Diaz v. Colvin
Filing
17
OPINION AND ORDER re: 14 CROSS MOTION for Judgment on the Pleadings filed by Carolyn W Colvin, 12 MOTION for Judgment on the Pleadings filed by Manuel Diaz: For the foregoing reasons, the Commissioner's decisio n 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 all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 7/19/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
MANUEL DIAZ,
:
:
:
Plaintiff,
:
:
v.
:
CAROLYN W. COLVIN, Acting
:
:
Commissioner of Social Security,
:
Defendant. :
:
----------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: July 19, 2015
______________
14 Civ. 2277 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge: 1
Plaintiff Manuel Diaz 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 Supplemental Security Income (“SSI”) based on a
finding that Plaintiff was not disabled under the Act. The parties have crossmoved 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.
1
Madeleine S. Shiff, a rising second-year student at Columbia Law School and an intern
in my Chambers, provided substantial assistance in researching and drafting this
Opinion.
BACKGROUND 2
A.
Plaintiff’s Proffered Ailments
Plaintiff, born in 1969, applied for SSI in September 2010. (SSA
Rec. 77). He alleges that he became disabled on January 1, 2000, and
complains of maladies including back impairment, pain and discomfort from a
rod in his left leg, human immunodeficiency virus (or “HIV”), an Achilles tendon
spur, ankle arthritis, obesity, eye tearing stemming from a hole in his retina,
gastroesophageal reflux disease, hyperlipidemia, and various symptoms
associated with alcohol abuse. (Id. at 79, 103-11, 205). 3 At his August 6, 2012
administrative hearing, Plaintiff reported an “overall worsening of his pain
condition,” stemming in part from the rod in his left leg, which was inserted
after his left femur was broken in 1995. (Id. at 97; see also id. at 77, 79, 110,
242-43). 4
Plaintiff further reported at the hearing that, at that time, his “leg and …
back” were the “most limiting … as far as [his] ability to work.” (SSA Rec. 11011). According to Plaintiff, a combination of bulging discs and arthritis in his
back allowed him to sit for “three hours until the pain start[ed],” and to stand
2
The facts contained in this Opinion are drawn from the Social Security Administrative
Record (“SSA Rec.”) (Dkt. #8) filed by the Commissioner as part of her answer. For
convenience, Plaintiff’s supporting memoranda are referred to as “Pl. Br.” and “Pl.
Reply,” and Defendant’s supporting memorandum as “Def. Br.”
3
Plaintiff testified at his hearing that the chronic back and leg pain were the only
impairments he considered severe. Further, he stated that he did not have a drinking
problem, even though the record discloses substantial evidence to the contrary. (SSA
Rec. 103-06).
4
The record indicates that the accident occurred in 1995, yet Plaintiff claims, without
explanation, that he did not become disabled until January 1, 2000. (SSA Rec. 77, 79).
2
for “forty-five minutes … at a time” prior to the onset of pain. (Id. at 104-05).
Plaintiff would have to “put something hot” on his back “like the hot pad” when
the pain ensued. (Id. at 105). According to Plaintiff, the pain in his back and
left thigh occasionally woke him up at night, but only when he “forg[o]t to take
medication.” (Id. at 107).
Plaintiff related other symptoms that did not substantially affect his
ability to work. (SSA Rec. 111). For example, Plaintiff attributed occasional
fatigue and diarrhea to his HIV, but stated that he preferred to manage the
symptoms himself with “herbs and vitamins,” rather than the medication
recommended by his doctors. (Id. at 108, 111-12). Plaintiff also described pain
in his right foot, which occasionally turned “black and blue” from bone spurs.
(Id. at 106). He complained of eye irritation, noting that his eyes would itch
and “tear up … for no reason sometimes,” although he admitted this was not a
severe impairment. (Id. at 109-10). Finally, Plaintiff complained that his
weight was a problem because he “[could not] really do anything to lose it,” but
did not claim that it affected his ability to work. (Id. at 108).
At the time of the August 2012 hearing, Plaintiff lived with his mother
(SSA Rec. 98). On a typical day, Plaintiff would do “light cleaning” around the
house — as long as it did not involve strenuous bending — including taking
care of his mother’s two dogs, writing and attempting to copyright music, and
cooking dinner for himself and his mother. (Id. at 98-101). When performing
household chores, Plaintiff did not need to use a cane around the house as he
“could lean against the walls” to balance himself as necessary. (Id. at 106).
3
Plaintiff would also feed the dogs, let them out in the pen, and play with them
while lying on the couch. (Id. at 100-01). In addition to writing songs, Plaintiff
sent such songs and poems to online agencies to request feedback on his
music and to seek out individuals with whom he could collaborate. (Id. at 99).
B.
The Record Evidence of Plaintiff’s Ailments
It is uncontested that for Plaintiff to qualify for SSI, his disability must
have begun on or before September 8, 2010, the date on which Plaintiff filed
his application for benefits. (SSA Rec. 92). As noted above, Plaintiff claims the
onset of the disability occurred on January 1, 2000. (Pl. Br. 1). The parties
agree that the relevant period for this SSI claim runs from September 8, 2010,
to August 24, 2012. (Id.; Def. Br. 1; see also SSA Rec. 77, 92).
1.
Medical Evidence Prior to September 8, 2010
Plaintiff’s first medical treatment in the record before the Court occurred
on March 24, 2009, when he saw his primary care physician, Dr. Kenneth
Desa, for “right ear discomfort.” (SSA Rec. 309). Dr. Desa noted that Plaintiff
had not sought treatment for his HIV status in the preceding six months and
recommended medication. (Id. at 309-10). He also noted Plaintiff’s alcohol
consumption. (Id. at 309).
At the request of Dr. Desa, Dr. Gary Fink saw Plaintiff for an orthopedic
evaluation of his left femur on May 4, 2009. (SSA Rec. 253). Dr. Fink noted
that apart from a “couple episodes of discomfort” related to the femur injury,
Plaintiff was an “otherwise healthy young man.” (Id.). Upon examination, Dr.
Fink noted that Plaintiff was “walking with two crutches but [was] able to bear
4
full weight.” (Id.). He further recorded that Plaintiff had “some restricted range
of motion on the left hip … particularly in rotation with pain over the
trochanteric area,” 5 but that there was “no gross swelling in the thigh and no
erythema.” 6 (Id.). On Plaintiff’s x-rays, Dr. Fink observed a “healed femoral
fracture [with a] rod in situ,” a “chronic nonunion of the greater trochanter[,]”
and a fracture of the top of the rod. (Id.). Dr. Fink recommended that Plaintiff
be treated with heat, the “use of a cane for a short period of time[,] and [a]
short course of anti[-]inflammatories.” (Id. at 254). Dr. Fink also stated that
Plaintiff “may benefit at a future date from rod removal, although rod removal
could be quite difficult in the face of the rod fracture.” (Id.).
