Thompson v. Astrue
Filing
15
-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 6/9/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MELISSA M. THOMPSON,
Plaintiff,
12-CV-0890(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Defendant.
INTRODUCTION
Melissa M. Thompson ("Plaintiff"), who is represented by
counsel, brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act (“the Act”), seeking review of the final
decision
of
the
Commissioner
of
Social
Security
(“the
Commissioner”) denying her applications for Supplemental Security
Income (“SSI”) and 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
On July 22, 2008, Plaintiff filed applications for SSI and DIB
alleging disability beginning June 24, 2008, on the basis of back,
neck, and hip injuries. T. 148-55, 163. Those applications were
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.
initially denied, and Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). T. 46-48, 77-78.
Plaintiff appeared with a non-attorney representative before
ALJ Jennifer Whang during a video hearing on October 13, 2010.
T. 11-45. The ALJ also heard testimony from a vocational expert.
T. 37-43. An unfavorable decision was issued on November 20, 2010.
T. 49-50.
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 did not engage in substantial gainful activity during
the period at issue; (2) she had the severe impairments of disc
bulges of the cervical spine, obesity, and depressive disorder;
(3) her impairments did not meet or equal the Listings set forth at
20 C.F.R. 404, Subpart P, Appx. 1, and that she retained the
residual functional capacity (“RFC”) to perform sedentary work,
with
30
the
additional
minutes;
never
limitations
climbing
of
a
ladders,
sit/stand
ropes,
option
or
every
scaffolds;
occasionally using ramps and stairs, balancing, stooping, kneeling,
crouching, and rotating her neck; avoiding hazards and exposure to
fumes,
odors,
dusts,
and
gases;
and
performing
only
simple,
routine, repetitive tasks in a low-stress job with occasional
2
direct interaction with others; (4) Plaintiff could not perform her
past relevant work; and (5) there was other work that existed in
significant numbers in the national economy that Plaintiff could
perform. The ALJ then concluded that Plaintiff was not disabled
under the Act. T. 52-63.
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied her request for review
on July 27, 2012. T. 1-3. This action followed. Dkt. #1.
The Commissioner moves for judgment on the pleadings arguing
that the ALJ’s decision must be affirmed because it was supported
by substantial evidence and was based on the application of correct
legal standards. Comm’r Mem. (Dkt.#11-1) 2-24.
Plaintiff has filed a cross-motion on the grounds that:
(1)
the
ALJ
did
not
use
the
appropriate
legal
standards
in
determining Plaintiff’s RFC; (2) the credibility assessment was not
supported by substantial evidence; and (3) the vocational expert
testimony cannot provide substantial evidence to support the denial
of benefits. Pl. Mem. (Dkt.#12-1) 1-24.
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
3
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).
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
4
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).
II.
Medical Evidence
A.
Treating Sources and Medical Imaging Tests
Plaintiff was involved in a motor vehicle accident on June 24,
2008. X-rays of the spine taken that day revealed no evidence of
fracture or dislocation, no significant disc space narrowing, and
no evidence of neural foramen encroachment, or cervical ribs.
T. 282. The reading physician indicated that there was “slight
reversal of the normal cervical curve,” possibly due to muscle
spasm. Id.
The following day, Plaintiff was diagnosed with a probable
musculoskeletal sprain at UB Family Medicine and was prescribed
Flexeril, ice, rest, and no work for two weeks. T. 330-31.
5
On July 7, 2008, Dr. Conrad Williams of Zenith Medical excused
Plaintiff from work through July 29, 2008, for acute injuries
sustained in the motor vehicle accident. T. 391.
A magnetic resonance imaging (“MRI”) test of Plaintiff’s left
hip on July 31, 2008, was unremarkable, as was a paraspinal
electromyography (“EMG”) taken on August 7, 2008. T. 336, 501. A
nerve conduction study dated August 14, 2008, revealed evidence of
left L5 radiculopathy. T. 503-04.
