Holman v. Astrue
OPINION AND ORDER re: 13 MOTION for Judgment on the Pleadings, filed by Michael J. Astrue. 10 MOTION for Judgment on the Pleadings and the Administration Record, filed by Rodney E. Holman. The Court has carefully reviewed the entire record and finds that the ALJs determination is free from legal error and supported by substantial evidence. Accordingly, the Commissioners motion for judgment on the pleadings is GRANTED, the Plaintiffs motion is DENIED, and the Complaint is dismissed in its entirety. The Clerk of Court is directed to terminate Docket Nos. 10 and 13, and to close the case. (Signed by Judge Jesse M. Furman on 3/11/2014) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RODNEY E. HOLMAN,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
12 Civ. 5817 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Plaintiff Rodney E. Holman brings this action pursuant to Section 205(g) of the Social
Security Act (the “Act”), 42 U.S.C. § 405(g), challenging a final decision of the Commissioner
of Social Security (the “Commissioner”) finding him ineligible for Social Security Disability
Insurance (“SSDI”) benefits. Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, the
parties cross-move for judgment on the pleadings. (Docket Nos. 10, 13). For the reasons stated
below, the Commissioner’s motion is GRANTED, and Holman’s motion is DENIED.
The following background is derived from the parties’ pleadings and the administrative
record. (Transcript of the Administrative Record (“Tr.”) (Docket No. 7)). This is the latest
chapter in a long dispute between Holman and the Commissioner. Plaintiff suffered an injury to
his lower back while moving heavy boxes during his employment as a school custodian in June
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she is substituted as
Defendant. The Clerk of Court is directed to modify the caption accordingly.
2001 and, since then, has not worked. (Tr. 1177). He has regularly visited several physicians to
manage the injury and related conditions. (Mem. Law Supp. Comm’r’s Mot. J. Plead. (“Def.’s
Mem. Law”) (Docket No. 14) 4-13).
Plaintiff first applied for SSDI benefits in January 2002. (Tr. 45). Following a hearing in
March 2004, an ALJ denied Holman’s application. (Id. at 42-51). Plaintiff subsequently
pursued an administrative appeal, but the Agency’s Appeals Council declined to consider his
request in June 2004. (Id. at 36-38). Plaintiff filed a new SSDI application on December 7,
2004, and again requested a hearing after the Commissioner denied his request. That second
hearing was held on March 28, 2006, and three days later, on March 31, 2006, an ALJ again
ruled that Holman was not disabled. (Id. at 740-51). Relying on the varied opinions of
Plaintiff’s doctors from 2001 to 2006, the ALJ concluded that the evidence confirmed Holman’s
injury, but that he was not disabled to the degree that he alleged. (Id. at 745-50). The Appeals
Council declined to consider his request for review in May 2006. (Id. at 28).
The present appeal concerns Plaintiff’s third application for SSDI benefits, initially filed
in August 2006 and claiming an initial date of disability of April 1, 2006, one day after the
previous proceedings had concluded. (Id. at 18). ALJ Katherine Edgell conducted a hearing by
videoconference on November 9, 2007. (Id. at 15-27). In her opinion of November 28, 2007,
the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to “perform
the full range of sedentary work” because she found that he could continue to lift up to ten
pounds, stand or walk for up to two hours each day, and sit for up to six hours each day. (Id. at
24, 27). That finding relied primarily on the opinions of Dr. Steven Rocker — who, after a
consultative examination in September 2006, concluded that Plaintiff had a “[m]oderate
limitation for lifting and carrying” (id. at 24, 906-09) — and Dr. Michael Miller — who, after
completing an independent orthopedic examination in October 2007, concluded that Plaintiff was
“capable of working in a full time capacity [with a] lifting restriction.” (Id. at 994-96). The ALJ
accorded less weight to the opinion of Dr. Prem Gupta, one of Plaintiff’s principal treating
physicians. In a medical-source statement from August 2007 that Dr. Gupta completed at the
ALJ’s request, he indicated that Plaintiff could stand and walk for no more than two hours daily,
sit for no more than four hours daily, and required the use of a cane to ambulate. (Id. at 968). In
the course of denying Holman’s claim, the ALJ stated that Dr. Gupta’s opinion was
“[un]supported by objective medical evidence.” (Id. at 26).
The Appeals Council denied Plaintiff’s request for review of the ruling on June 16, 2009
(id. at 10-13), and Plaintiff filed a civil action in this court. (Id. at 1075a-c). Prior to a hearing,
the Commissioner and Plaintiff stipulated and agreed to remand the case for further
administrative proceedings, and the Honorable Deborah A. Batts, to whom the earlier case was
assigned, issued an order to that effect. (Id.). The Appeals Council further remanded the case
with directions, noting several errors in the ALJ’s decision. (Id. at 1078-82). Most important,
the ALJ had accorded greater weight to the “vague assessments by consultative physicians” (Drs.
