Adams v. Commissioner of Social Security
-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 11/3/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KARLA S. ADAMS,
CAROLYN W. COLVIN, Commissioner
of Social Security,
Plaintiff Karla S. Adams ("Plaintiff"), who is represented by
counsel, brings this action pursuant to the Social Security Act
Commissioner of Social Security (“the Commissioner”) denying her
Disability Insurance Benefits (“DIB”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently
before the Court are the parties’ motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Dkt. ##11,12.
Plaintiff applied for SSI and DIB on May 9, 2009, alleging
disability beginning November 1, 2003 due to degenerative discs in
her lower back and chronic back pain. T. 140, 143, 156.1 Her
Numerals preceded by “T.” refer to pages from the
transcript of the administrative record, submitted by
Commissioner as a separately bound exhibit in this proceeding.
application was initially denied, and a hearing was requested
before an Administrative Law Judge (“ALJ”). T. 65-66. Plaintiff
appeared with counsel before ALJ Bruce R. Mazzarella on January 12,
2011. T. 30-64. A written decision was issued on January 27, 2011,
finding that Plaintiff was not disabled. T. 16-25.
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration (“SSA”),2 the ALJ found that (1)
Plaintiff had not engaged in substantial gainful activity since
November 1, 2003; (2) she suffered from the severe impairment of
chronic back pain aggravated by mild obesity; (3) her impairment
did not meet or equal the Listings set forth at 20 C.F.R. § 404,
functional capacity (“RFC”) to lift/carry 10 pounds occasionally,
sit for an 8-hour workday with normal breaks and meals, and
stand/walk on an occasional basis for up to 2 hours of an 8-hour
workday, with only occasional stooping, crouching, kneeling, or
climbing stairs; (4) Plaintiff was unable to perform her past work
as a Certified Nursing Assistant (“CNA”); and (5) jobs existed in
the national economy that Plaintiff could perform, resulting in a
finding of no disability. T. 18-24.
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’s determination became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on July 11, 2012. T. 4-6. Plaintiff then filed this
action seeking judicial review of the Commissioner's decision
pursuant to 42 U.S.C. § 405(g). Dkt.#1.
The Commissioner moves for judgment on the pleadings on the
substantial evidence, and was made in accordance with applicable
law. Comm’r Mem. (Dkt.#11-1) 15-24. In Plaintiff’s cross-motion,
she alleges that the ALJ’s decision 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.#13) 16-24.
For the following reasons, Plaintiff’s motion is denied, and
the Commissioner’s motion is granted.
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).
On May 18, 2001, Plaintiff was treated at St. James Mercy
Hospital after injuring her back while lifting a patient at her job
as a CNA. T. 208. John Halpenny, M.D., noted tenderness in the mild
lumbar area and right buttock. Id. Plaintiff was admitted with
acute back strain. T. 209. An x-ray
taken on that date was
unremarkable. T. 210.
Plaintiff underwent physical therapy sessions from June 15 to
July 23, 2001, at Dr. Halpenny’s recommendation. T. 212-14.
On December 4, 2001, an MRI of Plaintiff’s lumbosacral spine
generalized annular disc bulge causing slight flattening of the
thecal sac, and slight central disc protrusion. T. 222.
complaints of lower back pain from June, 2002, through April, 2003.
T. 473-80. An L4-L5 discogram, taken on April 11, 2003, showed that
the L4-L5 disc was not the cause of Plaintiff’s back pain. T. 476.
A film myelogram and CT myelogram of the lumbar spine dated April
29, 2003, were both unremarkable. T. 475-76.
In September 2003, Plaintiff was examined by John Forrest,
M.D., for pain in her back and left leg. T. 273. She reported that
she could sit for 15-20 minutes and stand for 5-10 minutes. Id.
Examination revealed that Plaintiff was limited in side-to-side
motion and hyperextension due to pain, positive straight leg
raising in the sitting position on the left and bilaterally, and
weakness in the toe extensor on the left. Id. Dr. Forrest opined
that Plaintiff’s prognosis was guarded, and that she had a marked
degree of disability with the ability to do light, sedentary work
that allowed her to change positions every 15-20 minutes. T. 275.