Plaintiff visited Dr. Desa periodically, sometimes monthly, from May
2009 to the start of the relevant period in September 2010. (See SSA Rec. 31140). During these visits, Dr. Desa reviewed Plaintiff’s lab results regarding
changes in his HIV status and discussed with Plaintiff his “Alcohol Abuse” and
liver function test results. (Id. at 311, 314, 316-17, 319, 322-24, 327, 329,
331, 334-35, 337). 7 While noting several times Plaintiff’s complaints of leg
pain, apparently associated with his metal rod, Dr. Desa concluded that
Plaintiff’s symptoms remained consistent over time. (E.g., id. at 329).
5
The trochanter is a rough area at the upper part of the femur where muscles attach.
Trochanter, Merriam-Webster Dictionary, http://www.merriam-webster.com/
dictionary/trochanter (last visited July 17, 2015).
6
Erythema refers to abnormal redness of the skin due to capillary congestion. Erythema,
http://www.merriam-webster.com/dictionary/erythema (last visited July 17, 2015).
7
Among other things, Dr. Desa noted Plaintiff’s refusal to attend rehabilitation sessions.
(SSA Rec. 318, 335).
5
On December 25, 2009, after several days of complaining of pain in his
abdomen, Plaintiff underwent an appendectomy at St. Luke’s Hospital. (SSA
Rec. 257-69). Plaintiff had a follow-up appointment with Dr. Desa on January
7, 2010. (Id. at 324). Upon examination, Dr. Desa wrote that Plaintiff’s
abdomen was “soft[,]” but did not note any issues associated with the
appendectomy. (Id.). More importantly, Dr. Desa found that Plaintiff’s back
was “normal,” his limbs were “unremarkable,” and that he had a “full range of
motion.” (Id.). When Plaintiff complained of pain and a rash at the surgical
site at his next visit on January 14, 2010, Dr. Desa ruled out an abscess and
prescribed lotrisone cream. (Id. at 327). 8
Dr. Desa conducted his first assessment of Plaintiff’s “ability to do work
related activity” on January 7, 2010. (SSA Rec. 345-49). Although Dr. Desa’s
notes are partially obscured in the record, the parties agree that Dr. Desa wrote
that Plaintiff could, in an eight-hour workday, lift and carry up to ten pounds
occasionally, sit for five hours, and stand and walk for two hours each. (Id. at
345-46; Pl. Br. 2-3; Def. Br. 6).
On August 5, 2010, Plaintiff went to the emergency room due to pain in
his lower back. (SSA Rec. 296-97). During the examination, Plaintiff
complained of pain on palpation of the lumbar muscles bilaterally and pain
during range of motion testing. (Id. at 297). The attending physician
8
Lotrisone is an antifungal medication used to treat rashes. Betamethasone Topical,
National Institutes of Health, U.S. National Library of Medicine, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682799.html (last visited
July 17, 2015).
6
diagnosed back pain, 9 for which he recommended a combination of heat and
ice on the lower back three times daily and a prescription for Naproxen and
Flexeril. 10 (Id. at 298).
Plaintiff visited Dr. John Galeno, pursuant to a referral from Dr. Desa,
for physical therapy for his back on September 1, 2010. (SSA Rec. 306-08,
337). Dr. Galeno recommended a treatment plan of moist heat, electrical
stimulation, ultrasound, strengthening, and exercise three times per week for
six weeks. (Id. at 307). The record does not indicate what course of treatment,
if any, Plaintiff followed.
2.
Medical Evidence Between September 8, 2010, and
August 24, 2012
a.
Consultations in September and October 2010
The first record of medical treatment during the relevant time period
occurred on September 10, 2010, when Dr. Frederick Ayers of Orange
Radiology Associates reviewed an MRI of Plaintiff’s lumbar spine. (SSA
Rec. 353). Dr. Ayers determined that there was “no evidence of disc herniation
9
The attending physician also recommended that Plaintiff take three days off of work,
which the Court understands to mean that Plaintiff was to rest for three days, as he
was not employed at the time. (SSA Rec. 298).
10
Naproxen is used to relieve pain, tenderness, swelling, and stiffness caused by arthritis.
Naproxen, National Institutes of Health, U.S. National Library of Medicine, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681029.html (last visited
July 17, 2015).
Flexeril, otherwise known as cyclobenzaprine, is a muscle relaxant used with rest,
physical therapy, and other measures to relax muscles and relieve pain and discomfort
caused by strains, sprains, and other muscle injuries. Cyclobenzaprine, National
Institutes of Health, U.S. National Library of Medicine, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682514.html (last visited
July 17, 2015).
7
or spinal canal stenosis” in the MRI, and noted “[d]isc bulges at L3-4 and L4-5”
and “[p]ossible osteoarthritis of L3-4.” (Id.). 11
On September 22, 2010, Plaintiff had an appointment with Dr. Christine
Kerr of Hudson River HealthCare, Inc. regarding complaints of shortness of
breath after having quit smoking three weeks earlier. (SSA Rec. 338). Upon
examination, Dr. Kerr determined that Plaintiff’s heart and lungs were normal
and his breathing rate was “regular.” (Id.). She also determined that his gait
was normal, that he had a “full range of motion” in his back and legs, and that
Plaintiff experienced “no joint tenderness or swelling.” (Id.). Regarding
Plaintiff’s HIV status, Dr. Kerr “discussed with patient at length”
recommendations to take medication, but noted that “patient [was] highly
reluctant” and preferred vitamins and “lifestyle modification” instead. (Id. at
338-39). Dr. Kerr further wrote about Plaintiff’s episodic alcohol abuse, but
noted that Plaintiff did “not want further [help] at this time.” (Id. at 339). In
addition, Dr. Kerr affirmed Dr. Ayers’s finding of possible osteoarthritis in
Plaintiff’s back and noted Plaintiff’s scheduled follow-up appointment with an
orthopedist. Dr. Kerr also referred Plaintiff to a podiatrist regarding “first toe
pain” with “black/blue/erythematous discoloration.” (Id.). Finally, she
recommended a follow-up visit in four weeks, which Plaintiff does not appear to
have scheduled. (Id.).
11
References in this Opinion to “L-[number]” and “S-[number]” pertain to Plaintiff’s
lumbar and sacral vertebrae, respectively.
8
Plaintiff visited the recommended podiatrist, Dr. Robert Greco of Orange
Radiology Associates, on October 19, 2010. (SSA Rec. 354; repeated at id. at
355). After taking x-rays of Plaintiff’s foot, Dr. Greco diagnosed Plaintiff with a
“small Achilles tendon spur” and a “tiny calcaneal spur.” (Id. at 354). 12
b.
Leena Philip, M.D
On November 10, 2010, Plaintiff underwent a consultative examination
by Dr. Leena Philip, an internist at Industrial Medicine Associates, P.C. (SSA
Rec. 361-65). Dr. Philip wrote an extensive report of Plaintiff’s conditions, and
this report was heavily considered by the Administrative Law Judge (the “ALJ”)
in this case. (Id.; see also id. at 81).
At the appointment, Plaintiff described his “low back pain as a 1 to 2 out
of 10 while sitting and a 10 out of 10 while standing.” (SSA Rec. 361).
