Alves v. Colvin
Filing
29
OPINION & ORDER #104808 re: 26 MOTION for Judgment on the Pleadings, filed by Jose L. Alves, 18 MOTION for Judgment on the Pleadings, filed by Carolyn W. Colvin.... For the reasons discussed above, the Commissioner's determination t hat the Plaintiff was not disabled within the meaning of the Social Security Act during the period from April 4, 2008, through March 23, 2012, is supported by substantial evidence. Accordingly, the Defense's cross-motion for judgment is GRANTED, and the Plaintiff's motion for judgment on the pleadings is DENIED. SO ORDERED. (Signed by Judge Robert P. Patterson on 9/24/2014) Copies Sent By Chambers. (ja) Modified on 9/29/2014 (ca).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
JOSE L. ALVES,
Plaintiff,
13-CV-3898 (RPP)
-againstOPINION & ORDER
CAROLYN COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
-------------------------------------------------------------X
ROBERT P. PATTERSON, JR., U.S.D.J.
The Plaintiff Jose L. Alves (the “Plaintiff” or “Alves”), represented by counsel, brought
this action pursuant to § 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g),
challenging the final decision of the Commissioner of Social Security (the “Commissioner” or the
“Defendant”) denying him Disability Insurance Benefits. (Compl., ECF No 1.) Presently before
the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). (Mem. of Law in Supp. of Def.’s Mot. for J. on the Pleadings (“Def.’s
Mot.”), ECF No. 19; Mem. of Law in Supp. of Pl.’s Mot. for J. on the Pleadings (“Pl.’s Mot.”),
ECF No. 27; Def.’s Reply Mem. in Opp’n to Pl.’s Cross-mot. for J. on the Pleadings and in Further
Supp. of Def.’s Mot. for J. on the Pleadings (“Def.’s Reply”), ECF No. 28.)
For the reasons set forth below, the Commissioner’s motion for judgment on the pleadings
is GRANTED and Alves’ motion is DENIED.
1
I.
FACTS
A. Procedural Background
On November 10, 2010, Alves filed for Disability Insurance Benefits, alleging onset of
disability on April 4, 2008. (Admin. and Supplemental Rec. Filed by the Comm’r (“R.”) at 10708, ECF No. 4.) Alves’ application was denied on January 4, 2011, because although he had a
back problem, he was found to be able to perform light work. (R. at 49-53.) Alves requested a
hearing before an Administrative Law Judge (“ALJ”) to review Alves’ disability case. (R. at 6162.) On March 21, 2012, Alves appeared with counsel before ALJ Harold Glanville. (R. at 2846.) On March 23, 2012, ALJ Glanville issued a decision finding that Alves could find suitable
work in the national economy, and therefore, was not disabled under the Act. (R. at 14-24.) On
May 24, 2012, Alves requested review by the Appeals Council. (R. at 7.) On April 11, 2013, the
Appeals Council denied Alves’ request for review, rendering the ALJ’s decision the final decision
of the Commissioner. (R. at 1-6.) This action followed.
B. Non-Medical Evidence Before the Administrative Law Judge
Born in 1975, Jose Alves was thirty-six years old at the time of the ALJ’s decision. (R. at
128.) He speaks and writes little English; Alves attended school through the eighth grade in
Portugal and never graduated high school. (R. at 35.) He worked in construction until April 2008,
when he injured his back at work by lifting and shoveling gravel, dirt, and sand. (R. at 34, 132,
155.) His job required him to stand and walk eight hours a day and lift up to one hundred pounds.
(R. at 133, 156.) The vocational expert testified that Alves’ past relevant work was considered
heavy, semi-skilled work.1 (R. at 37.)
1
Heavy work involves lifting no more than one hundred pounds at a time, with frequent lifting and carrying of
objects weighing up to fifty pounds. 20 C.F.R. § 404.1567(d).
2
After his back injury, Alves lived in a house with his family. (R. at 145.) He would walk
for an hour in the morning and in the afternoon, resting every thirty minutes, shop once a week,
and read books and watch television daily. (R. at 145, 148-49, 150.) He reported to the Social
Security Administration that he could care for his personal needs, but could not drive for longer
than twenty minutes, carry heavy items, do house and yard work, or lift his daughter because of
back pain. (R. at 146-48.) In the same report, Alves stated that he could not lift more than five
pounds, stand more than fifteen to twenty minutes, walk more than thirty minutes without a ten to
fifteen minute break, sit more than ten minutes at a time, kneel, or squat without experiencing pain.
(R. at 150-51, 153.) He also had some difficulties climbing stairs. (R. at 150.) Alves took Advil
and Zanaflex, a muscle relaxant, three times a day, and Nabumetone as needed for his pain; they
temporarily relieved pain for an hour or two, but made him drowsy. (R. at 33, 153.)