An MRI of the lumbar spine on August 11, 2008 indicated
straightening of the lumbar lordosis, but no evidence of disc
herniation or significant spondylosis. T. 332. A cervical spine MRI
taken the same day revealed prominent reversal of cervical lordosis
with limited range of motion in flexion and mild posterior disc
bulges at the C4-6 disc levels with mild impingement of the ventral
spinal cord. T. 334.
Dr. Williams assessed Plaintiff with acute cervical and lumbar
strains on August 26, 2008, and excused Plaintiff from work through
March 18, 2009. T. 393-94, 395, 397, 399, 402, 404.
From January to July, 2009, Plaintiff received pain management
treatment with Jerry Tracy, M.D. She reported some relief with a
transcutaneous
electrical nerve
stimulation
(“TENS”)
unit and
tolerated light activity on January 22, 2009. T. 429-30. Dr. Tracy
assessed Plaintiff with cervicaglia (neck pain), low back pain, and
joint pain in the pelvic region and thigh. T. 432. He recommended
6
psychiatric treatment for Plaintiff’s depression and prescribed
Lortab, Nerontin, Pristiq, Mobic, a TENS unit, and epidural steroid
injections. Id. In February he prescribed Celebrex and discontinued
Mobic and previously-prescribed Tramadol. T. 436-37. Treatment
notes dated March 6, 2009, indicated that Plaintiff was temporarily
markedly
disabled.
T.
440.
In
May,
2009,
it
was
noted
that
Plaintiff had a 50% reduction in pain following a second epidural
steroid injection. T. 442. In July, her pain was reported at 4-5/10
under a pain management regimen. T. 447.
Plaintiff was seen at University Orthopaedic Services on
February 4, 2009, for a consultation for neck, back, arm, leg, and
head pain. T.
rated
her
489-91. She complained of complete body pain and
pain
at
9/10.
T.
489-90.
On
physical
exam,
she
demonstrated reciprocal gait, good strength and coordination, and
good range of motion in her cervical spine. Rotation to the left
and right were 90 degrees. She had pain-free range of motion in the
hips, knees, and ankles, and the shoulders in the seated position.
Internal rotation of the left ankle caused leg pain. The doctor
noted 3+ reflexes, a “trace of Hoffman’s bilaterally as well as
equivocal clonus,” and an inverted radial reflex bilaterally.
T. 490. Radiographs showed kyphosis at C4-5 and radiographs of the
thoracic and lumbar spine were normal. T. 491.
Imaging tests taken the same day revealed a reversal of the
cervical curve due to positioning or muscle spasm, no evidence of
7
bony injury to the cervical spine, and a normal thoracic and lumbar
spine. T. 492-93.
Plaintiff saw Dr. Mark Fineberg at University Sports Medicine
for shoulder pain in March and April of 2009. T. 414-27. A left
shoulder MRI indicated tendinosis. Surgery was not recommended and
Plaintiff was to continue physical therapy and pain management.
T. 417-19.
On November 12, 2009, Plaintiff’s primary physician completed
a
Medical
Source
Statement
indicating
that
Plaintiff
could
occasionally lift and carry up to 10 pounds, sit for 2 hours at a
time, and stand/walk for 2 hours at a time. T. 456-57. In an 8-hour
workday, Plaintiff could sit for 4 hours, and stand/walk for
2 hours. T. 457. She did not require a cane to ambulate, and could
frequently use her hands reaching, handling, fingering, feeling,
and pushing/pulling, with the exception of occasionally reaching
overhead
and
pushing/pulling
with
the
left
hand.
T.
458.
Dr. Williams further opined that Plaintiff should never climb
ladders or scaffolds, balance, or crawl, and could occasionally
climb stairs and ramps, stoop, kneel, and crouch. T. 459. She was
to avoid unprotected heights and extreme cold. T. 460. He based his
findings on EMG and nerve conduction studies. T. 459.
B.
From
Psychiatric Treatment
March
3,
2008,
through
October
6,
2010,
Plaintiff
underwent psychological treatment at the Monsignor Carr Institute.
