Rose v. Commissioner of Social Security

Filing 21

OPINION AND ORDER re: 17 MOTION for Judgment on the Pleadings filed by Laura Beth Rose, 14 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security: For the foregoing reasons, the Commissioner's deci sion is affirmed; Defendant's motion for judgment on the pleadings is GRANTED; and Plaintiff's motion for judgment on the pleadings is DENIED. The Clerk of Court is directed to terminate Docket Entries 14 and 17, and to mark the case as closed. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45. (Signed by Judge Katherine Polk Failla on 7/18/2014) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
LAURA BETH ROSE,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL SECURITY,
:
:
Defendant.
:
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: ______________
July 18, 2014

13 Civ. 4021 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiff Laura Beth Rose, proceeding in forma pauperis, filed this action
pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C.
§ 405(g), seeking review of a decision of the Acting Commissioner of Social
Security (the “Commissioner”) that denied Plaintiff’s application for Social
Security Disability Insurance (“SSDI”) and Supplemental Security Income
(“SSI”) benefits based on a finding that Plaintiff was not disabled under the Act.
The parties have cross-moved for judgment on the pleadings. Because the
Commissioner’s decision is supported by substantial evidence, Defendant’s
motion is granted, and Plaintiff’s motion is denied.

BACKGROUND 1
A.

Plaintiff’s Physical Impairments
Plaintiff claimed a disability since July 1, 2010, as a result of neck and

back pain. (SSA Rec. 22, 52). Specifically, Plaintiff reported difficulty turning
her neck, reaching, climbing stairs, sitting, standing for long periods, walking
long distances, and lifting more than 10 pounds, and that she could not bend,
kneel, or squat. (Id. at 57-58, 67-69, 180-81, 183-84, 186). Plaintiff
complained that the pain interfered with her sleep, and that while pain
medications relieved her pain slightly for a few hours, those same medications
made her tired. (Id. at 71, 187).
Plaintiff contended that she had tried physical therapy, medications, and
injections, but they did not bring about any significant relief. (SSA Rec. 60-62).
Plaintiff lived in a five-person household that included her mother, boyfriend,
and 16-year-old son. (Id. at 50, 179-80, 311). She spent her days resting,
talking on the phone, eating, exercising, reading, listening to music, socializing,
playing cards, watching television, using a computer, and taking medications.
(Id. at 179, 183, 188). She could prepare simple meals, wipe or dust furniture,
and do light laundry. (Id. at 181). Plaintiff reported that she needed help
showering (id. at 179-80), that she needed to sit to get dressed (id. at 179-80),
and that she frequently left her shoelaces tied (id. at 180). She went out every
day by walking or by taxi. (Id. at 182). She shopped in stores and on the
1

The facts contained in this Opinion are drawn from the Social Security Administrative
Record (“SSA Rec.”) (Dkt. #7) filed by the Commissioner as part of her answer. For
convenience, Defendant’s supporting memorandum is referred to as “Def. Br.”;
Plaintiff’s supporting memorandum as “Pl. Br.”; and Defendant’s reply as “Def. Reply.”

2

computer; it took her approximately one hour to shop in a store. (Id. at 182).
Plaintiff also visited with friends or family several times per month, and went to
the movies once a week. (Id. at 183).
B.

Plaintiff’s Medical Evaluations
1.

Open Door Family Medical Center (“ODFMC”)

Plaintiff visited ODFMC from July 2010 to October 2011 for primary
care. (SSA Rec. 233-36, 326-50, 357-58, 369-81, 450-57). Plaintiff saw Dr. Ali
Islam from July 28, 2010, to April 13, 2011 (id. at 233-36, 335-36, 340-41,
344-45), and Dr. Thomas Yuen on July 18, 2011 (id. at 332-34). The doctors
recorded Plaintiff’s complaints of tenderness and trigger points in her back (id.
at 233, 235, 335, 344), and Dr. Islam noted one positive straight leg raising
test (id. at 335), but their findings were otherwise normal (id. at 233, 235, 335,
340, 344). Dr. Islam diagnosed sciatic neuralgia and herniated disc syndrome
(cervical/lumbar) (id. at 335), while Dr. Yuen diagnosed back pain and
herniated disc syndrome (cervical/lumbar) (id. at 333). Treatment included
pain medications (id. at 233, 235, 333, 335, 340, 344) and physical therapy.
(Id. at 235). Dr. Yuen also prescribed a cane. (Id. at 381).
Dr. Yuen completed two functional assessments on October 12, 2011.
(SSA Rec. 370-79, 453-57). In those assessments, Dr. Yuen reported seeing
Plaintiff for two to three months for neck and back pain. (Id. at 370, 375). Dr.
Yuen diagnosed back pain/sciatica and gave a fair prognosis, citing MRIs of the
cervical and lumbar spines, as well as findings of tenderness, abnormal gait,