C. Medical Evidence Before the Administrative Law Judge
Alves injured his back at work in April 2008. (R. at 34, 132, 155.) Between April, 2008
and September, 2009, Alves visited several physicians to treat his back injury. Drs. Richard Peress
of Orthopaedic Spine Surgery (“Dr. Peress”), David Wellin of Industrial Medicine Associates, PC
(“Dr. Wellin”), and Jerome Moga of Riverfront Medical, PC (“Dr. Moga”) recommended lumbar
discectomy surgery. (R. at 194, 198, 200, 202, 276, 279, 287, 291, 296, 298.)
On October 29, 2009, Dr. Peress performed a microdiscectomy.
(R. at 310-11.)
Afterwards, Alves continued to visit physicians for evaluations. Dr. Peress and Dr. Barry Krosser
of Mount Kisco Medical Group (“Dr. Krosser”) recommended decompression and spinal lumbar
fusion surgery. (R. at 228, 231, 306-07.) Dr. Suraj Malhotra of North Disability Services (“Dr.
Malhotra”) opined that the Plaintiff had a bending limitation, (R. at 213), for which Dr. Wellin and
3
Dr. Christopher Cassels (“Dr. Cassels”) of Industrial Medicine Associates prescribed physical
therapy. (R. at 204, 236-37.)
i. Medical Records Before the Surgery of October 29, 2009
On April 7, 2008, Alves arrived at the Phelps Memorial Hospital Center complaining of
left buttock pain, radiating to his left leg. (R. at 179.) An MRI of his lower back revealed
degenerative disc disease with a large central, left-sided, herniated disc fragment. (R. at 181.)
Alves followed up with Dr. Peress on April 8, 2008. (R. at 274-76.) On examination, Dr.
Peress found that Alves had back pain, severe restriction on his range of motion, and a limp. (R.
at 274.) Dr. Peress diagnosed an acute disc herniation, lumbar compressive neuropathy, and
disarrangement of the lumbar spine. (R. at 276.) In a Workers’ Compensation narrative report,
Dr. Peress indicated that as of April 7, 2008, Alves had a temporary total disability caused by the
injury he sustained on the job. (R. at 276.)
At a follow-up appointment with Dr. Peress on April 15, 2008, Alves still limped, but could
rise from a chair without difficulty. (R. at 278.) He reported that his back pain was somewhat
better, though he still had extremely sharp and shooting leg pain. (R. at 278.) A physical
examination continued to show diminished range of motion in his lumbar spine. (R. at 279.) Dr.
Peress recommended epidural steroid injections. (R. at 279.)
On July 14, 2008, Dr. Wellin performed an independent medical examination at the request
of Alves’ Workers’ Compensation insurance. (R. at 193-194.) Dr. Wellin concluded that Alves
had a partial disability under the disability standards of the New York State Workers’
Compensation Board. (R. at 194.) Dr. Wellin diagnosed Alves with a lower back strain with a
herniated disc superimposed on preexisting degenerative disc disease and presumed preexisting
disc herniation. (R. at 194.) Alves’ range of motion was limited in all directions. (R. at 194.) Dr.
4
Wellin recommended lumbar epidural steroid injections and concluded that surgery would also be
recommended if symptoms worsened or continued. (R. at 194.)
On October 21, 2008, Alves returned to Dr. Peress, who examined the Plaintiff, stating in
a Workers’ Compensation narrative report that the Plaintiff had attained maximum improvement
from the epidural steroid injunctions. (R. at 19, 291.) Alves did not have a limp, but he
experienced bending restrictions. (R. at 19, 291.) Dr. Peress concluded that Alves had a temporary
total disability as a result of his back injury, and could not perform any kind of lifting, bending,
climbing, or prolonged sitting for greater than fifteen minutes at a time. (R. at 291.) Dr. Peress
requested authorization from the New York State Workers’ Compensation Board for artificial disc
replacement with an anterior lumbar discectomy. (R. at 291.)
Dr. Wellin re-examined Alves on January 5, 2009. (R. at 196-97.) He opined that Alves
had a partial disability under the standards of the New York State Workers’ Compensation Board.
(R. at 198.) Alves reported no further treatment for his back after June 2008. (R. at 196.) His
symptoms had continued unabated, and he relayed that his treating physician, Dr. Peress, had
requested authorization for artificial disc replacement. (R. at 196.) On examination, Alves walked
with a mild limp although he could heel-and-toe walk and squat. (R. at 197.) Dr. Wellin suggested
a discectomy, since Alves’ symptoms had not responded to non-operative treatment. (R. at 198.)
On March 17, 2009, Alves was examined by orthopedist Dr. Moga who diagnosed him
with lumbar herniated disc syndrome and concluded that Alves had a partial disability under the
disability standards of the New York State Workers’ Compensation Board. (R. at 200.) Alves
stated that he required several hours of rest during the day. (R. at 199.) He took neurological
agent Lyrica twice a day, anti-inflammatory Arthrotec three times a day, and Tylenol occasionally.
