Colviin v. Astrue
Filing
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DECISION AND ORDER GRANTING Defendant's 7 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 7/22/2011. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
QUINSHARA COLVIN,
Plaintiff,
v.
DECISION AND ORDER
09-CV-946S
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
Plaintiff Quinshara Colvin challenges an Administrative Law Judge’s (“ALJ”)
determination that she is not disabled within the meaning of the Social Security Act (“the
Act”). Plaintiff alleges that she has been disabled since January 4, 1997, due to knee
problems. Plaintiff contends that this impairment renders her unable to work, and therefore
asserts that she is entitled to payment of Supplemental Security Income (“SSI”) under the
Act.
2.
Plaintiff filed an application for SSI payments and Childhood Disability
Benefits on June 14, 2000. Her application was initially denied, after which she timely filed
a request for a hearing. Pursuant to that request, administrative hearings were held on
June 14 and August 19, 2002, but were then postponed to allow Plaintiff to retain counsel.
Plaintiff did not do so, however, and on January 27, 2003, ALJ Marilyn D. Zahn held a
hearing at which Plaintiff appeared without counsel and testified. The ALJ considered the
case de novo, and on February 21, 2003, issued a decision denying Plaintiff’s application
for benefits. Plaintiff filed a request for review with the Appeals Council which, on March
4, 2004, remanded the case for further administrative hearings. ALJ Zahn held another
administrative hearing on May 23, 2005. Plaintiff appeared with counsel and testified. ALJ
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Zahn considered the case de novo and issued another unfavorable decision on May 4,
2006. On February 27, 2008, the Appeals Council denied Plaintiff’s request for review.
Plaintiff filed the current civil action on November 3, 2009, challenging Defendant’s final
decision.1
3.
On June 18, 2010, the Commissioner filed a Motion for Judgment on the
Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Briefing of the
motion concluded on September 9, 2010, at which time this Court took the motion under
advisement without oral argument. For the reasons set forth below, the Commissioner’s
motion is granted.
4.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla,” and it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).
5.
“To determine on appeal whether the ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
1
The ALJ’s May 4, 2006 decision becam e the Com m issioner’s final decision in this case when the
Appeals Council denied Plaintiff’s request for review.
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evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams on Behalf of Williams v. Bowen,
859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the
Commissioner's finding must be sustained “even where substantial evidence may support
the plaintiff's position and despite that the court's independent analysis of the evidence
may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6.
The Commissioner has established a five-step sequential evaluation process
to determine whether an individual is disabled as defined under the Social Security Act.
See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291,
96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a
claimant is disabled.
7.
This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe impairment" which significantly
limits his physical or mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without considering vocational
factors such as age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a "listed" impairment is unable
to perform substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite 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
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[Commissioner] then determines whether there is other work which the
claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8.
Although the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant's job qualifications by considering his physical ability, age, education, and work
experience. Second, the Commissioner must determine whether jobs exist in the national
economy that a person having the claimant's qualifications could perform. See 42 U.S.C.
§ 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.
Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.
In this case, the ALJ made the following findings with regard to the five-step
process set forth above: (1) Plaintiff has not engaged in any substantial gainful activity
since the alleged onset of the disability (R. at 40);2 (2) Plaintiff’s knee disorder is
considered a “severe” impairment within the meaning of the Act (Id.); (3) Plaintiff does not
have an impairment that meets or medically equals one of the listed impairments in
Appendix 1, Subpart P, Regulation No. 4 (Id.); (4) Plaintiff has the residual functional
capacity (“RFC”) to perform the full range of sedentary work as defined in 20 CFR §
416.967(a) (Id.); and (5) Although Plaintiff has no past relevant work under 20 CFR §§
404.1564 and 416.965, considering Plaintiff’s status as a younger individual, limited
2
Citations to the underlying adm inistrative record are designated as “R.”
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education, work experience, and residual functional capacity, the ALJ determined that
Medical-Vocational Rule 201.24 directs a finding of “not disabled.” (Id.) Ultimately, the ALJ
determined that Plaintiff was not under a disability, as defined by the Act, at any time
through the date of her decision, May 4, 2006. (R. at 41.)
10.
