Jeffrey v. Astrue
Filing
15
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Motion for Judgment on the Pleadings; granting 10 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 9/30/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DIANE M. JEFFREY,
Plaintiff,
12-CV-0498(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Defendant.
INTRODUCTION
Plaintiff
Diane
M.
Jeffrey,
a/k/a
Diane
M.
Bielinski
(“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 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.##8, 10. Plaintiff alleges that the
decision of the Administrative Law Judge (“ALJ”) who heard her case
is erroneous because it is not supported by substantial evidence
contained in the record, or is legally deficient and therefore she
is entitled to judgment on the pleadings. Pl. Mem. (Dkt.#9) 18-25.
The Commissioner cross-moves for judgment on the pleadings on the
grounds that
1
the
ALJ's decision
is
correct,
is
supported
by
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.
substantial evidence, and was made in accordance with applicable
law. Comm’r Mem. (Dkt.#11) 16-25.
BACKGROUND
Plaintiff protectively filed a DIB application under Title II
of the Act on September 14, 2008 due to spinal disorders, carpal
tunnel syndrome, post-concussion syndrome with visual disorders,
right lower extremity neuropathy, right shoulder impairments, and
reflex
sympathetic
dystrophic
disorder/complex
regional
pain
syndrome (“RSD/CRPS”) caused by injuries sustained in a motor
vehicle accident. T. 154. Her DIB claim was denied on May 4, 2009,
and she subsequently requested a hearing before an ALJ. T. 68-69.
A video hearing was held before ALJ Scott Staller on December 20,
2010. T. 27-49.
In
his
written
decision,
the
ALJ
applied
the
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).
ALJ Staller found at step one that Plaintiff did not engage
in substantial gainful activity after March 17, 2008. T. 15. At
step
two,
he
found
that
Plaintiff
had
the
following
severe
impairments: degenerative disc disease of the cervical and lumbar
spine; chronic neck and back pain; vertigo; headaches; carpal
tunnel syndrome (“CTS”); and RSD/CRPS. T. 15-16. Next, the ALJ
found that Plaintiff’s impairments did not meet or equal the
Listings set forth at 20 C.F.R. Part 404, Subpart P, Appx. 1.
-Page 2-
T. 16-17. 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 perform work at the
sedentary level of exertion and could frequently reach, handle, and
finger. T. 17-20.
At step four, The ALJ obtained the testimony of
a Vocational Expert (“VE”),and found that Plaintiff could perform
her past relevant work as a telemarketer and employment market
researcher. T. 20-21.
He then concluded that Plaintiff was not
disabled. T. 21.
Following
the
ALJ’s
unfavorable
determination,
Plaintiff
requested review by the Appeals Council on February 4, 2011. T. 79. Over one year later, on March 30, 2012, the Appeals Council
denied review, making the ALJ’s determination the final decision of
the Commissioner. T. 1-4.
Plaintiff then commenced the instant
action. Dkt.#1.
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
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g) (2007). The section
-Page 3-
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
merits is possible merely by considering the contents of the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
-Page 4-
(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).
II.
Relevant Medical Evidence
A.
Treating Sources
1.
Plaintiff
Diagnostic Imaging Tests
went
to
the
Mercy
Hospital
Emergency
Room
on
March 11, 2008, following a car accident. T. 206. There, a CT scan
revealed normal results, and x-rays of her lumbar spine showed mild
lumbar
spondylosis
with
no
evidence
of
fracture
or
spondylolisthesis. T. 206-07. Cervical spine x-rays revealed mildcervical spondylosis. T. 207-08.
MRI studies of Plaintiff’s brain and cervical spine taken on
March 18, 2008, revealed no intracranial hemorrhage or mass effect,
normal cervical alignment, and a small disc protrusion at C5-6,
which the attending physician characterized as an “unremarkable
spinal cord.” T. 203, 387. Plaintiff was diagnosed with postconcussion syndrome, and was directed to stay off work until
March 22, 2008, and to use Tylenol and Motrin. T. 388.
