Rokitka v. Commissioner of Social Security
Filing
16
DECISION AND ORDER GRANTING Defendant's 8 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge U.S.D.C. on 6/23/2012. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY ROKITKA,
Plaintiff,
v.
DECISION AND ORDER
11-CV-614S
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
Plaintiff Anthony Rokitka challenges an Administrative Law Judge’s (“ALJ”)
determination that he is not disabled within the meaning of the Social Security Act (“the
Act”). Plaintiff alleges that he has been disabled due to back, shoulder, and wrist injuries,
and colon problems since January 22, 2007. Plaintiff contends that his impairments render
him unable to work. He therefore asserts that he is entitled to disability insurance benefits
(“DIB”) and Supplemental Security Income (“SSI”) under the Act.
2.
Plaintiff filed an application for DIB under Title II of the Act on June 10, 2009,
alleging disability since January 22, 2007. On the same day, Plaintiff also filed an
application for SSI under Title XVI. The Commissioner of Social Security (“Commissioner”)
denied Plaintiff’s initial application, and Plaintiff requested a hearing. An administrative
hearing was then held on February 1, 2011 by video conference before ALJ Jeffrey M.
Jordan at which Plaintiff appeared with counsel and testified. The ALJ considered the case
de novo, and on February 15, 2011, issued a decision denying Plaintiff’s application for
benefits. Plaintiff filed a request for review with the Appeals Council, which, on June 24,
2011, denied Plaintiff’s request for review. Plaintiff filed the current civil action on July 19,
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2011, challenging Defendant’s final decision.1
3.
On February 16, 2012, the Commissioner filed a Motion for Judgment on the
Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Briefing on the
motion concluded May 7, 2012, at which time this Court took it 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
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
1
The ALJ’s February 15, 2011 decision becam e the Com m issioner’s final decision in this case
when the Appeals Council denied Plaintiff’s request for review.
2
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
[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.
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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 substantial gainful activity since
January 22, 2007 (R. at 14);2 (2) Plaintiff’s disorders of the back, shoulders, and wrist, and
chronic pain syndrome versus gout constituted “severe” impairment within the meaning of
the Act (R. at 14); (3) Plaintiff does not have an impairment or combination of impairments
that meets or medically equals the criteria necessary for finding a disabling impairment
under the regulations (R. at 15); (4) Plaintiff retained the residual functional capacity
(“RFC”) to perform less than a full range of sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.967(a) (R. at 15);3 and (5) considering Plaintiff’s age, education, work
2
Citations to the underlying adm inistrative record are designated as “R.”
3
Plaintiff could lift and carry less than 10 pounds occasionally and push or pull less than five
pounds occasionally. He had to avoid above-shoulder lifting, carrying, pushing, pulling, and reaching.
Plaintiff could stand and walk for two hours with the aid of a cane, and sit for six hours, within an eighthour workday. He should stand for no m ore than 15 m inutes before sitting, and sit for no m ore than 20 to
25 m inutes before standing. The ALJ also determ ined that Plaintiff should avoid constant reaching and
constant fine and gross m anipulation with his right upper extrem ity. Lastly, Plaintiff was lim ited to sim ple,
routine low-stress tasks and was to avoid extrem e tem peratures and hum idity.
4
experience, and RFC, there are jobs in significant numbers in the national economy that
Plaintiff could perform (R. at 23). Ultimately, the ALJ concluded that Plaintiff was not under
a disability as defined by the Act from January 22, 2007, through February 15, 2011, the
date of the ALJ’s decision. (R. at 25.)
10.
Plaintiff advances two primary challenges to the ALJ's decision. Nestled
within those arguments are a series of additional challenges, typically presented in the form
of a single sentence. The first challenge comprises Plaintiff’s assertion that the ALJ
“succumb[ed] to the temptation to play doctor.” (Pl.’s Mem. 2, Docket No. 13.) As part of
that challenge, Plaintiff also variously alleges that the ALJ provided the Vocational Expert
(“VE”) with an incomplete hypothetical, disregarded Plaintiff’s subjective testimony, and
committed an arithmetical error calculating how long Plaintiff could remain standing. The
second challenge principally argues that the ALJ did not conduct a proper credibility
determination of Plaintiff’s testimony.
11.
This Court first considers those arguments that, while included under
Plaintiff’s primary challenges, actually raise other grounds on which remand might be
appropriate. For example, Plaintiff asserts that the ALJ failed to impose any limitations on
him as a result of injuries to his left arm and shoulder. But a review of the ALJ’s lengthy
RFC assessment shows that a majority of the limitations did not distinguish between
extremities, and so applied equally to both. Thus, Plaintiff needed to avoid above-shoulder
lifting, carrying, pushing, pulling, and reaching with either arm.