(R. at 199.) Dr. Moga stated that Alves was not able to return to construction. (R. at 200.)
5
At a June 1, 2009, follow-up visit with Dr. Peress, Alves reported experiencing mechanical
instability, and varying degrees of radicular pain, muscle weakness, cramping, and numbness in
the left leg. (R. at 298.) On examination, Alves limped and had abnormal posture, appearing very
uncomfortable climbing onto the examination table. (R. at 298.) His ability to bend was
unchanged from prior visits, but his extension was accompanied by pain in the lower back. (R. at
298.)
Alves was not interested in artificial disc replacement, but wanted to proceed with
microdiscectomy.
(R. at 298.)
However, Dr. Peress opined that microdiscectomy with
decompression would not successfully resolve Alves’ symptoms, and recommended lumbar spine
fusion. (R. at 298.)
Alves drove himself to a follow-up visit with Dr. Peress on August 11, 2009. (R. at 250.)
Dr. Peress maintained his recommendation for lumbar spine fusion. (R. at 250.) Alves reported
that he could sit for twenty minutes, and had difficulty getting up. (R. at 250.) Dr. Peress found
that Alves’ motor function was normal and he walked without assistive devices. (R. at 250).
Alves’ range of motion was decreased and he experienced pain when bending. (R. at 250.) He
was taking Zanaflex, Lyrica, and Arthrotec for the pain. (R. at 250.)
Alves returned to Dr. Moga on August 19, 2009. (R. at 202.) Dr. Moga found that Alves
had discomfort with forward bending at the waist to forty-five degrees. (R. at 202.) Based on the
Workers’ Compensation Board guidelines, Dr. Moga concluded that Alves had a partial disability
and was able to do sedentary work, with no lifting over ten pounds. (R. at 202.) Dr. Moga also
noted that Alves would need to get up from the sitting position and move around on a regular basis.
(R. at 202.)
In a Workers’ Compensation Board report on September 17, 2009, Dr. Peress stated that
Alves could not return to work because he could not bend, sit longer than twenty minutes, or walk
6
longer than thirty minutes.
(R. at 302.)
In October 2009, Dr. Peress performed lumbar
microdiscectomy surgery. (R. at 186, 310-311.)
ii. Medical Records After the Surgery of October 29, 2009
Upon a December 8, 2009, post-operative visit, Dr. Peress stated in a Workers’
Compensation Board report that Alves could not return to work due to residual neuropathy and
limited range of motion. (R. at 254-55.) In the same report, Dr. Peress noted that Alves walked
normally and had normal posture, extension to fifteen degrees without pain, bending to thirty
degrees and full motor strength. (R. at 254-55.)
Dr. Wellin re-examined Alves on January 4, 2010, at the request of the New York State
Insurance Fund, and concluded that he had a partial disability. (R. at 205.) Alves reported a
worsened condition complaining of intermittent lower back pain with numbness and tingling in
the left leg. (R. at 203.) On examination, Alves walked without a noticeable limp, and could heeland-toe walk and squat. (R. at 204.) He bent to sixty degrees, extended to fifteen degrees, and
laterally bent to fifteen degrees on each side. (R. at 204.) Alves had full strength in a lower
extremity muscle groups. (R. at 204.) Dr. Wellin opined that Alves was suited for sedentary work.
(R. at 205.)
On June 7, 2010, Dr. Tucker performed an independent medical examination at the request
of the New York Insurance Fund. (R. at 206-209.) Dr. Tucker stated that Alves should be
counseled toward looking for work that is less physically demanding. (R. at 208.) On examination,
Dr. Tucker found that Alves limped minimally with no back spasms. (R. at 207.) Dr. Tucker
assessed that Alves could not lift, push, or pull heavy objects, perform prolonged bending or lifting,
climb, crawl, or squat. (R. at 209.)
7
Dr. Malhotra performed a consultative orthopedic examination on December 29, 2010, at
the request of the Commissioner. (R. at 212-14.) Dr. Malhotra opined that Alves had a moderate
limitation in bending. (R. at 213.) On examination, he had a normal gait, could heel-and-toe walk
and squat fully, and used no assistive devices. (R. at 214.) He needed no help changing for the
examination or getting on and off the examination table, and he could rise from a chair without
difficulty. (R. at 214.) Dr. Malhotra found that Alves could fully bend his cervical spine and had
no spasms. (R. at 214.) Alves had some moderate limitation in bending and extending the lumbar
spine. (R. at 214.)
On February 15, 2011, Dr. Neil Patel examined Alves at the request of Dr. Peress. (R. at
243-44.) Alves denied any generalized lethargy, weakness, or malaise. (R. at 243.) Dr. Patel
observed that Alves was awake and alert. (R. at 243.) He found that there Alves had pain with
spinal flexion and there was lumbar paraspinal tenderness in the L4-L5 region. (R. at 243.) Alves
also displayed motor strength 5/5 in the lower extremities and was able to heel-and-toe walk.