Plaintiff first argues that the ALJ’s decision must be reversed because she
failed to follow the Appeals Council’s remand instructions. On remand the Appeals Council
directed the ALJ to (1) update the record with any available evidence from treating and/or
examining sources; (2) seek clarification from the treating physician, Dr. Bax; (3) obtain a
consultative orthopedic exam, if necessary to complete the record; (4) obtain expert
medical evidence concerning the longitudinal assessment to assist in resolving any
conflicts or inconsistencies in the evidence; (5) evaluate the claimant’s symptoms and
assess credibility; (6) weigh all opinion evidence; and (7) reassess and rationalize a
maximum RFC.
Having reviewed the ALJ’s decision in light of Plaintiff’s arguments and the Appeals
Council’s remand order, this Court finds no error. The ALJ adequately followed the
Appeal’s Council’s instructions and discussed and assessed medical evidence supporting
the determination that Plaintiff was not disabled. The ALJ considered medical evidence
from numerous doctors, including Drs. Gadallah, Bax, Swetz, Yu, Miller, and Gosy, along
with the objective results of MRIs and X-rays. (R. at 34-38.) Contrary to Plaintiff’s
assertion, the ALJ updated the record from the earlier February 23, 2003 decision by
considering the treatment notes and recommendations of Plaintiff’s pain specialist, Dr.
Gosy, and MRI results from 2005. (R. at 36-38.) As directed by the Appeals Council, the
ALJ also sought clarification from Dr. Bax, but he did not respond to her requests for
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clarification or to her inquiries concerning his assessment of Plaintiff’s RFC. (R. at 235242.)
Also contrary to Plaintiff’s assertion, the Appeals Council did not require the ALJ to
obtain an orthopedic consultive exam concerning Plaintiff’s RFC; such an exam was
ordered only “if necessary.” (R. at 114.) The ALJ’s determination that a consultative
orthopedic exam was not necessary is supported, because sufficient data was already
present in the record to document the extent of Plaintiff’s condition. Along with the
treatment notes from Plaintiff’s numerous examining physicians, full knee X-rays from 1996
and 1999, and MRIs performed in 1997 and 2005, showed Plaintiff’s knee to be within
normal limits. (R. at 34 - 38.)
Additionally, as per the Appeals Council’s remand order, the ALJ evaluated
Plaintiff’s symptoms and assessed her credibility. (R. at 32, 33, 37.) The ALJ set forth
Plaintiff’s testimony and prior statements regarding her daily activities and reports of pain
and assessed her credibility based on the correlation between Plaintiff’s account and the
objective evidence in the record. (R. at 32-33, 37.)
Further, the ALJ reassessed and found as a minimum RFC that Plaintiff was
capable of performing the full range of sedentary work.
(R. at 38.)
The ALJ’s
determination of Plaintiff’s RFC is well supported by the medical evidence in the record
and, in fact, is a more conservative estimate than that determined by two state agency
physicians who determined that Plaintiff had the ability to perform light work. (R. at 35.)
Finally, the Appeals Council itself had the opportunity to evaluate whether the ALJ
properly complied with its remand instructions when the case returned to it on February 27,
2008. At that time, the Appeals Council noted that it had reviewed the new evidence from
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Dr. Bax dated May 19, 2005, through November 6, 2006, but nowhere did it find any error
by the ALJ with regard to complying with its remand instructions. (R. at 12-15.)
Based on the foregoing, this Court finds that the ALJ’s determination that Plaintiff
is not disabled is supported by substantial evidence in the record and that the ALJ
adequately followed the Appeals Council’s remand instructions.
11.
Plaintiff’s second challenge is that the ALJ failed to properly consider the
opinion of her treating sources. Plaintiff contends that the ALJ failed to properly apply the
treating physician rule, because she failed to give special deference to Dr. Bax’s opinion.