8
T. 600-82. At various times during her treatment, Plaintiff was
diagnosed with dysthemic disorder, anxiety disorder, adjustment
disorder,
major
depressive
disorder,
psychotic
disorder,
and
post traumatic stress disorder. T. 623, 627, 633, 641, 645, 649,
669. Progress notes indicate that Plaintiff’s Global Assessment of
Functioning Score increased over time, from 55 to 63, reflecting
mild symptoms at the higher end of the spectrum. Amer. Psych.
Assoc., Diagnostic and Statistical Manual of Mental Disorders 32
(4th ed. rev. 2000); T. 623, 633, 656. In 2009 and 2010, her mental
status was consistently noted as being stable. T. 629-632, 636,
639-40, 644, 646, 654-55, 658, 665, 673.
Plaintiff was prescribed
amitriptyline, Cymbalta, ibuprofen, Lyrica, Abilify, zolpidem, and
bupropion. T. 652, 660-61, 667-68.
C.
Consultative Examinations
Plaintiff
Dr.
Kathleen
underwent
Kelley,
M.D.,
a
consultative
on
September
examination
11,
2008.
with
Plaintiff
reported neck pain with associated headaches and back pain, and
that she received physical therapy, acupuncture, and chiropractic
therapy since a motor vehicle accident in June of 2008. T. 340-41.
She was able to occasionally cook, clean, do laundry, and shop.
T. 341.
On physical examination, Plaintiff alleged balance problems
while performing a half-squat, but could heel-toe walk, change for
the exam, and rise from the chair without difficulty. T. 342. She
9
was in no acute distress with normal gait and limited range of
motion in the cervical and lumbar. The remainder of her physical
examination
was
normal,
as
were
the
neurologic
examination
findings. T. 342-43. Dr. Kelley opined that bending or twisting the
cervical or lumbosacral spine would aggravate Plaintiff’s symptoms,
and that she should avoid working around heights, sharps, or heavy
equipment, and should not lift, carry, push/pull, or reach for
markedly heavy objects. T. 344.
Renee Baskin, Ph.D., performed a consultative psychiatric
evaluation of Plaintiff on the same day. T. 345-48. Dr. Baskin
noted that Plaintiff was responsive and cooperative, and her social
skills and overall presentation were adequate. T. 346. Her affect
was
somewhat
anxious
and
markedly
tearful,
but
her
thought
processes were coherent and goal-directed without evidence of
hallucinations,
delusions,
or
paranoia.
T.
346.
Plaintiff
demonstrated mild impairment in concentration and memory due to
emotional
distress.
Plaintiff
could
count,
perform
simple
calculations and serial threes, was fully oriented with clear
sensorium and dysthymic (depressed) mood. T. 346. Her intellectual
functioning was low to below average and her insight and judgment
were fair. T. 347. Dr. Baskin opined that Plaintiff was moderately
limited in dealing with stress, and had minimal to no limitation in
understanding and carrying out simple instructions independently,
maintaining attention and concentration, maintaining a regular
10
schedule, learning new tasks with supervision, making appropriate
decisions, and relating adequately with others. T. 347.
State Agency review psychiatrist H. Tzetzo reviewed the record
on October 22, 2008, and assessed an adjustment disorder with mixed
anxiety and depressed mood. T. 358-74. Plaintiff had no restriction
in activities of daily living, moderate limitations in maintaining
social functioning, mild difficulties in maintaining concentration,
persistence, or pace, and no episodes of decompensation. T. 368.
Dr. Tzetzo concluded that Plaintiff could understand and follow
instructions, relate to a supervisor, and employ judgment to make
work-related decisions in a setting with little public contact.
T. 370.
III. Non-medical Evidence
Plaintiff, who was aged 34 to 36 during the period at issue,
alleged disability stemming from a motor vehicle accident in 2008,
resulting in headaches, left flank pain, right hip pain, and
substantial neck cramping with shooting pain throughout her body.
T. 29-30. She testified at her disability hearing that she received
injections, did physical therapy, and went to a chiropractor, but
surgery was not recommended by her doctors. T. 30.
Plaintiff lived in a first-floor apartment with her three
children, ages 11, 16, and 17. She had a driver’s license but took
public transportation because she experienced pain while driving.