(R. at 244.)
On June 2, 2011, Dr. Krosser evaluated Alves, and suggested operative care, and noted that
his chances of returning to a heavy lifting job would remain relatively low. (R. at 227-28.) On
examination, Alves had a normal gait, good motion in his hips, good reflexes, and no atrophy in
his legs. (R. at 227.) He could heel-and-toe walk, but had pain with bending, abduction, and
external rotation. (R. at 227.) Dr. Krosser indicated that Alves would most likely need a one-totwo level lumbar decompression and fusion surgery. (R. at 228.)
Alves saw Dr. Cassels on July 20, 2011 for a New York State Insurance Fund examination.
(R. at 235.) Dr. Cassels opined that Alves could work in a strictly clerical capacity with severe
lifting restrictions. (R. at 236.) Alves could heel-and-toe walk and step up and down on a step
8
without difficulty. (R. at 236.) His range of motion was limited, and there was a considerable
degree of lumbar spasm. (R. at 236.)
Alves returned to Dr. Krosser on September 8, 2011. (R. at 231.) Dr. Krosser reviewed a
recent MRI, which showed significantly increased degenerative disc disease and some
degenerative change with a small herniation. (R. at 231.) On November 10, 2011, Alves revisited
Dr. Krosser, with continued complaints of lower back and leg pain. (R. at 306).
Dr. Moga re-examined Alves on December 2, 2011. (R. at 313-15.) Dr. Moga opined that
Alves could bend forward at the waist to twenty degrees, and had lumbosacral and sacroiliac
tenderness in the standing position. (R. at 314.) Alves reported that his condition had worsened
since his surgery and he was afraid of undergoing additional surgery. (R. at 313.) He also reported
that he could walk for twenty minutes before needing to sit down. (R. at 313.) Alves returned to
Dr. Krosser on March 13, 2012. (R. at 307.) Dr. Krosser indicated that surgery was still being
held off.2 (R. at 307.)
II.
LEGAL STANDARD
A. Scope of Judicial Review
Judicial review of the Commissioner’s decision denying disability benefits is strictly
limited. Baneky v. Apfel, 997 F. Supp. 543, 544 (S.D.N.Y. 1998). The role of the federal courts
is to decide whether the Commissioner has applied the appropriate legal standards and whether the
Commissioner’s findings of fact are supported by substantial evidence. 42 U.S.C. §§ 405(g),
1383(c)(3) (2010); see also Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). If the Court finds
that there is substantial evidence for the determination, the Commissioner’s decision must be
2
On March 15, 2013, Dr. Abrahams performed decompression and fusion surgery. (Pl.’s Mot., Ex. 1, at 1.) The
surgery was not in the medical record because it occurred after the ALJ’s decision. (R. at 24.)
9
upheld, 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 Secretary’s. Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992) (internal citations omitted). Substantial evidence in this
context has been defined as “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197,
229 (1938)).
B. Disability Determination
A person is considered disabled for Social Security benefits purposes when he is unable
“to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or 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),
1382c(a)(3)(A) (2004).
The determination whether a person is under a disability within the meaning of the Social
Security Act belongs to the Commissioner.
20 C.F.R. § 404.1527(d)(1) (2012).
The
Commissioner has established a five-step sequential evaluation for adjudication of disability
claims, set forth at 20 C.F.R. § 404.1520, which the Second Circuit has articulated as follows:
First the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers whether
the claimant has a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider him disabled
without considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the fourth inquiry is whether, despite
10
the claimant's severe impairment, he has the residual functional capacity to perform
past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the claimant
could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179 (2d Cir.1998) (internal citation omitted).
A claimant bears the burden of proof as to the first four steps. Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996). If a claimant is able to meet his burden of proof at the first four steps, the burden
then shifts to the Commissioner to provide evidence to show that jobs exist in significant numbers
in the national economy that the claimant can perform, given his residual functional capacity and
vocational profile of age, education, and work experience. Draegert v. Barnhart, 311 F.3d 468,
472 (2d Cir. 2002). The Commissioner must consider the entire record, including any objective
medical evidence, medical opinions based on such evidence, subjective evidence of pain or
disability, and the plaintiff's educational background, age, and work experience. See Parker v.
Harris, 626 F.2d 225, 231 (2d Cir. 1980) (internal citation omitted).
A. The ALJ’s Application of the Five-Step Sequence to the Petitioner’s Claim
On March 23, 2012, ALJ Glanville issued a written decision denying Alves’ application
for disability insurance benefits, finding that he had not been under a disability, as defined by the
Social Security Act, from April 4, 2008, through the date of the ALJ’s decision. (R. at 24.)
At step one, ALJ Glanville found that Alves had not engaged in substantial gainful activity
since April 4, 2008, the alleged onset date. (R. at 16.) At step two, ALJ Glanville found that Alves
had the following severe impairments: a lumbar impairment, a left leg condition, and high blood
pressure. (R. at 16.) At step three, the ALJ concluded that Alves did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 16.)
