Braggs v. Commissioner of Social Security
Filing
19
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Commissioner's Motion for Judgment on the Pleadings and dismissing the Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/14/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ARTHUR BRAGGS,
Plaintiff,
DECISION and ORDER
No. 11-CV-1056(MAT)
-vsCAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
I.
Introduction
Represented by counsel, Arthur Braggs (“Plaintiff”), brings
this action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”)1 denying his application for
Supplemental Security Income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
II.
Procedural History
Plaintiff filed applications for SSI and disability insurance
benefits on December 1 and December 5, 2009, respectively, alleging
that he was disabled commencing on June 30, 2003, due to lower back
pain and leg pain. T. 62-63, 111-14, 117-18, 153.2 Plaintiff’s
1
Carolyn W. Colvin has replaced Michael J. Astrue as the
Commissioner of Social Security. She therefore is automatically
substituted as the defendant in this action pursuant to Rule 25(d)(1)
of the Federal Rules of Civil Procedure.
2
References to “T.__” refer to the pages of the administrative
transcript, submitted as a separately bound exhibit in this action.
claims
were
initially
denied,
and
a
subsequent
hearing
was
conducted before an Administrative Law Judge (“ALJ”) on April 5,
2011. T. 33-55, 72-74. Prior to the hearing, Plaintiff amended his
alleged disability onset date to April 2, 2010, and withdrew his
claim for disability insurance benefits. T. 37, 184. On May 4,
2011, the ALJ issued a written decision denying Plaintiff’s claims
for SSI benefits on the ground that he was not disabled. T. 19-29.
The
ALJ’s
determination
became
the
final
decision
of
the
Commissioner on November 15, 2011, when the Appeal’s Council denied
Plaintiff’s
request
for
review.
T.
1-4.
This
timely
action
followed. Dkt. #1.
Currently pending before the Court is the Commissioner’s
motion for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. Dkt. #10. The sole issue to be
determined
is
whether
substantial
evidence
supports
the
Commissioner’s decision that Plaintiff was not disabled under the
Act from April 2, 2010, to May 4, 2010. For the reasons that
follow, the Court finds that the ALJ’s decision is supported by
substantial evidence, and the Commissioner’s motion is granted.
III. Factual Background
A.
Medical Evidence
1.
Treating Physicians
In 1999, Plaintiff was involved in a motor vehicle accident
and required surgery for a fractured left leg. T. 209-10.
-2-
Dr. Richard Curran began treating Plaintiff on April 2, 2010.
T. 215. Dr. Curran noted that Plaintiff exhibited tenderness and
walked slowly with a cane. The physician diagnosed Plaintiff’s
condition as left leg pain, and referred him to an orthopedic
surgeon to determine the present status of repair and functional
level of the left leg. T. 215. Shortly thereafter, Dr. Curran
completed
a
physical
residual
functional
capacity
(“RFC”)
questionnaire based upon his one-time examination of Plaintiff.
Therein, Dr. Curran diagnosed Plaintiff with chronic left leg pain
with
history
of
leg
surgery
and
noted
the
following:
(1) Plaintiff’s symptoms could constantly interfere with attention
and concentration needed to perform simple tasks, and he would be
incapable of performing low-stress jobs; (2) Plaintiff could not
walk a city block, and could sit only about two hours and stand or
walk less than two hours in an eight-hour day; (3) Plaintiff could
rarely lift and carry less than ten pounds; and (4) Plaintiff would
require a job that would allow him to change positions and permit
him to take unscheduled breaks. T. 217-19.
Dr. Joseph Falcone, an orthopedist who performed Plaintiff’s
leg surgery in 1999, saw Plaintiff on July 27, 2010 upon complaints
of worsening pain and numbness in the left leg, weakness in his
foot and ankle, and back pain. T. 229-30.
During that visit
Dr. Falcone observed diminished reflexes on the left, weakness in
his great toe, and pain upon straight leg raises. Dr. Falcone
-3-
believed Plaintiff’s symptoms were probably due to lumbosacral
radiculopathy and ordered an MRI to determine whether plaintiff had
a herniated disc. T. 229-30.
An MRI of Plaintiff’s lumbar spine performed on August 20,
2010 revealed minor degenerative changes in the lubmar spine
without mass effect or displacement of neural structure, no spinal
stenosis or foraminal narrowing, and a slight loss of lumbar
lordosis and minor scoliosis. T. 224.