T. 19. A typical day involved going to doctor’s appointments and
11
taking naps. T. 25. Her children assisted her with household
chores, food preparation, and lifting heavy items at the grocery
store, however she was able to shop for herself. Id.
Plaintiff stated that she could sit for 20-30 minutes at a
time before changing positions, and could lift only extremely light
bags. T. 26. She attended church, performed self-care, did not
drink,
and
smoked
approximately
5
to
6
cigarettes
per
day.
T. 26-27.
With regard to her depression, Plaintiff testified that she
was hospitalized in 2005, and that her doctor wanted to put her in
the hospital again, but she didn’t know why. T. 31. She stated that
she could not focus, her mind wandered, and that her medicines made
her drowsy. Id. Plaintiff cried during the hearing. T. 31-33.
A vocational expert testified that Plaintiff previously worked
as a mail handler, bus driver, and home health aide. T. 36. An
individual
of
Plaintiff’s
age,
educational
background,
work
experience, and residual functional capacity, including a sit/stand
option, could not perform her past work, but could work as a final
assembler, polisher, or stuffer. T. 38-42.
IV.
The decision of the Commissioner that Plaintiff was not
disabled was supported by substantial evidence.
A.
Residual Functional Capacity
Plaintiff next contends that the ALJ erred in formulating her
residual functional capacity due to her misapplication of the
“treating physician rule,” her failure to properly develop the
12
record with regard to Plaintiff’s mental impairments, and failing
to
include
a
function-by-function
analysis
of
Plaintiff’s
limitations. Pl. Mem. 15-21. The Court deals with each of these
points separately.
An individual's residual functional capacity is his “maximum
remaining ability to do sustained work activities in an ordinary
work setting on a continuing basis.” Melville v. Apfel, 198 F.3d
45, 52 (2d Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184, *2
(July 2, 1996)). When making an residual functional capacity
assessment,
the
ALJ
should
consider
“a
claimant's
physical
abilities, mental abilities, symptomology, including pain and other
limitations which could interfere with work activities on a regular
and continuing basis.” Pardee v. Astrue, 631 F.Supp.2d 200, 221
(N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(a)). “To determine
RFC, the ALJ must consider all the relevant evidence, including
medical
opinions
and
facts,
physical
and
mental
abilities,
non-severe impairments, and [p]laintiff's subjective evidence of
symptoms.” Stanton v. Astrue, 2009 WL 1940539, *9 (N.D.N.Y. 2009)
(citing 20 C.F.R. §§ 404.1545(b)-(e)), aff'd, 380 Fed. Appx. 231
(2d Cir. 2010).
Here, the ALJ found that Plaintiff retained the residual
functional capacity to perform sedentary work with a sit/stand
option.
T.
57.
In
reaching
this
conclusion,
considered the entire record and addressed
13
the
ALJ
fully
the objective medical
tests, Plaintiff’s subjective complaints, treatment notes from her
providers, and the opinion evidence.
With
regard
to
the
opinion
evidence,
the
ALJ
afforded
“appropriate weight” to the consultative opinion of Dr. Kelley,
“little weight” to the opinions of Drs. Williams and Tracy that
Plaintiff
was
totally
disabled,
“appropriate
weight”
to
Dr. Williams’ Medical Source Statement, and “appropriate weight,”
to
the
independent
medical
examination
by
Dr.
Chung.
T.
60.
Specifically, Plaintiff challenges the ALJ’s application of the
treating physician rule with respect to Dr. Williams. Pl. Mem.
16-17.
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.” 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
14
physician's statement that the claimant is disabled cannot itself
be determinative.”).
As discussed by the ALJ, the portion of Dr. Williams’ Medical
Source Statement indicating that Plaintiff could perform less than
the full range of sedentary work as not supported by the objective
evidence, including an August 2008 lumbar spine MRI that revealed
no evidence of herniation, a contemporaneous MRI of the cervical
spine which revealed only mild posterior disc bulges with mild
impingement of the ventral spinal cord, an EMG of the cervical
spine
indicating
no
evidence
of
cervical
radiculopathy,
and
February 2009 radiographs of the cervical spine, thoracic spine,
and lumbar spine, which were all grossly normal. T. 332, 334, 49294, 501. Moreover, the assessments from the consultative examiners
as well as from Plaintiff’s treating physicians at University
Orthopaedic Services, were consistent with one another and with the
less restrictive portions of Dr. Williams opinion.