3

and muscle spasm. (Id. at 370-71, 375-76). However, Dr. Yuen noted that
copies of those MRI reports were not available. (Id. at 370).
Dr. Yuen estimated that Plaintiff could walk two to three city blocks and
stand for five to ten minutes, but that she could stand or walk for no more
than two hours per day and needed to use a cane. (SSA Rec. 371-72, 377-78).
In the doctor’s estimation, Plaintiff could sit for 15 minutes at a time, but could
only sit for no more than two hours per day; she needed to walk for five to ten
minutes every 15 to 20 minutes, and needed a job that permitted her to shift
positions at will. (Id. at 371-72, 376-77). Plaintiff could frequently lift or carry
less than ten pounds, she could rarely lift or carry ten pounds, and she could
never lift or carry more than ten pounds. (Id. at 373, 378). Plaintiff could
never twist, stoop, crouch or squat, climb ladders or scaffolds, but was
unlimited in reaching, handling, and fingering. (Id.). Dr. Yuen indicated that
his assessment applied retrospectively to 1993. (Id. at 373, 379).
2.

East Coast Pain Management (“ECPM”)

Plaintiff went to ECPM from September 2010 to March 2011 for pain
management. (SSA Rec. 237-309, 382-449). There, Plaintiff was treated by Dr.
Gladys Cardenas (id. at 238, 388, 394, 431), and Dr. Bozena Sokol (id. at 431,
440). The two doctors typically observed tender or trigger points in Plaintiff’s
neck and back (id. at 238, 388, 394, 413, 431), and reduced or painful range of
motion in the neck and back (id. at 238, 388, 394, 413, 431). Dr. Cardenas
noted occasional sensory abnormalities (id. at 238, 413, 431), but the doctors’
findings were otherwise normal (id. at 238, 388, 394, 413, 431, 440).

4

Plaintiff underwent an MRI examination pursuant to a referral from
ECPM in September 2010. The cervical MRI revealed vertebral ridging at C3C4, with broad-based herniation effacing the cerebrospinal fluid (“CSF”) space,
but no central or peripheral stenosis 2; vertebral ridging at C4-C5 with mild
foraminal narrowing left greater than right; central herniation at T1-T2; and a
high T2 signal intensity nodule near the thyroid. (SSA Rec. 251-52).
The lumbar MRI revealed retrolisthesis 3 at L5-S1 with disc dessication,
disc space narrowing, central disc herniation, and annular tear effacing the
CSF space abutting the S1 nerves, but causing no central or peripheral
stenosis; disc desiccation at L4-L5 with disc space narrowing, broad-based
herniation, and annular tear effacing the CSF space, but causing no central or
peripheral stenosis; and mild L4-L5 and minor L5-S1 facet joint degenerative
changes. (Id. at 253-54).
Plaintiff also underwent an Electromyelogram (“EMG”) study in
September 2010; the study revealed abnormalities in the lumbar and cervical
spines, but not in the lower extremities. (SSA Rec. 266, 277-78, 283, 291).
ECPM physicians diagnosed cervical spine pain and lower back pain with
radiculopathy. (Id. at 430). Treatment included injections (see, e.g., id. at
432); physical therapy (see, e.g., id. at 433-35); and a pain patch (id. at 412,
414).
2

Spinal stenosis is defined as a “narrowing of the vertebral canal, nerve root canals, or
intervertebral foramina of the lumbar spine caused by encroachment of bone upon the
space.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1579 (27th ed. 1988) (“DORLAND’S”).

3

Retrolisthesis is a posterior displacement of a vertebral body that can cause localized
back pain, pain on hyperextension, and sciatic pain due to irritation of the first sacral
nerve root. DORLAND’S at 619.

5

3.

Westchester Spine and Brain Surgery (“WSBS”)

Plaintiff visited WSBS for consultations on August 3 and 17, 2011. (SSA
Rec. 361-68). Plaintiff saw Dr. Bennie Chiles, a neurologist, both times. (Id.).
Dr. Chiles observed some patchy sensation in the right extremities (id. at 36263), and difficulty with heel-toe walking during the second examination (id. at
362), but his findings were otherwise normal (id. at 362-63).
Plaintiff underwent additional MRI testing in August 2011, pursuant to a
referral from Dr. Chiles. The cervical MRI revealed mild degenerative disc
disease, with straightening of the cervical curvature and bulging disc at C3-C4
flattening the sac; but no disc herniation, foramina narrowing, or spinal
stenosis. (SSA Rec. 356). The lumbar MRI revealed central disc herniation at
L5-S1 that appeared to contact the descending S1 nerve root, and small central
disc herniation at L4-L5, but no significant central canal or foraminal stenosis.
(Id. at 354). Dr. Chiles diagnosed degenerative disc disease at the L5-S1 level.
(Id. at 363). Dr. Chiles recommended conservative, i.e., nonsurgical, treatment,
such as oral medications, physical therapy/exercise, chiropractic care, and
continued work in pain management. (Id. at 363).
4.