Dr. Falcone saw Plaintiff for follow-up on September 9, 2010,
and determined that Plaintiff’s complaints were likely due to
tendonitis, ligament irritation, sprain/strain, and pes enserine
bursitis (inflammation of the knee), and recommended physical
therapy.
T.
228.
He
noted
that
Plaintiff’s
previous
x-ray
demonstrated that the leg fracture had “completely healed.” Id.
On October 28, 2010, Plaintiff saw Dr. Joseph Kowalski for
complaints of lower back pain. T. 236. Dr. Kowalski reviewed the xray and MRI, and determined that Plaintiff had no radiculopathy.
T. 236.
Plaintiff again saw Dr. Falcone in December 2010, who noted
that Plaintiff was making good progress with physical therapy.
T. 241.
In
March
2011,
Dr.
Curran
completed
a
second
RFC
questionnaire, which was revised to reflect that: (1) Plainitff
could sit for four hours at one time, and stand and walk for two
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hours at one time; (2) in an eight-hour day, Plaintiff could sit
for four hours, and stand/walk for three hours; (3) Plaintiff could
frequently lift up to five pounds and occasionally lift up to ten
pounds,
but
could
not
carry
more
than
five
pounds;
and
(4) Plaintiff could not bend, squat, crawl, climb, or reach, but
could use his hands for repetitive action, push, and pull. T. 18687.
Dr. Curran opined that Plaintiff would miss two days of work
per month due to pain symptoms, and was thus limited to part-time
work. Id.
2.
Consultative Examination
Dr. Navindra Ramdeen conducted an orthopedic examination of
Plaintiff on January 27, 2010, for the State Division of Disability
Determinations. T. 209-12. Plaintiff complained of left leg pain
since 1999 following a fracture that was somewhat relieved with
BenGay ointment and sitting down. T. 209-10. Dr. Ramdeen observed
that Plaintiff did not appear to be in any acute distress. T. 210.
Plaintiff’s examination yielded normal results in all respects,
with the exception of being unable to walk on his heels and toes.
T. 210-11. Likewise, x-rays of Plaintiff’s lumbar spine were
negative. T. 211, 213. Dr. Ramndeen diagnosed Plaintiff’s condition
as lower back pain and left leg pain, with mild limitations in
standing and walking long distances, squatting and kneeling, and
lifting and carrying heavy objects due to left leg pain.
12.
-5-
T. 211-
B.
Non-medical Evidence
1.
Plaintiff’s Testimony
Plaintiff was born in 1977 and has a high-school education.
T. 37. He received training in carpentry and, at the time of his
hearing, had completed one semester of college and was currently
enrolled in classes twice per week. T. 38-39, 157. He last worked
in
2003
in
a
restaurant
in
various
capacities.
T.
39,
154.
Plaintiff testified that he stopped working because he could not
keep up the pace due to leg and lower back pain. T. 39-40.
Plaintiff stated that he received physical therapy and took
Ibuprofen for his pain, and performed some home exercises, which
provided a little relief. T. 42, 45.
Plaintiff testified that he could cook, do laundry, and
perform routine household chores such as vacuuming, sweeping, and
washing dishes. T. 23, 142-43, 151, 210. He was able to shop for
groceries and independently use public transportation. T. 46-47.
Plaintiff read, listened to music, and played video games, cards,
and chess for recreation. T. 46, 48, 53, 141. In a questionnaire
completed in December 2009, Plaintiff characterized his daily
activities as “basically normal” but that some activities took “a
little longer.” T. 140, 151. He testified that he would have
difficulty standing still, but estimated that he could walk for
four hours in an eight-hour day, sit for four hours in an eighthour day, and probably lift ten pounds. T. 49-51.
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IV.
The ALJ’s Decision
The ALJ applied the well-established five-step sequential
evaluation to determine whether an individual is disabled as
defined under the Act. See 20 C.F.R. § 416.920. First, the ALJ
found
that
Plaintiff
had
not
engaged
in
substantial
gainful
activity since June 30, 2003. T. 22. At the second step, the ALJ
found that Plaintiff had severe back and knee impairments. Id.