Further, Plaintiff described the chronic pain in his left leg as a “5 to 10 out of
10,” and further described the pain as “intermittent” and “sharp[,]” which
“worsened with prolonged walking and lifting, and decreased with pain
medications.” (Id.).
Plaintiff described his daily activities to Dr. Philip. Dr. Philip noted that
Plaintiff was able to “cook three times a week” and perform “light cleaning, light
laundry, and light shopping once a week.” (SSA Rec. 362). She also noted,
Plaintiff “showers, bathes, and dresses daily.” (Id.).
12
A calcaneal spur is a heel spur, which is a calcium deposit causing a bony protrusion
on the underside of the heel bone. Glossary of Foot & Ankle Terms, American
Orthopaedic Foot & Ankle Society
http://www.aofas.org/footcaremd/overview/Pages/Glossary.aspx (last visited July 17,
2015).
9
Dr. Philip observed firsthand Plaintiff’s gait, noting that he “appeared to
be in no acute distress[,]” but that he was “unable to walk on heels and toes.”
(SSA Rec. 362). She further indicated that Plaintiff could perform “70% of a
full squat, but he need[ed] to hold onto a chair for support.” (Id.). Finally, Dr.
Philip wrote that “in [her] opinion, the cane is not medically necessary” because
Plaintiff’s gait was “normal” without the cane and he did not need “help
changing for [the] exam or getting on and off [the] exam table.” (Id. at 363).
During the visit, Plaintiff’s musculoskeletal exam was largely normal with a
slight decrease in the range of motion of the left knee. (Id.).
Dr. Philip concluded her report with a “good” prognosis for Plaintiff. (SSA
Rec. 364). She stated that in her opinion, Plaintiff had “mild limitations for
prolonged standing, walking, climbing stairs, kneeling, and squatting due to
left leg pain.” (Id.).
c.
Kenneth Desa, M.D.
The first medical record from Dr. Desa during the relevant time period is
a Physical Assessment for Determination of Employability form (an
“Assessment Form”) 13 that Dr. Desa completed for the Orange County
Department of Social Services on April 6, 2011. (SSA Rec. 373-74). In “Chart
1-Exertional Functions,” Dr. Desa indicated that Plaintiff was able to lift 10
13
Each form contains a standardized template that allows a physician to opine on the
patient’s treatment history, diagnostic information, employability determinations,
referral recommendations, and any other recommendations related to a possible SSI
referral. (SSA Rec. 373-74). In the employability determination portion, checkboxes
allow the doctor to indicate the patient’s ability to engage in work activities, and for
what length of time; a chart permits the doctor to indicate the patient’s physical
exertional range.
10
pounds, stand and walk for fewer than two hours per day, and sit for fewer
than six hours per day. (Id. at 374). Dr. Desa further checked a box indicating
that Plaintiff was capable of participating in work activities on a part-time basis
for two to four hours per day, three days per week, in a job that did not require
lifting, pulling, or pushing more than ten pounds. (Id.). Finally, Dr. Desa
stated that Plaintiff’s back and leg pain constituted a “severe impairment” that
“[had] lasted, or was expected to last at least 12 months.” (Id.).
Dr. Desa completed another Assessment Form on January 3, 2012, in
which he opined that Plaintiff could lift ten pounds, stand for two hours, walk
for two hours, and sit for six hours in a typical eight-hour workday. (SSA
Rec. 414-15). He further noted that Plaintiff could work part-time for two
hours per day, five days a week. (Id. at 415). Dr. Desa again stated that
Plaintiff should be limited to a job in which he would not have to lift, pull, and
push more than ten pounds at a time. (Id.).
d.
X-Ray and MRI Results in April and June 2011
An April 27, 2011 radiology report indicated that an x-ray of Plaintiff’s
lumbar spine revealed a moderate narrowing of the spinal discs between his
L3-L4, L4-L5, and L5-S1 vertebrae. (SSA Rec. 377). The x-ray also showed
mild stenosis 14 at L3-L4 and L4-L5; osteophyte formation 15 at L2, L3, L4, and
14
Spinal stenosis causes narrowing in the spine. The narrowing puts pressure on nerves
and the spinal cord and can cause pain. Spinal Stenosis, National Institutes of Health,
U.S. National Library of Medicine, MedlinePlus,
http://www.nlm.nih.gov/medlineplus/spinalstenosis.html (last visited July 17, 2015).
15
An osteophyte is a bony outgrowth at a joint margin of an osteoarthritic joint, or in
degenerative disc disease. Patient Resources-Glossary, Spondylitis Association of
11
L5; an “asymmetrical facet tropism 16” at “L4/L5 level”; and a “completely fused
transitional segment present at lumbosacral junction.” (Id.). An x-ray of
Plaintiff’s left femur and hip showed the rod, and a “possible rod fracture at the
proximal end.” (Id.).
On June 5, 2011, Dr. Prakash Patel of Orange Radiology Associates
examined an MRI of Plaintiff’s lumbar spine and determined that at L3-L4
there was “disc desiccation, 17 minimal endplate discogenic changes, 18 a bulging
disc,” as well as “left facet arthropathy.” 19 (SSA Rec. 399). Dr. Patel also noted
that at L4-L5 there was a “bulging disc without focal disc herniation or canal
stenosis.” (Id.). Dr. Patel concluded that there was “no significant interval
change” from Plaintiff’s prior MRI on September 10, 2010, that Dr. Ayers
reviewed. (Id. at 353, 399).
America, http://www.spondylitis.org/patient_resources/glossary.aspx (last visited
July 17, 2015).
16
Facet tropism is asymmetry in the facet joint angles of the lumbar and lumbosacral
regions of the spine. Facet joints are the structures that connect the vertebrae to each
other. Relationship of Facet Tropism with Degeneration and Stability of the Spinal Unit,
National Institutes of Health, U.S. National Library of Medicine,
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2768235/ (last visited July 17, 2015).
17
Disc desiccation is a “common degenerative change of intervertebral discs.” Disc
desiccation, UBM Medical Network, http://radiopaedia.org/articles/disc-desiccation
(last visited July 17, 2015).
18
Discogenic endplate changes can play a role in degenerative spine disease. Discogenic
Endplate Changes, Laser Spine Institute,
https://www.laserspineinstitute.com/back_problems/spinal_anatomy/endplate_
changes/ (last visited July 17, 2015).
19
Facet joint arthropathy refers to a degenerative disease that affects the facet joints of
the spine, and can cause the disintegration of cartilage on those joints. Facet Joint
Arthropathy, Laser Spine Institute,
https://www.laserspineinstitute.com/back_problems/facet_disease/articles/facet_joint
_arthropathy/ (last visited July 17, 2015).
12
e.
Steven E. Moskowitz, D.P.M.
Podiatrist Steven Moskowitz examined Plaintiff for right foot pain on
October 19 and November 9, 2011. (SSA Rec. 378-79). On both occasions, Dr.
Moskowitz noted that Plaintiff’s gait was “antalgic.” 20 At the October visit, Dr.