11
Before proceeding to step four, ALJ Glanville determined that Alves had the residual
functional capacity to perform light work, except that he need to alternate positions every two
hours, can lift or carry up to ten pounds frequently, carry twenty pounds occasionally, and had a
moderate limitation in bending. (R. at 21.) In making this determination, ALJ Glanville found
that Alves’ statements concerning the intensity, persistence, and limiting effects of his injury
symptoms were not fully credible. (R. at 21.)
At step four, ALJ Glanville found that Alves was unable to perform his past relevant work
as a construction worker because the demands exceeded his residual functional capacity. (R. at
22.) At the fifth step, ALJ Glanville considered Alves’ age, education, work experience, residual
functional capacity, and testimony of the vocational expert to determine that there were jobs that
existed in significant numbers in the national economy that Alves could perform. (R. at 23-24.)
At Alves’ hearing, ALJ Glanville asked a vocational expert to consider a hypothetical person with
the same age, education, and work experience as Alves, who could perform light work, with the
ability to alternate positions every two hours between sitting and standing. (R. at 38.) The
vocational expert testified that such a person could perform the representative unskilled, light work
jobs of assembler of small products, routing clerk, and machine tender. (R. at 38-41, 44.)
Accordingly, ALJ Glanville found that the Plaintiff was not disabled within the meaning of the
Act from April 4, 2008, through the date of his decision, March 23, 2012. (R. at 24.)
II.
DISCUSSION
Alves argues that ALJ Glanville’s residual functional capacity determination was not
supported by substantial evidence and was the result of legal error, and that the ALJ improperly
relied on the vocational expert’s testimony that there were jobs in the national and local economy
that Alves could perform. (Pl.’s Mot. at 1.) The Defendant cross-moves this Court to affirm the
12
Commissioner’s decision on the basis that ALJ Glanville’s decision is supported by substantial
evidence. (Def.’s Mot. at 14-21.)
A. The ALJ’s Residual Functional Capacity Determination
ALJ Glanville determined that Alves had the residual functional capacity to perform a
range of light work or sedentary work. (R. at 21.) Alves argues that the ALJ’s determination is in
error because: (1) the ALJ violated the treating physician rule by not granting controlling weight
to the opinions of Drs. Peress and Krosser; (2) the ALJ should have deferred to the findings of
disability of the doctors that Alves visited in connection with his Workers’ Compensation claim;
(3) the ALJ did not properly assess Alves’ credibility; and (4) the ALJ did not fully develop the
hearing record. (Pl.’s Mot. at 1-20.)
Here, as shown in the analysis of Alves’ arguments set forth below, the ALJ’s
determination that Alves had the residual functional capacity to perform a range of light or
sedentary work is supported by substantial evidence on the record. The Court considers each of
Alves’ arguments in turn.
1. ALJ Glanville’s Decision Did Not Violate the Treating
Physician Rule
Alves argues that the ALJ did not afford sufficient weight to the treating opinions of Drs.
Peress and Krosser, who concluded that Alves was totally disabled. (Pl.’s Mot. at 15-16, 18.)
Under 20 C.F.R. § 1527(d)(1), the ALJ is responsible for determining whether an applicant is
disabled. In doing so, the ALJ reviews all medical findings, but “a statement by a medical source
that [the claimant is] ‘disabled’ or ‘unable to work’ does not mean that [the ALJ] will determine
that [the claimant is] disabled.”
20 C.F.R. § 1527(d)(1).
13
Rather, “[t]he Social Security
Administration considers the data that physicians provide, but draws its own conclusions as to
whether those data indicate disability.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
In reviewing medical opinions, the ALJ considers, among others, the medical opinions of
treating sources. 20 C.F.R. § 1527(c)(2). The treating physician rule generally requires deference
to the medical opinion of a treating physician, but the opinion of the treating physician is not
afforded controlling weight where “the treating physician issued opinions that are inconsistent with
other substantial evidence in the record, such as the opinions of other physicians.” Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citation omitted); 20 C.F.R. § 1527(c)(2).
While Alves’ treating physicians, Drs. Peress and Krosser, opined that Alves was disabled,
ALJ Glanville determined that these opinions were not supported by the record as a whole. (R. at
22.) In making the determination, ALJ Glanville considered the medical evidence provided by
Drs. Peress and Krosser. (R. at 19-20, 24.) For example, on October 2008, Dr. Peress evaluated
Alves and found that although Alves experienced muscle tightness on his sides and restricted
bending in his waist, he was able to walk without a limp. (R. at 19, 291.)