At
the third step, the ALJ concluded that Plaintiff did not have a
listed impairment. Id. He then analyzed the medical evidence to
determine Plaintiff’s RFC, and found that Plaintiff was able to
perform the full range of sedentary work. T. 30-33. Accordingly,
the ALJ moved to the fourth step, at which point he found that
Plaintiff could not perform his past relevant work as a bus boy,
cook, dishwasher, and laborer. T. 28. At the fifth and final step
of the sequential evaluation process, the ALJ used the Medical
Vocational Rules to find that Plaintiff was not disabled. T. 28-29.
V.
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to 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) (2007). The section
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directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S.
121, 149 (1997).
When
determining whether
the
Commissioner's
findings
are
supported by substantial evidence, the Court's task is “to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits
the scope of the Court's review to two inquiries: determining
whether the Commissioner's findings were supported by substantial
evidence in the record as a whole, and whether the Commissioner's
conclusions
are
based
upon
an
erroneous
legal
standard.
Green–Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003); see
also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not
try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be granted
where the material facts are undisputed and where judgment on the
-8-
merits is possible merely by considering the contents of the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
(2d Cir. 1988). A party's motion will be dismissed if, after a
review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
VI.
Discussion
A.
Plaintiff’s Credibility
In opposing the Commissioner’s motion for judgment on the
pleadings, Plaintiff contends that the ALJ failed to apply the
appropriate legal standards in evaluating Plaintiff’s subjective
complaints. Pl. Mem. (Dkt. #12) at 10-13.
To establish disability, there must be more than subjective
complaints.
There
must
impairment,
demonstrable
be
an
underlying
by medically
physical
acceptable
or
mental
clinical
and
laboratory diagnostic techniques that could reasonably be expected
to produce the symptoms alleged. 20 C.F.R. § 416.929(b); accord
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). When a
medically
determinable
impairment
exists,
objective
medical
evidence must be considered in determining whether disability
exists,
whenever
such
evidence
is
available.
20
C.F.R.
§ 416.929(c)(2). If the claimant's symptoms suggest a greater
restriction of function than can be demonstrated by objective
-9-
medical evidence alone, consideration is given to such factors as
the claimant's daily activities; the location, duration, frequency
and intensity of pain; precipitating and aggravating factors; the
type,
dosage,
effectiveness,
and
adverse
side-effects
of
medication; and any treatment or other measures used to relieve
pain. 20 C.F.R. § 416.929(c)(3); see Social Security Ruling (“SSR”)
96–7p, (July 2, 1996), 1996 WL 374186, at *7. Thus, it is well
within the Commissioner's discretion to evaluate the credibility of
Plaintiff's testimony and render an independent judgment in light
of the medical findings and other evidence regarding the true
extent of
symptomatology.
Mimms
v.
Sec’y,
750
F.2d
180, 186
(2d Cir. 1984); Gernavage v. Shalala, 882 F.Supp. 1413, 1419
(S.D.N.Y. 1995).
Here, the ALJ found that “[Plaintiff's] medically determinable
impairments could not reasonably be expected to cause the alleged
symptoms;
however,
[Plaintiff's]
statements
concerning
the
intensity, persistence and limiting effects of these symptoms are
not credible to the extent that they are inconsistent with the ...
residual functional capacity assessment.” T. 26. Contrary to the
Plaintiff’s contention, the ALJ did evaluate all of the required
factors bearing on Plaintiff’s credibility prior to determining his
RFC.
Pl. Mem. 11.
In
addition
to
the
objective
medical
evidence,
which
consistently supports only mild limitations in Plaintiff’s left
-10-
leg,
the
ALJ considered additional factors such as Plaintiff’s
daily activities; the nature, location, onset, duration, frequency,
radiation, and intensity of pain; type, dosage, and effectiveness
of Plaintiff’s medication; and any other measures which he used to
relieve his pain. See 20 C.F.R. § 416.929(c)(3); SSR 96-7p. At the
hearing, Plaintiff testified that he could cook, do laundry, and
perform other household chores. T. 23, 142-43, 151, 210. At that
time Plaintiff had been attending college classes twice a week and
had completed one semester. T. 38-39. He stated that his daily
activities were “basically normal” but that some activities took “a
little longer.” T. 140, 151. Regarding his medication, Plaintiff
took Ibuprofen, which he stated provided occasional relief. T. 45,
232, 233, 236. He also took baths and used topical ointment for
pain relief. T. 151, 209.
