Anderson v. Astrue
Filing
13
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 8 Commissioner's Motion for Judgment on the Pleadings; and dismissing Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/28/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TRACY D. ANDERSON,
Plaintiff,
12-CV-0200(MAT)
DECISION
and ORDER
v.
CAROLYN M. COLVIN,
Commissioner
of Social Security,1
Defendant.
INTRODUCTION
Plaintiff Tracy D. Anderson (“Plaintiff”), who is represented
by counsel, brings this action pursuant to the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying her
application for Supplemental Security Income (“SSI”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Dkt. ##7, 8.
BACKGROUND
On May 20, 2008, Plaintiff filed an application for SSI
alleging disability beginning December 20, 2007, due to back
problems,
high
blood
pressure,
asthma,
and
mental
problems.
1
Carolyn M. Colvin is automatically substituted for the previously
named defendant, Michael Astrue, pursuant to Fed.R.Civ.P. 25(d). The
Clerk of the Court is requested to amend the caption accordingly.
T.83-88, 103.2 Her application was denied on August 8, 2008, and
Plaintiff subsequently requested a hearing before an Administrative
Law Judge (“ALJ”). T.53, 60. Plaintiff’s hearing was conducted
before ALJ Robert T. Harvey on May 18, 2010. T.32-52. A written
decision was issued on June 21, 2010, finding that Plaintiff was
not disabled. T.21-28.
In applying the five-step sequential analysis, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ found that Plaintiff had the severe
impairments of discogenic lumbar spine and polysubstance abuse, and
that those impairments did not meet or equal the Listings set forth
at 20 C.F.R. § 404, Subpart P, Appendix 1. T.23-24. Because
Plaintiff could not be found disabled at the third step, the ALJ
proceeded
to
determine
that
Plaintiff
retained
the
residual
functional capacity (“RFC”) to do light work, with the exception of
climbing ropes, ladders, or scaffolds; working in areas with
unprotected heights; working around heavy, moving, or dangerous
machinery; and being exposed to dampness. T.24. The ALJ further
found
that
Plaintiff
had
occasional
limitations
in
bending,
climbing, stooping, squatting, kneeling, and crawling. Id. Relying
on the Medical-Vocational Guidelines, the ALJ found that Plaintiff
could perform work in the national economy, and concluded that
Plaintiff was not disabled. T.28.
2
Numerals preceded by “T.” refer to pages from the transcript of the
administrative record, submitted by the Commissioner as a separately
bound exhibit in this proceeding.
-Page 2-
The
ALJ’s
decision
became
the
final
decision
of
the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on August 26, 2011. T.10-15. Plaintiff then filed this
action. Dkt. #1.
In the present motion, Plaintiff alleges that the decision of
the ALJ is erroneous and not supported by substantial evidence
because (1) the ALJ erred when he found Plaintiff’s depression to
be a non-severe impairment; (2) the ALJ failed to develop the
record and erroneously determined Plaintiff’s RFC; (3) the ALJ
applied an improper standard in assessing Plaintiff’s credibility;
and (4) the ALJ erred in failing to consult a vocational expert at
Step 5 of the sequential analysis. Pl. Mem. (Dkt. #7-1) at 8-18.
The Commissioner cross-moves for judgment on the pleadings, arguing
that the ALJ’s decision is legally correct and is supported by
substantial evidence. Comm’r Mem. (Dkt. #9) at 12-24.
For the following reasons, Plaintiff’s motion is denied, and
the Commissioner’s cross-motion is granted.
DISCUSSION
I.
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
-Page 3-
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). The section 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)).
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).
-Page 4-
II.
Medical Evidence
A.
Treating Sources
In June and July, 2002, prior to the alleged onset date of
disability, Plaintiff received drug rehabilitation treatment at
Brylin
Hospital
pursuant
to
a
court
order.
T.151-91.
Upon
discharge, Plaintiff was diagnosed with cocaine use, alcohol abuse,
and fibrocystic breast disease. T.152.