Dr. Krosser evaluated Alves on June 2, 2011, and found that Alves had no acute distress,
could get on and off of the examining table, and was able to walk with a normal gait, only
experiencing pain when bending. (R. 20, 227.) Based on their medical findings, both Drs. Peress
and Krosser concluded that Alves was not able to work. (R. at 228, 291.) However, ALJ Glanville
found that Alves’ medical conditions could impose some limitations, but the record did not support
that he was prevented from performing all work-related activities. (R. at 22.)
In so finding, the ALJ gave weight to the opinion of Drs. Malhotra and Moga, who both
examined Alves and opined that he was able to perform some work. (R. 22.) Dr. Malhotra
evaluated Alves in December 2010, and concluded that Alves had a moderate limitation in
14
bending. (R. 20, 212-214.) Dr. Malhotra also found that Alves had no acute distress, could fully
squat and stand unassisted, and needed no help getting on and off the examining table or rising
from the seated position. (R. at 22, 214.) Alves had full bending and extension movement in his
cervical spine, experiencing no pain or spasms. (R. at 214.)
Alves argues that ALJ Glanville unreasonably gave weight to Dr. Malhotra’s opinion that
Alves had a moderate limitation in bending because Dr. Malhotra is not a specialist. (Pl.’s Mot.
at 16.) This argument lacks merit. Although specialization may be a ground to weigh a doctor’s
opinion more heavily under 20 C.F.R. § 404.1527, it does not follow that non-specialization is a
reason to discount a medical professional’s opinion that is otherwise supported by the medical
record as a whole. Here, Dr. Malhotra’s opinion that Alves had a moderate limitation in bending
was supported by the treatment notes of Drs. Moga, Wellin, Tucker, and Cassels, all of whom
noted that Alves had some limitation in flexion of the spine. (R. at 202, 204, 208, 236.)
ALJ Glanville also gave some weight to the opinion of Dr. Moga. (R. at 22.) Dr. Moga
examined Alves on March 17, 2009, and found that Alves had discomfort with forward bending
at the waist to thirty degrees, (R. at 200). After an examination of Alves on August 19, 2009, Dr.
Moga found that Alves had discomfort with forward bending at the waist to forty-five degrees.
(R. at 202.) Dr. Moga assessed that Alves could perform sedentary work, lifting no more than ten
pounds, and alternating sitting and standing positions. (R. at 19, 202.)
ALJ Glanville also outlined the medical findings of Drs. Wellin, Tucker, and Cassels. All
three doctors examined Alves and, on the basis of those examinations, opined that Alves was able
to perform some work. For example, Dr. Wellin evaluated Alves on July 14, 2008 and January 4,
2010, and found that Alves ambulated without a noticeable limp, was able to heel-and-toe walk
and squat, and that Alves’ back measured flexion of sixty degrees. (R. at 19-20, 193, 203-05.) Dr.
15
Wellin opined that Alves was suitable for sedentary work. (R. at 205.) Dr. Tucker, who examined
Alves on June 7, 2010, counseled Alves to look for work that was “less physically demanding”
than his previous work. (R. at 209.) Examining Alves on July 20, 2011, Dr. Cassels found that
Alves could heel-and-toe walk without difficulty, and could step up and down without difficulty.
(R. at 236.) Dr. Cassels opined that Alves could work with “severe lifting restrictions.” (R. at
236.) The ALJ’s finding that Alves was able to perform a range of light and sedentary work is
consistent with the opinions of Drs. Moga, Wellin, Tucker, and Cassels, that Alves would be able
to return to work.
ALJ Glanville’s decision to discount the opinions of Drs. Peress and Krosser did not violate
the treating physician rule, because their opinions were inconsistent with the opinions of other
substantial evidence on the record, including the opinions of Drs. Malhotra, Moga, Wellin, Tucker,
and Cassels.
2. ALJ Glanville Reasonably Did Not Defer to Opinions of
Disability Given by Workers’ Compensation Doctors
Alves next argues that ALJ Glanville should have deferred to the opinions of disability
given by doctors who examined Alves in connection with his Workers’ Compensation claim. (See,
e.g., R. at 198, 200, 276, 291, 314.) However, an opinion rendered in the context of a Workers’
Compensation claim is not instructive with respect to a claim under the Act. Rosado v. Shalala,
868 F. Supp. 471, 473 (E.D.N.Y. 1994) (“Although plaintiff’s doctors had checked off that plaintiff
was disabled on forms sent to the Worker’s Compensation Board, the standards which regulate
Workers’ Compensation relief are different from the requirements which govern the award of
disability insurance benefits under the Act. Accordingly, an opinion rendered for purposes of
workers’ compensation is not binding on the Secretary.”).
16
Therefore, it was reasonable for ALJ Glanville to not defer to the opinions of disability
made by doctors applying the standards of New York State Workers’ Compensation Law.
Moreover, all of the doctors who examined Alves in connection with his Workers’ Compensation
claim, including Drs. Tucker, Moga, Wellin, Cassels, Patel, and Peress, found that Alves was only
temporarily or partially disabled,3 and, as indicated above, most of these doctors opined that Alves
would be able to return to work in some capacity. (R. at 198, 200, 205, 236, 244, 276, 291, 314.)
