Perry v. Astrue
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 Government's Motion for Judgment on the Pleadings; denying 9 Plaintiff'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 4/29/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Plaintiff Darcy Perry, ("Plaintiff"), who is represented by
counsel, brings this action pursuant to the Social Security Act
Commissioner of Social Security (“the Commissioner”) denying her
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
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, 9.
Plaintiff protectively filed a DIB application on October 23,
2008, alleging disability beginning January 1, 1997, on the basis
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.
of multiple sclerosis (“MS”), depression,2 and irritable bowel
syndrome (“IBS”). T. 101-02, 116. Her application was denied on
April 2, 2009, and a hearing before Administrative Law Judge
(“ALJ”) Robert Harvey followed on October 6, 2010. There, the ALJ
heard testimony from Plaintiff, who was represented by counsel, as
well as from a vocational expert. T. 25-52.
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the SSA,
see 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249,
2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five
steps), the ALJ found: (1) Plaintiff did not engage in substantial
gainful activity during the period from her alleged onset date
through her date last insured of June 30, 2002; (2) she had the
severe impairment of multiple sclerosis; (3) her impairment did not
meet or equal the Listings set forth at 20 C.F.R. 404, Subpart P,
Appendix 1, and that she retained the residual functional capacity
two hours in an eight-hour work day. The ALJ further found that
Plaintiff could not work in areas of unprotected heights or around
Although there is some mention of depression in Plaintiff’s DIB
application, a State Agency review psychiatrist concluded there was
insufficient evidence to establish a medically determinable impairment, and
there is no other record evidence to support such a claim. T. 38, 133, 196-97,
268-81. Plaintiff’s motion also does not address any purported impairment that
is not related to her physical conditions. Pl. Mem. 1-18. Accordingly, only
her physical impairments are at issue in this Decision and Order.
heavy, moving, or dangerous machinery; climb ropes, ladders, or
crawling; (4) through the date last insured, Plaintiff was unable
to perform any past relevant work; and (5) considering her age,
education, work experience, and RFC, Plaintiff had acquired work
skills from past relevant work that were transferrable to other
economy. T. 19-23.
An unfavorable decision was issued on October 21, 2010. The
ALJ’s determination that Plaintiff was not disabled became the
final decision of the Commissioner when the Appeals Council denied
her request for review on March 20, 2012. T. 1-6. This action
followed. Dkt. #1.
The Commissioner moves for judgment on the pleadings on the
grounds that substantial evidence supports the Commissioner’s final
decision that Plaintiff was not entitled to DIB. Comm’r Mem.
(Dkt. #8) 1-23. Plaintiff has filed a cross-motion alleging that
the ALJ failed to develop the record an apply the appropriate legal
standards regarding the onset of limitations; the credibility
assessment was legally erroneous and not supported by substantial
evidence; and the vocational expert testimony did not provide
substantial evidence to support the denial of benefits. Pl. Mem.
(Dkt. #9-1) 1-18.
granted, and the Plaintiff’s cross-motion is denied.
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
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).
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
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
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).
Treatment Records Prior to the Relevant Period
Plaintiff was diagnosed with MS in 1981, confirmed by MRI in
June of 1987. T. 210-11, 218-20. Between 1985 to 2007, Plaintiff
was treated by neurologist Dr. Svend Gothgen approximately twice a
unremarkable. In August of 1988, Plaintiff’s symptoms were under
control with “some problems off and on with her left side,” which
“most likely does not represent any new demyelinating activity.”
Records Relating to the Relevant Period
A July, 1998 examination was “unremarkable” and Dr. Gothgen
headaches and menses-related discomfort. Her neurological status
was defined as stable. T. 206.
revealed mild symptoms, such as: numbness in lower extremities,
mild hemiparesis resulting in a slight limp, and restless legs, and
Plaintiff was otherwise “holding her own.” T. 201-205. In 2001,
Plaintiff complained of symptoms attributed to a “partially treated
irritable bowel syndrome.” T. 202.
Treatment for Knee Injury
On February 16, 2001, Plaintiff received hospital treatment
for an injury to her left knee. X-rays revealed a large avulsion
medial femoral condyle and a subtle tibial plateau depression,
requiring further examination by MRI or bone scan. T. 353-57.
instructed to use crutches. T. 358.
Records Subsequent to the Relevant Period
Plaintiff continued to see Dr. Gothgen following her date last
insured. In July of 2004, he noted moderate clinical symptoms in
his reports, including intermittent Lhermitte’s sign (electrical
sensations), which were treated “reasonably well” by Clonazepam,
and that Plaintiff was depressed and drinking too much which “[did]
not make the situation any easier.” T. 197-98. Plaintiff was
prescribed Paxil but reportedly did not take it. T. 196-97.