From August 2006, through February 2007, Plaintiff received
outpatient mental health treatment from Horizon Health Services.
She had referred herself to counseling after attempting to cut her
wrists. T.200. Plaintiff reported using alcohol on a daily basis,
and was diagnosed with major depressive disorder and alcohol abuse.
T.198. Medication was not recommended. T.200. After Plaintiff
stopped attending appointments and did not respond to further
communications from Horizon, she was terminated as a patient.
T.200.
Plaintiff visited Erie County Medical Center (“ECMC”) on
multiple occasions from 2007 to 2009 with complaints of back pain.
T.204-07, 211, 230-37, 293-94, 296-97, 313, 316, 320, 404-05, 41619, 446-47.
A lumbar spinal image taken on May 14, 2007, revealed normal
sacroiliac joints. T.211. She attended a single physical therapy
appointment
at
ECMC
on
June
11,
2007,
and
reported
a
60%
improvement in her back pain. T.230. Plaintiff was discharged from
-Page 5-
the physical therapy clinic at ECMC on August 20, 2007, due to lack
of compliance with their attendance policy. T.232.
On May 16, 2008, Plaintiff went to the emergency room at ECMC
complaining of back pain. T.204-06. Her neurological examination
was normal and she displayed normal stability and muscle strength
and tone. T.206.
The same month, Plaintiff visited ECMC again
complaining of back and left leg pain. T.237.
A
lumbosacral
spine
x-ray
revealed
a
hint
of
relative
narrowing at L5-S1 with no acute abnormality, and a thoracic spine
x-ray indicated a “question of mild anterior wedge involving the T9
vertebral body.” Plaintiff underwent an MRI on June 11, 2008, which
was interpreted by radiologist Robert Conti, M.D. His impressions
were degenerative disc and facet joint changes at L5-S1 with small
posterior disc protrusions and moderate acquired foraminal stenosis
bilaterally; mild degenerative facet arthrosis at L3-4 and L4-5
without bony
encroachment;
and
the
remainder
of
the
MRI
was
unremarkable. T.207.
In June and October, 2008, Plaintiff told physicians at ECMC
that physical therapy did not provide any relief for her back pain.
T.233-36, 293-94.
An x-ray of Plaintiff’s thoracic spine on September 17, 2008,
showed normal results. T.313.
-Page 6-
She visited the emergency room at ECMC five more times between
July and December, 2009, with complaints of back pain. T.404-05,
414-19, 446-47.
Plaintiff saw her primary care physician, Dr. Pratibha Bansal,
for her back pain from September 2008, to January 2009. T.286-92.
On September 25, 2008, her lumbosacral spine exhibited tenderness
on palpation; straight leg raising test was negative. T.291. There
was
tenderness
bilaterally
over
the
L5-S1
facet
joint
with
extensive myofascial pain present in the lower back interscapular
muscles and tenderness in the mid-thoracic spine. Dr. Bansal
advised
Plaintiff
to
perform
stretching
exercises
and
attend
physical therapy, and prescribed Lortab for her back pain. T.286,
291. On November 6, 2008, Plaintiff reported to Dr. Bansal that
physical therapy was helping her pain considerably, though she
still had pain radiating down the left side of her leg with
numbness and tingling. Dr. Bansal indicated, “We will plan to
return her back to work the beginning of next year.” T.355.
On December 9, 2008, Plaintiff told Dr. Bansal that she had
fallen down a flight of stairs three weeks ago and had been
experiencing pain in her low back and back of left leg, and
tingling in her right leg. T.352. She was given a lumbar epidural
steroid injection on December 15, 2008, which she tolerated well.
T.350-53.
-Page 7-
On January 6, 2009, Plaintiff returned to Dr. Bansal, who
noted she was having a “[m]inimal amount of myofascial pain in the
lumbar paravertebral, gluteal, pyriformis and iliotibial fascia.”
