Henninger v. Commissioner of Social Security

Filing 23

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 11 Commissioner's Motion for Judgment on the Pleadings; denying 12 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 5/19/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JASON W. HENNINGER,
Plaintiff,

12-CV-0758(MAT)
DECISION
and ORDER

v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.
INTRODUCTION

Jason W. Henninger (“Plaintiff”) brings this action pursuant
to 42 U.S.C. § 405(g) seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying his
application for Disability Insurance Benefits (“DIB”).
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. ##11, 12.
BACKGROUND
Plaintiff filed a DIB application on September 16, 2008,
alleging disability beginning April 8, 2004, on the basis of
dominant right-hand impairment and depression. T. 112-13. His
initial application was denied on March 30, 2009, and a hearing was
requested before an Administrative Law Judge (“ALJ”). T. 68-71.
Plaintiff appeared with counsel before ALJ Robert T. Harvey in
Buffalo,

New

York,

on

October

14,

2010.

The

ALJ

also

testimony from vocational expert Jay Steinbrenner. T. 33-63.

heard

In applying the familiar five-step sequential analysis as
contained in the administrative regulations promulgated by the
Social Security Administration, 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 had not engaged in substantial gainful activity since
his alleged onset date of April 8, 2004; (2) he had the severe
impairments of obesity, right-hand median nerve dysfunction, and
right thumb digital nerve dysfunction; (3) his impairments did not
meet or equal the Listings set forth at 20 C.F.R., Part 404,
Subpart P, Appx. 1, and that he retained the residual functional
capacity (“RFC”) for medium work with limitations in occasionally
feeling with the dominant right hand and not working in areas that
were cold and damp; and (4) Plaintiff was able to return to his
past work as a shipping clerk and forklift operator. The ALJ then
concluded that Plaintiff was not disabled. T. 19-32.
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on June 15, 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 disabled. Comm’r Mem. (Dkt. #11-1)
18-24. Plaintiff has filed a cross-motion alleging that the ALJ
improperly dismissed the opinions of Plaintiff’s treating physician

2

and that the ALJ failed to make a proper credibility determination.
Pl. Mem. (Dkt. #13) 21-25.
For

the

following

reasons,

the

Commissioner’s

motion

is

granted, and the Plaintiff’s cross-motion is denied.
DISCUSSION
I.

Scope of Review
A federal court should set aside an ALJ decision to deny

disability benefits only where it is based on legal error or is not
supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003) (internal quotation marks omitted).
II.

Medical Evidence
A.

Treating Physicians

Plaintiff lacerated his right hand on April 8, 2004, while
playing a video game. He immediately underwent surgery to have the
laceration repaired, and an x-ray taken of his thumb at the
emergency room was normal. T. 221-24, 276.
On April 14, Plaintiff saw Dr. A. Marc Tetro for evaluation of
a

possible

nerve

injury

to

the

right

thumb.

Id.

Dr.

Tetro

recommended exploratory surgery, which was completed the following
day. T. 221-4, 229. Plaintiff followed-up with Dr. Tetro 11 days
later. Treatment notes indicate that Plaintiff’s radial digital
3

nerve

was

non-repairable,

and

that

he

was

doing

well

with

postoperative care and had some pain controlled with narcotic
analgesics

and

Ibuprofen.

T.

229-30.

Dr.

Tetro

opined

that

Plaintiff would be able to work without the use of the right hand,
however, if there was no such work available, he would be under a
total, temporary disability. T. 230. At the next follow-up dated
May 26, 2004, Plaintiff’s examination of the right hand indicated
that

it

was

“healing

well.”

T.

232.

Dr.

Tetro

recommended

outpatient physical therapy and for Plaintiff to “try and return to
work.” Id.
Plaintiff underwent and completed outpatient physical therapy
and outpatient occupational therapy in June and July of 2004.
T. 190-93.
A

nerve

transfer

with

reconstruction

was

performed

on

Plaintiff’s right thumb on September 23, 2004. T. 242-44. The
following month, Dr. Tetro opined that Plaintiff was temporarily,
totally disabled. T. 240. By April, 2005, Plaintiff’s hand was
“relatively well healed” with diminished motion, but Plaintiff was
making “significant progress in improvement” and “responded well to
outpatient hand therapy regaining significant degree of motion and
function with his hand and thumb.” T. 218-19. A follow-up in
October, 2005 was unchanged, and Plaintiff could not return to his
pre-injury form of employment. T. 216.