Plaintiff’s Consultative Examination

Finally, Plaintiff underwent a consultative examination on October 18,
2010, with Dr. Suraj Malhorta. (SSA Rec. 310-19). Dr. Malhorta observed that
Plaintiff experienced some difficulty with squatting and heel-toe walking, and
with positive straight leg raising in the supine position, but concluded that
Plaintiff’s findings were otherwise normal. (Id. at 311-12). Dr. Malhorta’s

6

diagnoses included cervical and lumbar disc herniation by history. (Id. at 312).
The prognosis was good, but Dr. Malhorta indicated that Plaintiff needed
orthopedic management of her pain. Dr. Malhorta concluded that Plaintiff had
moderate limitation in bending and squatting. (Id.).
Dr. Malhorta then completed a functional assessment based on a
physical examination. (SSA Rec. 314-19). Dr. Malhotra reported that Plaintiff
could lift up to 10 pounds continuously, and 11 to 20 pounds occasionally, but
could never lift more than 20 pounds. (Id. at 314). Plaintiff could carry 10
pounds continuously, but no more. (Id.). Plaintiff could sit for 30 minutes at a
time and for seven hours per day; she could stand for 15 minutes at a time and
for two hours per day; and she could walk for 15 minutes at a time and for one
hour per day. (Id. at 315). Plaintiff did not require a cane to ambulate. (Id.).
Plaintiff could frequently push or pull with her hands; frequently operate foot
controls; and continuously reach, handle, finger, and feel. (Id. at 316).
Plaintiff could frequently climb stairs and ramps; she could occasionally
balance, stoop, and kneel; but she could never climb ladders or scaffolds,
crouch, or crawl. (Id. at 317).
C.

Plaintiff’s Work History
Plaintiff reported work history as a movie theater manager and a medical

receptionist. Most recently, Plaintiff had worked as a movie theater manager,
which required her to stand for one hour, climb stairs, and sit for two to three
hours, with no kneeling, crouching, crawling, or handling. (SSA Rec. 52-56,
164, 170). She reported that this job initially required her to lift up to 10

7

pounds, and later up to 50 pounds. (Id. at 53, 190). Plaintiff claimed that she
was disabled beginning on July 1, 2010, yet admitted that she was able to
work as a theater manager through September 8, 2010. (Id. at 22). She
testified that her injuries bothered her, but acknowledged that she was able to
work through August 10, 2010, at which time her hours were reduced. (Id.).
She last worked full-time on August 15, 2010, and stopped working altogether
on September 8, 2010. (Id. at 59). Before transitioning to part-time status,
Plaintiff had been working up to 100 hours biweekly. (Id. at 233). Plaintiff
reported that she stopped working because of pain in her neck and lower back.
(Id.).
Prior to that, Plaintiff had worked as a medical receptionist in two
different physicians’ offices; she reported that those positions generally
required her in a given day to walk for one hour, stand for one hour, sit for four
hours, lift up to 10 pounds, and write, type, or handle small objects for up to
six hours; the jobs did not, however, involve kneeling, crouching, or crawling.
(SSA Rec. 191).
D.

Social Security Administrative Proceedings
Plaintiff filed applications for SSDI and SSI benefits on August 18, 2010,

alleging disability due to neck and back pain beginning on July 1, 2010. (SSA
Rec. 85-89). Those applications were denied on November 17, 2010. (Id. at 8586, 93-98).
At Plaintiff’s request, a hearing was held before Administrative Law
Judge (“ALJ”) Roberto Lebron, at which Plaintiff and her counsel were present.