Between April 2004 and July 2005 Plaintiff saw Dr. John
Halpenny, an orthopedic surgeon. He repeatedly noted that Plaintiff
walked slowly or with a limp. T. 247, 249, 251-61. Plaintiff’s left
leg demonstrated reduced muscle strength, and her lumbar spine
exhibited a limited range of motion. Dr. Halpenny assessed chronic
lumbar strain syndrome with left sciatica, chronic back pain, and
small disc protrusion. Id. In July, 2005, Dr. Halpenny opined that
Plaintiff had at least a moderate disability for the past year. T.
MRIs of Plaintiff’s lumbar spine, taken in July 2005 and April
2007 revealed stable minimal posterior annular bulging, barely
impinging upon the dural sac, at the L4-L5 level; moderate facet
arthropathy at L4-L5 and L5-S1 levels; and no spinal canal or
neural foraminal stenosis. T. 229, 237.
Plaintiff was examined by Dr. Peter Remac at the request of
the State Worker’s Compensation Board on September 28, 2005. T.
midline from the mid-lumbar spine to the sacral level. T. 271.
Forward flexion was limited due to pain. Plaintiff’s reflexes and
sensations were normal in the lower extremities, with the exception
of limited sensation in the first and second toes of the left foot.
She had full range of motion throughout the hips and knees. Dr.
Remec assessed chronic lower back pain with radiation of pain to
the left leg. For purposes of worker’s compensation, the doctor
assessed a partial, temporary disability of a moderate degree. Id.
He opined that Plaintiff could lift 10 pounds frequently and 25
pounds occasionally as well as perform work activities that did not
involve repetitive bending or lifting. T. 272.
Plaintiff returned to Dr. Halpenny for follow-up examinations
from September 2006 to October 2007. T, 239-43. In September 2006,
Plaintiff reported that she was functioning “okay” with Vicodin,
prescription for Vicodin had been cancelled as “somebody ran a
blood test a few weeks ago to see if she had any Hydrocodone in her
system and they couldn’t find any. They thought this was rather odd
as she was supposed to be taking Vicodin and or Percocet.” T. 243.
Dr. Halpenny also noted during a previous visit that “the office
medications therefore stopped providing them for her.” T. 242.
In October 2007, Plaintiff saw Dr. Halpenny upon complaints of
left hip and left knee pain. T. 240. She told the doctor that she
could perform light housework, such as standing and doing dishes
for 15 minutes, walk for 10 minutes at a time, fold laundry, carry
light objects, dress herself, and make beds. Id. Dr. Halpenny
observed that straight leg raising, stressing the left sacroilliac
joint, and/or range of motion exercises caused pain in the left
buttock area. Id. Plaintiff’s left knee exhibited no swelling, good
Halpenny assessed chronic lumbar strain, aggravation of lumbar disc
disease with radiculopathy, trochanteric bursitis, left side, and
possible left knee derangement. T. 241.
Occupational therapist Douglas Seyfried conducted a functional
capacity evaluation on October 10, 2006, during which he observed
inconsistencies in Plaintiff’s force application graphs and selfadministered questionnaire results, poor congruency between her
pain levels and functions, and elevated coefficients of variation.
T. 282. Mr. Seyfried opined that Plaintiff presented a less than
reliable and valid effort during testing. Id.
Plaintiff was consultatively examined by Dr. Look Persaud on
May 19, 2009. T. 419. Dr. Persaud assessed no limitations in
sitting, standing, walking on even surfaces, reaching overhead,
reaching in all planes, and fine motor activity of the hands. Id.
Plaintiff had moderate restrictions in bending, twisting, and
turning; walking on uneven surfaces and up inclines, ramps, and
Persaud noted that Plaintiff walked with a slight limp on the left
and needed no assistive device. Results of the physical examination
were unremarkable with the exception of limited range of motion on
lumbar spine, and positive straight leg raise on the left. Her
muscle strength, sensations, and reflexes were normal except for
reduced muscle strength and limited range of motion in her left hip
and left knee. T. 418-19. Plaintiff told the doctor that she
bathed, showered, and dressed herself, made simple meals, cleaned
her house, took care of her son, and watched television. She did
not do laundry or grocery shop. T. 416-17. Diagnosis was low back
pain with left lumbar radiculopathy and intermittent right lumbar
radiculopathy. T. 419.