4

In April, 2007, Dr. Tetro noted that Plaintiff had little use
of the radial aspect of his right thumb. T. 206-07. Plaintiff
avoided

using

his

right

upper

extremity

for

simple

daily

activities. T. 207. His recovery had “reached a plateau,” and he
appeared somewhat despondent and depressed. T. 207-08. Dr. Tetro
diagnosed right upper extremity pain syndrome–possible chronic
regional pain syndrome. T. 207-08.
Upon referral by Dr. Tetro, Plaintiff began seeing pain
specialist Dr. Eugene Gosy in May, 2006, and continued under his
care through December, 2009. Treatment notes from these visits were
largely unchanged over the course of nearly three years. Plaintiff
repeatedly told Dr. Gosy that he was looking for work. He had
normal gait, negative straight leg raises, and full upper and lower
extremity

strength

upon

examination,

except

for

right

thumb

weakness. During this treatment period, Plaintiff was treated with
various

prescription

Neurontin,

Keppra,

medications,

hydrocodone,

including

and

Ambien,

Licoderm
among

patches,

others.

He

continued to complain of right hand pain and depression. Diagnoses
were

neuralgia,

neuritis,

and

radiculitis,

unspecified,

and

clinical depression. T. 280-82, 285-86, 287-90, 294-95, 299-300,
301-02, 308-09, 360, 362, 393. Plaintiff’s depression was also
treated with prescription medication. T. 283.
On March 8, 2007, Dr. Gosy applied a sleeve to Plaintiff’s
right hand for protection. T. 306. In June, Dr. Gosy’s examination

5

results were unchanged except for mild swelling in Plaintiff’s
thenar section. T. 309.
On August 7, 2007, Dr. Gosy noted that Plaintiff had very few
“low days,” denied suicidal ideation, and was in remission with
medication, which included Wellbutrin and Cymbalta. T. 283.
In June, 2008, Dr. Gosy noted that Plaintiff’s medications
were serving him well, and that the pain control was greatly
improved. T. 292. The following month, Dr. Gosy tapered Plaintiff
off of Cymbalta. T. 294. In December, the doctor noted that
Plaintiff was doing “fairly very well,” with the combination of
Percocet, Ambien, and Wellbutrin. T. 366. He opined that Plaintiff
was fifty percent disabled. T. 367.
In March, 2009, Dr. Gosy noted that Plaintiff’s neuropathic
pain

in

the

right

upper

extremity

associated

with

clinical

depression was controlled. T. 365. In December, Plaintiff had done
well on his medications, continued to have full upper extremity
strength with mild swelling of the dorsal surface of the extremity.
T.

392-93.

Dr.

Gosy

assessed

controlled

clinical

depression,

controlled chronic pain syndrome, and reflex sympathetic dystrophy.
T. 393.
B.

Consultative Examinations

On February 25, 2009, Plaintiff underwent a consultative
psychiatric evaluation by Thomas Ryan, Ph.D. T. 316-19. He reported
seeing a pain management specialist since 2005, and stated that his

6

medications

were

Lasix,

naproxen,

potassium,

Lunesta,

and

Wellbutrin. T. 316. He claimed to have sleep apnea and used a
continuous positive airway pressure (“CPAP”) machine, but usually
took it off due to discomfort. Id. Plaintiff told Dr. Ryan that he
was depressed, irritable, and socially withdrawn, but did not have
memory, concentration, or attention problems. Id. The mental status
examination was unremarkable, with average cognitive functioning
and fair insight and judgment. T. 318. He was able to care for his
daily needs, but his wife did most of the household chores. He
visited

with

friends,

liked

to

read,

go

for

walks,

watch

television, and listen to the radio. Dr. Ryan opined that Plaintiff
had no significant limitations in any functional area, with a mildto-moderate
Diagnoses

limitation
was

in

adjustment

his

ability

disorder

with

to

deal

with

depressed

stress.

mood,

and

individual counseling for support was advised. T. 318-19.
Plaintiff was also consultatively examined by Jacob Piazza,
M.D. T. 320-24. He complained of multiple joint pain and sleep
apnea that was helped somewhat by a CPAP machine. He stated that he
did not do household chores, but cared for his personal needs.
T. 320-21. Plaintiff’s physical examination yielded normal results
with a sensory deficit in the palmar aspect of the right index
finger. T. 321-22. His hands had full grip strength, and he could
tie his shoes without difficulty, but he had a moderate difficulty
buttoning a button with his right hand, and zipped a zipper with

7

his left hand. Id. Dr. Piazza diagnosed depression, bilateral ankle
pain secondary to old ligamentous injury, decreased sensation of
the right hand secondary to nerve damage, left shoulder pain,
depression,

and

obstructive

sleep

apnea.