8

(SSA Rec. 44-84). The ALJ conducted a de novo review of the record and on
March 16, 2012, issued a decision finding that Plaintiff was not disabled. (Id.
at 16-30). The decision became final on April 12, 2013, when the Appeals
Council denied Plaintiff’s request for review. (Id. at 1-6, 14).
The substance of the ALJ’s decision is as follows: The ALJ first
determined whether Plaintiff was engaged in substantial gainful activity, and
noted that ‘“[s]ubstantial work activity’ is work activity that involves doing
significant physical or mental activities,” while ‘“gainful work activity’ is work
that is usually done for pay or profit, whether or not a profit is realized.’” (SSA
Rec. 20 (citing 20 C.F.R. § 404.1572(a), (b))). If an individual is engaged in
substantial gainful activity, she is deemed not disabled. 20 C.F.R.
§ 404.1520(a)(i). The ALJ determined that Plaintiff had not been engaged in
substantial gainful activity since September 8, 2010, though she claimed a
disability beginning July 1, 2010. (SSA Rec. 21).
Having determined that Plaintiff was not engaged in substantial gainful
activity, the ALJ proceeded to step two of the analysis. The ALJ assessed
whether Plaintiff had a medically determinable impairment that was “severe” or
a combination of impairments that was “severe.” 20 C.F.R. § 404.1520(c). “An
impairment or combination of impairments is ‘severe’ within the meaning of the
regulations if it significantly limits an individual’s ability to perform basic work
activities.” (SSA Rec. 20 (citing 20 C.F.R. § 404.1521 and Social Security
Rulings (“SSR”) 85-28, 96-3p, and 96-4p)). Conversely, “[a]n impairment or
combination of impairments is ‘not severe’ when medical and other evidence

9

establish only a slight abnormality or a combination of slight abnormalities
that would have no more than a minimal effect on an individual’s ability to
work.” (Id.). If a claimant does not have either a severe medically determinable
impairment or a combination of impairments, she is not disabled. (Id.). The
ALJ determined that Plaintiff had a severe impairment, specifically, discogenic
disease of the lumbar spine. (SSA Rec. 21). 4
The ALJ then moved onto the third step of the analysis. At this step, the
ALJ must determine “whether the claimant’s impairment or combination of
impairment is of a severity to meet or medically equal the criteria of
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1.” (SSA Rec. 20
(citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
and 416.926)). The ALJ determined that Plaintiff did not have “an impairment
or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.”
(SSA Rec. 21).
The ALJ then proceeded to evaluate Plaintiff’s residual functional
capacity (“RFC”). The ALJ found that Plaintiff “has the residual functional
capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a),” but that she “cannot engage in activities requiring no more than
occasional bending and squatting.” (Id. at 21-22). 5 In reaching this

4

Discogenic changes are those “caused by derangement of an intervertebral disc.”
DORLAND’S at 510.

5

“The applicable regulations explain that ‘sedentary work’ involves ‘lifting no more than
10 pounds at a time,’ ‘sitting,’ and a ‘certain amount of walking or standing.’ The Social
Security Administration has further explained that at the sedentary level of exertion,

10

determination, the ALJ considered (i) “all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence”; and (ii) “opinion evidence.” (SSA Rec. 22
(internal citations omitted)).
Turning to the first category, in considering Plaintiff’s symptoms, the ALJ
followed a two-step process. First, he determined whether there was an
underlying impairment “that could reasonably be expected to produce the
claimant’s pain or other symptoms.” (Id.). Second, the ALJ evaluated the
“intensity, persistence, and limiting effects of the claimant’s symptoms to
determine the extent to which they limit the claimant’s functionings.” (Id.). In
this regard, he observed that “whenever statements about the intensity,
persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, [the ALJ] must make a finding on
the credibility of the statements based on a consideration of the entire case
record.” (Id.).
The ALJ noted Plaintiff’s testimony that she (i) had difficulty standing or
walking for more than five or six minutes at a time; (ii) could not bend or squat
without difficulty; (iii) experienced radiating pain originating in her back and
neck; and (iv) had carpal tunnel syndrome in both hands, muscle weakness,
spasms, numbness, and tingling. (SSA Rec. 23). Plaintiff reported that she
periods of standing or walking should generally total no more than about 2 hours of an
8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour
workday.” Penfield v. Colvin, No. 13-2225-cv, 2014 WL 1673729, at *1 n.1 (2d Cir.
Apr. 29, 2014) (summary order) (citing, inter alia, Determining Capability to Do Other
Work — Implications of a Residual Functional Capacity for Less Than a Full Range of
Sedentary Work, 61 Fed. Reg. 34478, 34480 (Soc. Sec. Admin. July 2, 1996)).

11

could not engage in activities requiring more than occasional bending or
squatting, and could not remain seated for more than 15 minutes before
changing positions; however, she simultaneously acknowledged that she slept
seven hours per night, could lift five to ten pounds, and could shop and tend to
her personal needs with some assistance. (Id.).
Ultimately, the ALJ found Plaintiff’s “allegations of her inability to work
on a continued, sustained basis as a result of her functional limitations” to be
“not credible.” (SSA Rec. 22). The primary reason for this determination was
that Plaintiff had reported on her initial application that she was disabled due
to back and neck injuries beginning on July 1, 2010, but admitted that she
was working at the time of the application, and, further, that she had worked
up until September 8, 2010. (Id.). Plaintiff stopped working because of the
pain in her neck and back; at that time, however, she was required to stand on
her feet “constantly,” carry objects weighing up to 50 pounds, and engage in
activities requiring frequent bending and lifting. (Id. at 22-23).
The ALJ next considered the medical and opinion evidence. The ALJ first
reviewed the July 2010 report from Dr. Islam, a treating physician who advised
that Plaintiff had experienced chronic low back and sciatic pain for a period of
one month. (Id.). In an August 2010 report from Dr. Islam, however, Plaintiff
reported that she was undergoing physical therapy and felt much improved.
(Id.). The ALJ highlighted that Plaintiff advised Dr. Islam that she was working
up to 100 hours biweekly, only one month after the alleged onset date of her
disability, and that her pain was precipitated by twisting. (Id.).