Rocker and Miller) than to the “specific assessments of the claimants [sic] treating physicians,”
Dr. Gupta and Dr. Alan Greenbaum. (Id. at 1073-74). The Appeals Council noted that Drs.
Gupta and Greenbaum’s assessments of Plaintiff’s lifting and mobility restrictions were
inconsistent with the performance of sedentary work. (Id. at 1073). The Appeals Council
rejected the ALJ’s determination that Dr. Gupta’s opinion was unsupported by objective medical
evidence, noting that his examination of Plaintiff indicated bulging spinal discs and difficulty
walking and performing certain postural movements. (Id. at 1074). Furthermore, the Appeals
Council noted that Plaintiff’s doctors had diagnosed several non-exertional limitations, such as
the inability to stoop. (Id.) Finally, the Appeals Council stated that Holman’s combination of
exertional and non-exertional limitations necessitated the testimony of a vocational expert, per
Social Security Ruling 83-14. (Id.). Thus, the Appeals Council directed the ALJ to update the
record with additional medical evidence, obtain the testimony of a vocational expert, and
“reassess the medical opinions of [the] treating physicians . . . and indicate weight accorded these
opinions.” (Id. at 1074-75).
On remand, the ALJ conducted a new hearing by videoconference in November 2011.
(Id. at 1171-1214). Plaintiff described his multiple medications and medical devices, his daily
activities — limited primarily to sedentary activities such as watching television, light chores
around the house, and the occasional walk to the mailbox — as well as his periodic headaches
and depressed mood. (Id. at 1178-85). A vocational expert testified that a person who could lift
a maximum of ten pounds occasionally, sit for a maximum of eight hours, stand for a maximum
of two hours, walk for a maximum of one hour, had certain other postural limitations, and was
limited to simple, low contact work could obtain the jobs of surveillance system monitor,
addresser, and jewel stringer. (Id. at 1197-99). By contrast, the vocational expert testified that a
person limited to sitting for four hours each day, standing for one hour, and walking for one hour
would be unemployable. (Id. at 1199).
On May 4, 2012, ALJ Edgell issued a new opinion, again determining that Holman was
not disabled for purposes of the Act. (Id. at 1036-48). In so finding, the ALJ concluded that
Plaintiff retained the ability to meet the minimal requirements for walking, sitting, standing, and
lifting outlined by the vocational expert. (Id. at 1043). The ALJ noted that Dr. Greenbaum’s
more restrictive assessments of Plaintiff’s ability to lift and walk were “not consistent with the
minimal objective findings; such as a lack of muscle atrophy and no diagnostic evidence of any
radiculopathy.” (Id.). Further, the ALJ noted that Dr. Gupta’s medical records indicated that
“the claimant’s medical condition [had not] progressed or worsened to any degree” since he had
filed his third SSDI application. (Id. at 1044). The ALJ further observed that “[Dr.] Gupta’s
relevant treatment records during this time period mention no significant clinical findings other
than lumbosacral spine tenderness and pain upon lumbar range of motion.” (Id.). Although Dr.
Gupta had opined that Plaintiff could not satisfy the minimum requirements for walking or
sitting, the ALJ concluded that “the doctor’s impressions concerning the claimant’s exertional
capacity do not merit controlling weight” because they were not supported by “ample objective
medical evidence.” (Id. at 1045). The ALJ’s second opinion did not explicitly refer to or
evaluate the vocational expert’s testimony. (Compare id. at 27, with id. at 1047). Instead, the
ALJ noted that Social Security Ruling 96-9p indicates that people with postural limitations
similar to Plaintiff’s often can perform sedentary work. (Id. at 1047). Because Plaintiff retained
the RFC for sedentary work, the ALJ again ruled against him. (Id. at 1048). Plaintiff declined
the opportunity to request review by the Appeals Council and instead filed this action. (Tr.
1033-48; see Compl. (Docket No. 1)).
The law governing the determination of eligibility for SSDI is well settled. A “disability”
is defined as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which . . . has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The
Commissioner uses a five-step, sequential inquiry to determine whether an applicant has such a
disability. 20 C.F.R. § 404.1520(a). The inquiry considers whether the applicant (i) is “doing
substantial gainful activity”; (ii) has a “severe medically determinable physical or mental
impairment . . . or a combination of impairments” lasting longer than a year; (iii) has an
“impairment(s) that meets or equals one of [the] listings in appendix 1 of [§ 404.1520]”; (iv) is
still able to “do . . . past relevant work” depending on an “assessment of [the applicant’s] residual
functional capacity . . . and past relevant work”; and (v) whether the applicant can “make an
adjustment to other work” depending on an “assessment of [the applicant’s] residual functional
capacity . . . , age, education, and work experience.” 20 C.F.R. § 404.1520(a)(4).