Plaintiff points to a workers’ compensation award, finding 45% permanent loss of
use of his left arm. (R. at 301.) But workers’ compensation boards apply different
standards than those governing disability determinations under the Act, and are
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accordingly not binding on an ALJ. See Rosado v. Shalala, 868 F. Supp. 471, 473
(E.D.N.Y. 1994) (citing Coria v. Heckler, 750, F.2d 245, 247 (3d Cir. 1984)); see also Gray
v. Chater, 903 F. Supp. 293, 301 n. 8 (N.D.N.Y. 1995). Further, even substantively
considered the opinion adds little of value to the discussion. The opinion makes no
mention of the ability to engage in “constant reaching and constant fine and gross
manipulation” (the additional limitations imposed by the ALJ on Plaintiff’s right upper
extremity) (R. at 15). Nor does a 45% loss of use finding make clear how the ALJ’s
identified limitations are erroneous. The workers’ compensation award does not specify
what additional limitations should be imposed, or whether those limitations would comport
with those found by the ALJ.4 Given that, as already observed, “disability for purposes of
workers’ compensation benefits is determined under a different standard than the standard
used in the Social Security context,” this is unsurprising. Lefever v. Astrue, No. 5:07-CV622 (NAM/DEP), 2010 WL 3909487, at *13 (N.D.N.Y. Sept. 30, 2010).
12.
Plaintiff’s other contentions fare no better. Plaintiff argues that the ALJ’s
finding that he could sit for six hours and walk with a cane for two hours is incompatible
with the added limitation that he could sit for, at most, 20 to 25 minutes, before having to
stand up for no more than 15 minutes. According to Plaintiff, in a 40 minute period, this
would require him to stand for 37.5% of the time, presumably because he would sit for 25
minutes, and then stand for 15. It is unclear why Plaintiff divides his eight-hour workday
into 40 minutes increments. Regardless, Plaintiff’s contention is premised on bad math.
There is no reason to think Plaintiff would have to sit for 25 minutes. Indeed, he could sit
for any number of minutes, up to 25, before standing. Once standing, he again would not
4
Although Plaintiff does not cite it, this Court notes that Dr. Michael Miller did diagnose a 40%
loss of use of Plaintiff’s left arm with greater specificity. 20% of the loss was ascribed to a range of m otion
deficit, 15% for loss of rotation, and 5% for a partial rotator cuff tear. (R. at 18.) It is clear that the ALJ did
consider this diagnosis, although it too was m ade within the context of a workers’ com pensation claim .
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need to remain up for 15 minutes, but could sit back down at any point thereafter. To give
but one example, included in the Commissioner’s memorandum, were Plaintiff to divide his
eight-hour workday into periods in which he sat for 25 minutes, stood for 5, sat for another
20, and then stood back up for 10. This would result in him sitting for six hours and
standing for another two, corresponding exactly with the ALJ’s RFC assessment.5
13.
Having dispensed with these minor points, this Court can now consider
Plaintiff’s two substantive arguments. As to the first, Plaintiff argues that “there is no
evidence whatsoever to support anything but substantial and continuing difficulty with both
shoulders, his arms and his right hand” and that no medical evidence supports the ALJ’s
determination. (Pl.’s Mem. 3.) Stripped of its hyperbole, Plaintiff essentially maintains that
the ALJ’s RFC assessment is not supported by substantial evidence.
This Court
disagrees.
14.
As a preliminary matter, the ALJ based his limitations on the decisions of
multiple physicians. The ALJ relied on the decision of Dr. Cyndria Bender, a state-agency
consulting physician. Dr. Bender identified a series of moderate limitations. These
included moderate limitations in lifting, pushing, pulling, reaching, carrying heavy objects,
walking, standing, sitting, and climbing. (R. at 270.) Contrary to the ALJ’s more restrictive
RFC, Dr. Bender thought Plaintiff only had a very mild limitation in handling objects as a
result of pain in his right wrist. (R. at 270.) The ALJ was entitled to rely on the opinions
of Dr. Bender who, as a state agency medical consultant, was a qualified expert in the field
of Social Security disability. See 20 C.F.R. § 404.1527(e)(2)(i).
The ALJ also relied on the opinion of Dr. Michael Grant, Plaintiff’s treating physician,
5
Obviously this is not the only com bination possible. Provided Plaintiff stood for a total of 15
m inutes every hour, and sat for 45 m inutes, he could divide his tim e however he pleased and still fall
within the ALJ’s lim itations.
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who found that Plaintiff suffered from limitations to his left upper extremity. The ALJ’s RFC
assessment provided that Plaintiff was to avoid various above-shoulder motions. The
blanket claim that the ALJ’s opinion was without medical support is thus inaccurate and
need not be considered further.
15.
Plaintiff’s other challenge is that the ALJ improperly dismissed Plaintiff’s
description of the intensity, persistence, and limiting effects of his symptoms. Plaintiff
specifically attacks the ALJ’s failure to consider all the factors listed in SSR 96-7p.
16.
Credibility determinations are generally reserved for the Commissioner, not
the reviewing court. Aponte v. Sec’y of Health & Human Servs., 728 F.2d 588, 591 (2d Cir.