Id.

He

opined

that

Plaintiff did not have much difficulty walking and would have mild
limitations for prolonged standing or walking due to a complaint of
ankle difficulties. Id. Plaintiff’s right hand had moderately
decreased fine motor activity, but his proximal muscle strength was
good in all four extremities. Id.
State Agency review physician V. Yu, M.D., reviewed the record
on

March

12,

2009,

and

concluded

that

Plaintiff

could

lift

20 pounds on occasion and 10 pounds frequently, walk for 6 hours
per 8-hour workday, with no frequent repetitive fine manipulations
with the right hand. T. 326. Reviewing psychiatrist C. Butensky
opined that Plaintiff had mild restrictions in activities of daily
living,

maintaining

social

functioning,

and

concentration,

persistence, or pace, and that his mental impairment was nonsevere. T. 330, 340, 342.
III. Non-Medical Evidence
Plaintiff was born in 1974, has a high-school education, and
is right-handed. T. 37. He testified that he was married and lived
with his wife. At the time of the hearing, he was working full-time
as a forklift operator. T. 38. In September, 2004, Plaintiff
injured his right thumb, and had constant right arm and hand pain

8

with weakness. T. 42-43. He told the ALJ that he did not have
feeling in half of the right thumb, and had pain all over his body,
including his right ankle. He stated that he had cellulitis of the
neck, which was resolved, and nasal surgery. T. 45. Regarding his
depression, Plaintiff stated that he had a “slight amount” of
difficulty, and took Cymbalta, which controlled it. T. 45-46.
Plaintiff stated that he had taken 10 sick days since he started
his job due to flare-ups of pain in his right hand. T. 54. However,
over the past 6 months his condition was the “best” it had been
since he injured his hand in 2004. T. 55-56.
From 2001 to 2004 Plaintiff was employed as a shipping clerk,
which required him to lift between 30 and 50 pounds and stand or
walk most of the day. As a forklift operator, Plaintiff lifted up
to 30 pounds. T. 47.
With respect to his daily activities, Plaintiff testified that
he helped to clean, unload the dishwasher, do laundry, and vacuum,
he took out the trash, cut grass, watched television, went for
walks, drove a car, and could bathe and dress himself. He did not
have hobbies, go shopping, or go to church. T. 49.
Plaintiff also testified that he had trouble sleeping and
could not stand for longer than an hour. He did not have problems
sitting, could push and pull, stoop, squat, and climb. T. 50-51.
Damp and cold weather bothered him, and he could not pick up
objects with his right hand, but had gotten better with zippers,

9

jars, and buttons. T. 51. He could lift about 50 pounds. T. 50.
Plaintiff took medication and used ice and heating pads for his
pain. T. 52.
Vocational expert Jay Steinbrenner characterized Plaintiff’s
past work as a shipping clerk and forklift operator as medium in
exertional nature. T. 59-60. He was not exposed to cold or dampness
at those jobs. T. 60. A hypothetical individual who could lift or
carry,

push

or

pull

50

pounds

occasionally

and

25

pounds

frequently; could sit for 2 hours in an 8-hour workday; and had
occasional limitations in the ability to feel with the right hand
and could not be exposed to dampness could perform Plaintiff’s past
relevant work. Id.
IV.

The Decision of the Commissioner that Plaintiff was not
disabled was supported by Substantial Evidence.
A.

Treating Source Opinion

Plaintiff contends that the ALJ improperly dismissed the
opinion of Dr. Tetro that Plaintiff would not be able to return to
work. Pl. Mem. 21-22.
Under the Commissioner's regulations, a treating physician's
opinion is entitled to controlling weight, provided that it “is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.” 20 C.F.R. §§ 416.927(c)
(2), 404.1527(c)(2). However, “the less consistent that opinion is
with the record as a whole, the less weight it will be given.”
10

Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999), citing 20 C.F.R.
§ 404.1527(d)(4).
The Commissioner need not grant controlling weight to a
treating physician's opinion to the ultimate issue of disability,
as this decision lies exclusively with the Commissioner. See
20 C.F.R. § 404.1527(d)(1); Snell, 177 F.3d at 133 (“A treating
physician's statement that the claimant is disabled cannot itself
be determinative.”).
Because Dr. Tetro’s conclusion was a statement as to the
ultimate issue of disability, it was not a medical opinion and
therefore was not entitled to special significance under the
treating physician rule. See 20 C.F.R. § 416.927(d)(1)-(3).
Moreover, the ALJ discussed Dr. Tetro’s reports and findings,
which he relied upon in determining Plaintiff’s RFC. Those reports
were

discussed

in

conjunction

with

the

treatment

notes

from

Plaintiff’s pain management specialist, the objective test results,
and the findings of the consultative examiners, all of which were
largely consistent with one another. T. 26-27. The aggregate
medical evidence supported a finding of a right-hand impairment
with occasional limitations in the ability to feel with that hand
and restrictions with respect to coldness and dampness. T. 25.
Because substantial evidence supported the ALJ’s finding, any
purported error arising out his failure to assign a weight to Dr.
Tetro’s opinion of disability would be harmless. See Ryan v.