In March 31, 2003, Dr. Gothgen reported that Plaintiff’s MS
had been “quite quiescent” over the course of almost 20 years with
no major problems in sight. T. 194. Three months later, Plaintiff’s
condition was described as “static” with some problems in her left
knee. She was referred to an orthopedic surgeon. Her examination
was unchanged with a static mild right hemiparesis. T. 193.
Plaintiff reported back to Dr. Gothgen in October, 2003, who
noted that Plaintiff was doing rather well with some ache from her
knee that was relieved by a small dose of Naproxen. Her exam was
medication. T. 192.
Subsequent visits to Plaintiff’s treating neurologist through
June 2007 continued to show unremarkable or unchanged examinations,
with her MS in stable or quiescent condition with no significant
exacerbations. T. 182-197.
Treatment for Knee Injury
Plaintiff received treatment from orthopedic surgeon Dr. John
Repicci for left knee pain starting in October, 2005. She underwent
knee surgery in December, 2006, and Dr. Repicci noted that the
surgery yielded good results. T. 175, 228-29, 230-36.
Primary Care Physician
Plaintiff also saw Dr. Frank Ferraro approximately seven times
from March, 2008 to September, 2010, for MS monitoring, a hip
condition, and psoriasis. T. 398-515, 516-23, 565-75.
Functional Capacity Questionnaire” on September 10, 2010, in which
he reported that he saw Plaintiff every three months since June 4,
problems, paralysis, sensory disturbance, bladder problems, heat
depression. T. 594. He noted that Plaintiff was frequently in pain
and incapable of performing low-stress jobs. T. 596.
Plaintiff could only sit/stand/walk for 5 minutes at a time, for
less than 2 hours total of an 8-hour work day. She could walk no
more than one-half of a block before resting, and required an
assistive device to stand and walk. T. 596-99. Plaintiff could not
lift any item of weight, including those under 10 pounds. T. 600.
Plaintiff had multiple environmental restrictions, including heat,
humidity, and respiratory irritants. T. 601.
Dr. Ferraro noted that Plaintiff had no exacerbations of MS in
the past year. T. 595. The physician did not respond as to the
earliest date that the stated symptoms and limitations applied, but
later indicated that she had been limited since at least June 30,
2002. T. 596, 601.
He concluded that Plaintiff was “unable to
work.” T. 601.
III. Non-Medical Evidence
Plaintiff was born in 1961, had a high school education, and
attended college but did not graduate. T. 29-30, 120. She was
previously employed as a home-care nurse in the 1990s, and again
from 2005 to 2006. That position required her to lift 50 to 100
pounds, and remain on her feet most of the day. T. 39-40, 117-18.
Following a 2001 injury to her left knee, Plaintiff underwent
manipulation to straight the leg and wore a brace for three weeks.
T. 38. Following her knee surgery in 2006, she stated that her left
knee hurt sometimes, but that her doctor said it was “fine” and did
not require further surgery. T. 31.
Plaintiff testified that between 1997 and 2002, her MS caused
fatigue and loss of balance on a daily basis, electrical shock
sensations, numbness and tingling in her hands, and weakness in her
dizziness, vertigo, and chest tightness. T. 35.
She further attested to problems with spasticity, limping and
Plaintiff reported headaches three times per week associated with
her MS. Id. Plaintiff told the ALJ she had problems with cognition,
memory, and difficulty communicating. T. 36. Her medications were
Avonex, aspirin, and multivitamins. T. 39.
With regard to her IBS, Plaintiff stated that she suffered
from frequent urination and irritable bowel. Id.
Plaintiff testified about her daily activities, which included
cleaning, laundry, vacuuming, sweeping, and mopping on a limited
basis, and regular cooking, dishwashing, bed-making, and grocery
shopping. T. 40-41. She did not take out the trash or do yard work,
and could only carry limited packages. T. 41. Her hobby was
reading. Id. Socially, Plaintiff went to church, visited with
friends, and drove a car. Id. She performed self-care. T. 42.
Plaintiff reported sleeping about three hours at a time. Id. She
could lift a gallon of milk, but could not lift anything over 20
pounds, and could walk about 50 feet before it would be a problem.
Id. Plaintiff stated she could only stand for 5 minutes, but did
not have problems sitting or with her arms or hands. T. 43. Her
ability to push or pull was limited; she could bend at the waist
and lean forward but not squat or climb, and had problems kneeling
and climbing. Id. Extreme temperatures exacerbated her symptoms,
and Plaintiff exercised, in addition to her medication, to relieve
her pain. T. 45-46.