According to the “treating physician rule,”3 the ALJ must give controlling weight to
the treating physician’s opinion when the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); see also GreenYounger v. Barnhart, No. 02-6133, 2003 WL 21545097, at *6 (2d Cir. July 10, 2003); Shaw
v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
Even if a treating physician’s opinion is deemed not to be deserving of controlling
weight, an ALJ may nonetheless give it “extra weight” under certain circumstances. Under
20 C.F.R. § 404.1527(d)(1)-(6), the ALJ should consider the following factors when
determining the proper weight to afford the treating physician’s opinion, if it is not entitled
to controlling weight: (1) length of the treatment relationship and the frequency of
examination, (2) nature and extent of the treatment relationship, (3) supportability of
opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors
3
“The ‘treating physician’s rule’ is a series of regulations set forth by the Com m issioner in 20
C.F.R. § 404.1527 detailing the weight to be accorded a treating physician’s opinion.” de Rom an v.
Barnhart, No. 03-Civ.0075(RCC)(AJP), 2003 W L 21511160, at *9 (S.D.N.Y. July 2, 2003).
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that are brought to the attention of the court. See de Roman, 2003 WL 21511160, at *9
(citing 20 C.F.R. § 404.1527(d)(2)); see also Shaw, 221 F.3d at 134; Clark v. Comm’r of
Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Having reviewed the evidence at issue, this Court detects no reversible error in the
ALJ’s treatment of Dr. Bax’s opinion in light of the objective medical findings in the record.
Rather, the ALJ’s decision reflects her extensive evaluation of all the medical evidence.
(R. at 34-38.)
The ALJ afforded little weight to Dr. Bax’s assessments because she found them
both inconsistent with the record as a whole and internally inconsistent. (R. at 38.) Dr.
Bax’s notes indicate that Plaintiff has persistent symptoms including antalgic gait,
decreased quadricep strength and tone, and positive apprehension sign. (R at 269-284,
349-352, 400-432, 497-506.) His notes also reveal little improvement in Plaintiff’s condition
after surgery; Dr. Bax describes Plaintiff as totally disabled or unable to work in nearly
every post-surgical note. (Id.) The ALJ noted, however, that Dr. Bax stated in November
1997 that Plaintiff was working at a sedentary job and could continue to work at that level
of exertion. (R. at 37.) Additionally, the ALJ noted that Dr. Bax repeatedly prescribed
exercise and ambulation and recommended vocational rehabilitation. (R. at 38.) Finally,
Dr. Bax declined to specify his assessment of Plaintiff’s RFC or respond to interrogatories
sent to him by the ALJ. (Id.)
It is well settled that the less consistent an opinion is with the record as a whole, the
less weight it is to be given. See 20 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4). In this
Court’s view, the ALJ did not err by finding that Dr. Bax’s assessment is inconsistent with
the findings of Dr. Gosy and the state agency physicians, and the objective evidence in the
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record, which includes normal X-rays and normal MRIs on several occasions throughout
the period from 1997 through 2005. (R at 34-37.) Dr. Swetz, a state agency physician who
examined Plaintiff on February 24, 1999, for example, noted some point tenderness in
Plaintiff’s knee and extension to 90 degrees, but also noted that Plaintiff did not walk with
an assistive device and the X-ray showed no abnormalities. (R. at 312-314.) Additionally,
after one of his examinations, Dr. Gosy noted no swelling, discoloration, change in
temperature or allodynia and recommended, pending the results of an MRI, that Plaintiff
start training for a sedentary position. (R. at 479.) The results of that MRI showed no
abnormalities. (R. at 36.)
Ultimately, the ALJ gave great weight to the findings of Plaintiff’s treating pain
specialist, Dr. Gosy, that Plaintiff can perform sedentary work. (R. at 38.) Dr. Gosy’s
finding was supported by objective clinical findings and the prescribed treatment. (Id.) In
addition, the ALJ noted that two weeks after her work injury, Plaintiff was found with no
objective evidence of an impairment. (R. at 37.) Finally, the ALJ also credited state
agency physicians’ examinations of Plaintiff performed in April 1999 and October 2000,
which determined Plaintiff was capable of performing light work. (R. at 35.)
The ALJ’s consideration of the assessments of state agency physicians was not, as
Plaintiff suggests, inappropriate. It is well settled that an ALJ is entitled to rely upon the
opinions of the state agency’s medical and psychological consultants, since they are
qualified experts in the field of Social Security disability. See 20 C.F.R. §§ 404.1512(b)(6),
404.1513(c), 404.1527(f)(2), 416.912(b)(6), 416.913(c), and 416.927(f)(2). Such reliance
is particularly appropriate where, as here, the opinion of the state agency physician is
supported by the record evidence, including the objective medical findings of Plaintiff’s own
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treating physicians. In any event, the ALJ’s more conservative final determination of
Plaintiff’s RFC was ultimately based on Dr. Gosy’s assessment that Plaintiff was capable
of sedentary work. (R. at 38.)