11

Astrue, 650 F.Supp.2d 207, 217 (N.D.N.Y. 2009) (“[C]ourts have
found harmless error where the ALJ failed to afford weight to a
treating physician when an analysis of weight by the ALJ would not
have affected the outcome.”); see Jones v. Barnhart, No. 02 Civ.
0791, 2003 WL 941722, at *10 (S.D.N.Y. Mar.7, 2003) (finding
harmless error in the ALJ's failure to grant weight to Plaintiff's
treating physicians because “he engaged in a detailed discussion of
their findings, and his decision does not conflict with them”).
For these reasons, remand is not warranted based on the ALJ’s
evaluation of Dr. Tetro’s medical statement.
B.

Credibility Assessment

Plaintiff also challenges the ALJ’s credibility determination,
alleging that he misstated the evidence and failed to mention
Plaintiff’s consistent work record in the years prior to the onset
of disability. T. 24.
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

12

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 96–7p,
(July 2, 1996), 1996 WL 374186, at *7. It is well within the
Commissioner's

discretion

to

evaluate

the

credibility

of

a

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 his decision, the ALJ found that Plaintiff’s specific
allegations were not credible when compared with the record. T. 27.
Among

other

things,

the

ALJ

cited

Plaintiff’s

significant

activities of daily living, which included cooking, cleaning, doing
laundry, vacuuming, taking out the trash, doing yard work, cutting
grass, driving, and taking care of his personal hygiene, and noted
that

these

activities

were

inconsistent

allegations of disability. T. 27.

with

Plaintiff’s

Plaintiff takes issue with the

fact that the ALJ stated that Plaintiff could “cook and clean,”

13

which he claims is inaccurate. Pl. Mem. 23-24. An examination of
the hearing testimony reveals that Plaintiff “had been” cleaning at
home and did not cook. T. 48. In his Activities of Daily Living
Questionnaire, Plaintiff reported that his wife did “most” of the
cooking, that he did not use a stove-top with an open flame due to
the loss of feeling in his hand, and did not perform household
and/or yard work.

T. 147. The Court therefore agrees that the ALJ

mis-stated Plaintiff’s ability to perform these activities during
the relevant period. Nonetheless, the evidence as a whole, which
includes the balance of Plaintiff’s reported daily activities, does
not support his allegations that his right-hand impairment was
disabling. The ALJ’s inaccuracy in this regard does not amount to
legal error. See Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir.
1999)

(“We

have

consistently

held

that

a

deficiency

in

opinion-writing is not a sufficient reason for setting aside an
administrative finding where the deficiency had no practical effect
on the outcome of the case.”)
With respect to the second part of Plaintiff’s credibility
challenge, it is true that a steady and lengthy work history can
bolster a claimant's credibility regarding intensity, persistence
and

limiting

effects

of

her

symptoms.

See

20

C.F.R.

§ 404.1529(c)(3); see also Schaal, 134 F.3d at 502 (“a good work
history may be deemed probative of credibility”). The fact that the
ALJ did

not

mention Plaintiff’s

14

work

history

does

not

mean,

however, that he did not consider it. Where, as here, there is
substantial evidence to support a finding of no disability, the
ALJ’s mere failure to mention or discuss work history cannot form
the basis for reversing a subjective credibility determination. See
Wavercak v. Astrue, 420 Fed. Appx. 91, 94 (2d Cir. 2011) (summary
order) (“That Wavercak's good work history was not specifically
referenced in the ALJ's decision does not undermine the credibility
assessment, given the substantial evidence supporting the ALJ's
determination.”).
The ALJ applied the correct legal principles in assessing
Plaintiff’s

credibility,

and

his

finding

was

supported

by

substantial evidence.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Dkt.#11) is granted, and Plaintiff’s
cross-motion for judgment on the pleadings (Dkt.#12) is denied. The
ALJ’s finding that Plaintiff was not disabled was 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
Dated:

Rochester, New York
May 19, 2015
15