This evidence contradicts Plaintiff’s
complaints that he would need to lie down for up to four hours on
a bad day–a complaint that was never reported to any physician and
is not supported by Dr. Curran’s March 2011 RFC assessment which
did not indicate that Plaintiff would need to lie down for any
period of time during an eight-hour work day. T. 26. Moreover,
although Plaintiff had complained of leg pain since 1999 and back
pain since 2006, he did not seek medical treatment from 2003-2007.
T. 27.
Because
the
ALJ's
decision
contained
specific
reasons
supported by the evidence for discounting Plaintiff's credibility,
-11-
he correctly evaluated Plaintiff's statements in making his RFC
determination. T. 20; see also SSR 96–7p, supra.
B.
Treating Source Opinion
Plaintiff also argues that the ALJ failed to follow the socalled treating physician rule in rejecting Dr. Curran’s RFC
assessment of Plaintiff. Pl. Mem. 7-10.
Under the Regulations, a treating physician's opinion is
entitled to “controlling weight” when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(c)(2); see also Rosa v. Callahan, 168
F.3d 72, 78–79 (2d Cir. 1999); Schisler v. Sullivan, 3 F.3d 563,
567 (2d Cir. 1993). An ALJ may refuse to consider the treating
physician's opinion only if he is able to set forth good reason for
doing so. Saxon v. Astrue, 781 F.Supp.2d 92, 102 (N.D.N.Y. 2011).
The less consistent an opinion is with the record as a whole, the
less weight it is to be given. Otts v. Comm'r of Soc. Sec., 249
Fed. Appx. 887, 889 (2d Cir. 2007) (an ALJ may reject such an
opinion of a treating physician “upon the identification of good
reasons,
such
as
substantial
contradictory
evidence
in
the
record”).
The
opinion
controlling
of
weight
a
treating
where
the
physician
treating
is
not
physician's
afforded
opinion
contradicts other substantial evidence in the record, such as the
-12-
opinions of other medical experts. Williams v. Comm'r of Soc. Sec.,
236 Fed. Appx. 641, 643–44 (2d Cir. 2007); see also Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing 20 C.F.R.
§ 404.1527(d)(2)). “While the final responsibility for deciding
issues relating to disability is reserved to the Commissioner, the
ALJ must still give controlling weight to a treating physician's
opinion on the nature and severity of a plaintiff's impairment when
the opinion is not inconsistent with substantial evidence.” Martin
v. Astrue, 337 Fed. Appx. 87, 89 (2d Cir. 2009).
When an ALJ refuses to assign a treating physician's opinion
controlling
weight,
he
must
consider
a
number of
factors
to
determine the appropriate weight to assign, including: (i) the
frequency of the examination and the length, nature and extent of
the treatment relationship; (ii) the evidence in support of the
treating physician's opinion; (iii) the consistency of the opinion
with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to the Social Security
Administration's attention that tend to support or contradict the
opinion. See 20 C.F.R. § 404.1527(c). “Failure to provide ‘good
reasons' for not crediting the opinion of a claimant's treating
physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999) (citation omitted).
Here, the ALJ did not give the RFC asessments prepared by
Dr. Curran
controlling
weight
because
-13-
the first
RFC
was
not
supported by the one-time treatment notes of the physician and
because the second was not supported by the treatment notes, was
internally inconsistent, and was not supported by other objective
medical evidence
contained
in
the
record.
T.
27-28.
The
ALJ
therefore provided the requisite “good reasons” for rejecting Dr.
Curran’s RFC assessments.
At the outset, the fact that Dr. Curran’s April 12, 2010 RFC
assessment was based upon a single examination that he conducted of
Plaintiff as a new patient is worth noting. T. 25, 27. A treating
source is defined by the regulations as a claimant’s “own physician
. . . who has provided [the claimant] with medical treatment or
evaluation
and
who
has,
or
has
had,
an
ongoing
treatment
relationship with [the claimant].” 20 C.F.R. § 416.902. Where, as
here, a physician sees a patient once or twice, he or she does not
have a chance to develop an ongoing relationship with the patient
and is generally not considered a treating source. See
Petrie v.