Moskowitz diagnosed Plaintiff with “Pain In Limb,” which he treated with an
injection of Marcaine 21 and Vitamin B-12 around the affected site, and a
prescription for Lidocaine. 22 (Id. at 378). At the November 9 follow-up
appointment, Dr. Moskowitz diagnosed Plaintiff with hallux valgus (commonly
known as a bunion) and anterior ankle arthritis. (Id. at 379). Dr. Moskowitz
administered the same injections to the affected site, renewed the Lidocaine
prescription, and applied a bunion splint to Plaintiff’s foot. (Id.).
f.
Spinal injections
On February 28, 2012, as a therapeutic remedy for Plaintiff’s “facet
syndrome,” Dr. Jeffrey Schorr, M.D., of East Coast Pain Management, P.C.,
administered a Xylocaine 23 injection at the L4 and L5 facets. (SSA Rec. 380).
On April 3, 2012, Dr. Maria Rivera-Iturbe, also of East Coast Pain
Management, administered a Lidocaine injection (the site of the injection is
20
An antalgic gait, otherwise known as a limp, is adopted so as to avoid pain on weightbearing structures, and is characterized by a very short stance. Antalgic gait, The Free
Medical Dictionary, http://medical-dictionary.thefreedictionary.com/antalgic+gait (last
visited July 17, 2015).
21
Marcaine is a local anesthetic. Marcaine, The Free Medical Dictionary, http://medicaldictionary.thefreedictionary.com/Marcaine (last visited July 17, 2015).
22
Lidocaine is a local anesthetic that causes numbness and relieves pain and itching; it is
prescribed as a topical solution. Lidocaine, Mayo Clinic,
http://www.mayoclinic.org/drugs-supplements/lidocaine-topical-applicationroute/description/drg-20072776 (last visited July 17, 2015).
23
Xylocaine is as another name for Lidocaine.
13
obscured in the report). (Id. at 396-98). On May 17, 2012, Dr. Rivera-Iturbe
administered a Marcaine injection at the L3 and L4 facets. (Id. at 385-86).
3.
Medical Evidence Subsequent to the ALJ’s Final Decision of
August 24, 2012
Since the ALJ’s decision, Plaintiff has visited several additional doctors.
(See SSA Rec. 8-61). On October 9, 2013, Dr. Faguna Patel of Vassar Brothers
Medical Center performed a radiofrequency ablation 24 of the median branch
nerves of the left L3, L4, and L5 facets of Plaintiff’s spine. (Id. at 53-56).
Further, on December 12, 2013, Plaintiff again visited Dr. Fink due to pain in
his left femur. (Id. at 51). Significantly, Dr. Fink wrote, “Patient has requested
some work papers be filled out. From my standpoint there is no disability
related to the femoral rodding and resulting issues with the rod. Patient can
work normally without restrictions.” (Id.). In December 2013, Plaintiff also
sought treatment from Dr. Moskowitz for foot pain, from whom he received an
injection of Marcaine to block the nerve, a prescription for orthotics, and
referral for physical therapy. (Id. at 14).
On January 8, 2014, Dr. Desa completed another Assessment Form for
Plaintiff, which indicated a slight decline in Plaintiff’s condition. (SSA Rec. 89). Dr. Desa opined that Plaintiff could lift fewer than ten pounds occasionally,
stand for two hours per day, walk fewer than two hours per day, and sit for
24
Radiofrequency ablation is a procedure using radio waves or electric current to generate
sufficient heat to interrupt nerve conduction on a semi-permanent basis. It is used to
treat neck and back pain stemming from facet joint problems. Radiofrequency Ablation,
MedCentral Health, http://www.medcentral.org/Main/RadiofrequencyAblation.aspx
(last visited July 17, 2015).
14
fewer than six hours per day. (Id. at 9). In describing Plaintiff’s treatment
history, Dr. Desa noted that Plaintiff had “chronic back and leg pain” and was
“currently awaiting surgery.” (Id. at 8). He then wrote that Plaintiff could not
work 25 for the following three months “pending surgery” or “until cleared by
surgeon.” (Id. at 9). Nevertheless, Dr. Desa determined that “based on the
evidence available,” Plaintiff did not have a severe impairment that “ha[d]
lasted, or [wa]s expected to last at least 12 months.” (Id.).
The following week, Plaintiff visited Dr. Louis F. Amorosa, an orthopedic
surgeon, to examine his left femur with a view to determining whether surgery
would alleviate his pain. (SSA Rec. 11-12). Dr. Amorosa listed a number of
risks associated with the procedure, including possible infection or fracturing
of the bone. (Id. at 12). Dr. Amorosa noted that he would be able to schedule
Plaintiff’s surgery if he decided to move forward with it, but neither
recommended surgery nor discouraged it. (Id.).
C.
Plaintiff’s Work History
Plaintiff completed his GED in 2001. (SSA Rec. 228). In his ALJ
testimony, Plaintiff reported that he had not applied for any work for a period
of years preceding the hearing, as he was either “in too much pain or … too
drowsy from the medications” to do so. (Id. at 99). Plaintiff was unable to
recall when he had last worked, but estimated that it was five or six years prior
to his hearing when he worked as a property manager for $100 per week. (Id.
25
As discussed above, because Plaintiff was not employed at the time, the Court
interprets this recommendation to mean that Plaintiff should not have performed
strenuous activities during the designated period.
15
at 101-03). Further, in 2006, Plaintiff worked as a cashier at Macy’s for “about
eight months” on a seasonal basis, making “about $900 a month.” (Id. at 116,
118, 216, 228).
D.
Social Security Administrative Proceedings 26
Plaintiff filed an application for SSI on September 8, 2010, alleging
disability since January 1, 2000. (SSA Rec. 205). Plaintiff’s application was
denied by the Social Security Administration on December 7, 2010. (Id. at 13538). At Plaintiff’s request, a hearing was held before ALJ Michael Stacchini on
August 6, 2012, at which Plaintiff and his counsel were present. (Id. at 89121). The ALJ conducted a de novo review of the record and on August 24,
2012, issued a decision finding that Plaintiff was not disabled as defined by the
Social Security Act. (Id. at 77-84).
26
The SSA employs a five-step analysis for evaluating disability claims. See 20 C.F.R.
§ 416.920(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 fivestep analysis 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 per se]
disabled.... Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his 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.
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (citing Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012)). “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 v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004).
16
In his decision, the ALJ first considered whether Plaintiff had been
engaged in substantial gainful activity, explaining 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. 78 (citing 20 C.F.R.
§ 416.972(a), (b))). If an individual engages in substantial gainful activity, he is
deemed not disabled. 20 C.F.R. § 416.920(a)(4)(i). The ALJ determined that
Plaintiff had not been engaged in substantial gainful activity since his
application date of September 8, 2010. (Id. at 79).
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. 416.920(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. 78). Conversely, “[a]n impairment or combination of
impairments is ‘not severe’ when medical and other evidence 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. at 78 (citing
20 C.F.R. § 416.921 and Social Security Rulings (“SSR”) 85-28, 96-3p, and 964p)). According to the statute, “If a claimant does not have either a severe
medically determinable or combination of impairments, he is not disabled.”