A court may set aside a final decision by the Commissioner only if it is not supported by
“substantial evidence” or if it is based on legal error. Zabala v. Astrue, 595 F.3d 402, 408 (2d
Cir. 2010); accord Shaw v. Chater, 221 F.3d 126, 131-32 (2d Cir. 2000). “Substantial evidence
‘is more than a mere scintilla’ and ‘means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The ALJ must apply certain
principles when weighing the evidence, including the “treating physician rule.” See 20 C.F.R.
§ 404.1527(c)(2) (“If we find that a treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight.”). Failing to abide by an Appeals Council remand
order is also grounds for a court to remand the case. See 20 C.F.R. § 404.977(b) (“The
administrative law judge shall take any action that is ordered by the Appeals Council and may
take any additional action that is not inconsistent with the Appeals Council’s remand order.”);
see also, e.g., Mann v. Chater, No. 95 Civ. 2997 (SS), 1997 WL 363592, at *3 (S.D.N.Y. June
30, 1997) (Sotomayor, J.).
In this case, there is no dispute concerning the ALJ’s analysis in the first three steps of
the required inquiry. She noted that Plaintiff had not worked since his injury, satisfying step one.
(Id. at 1042). Next, the ALJ concluded that Holman had “severe impairments” including “mild
degenerative disc disease and annular bulges of the lumbosacral spine; status-post lumbar
sprain/strain; and a learning disorder.” (Id.). And at step three, the ALJ concluded that none of
those impairments qualified as a listed impairment, which would automatically qualify Plaintiff
for SSDI. (Id.). Plaintiff contends, however, that the Commissioner erred at step four by
improperly assessing him with a greater RFC than his exertional and non-exertional impairments
warranted. Plaintiff argues that his RFC is less than that required even for sedentary work,
relying on the assessments of two of his treating physicians. (Pl.’s Mem. Law Supp. Mot. J.
Admin. R. Plead. (“Pl.’s Mem. Law”) (Docket No. 11) 7-8).
More specifically, Plaintiff’s principal contention concerns the ALJ’s application of the
treating physician rule. He argues that the ALJ erroneously, and in violation of the Appeals
Council’s remand order, concluded that the opinions of his treating physicians were unsupported
by “ample” objective evidence. (Pl.’s Mem. Law at 8). Further, Plaintiff argues that the ALJ
erred by according weight to Dr. Rocker’s opinion, despite the treating physician rule and the
Appeals Council’s order that “vague statements” by consulting physicians could not outweigh
the views of treating physicians. (Id. at 9). Finally, Plaintiff contends that the ALJ “must
consider various factors to determine exactly how much weight to give the [treating physician’s]
opinion.” (Id. (citing 20 C.F.R. § 404.1527(d)(2)). In response, the Commissioner contends that
the ALJ properly considered the views of the treating physicians and “weighed all the opinions
of record and reconciled the differences between them — giving weight to a portion of the
assessments of plaintiff’s treating physicians.” (Def.’s Mem. Law at 3). Defendant further notes
that the ALJ “also properly observed that Dr. Gupta’s opinion was contradicted by other
evidence of record, and that the objective medical evidence in the record as a whole did not
support some portions of Dr. Gupta’s opinion.” (Id.).
Although the issue is a close one, the Court concludes that the Commissioner has the
better of the argument. The treating physician rule guides the Commissioner’s consideration of
medical evidence concerning an SSDI applicant’s health status. Under the rule, the “opinion of a
claimant’s treating physician as to the nature and severity of the impairment is given ‘controlling
weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R.
§ 404.1527(d)(2)) (alteration in original). But when there are “genuine conflicts” between the
treating physician’s issued opinions and that of other medical experts, then the Commissioner
may properly resolve the conflict. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); see also
Burgess, 537 F.3d at 128; Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam).
Contrary medical opinions offered by non-examining physicians or comprising only vague
conclusions do not suffice to upset the controlling authority of a treating physician’s opinion.
Burgess, 537 F.3d 117, 128-29. If the Commissioner does not accord controlling weight to the
treating physician, he or she must consider several factors in deciding what weight to grant the
treating physician’s opinion. See 20 C.F.R. § 404.1527(d)(2)-(5) (including “the length of the
treatment relationship,” “laboratory findings,” and the specialty of the doctor, among others).