T.349. Her urine toxicology screen results did not reveal the
presence of hydrocodone from Plaintiff’s prescription drugs, but
did reveal cocaine and marijuana. T.349. Dr. Bansal told Plaintiff
that he would not write any further narcotics prescriptions for her
and suggested she attend a detoxification program. Id.
On February 25, 2010, Plaintiff visited Cleve-Hill Family
Health Center alleging back pain after a fall. T.454. Straight leg
raise testing and paraspinal spasms were positive on the left.
T.455. Dr. Vicky Moe prescribed Robaxin and Neurontin for the back
pain and spasms. T.454-55.
B.
Consultative Examinations
Plaintiff was consultatively examined by Dr. Kathleen Kelley
on July 29, 2008. T.250-60. She complained of pain in the upper
back and tailbone area, with radiating pain down the left leg, and
stated that physical therapy had failed to provide relief. T.250.
Plaintiff claimed she only left her home for doctor’s appointments,
noting that she is “just too depressed” and does not feel like
doing much. T.250. Plaintiff stated that she cannot clean, does not
do laundry, and “her friend does shopping because she just does not
feel up to it . . . with the pain.” T.251. She dresses herself only
when she needs to go out and just bathes as necessary. T.251.
-Page 8-
Dr.
Kelley’s
physical
examination
of
Plaintiff
was
unremarkable with the exception of a limited straight leg test from
the supine position (but negative from the sitting position), and
limited flexion and extension in the cervical spine bilaterally.
T.251-52. Plaintiff stated that she was having marked discomfort in
her low back in the supine position and refused to perform any
lumbar spine maneuvers during examination. T.252. She had full
range of motion and strength in her upper and lower extremities. A
lumbar x-ray taken that day was normal. T.253.
Dr.
Kelley
diagnosed
Plaintiff
with
asthma,
depression,
hypertension, and bulging disc of the lumbar spine (per Plaintiff)
with radiculopathy as noted. T.253. Dr. Kelley stated that in her
opinion, “lifting, carrying, or reaching for a markedly heavy
object may aggravate” Plaintiff’s lower back, as would kneeling,
squatting, crawling, walking long distances, or climbing stairs for
long distances. T.253-54. Dr. Kelley stated that “[b]ending or
twisting appears to be markedly limited for the lumbar spine[.]”
T.253. Finally, Dr. Kelley opined that Plaintiff should not be
required to lie flat on her back, should avoid areas of smoke or
respiratory
irritants,
and
should
avoid
heights
due
to
radiculopathy in the left leg. T.254.
The
same
day,
Plaintiff
was
evaluated
by
consultative
psychiatrist Dr. Kevin Duffy. She complained of short-term memory
deficit and acknowledged alcohol abuse. T. 262. Her affect was
-Page 9-
somewhat depressed and her mood was dysthymic. T. 263. Plaintiff
denied recurrent thoughts of death or suicide, anxiety or panic.
T. 262. Plaintiff’s attention and concentration skills, and recent
and remote memory skills appeared to be generally intact. T.263.
Her insight and judgment were assessed as fair. Id.
Dr. Duffy diagnosed Plaintiff with asthma, back problems,
alcohol abuse, and noted a “rule out” diagnosis of depressive
disorder, not otherwise specified. T.264. He concluded that the
results of his examination “appear[ed] to be consistent with
psychiatric problems, but in itself this does not appear to be
significant enough to interfere with [her] ability to function on
a daily basis.” Id. Dr. Duffy noted that individual psychological
therapy and vocational training/rehabilitation “may be necessary to
help [her] reenter the work force.” Id.
Dr. C. Butensky, a state agency psychologist, reviewed the
record on August 5, 2008, and concluded that Plaintiff’s mental
impairments were not severe, noting a “lack of treatment, lack of
medication and lack of impact on her daily activities.” T.266, 278.
He opined that Plaintiff had only mild limitations in daily living,
social functioning, and maintaining concentration, persistence or
pace, and had experienced no episodes of decompensation. T.276.