(Id.).
17
The ALJ determined that Plaintiff had the following severe impairments
since September 8, 2010: “human immunodeficiency virus, bulging lumbar
discs, [r]od in left lower extremity, Achilles tendon spur, ankle arthritis,
obesity, [and] facet syndrome.” (SSA Rec. 79). The ALJ found no other severe
impairments; he noted that Plaintiff stated that he had a hole in his retina, but
that this injury did not affect Plaintiff’s ability to work. (Id.). Further, the ALJ
noted that there was evidence suggestive of Plaintiff’s alcohol abuse in the
record, but determined that any such condition would not be considered
“severe,” given Plaintiff’s assertion that he had largely given up drinking ten
years prior. (Id.). 27
The ALJ then moved on to the third step of the analysis, to determine
“whether the claimant’s impairment or combination of impairments is of a
severity to meet or medically equal the criteria of an impairment listed in 20
CFR Part 404, Subpart P, Appendix 1.” (SSA Rec. 78 (citing 20 C.F.R.
§§ 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.” (Id. at 79). In making this determination, the
27
The ALJ also noted that there was some evidence that Plaintiff had been treated for
gastroesophageal reflux disease and hyperlipidemia, but that there was “no evidence
that these conditions impose[d] more than minimal limitations upon him, and
consequently … must also be considered nonsevere.” (SSA Rec. 79). The record
evidence of these conditions is very thin, and they were not discussed at the hearing;
that the ALJ even addressed them evidences his thorough consideration of the record.
(See, e.g., id. at 335 (noting, in July 2, 2010 medical record, Plaintiff suffered epigastric
burning associated with binge drinking, but that symptoms had resolved), 322
(assessing, in October 6, 2010 medical record, Plaintiff as having hyperlipidemia, or
high lipid levels in his blood, without further discussion)).
18
ALJ considered listings 1.02(A) (major dysfunction of a weight bearing joint)
and 1.03 (reconstructive surgery or surgical arthrodesis of a major weight
bearing joint) both of which involve a claimants inability to ambulate
effectively. (Id. at 79-80). However, the ALJ found that Plaintiff’s records did
not reveal that he had “any major dysfunction of a weight bearing joint or that
[he] underwent any surgery of such a joint.” (Id. at 80). In fact, the ALJ noted,
Dr. Philip had stated that although Plaintiff was “using a cane, his gait was
normal both with and without the cane[,]” and thus there was “no evidence of
an inability to ambulate.” (Id.).
The ALJ then proceeded to evaluate Plaintiff’s residual functional
capacity (“RFC”). After considering the evidence, the ALJ determined that
Plaintiff:
ha[d] the residual functional capacity to perform
sedentary 28 work as defined in 20 CFR 416.967(a)
except that he [could] only occasionally climb ramps or
stairs, never climb ladders, ropes, or scaffolds, [could]
only occasionally balance, stoop, kneel, crouch, and
crawl; would be limited to jobs that [could] be performed
by using a handheld assistive device; would require
ready access to the bathroom provided not off task more
than 5% of the work day in addition to regularly
scheduled breaks, and would be permitted to be off task
28
“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,
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, 563 F. App’x 839, 840 n.1 (2d Cir. 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)).
19
5% of the work day in addition to regularly scheduled
breaks with one unexcused absence per month.
(SSA Rec. 80). In reaching his 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.” (Id. (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.” (SSA Rec. 82). 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 functioning.” (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 undersigned must make a
finding on the credibility of the statements based on a consideration of the
entire case record.” (Id.).
After careful consideration of all the evidence, the ALJ found that while
Plaintiff’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms, his “statements concerning the intensity,
persistence and limiting effects of these symptoms [were] not credible.” (SSA
Rec. 82). First, the ALJ considered the medical evidence. He acknowledged
that Plaintiff “does have some orthopedic issues” that limited his ability to
stand, walk, and lift heavy objects. (Id.). However, he found that Plaintiff was
20
not “altogether incapacitated,” as consultative examiners found “only mild
limitations” and even raised questions as to whether Plaintiff actually needed to
use his cane. (Id.). Further, the Plaintiff had only disc bulges, not herniated
discs. (Id.). Finally, the ALJ concluded that Plaintiff’s “leg and foot problems
[did] not create total instability, and at any rate should not affect [his] ability to
do a sit down job.” (Id.).
The ALJ then turned to Plaintiff’s hearing testimony regarding his daily
activities. The ALJ noted that Plaintiff’s ability to do light cleaning, laundry,
shopping, and cooking was “not suggestive of an individual whose exertional
capacities [were] totally compromised.” (SSA Rec. 82). Further, the ALJ
determined that Plaintiff’s hobbies of writing music and poetry indicated “an
ability to do a sit down job and also suggest[ed] that he [was] not subject to the
unrelenting pain alleged.” (Id.). According to the ALJ, Plaintiff was able to
perform sedentary work in which he could sit for a maximum of six hours,
stand and work for two hours, and lift no more than ten pounds on occasion.
However, Plaintiff would need to be permitted to be off-task for 5% of the
workday in deference to his HIV condition. (Id. at 82-83). The ALJ determined
that Plaintiff could work if afforded these accommodations.
Second, the ALJ found that Dr. Desa’s opinion evidence, which suggested
that Plaintiff’s capabilities had been gradually reduced, was “not supported by
any objective medical data[.]” (SSA Rec. 83). For starters, the ALJ noted that
the limitations Dr. Desa ascribed to Plaintiff were inconsistent with the medical
records in evidence. He further observed that Dr. Desa’s “check off forms” were
21
at times internally inconsistent, insofar as they stated that Plaintiff could “sit
for six hours a day, stand and walk for two, but then limited [him] to only two
hours [of] work per day.” (Id.). As a result, the ALJ determined that he could
not give Dr. Desa’s statements “any more than little weight.” (Id.).
At step four, the ALJ determined that Plaintiff could not perform past
relevant work due to his injuries; indeed, the ALJ found that Plaintiff did not
have verifiable past relevant work. (SSA Rec. 83). At step five, the ALJ
determined whether there was other work that Plaintiff could perform, taking
into consideration his age, education, work experience, residual functional
capacity, and the Medical-Vocational Guidelines. (Id. (citing 20 C.F.R. § 404,
Subpart P, Appendix 2)). The ALJ noted that if Plaintiff could “perform all or
substantially all of the exertional demands of a given level of exertion, the
medical-vocational rules direct a conclusion of either ‘disabled’ or ‘not disabled’
depending upon the claimants vocational profile.” (Id. (citing SSR 83-11)). In
contrast, when a claimant “cannot perform substantially all of the exertional
demands of work at a given level of exertion and/or has non-exertional
limitations, the medical-vocational rules are used as a framework for decisionmaking unless there is a rule that directs a conclusion of ‘disabled’ without
considering the additional exertional and/or nonexertional limitations.” (Id.