Plaintiff was examined by Dr. Robert Whelpley, on February 5,
2010, for complaints of lower back pain that radiated down the left
leg. T. 462. She reported that she was doing fair during the day
and sometimes had to lie down. Id. Plaintiff stated that her
temporary job had ended and she was seeking employment, Id. After
examination, Dr. Whelpley opined that Plaintiff could return to
work if retrained. Id.
In September 2010, Plaintiff returned to Dr. Halpenny, whom
she told that she was able to do some housework, could lift a jug
of milk, walk a half-mile, drive a car, make meals and make beds.
T. 482. At that time she was involved in a vocational retraining
program. Id. Upon examination, Dr. Halpenny observed that Plaintiff
walked well with no limp, exhibited a limited range of motion in
demonstrated reduced muscle strength in her bilateral hips and
legs. Id. The doctor assessed chronic lumbar strain, lumbago, and
disc bulge. For purposes of worker’s compensation, he opined that
Plaintiff had a permanent, moderate disability. Id.
independent medical examination on January 11, 2011. T. 483-87.
Plaintiff told Dr. Reina that she was studying to become a pharmacy
technician. T. 484. During examination, Dr. Reina observed that
Plaintiff’s gait was normal; she exhibited tenderness over her
lumbosacral junction, left paraspinal muscles, and left greater
trochanter; and had limited range of motion in her lumbar spine. T.
485. The doctor assessed chronic lower back pain with left leg
suspected S1 and L5 motor radiculopathy; no definitive reflex with
sensory radiculopathy. Id. For purposes of worker’s compensation,
partial disability, and that Plaintiff could perform sedentary to
light duty work with no pushing, pulling, carrying, or lifting of
more than 15-20 pounds. T. 486. Further, Plaintiff required a job
that permitted her to alternate between sitting and standing every
30 minutes, with no unprotected climbing or inclines, no bending or
reaching below mid-thigh level, no overhead reaching, and no
III. Non-Medical Evidence
Plaintiff is a high-school graduate who was 30 years old on
the alleged onset date of disability. T. 140, 162. From 1999 to
November 1, 2003, she worked as a CNA. T. 158, 176-77.
As part of her disability application, Plaintiff completed a
function report, in which she stated that she washed dishes,
grocery shopped, searched for jobs, took care of her school-age
son, and prepared meals with the help of her husband. Plaintiff
indicated that she did not drive, that her husband helped her in
and out of the bathtub, and helped her to put her shoes on and get
dressed. T. 165-72.
Plaintiff testified at her hearing that she worked part-time
at a motel for 8 hours per day, 2 days per week from September,
2009 through January, 2010. She received worker’s compensation for
her permanent, partial disability, and was taking online courses to
become a pharmacy technician. T. 39-40.
Plaintiff alleged disability due to back pain caused by an onthe-job injury in 2001. The pain radiated to her left leg and
required her to constantly shift positions from sitting to standing
to lying down. T. 43-44. She testified that during the course of a
typical day, she did school work for about two hours, did some
housework (vacuuming, washing dishes, laundry), prepared simple
meals, occasionally grocery shopped, and drove herself to medical
appointments. T. 51-52. Plaintiff told the ALJ should could lift 10
pounds, sit for 30 minutes at a time, stand for 30 minutes
continuously, and needed to lie down for 30-45 minutes every 90
minutes. T. 52-53.
The ALJ also heard testimony from Vocational Expert (“VE”)
James Phillips. T. 56-61. The ALJ asked the VE to assume an
individual of Plaintiff’s age, educational background, and work
history who could sit for 30 minutes at a time, stand for 25-30
minutes at a time, would need to lie down after alternating sitting
and standing for 90 minutes, and who could walk up to 30 feet and
lift up to 10 pounds. The VE responded that such a person would not
be able to sustain full-time employment.