These opinions are not incompatible with the ALJ’s finding that Alves could perform a range of
light or sedentary work.
3. ALJ Glanville Properly Assessed Alves’ Credibility
Alves argues that ALJ Glanville unreasonably discredited his statements by discounting
his pain allegations and his complaints of drowsiness as a side effect of Zanaflex, a muscle relaxant
he was taking to treat his back pain. (Pl.’s Mot. at 17-20.) The ALJ should consider the claimant’s
statements regarding pain and other symptoms in establishing disability. Petty v. Colvin, No. 12
Civ. 1644 (LTS) (RLE), 2014 WL 2465109, at *11 (S.D.N.Y. June 2, 2014). The ALJ is required
to take the claimant’s reports of pain and other limitations into account, including, inter alia, “type,
dosage, effectiveness, and adverse side effects of medication taken by the individual to alleviate
pain or symptoms.” 20 C.F.R. §§ 404.1529(c)(3)/ However, the ALJ may exercise discretion in
weighing the credibility of the claimant’s testimony in light of the other evidence in the record.
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
ALJ Glanville concluded that Alves’ complaints of disabling symptoms and limitations
were not fully credible, finding that Alves’ allegations of pain were inconsistent with the medical
3
Under the Social Security Act, there is no concept of “partial disability.” The test is the inability to perform any
substantial gainful activity. See 42 U.S.C. § 423(d)(1)(A).
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record and his activities of daily living. (R. at 21.) The ALJ noted that in the Social Security
Function Report, which Alves filled out on December 6, 2010, Alves reported taking walks,
driving, going out alone, going shopping, and being able to handle money or finances. (R. at 14549.) In that same report, Alves reported limitations in driving, and walking, standing, and
squatting. (R. at 145-47, 150-51.) During his hearing with ALJ Glanville on March 21, 2012,
Alves reiterated that walking, driving, and sitting caused him pain. (R. at 32-33.) However, these
allegations of pain are inconsistent with the report of Dr. Wellin, who in January 2010 reported
that Alves ambulated without a noticeable limp, and was able to heel-and-toe walk and squat, (R.
at 204), the report of Dr. Malhotra, who in December 2010 examined Alves and found that Alves
could fully squat and stand unassisted, and needed no help getting on and off the examining table
or rising from the seated position, (R. at 22, 214), and the report of Dr. Cassels, who examined
Alves on July 20, 2011, and found that Alves could heel-and-toe walk without difficulty, and could
step up and down without difficulty. (R. at 236.)
On August 11, 2009, Dr. Peress noted that Alves drove himself to a doctor’s appointment.
(R. at 250.) Further, a residual functional capacity assessment of Alves on December 31, 2010,
showed that he could stand, walk, and sit with normal breaks for six hours in an eight hour
workday. (R. at 220.) The assessment also indicated that the he was able to occasionally lift
twenty pounds and frequently lift ten pounds. (R. at 220.) Evidence in the record showing Alves’
normal gait, ability to get on and off the examining table without assistance, ability to squat, walk
on heels and toes, and drive himself to appointments, was inconsistent with his allegations of
disabling pain.
ALJ Glanville similarly discredited Alves’ claim that Zanaflex required him to need to
sleep for an hour in the middle of the day. (R. at 43-44.) The ALJ found that while Alves’
18
medically determinable impairments could reasonably be expected to cause the alleged symptoms,
“the claimant’s statements concerning the intensity, persistence and limiting effects of those
symptoms are not fully credible to the extent alleged.” (R. at 21.)
ALJ Glanville’s credibility finding is supported by a review of the entirety of the record.
Alves reported that Zanaflex made him drowsy at the hearing before the ALJ, (R. at 43), in a
Function Report that he filled out on December 6, 2010, (R. at 153), and on an undated Disability
Report Appeal. (R. at 141.) However, Alves did not complain about the side effects of Zanaflex
to his physicians. For example, at an examination on December 8, 2009, Dr. Peress noted that
Alves was taking Zanaflex as a muscle relaxant, did not note any drowsiness or side effects. (R.
at 255.) On November 22, 2010, Dr. Peress suspended Alves’ prescription of Arthrotec, when
Alves complained that it upset his stomach, but Dr. Peress continued to prescribe Zanaflex and no
complaints of side effects are indicated. (R. at 269.) Instead, the medical records indicate that
Alves was “awake and alert.” (R. at 243.) Therefore, the record supports the ALJ’s conclusion
that Alves’ statements about the side effects of Zanaflex were not fully credible.
Additionally, ALJ Glanville’s decision to not fully credit Alves’ complaints of pain and
other limitations was supported by ALJ Glanville’s observations during the hearing.