A lumbar spine MRI dated November 24, 2008 showed moderate L45
central
spinal
stenosis;
mild
right
L4-5
recess
stenosis
secondary to concentric bulging disc; ligamentous hypertrophy;
facet arthropathy; disc dessication; concentric bulging of the
-Page 5-
disc; annular tears involving the left L5-S1, L3-L4, L2-3, and L1-2
levels; and no evidence of disc herniation. T. 316.
On December 4, 2008, a right shoulder MRI showed rotator cuff
tendinopathy, peritendinitis and subacromial bursitis, without
evidence of rotator cuff tendon tear; and moderate arthropathic
changes involving the AC joint, with associated lateral downsloping
type 2 acromion with spur formation anteroinferiorly producing
rotator cuff impingement. T. 317.
On July 7, 2009, Plaintiff had a cervical spine MRI. T. 44546. The impression was unchanged from the prior study that was
normal with the exception of C5-6 degenerative change with canal
and foraminal stenosis. T. 446.
An EMG study conducted on July 24, 2009, revealed findings
consistent with mild right C5-6 radiculopathy, bilateral carpal
tunnel syndrome
extremity
moderate
sensory
on
neuropathy,
the
right,
with
no
and mild
evidence
right
of
lower
peripheral
neuropathy. T. 441.
2.
Gosy and Associates Pain Treatment
On April 7, 2008, a physical examination of Plaintiff yielded
unremarkable clinical findings. T. 286. Straight leg raise tests
were negative. Plaintiff had full strength throughout with no
atrophy. Medications were continued. T. 286. Findings remained
unchanged through October, 2008, and medications were continued.
T.
288-89.
Her
diagnosis
in
October
extremity. T. 292.
-Page 6-
was
CRPS,
right
lower
In April, 2009, Plaintiff mentioned difficulty with prolonged
activities. T. 402. Clinical findings were unchanged, and diagnosis
was RSD of the lower limb and medications were continued. T. 403.
Clinical
findings
in
January
and
April,
2010,
were
unremarkable and her assessment and treatment remained unchanged.
3.
John Leddy, M.D.
Plaintiff was periodically examined by Dr. John Leddy starting
in March, 2008. Sometime in 2008, Dr. Leddy wrote a letter to the
New York State Office of Temporary and Disability Assistance
stating
that
Plaintiff’s
injuries
significantly
limited
her
physical and cognitive abilities. T. 422. She had post-traumatic
visual disturbance, poor balance, and post-concussion syndrome. Her
neurologic exam was described as consistently abnormal, and she had
back and neck pain that limited her abilities to do sustained
activities. He wrote that a March, 2008 MRI showed a herniated disc
at C5-6. Id.
In December, 2008, Dr. Leddy found Plaintiff’s cervical motion
was “not bad,” Romberg sign was mildly positive, and right shoulder
had positive impingement sign. All other examinations were normal.
Diagnoses were post-concussion syndrome, cervicogenic disc pain due
to C5-6 disc protrusion, possible right shoulder rotator cuff tear,
and lumbar sprain. He opined that she could not work and planned
further testing. T. 359.
Plaintiff returned to Dr. Leddy on February 18, 2009, upon
complaints of neck and low back pain with numbness and tingling in
her
hands
and
feet.
T.
354.
She
-Page 7-
exhibited
normal
strength,
sensation, and reflexes in her upper extremities with some pain
upon cervical spine flexion and rotation test. Plaintiff was
prescribed a transcutaneous electrical nerve stimulation (“TENS”)
unit and Lyrica for pain. Id.
One month later, Dr. Leddy found reduced cervical and lumbar
motion, but no neurologic defects. Tandem gate and Romberg sign
were abnormal, and Plaintiff complained of dizziness. Straight leg
raise was negative. Dr. Leddy opined that Plaintiff could not work,
and medication and TENS unit were continued. T. 353.
4.
James Lawrence, M.D.
Dr. James Lawrence, an orthopedic surgeon, evaluated Plaintiff
on July 20, 2009. T. 437-38. The examination found lumbar flexion
and extension limited by 25%. Plaintiff could squat, and heel and
toe walk. Straight leg raise test was negative, and the hips
retained full ranges of motion. Spring’s test and Tinel’s sign was
positive at the right posterior tibial nerve. Distraction test was
positive at the sacroiliac joint on the right. Patrick’s test was
negative. T. 437. Cervical spine ranges of motion were limited by
25%
in
all
planes.
