) On February 24, 2016, the Appeals Council (“AC”)
denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of
the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial review in this
The ALJ’s Decision
Generally, in her decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 22-29.) First, the ALJ found that Plaintiff met the insured status
requirements through June 30, 2015 and Plaintiff had not engaged in substantial gainful
activity since May 10, 2010. (T. 22.) Second, the ALJ found that Plaintiff had the
severe impairments of degenerative disc disease of the lumbar spine with scoliosis and
degenerative disc disease of the thoracic spine. (Id.) Third, the ALJ found that Plaintiff
did not have an impairment that meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 25.) Fourth, the ALJ found
that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work and
occasionally climb, balance, stoop, kneel, crouch, and crawl. (T. 25.) 1 Fifth, the ALJ
determined that Plaintiff was incapable of performing her past relevant work; however,
there were jobs that existed in significant numbers in the national economy Plaintiff
could perform. (T. 27-29.)
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
Plaintiff makes two separate arguments in support of her motion for judgment on
the pleadings. First, Plaintiff argues the RFC determination was not supported by
substantial evidence because of errors in the ALJ’s weighing of the opinion evidence
provided by consultative examiner Elke Lorensen, M.D., Nurse Practitioner Lalone, and
Nurse Practitioner Pyatigorskaya. (Dkt. No. 10 at 6-14 [Pl.’s Mem. of Law].) 2 Second,
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met. 20 C.F.R. §§ 404.1567(a), 416.967(a).
The record contains treatment notations and a medical source statement completed by
Sarah Lalonde, Family Nurse Practitioner. A verification search with the New York State Office of the
Professions reveals a nurse practitioner with the name, Sarah Elizabeth Lalonde.
http://www.nysed.gov/COMS/OP001/OPSCR1 (last visited July 27, 2017). There are no registered nurse
practitioners in the State of New York named Sarah Lalone. In the transcript Nurse Lalonde’s name
and lastly, Plaintiff argues the credibility determination is not supported by substantial
evidence. (Id. at 14-16.)
In response, Defendant makes two arguments. First, Defendant argues the ALJ
properly weighed the medical opinion evidence in assessing Plaintiff’s RFC. (Dkt. No.
11 at 11-19 [Def.’s Mem. of Law].) Second, Defendant argues the ALJ’s credibility
assessment was supported by substantial evidence. (Id. at 19-22.)
RELEVANT LEGAL STANDARD
Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed 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.”); 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
appears as Lalonde and Lalone. For the sake of continuity, Nurse Lalonde will be referred to as she is by
the ALJ and the parties, Nurse Lalone.
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. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“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).
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. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court has recognized the validity of this
sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.
2287 (1987). The five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
A. The ALJ’s Weighing of the Medical Evidence and RFC Determination
The RFC is an assessment of “the most [Plaintiff] can still do despite [his or her]
limitations.” 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1)3. In formulating an RFC, the
ALJ will base her determination on “all of the relevant medical and other evidence” in
the record. Id. at §§ 404.1545(a)(3), 416.945(a)(3). The relevant factors considered in
determining what weight to afford an opinion include the length, nature and extent of the
treatment relationship, relevant evidence which supports the opinion, the consistency of
the opinion with the record as a whole, and the specialization (if any) of the opinion’s
source. Id. at §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
Plaintiff asserts that the ALJ erred in weighing the medical opinion evidence in
the record, and therefore the ALJ’s RFC determination was not supported by substantial
evidence. (Dkt. No. 10 at 6-14 [Pl.’s Mem. of Law].) Specifically, Plaintiff argues that in
formulating her RFC determination, the ALJ did not properly consider and weigh the
Effective March 27, 2017, 20 C.F.R. §§ 404.1545, 416.945 have been amended, as have other
regulations and SSRs cited herein. Nonetheless, because Plaintiff’s social security application was filed before the
new regulations and SSRs went into effect, the Court reviews the ALJ's decision under the earlier regulations and
opinions of consultative examiner Dr. Lorensen, Nurse Lalone, and Nurse
On October 18, 2012, Dr. Lorensen performed an internal medical examination
and provided a medical source statement. (T. 242-245.) Plaintiff reported that she
cooks three times a week, cleans once a week, does laundry twice a week with help,
and shops once a week with help. (T. 242.) Plaintiff reported she showers and dresses
with help; however, Dr. Lorensen observed that Plaintiff was able to undress for the
examination and dress after the examination without a problem. (T. 243.)