The ALJ also heard testimony from vocational expert Jay
Steinbrenner, to whom he posed a series of hypotheticals regarding
an individual with the same vocational profile as Plaintiff, who
(1) avoidance of unprotected heights and heavy machinery; (2) never
climbing ladders, ropes, or scaffolds; (3) no exposure to cold or
excessive heat; and (4) limited ability to climb, squat, kneel,
balance, and crawl. T. 48-49. The vocational expert responded that
such an individual could not perform Plaintiff’s past work as
personal care aide (medium, semi-skilled work performed at a medium
to heavy exertional level), but could perform light, semi-skilled
work such as teacher’s aide. T. 49.
The ALJ posed a second hypothetical that involved the same
10 pounds; sitting 6 hours and standing/walking 2 hours in an
8-hour day; and an occasional limitation in performing activities
within a schedule; maintaining regular attendance; or completing a
normal workday or week because of fatigue. T. 50. In response, the
vocational expert stated that such a person would not possess any
transferrable semi-skills. T. 50
hypothetical were further restricted to sedentary work, such a
person would be unable to perform any unskilled jobs in the
national or regional economy. T. 51.
The Decision of the Commissioner that Plaintiff was not
entitled to DIB was supported by Substantial Evidence.
Development of the Record
severity of her left knee and right hip impairments,3 failing to
adequately develop the record, and not properly considering the
evidence with respect to those impairments. Pl. Mem. 10-16.
The Step 2 severity inquiry serves only to “screen out de
minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.
1995). Consequently, “[a] finding of ‘not severe’ should be made if
the medical evidence establishes only a ‘slight abnormality’ ...
[with] ... ‘no more than a minimal effect on an individual's
ability to work.’” Rosario v. Apfel, No. 97 CV 5759, 1999 WL
294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert,
482 U.S. 137, 154 n. 12 (1987)).
With regard to Plaintiff’s knee impairment, the ALJ noted
Plaintiff’s x-ray performed on February 16, 2001, which revealed a
“large avulsion medial femoral condyle,” “effusion in association,”
The record evidence pertaining to Plaintiff’s hip condition begins in
August, 2009, seven years after Plaintiff’s insured status expired. A
September 2009 surgery report indicates that at that time, Plaintiff had a
“one year history of increasing pain within her right hip.” T. 377. She also
testified that she had no other medical conditions during the relevant period
other than MS. T. 38. There was therefore was no reason for the ALJ to address
this impairment since it occurred outside the relevant period under
and “subtle tibial plateau depression not excluded.” T. 22, 357.
He then considered the 2005 records from Dr. Repicci in which he
noted “severe, patellofemoral maltracking and lateral subluxation
of the patella,” and suggested conservative surgery. T. 22, 222. He
concluded that this was not a severe impairment because while the
record showed that Plaintiff had a tear of the left femoral
condyle, she testified that the injury only lasted three weeks.
T. 19, 38. Additionally, while her knee was briefly an issue of
subsequent to the insured period, those records indicate that a low
dose of Naproxen helped the pain. T. 192-93. Plaintiff’s knee
impairment did not re-surface until her treatment with orthopedist
Dr. Repicci, supra. Her hearing testimony indicates that although
her knee still hurts from time to time, her “doctor said it’s
fine.” T. 31.
There is no other evidence in the record pertaining to a
treatment or allegation of left knee pain during the relevant
period, and there is nothing in the record indicating that the 2001
knee injury resulted in significant limitations of Plaintiff’s
physical ability to perform the basic work activities. See 20
C.F.R. § 404.1521(b), Social Security Ruling (“SSR”) 85-28, 1985 WL
56856, at *3.
Accordingly, the ALJ did not “ignore the evidence”
relating to the knee impairment as Plaintiff contends. Pl. Mem. 11.
The opinion here shows careful discussion of Plaintiff’s knee
injury, and substantial evidence supports the ALJ’s non-severity
finding at step two of the sequential analysis.
In a related argument, Plaintiff contends that evidence of a
degenerative condition existing years after the date last insured
obligated the ALJ to further develop the record with respect to
Dr. Ferrero, Plaintiff’s treating primary physician. Pl. Mem. 11.
Here, the ALJ properly afforded Dr. Ferraro’s retrospective
opinion “little weight.” T. 22.
Not only were there no other
medical records from Dr. Ferraro to support his opinion, but the
opinion was also wholly inconsistent with the balance of the
Barnhart, 336 F.3d 172, 183 (2d. Cir. 2003)(“While a treating
entitled to controlling weight unless it is contradicted by other
Dr. Gothgen, Plaintiff’s treating neurologist of nearly 20 years,
found essentially no debilitating effects resulting from her MS
during the relevant period. T. 201-06, 593-602.