ALJ
Glanville observed that Alves seemed in no acute or emotional distress, and was able to sit through
the forty-minute hearing without complaining of pain, discomfort, incommodity, or the need to
stand up. (R. at 21.) As the ALJ was able to observe Alves’ demeanor while testifying, such
observations are accorded special deference. See Marquez v. Colvin, No. 12 Civ. 6819 (PKC),
2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013) (stating the reviewing court “must show special
deference to an ALJ’s credibility determinations because the ALJ had the opportunity to observe
the Plaintiff’s demeanor while testifying”).
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ALJ Glanville met his burden in finding Alves’ claims not entirely credible because the
objective medical evidence and the ALJ’s observations at the hearing failed to support Alves’
claims of total disability based on pain and side effects of his medication.
4. ALJ Glanville Sufficiently Developed the Record
Finally, Alves argues that ALJ Glanville improperly assessed Alves’ credibility without
sufficiently developing Alves’ testimony at the hearing regarding his daily activity limitations.
(Pl.’s Mot. at 19.) He argues that ALJ Glanville did not question him about the intervals of rest
taken while walking and driving, or how long Alves cared for his children or what kind of care he
provided. (Pl.’s Mot. at 19.) Consequently, Alves argues that the administrative record was
incomplete. (Pl.’s Mot. at 19.)
However, the ALJ is under no obligation to further develop the administrative record when
there are no obvious gaps within the record, and where the ALJ already possesses a complete
medical history. Rosa v. Callahan, 168 F.3d 72, 70 n.5 (2d Cir. 1999). Here, ALJ Glanville was
not obligated to further develop the administrative record because it did not contain any gaps.
Although ALJ Glanville never questioned Alves about the breaks taken while walking and driving,
and the extent to which he did childcare, (R. at 30-46), the administrative record already contained
this information. (R. at 145-54, 212.) In the Social Security Administration’s Function Report,
Alves reported he could only walk for thirty minutes before resting, and that he could not drive for
more than twenty minutes. (R. at 150.) He reported to Dr. Malhotra that he cared for his children
two times per week, (R. at 212), and that he could no longer lift his daughter. (R. at 146.) ALJ
Glanville was under no obligation to question Alves further because Alves had already detailed
his daily activity limitations in the administrative record.
20
A review of the entirety of the record shows that because the record was sufficiently
developed, ALJ Glanville was under no obligation to further develop the record before making his
credibility determination.
B. The ALJ Properly Relied on the Vocational Expert’s Testimony That
There Were Jobs in the National and Local Economies that Alves Could
Perform
Alves argues that ALJ Glanville unreasonably relied on the vocational expert’s testimony
because the vocational expert did not consider the impact of the side effects of Alves’ medication.
(Pl.’s Mot. at 20.)
ALJ Glanville consulted a vocational expert to determine whether there were light
unskilled jobs that Alves could still perform despite his moderate limitation in bending and need
to alternate positions regularly. (R. at 22.) The ALJ asked the vocational expert to identify light
work jobs that would allow alternating positions between sitting and standing every two hours.
(R. at 38.) The vocational expert considered Alves’ age, education, ability to speak English, and
his work history consisting of heavy, semi-skilled work, and concluded that he could be an
assembler of small products, routing clerk, and machine tender. (R. at 23, 38-42.)
At the hearing before ALJ Glanville, Alves’ attorney asked the vocational expert to
consider both the Alves’ residual functional capacity and his alleged drowsiness as a side effect of
his medication. (R. at 42-45.) In this hypothetical question, the vocational expert concluded that
Alves could not work if drowsiness caused him to lie down during the day. (R. at 42-45.) Here,
ALJ Glanville was under no obligation to consider the hypothetical presented by Alves’ attorney,
which relied on an assumption that ALJ Glanville reasonably determined was unsupported by the
record. As discussed previously, ALJ Glanville reasonably discredited Alves’ claim of drowsiness
from his pain medication as inconsistent with the medical record.
21
III.
CONCLUSION
For the reasons discussed above, the Commissioner’s determination that the Plaintiff was
not disabled within the meaning of the Social Security Act during the period from April 4, 2008,
through March 23, 2012, is supported by substantial evidence. Accordingly, the Defense’s crossmotion for judgment is GRANTED, and the Plaintiff’s motion for judgment on the pleadings is
DENIED.
SO ORDERED.
Dated: New York, New York
September 24, 2014
____/s/______________________________
Robert P. Patterson, Jr.
United States District Judge
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Copies of this Opinion & Order Sent To:
Counsel for Plaintiff
Stuart Ira Ball
Ball & Ferrari P.C.
2066 Central Park Avenue
Yonkers, NY 10710
(914) 779-2600
Email: stuart@ballandferrari.com
Counsel for the Commissioner of Social Security
Monika Katherine Crawford
Social Security Administration/Office of The General Counsel
26 Federal Plaza, Rm 3904
New York, NY 10278
(212)-264-2506
Email: monika.crawford@ssa.gov
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