T.
438.
There
was
no
atrophy
detected,
Spurling’s test was negative, chin tuck maneuver was positive, and
Tinel’s sign was positive on the right of the median nerve.
Plaintiff had full muscle strength throughout with symmetrical
sensation and reflexes. Id. Her pain was moderately improved after
Dr.
Lawrence
administered
an
injection.
Id.
Dr.
Lawrence’s
impression was chronic cervical myofascial pain with left carpal
tunnel, mechanical lumbosacral spine pain with right tarsal tunnel,
-Page 8-
wrist
and
right
hand
numbness,
and
probable
post-concussion
syndrome. He prescribed Plaintiff an oral steroid for inflammation,
and recommended wrist splints for CTS. T. 438-441.
5.
In
March
Physical Therapy and Chiropractic Treatment
and
April,
2008,
Plaintiff
reported
to
her
chiropractor that she had constant neck and back pain, described as
moderate or 4/10. T. 217. Cervical flexion and right lateral
rotation were normal, left lateral rotation and bilateral flexion
were decreased, and left foramina compression test was positive.
Plaintiff attended physical therapy sessions from April to
September, 2008. T. 220-75. She initially described her pain as
8/10, reduced to 7/10 at the end of the treatment period. T. 275,
220. Cervical extension and left rotation were 75% of normal, with
all other cervical ranges of motions full. Neurological testing was
normal. T. 275. Plaintiff showed minimal improvement overall.
A September, 2008 chiropractic report stated that Plaintiff’s
left foramina compression test was positive and cervical spine
ranges of motion were 74% of normal. Lumbar ranges of motion were
normal. Tests indicated “severe disability for her neck and low
back complaints,” and twice-weekly treatments were recommended.
T. 308.
6.
Dr. Mark Gordon and Dr. Andrew Siedlecki
Dr. Mark Gordon, a neuro-optometrist, evaluated Plaintiff on
April 28, 2008, and diagnosed her with post-trauma vision syndrome.
T. 362. She was provided prism lenses to work with and received a
syntonic home phototherapy unit. T. 363. In late July, Plaintiff
-Page 9-
complained of increased light sensitivity, dizzy episodes, and
blurry vision that went away on its own. She stated that Lortab
managed her headaches. T. 363-64. Testing showed continued problems
with convergence for near vision. T. 365. Dr. Gordon described
Plaintiff as “temporarily disabled.” T. 365.
In January, 2009, Plaintiff was examined by ophthalmologist
Dr. Andrew Siedlecki, who found that Plaintiff’s vision was 20/20
(right) and 20/40 (left), with normal ocular movements and healthy
optic nerves and evidence of early macular degeneration. T. 319-20.
He stated that Dr. Gordon had found microphoria that accounted for
eyestrain and visual fatigue. T. 320. Plaintiff was advised to use
artificial tears and vitamins. T. 320.
B.
Consultative Examinations
1.
Frank Luzi, M.D.
Dr. Luzi reviewed Plaintiff’s records and evaluated her on
October 15, 2008 at the request of her insurer. T. 367-71. Dr. Luzi
provided that he would not assess limitations from Plaintiff’s
post-concussion
syndrome,
that
Plaintiff
required
no
further
orthopedic treatment for her neck and back and her pain could be
managed by medications, and that her pain exhibited during the
musculoskeletal examination was a result of symptom magnification.
T. 370.
Dr. Luzi’s diagnoses were cervical and lumbar sprain/strain,
claimed post-concussion syndrome from the March 2008 accident, and
age-related multilevel degenerative disc disease in her cervical
spine and likely in her lumbar spine. T. 369. He opined that
-Page 10-
Plaintiff did not require further treatment and had recovered from
her injuries. The examination showed no objective findings, and
Plaintiff was not disabled and had no work restrictions. T. 369-70.
2.
Cindrea Bender, M.D.