Astrue, 412 Fed.Appx. 401, 405 (2d Cir.2011) (treating sources who
see a patient only once or twice do not have a chance to develop an
ongoing relationship with the patient and thus are generally not
considered treating physicians); Schisler v. Bowen, 851 F.2d 43, 46
(2d Cir. 1988) (defining a “treating physician” as a physician “who
has or had an ongoing treatment and physician-patient relationship
with the individual”). Thus, it is arguable whether the treating
source rule even applies to Dr. Curran’s initial RFC assessment.
-14-
Nonetheless, the ALJ went on to consider several key factors in
deciding what weight to accord Dr. Curran’s opinion. See 20 C.F.R.
§
404.1527(c)
(“Unless
we
give
a
treating
source's
opinion
controlling weight ..., we consider all of the [regulatory] factors
in deciding the weight we give to any medical opinion.”).
First,
Dr.
Curran’s
treatment
notes
are
internally
inconsistent and do not support either RFC assessment. Plaintiff
saw Dr. Curran four times over the course of a year, yet his
treatment notes contain minimal findings. T. 27, 215, 232-34. In
July, 2010, Dr. Curran noted that Plaintiff had tenderness in the
mid-lumbosacral area and good strength in his legs. T. 232. When
Plaintiff visited the doctor one month later, he did not complain
of back pain. T. 233. In October, 2010, Plaintiff told Dr. Curran
that his back acted up “at times” and that he had “some sciatica,”
however the doctor reported no abnormal findings and again noted
good strength in Plaintiff’s legs. T. 234. Treatment notes from
March 24, 2011 indicate very similar findings (some tenderness in
back, good strength in legs). T. 243. Significantly, Dr. Curran
prescribed only Ibuprofen, a nonsteroidal anti-inflammatory, for
Plaintiff’s pain. T. 232-33. Dr. Curran’s records support the
remainder of the medical evidence indicating that Plaintiff only
had mild, as opposed to disabling, limitations.
Second, Dr. Curran’s March, 2011 RFC assessment showed that
Plaintiff
had
a
greater
functional
-15-
ability
and
demonstrated
improvement
of
functioning
as
compared
to
the
previous
RFC
questionnaire from April, 2010. Specifically, Dr. Curran’s found
that Plaintiff could sit for four hours of an eight-hour day, stand
and walk for three hours of an eight-hour day, could lift up to ten
pounds, and could carry up to five pounds. This assessment is
consistent with the ALJ’s conclusion that Plaintiff was able to
perform sedentary work3 and inconsistent with Dr. Curran’s own
treatment notes.
Finally, the objective medical evidence contained in the
record as
a
whole belie the
extent
of
Plaintiff’s
purported
limitations contained in both Dr. Curran’s RFC assessments. The
report of Dr. Ramdeen’s January 27, 2010 consultative orthopedic
yielded unremarkable results, as did the diagnostic imaging tests
(x-ray and MRI) which contained only modest findings. T. 209-13,
224, 237, 238.
For these reasons, the ALJ properly discounted Dr. Curran’s
opinion that Plaintiff was disabled from full-time competitive
employment on a sustained basis was not entitled to controlling
weight. In any event, the ultimate responsibility for deciding
whether a claimant is disabled is reserved to the Commissioner, and
treating source opinions on that issue are not given any special
3
Sedentary work is defined by the Commissioner as work requiring
lifting no more than ten pounds and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. 20 C.F.R.
§ 416.967(a).
-16-
significance. 20 C.F.R. § § 416.927(e)(1), (3), accord, Snell, 177
F.3d at 133.
C.
Vocational Expert Testimony
Plaintiff concludes by arguing that the vocational expert
testimony upon which the ALJ relied cannot provide substantial
evidence to support the determination of no disability. Pl. Mem.
13-14.
Because the ALJ did not actually seek the testimony of a
vocational expert in this case, the Court believes this argument to
be made in error as a result of Plaintiff’s counsel “cutting and
pasting” text from an unrelated brief. It is therefore disregarded.
VII. Conclusion
For the foregoing reasons, the Commissioner's motion for
judgment on the pleadings (Dkt. #10) is granted. The Complaint is
dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 14, 2014
Rochester, New York
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