On examination Dr. Lorensen observed that Plaintiff was in no acute distress,
had a normal gait, could walk on her toes, and could not walk on her heels. (T. 243.)
Plaintiff informed Dr. Lorensen she could not squat. (Id.) Dr. Lorensen observed that
Plaintiff needed no help getting on and off exam table and was able to rise from a chair
without difficulty. (Id.)
Dr. Lorensen noted Plaintiff had full range of motion in her cervical spine. (T.
244.) The doctor observed Plaintiff had no scoliosis, kyphosis, or abnormality in her
thoracic spine. (Id.) Dr. Lorensen observed on examination that Plaintiff’s lumbar spine
had flexion of 30 degrees, extension of 10 degrees, lateral flexion of 20 degrees to the
right and 15 degrees to the left, and rotation of 15 degrees. (Id.) Dr. Lorensen noted
Plaintiff had forward elevation and abduction of both shoulders of 130 degrees. (Id.)
Plaintiff had full range of motion in her forearms and wrists. (Id.) Dr. Lorensen
observed Plaintiff had intact hand and finger dexterity and full grip strength. (Id.)
In a medical source statement Dr. Lorensen opined Plaintiff had “marked
restrictions for bending, lifting, and reaching.” (T. 244.) She further opined Plaintiff had
“moderate restrictions for pushing and pulling.” (Id.) Dr. Lorensen did not specifically
opine to Plaintiff’s ability to sit, stand, and/or walk. (Id.)
In formulating her RFC determination, the ALJ afforded Dr. Lorensen’s opinion
“significant weight.” (T. 27.) However, the ALJ rejected the doctor’s opinion that
Plaintiff had marked restrictions for reaching and moderate restrictions for pushing and
pulling. (Id.) The ALJ reasoned that such restrictions were “not consistent” with the
overall medical evidence, including Dr. Lorensen’s physical examination which revealed
full range of motion in the cervical spine, full strength in the upper and lower extremities,
no sensory deficits, no muscle atrophy, and intact hand and finger dexterity with full grip
Plaintiff argues the ALJ’s reasons for rejecting Dr. Lorensen’s limitations were not
fully supported by the evidence because the ALJ failed to recognize Dr. Lorensen’s
findings that Plaintiff had decreased range of motion in her lumbar spine and shoulders.
(Dkt. No. 10 at 7-8 [Pl.’s Mem. of Law].) Plaintiff also argues Dr. Lorensen’s limitations
were supported by other evidence pertaining to Plaintiff’s back impairment. (Id. at 8.)
Here, the ALJ’s determination to not adopt Dr. Lorensen’s opinion that Plaintiff
had moderate and marked limitations was proper and supported by substantial
evidence in the overall record. As an initial matter, an ALJ does not have to strictly
adhere to the entirety of one medical source’s opinion. See Matta v. Astrue, 508 F.
App’x 53, 56 (2d Cir. 2013.) Further, an RFC determination need not align with a
specific medical opinion, but may be based on the record as a whole. Monroe v.
Comm'r of Soc. Sec., No. 16-1042-CV, 2017 WL 213363, at *3 (2d Cir. Jan. 18, 2017).
First, the ALJ properly concluded that Dr. Lorensen’s marked restrictions in
reaching and moderate restrictions in pushing/pulling were not supported by the overall
record. Plaintiff did not allege any limitation in her ability to reach and no treating
source opined that Plaintiff was limited in her ability to reach. See Dumas v. Schweiker,
712 F.2d 1545, 1553 (2d Cir. 1983) (An ALJ “is entitled to rely not only on what the
record says, but also on what the record does not say.”). To be sure, the record did
contain complaints of neck pain. In a notation from 2011, Plaintiff reported neck and
shoulder pain that caused headaches, but noted no other limitations. (T. 345.) Plaintiff
reported at that time medication controlled her pain well. (Id.) Multiple treatment
records from July 2013 to December 2013 contained the identical notation that Plaintiff
complained of “chronic neck pain, minor compare[d] to her back.” (T. 309, 312, 315,
318, 321, 324, 327.) Despite notations of neck pain, overall, Plaintiff received medical
treatment primarily for her lumbar back pain and the majority of treatment notations
were silent regarding any complaints of neck/shoulder pain or upper extremity
limitations, or objective observations of the neck/shoulders or upper extremity
Second, the ALJ properly rejected Dr. Lorensen’s marked and moderate
limitations because they were not supported by Dr. Lorensen’s findings on examination.