III. Non-Medical Evidence
Plaintiff was born on September 18, 1972, and had a general
equivalency diploma and a certificate in computers. T. 36-37. She
-Page 10-
testified
that
she
was
disabled
from
asthma,
hypertension,
depression, and back problems, and told the ALJ she had a history
of alcohol and drug abuse. T.43-45. Prior to the period at issue,
Plaintiff was treated for substance abuse. T.43-45.
In her disability application, Plaintiff stated she stopped
working in December, 2007, because she fell while on the job.
T. 103. She alleged constant back pain that radiated down her left
leg, cramping in her left leg a few times per day, and daily
swelling of her right ankle. T.39-41. She took medication for her
back pain, which made her drowsy, and did stretches at home. T.3940, 43, 49.
She stated that she was depressed because she stayed at home
and did not go to work due to her pain. T.42. She did not take
medication
or
undergo
treatment
for
her
depression.
T.41.
Medication controlled her asthma and hypertension. T. 38, 41.
Regarding her daily activities, Plaintiff alleged that she
spent about 85 percent of her day lying in the prone position.
T.48-51. She could stand or sit for about 20 or 30 minutes, walk
for a half-block before resting, and could lift a gallon of milk
and a 20-pound bag of potatoes without a problem. T.47-48, 51. She
reported no
difficulties
with
her
hands,
or
with
pushing
or
pulling. T.48. Plaintiff could not climb, bend at the waist,
vacuum, do laundry, make beds, do yard work, or grocery shop. She
could, however, cook, sweep, wash dishes, take out the trash, and
-Page 11-
perform personal care. T.46-48, 51. Her primary care physician did
not tell her to avoid any activities due to pain. T.50.
IV.
Discussion
A.
Step Two Error
Plaintiff first contends that the ALJ erred at step two in
finding her depression to be a non-severe impairment.
Pl. Mem.
(Dkt. #7-1) at 8-10.
For an impairment to be considered severe, it must more than
minimally limit the claimant’s functional abilities, and it must be
more than
a
slight abnormality.
20
C.F.R.
§
416.924(c).
The
“severity regulation” is intended only “to screen out de minimis
claims.’” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995).
Often, when there are multiple impairments, and the ALJ finds some,
but not all of them severe, an error in the severity analysis at
step two may be harmless because the ALJ continued with sequential
analysis and did not deny the claim based on the lack of a severe
impairment alone. Tryon v. Astrue, No. 5:10–CV–537, 2012 WL 398952,
at *3 (N.D.N.Y. Feb. 7, 2012). This is particularly true because
the regulations provide that combined effects of all impairments
must be considered, regardless of whether any impairment, if
considered separately, would be of sufficient severity. 20 C.F.R.
§§ 404.1523, 416.923.
The Court finds that substantial evidence in the record
supports the ALJ’s determination that Plaintiff’s depression was
-Page 12-
not severe.
Plaintiff’s
Consultative psychologist Dr. Duffy concluded that
psychological
impairments
did
not
appear
to
be
significant enough to interfere with her ability to function on a
daily basis. T. 263-64. He noted that Plaintiff had adequate social
skills, and could appropriately deal with stress. Although she had
a “somewhat depressed” affect, she denied thoughts of suicide,
anxiety,
manic
symptoms,
and
thought
disorder.
T.
253,
262.
Dr. Duffy opined that Plaintiff could follow and understand simple
directions and instructions; perform simple tasks independently;
maintain attention, concentration, and a regular schedule; learn
new tasks; perform complex tasks independently; make appropriate
decisions; relate adequately with others; and deal appropriately
with
stress.
T.
264.
The
State
Agency
review
psychiatrist
Dr. Butenski concurred in the opinion that Plaintiff’s mental
impairments were not severe and only mildly affected her daily
functioning. T. 266, 278.