The Commissioner will use evidence provided by a treating physician to evaluate a claimant’s
medical impairments and RFC at steps two through four of the sequential inquiry; however, the
Commissioner retains the discretion to make final determinations concerning a claimant’s RFC,
whether a claimant’s condition equals a listed condition, and how to apply vocational factors.
See 20 C.F.R. § 404.1527(d)(2).
In light of the standard of review and the case law elaborating the treating physician rule,
the Court concludes that the ALJ did not err in determining that Plaintiff had the RFC to engage
in sedentary work. The ALJ credited Plaintiff’s testimony and the medical evidence to the extent
that she determined, in steps one through four above, that Plaintiff was incapable of resuming his
prior job and that his RFC had declined. Furthermore, the Court cannot say on this record that
the evidence compelled the ALJ to find an RFC lower than that required for sedentary work.
Although Plaintiff is correct that the ALJ could have pointed to some elements of particular
diagnoses of Drs. Gupta and Greenbaum to find an RFC inconsistent with sedentary work, both
doctors also offered contrary opinions. For example, Dr. Gupta opined that Holman was not
totally incapable of stooping. (Tr. 970, 1045). In addition, Dr. Greenbaum indicated that
Plaintiff could sit for a maximum of eight hours. (Id. at 928, 1045) Given the lack of clarity
from the treating physicians, the ALJ appropriately “accord[ed] greater probative weight to the
opinion of Dr. Rocker, with lesser and only partial credence given to those of treating sources
Greenbaum and Gupta.” (Id. at 1046).
Moreover, the ALJ did comply with the Appeals Council order. As noted above, the
order directed the ALJ to explain the weight given to the opinions of Drs. Gupta and Greenbaum.
(Id. at 1075). Effectively, the order directed the ALJ to explain how she had applied the treating
physician rule. The ALJ did so in her second decision by “attempt[ing] to reconcile the opinions
of the various treating and examining sources.” (Id. at 1045; see also Def.’s Mem. Law Supp.
Mot. J. Admin. R. Plead. (“Def.’s Mem. Law”) (Docket No. 14) 18-19). The ALJ referred to the
paucity of objective clinical data supporting the most restrictive diagnosis, as well as the
inconsistency between such a diagnosis and Plaintiff’s daily activities. (Tr. 1045). Specifically,
she observed that Dr. Gupta only “reported that although slightly stiff, the claimant’s gait was
essentially unremarkable. While he reported some tenderness and limitation of lumbar range of
motion, findings of neurologic compromise are not present. Moreover, diagnostic and findings
[sic] do not show any spinal stenosis, nerve root compromise, subluxation, or radiculopathy.”
(Id.). The ALJ also made certain findings favorable to Plaintiff, such as discounting the opinion
of Dr. Miller as insufficiently supported. (Id. at 1046). Based on the foregoing, the Court
concludes that the ALJ complied with the treating physician rule and complied with the Appeals
The Court has carefully considered the other arguments raised by Plaintiff in his
memoranda of law and finds them to be without merit. First, Plaintiff contends that the ALJ
improperly evaluated his testimony concerning his pain. (See Pl.’s Mem. Law 10-14; Pl.’s Mem.
Law Opp’n Def.’s Mot. (“Pl.’s Mem. Law Opp’n”) (Docket No. 16) 4-5; Pl.’s Reply. Mem. Law
Opp’n Def.’s Mot. (“Pl.’s Reply Mem. Law”) (Docket No. 19) 4-6). Specifically, Plaintiff
asserts that the ALJ improperly weighed his testimony by finding it “not credible through the use
of negative inferences” drawn from the medical record, rather than “employing positive medical
evidence to support her position.” (Pl.’s Mem. Law 10-12). Plaintiff also insists that the ALJ
did not “make findings regarding [his] statements or describe the factors [used to evaluate a
claimant’s credibility] set forth” in 20 C.F.R. § 404.1529(c)(3)(i-vii), and thus failed to properly
evaluate his credibility. (Pl.’s Reply Mem. Law at 5-6). The ALJ, however, could and did point
to negative clinical findings that undermined Plaintiff’s subjective claims. (Tr. at 1044 (noting
the lack of “significant medical findings” in Dr. Gupta’s treatment records and MRIs that
indicated only “normal or marginal clinical orthopedic findings.”)). In addition, the law does not
require an ALJ to consider every credibility factor enumerated by 20 C.F.R. § 404.1529(c)(3),
and the ALJ here considered a sufficient number of them. See, e.g., Pellam v. Astrue, 508 F.