(citing SSRs 83-12 and 83-14)). The ALJ further opined that if a claimant “has
solely non-exertional limitations, section 204.00 in the Medical-Vocational
Guidelines provides a framework for decisionmaking.” (Id. (citing SSR 85-15)).
22
The ALJ determined that, because Plaintiff did not have the ability to
perform the full range of sedentary work, but was impeded by additional
limitations, Medical-Vocational Rule 201.27 did not mandate a finding of “‘not
disabled.’” (SSA Rec. 83). Thus, at the hearing, the ALJ consulted a vocational
expert to determine whether jobs existed in the national economy for an
individual with Plaintiff’s age, education, work experience, and residual
functional capacity. (Id. at 84). In his opinion, the ALJ noted that the
vocational expert testified that an individual with all these factors would have
been able to perform the requirements of representative occupations, such as a
bench assembler, which is listed as a sedentary unskilled job in the Dictionary
of Occupational Titles (the “DOT”) and of which there were 235,910 such jobs
in the national economy and 2,800 in the regional economy. (Id.). The
vocational expert further testified that Plaintiff could also work as a table
worker, another unskilled sedentary position of which there were 434,170 in
the national economy and 7,630 in the regional economy. (Id.). Finally, the
vocational expert found that Plaintiff could work as an ampoule sealer, a
sedentary unskilled job of which there were 666,860 in the national economy
and 19,940 in the regional economy. (Id.).
The ALJ determined that, pursuant to SSR 00-4p, the vocational expert’s
testimony was consistent with the information contained in the DOT. Based on
this testimony, and considering Plaintiff’s circumstances and residual
functional capacity, the ALJ concluded that Plaintiff was capable of making a
successful adjustment to work that existed in significant numbers in the
23
national economy. (SSA Rec. 83). Because of this finding, the ALJ further
concluded that Plaintiff was “‘not disabled’” under the rules. (Id.).
The ALJ’s decision became final on January 23, 2014, when the Appeals
Council denied Plaintiff’s request for review. (SSA Rec. 1-4). In particular, the
Appeals Council considered the ALJ’s decision and certain new evidence
presented (discussed infra) and determined that there was no reason to review
the ALJ’s decision. (Id. at 1-2). The Council further determined that the “new
information [was] about a later time” and that it therefore did “not affect the
decision” about whether Plaintiff was “disabled beginning on or before August
24, 2012.” (Id. at 2).
E.
The Instant Litigation
Plaintiff initiated this action on April 1, 2014. (Dkt. #1-2). The
Commissioner filed her answer and the administrative record on September 8,
2014. (Dkt. #8-9). The parties proceeded thereafter to file competing motions
for judgment on the pleadings: Plaintiff filed his motion on October 17, 2014
(Dkt. #12-13), in which he argued that (i) the ALJ had erred in affording Dr.
Desa’s opinions “little weight”; (ii) the ALJ’s credibility determination was
unsupported by substantial evidence; (iii) the ALJ relied on vocational
testimony elicited in response to an incomplete hypothetical question; and
(iv) the Appeals Council had erroneously excluded the new medical evidence.
(Pl. Br. 8-15). The Commissioner filed her motion on November 19, 2014,
seeking affirmance. (Dkt. #14-15). Plaintiff filed a reply on December 2, 2014.
(Dkt. #16).
24
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 Ins. Co., 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)).
25
2.
Review of Determinations by the Commissioner of Social
Security
In order to qualify for disability benefits under the Act, a claimant must
demonstrate his “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, 388 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 his previous work but cannot, considering his 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).
In reviewing the final decision of the Social Security Administration, 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 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, 697 F.3d at 151)); see also
26
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))).
“Substantial evidence” is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Talavera, 697 F.3d at 151 (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). The substantial evidence standard is “a very deferential
standard of review — even more so than the clearly erroneous standard.”
Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012). 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.” Talavera, 697 F.3d at 151 (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)).
B.
The ALJ’s Decision Is Supported by Substantial Evidence
Given these standards, there is no basis to overturn the Commissioner’s
decision. A careful review of the record confirms that the ALJ’s decision was
based on the correct legal standard and supported by substantial evidence.
The ALJ correctly identified the issue for his determination as whether
Plaintiff was disabled under Section 1614(a)(3)(A) of the Act. The ALJ applied
the correct legal standard by employing the five-step evaluation mandated
27
under the regulations. See 20 C.F.R. § 416.920. The ALJ conducted a
meticulous review of Plaintiff’s testimony, his medical records, and the opinions
of his treating and consultative physicians. Further, the ALJ’s determination
was supported by substantial evidence, in the form of Dr. Philip’s reports, Dr.
Moskowitz’s examinations, Plaintiff’s MRI and x-ray records, Dr. Desa’s reports,
and the evidence provided regarding Plaintiff’s work history and vocational
ability. Plaintiff objects, however, that the ALJ’s decision was not supported by
substantial evidence, and raises four challenges to his determinations, each of
which is discussed in turn below.
1.
The ALJ’s Assessment of Dr. Desa’s Opinion Was Supported by
Substantial Evidence
First, Plaintiff contends that the ALJ improperly granted Dr. Desa’s
opinion “little weight.” (Pl. Br. 8-12). He did not. As noted, Dr. Desa was
Plaintiff’s treating physician, who provided two Assessment Forms in the
relevant time period, on April 6, 2011, and January 3, 2012. (SSA Rec. 37374, 414-15). As the ALJ noted, both Assessment Forms indicate that Plaintiff
could work part-time in a sedentary position. (Id. at 80, 83). The assessments
vary; the first relates Plaintiff’s ability to lift ten pounds, stand and walk for no
more than two hours per day, sit for no more than six hours per day, and thus
work part-time for two to four hours per day three days per week. (Id. at 374).
In the second examination, Dr. Desa opined that Plaintiff could lift ten pounds,
stand for two hours, walk for two hours, and sit for six hours in a typical
workday, and therefore work part-time for two hours per day five days a week.
28
(Id. at 415). 29 The ALJ correctly noted that Dr. Desa’s conclusion that Plaintiff
could only do minimal part-time work was inconsistent with both his own
assessments of Plaintiff’s abilities on the Assessment Form and with the
medical records in evidence. (Id. at 83). 30 In point of fact, although Dr. Desa
indicated that Plaintiff had a “severe impairment” in the 2011 report, he did not
indicate similarly in the 2012 report. (Id. at 374, 415). Therefore, even if the
ALJ had granted Dr. Desa’s opinions considerable authority, the opinions
would not have necessitated a finding of disability for SSI purposes.
The ALJ further observed that Dr. Desa’s assessments were “done in
check off forms” and were “not supported by any objective medical data[,]
which would account for diminution of the claimant’s ability to perform
sustained work activities.” (SSA Rec. 83). Dr. Desa did not support his
Assessment Forms with any clinical findings, nor did he explain his
determinations. In contrast, Dr. Philip performed a full examination of
Plaintiff’s abilities and determined that his cane was “not medically necessary,”
his gait was “normal,” and that he only suffered “mild limitations” for prolonged
activities such as standing or walking. (Id. at 363-64). 31 The ALJ took these
29
Dr. Desa’s reports do not necessarily substantiate what Plaintiff argues to be a
“diminution of the claimant’s ability to perform sustained work activities.” (Pl. Br. 8).