Plaintiff asserts that she was diagnosed with Major Depressive
Disorder while seeking mental health treatment at Horizon Health.
Pl. Mem. at 10. However, her treatment at Horizon ended prior to
her alleged disability onset date, and there is no evidence that
her mental impairment deteriorated since that time. See Snell v.
Apfel, 177 F.3d 128, 136 (2d Cir. 1999) (“[F]or Snell’s mental
impairments to render her disabled after the accident but before
the end of her coverage period . . . , it would have to be the case
-Page 13-
that, during that time, her mental condition deteriorated from what
it had been when she was in fact working.”). Plaintiff testified at
the hearing that was not taking medication for her depression
symptoms, and she was not in therapy or counseling for her mental
health issues. T. 41. It was not inappropriate for the ALJ to
consider this failure to seek treatment for her alleged depression
in determining the credibility of her complaints. See Navan v.
Astrue, 303 F. App’x 18, 21 (2d Cir. 2008) (summary order) (“[T]he
ALJ’s finding that Navan’s claims of subjective pain were not
entirely credible are likewise adequately supported by substantial
evidence.
Despite
claiming
that
his
condition
was
totally
disabling, Navan failed to seek regular medical treatment during
the period between March 1997 and June 1999.”).
For
the
reasons
discussed
above,
the
Court
finds
that
substantial evidence in the record supports the ALJ’s step two
finding that Plaintiff’s depression was not severe.
B.
Development of the Record/RFC Finding
Plaintiff contends that the ALJ failed to develop the record
as
follows:
(1)
there
was
no
opinion of
specific
functional
limitation from a treating or examining source, and (2) he did not
reconcile Dr. Kelley’s opinion regarding Plaintiff’s apparently
“marked” limitation in the ability to bend with his finding that
Plaintiff could perform light work. Pl. Mem. at 10-11.
-Page 14-
The ALJ has an affirmative duty to develop the record in a
disability benefits case. Shaw v. Chater, 221 F.3d 126, 131 (2d
Cir. 2000). The governing statute provides that the ALJ “shall make
every reasonable effort to obtain from the individual’s treating
physician (or other treating health care provider) all medical
evidence,
including
properly
make”
diagnostic
the
tests,
disability
necessary
determination.
in
order
42
to
U.S.C.
§ 423(d)(5)(B); see also 20 C.F.R. §§ 404.1512(d), 416.912(d).
However, “[t]he lack of a medical source statement from a treating
physician will not make the record incomplete, see 20 C.F.R.
§§ 404.1513(b)(6), 416.913(b)(6), provided that the ALJ made his
decision based on sufficient and consistent evidence.” Dufresne v.
Astrue,
No.
5:12–CV–00049
(MAD/TWD).2013
WL
1296376,
at
*6
(N.D.N.Y. Mar. 8, 2013).
The present record contains comprehensive treatment records
from
Plaintiff’s
primary
treating
physician,
Dr.
Bansal,
documenting Plaintiff’s complaints of pain, physical findings,
discussions with Plaintiff, and treatment plans. T.286-92, 347-59.
The ALJ also obtained
a competent medical opinion regarding
Plaintiff’s functional limitations from consultative physician
Dr.
Kelley.
Dr.
Kelley’s
examination
findings
were
largely
consistent with Dr. Bansal’s treatment records, the diagnostic
imaging tests, and the extensive treatment notes from Plaintiff’s
multiple visits to ECMC and Cleve-Hill Health Center. Specifically,
-Page 15-
the record supports Bansal’s findings of a diagnosis of lumbar disc
degeneration and a conservative course of treatment which included
stretching, physical therapy, and medication. Thus, there was
adequate evidence in the record for the ALJ to determine whether
Plaintiff was disabled, and the ALJ did not err in obtaining an RFC
assessment from treating source Dr. Bansal. See Hart v. Comm’r of
Soc. Sec.,
No.
07–CV–1270,
2010
WL
2817479,
at
*5
(N.D.N.Y.