The ALJ then posed a second hypothetical to the VE involving
an individual that could sit throughout an 8 hour workday with
occasionally lift and carry 10 pounds, and occasionally stoop,
crouch, kneel, or climb stairs. T. 61. The VE testified that such
an individual could perform the full range of sedentary work. Id.
The Decision of the Commissioner that Plaintiff was not
disabled is supported by substantial evidence.
Treating Source Opinion
Plaintiff first contends that the ALJ failed to indicate what
weight was given to the medical opinions of Dr. Reina and Dr.
Forrest. Pl. Mem. 18-21. The Commissioner does not dispute that the
ALJ did not address the opinions in his written decision. Comm’r
Reply Mem. (Dkt.#15) 3-4.
It is true that an ALJ is required to evaluate and weigh the
medical findings of non-treating physicians. See 20 C .F.R. §
source's opinion is given controlling weight, the administrative
law judge must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant ...,
as the administrative law judge must do for any opinions from
sources who do not work for us.” (emphasis added)). However, given
the context in which these physicians rendered their opinions, the
ALJ did not err in failing to mention the two opinions complained
First, neither Dr. Reina nor Dr. Forrest was a treating
physician. As such, those opinions were not entitled to any special
weight. See 20 C.F.R. § 404.1527(c)(2). Second, both opinions were
different standards relative to disability determinations than
those applied by the Commissioner. See Rosado v. Shalala, 868
F.Supp. 471, 473 (E.D.N.Y. 1994) (citing Coria v. Heckler, 750 F.2d
245, 247 (3d Cir. 1984) (“Although plaintiff's doctors had checked
off that plaintiff was disabled on forms sent to the Workers'
compensation relief are different from the requirements which
govern the award of disability insurance benefits under the Act.
compensation is not binding on the Secretary.”)); accord, Crowe v.
Comm'r, No. 01–CV–1 579, 2004 WL 1689758, at *3 (N.D.N.Y. July 20,
2004) (the ALJ was not required to adopt a treating physician's
opinion that Plaintiff was “totally” disabled, in part, because
W[orkers'] C[ompensation] claim, which is governed by standards
different from the disability standards under the Social Security
Third, even if the opinions of Drs. Reina and Forrest are
factored in the analysis, substantial evidence otherwise contained
in the record supports the ALJ's determination, including reports
from treating providers and a consultative examiner. Dr. Forrest
examined Plaintiff in September 2003, during which time she does
not allege to have been disabled, T. 157, 273-76, and Dr. Reina’s
opinion that Plaintiff could perform sedentary to light-duty work
with certain limitations in pushing, pulling, climbing, bending,
and reaching, was consistent with the evidence in the record as a
whole as well as with the RFC finding. T. 486. These opinions
therefore do not change the outcome of the ALJ’s determination.
See, e.g., Seltzer v. Comm'r, 2007 WL 4561120, at *10 (E.D.N.Y.
Dec.18, 2007) (finding harmless error can occur even if ALJ fails
to affirmatively develop the record or consider all relevant
Finally, the Court reminds Plaintiff that an ALJ “is not
required to discuss all the evidence submitted, and his failure to
cite specific evidence does not indicate it was not considered.”
Barringer v. Comm’r, 358 F.Supp.2d 67, 79 (N.D.N.Y. 2005) (citation
and quotations omitted); see also Brault v. Comm'r, 683 F.3d 443,
448 (2d Cir. 2012) (“[a]n ALJ does not have to state on the record
every reason justifying a decision,” nor is an ALJ “required to
discuss every piece of evidence submitted”) (internal quotations
and citation omitted).
Accordingly, this Court finds no reversible error with regard
Plaintiff next argues that the ALJ failed to consider the required
factors when assessing Plaintiff’s credibility. Pl. Mem. 21-23.