The remainder of Dr. Williams’ Medical Source Statement was
consistent with the residual functional capacity determination
assessed by the ALJ that Plaintiff could perform sedentary work
(lifting no more than 10 pounds occasionally and standing and/or
walking no more than 2 hours in an 8-hour work day) with additional
limitations,
a
sit/stand
option,
and
avoidance
of
certain
environmental factors. T. 57, 456-61; see 20 C.F.R. §§ 404.1567(a),
416.967(a); Social Security Ruling (“SSR”) 96-9p (“An RFC for less
15
than
a
full
range
of
sedentary
work
reflects
very
serious
limitations resulting from an individual's medical impairment(s)
and is expected to be relatively rare . . . . However, a finding
that an individual has the ability to do less than a full range of
sedentary work does not necessarily equate with a decision of
"disabled." If the performance of past relevant work is precluded
by
an
RFC
for
less
than
the
full
range
of
sedentary
work,
consideration must still be given to whether there is other work in
the national economy that the individual is able to do, considering
age, education, and work experience.”).
Finally, Dr. Williams’ conclusion that Plaintiff was disabled
was
not
entitled
to
special
significance
under
the
treating
physician rule. See 20 C.F.R. § 416.927(d)(1)-(3); T. 391-405. The
ALJ therefore properly afforded “appropriate weight” to Plaintiff’s
treating source, Dr. Williams.
Plaintiff next argues that the ALJ failed to sufficiently
develop
the
record
regarding
Plaintiff’s
mental
impairments.
Pl. Mem. 18-19. While it is true that an ALJ is required to seek
out further information where the evidence is inconsistent or
contradictory,
or
where
evidentiary
gaps
exist,
see
Rosa
v.
Callahan, 168 F.3d 72, 79 (2d Cir. 1999), no such gaps are apparent
on this record. Plaintiff’s vague reference at her disability
hearing that her doctor “wanted to put [her] in the hospital,” was
unsubstantiated in the medical record, and treatment notes from
16
March, 2008 through October, 2010 were largely unchanged over the
course of two and a half years of psychiatric treatment, indicating
that Plaintiff was in stable condition and taking medication.
T. 58, 600-82.
It is well-settled that ALJ is only required to re-contact a
medical source when the evidence the Commissioner received from the
source is inadequate for her to determine whether Plaintiff is
disabled. See 20 C.F.R. §§ 404.1512(e), 404.1520b(c). Here, the ALJ
had the benefit of the treatment notes of Plaintiff's primary care
providers and mental health treatment providers. See, e.g., Pellam
v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013) (finding that the
ALJ who had all of the treatment notes had no further obligation to
supplement the record by obtaining a medical source statement from
a treating physician).
Plaintiff’s final challenge to the ALJ’s residual functional
capacity finding, which alleges that she failed to conduct a
function-by-function
analysis
of
Plaintiff’s
limitations,
is
unsupported by the record. Pl. Mem. 20-21.
The ALJ found that Plaintiff could perform sedentary work with
the following additional limitations: (1) sit/stand option every
30 minutes; (2) never climbing ladders, ropes, or scaffolds;
(3)
occasionally
using
ramps
and
stairs,
(4)
occasionally
balancing, stooping, kneeling, crouching, crawling, and rotating
the neck; (5) avoid exposure to hazards, including moving machinery
17
and unprotected heights; (6) avoid concentrated exposure to fumes,
odors, dusts, gases, and poor ventilation; (7) limited to simple,
routine, repetitive tasks; (8) requiring a “low stress” job,
defined has having only occasional decision-making and occasional
direct interaction with the public; and (9) occasional direct
interaction with co-workers or supervisors. T. 57.
Accordingly,
the
ALJ
did
provide
a
function-by-function
analysis such that the residual functional capacity could be
expressed in terms of exertional levels of work, which, in this
case, was sedentary.