The ALJ was not required to re-contact Dr. Ferraro for more
conditions on or before June 30, 2002, because the evidence on this
record was sufficient for the ALJ to reach a conclusion regarding
whether Plaintiff was disabled. See 20 C.F.R. § 404.1520b (If there
is insufficient or inconsistent evidence presented to determine if
the plaintiff is disabled, the ALJ will attempt to resolve the
insufficiency or inconsistency by re-contacting the plaintiff's
treating physicians or other medical sources to seek additional
evidence or clarification, request additional medical records,
conduct a consulting examination, and/or make further inquiry from
lay sources). Rather, the ALJ relied on numerous reports made by
Dr. Gothgen, Plaintiff’s treating neurologist, and Plaintiff’s own
testimony indicating minimal limitations during the insured period.
There are also no gaps in the record during the period in
question that would require the ALJ to further develop the record
and/or re-contact Dr. Fererro. See Rosa v. Callahan, 168 F.3d 72,
79 & n. 5 (2d Cir. 1999) (“where there are no obvious gaps in the
administrative record, and where the ALJ already possesses a
complete medical history, the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim”).
Finally, the Court notes that the local disability office made
four attempts to contact Dr. Ferraro in an effort to obtain
additional documentation, to which Dr. Ferraro did not respond.
T. 282-83. Thus, the ALJ was not required to re-contact Dr. Ferraro
where a further attempt would be futile. See former 20 C.F.R.
§ 404.1512(e)(2) (effective prior to Mar. 26, 2012) (“We may not
seek additional evidence or clarification from a medical source
when we know from past experience that the source either cannot or
will not provide the necessary findings.”).
In reaching his step two finding, the ALJ applied the correct
legal principles and his determination was supported by substantial
evidence in the record.
Plaintiff also challenges the ALJ’s credibility determination,
alleging that he did not apply the appropriate standards set forth
in SSR 96–7p and 20 C.F.R. § 416.929. Pl. Mem. 16-17.
To establish disability, there must be more than subjective
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
evidence must be considered in determining whether disability
§ 416.929(c)(2). If the claimant's symptoms suggest a greater
restriction of function than can be demonstrated by objective
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
medication; and any treatment or other measures used to relieve
pain. 20 C.F.R. § 416.929(c)(3); see SSR 96–7p, (July 2, 1996),
1996 WL 374186, at *7. 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).
“If the ALJ decides to reject subjective testimony concerning
sufficient specificity to enable the Court to decide whether there
are legitimate reasons for the 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);
Plaintiff claims the ALJ “cited minimal daily activities and
summarized the evidence, but did not provide a rationale as to the
reasons finding her less than credible.” Pl. Mem. 17. The Court
activities, which included performing household chores, cleaning,
shopping, socializing, and driving. T. 21. He explained that her
allegations of disability were inconsistent with her allegations of
daily living, thereby
providing a rationale for his credibility
finding. Id. Moreover, the ALJ considered Plaintiff’s testimony
that her left knee injury only lasted three weeks, and noted her
medications (a trial course of Interferon and a short round of
steroids), as well as their effects. T. 19, 21, 22. The ALJ also
thoroughly discussed the medical evidence, which included the
diagnostic findings and reports from Drs. Gothgen, Repicci, and
Ferraro. T. 21-22. The objective medical evidence in this record,
which was largely consistent save for Dr. Ferraro’s restrictive RFC
questionnaire, did not corroborate Plaintiff’s allegations to the
disabling extent alleged on or before June 30, 2002.
determination was proper as a matter of law and supported by
substantial evidence in the record.
Vocational Expert Testimony
Plaintiff broadly argues that “due to the errors above, the
vocational expert testimony cannot provide substantial evidence to
support the denial.” Pl. Mem. 18.
The Court has rejected all of Plaintiff’s previous arguments
and finds that the ALJ’s residual functional capacity finding was
determination, the Court finds no error in the ALJ’s step five
conclusion. See Wavercak v. Astrue, 420 Fed.Appx. 91, 95 (2d Cir.
2011) (“[b]ecause we have already concluded that substantial record
[plaintiff's] vocational expert challenge”).
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Dkt.#7) is granted, and Plaintiff’s
cross-motion for judgment on the pleadings (Dkt.#9) is denied. The
ALJ’s finding that Plaintiff was not disabled during the insured
period from January 1, 1997 to June 30, 2002, is supported by
substantial evidence in the record, and accordingly, the Complaint
is dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
April 29, 2015
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?