Plaintiff
underwent
another
consultative
examination
on
April 15, 2009. She reported to Dr. Cindrea Bender that she lived
with her boyfriend, cooked 3-4 times per week, shopped weekly, and
did laundry twice weekly. T. 399. She did not do housecleaning, but
was able to care for her personal needs. Id.
Dr. Bender observed mild difficulties in Plaintiff’s ability
to get on and off the exam table, and that Plaintiff had abnormal
gait (slow), a limp, and was unable to walk on heels and toes or
squat. T. 399. Most examination findings were unremarkable, with
the
exception
point
pain
and
spasm
detected.
She
diagnosed
Plaintiff with neck pain by history, back pain by history, headache
associated with neck pain per history, and recurrent dizziness,
with a stable prognosis. T. 401. Due to neck pain, Plaintiff was
moderately limited in her abilities to lift/carry/push/pull large
items. Due to low back pain, she was moderately limited in her
abilities to walk and stand for prolonged periods, and climb and
excessive number of stairs. Finally, Dr. Bender assessed that
Plaintiff had no limitations in her abilities to reach, handle,
finger, hear, or speak. Id.
III. Non-Medical Evidence
At the time of her hearing, Plaintiff was 60 years-old, had
obtained
a
bachelor’s
degree,
and
-Page 11-
previously
worked
as
a
telemarketer, sales representative, and an interviewer until her
car accident in March, 2008. T. 32-33.
Plaintiff testified that she had constant pain in her neck and
back, pain and numbness in her right arm and hand, and that her
right had would constantly fall asleep. T. 33-35. Plaintiff also
suffered from headaches three to four times per week, and that she
treated them with ice packs and by reclining. She told the ALJ that
she could sit for a half-hour, and that she spent most of the day
reclining with ice packs on her neck and back. T. 34-35. Plaintiff
reported that she experienced dizziness that caused her to stumble.
T. 35.
With regard to her daily activities, Plaintiff stated that she
could shower, get dressed, and do “a little” housework such as
making the bed and dusting, but needed help getting into the
bathtub, and could not grocery shop or vacuum. T. 35-36. During the
hearing, Plaintiff was sitting “hunched over” with an ice pack, and
had
to
take
medication.
a
break
from
testifying
in
order
to
take
pain
T. 36-37, 41.
The ALJ also heard testimony from VE Bassey Duke, who opined
that Plaintiff’s past work was equivalent to the listings in the
Dictionary of Occupational titles for the following occupations:
telemarketer,
employment
market
researcher,
and
sales
representative. T. 45. The ALJ posed to the VE a hypothetical
involving
an
individual
with
Plaintiff’s
age
and
educational
background who could perform work at the light exertional level.
The VE responded that such an individual could perform Plaintiff’s
-Page 12-
past sedentary work. T. 45-46. If restricted to only occasional
reaching/handling/fingering, the same individual could not perform
any jobs. Likewise, if the same individual missed two or more days
of work per month at the light or sedentary level, then there would
be no jobs in the national economy that the individual could
perform. T. 47.
IV.
The Decision of the Commissioner that Plaintiff was not
disabled is supported by substantial evidence.
A.
RFC Finding
Plaintiff first contends that the ALJ improperly substituted
his own medical opinion in finding that Plaintiff possessed the
ability to reach, handle, and finger on a frequent basis. Pl.
Mem. 20-21.
It is well-settled that an “ALJ cannot arbitrarily substitute
his own judgment for competent medical opinion.” McBrayer v. Sec’y
of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983); see
also Balsamo v. Chater, 142 F.3d 75, 80–81 (2d Cir. 1998) (citing
McBrayer, supra).
Here, the ALJ found that “[Plaintiff’s] 2009 diagnosis of
early onset CTS in her left hand and moderate CTS in her right hand
is sufficiently accommodated for in the above [RFC] by a frequent
limitation for reaching, handling, or fingering with the bilateral
upper extremities.” T. 19. The evidence the ALJ points to in
support of his conclusion is an EMG nerve conduction of Plaintiff’s
hands from July 24, 2009, and recommendation by Dr. Lawrence of a
splint for Plaintiff’s right wrist. T. 439-41. While several of
-Page 13-
Plaintiff’s treating physicians stated how her impairments affected
her ability to perform work-related activities, none of these
opinions related to her diagnosis of CTS or her ability to use her
hands. T.