12

The ALJ reviewed the results of the MRI testing conducted in September
2010, which testing revealed, among other things, disc herniation and uncal
vertebral ridging in the lumbar and cervical spines. (SSA Rec. 23).
Subsequently, Dr. Islam stated in an October 2010 report that Plaintiff has
“herniated disc syndrome of the cervical and lumbar spines”; Dr. Islam
recommended no further treatment beyond pain management and, to that end,
prescribed medication. (Id. at 24).
The ALJ noted the results of nerve conduction studies Plaintiff
underwent in September 2010, as well as a report from ECPM of that same
month. These materials revealed that Plaintiff had realized partial relief of her
neck, shoulder, and back pain following a brief course of physical therapy.
(SSA Rec. 24).
Plaintiff underwent a consultative evaluation in October 2010 with Dr.
Malhotra, the results of which were also analyzed by the ALJ. Dr. Malhotra
found that Plaintiff appeared to be in no acute distress and had a normal gait,
but that she experienced mild difficulty walking on her heels and toes due to
back discomfort. (SSA Rec. 24). Dr. Malhotra reported that Plaintiff needed no
help changing for the examination, getting on or off the examination table, or
rising from a chair. (Id.). Plaintiff’s grip strength was normal, and she was
able to fasten a zipper, tie, and button, but she was slightly slow in doing so on
both sides. (Id.). Dr. Malhotra ultimately assessed that Plaintiff had a
moderate limitation in bending and squatting, as well as mildly slow fine

13

dexterity of the hands, but that she was capable of performing sedentary work
that did not involve crouching or crawling. (Id. at 25).
The ALJ next reviewed the medical records for 2011. Plaintiff had
undergone additional MRI testing in August 2011, which testing confirmed
some disc herniation of the lumbar spine, but not of the cervical spine. (SSA
Rec. 25). Plaintiff was evaluated in August 2011 by a neurosurgeon, Dr.
Chiles, who reported that Plaintiff had no structural abnormality involving her
cervical spine that would merit operative treatment, though Plaintiff’s lumbar
spine exhibited level 2 degenerative disc disease, which could necessitate
surgical intervention at some later date. (Id.).
Lastly, the ALJ reviewed the October 2011 reports from Dr. Yuen, a
treating physician. Dr. Yuen assessed Plaintiff to be disabled; he found that
she could not perform sedentary work, and was “significantly limited from a
postural standpoint.” (SSA Rec. 25). However, the ALJ assigned Dr. Yuen’s
opinion little weight because he found it to be unsupported and in conflict with
other evidence in the record. Specifically, Dr. Yuen’s report conflicted with Dr.
Malhotra’s findings that Plaintiff retained far more exertional capacity, as well
as Plaintiff’s most recent MRI, which did not reveal significant “central canal or
foraminal stenosis.” (Id.). Lastly, the ALJ noted that “it is not insignificant that
the claimant, while alleging an inability to work beginning in July 2010,
advised Dr. Islam on August 18, 2010 that she [was] working a lot more than
before — as much as 100 hours in two-weeks.” (Id.). Thus, upon the ALJ’s
consideration of the evidence, the ALJ found Plaintiff’s statements regarding

14

the intensity, persistence, and limiting effects of her symptoms to be not
credible. (Id. at 26). Accordingly, the ALJ found that the “objective
documentary evidence [] demonstrates the claimant retains the residual
functional capacity to perform sedentary work activities.” (SSA Rec. 23).
At step four, the ALJ compared Plaintiff’s RFC to her relevant work
history. (SSA Rec. 26). Plaintiff reported that when she worked most recently
as a medical receptionist, she was required to walk for one hour, stand for one
hour, and sit for four hours per day; she was required to lift up to 10 pounds;
but she was not required to kneel, crouch, crawl, or handle large objects. (Id.
at 191). In addition, Plaintiff was required to write, type, or handle small
objects for up to six hours per day. (Id.). The ALJ determined that the
requirements of this job fit comfortably within Plaintiff’s RFC, and accordingly,
found that Plaintiff was not disabled under the Act. (SSA Rec. 26).
E.