Indeed, Dr. Desa wrote in the 2012 Assessment Form that Plaintiff could work a greater
number of days per week than in 2011. (SSA Rec. 374, 415).
30
Plaintiff contends that Defendant’s argument consists of “post-hoc rationalizations,
pointing directly to the transcript for support rather than support found in the ALJ’s
decision.” (Pl. Reply 1). The Court disagrees. The ALJ sets forth the reasons for his
findings in his decision. It is helpful to look to the entirety of the record that was before
the ALJ to confirm that the decision is, in fact, supported by substantial evidence, and
Defendant’s citations to the record aid in that evaluation.
31
Plaintiff argues that the ALJ based his RFC determination on his own interpretations of
Plaintiff’s medical records since he granted Dr. Desa’s opinions “little weight” and “did
29
limitations into account when finding that Plaintiff had the residual functional
capacity to “perform sedentary work … using a handheld device” in which he
would only occasionally have to “balance, stoop, kneel, crouch, and crawl. (Id.
at 80).
Further, Dr. Desa’s clinical findings prior to the relevant period of
September 8, 2010, to August 6, 2012, do not support his work assessment.
As noted above, Dr. Desa examined Plaintiff periodically from May 2009 until
mid-2010. (SSA Rec. 311, 314-37). However, during these visits Dr. Desa
focused on Plaintiff’s alcohol abuse and various symptoms related to his HIV
diagnosis, Dr. Desa never once treated Plaintiff’s orthopedic symptoms as
severe in nature. In fact, Dr. Desa consistently marked off “unremarkable”
findings when assessing Plaintiff’s “extremities.” (See, e.g., id. at 331).
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, 563 F. App’x at 840 (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
not assign any weight to the internal medicine examiner Dr. Philip.” (Pl. Br. 10). This
statement is incorrect, however. It is clear from his decision that the ALJ considered
Dr. Philip’s report to be controlling and used it as a basis to contradict Dr. Desa’s
assessments. (SSA Rec. 81).
30
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.
July 3, 2014) (“[T]he ALJ did not err in placing limited weight on Dr. Tedoff’s
findings because they were inconsistent with the medical evidence[.]”).
2.
The ALJ’s Assessment of Plaintiff’s Credibility Was Supported
by Substantial Evidence
Plaintiff’s second objection is that the ALJ failed to evaluate Plaintiff’s
credibility properly when determining his residual functional capacity. The
regulations provide a two-step process for evaluating a claimant’s assertions of
pain and other limitations: first, the ALJ must “decide whether the claimant
suffers from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged,” and second, if the claimant does
suffer such an impairment, “the ALJ must consider the extent to which the
[claimant’s] symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence” of the record. Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks omitted); see also 20
C.F.R. § 416.929.
When a claimant alleges symptoms and a greater restriction of function
than can be demonstrated by objective medical evidence alone, the ALJ
considers factors including, but not limited to, the claimant’s daily activities;
the type, dosage, effectiveness, and side effects of medications; and other
treatments or pain relief measures. See 20 C.F.R. § 416.929(c). However,
“[t]he ALJ has the discretion to evaluate the credibility of a claimant and to
31
arrive at an independent judgment, in light of medical findings and other
evidence, regarding the true extent of the pain alleged by the claimant.”
McLaughlin v. Sec’y of Health, Educ. & Welfare, 612 F.2d 701, 705 (2d Cir.
1980) (internal quotation marks and citation omitted). The Court will uphold
the ALJ’s decision to discount a claimant’s subjective complaints of pain so
long as the decision is supported by substantial evidence. See Aponte v. Sec’y,
Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984). Moreover,
“an ALJ’s credibility determination is generally entitled to deference on appeal.”
Selian, 708 F.3d at 420; see also Torres v. Colvin, No. 12 Civ. 6527 (ALC) (SN),
2014 WL 4467805, at *4 (S.D.N.Y. Sept. 8, 2014) (collecting cases).
The ALJ gave “careful consideration” to Plaintiff’s testimony from the
hearing and referred to record evidence in assessing Plaintiff’s credibility. (SSA
Rec. 81-82). He found that although “the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms[,]”
Plaintiff’s “statements concerning the intensity, persistence, and limiting effects
of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” (Id. at 82). In particular, the
ALJ noted that Plaintiff’s daily activities of light cleaning, laundry, shopping,
cooking, and song- and poetry- writing were “not suggestive of an individual
whose exertional capacities [were] totally compromised.” (Id.).
The Court finds that there is substantial evidence in the record to
support this conclusion. First, Plaintiff testified that he was able to sit for
three hours and stand for forty-five minutes prior to the onset of pain, which
32
did not indicate a constant debilitating pain. (SSA Rec. 104). This lack of
constant pain was further evidenced by Plaintiff’s statement that the pain only
woke him up at night “occasionally,” and then only when “he forg[o]t to take
medication.” (Id. at 107). Further, as noted above, Plaintiff was able to
complete a wide array of household chores with only minor limitations. (Id. at
98-101). Significantly, Plaintiff testified that he did not need to use a cane
around the house as he could use the wall to “lean against” for support “as
necessary.” (Id. at 106). See Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980)
(affirming ALJ’s determination that plaintiff could perform “gainful activity of a
light, sedentary nature” where plaintiff testified that “despite her pains and
shortness of breath, she [could] cook, sew, wash and shop, so long as she did
these chores slowly and [took] an afternoon rest.”); Hamilton v. Colvin, No. 10
Civ. 9641 (CM) (FM), 2013 WL 3814291, at *12 (S.D.N.Y. July 23, 2013)
(holding that the ALJ properly used Plaintiff’s testimony about “cook[ing] on
her own … us[ing] public transportation,” and caring for her own “personal
needs” as evidence of gainful activity). Indeed, the ALJ noted a discrepancy
between the objective medical tests in the record and Plaintiff’s testimony. The
ALJ wrote, “the consultative examiner [Dr. Philip] found only mild limitations”
because “although the claimant ha[d] back pain[,] there [was] no evidence of
herniated discs, only disc bulges.” (SSA Rec. 82). Further, Plaintiff’s leg and
foot problems did “not create total instability,” nor did they affect his “ability to
do a sit down job.” (Id. at 81-82). Consequently, the ALJ properly found that
33
the medical records and Plaintiff’s testimony suggested that Plaintiff’s
symptoms were not as extensive as claimed.
The ALJ also weighed Plaintiff’s contradictory statements regarding his
alcohol abuse in his determination of Plaintiff’s credibility. The ALJ noted that
at the hearing, “the claimant … stated that he never had a drinking problem.”
(SSA Rec. 81). But, both in his decision and during the hearing, the ALJ
observed that there were numerous references to Plaintiff’s longstanding
alcohol abuse in the record. (Id. at 79, 103, 317, 319, 322, 335, 339).