354, 357, 359, 365, 381-83, 422.
Other treatment notes are consistent with a mild restriction.
For example, on August 26, 2009, Plaintiff saw Dr. Gosy, who noted
Plaintiff was “wearing a right carpal tunnel brace but Tinel sign
[tingling] is negative bilaterally today.”
T. 444.
Finally, Dr. Bender, the consultative examiner, noted that
Plaintiff’s upper and lower extremities retained full ranges of
motion
with
intact
hand
and
finger
dexterity
and
full
grip
strength. T. 400-01. She further found that Plaintiff had no
limitations in the abilities to reach, handle, or finger. Id. As
such, the ALJ’s frequent restriction in his RFC determination was
greater than the limitations assigned by the consultative examiner.
For these reasons the ALJ’s RFC finding is supported by
substantial evidence.
B.
Treating Source Evidence
Plaintiff next avers that the ALJ failed to assign properly
weight to the opinion evidence submitted by Plaintiff’s treating
sources: her optometrist, Dr. Gordon, and her physician, Dr. Leddy.
Pl. Mem. 20-23.
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
-Page 14-
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, 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”). “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).
1.
Dr. Leddy
The ALJ afforded Dr. Leddy’s opinion “limited weight,” and
sufficiently explained his reasons for doing so. First, he noted
that, although Dr. Leddy opined that Plaintiff was significantly
limited in certain abilities due to her injuries, there was little
objective evidence showing that her injuries were severe enough to
warrant
disability.
Plaintiff’s
neck,
T.
lower
20.
Specifically,
back,
and
head,
imaging
showed
studies
only
mild
of
to
moderate impairments. Id. Despite Plaintiff’s impairments, her
activities of daily living, such as driving, bathing, dressing, and
-Page 15-
cooking,
were
disability.
inconsistent
Id.
with
Independent
Leddy’s
examiner
opinion
Dr.
Luzi
of
complete
reviewed
and
evaluated Plaintiff’s condition on October 27, 2008, and opined
that
Plaintiff
had
recovered
from
her
cervical
and
lumbar
strain/sprain caused by the motor vehicle accident earlier that
year. T. 18. Likewise, Dr. Leddy, in December, 2008, found that
Plaintiff had some spinal stenosis at L4-5 but no focal protrusions
impacting a nerve root. These findings were consistent with a
November, 2008 MRI that showed moderate L4-5 spinal stenosis. Id.
To the extent Plaintiff seeks to argue that the ALJ did not
address Leddy’s opinion that Plaintiff was “disabled and should
qualify for Social Security disability” (Pl. Mem. 23), such a
determination is reserved to the Commissioner and will not be given
any special significance. 20 C.F.R. § 404.1527(d); see Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see also Rodriguez v.
Astrue, 12–CV–142S, 2013 WL 690502, at *3 (W.D.N.Y. Feb.25, 2013)
(“Whether an individual is ‘disabled’ under the Act is not a
medical issue but is an administrative finding.”).
Accordingly, the ALJ properly afforded Dr. Leddy’s medical
opinion limited weight, and stated the requisite good reasons for
doing so.
2.
Dr. Gordon, Optometrist
The Court also rejects Plaintiff’s assertion that the ALJ did
not consider the opinion of Dr. Gordon that Plaintiff was disabled
by her visual conditions related to post-concussion syndrome. Pl.
Mem. 22.
-Page 16-
On the outset, the Court notes that Dr. Gordon completed form
DDD-3883 and reported that “he cannot provide a medical opinion
regarding this individual's ability to do work-related activities.”
T. 325. Thus, Plaintiff appears to challenge the ALJ’s failure to
consider
Gordon’s
opinion
that
Plaintiff
“remains
totally
temporarily disabled as a result of the injury sustained in the
accident . . . .” T. 365. As stated earlier, such a determination
is
reserved
to
the
Commissioner
and
is
given
no
special
significance. 20 C.F.R. § 404.1527(d).