(T. 27.) Plaintiff argues that evidence of an inability to walk on her heels, inability to
squat, and limited range of motion in her back supported Dr. Lorensen’s reaching
limitations. (Dkt. No. 10 at 7-8 [Pl.’s Mem. of Law].) However, as stated by Defendant,
it is not clear how these findings were consistent with marked limitations in reaching and
moderate limitations for pushing and pulling. (Dkt. No. 11 at 13 [Def.’s Mem. of Law].)
Despite limitations in her lumbar spine, the ALJ reasonably concluded that Dr.
Lorensen’s findings on examination, which revealed full range of motion in the cervical
spine, full strength in the upper and lower extremities, no sensory deficits, no muscle
atrophy, and intact hand and finger dexterity with full grip strength, did not support her
opinion that Plaintiff had marked and moderate limitations. See Medick v. Colvin, No.
5:16-CV-344, 2017 WL 886944, at *8 (N.D.N.Y. Mar. 6, 2017) (“although Dr. Lorensen's
examination revealed some limitations in plaintiff's movement of her lumbar spine as
well as four trigger points, it was reasonable for the ALJ to conclude that Dr. Lorensen's
opined marked and moderate-to-marked limitations [in lifting and reaching] were
inconsistent with the plaintiff's less severe symptoms and signs that she demonstrated
during the examination”). Because Dr. Lorensen’s moderate and marked limitations
were not supported by his examination nor the objective evidence in the record, the ALJ
did not err in rejecting these portions of Dr. Lorensen’s opinion.
Nurses Lalone and Pyatigorskaya
ALJs are not required to afford the same level of deference to the opinions of
“other sources,” including nurse practitioners, as they are to the opinions of “acceptable
medical sources” like physicians and psychologists. See 20 C.F.R. §§ 404.1502,
404.1513(a),(d); 416.913(a),(d) ; SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).
“[W]hile the ALJ is certainly free to consider the opinions of ... ‘other sources' in making
his overall assessment of a claimant's impairments and residual abilities, those opinions
do not demand the same deference as those of a treating physician.” Genier v. Astrue,
298 F. App’x. 105, 108 (2d Cir. 2008). Nonetheless, “other source” opinions are
important, and ALJs are required to evaluate them in some depth. SSR 06-03p, 2006
WL 2329939, at *3 (“Opinions from these [other] sources, who are not technically
deemed ‘acceptable medical sources' under our rules, ... should be evaluated on key
issues such as impairment severity and functional effects, along with the other relevant
evidence in the file.”); see Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983)
(stating opinion of nurse practitioner who treated claimant on regular basis entitled to
“some extra consideration”). In evaluating opinions of “other sources,” the ALJ should
use the same factors as are used to evaluate the opinions of “acceptable medical
sources.” SSR 06-03p, 2006 WL 2329939, at *4. These factors, as outlined herein,
include the length of the treatment relationship, the frequency of evaluation, the degree
to which the medical source provided evidentiary support for his or her opinions, the
opinions' consistency with the record as a whole, and any other relevant factors. Id.;
see 20 C.F.R. §§ 404.1527(c), 416.927(c); Evans v. Colvin, 649 F. App’x. 35, 38-39 (2d
On September 5, 2012, Nurse Lalone completed a medial source statement for
the New York State Office of Temporary and Disability Assistance. (T. 221-232.) Nurse
Lalone indicated that Plaintiff was first seen on April 4, 2012 with complaints of back
pain and although her exam was “entirely normal,” Plaintiff had pain on palpation of her
back. (T. 222.) She stated Plaintiff did not complete physical therapy, she had “good
results” from medication, her prognosis was good if she continued with physical therapy
and shoe inserts, and her depression was “well controlled.” (Id.) Nurse Lalone
indicated Plaintiff’s laboratory findings were normal and an X-ray indicated scoliosis. (T.
226.) Nurse Lalone stated Plaintiff was able to perform all activities of daily living
(“ADLs”) and drove a car. (T. 229.) Nurse Lalone did not complete the section of the
form regarding Plaintiff’s ability to perform specific work related physical activities. (T.
230-231.) She indicated that she could not provide a medical opinion regarding
Plaintiff’s ability to do work related activities. (T. 232.)