Consequently, this Court finds that the ALJ afforded proper weight to the medical
opinions contained in the record.
It is the ALJ’s sole responsibility to weigh all of the
medical evidence and resolve any material conflicts. See Richardson, 402 U.S. at 399.
Under the circumstances of this case, this Court finds that the ALJ’s decision to afford less
weight to Dr. Bax’s generalized statements is supported by substantial evidence in the
record. Because Dr. Bax’s conclusion that Plaintiff was totally disabled was inconsistent
with his own recommendation of exercise and ambulation, and the objective findings in the
record, the ALJ
was not required under the Commissioner’s regulations to give it
controlling weight.
12.
Plaintiff’s third challenge to the ALJ’s decision is that she improperly
assessed Plaintiff’s credibility. Plaintiff contends that the inconsistencies in her testimony
are easily explained by the length of time between the hearings and the progression of her
symptoms.
The ALJ found that Plaintiff’s testimony regarding her pain symptoms was out of
proportion to the objective medical evidence and the nature and extent of the treatment
she sought and received, as well as to the objective findings, which included several MRIs
and X-rays. (R. at 34, 36, 37.) For example, the medical evidence showed no objective
evidence of an impairment two weeks after the alleged injury. (R. at 37.) And despite
Plaintiff’s complaints of severe pain, she had only 30 tablets of naproxen in 2001, and no
medication in 2002, until September when she was prescribed 30 tablets of ibuprofen. (Id.)
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Further, Plaintiff’s assertions of the medications and dosage she was taking did not
correspond to the records of medications that were actually dispensed. (Id.) Finally,
Plaintiff claimed that she experiences sharp pain when she stands up or sits down, yet she
testified that she is up and down every twenty minutes. (Id.) Based on the Plaintiff’s
testimony, and a comparison with the objective medical evidence in the record, the ALJ
determined that Plaintiff’s subjective complaints were not credible. (R. at 38.)
Having reviewed the evidence at issue, this Court detects no reversible error in the
ALJ’s exercise of discretion regarding Plaintiff’s credibility in light of the objective medical
findings.
13.
Plaintiff’s final challenge to the ALJ’s decision is that she improperly
adjudicated the case at the fifth step of the evaluation detailed in 20 CFR §§ 404.1520 and
416.920 through her use of the Medical Vocational Guidelines (“the GRIDS”).
Specifically, Plaintiff argues that a vocational expert should have been called to clarify the
effect of limitations on the Plaintiff’s vocational profile.
Generally, when a claimant's non-exertional impairments significantly diminish his
or her ability to work, such that he or she is not able to perform the full range of
employment indicated by the GRIDS, the Commissioner must introduce the testimony of
a vocational expert, or other similar evidence, that jobs exist in the national economy that
claimant can obtain and perform. Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986).
Where no additional restrictions exist, and the conclusion directed by the vocational tables
would not be affected, the Commissioner need not introduce additional vocational
evidence. See Social Security Ruling (“SSR”) 83-14. Such was the case here.
The ALJ determined that Plaintiff retained the RFC to perform the full range of
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sedentary work before turning to the GRIDS to make her determination that Plaintiff was
“not disabled.” Plaintiff did not allege, nor did the ALJ find, any non-exertional limitations
that would affect the results directed by the vocational tables. Accordingly, this Court finds
that the ALJ was not required to enlist the aid of a vocational expert to establish that jobs
exist in the national economy that Plaintiff could perform.
14.
Having reviewed the administrative record, this Court finds that substantial
evidence supports the ALJ’s determination that Plaintiff is not disabled.
The ALJ
thoroughly developed and considered the record and afforded appropriate weight to all of
the medical evidence in finding that Plaintiff is not disabled.
Finding no reversible error,
this Court will grant Defendant’s Motion for Judgment on the Pleadings.
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 7) is GRANTED.
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: July 22, 2011
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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