LaValley v. Colvin

Filing 17

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for proceedings consistent with the Memorandum-Decision and Order. Signed by Chief Judge Gary L. Sharpe on 9/29/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ROXANNE LAVALLEY,

Plaintiff,

8:13-cv-319
(GLS)

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Mark A. Schneider
57 Court Street
Plattsburgh, NY 12901
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

MARK A. SCHNEIDER ESQ.

PETER W. JEWETT
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Roxanne LaValley 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.) After reviewing the
administrative record and carefully considering LaValley’s arguments, the
Commissioner’s decision is reversed and remanded.
II. Background
On February 1, 2011, LaValley filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since August 18, 2010.
(Tr.1 at 46, 128-32.) After her application was denied, (id. at 56-61),
LaValley requested a hearing before an Administrative Law Judge (ALJ),
which was held on April 3, 2012, (id. at 28-45, 65-66). On April 23, 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, 1027.)
LaValley commenced the present action by filing her complaint on
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)

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March 21, 2013 wherein she sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 7, 8.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 14, 15.)
III. Contentions
LaValley contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 14 at
11-39.) Specifically, LaValley claims that the ALJ failed to: (1) follow the
treating physician rule; (2) consider the combined effects of her arthritis,
pain, obesity, and depression; and (3) properly evaluate her credibility.
(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. 15 at 5-10.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt. No.
14 at 2-10; Dkt. No. 15 at 2.)
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.

Weighing Opinion Evidence
LaValley first argues that the ALJ erred in failing to give greater

weight to the opinions of her longtime treating physicians without clear and
convincing evidence. (Dkt. No. 14 at 11-20.) Specifically, LaValley claims
that the ALJ “baldly” dismissed the opinion of primary care physician Glen
Schroyer despite the fact that his opinion was supported by the results of
his examinations, the reports of other orthopedic experts, and the
radiological examinations. (Id. at 19.) Further, LaValley contends that the
ALJ relied on those portions of Dr. Schroyer’s clinical reports, except his
well-supported conclusions, in violation of the treating physician rule. ( Id.)
Finally, LaValley asserts that the ALJ erred in giving insufficient weight to
the findings and conclusions of consultative examiners Nader Wassef and
Brett Hartman, who concluded that LaValley suffered from obesity, knee
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pain, and back pain, as well as mental impairments. (Id. at 20.)
Controlling weight will be given to a treating source’s opinion on the
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.” 2 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. See 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)
(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

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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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insufficient to lead him to a conclusion of disability.” Id. (internal quotation
marks and citation omitted).
Here, in July and October 2010 treating orthopedist Howard Black
noted in his treatment records that LaValley would likely never return to a
job that requires prolonged walking or standing due to arthritis in her knees.
(Tr. at 254-56, 319-20, 323.) In September 2010, Dr. Black opined that
LaValley was “very limited” in her ability to walk and stand, and that these
limitations were expected to last for one to three months. (Id. at 319-20.)3
Dr. Black also excused LaValley from work for three months, from August
to November 2010. (Id. at 321, 323.) The ALJ gave “great weight” to Dr.
Black’s opinion that LaValley was limited from performing prolonged
standing or walking, but not limited in her ability to sit. (Id. at 20, 320.) On
the other hand, the ALJ gave “some weight” to the opinions of LaValley’s
primary care physician, Dr. Schroyer. (Id. at 21, 299-300, 316-17, 428-29.)
In July 2011 and December 2012, Dr. Schroyer opined that, due to arthritis

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Dr. Black’s assessment indicates that he was planning on treating LaValley with
Hyalgan injections and possibly a knee replacement. (Tr. at 319-20.) Dr. Black’s treatment
notes at this time also indicate that he gave LaValley an out of work note for two months “to
see how she does” with Hyalgan injections. (Id. at 255.) Thereafter, Dr. Black’s treatment
notes reflect that LaValley did not experience any significant relief from her knee injections.
(Id. at 254.) In February 2012, LaValley received a right total knee arthroplasty. (Id. at 41115.)

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in her knees, restless leg syndrome, sleep apnea, and back pain, LaValley
was “very limited” in her ability to walk, stand, sit, lift, carry, push, pull,
bend, and climb and was, therefore, unable to work even at the sedentary
level. (Id. at 299-300, 428-29.)
Notably, “an [ALJ] is free to resolve issues of credibility as to lay
testimony or to choose between properly submitted medical opinions.”
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). Indeed, it is for the ALJ
to resolve evidentiary conflicts. See Carroll v. Sec’y of Health & Human
Servs., 705 F.2d 638, 642 (2d Cir. 1983). However, “‘the ALJ cannot
arbitrarily substitute his own judgment for competent medical opinion.’”
Balsamo, 142 F.3d at 81 (quoting McBrayer v. Sec’y of Health and Human
Servs., 712 F.2d 795, 799 (2d Cir.1983)). In this case, in explaining his
residual functional capacity (RFC) determination 4 the ALJ stated that “[t]he
undersigned finds Dr. Black’s opinion consistent with [the] above [RFC,
t]herefore, the undersigned has accorded Dr. Black great weight in

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A claimant’s RFC “is the most [she] can still do despite [her] 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 LaValley retained the RFC to perform the full range of sedentary work.
(Tr. at 18.)