Precisely for this reason, the ALJ cautioned Plaintiff during the hearing that he
(the ALJ) was permitted to take into account Plaintiff’s inconsistent statements
regarding alcohol abuse in making a credibility determination, and gave
Plaintiff an opportunity to explain himself. (Id. at 104). Plaintiff continued to
deny abuse, in direct contradiction of the many notes of his doctors. (Id.).
It is apparent that the ALJ did not disregard Plaintiff’s subjective claims
altogether, but reasonably regarded them with some skepticism and concluded
that Plaintiff’s symptoms were not present to the extent alleged during the
relevant period.
3.
Substantial Evidence Supports the ALJ’s Determination That
There Were a Significant Number of Jobs in the National
Economy that Plaintiff Could Perform
Plaintiff argues additionally that the ALJ erred at step five in the analysis
by relying on the testimony of a vocational expert, and that the vocational
expert based his testimony upon an incomplete and inaccurate hypothetical
question. (Pl. Br. 13-14). The Court disagrees.
34
When there is a complex vocational issue involved in determining
whether an individual is disabled, the ALJ may call upon the services of a
vocational expert. See 20 C.F.R. § 416.966(e); Bapp v. Bowen, 802 F.2d 601,
605-6 (2d Cir. 1986). During the hearing, the ALJ stated that Plaintiff could
not “do [his] past work[,]” and therefore asked the vocational expert whether an
individual with the same limitations as Plaintiff could “do other work[.]” (SSA
Rec. 119). The ALJ further noted that Plaintiff may have to use “a cane in his
right hand for ambulation[,] … have ready access to a bathroom[,] … be
permitted to be off task for up to 5 percent of the workday[,] … [and] take up to
one unexcused or unscheduled absence a month per year.” (Id. at 118-19). In
response, the vocational expert determined that Plaintiff could work as a bench
hand, a table worker, and an ampoule sealer. (Id. at 119). See Podolsky v.
Colvin, No. 12 Civ. 6544 (RA) (JLC), 2013 WL 5372536, at *17 (S.D.N.Y. Sept.
26, 2013) (holding that “while the use of a cane may impact the ability of a
claimant to do light or medium work, there was substantial evidence in the
record for the ALJ to have concluded that [plaintiff] could perform sedentary
work with his cane” (emphases added)); Parker v. Sullivan, No. 91 Civ. 0981
(PNL), 1992 WL 77552, at *4-6 (S.D.N.Y. Apr. 8, 1992) (affirming ALJ’s decision
that claimant could perform sedentary work despite continued use of cane).
Plaintiff argues that the ALJ’s query to the vocational expert was
“incomplete” because it did not incorporate Plaintiff’s own assessment and Dr.
Desa’s Assessment Forms. (Pl. Br. 14). For the reasons stated above, however,
the ALJ properly determined that Plaintiff’s subjective claims were
35
unpersuasive. Further, even though the ALJ granted Dr. Desa’s opinion “little
weight,” the ALJ still took it into account when determining what work
accommodations to afford Plaintiff. As a result, the vocational expert’s answers
were adequate to allow the ALJ to make the step-five conclusion that there was
work in the national economy that Plaintiff could perform.
4.
Plaintiff’s Proffered “New Evidence” Does Not Warrant Further
Proceedings
Plaintiff lastly objects that the Appeals Council erred by not considering
the “new evidence” he submitted after the ALJ’s decision. (Pl. Br. 14-15). He
states that the Appeals Council “offered no explanation as to why this new and
material evidence did not warrant remand” and gave no “indication that it
considered the papers at all.” (Id.). First, the Appeals Council did consider
Plaintiff’s new evidence, but rejected it as a basis for reversing or modifying the
ALJ’s decision. (SSA Rec. 2 (“The [ALJ] decided your case through August 24,
2012. This new information is about a later time. Therefore, it does not affect
the decision about whether you were disabled beginning on or before August
24, 2012.”)). In any event, Plaintiff’s “new evidence” does not merit a remand.
The Act sets a stringent standard for remanding based on new evidence
alone: “The court … may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a showing that there
is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding[.]” 42 U.S.C.
§ 405(g). Evidence is “new” if it is “not merely cumulative of what is already in
the record.” Harris-Batten v. Comm’r of Soc. Sec., No. 05 Civ. 7188 (KMK)(LMS),
36
2012 WL 414292, at *6 (S.D.N.Y. Feb. 9, 2012) (citing Lisa v. Sec’y of Dep’t of
Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991)). New evidence is
“material” if (i) it is “relevant to the claimant’s condition during the time period
for which benefits were denied”; (ii) it is “probative”; and (iii) there is “a
reasonable possibility that the new evidence would have influenced the
Commissioner to decide claimant’s application differently.” Pollard v. Halter,
377 F.3d 183, 193 (2d Cir. 2004) (quotation marks and alterations omitted).
The evidence submitted includes doctor’s visits and treatment plans only
from the period following the ALJ’s decision. (See SSA Rec. 8-61). Further,
Plaintiff’s “new evidence” is merely cumulative of what was already on the
record before the ALJ; while Dr. Desa’s later assessment was less optimistic
about Plaintiff’s abilities, neither he nor any of the other treating physicians
identified any new limitations or diseases. In fact, Dr. Fink stated that in his
opinion, Plaintiff had “no disability related to the femoral rodding and resulting
issues with the rod.” (Id. at 51). See Harris-Batten, 2012 WL 414292, at *6
(“Notably, however, the new evidence offers nothing by way of a more serious
diagnosis related to Plaintiff’s pain and bleeding, i.e., no new limitations or
diseases are identified.”); Rodriguez ex rel. Mena v. Astrue, No. 10 Civ. 305
(PKC), 2011 WL 2923861, at *13 (S.D.N.Y. July 7, 2011) (declining to remand
case because additional medical evaluations did not “suggest that [claimant]
has experienced any additional symptoms or conditions that are not already
described in the record”).
37
Next, none of these reports — which were prepared well after the time
period during which Plaintiff was seeking disability benefits — provides any
“new information about Plaintiff’s medical condition or ability to work during
the time period for which he sought benefits.” Harris-Batten, 2012 WL 414292,
at *6 (collecting cases rejecting post-hoc reports). Indeed, the medical evidence
closest in time is dated eight months after the ALJ’s decision was made. (SSA
Rec. 59-60 (Dr. Desa’s Assessment Form from April 10, 2013)). The Appeals
Council correctly noted that if Plaintiff wanted them to “consider whether [he
was] disabled after August 24, 2012, [he would] need to apply again.” (Id. at 2).
In light of the foregoing, the Appeals Council properly determined that
Plaintiff’s “new evidence” would not have altered the ALJ’s decision.
Having reviewed the entire record, the Court finds that the
Commissioner’s decision to deny Plaintiff’s application for SSI is free from legal
error and supported by substantial evidence in the record. Accordingly, there
is no reason for it to be overturned.
38
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 all pending motions, adjourn all remaining dates, and
close this case.
SO ORDERED.
Dated:
July 19, 2015
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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