The Instant Litigation
Plaintiff initiated this action on June 11, 2013. (Dkt. #1). The

Commissioner filed her answer, as well as the Administrative Record, on
November 6 and 7, 2013. (Dkt. #7, 8). The parties proceeded thereafter to file
competing motions for judgment on the pleadings. On February 27, 2014, the
Commissioner filed its motion (Dkt. #14); Plaintiff’s motion was filed on April
14, 2014 (Dkt. #17); and Defendant’s reply was filed on April 24, 2014 (Dkt.
#19).

15

DISCUSSION
A.

Applicable Law
1.

Motions Under Federal Rule of Civil Procedure 12(c)

Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings
are closed — but early enough not to delay trial — a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard applied to a
motion for judgment on the pleadings is the same as that used for a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Sheppard v. Beerman, 18 F.3d
147, 150 (2d Cir. 1994); accord L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d
419, 429 (2d Cir. 2011). When considering such a motion, a court should
“draw all reasonable inferences in Plaintiffs’ favor, assume all well-pleaded
factual allegations to be true, and determine whether they plausibly give rise to
an entitlement to relief.” Faber v. Metro. Life, 648 F.3d 98, 104 (2d Cir. 2011)
(internal quotation marks omitted) (quoting Selevan v. N.Y. Thruway Auth., 548
F.3d 82, 88 (2d Cir. 2009)). A plaintiff is entitled to relief if he alleges “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp v.
Twombly, 550 U.S. 544, 570 (2007); see also In re Elevator Antitrust Litig., 502
F.3d 47, 50 (2d Cir. 2007) (“[W]hile Twombly does not require heightened fact
pleading of specifics, it does require enough facts to nudge [plaintiff’s] claims
across the line from conceivable to plausible.” (internal quotation marks
omitted)).

16

2.

Review of Determinations by the Commissioner of Social
Security

In reviewing the final decision of the SSA, a district court may “enter,
upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
“[A]n ALJ’s credibility determination is generally entitled to deference on
appeal.” Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013).
A court must uphold a final SSA determination to deny benefits unless
that decision is unsupported by substantial evidence or is based on an
incorrect legal standard. Selian, 708 F.3d at 417 (“In reviewing a final decision
of the SSA, this Court is limited to determining whether the SSA’s conclusions
were supported by substantial evidence in the record and were based on a
correct legal standard.” (citing Talavera v. Astrue, 697 F.3d 145, 145 (2d Cir.
2012))); see also id. (“If there is substantial evidence to support the
determination, it must be upheld.”). More than that, where the findings of the
SSA are supported by substantial evidence, those findings are “conclusive.”
Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995) (“The findings of the Secretary
are conclusive unless they are not supported by substantial evidence.” (citing
42 U.S.C. § 405(g))).
“[S]ubstantial evidence” is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Diaz, 59 F.3d at 312 (internal quotation marks omitted). The
substantial evidence standard is “a very deferential standard of review — even
17

more so than the clearly erroneous standard.” Brault v. Social Security Admin.
Comm’r, 683 F.3d 443, 449 (2d Cir. 2010). To make this determination —
whether the agency’s finding were supported by substantial evidence — “the
reviewing court is required to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be
drawn. Id. (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)
(per curiam)).
In order to qualify for disability benefits under the Act, a claimant must
demonstrate her “inability to engage in substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be
expected to result in death or that 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); see
also Butts v. Barnhart, 288 F.3d 377, 383 (2d Cir. 2004). The claimant must
also establish that the impairment is “of such severity that [the claimant] is not
only unable to do [her] previous work but cannot, considering [her] age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Further, the disability must be “demonstrable by medically acceptable clinical
and laboratory diagnostic techniques.” Id. § 423(d)(3).
The SSA employs a five-step analysis for evaluating disability claims.
See 20 C.F.R. § 404.1520(a)(1) (“This section explains the five-step sequential
evaluation process we use to decide whether you are disabled.”). The Second
Circuit has described the five-step analysis as follows:

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First, the Commissioner considers whether the claimant is
currently engaged in substantial gainful activity. If [she] is not, the
Commissioner next considers whether the claimant has a “severe
impairment” which significantly limits [her] 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 [her per se]
disabled.... Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, [she] has the residual functional capacity to
perform [her] past work. Finally, if the claimant is unable to
perform [her] past work, the Commissioner then determines
whether there is other work which the claimant could perform.
Selian, 708 F.3d at 417 (citing Talavera, 697 F.3d at 151). “The claimant bears
the burden of proving his or her case at steps one through four,” while the
Commissioner bears the burden at the final step. Butts, 388 F.3d at 383.
B.

Analysis
1.