1984). In making a credibility determination, the ALJ will consider, in addition to a
claimant’s subjective medical history, several other factors, such as (i) plaintiff’s daily
activities; (ii) location, duration, frequency, and intensity of pain and symptoms; (iii)
precipitating and aggravating factors; (iv) type, dosage, effectiveness and side effects of
any medications taken to alleviate the pain and symptoms; (v) treatment other than
medication; (vi) any measures used to relieve the pain or other symptoms; and (vii) other
factors concerning functional limitations and restrictions due to pain and symptoms. 20
C.F.R. § 404.1529(c)(3). “Failure to expressly consider every factor set forth in the
regulations is not grounds for remand where the reasons for the ALJ’s determination of
credibility are ‘sufficiently specific to conclude that he considered the entire evidentiary
record in arriving at his determination.’” Wischoff v. Astrue, No. 08-CV-6367, 2010 WL
1543849, at *7 (W.D.N.Y. Apr. 16, 2010) (quoting Delk v. Astrue, No. 07-CV-167-JTC,
2009 WL 656319, at *4 (W.D.N.Y. Mar. 11, 2009)).
17.
Here, the ALJ engaged in an exhaustive review of the medical record, as well
as Plaintiff’s subjective complaints, and found Plaintiff’s statements not credible. The ALJ
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identified the fact that Plaintiff described his pain as so severe as to nearly require the
assistance of an ambulance, despite pain medication. But Plaintiff was not on any pain
medications for much of his disability period, as evidenced by the fact that he lacked the
necessary insurance. (R. at 18.)6 The ALJ also noted an inconsistency between the
alleged side effects from his medication, and the lack of such complaints to his physicians.
(R. at 18.) At the hearing, Plaintiff also stated that he spent four to five hours a day lying
down, left his house only a couple of time a week, sporadically saw others, did only some
dishes, did not cook, and had not gone out regularly in six or seven years. (R. at 43-46.)
But previously Plaintiff had complained that meal preparation and shopping took him a long
time, not that he was unable to do them. (R. at 188.) He also stated that he went out daily
for cigarettes and for coffee with friends. (R. at 189, 191.) This is thus not a case in which
the ALJ made a “single, conclusory statement that ‘the individual’s allegations have been
considered’ or that ‘the allegations are (or are not) credible.’” SSR 96-7p, 1996 WL
374186, at *2 (S.S.A. 1996). Instead, the ALJ identified a series of inconsistencies on
which he was entitled to rely and find Plaintiff’s statements not credible. See 20 C.F.R. §
404.1529(c)(4).
18.
The ALJ also considered other factors. He observed that Plaintiff’s daily
activities included running errands, paying bills, doing chores, watching television, reading,
using the computer, going out every day, having coffee in the morning with friends, and
briefly working as a bartender and delivery driver. (R. at 21.) Plaintiff also received
unemployment benefits after the alleged onset of disability and certified that he was then
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There appears to be som e confusion relating to the ALJ’s observation that Plaintiff was not
taking any pain m edications for m uch of the alleged disability period. Plaintiff argues that the fact that he
was not taking any pain m edications should not be held against him because he could not afford
insurance. (R. at 293.) But this Court understands the ALJ’s reasoning differently. His testim ony was not
in doubt because he failed to take m edication despite his high levels of pain. Rather, it was that he
alleged his pain was so intense even with m edication when, in fact, he had no prescription drugs.
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“ready, willing, and able to work.” (R. at 47.) When asked whether, during this time, he
could have worked in a full-time job, Plaintiff responded, “At that time – yes.” (R. at 47.)
Finally, during various periods following the alleged onset of disability Plaintiff’s own
physician stated that Plaintiff could return to work. (R. at 250.) These contributed to the
ALJ’s final determination that Plaintiff’s description of his limitations was not credible.
19.
Plaintiff’s response is insufficient to alter this conclusion.
Contrary to
Plaintiff’s assertion, the ALJ was not required to evaluate each of the factors under 20
C.F.R. § 404.1529(c)(3). See Wischoff v. Astrue, 2010 WL 1543849, at *7. As to the pain
medications and side effects, Plaintiff writes that he is “not even sure how that relates to
the Claimant’s case.” (Pl.’s Mem. 5.) But it is clear that the ALJ found Plaintiff’s testimony
as to these inconsistent, and on that basis found his statements less credible. Plaintiff also
cites to a series of cases from outside this circuit to argue that he need not show that he
is incapable of every life activity. He particularly relies on Carey v. Apfel, 6 F. Supp. 2d
195, 202 (W.D.N.Y. 1998), the facts of which he believes are analogous to those here.
This Court agrees that, were the ALJ’s decision not based on more than the
Plaintiff’s self-described daily activities, remand might be appropriate.
But the
determination here was also supported by medical evidence and inconsistencies in the
Plaintiff’s own statements. This distinguishes this case from Carey where “no medical
opinion in this record supports the conclusion that plaintiff could still perform sedentary
work.” Id. at 202.
20.
After carefully examining the administrative record, this Court finds that
substantial evidence supports the ALJ’s decision in this case, including the objective
medical evidence and medical opinions contained therein. This Court is satisfied that the
ALJ thoroughly examined the record and afforded appropriate weight to all of the medical
10
evidence in rendering his decision that Plaintiff is not disabled within the meaning of the
Act. 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. 8) is GRANTED.
FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.
Dated:
June 23, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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