The ALJ gave “significant weight” to the “observations and comments” in Nurse
Lalone’s 2012 statement due to her “treatment relationship” with Plaintiff. (T. 27.)
Plaintiff argues the ALJ erred in affording Nurse Lalone’s statement significant weight
because Nurse Lalone was not a treating source and her comments were not consistent
with the evidence in the record or specific enough to be useful in assessing Plaintiff’s
functioning. (Dkt. No. 10 at 9-10 [Pl.’s Mem. of Law].)
To be sure, Nurse Lalone’s status as a “treating source” is questionable based
on the record. However, any error the ALJ may have made in affording Nurse Lalone’s
statements “significant weight” was harmless. As indicated by the ALJ, Nurse Lalone
declined to provide specific functional limitations. (T. 26.) Nurse Lalone essentially
stated that Plaintiff’s prognosis was good and her conditions, physical and mental, were
well controlled with medication. Her observations, which the ALJ afforded significant
weight, were supported by the overall record.
Indeed, the record indicated that Plaintiff’s pain was well controlled with
medication. Plaintiff reported to her physical therapist on June 22, 2012, that although
she felt her medication did not work very well, she currently did not have pain due to her
medication. (T. 201.) On June 25, 2012, Plaintiff reported to her physical therapist that
her pain level was 0/10 due to pain medication; however, she felt “overly relaxed” and
thought she was taking “too much” medication. (T. 202.) On June 25, 2013, Plaintiff
reported her pain was mostly controlled with medication. (T. 286.) In June of 2013,
Plaintiff reported improved activity with physical therapy. (T. 329.) In July, August,
September, October, November of 2013, Plaintiff reported that her pain medication
allowed her to maintain her activities and social life. (T. 312, 315, 318, 321, 324, 327.)
In November of 2013, Plaintiff’s dosage of pain medication was decreased. (T. 312313.) Therefore, Nurse Lalone’s 2012 statement was consistent with the overall record,
and any error the ALJ may have made in affording her observations “significant weight”
based on her perceived status as a treating provider, was harmless.
Plaintiff also received treatment at a pain management clinic in Potsdam, NY. (T.
308.) Nurse Pyatigorskaya provided Plaintiff’s primary care. Nurse Pyatigorskaya did
not complete a medical source statement; however, on October 3, 2013, she wrote on a
prescription note pad that Plaintiff had chronic back pain secondary to facet joint
disease and therefore “her tolerance for prolonged sitting [was] limited to 15-20
[minutes] and standing for 10-15 [minutes].” (T. 284.) Treatment notations dated
October 3, 2013, indicated that Plaintiff requested a medical excuse note because she
was required to attend a five hours class to receive public assistance benefits and she
could not tolerate the prolonged sitting. (T. 319.) This statement by Nurse
Pyatigorskaya is central to Plaintiff’s argument that the ALJ erred in assessing the
nurse’s opinion because the ALJ did not provide for a specific sit/stand option in her
RFC determination. Nurse Pyatigorskaya’s notations do not contain any other
functional limitations or opinions regarding Plaintiff’s ability to perform activities such as
walking, standing or sitting.
The ALJ afforded “reduced weight” to Nurse Pyatigorskaya’s “opinions.” (T. 27.)
The ALJ acknowledged that Nurse Pyatigorskaya was a treating non-acceptable
medical source, and reasoned her opinions were not fully consistent with the medical
evidence, her opinions were “not appropriate function-by-function assessments,” and
her opinions were not supported by an explanation. (Id.) The ALJ further stated that
Nurse Pyatigorskaya’s statement “may be consistent with sedentary work.” (Id.)
Plaintiff argues that although the ALJ provided “valid factors” in assessing Nurse
Pyatigorskaya’s opinion, it was “not permissible” for the ALJ to provide “inconsistent
rationale” for rejecting Nurse Pyatigorskaya’s opinion based on these factors and
accepting Nurse Lalone’s opinion. (Dkt. No. 10 at 11-12 [Pl.’s Mem. of Law].) Plaintiff’s
argument, although compelling, ultimately fails.
As stated herein, any error in affording “significant weight” to Nurse Lalone’s
observations was harmless because Nurse Lalone did not provide any functional
limitations in her statement, or any other remarks in her statement, that were more
restrictive than the ALJ’s ultimate RFC determination. Further, the ALJ did not rely on a
lack of functional limitations as indication that Plaintiff had none, indeed, the ALJ limited
Plaintiff to sedentary work. Nurse Lalone’s observations, that Plaintiff had “good
results” with medication and a normal examination with pain on palpation of back, was
consistent with other objective medical evidence in the record.