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assessing the claimant’s [RFC].” (Tr. at 20.) In affording only “some
weight” to the opinion of Dr. Schroyer, the ALJ explained that his opinion
was not supported by the findings in his treatment notes. (Id. at 21); see
20 C.F.R. § 404.1527(c)(3). The ALJ also explained that “it is not clear that
[Drs. Black and Schroyer] were familiar with the definition of ‘disability’
contained in the Social Security Act and regulations.” (Tr. at 22); see 20
C.F.R. § 404.1527(c)(6). Thus, the ALJ explained that it was “possible”
that Dr. Black was referring solely to LaValley’s inability to perform her past
work when he opined that she was “totally disabled” for three months,
which the ALJ concluded was consistent with his own conclusions. (Tr. at
22, 321-23.)
In addition to the opinions of Drs. Black and Schroyer, 5 the ALJ
discussed the minimal clinical findings throughout the record. ( Id. at 2022); see 20 C.F.R. § 404.1527(c)(4). Specifically, the ALJ noted that
consulting physician Wassef found that LaValley had a normal gait and
stance, needed no help getting on and off of the examination table, was
able to rise from a chair, had full range of motion of her knees and spine,

5

The court notes that the administrative record contains no other medical source
opinion as to LaValley’s functional capabilities with respect to the physical demands of work.

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and straight leg raising was negative. (Tr. at 20, 260-62.) 6 Further, the
ALJ noted that, in January 2012, LaValley visited the emergency room for
treatment of epigastric pain. (Id. at 21, 399-400, 402-03.) At this time,
there were no positive clinical findings with regard to LaValley’s back or
knees. (Id. at 402-03.) Thus, the ALJ concluded that the record failed to
reveal significant clinical and laboratory findings to support her claim of
disability. (Id. at 22.)
However, after the ALJ rendered his decision, LaValley submitted
additional records to the Appeals Council, including examination results
from February 2012 through May 2012 completed by treating physician
Honorio Dispo. (Id. at 2, 4, 418-25.) Dr. Dispo’s findings included palpable
pain and spasms at the lumbar spine, pain and swelling at the right knee,
impaired gait, slight weakness of the right quadriceps muscle, diminished
pinprick sensation at the posterior aspect of both legs, diminished bilateral

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Dr. Wassef also found that LaValley was unable to stand and walk on her toes, unable
to squat, was in discomfort on examination of her right knee, and had bilateral “1+ pitting
edema.” (Tr. at 259-60.) In addition to his physical examination, Dr. Wassef reviewed x-rays
of LaValley’s lumbrosacral spine, which revealed grade four spondylolisthesis of L5 on S1 with
evidence of bilateral spondylolysis, extensive hypertrpohy of the mid to lower lumbar facet
joints, and left greater than right sacroiliac joint osteoarthritis. (Id. at 261-62.)
Spondylolisthesis is the forward displacement of one vertebra over another, usually due to a
developmental defect. See Dorland’s Illustrated Medical Dictionary, 1563 (28th ed. 1994).
Spondylolysis is “dissolution of a vertebra.” Id. Dr. Wassef diagnosed LaValley with obesity,
sleep apnea, right knee pain and arthritis, and lower back pain, but failed to offer an opinion as
to the functional limitations caused by these impairments. (Tr. at 260.)

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ankle jerk, and positive right and left back spurling test. (Id. at 419-21.)
The Appeals Council did not discuss this new evidence and merely
concluded that the records submitted by LaValley “did not provide a basis
for changing the [ALJ’s] decision.” (Id. at 2.)
Given the vague nature of Dr. Black’s opinion, 7 and the overlooked
clinical findings of Dr. Dispo, although it is clear that the ALJ followed the
correct legal standard to be applied in analyzing Dr. Schroyer’s opinion, it is
not at all clear that the ALJ’s determination is supported by substantial
evidence. See 20 C.F.R. § 404.1527(c)(3)-(6); Perez, 77 F.3d at 45
(“When the Appeals Council denies review after considering new evidence,
[the court] simply review[s] the entire administrative record, which includes
the new evidence, and determine[s], as in every case, whether there is
substantial evidence to support the decision of the Secretary.”). Thus, the
court remands this case for further consideration of LaValley’s RFC.
Turning to her mental impairments, the ALJ gave “some weight” to
the opinion of Dr. Hartman that LaValley suffers major depressive disorder,
moderate, pain disorder associated with a general medical condition, and
7

Dr. Black’s opinions do not clearly indicate whether LaValley can perform the standing
and walking required by sedentary work. See SSR 83-10, 1983 WL 31251, at *5 (1983)
(defining sedentary work as that which requires no more than approximately two hours of
standing and walking out of an eight-hour workday).

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rule out learning disorder, which cause her mild attention problems and
moderate difficulty dealing with stress. (Tr. at 16, 269.) Dr. Hartman also
concluded that LaValley would likely have difficulty performing a variety of
tasks given her physical concerns. (Id. at 269.) In finding that LaValley’s
mental impairments are not severe under the regulations, however, the ALJ
noted that she did not allege any difficulty with mental functioning on a
report completed for the Social Security Administration, and, instead,
reported no problems paying attention, following spoken or written
instruction, and getting along with others. (Id. at 16, 157, 159.) Further, in
making his RFC determination, the ALJ noted that primary care physician
Schroyer opined that LaValley suffered no mental health limitations. ( Id. at
21, 300, 429.) The ALJ also observed that LaValley was able to cook,
clean, and care for her personal hygiene with difficulty due to her physical
health impairments, watched television, listened to the radio, visited with
friends, and used the computer for shopping and socializing. ( Id. at 19-20,
154, 156-57, 258.) Thus, the ALJ’s determination to afford only “some
weight” to Dr. Hartman’s opinion is legally sound and his conclusion that
her mental impairments cause no more than mild limitations of functioning
is supported by substantial evidence. (Id. at 16-17); see 20 C.F.R.
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§ 404.1527(c)(2), (4).
B.

Remaining Findings and Conclusions
Because LaValley’s remaining contentions, (Dkt. No. 14 at 20-39),

may be impacted by the subsequent proceedings directed by this Order, it
would be premature of the court to address them at this juncture.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Memorandum-Decision and Order; 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.
September 29, 2014
Albany, New York

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