July 10, 2012) (“[B]ecause the evidence [of record] was adequate to
make a determination [as to disability], the ALJ was not required
to again contact plaintiff’s treating or other medical sources.”)
(citing 20 C.F.R. § 404.1512(e)).
Plaintiff
also
asserts
that
the
ALJ
did
not
reconcile
consultative examiner Dr. Kelley’s opinions that Plaintiff appeared
to have a “marked” limitation in the ability to bend and that
walking for “long distances” would aggravate her back pain, with
his RFC finding that Plaintiff could perform light work, which
requires “occasional” bending and standing/walking for up to six
hours in an eight-hour workday. Pl. Mem. at 10-11; Pl. Reply at 34. As Plaintiff notes, “[b]oth light and sedentary work require
occasional stooping or bending, occasional meaning up to one third
of an eight hour day.” Molina v. Barnhart, No. 04 CIV. 3201(GEL),
2005 WL 2035959, at *8 (S.D.N.Y. Aug. 17, 2005) (citing SSR 83-14
at *4; SSR 96-9p, at *8). A job in the light work category
“requires a good deal of walking or standing, or . . . involves
-Page 16-
sitting most of the time with some pushing and pulling of arm or
leg controls.” 20 C.F.R. § 416.967(b).
Although the determination of a claimant’s RFC is reserved for
the Commissioner, see 20 C.F.R. § 416.927(e)(2), an RFC assessment
“is a medical determination that must be based on probative medical
evidence of record . . . . Accordingly, an ALJ may not substitute
his own judgment for competent medical opinion.” Lewis v. Comm’r of
Soc. Sec., No. 00 CV 1225, 2005 WL 1899399, *3 (N.D.N.Y. Aug. 2,
2005) (citing Rosa, 168 F.3d at 79; Balsamo v. Chater, 142 F.3d 75,
81 (2d Cir. 1998) (citation omitted)). An ALJ may not “pick and
choose” from the medical evidence only those parts that favor a
finding of no disability. E.g., Lynch v. Astrue, No. 09-CV-623,
2011
WL
2516213,
at
*8
(W.D.N.Y.
June
21,
2011)
(citations
omitted).
Contrary to Plaintiff’s contention, the ALJ did not improperly
substitute his lay opinion for a competent medical opinion, or err
in
rejecting
portions
of
consultative
examiner
Dr.
Kelley’s
opinion. With regard to Plaintiff’s ability to bend or twist,
Dr.
Kelley
qualified
her
opinion,
stated
that
“[b]ending
or
twisting appears to be markedly limited for the lumbar spine. . .
.” T. 253 (emphasis supplied). The Court notes that this portion of
Dr.
Kelley’s
opinion
was
based
on
an
incomplete
clinical
examination, since Plaintiff refused to perform any lumbar spine
maneuvers. Significantly, treating physician Dr. Bansal noted in
-Page 17-
the fall of 2008, a few months after Dr. Kelley’s consultative
examination, that the plan was to “return [Plaintiff] back to work
in the beginning of next year.” T. 355. In addition, Plaintiff
testified that Dr. Bansal and the treatment providers at Cleve-Hill
did not tell her to avoid any activities.
The
ALJ
did
not
reject
Dr.
Kelley’s
opinion
wholesale,
inasmuch as he included in his RFC assessment a finding that
Plaintiff
was
limited
to
only
occasional
bending,
climbing,
stooping, squatting, kneeling, and crawling, and thus properly
considered Plaintiff’s postural limitations that were established
by the medical evidence. T.24.
C.
Error in Assessing Plaintiff’s Credibility
Plaintiff contends that the ALJ did not use the appropriate
standards set forth in 20 C.F.R. § 416.929(c)(3) in assessing her
credibility. Pl. Mem. at 16-17.
“While an ALJ ‘has the discretion to evaluate the credibility
of a claimant and to arrive at an independent judgment [regarding
that pain, he must do so] in light of medical findings and other
evidence, regarding the true extent of the pain alleged by the
claimant.’”
Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)
(quotations omitted; alteration in original).
“If the ALJ decides
to reject subjective testimony concerning pain and other symptoms,
he must do so explicitly and with sufficient specificity to enable
the Court to decide whether there are legitimate reasons for the
-Page 18-
ALJ’s disbelief and whether his determination is supported by
substantial evidence.” Brandon v. Bowen, 666 F. Supp. 604, 608
(S.D.N.Y. 1987) (citing, inter alia, Valente v. Sec’y of HHS, 733
F.2d 1037, 1045 (2d Cir. 1984); footnote omitted).
Here, the ALJ found that Plaintiff’s statements regarding her
symptoms were generally credible, but not to the extent alleged.
T.25. In making this determination, the ALJ summarized the relevant
medical evidence in the record, Plaintiff’s complaints to her
doctors, her treatment history, compliance with medications, and
her reported activities of daily living. T.24-27. The ALJ noted
multiple exams which yielded mild limitations or normal results,
and detailed reported improvements in Plaintiff’s condition due to
physical therapy, stretching exercises, and an epidural injection.
T.25-26. He further noted that there had been a large gap in
treatment after January 2009, and that Plaintiff’s last visit with
Dr. Bansal did not reveal the presence of her prescribed pain
medications. T.26.
claimant’s
frequency
See SSR 96-7p, 1996 WL 374186, at *7 (a
“statements
of
treatment
may
be
is
less
credible
inconsistent
if the
with
the
level or
level
of
complaints, or if the medical reports or records show that the
individual is not following the treatment prescribed”).
Contrary to Plaintiff’s assertion, the ALJ not only applied,
but also recited all of the regulatory factors to be considered per
20 C.F.R. § 416.929 in his written decision. T.24-25. Accordingly,
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the Court finds that the ALJ’s credibility determination is proper
as a matter of law, and is supported by substantial evidence in the
record.
D.
Failure to Call a Vocational Expert
Plaintiff
avers
that
the
ALJ
should
have
consulted
a
vocational expert because Plaintiff has significant nonexertional
(postural
and
mental)
impairments
that
result
in
limitations
additional to those resulting from her exertional impairments
alone. Pl. Mem. 17-18.
Generally,
vocational
the
expert
Court
is
will
only
find
that
necessary
the
when
testimony
the
of a
claimant’s
nonexertional impairments significantly diminish his ability to
work. Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986). Here, the
ALJ relied on Medical-Vocational Rule 202.20 and SSR 85-15 to find
Plaintiff “not disabled” because her “additional [nonexertional]
limitations ha[d] little or no effect on the occupational base of
unskilled light work.” T.28. As discussed above, the ALJ did not
err in finding Plaintiff’s a non-severe impairment. Plaintiff
testified that she did not take medication for her depression or
receive mental health therapy. T.23. The consultative psychologist
found that she had appropriate social skills, the ability to deal
with stress, and no evidence of impaired judgment. T.253, 262-64.
With regard to her limitation in bending, the ALJ did not err in
finding that she retained the ability to do occasional bending, as
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discussed above. The Court notes this degree of limitation is
consistent with the requirements of light work under SSR 83-10, and
thus, Plaintiff’s ability to perform at this exertional level was
not significantly diminished. Consequently, the ALJ did not err in
utilizing
the
Medical-Vocational
Rules
without
obtaining
the
testimony of a vocational expert. See Zabala v. Astrue, 595 F.3d
402, 410-11 (2d Cir. 2010) (use of Medical-Vocational Guidelines
was permissible since claimant’s nonexertional limitations did not
result in an additional loss of work capacity; ALJ found that
claimant’s mental condition did not limit her ability to perform
unskilled work).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Dkt. #7) is denied, and the Commissioner’s crossmotion for judgment on the pleadings (Dkt. #8) 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:
Rochester, New York
August 28, 20147
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