In assessing the opinion of Nurse Pyatigorskaya, the ALJ adhered to the
Regulations and SSR 06-03p. The ALJ acknowledged Nurse Pyatigorskaya was a
treating source, however, she was a non-acceptable medical source. The ALJ further
reasoned that her statement was not consistent with the medical evidence. (T. 27.)
Indeed, although Nurse Pyatigorskaya treated Plaintiff on a monthly basis, her
treatment notations did not document clinical findings beyond muscle spasms
throughout Plaintiff’s spine. (T. 309-347.) Nurse Pyatigorskaya indicated Plaintiff
responded well to physical therapy (T. 339, 341) and Plaintiff reported improved
physical activity with therapy (T. 329). The nurse consistently noted pain medication
allowed Plaintiff to maintain her social life and independence in activities of daily living.
(T. 312, 315, 318, 321, 324, 327.) Plaintiff reported that without her pain medication
she would not be able to sit more than fifteen minutes or stand long enough to do the
dishes. (T. 321.)
Plaintiff maintains that the ALJ’s assertion that Nurse Pyatigorskaya’s opinion
was inconsistent with the medical evidence was “not sufficient to save her findings” and
the ALJ failed to specifically indicate what evidence she was relying on in making this
determination. (Dkt. No. 10 at 12-13 [Pl.’s Mem. of Law].) Here, substantial evidence in
the record supported the ALJ’s determination to afford Nurse Pyatigorskaya’s October
opinion reduced weight and because the ALJ outlined such evidence in her
determination, the ALJ’s determination is upheld.
To be sure, the ALJ did not provide specific citation to the record in her
discussion of what weight she afforded Nurse Pyatigorskaya’s opinion. (T. 27.)
However, elsewhere in her decision the ALJ outlined specific pain clinic notations and
other objective medical evidence in the record which were inconsistent with the nurse’s
limitation. (T. 26); see Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per
curiam) (noting that 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”). Therefore, contrary to
Plaintiff’s assertion, the ALJ’s decision provided ample rationale to support her
determination that Nurse Pyatigorskaya’s opinion was inconsistent with medical
evidence in the record.
Overall, the ALJ did not err in affording reduced weight to Nurse Pyatigorskaya’s
October statement. Under the Regulations, Nurse Pyatigorskaya was a non-acceptable
medical source and as such the ALJ need not provide “good reason,” but only need
show that she had considered the nurse’s opinion according to the appropriate factors.
See Atkinson v. Comm’r Soc. Sec., 5:16-CV-0809, 2017 WL 1288723, at * 7 (April 6,
2017). Here, the ALJ’s decision outlined medical evidence in the record which
supported her determination to afford the nurse’s statement reduced weight. The
medical evidence in the record, as outlined in the ALJ’s determination and herein,
indicated that Plaintiff’s symptoms were well controlled with medication and improved
after physical therapy. The evidence further indicated that medication and physical
therapy allowed Plaintiff to perform her activities of daily living. Therefore, contrary to
Plaintiff’s assertion, because the ALJ did not err in her assessment of Nurse
Pyatigorskaya’s October statement, the ALJ’s did not err in omitting her specific
limitation in the RFC.
B. The ALJ’s Credibility Determination
A plaintiff’s allegations of pain and functional limitations are “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.”
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing Marcus v. Califano, 615 F.2d 23,
27 (2d Cir.1979)). “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 must employ a two-step analysis to evaluate the claimant's reported
symptoms. See 20 C.F.R. §§ 404.1529, 416.929. First, the ALJ must determine
whether, based on the objective medical evidence, a plaintiff’s medical impairments
“could reasonably be expected to produce the pain or other symptoms alleged.” 20
C.F.R. §§ 404.1529(a), 416.929(a). Second, if the medical evidence establishes the
existence of such impairments, the ALJ must evaluate the intensity, persistence, and
limiting effects of those symptoms to determine the extent to which the symptoms limit
the claimant's ability to do work. See id.