The ALJ’s Decision Is Supported by Substantial Evidence

Applying the applicable standards, the Court finds no basis to overturn
the Commissioner’s decision that Plaintiff was not disabled under the Act. The
record wholly supports the conclusion that the ALJ’s decision was based on the
correct legal standard and supported by substantial evidence.
The ALJ correctly identified the two issues for his determination:
(i) whether Plaintiff was disabled under Sections 216(i), 223(d), and
1614(a)(3)(A) of the Act; and (ii) whether Plaintiff’s status requirements of
Sections 216(i) and 223 were met. (SSA Rec. 19). As to the latter issue, the
ALJ found that Plaintiff’s earnings record showed that she had acquired
sufficient quarters of coverage to remain insured through December 31, 2014,

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and thus met the insured status requirements. (Id.; see also id. at 21). There
is no reason to doubt the accuracy of this determination.
Proceeding to the primary issue — whether Plaintiff was disabled — the
ALJ applied the correct legal standard by employing the five-step evaluation
mandated under the regulations. See 20 C.F.R. § 404.1520(a). The ALJ
conducted a scrupulous review of Plaintiff’s testimony, her medical records,
and the opinions of her treating and consultative physicians. Further, the
ALJ’s determination was supported by substantial evidence, in the form of Dr.
Malhotra’s report, Plaintiff’s MRI reports, and the evidence provided regarding
Plaintiff’s work history. Lastly, because the ALJ found that Plaintiff was not
disabled at step three of the analysis, and that she retained the RFC to perform
prior, sedentary work at the fourth step of the analysis, he did not need to
proceed to the remaining step. See 20 C.F.R. § 404.1520(a)(4) (“If we find that
you are disabled or not disabled at a step, we make our determination or
decision and we do not go on to the next step.”); Whiting v. Astrue, No. 12 Civ.
274 (TCE), 2013 WL 427171, at *2 (N.D.N.Y. Jan. 15, 2013) (“[The five-step]
model is ‘sequential’ in that when a decision can be made at an early step,
remaining steps are not considered.” (internal citation omitted)).
Plaintiff’s objections arise from her contention that the ALJ’s decision
was not supported by substantial evidence. In this regard, Plaintiff raises
several overarching challenges to the ALJ’s determination. First, Plaintiff
contends that the ALJ improperly rejected Dr. Yuen’s opinion. (Pl. Br. 6-7). He
did not. As noted, Dr. Yuen was a treating physician at ODFMC, who

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evaluated Plaintiff once, in July 2011; he then completed functional
assessments in October 2011, in which he stated that Plaintiff was disabled
and precluded from performing sedentary work. The ALJ properly concluded
that Dr. Yuen’s opinion was poorly supported and appropriately assigned it
little weight. In fact, the lack of support for Dr. Yuen’s opinion is readily
apparent from the record. Dr. Yuen indicated that his opinion was based upon
an MRI study and Plaintiff’s abnormal gait, yet he admitted that his office had
no copies of the MRI, and his notes failed to detail any abnormal gait. (SSA
Rec. 233, 235, 335, 340, 344, 375-76). Dr. Yuen’s report also stated that his
functional assessment went back to 1993, yet Plaintiff’s medical records reveal
no visits to Dr. Yuen’s practice prior to July 2010, and no visits with Dr. Yuen
himself until July 2011. (Id. at 235-36, 332-34, 373).
“Although the treating physician rule generally requires deference to the
medical opinion of a claimant’s treating physician, the opinion of the treating
physician is not afforded controlling weight where, as here, the treating
physician issued opinions that are not consistent with other substantial
evidence in the record.” Penfield, 2014 WL 1673729, at *1 (internal citation
and quotation marks omitted); Lewis v. Colvin, 548 F. App’x 675, 678 (2d Cir.
2013) (summary order) (“With respect to [a treating physician’s] opinion, the
ALJ was not required to give it controlling weight where it was unsupported by
the objective medical evidence.” (internal citation omitted)). This is precisely
what the ALJ did here and the record supports his decision to do so. See De La
Cruz v. Colvin, No. 12 Civ. 3660 (SAS), 2014 WL 2998531, at *11 (S.D.N.Y.