App’x 87, 91 (2d Cir. 2013) (summary order) (“The ALJ did not apply an incorrect legal
standard when judging the credibility of [claimant’s] testimony. Although the ALJ did not
explicitly discuss all of the relevant factors, [claimant] has failed to point to any authority
requiring him to do so.”).
Next, Plaintiff contends that the ALJ’s assessment of Plaintiff’s RFC was “fatally
flawed” on the ground that she failed to provide a “function-by-function” evaluation of
Plaintiff’s capabilities and failed to consider certain of Plaintiff’s medical devices, such as a cane
and a TENS unit (a device used to transcutaneously stimulate the nerves to provide pain relief).
(Pl.’s Mem. Law 14-16). Plaintiff relies on Social Security Ruling 96-9p, 1996 WL 374185,
which concerns “implications of a residual functional capacity for less than a full range of
sedentary work.” But that ruling indicates that “an individual who uses a medically required
hand-held assistive device in one hand [e.g. a cane] may still have the ability to perform the
minimal lifting and carrying requirements of many sedentary unskilled occupations with the
other hand.” Id. at *7. Furthermore, the ALJ made the required function-by-function
assessment: The ALJ weighed the medical evidence and assessed the Plaintiff’s capacity to
lift/carry, stand/walk, sit, stoop, crouch, crawl, and climb, as well as his manual dexterity. (Tr.
1043). And while Plaintiff notes that the ALJ did not assess his ability to push or pull (Pl.’s
Mem. Law 16), nothing suggests that the jobs identified as within Plaintiff’s capabilities require
Finally, Plaintiff alleges that the ALJ relied exclusively on the medical vocational grids,
rather than the testimony of the vocational expert. (Id. at 17-23). Plaintiff correctly observes
that “other than to note that a [vocational expert] testified at the hearing, the ALJ makes no
further mention of the [vocational expert] throughout her decision.” (Id. at 19). It does not
follow, however, that it is “as if there was no [vocational expert] testimony at all” or that the ALJ
erred. (Id.). To be sure, it would have been preferable for the ALJ to discuss and rely expressly
on the vocational expert’s testimony. But such discussion is not required as a matter of law. Cf.
Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (holding that
the ALJ was not required to state expressly in the decision the reasons for accepting the
vocational expert’s challenged testimony); Redmond v. Astrue, 7:07-CV-0494 (LEK/VEB), 2009
WL 2383026, at *13 (N.D.N.Y. July 30, 2009) (stating that “even though the ALJ did not
principally rely upon the expert's conclusions in her decision” the fact that “a vocational expert
was consulted in this case” was sufficient). Further, in the final analysis, the vocational expert’s
testimony is in the record and supports the ALJ’s conclusion, insofar as the vocational expert
testified that there were jobs available to someone with the Plaintiff’s RFC. 2
The Court notes that the ALJ did erroneously rely on certain factors in evaluating
Plaintiff’s claim. For example, to support the conclusion that Plaintiff’s condition was not as
severe as some opinions indicated, the ALJ noted that the “medical evidence also reflects that
solely conservative treatment was undertaken . . . . The claimant was not hospitalized at any
time . . . . [And the claimant’s prescriptions] were generally effective, with no significant
adverse side effects reported.” (Tr. 1044-45). In doing so, the ALJ not only elided evidence that
Plaintiff was prescribed a veritable cocktail of drugs (id. at 797, 1181), but also drew an
improper inference from the allegedly “conservative” treatment regime, as “the opinion of the
treating physician [is not] to be discounted merely because he has recommended a conservative
treatment regimen.” Burgess, 537 F.3d 117 at 129; see also Shaw, 221 F.3d at 134-35.
Additionally, in evaluating the credibility of Plaintiff’s assertions of pain, the ALJ noted that his
“reported activities of daily living show that he remained quite functional through the date last
insured . . . showering, grooming, and dressing [himself] . . . perform[ing] some household
chores . . . [caring] for his children, attend[ing] their school-related activities and attend[ing]
church services.” (Tr. 1045). It is well established, however, that “‘a claimant need not be an
invalid to be found disabled’ under the Social Security Act.” Balsamo v. Chater, 142 F.3d 75, 81
(2d Cir. 1997). These errors — even taken together — do not call for a different result.
The Court has carefully reviewed the entire record and finds that the ALJ’s determination
is free from legal error and supported by substantial evidence. Accordingly, the Commissioner’s
motion for judgment on the pleadings is GRANTED, the Plaintiff’s motion is DENIED, and the
Complaint is dismissed in its entirety. The Clerk of Court is directed to terminate Docket Nos.
10 and 13, and to close the case.
Dated: March 11, 2014
New York, New York
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