At this second step, the ALJ must consider: (1) the claimant's daily activities; (2)
the location, duration, frequency, and intensity of the claimant's pain or other symptoms;
(3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side
effects of any medication the claimant takes or has taken to relieve his pain or other
symptoms; (5) other treatment the claimant receives or has received to relieve his pain
or other symptoms; (6) any measures that the claimant takes or has taken to relieve his
pain or other symptoms; and (7) any other factors concerning claimant's functional
limitations and restrictions due to his pain or other symptoms. 20 C.F.R. §§
Here, the ALJ determined that Plaintiff’s medically determinable impairments
could reasonably be expected to cause her alleged symptoms; however, Plaintiff’s
statements concerning the intensity, persistence, and limiting effects of those symptoms
was not fully credible. (T. 26.) In making her determination, the ALJ noted that Plaintiff
received conservative treatment, such as pain medication and physical therapy. (Id.)
The ALJ further relied on treatment notations indicating Plaintiff’s condition was “stable”
on medication and on unremarkable EMG and nerve conduction studies. (Id.) The ALJ
also discussed Plaintiff’s activities of daily living, testimony, medication, and other
Plaintiff argues that the ALJ erred in her credibility determination because the
ALJ improperly relied on Plaintiff’s non-compliance with physical therapy, conservative
treatment, and notation that her condition was “stable.” (Dkt. No. 10 at 14-16 [Pl.’s
Mem. of Law].)
The ALJ’s credibility analysis was supported by substantial evidence in the
record. Here, the ALJ properly noted that Plaintiff’s complaints of disabling pain were
undermined by her conservative treatment regimen. See Perfield v. Colvin, 563 F.App’x
839, 840 (2d Cir. 2013) (finding that evidence of “conservative treatment” regimen
supported ALJ’s credibility determination). As outlined herein, the treatment notations
indicated Plaintiff’s pain responded well to medication and physical therapy.
In her discussion of Nurse Lalone’s statement, the ALJ noted that, according to
the nurse, Plaintiff did not complete physical therapy and was discharged as a result.
(T. 26.) Plaintiff argues that the ALJ should not have considered evidence of Plaintiff’s
non-compliance, because there was evidence Plaintiff ceased physical therapy due to
pain. (Dkt. No. 10 at 15 [Pl.’s Mem. of Law].) First, there is no indication from the ALJ’s
decision that she drew a negative inference from Plaintiff’s cessation of physical
therapy. (T. 26.) The ALJ appears to outline Nurse Lalone’s notations. (Id.) Second,
although Plaintiff did not complete her first session of physical therapy, Nurse
Pyatigorskaya referred her to a new therapist. (T. 346.) The ALJ noted that Plaintiff did
complete another session of physical therapy and was discharged because her
problems listed were solved and her goals obtained. (T. 26.) The ALJ did not
admonish Plaintiff for failure to comply with physical therapy. Here, in assessing
Plaintiff’s credibility, the ALJ properly outlined Plaintiff’s treatment, including her
unsuccessful and successful, sessions of physical therapy.
Further, the ALJ did not err in noting that Plaintiff’s condition was described as
“stable” by her providers. (T. 26.) To be sure, the term “stable” does not necessarily
equate with “good.” See Kohler v. Astrue, 546 F.3d 260, 268 (2d Cir. 2008) (citing, as
an example of the ALJ's “tendency to overlook or mischaracterize relevant evidence,”
the ALJ's consistent interpretation of “reports that [the plaintiff's] condition has been
‘stable’ to mean that [the plaintiff's] condition has been good, when the term could mean
only that her condition has not changed”).
Here, there is no indication that the ALJ mischaracterized the term stable. In
providing a summary of Plaintiff’s treatment, the ALJ accurately noted that Plaintiff’s
treating sources described her back condition as “stable” on her medication regimen.
(T. 26.) Treatment notations indicated that Plaintiff’s pain was well controlled with
medication and subsequent notations indicated Plaintiff was “stable” on her medication
regime. On November 8, 2012, Plaintiff reported that her pain medication controlled her
pain well. (T. 345.) Subsequent notations from 2012 and 2013 indicated Plaintiff was
“stable” on present medications. (T. 329, 331, 333, 3353, 337, 339, 341.) Although the
term “stable” could mean that a plaintiff’s symptoms were not getting better or worse,
when read in context here, it is apparent that Plaintiff’s symptoms of pain were
controlled with medication and such control remained “stable” during treatment.
For the reasons stated here, the ALJ’s credibility assessment was supported by
substantial evidence in the record and the ALJ did not commit legal error in making her
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and it is further
ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
August 14, 2017
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