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July 3, 2014) (“the ALJ did not err in placing limited weight on Dr. Tedoff’s
findings because they were inconsistent with the medical evidence”).
Relatedly, Plaintiff takes issue with the reasons the ALJ gave for affording
Dr. Yuen’s opinion little weight. (Pl. Br. 7-8). The ALJ reported that Dr. Yuen’s
opinion conflicted with Dr. Malhotra’s report, which found Plaintiff capable of
performing sedentary work. Plaintiff objects that Dr. Malhotra is not an
orthopedist, but rather a general surgeon; neither, however, is Dr. Yuen. (Id. at
8; Def. Br. 10-11 (internal citations omitted)). Plaintiff objects that Dr.
Malhotra’s opinion is based upon a functional assessment completed in one
visit; the same, however, can be said for Dr. Yuen’s. (Pl. Br. 7-8; SSA Rec. 33234). Upon finding, correctly, that Dr. Yuen’s opinion was unsupported and
inconsistent with the other credible evidence, the ALJ properly discounted Dr.
Yuen’s opinion in favor of Dr. Malhotra’s well-supported opinion. See Holloran
v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (medical opinions may constitute
substantial evidence, even in the face of contrary opinions by a claimant’s
treating physician).
Plaintiff’s second contention is that the ALJ failed to discuss the findings
of “annular fissures which were contacting the S1 nerve root” in the most
recent MRI. (Pl. Br. 7). However, the ALJ is “not required to discuss every
piece of evidence submitted.” Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 449
(2d Cir. 2012) (internal citation and quotation marks omitted). Notably, the
record reveals that the ALJ reviewed both MRI reports in considerable detail.
(See, e.g., SSA Rec. 23, 25).

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Third, Plaintiff argues that the ALJ improperly concluded that Plaintiff
could perform her past work as a medical receptionist. (Pl. Br. 10). “The
burden is with [Plaintiff] to show that she lacks the functional capacity to
perform in her past employment position.” Tankisi v. Comm’r of Soc. Sec., 521
F. App’x 29, 35 (2d Cir. 2013) (summary order) (citing Petrie v. Astrue, 412 F.
App’x 401, 404 (2d Cir. 2011) (summary order)); see generally Rosa v.
Callahan, 168 F.3d 72, 77-78 (2d Cir. 1999) (collecting cases). Plaintiff has
failed to carry her burden.
The ALJ properly determined that Plaintiff had the RFC for sedentary
work based upon his careful review of her testimony and the objective medical
evidence. The ALJ determined that Plaintiff’s testimony regarding her capacity
was simply “not credible” in light of her continued work after the alleged onset
date of her disability. The Court sees no reason to question the ALJ’s
credibility assessment, the basis of which is apparent from the record. See
Tankisi, 521 F. App’x at 35 (“Generally, it is the function of the ALJ, not the
reviewing court, to appraise the credibility of witnesses.” (internal citation
omitted)).
Moreover, the ALJ’s determination that Plaintiff’s prior sedentary work fit
comfortably within her RFC was supported by substantial evidence: Plaintiff’s
own work report, recent MRI studies, and Dr. Malhotra’s assessment. See
Hancock v. Barnhart, 308 F. App’x 520, 521 (2d Cir. 2009) (summary order)
(“The Commissioner’s decision that Plaintiff can perform his previous work is
supported by substantial evidence. Several doctor’s opinions as to Plaintiff’s

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residual functional capacity support the ALJ’s finding.”). The Court has
already determined that Dr. Malhotra’s report, which was consistent with
Plaintiff’s MRI findings, constituted substantial evidence. And to the extent
that Plaintiff contends it was error to rely on her work report for information
about her previous employment (Pl. Br. 10), the Commissioner’s rulings clearly
provide that a “properly completed [work history report] may be sufficient to
furnish information about past work.” SSR 82-61, 1982 WL 31387, at *2.
Plaintiff lastly objects that the ALJ failed to reconcile Dr. Malhotra’s
statement regarding Plaintiff’s “mildly slow fine dexterity of the hands” with the
fact that “most sedentary jobs require good use of the hands and fingers.” (Pl.
Br. 10). But Dr. Malhotra’s report addresses, and resolves, this issue. Dr.
Malhotra necessarily determined that any “mildly slow fine dexterity” would not
interfere with Plaintiff’s ability to perform sedentary work, because Dr.
Malhotra ultimately assessed that Plaintiff was capable of “continuously”
handling, feeling, or fingering objects with her hands. (Id. at 312, 316).
Plaintiff’s previous sedentary work fits well within these parameters. (See Id. at
191).
Having reviewed the entire record, the Court finds that the
Commissioner’s decision to deny Plaintiff’s application for SSDI and SSI
benefits is free from legal error and supported by substantial evidence in the
record. Accordingly, there is no reason for it to be overturned.

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CONCLUSION
For the foregoing reasons, the Commissioner’s decision is affirmed;
Defendant’s motion for judgment on the pleadings is GRANTED; and Plaintiff’s
motion for judgment on the pleadings is DENIED. The Clerk of Court is
directed to terminate Docket Entries 14 and 17, and to mark the case as
closed.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this Order would not be taken in good faith; therefore, in forma pauperis
status is denied for purposes of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45.
SO ORDERED.
Dated: July 18, 2014
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge

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