In
any
event,
the
ALJ
cited
to
the
treatment
notes
of
Plaintiff’s treating ophthalmologist, Dr. Siedlecki, who noted,
among other things, that “2 independent medical examiners say she
is fine,” that Plaintiff’s MRI and CT images taken after the
accident were unremarkable, and that his own evaluation showed
early dry macular degeneration, requiring only artificial tears and
vitamin supplements as treatment. T. 19.
Here, the ALJ applied the appropriate legal standards when he
considered the full record and properly evaluated Plaintiff’s
treating source opinions. In this regard, his decision was based
upon substantial evidence.
C.
Step Four Finding
Plaintiff
contends
that
the
ALJ
failed
to
obtain
any
information about accommodation provided to Plaintiff in the course
of her performance in her previous positions, rendering his step
four finding erroneous. Pl. Mem. 24.
-Page 17-
The “accommodations” Plaintiff refers to pre-date her motor
vehicle accident in March, 2008--the incident alleged to have
caused her disabling impairments. T. 283. Contrary to Plaintiff’s
contention,
the
evidence
from
the
consultative
psychiatric
evaluation indicating that Plaintiff’s “longest employment was she
owning
[sic]
market
research
business
with
her
mother”
(Pl.
Mem. 24), does not amount to an accommodation per se, it does not
relate to or reference Plaintiff’s physical limitations, and it too
pre-dates her accident injuries. T. 393. Plaintiff’s argument that
the
ALJ
should
have
considered
Plaintiff’s
previous
work
accommodations is tenuous, at best, and must be rejected.
Where, as here, substantial evidence supports the assumptions
upon which a VE bases his opinion, the opinion shows Plaintiff can
perform work suited to her physical and vocational capabilities.
Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983). The ALJ’s
step four determination is therefore supported by substantial
evidence.
D.
Plaintiff’s Credibility
Plaintiff
argues
that
the
ALJ
failed
to
make
a
proper
credibility determination. Pl. Reply Mem. 4-8
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
-Page 18-
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
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).
In finding Plaintiff’s subjective complaints of pain to be not
fully credible, the ALJ noted that the clinical findings and
diagnostic tests did not support Plaintiff’s allegations as to the
extent and severity of her symptoms. T. 17-20. Abnormal clinical
and diagnostic findings were generally minimal with some range of
motion limitations to the cervical and lumbar spine, and some
vision difficulties were present, yet Plaintiff remained able to
drive, do chores, read, and watch television. The ALJ specifically
-Page 19-
mentioned that Plaintiff’s treating physician observed that “she is
able to complete her own activities of daily living and does drive”
as of November, 2010. T. 16.
Plaintiff’s
reports
to
her
treating
physicians
and
chiropractor that she had minimal-to-moderate back pain, and that
several
of
plaintiff’s
physical
evaluations
showed
normal,
symmetric, or full strength, are inconsistent with her complaints
of debilitating pain. T. 17-18; 203-04, 286, 354, 369, 379, 385,
400, 438, 454, 457, 470, 481, 485. Two treating sources and two
consultative
examiners
found
no
evidence
of
atrophy,
despite
Plaintiff’s claim that she spent most of the day in a recliner with
ice packs. T. 286, 369, 401, 438, 448, 454, 457, 460, 485. Finally,
consultative
examiner
Dr.
Luzi
reported
that
Plaintiff’s
examination yielded no objective findings and found Plaintiff’s
complaints due to “symptom magnification and malingering.” T. 36970.
Given that it is the responsibility of the Commissioner, not
the reviewing Court, to assess a Plaintiff's credibility, the Court
finds that the ALJ's credibility determination is supported by
substantial evidence in the record. See Yellow Freight Sys. Inc. v.
Reich, 38 F.3d 76, 81 (2d Cir. 1994) (reviewing court “must show
special deference” to credibility determinations made by the ALJ,
“who had the opportunity to observe the witnesses' demeanor” while
testifying.”)
-Page 20-
Accordingly,
the
Court
finds
that
the
ALJ's
credibility
determination is proper as a matter of law, and is supported by
substantial evidence.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on
the pleadings (Dkt.#8) is denied, and the Commissioner's crossmotion 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
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
September 30, 2014
-Page 21-
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