For all of the reasons articulated above, the Court finds that
the ALJ's applied the appropriate legal standard in reaching his
conclusion that Plaintiff was capable of sedentary work with
certain additional limitations and her residual functional capacity
assessment was supported by substantial evidence in the record.
B.
Credibility Assessment
Plaintiff alleges that the ALJ did not apply the appropriate
standards set forth in SSR 96–7p and 20 C.F.R. § 404.1529 in
assessing Plaintiff’s credibility. Pl. Mem. 22-24.
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
18
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). When a
medically
determinable
impairment
exists,
objective
medical
evidence must be considered in determining whether disability
exists,
whenever
such
evidence
is
available.
20
C.F.R.
§ 416.929(c)(2). If the claimant's symptoms suggest a greater
restriction of function than can be demonstrated by objective
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 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
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 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,
19
Valente v. Sec’y, 733 F.2d 1037, 1045 (2d Cir. 1984); footnote
omitted).
In
finding
Plaintiff’s
subjective
complaints
not
fully
credible, the ALJ nonetheless gave Plaintiff “a great deal of
deference” in determining her residual functional capacity. T. 5761. Contrary to her contention that the ALJ did not provide a
rationale for discounting Plaintiff’s credibility, the written
opinion shows that the ALJ summarized the evidence relating to each
of Plaintiff’s purported impairments, and stated that the objective
medical findings did not support the severity of her limitations as
alleged. With regard to Plaintiff’s back and neck pain, the ALJ
discussed the diagnostic imaging results and reasoned that the
objective
evidence
in
the
record
did
not
substantiate
her
subjective complaints of pain. T. 59. Likewise, the record showed
that while Plaintiff did suffer from depression, her psychological
examination results were unremarkable and she was able to attend to
her daily activities of living, which included caring for herself
and 3 children, attending church and doctor’s appointments, and
managing her
own
finances. The
ALJ
therefore
found
that her
symptoms were not so severe as to consider them disabling. Id.
It is true that the ALJ did not specifically discuss the side
effects of Plaintiff’s medications as part of her credibility
determination. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii). This alone
does not constitute reversible error. See Miller v. Colvin, ---
20
F.Supp.3d ----, 2015 WL 628359, at *13 (W.D.N.Y. Feb. 12, 2015).
The ALJ, however, did address Plaintiff’s prescribed medications
for both her pain and depression, as well as other conservative
forms of treatment for her physical symptoms. T. 58. Viewed in
conjunction
with
her
thorough
discussion
of
the
medical
and
testimonial evidence, the ALJ provided ample reasoning supporting
her credibility finding. See, e.g., Dupre v. Colvin, No. 13-CV1367, 2015 WL 1383826 (N.D.N.Y. Mar. 25, 2015) (finding no error in
ALJ’s credibility determination where he did not discuss the
plaintiff’s
medications
or
side
effects;
remanding
on
other
grounds).
The Court finds that the ALJ's credibility determination was
proper as a matter of law and supported by substantial evidence in
the record.
C.
Vocational Expert Testimony
Plaintiff argues that due to the ALJ’s improper residual
functional capacity finding, the hypothetical presented to the
vocational
substantial
expert
was
evidence
incomplete
to
support
therefore
the
could
not
Commissioner’s
provide
denial
of
benefits. Pl. Mem. 24-25.
As previously discussed, the ALJ was not in error for failing
to
follow
the
treating
physician
rule
and
therefore
the
hypothetical presented to the vocational expert was complete.
Having found that the ALJ’s residual functional capacity assessment
21
was supported by substantial evidence, the Court finds no error in
the ALJ’s
step
five
Fed.Appx.
91, 95
concluded
that
conclusion.
(2d Cir.
substantial
See
2011)
record
Wavercak
(“[b]ecause
evidence
v.
we
Astrue,
have
supports
420
already
the
RFC
finding, we necessarily reject [plaintiff's] vocational expert
challenge”).
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Dkt.#11) is granted, and Plaintiff’s
cross-motion (Dkt.#12) is denied. 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
June 9, 2015
22
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