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
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 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.
enumerating the factors set forth at SSR 96–7p and 20 C.F.R. §§
In his decision, the ALJ pointed out Plaintiff’s conservative
course of treatment for pain, the fact that she was not a surgical
candidate, and her unwillingness to proceed with an epidural
steroid injection. T. 20, 21. He noted her daily activities and
online schooling, in which she was receiving grades in the “80 to
100 range.” Id. He also discussed the unremarkable diagnostic test
results. T. 21. The ALJ observed that one evaluator believed that
Plaintiff exaggerated her symptoms, and that her testimony was
inconsistent with her statements to physicians. T. 22. Her pain
levels were further called into question by the ALJ given the
treatment notes indicating that her blood tests had negative
results for the medication she was prescribed. T. 23. Finally, the
ALJ noted that Plaintiff’s work history was “relatively weak.” Id.
It is apparent that the ALJ considered the appropriate factors and
applied the correct legal standards. His credibility determination
is, therefore, supported by substantial evidence.
Plaintiff also argues that the ALJ erred in relying on the
VE’s testimony because it was based on an incomplete hypothetical.
Pl. Mem. 23-24.
For the opinion of a VE to constitute substantial evidence,
the hypothetical questions posed to the VE must include all of the
claimant's limitations that are supported by medical evidence in
the record. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir.
1981) (a “vocational expert's testimony is only useful if it
addresses whether the particular claimant, with his limitations and
capabilities, can realistically perform a particular job”); see
also Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (“A
hypothetical question posed to a vocational expert must reflect all
of a claimant's impairments....”) (internal citations and quotation
marks omitted). If a hypothetical question does not include all of
a claimant's impairments, limitations and restrictions, or is
constitute substantial evidence to support a conclusion of no
disability. Melligan v. Chater, No. 94–CV–944S, 1996 WL 1015417, at
*8 (W.D.N.Y. Nov. 14, 1996).
At the fourth step of the sequential evaluation, the ALJ found
relevant work as a CNA. T. 23-24.
In determining Plaintiff’s RFC, the ALJ relied on evidence
from Drs. Persaud, Remac, Halpenny, and Whelpley, the diagnostic
tests, together with Plaintiff’s statements regarding her symptoms.
Plaintiff had a “slight limp” and her stance was normal. She had no
difficulty changing for the examination, getting on and off the
examination table, and rising from a seated position. T. 417. She
had full muscle strength and full range of motion with normal
sensations and reflexes throughout her arms and legs, with reduced
muscle strength and limited range of motion in her left hip and
knee. T. 418-19. Hand and finger dexterity was in tact, and she
demonstrated full grip strength, bilaterally. Id. Based on these
findings, Dr. Persaud assessed only a moderate restriction in
bending, twisting, and turning, and walking un uneven surfaces, up
inclines, ramps, and stairs. T. 419. A consultative examiner’s
opinion may serve as substantial evidence. Mongeur v. Heckler, 722
F.2d 1033, 1039 (2d Cir. 1983).
Likewise, Drs. Remac, Reina, and Whelpley assessed limitations
consistent with the ability to perform sedentary work. Dr. Remac
(independent medical examiner) and Dr. Reina (treating orthopedic
surgeon) both opined that Plaintiff could lift 10 pounds frequently
and 25 pounds occasionally and could perform activities that did
Whelpley, Plaintiff’s treating physician, stated that Plaintiff
could return to work with retraining. T. 462. Plaintiff herself
testified that she could lift at least 10 pounds, T. 54, and told
Dr. Halpenny that she could walk a half-mile at a time. T. 482.
Consistent with sedentary capability, Plaintiff testified that she
spent two hours per day completing an online pharmacy technician
course, did housework, and took care of most of her own personal
needs. T. 23.
Finally, as the ALJ pointed out, the opinions of Drs. Halpenny
and Remac that Plaintiff had a
a “partial disability of a moderate
degree” is probative of Plaintiff’s RFC. See Stephens v. Heckler,
766 F.2d 284, 285 (7th Cir. 1985) (finding that a person with a
partial disability is not disabled under the Social Security Act).
In summary, the ALJ correctly assessed Plaintiff’s RFC in this
case. Because the hypothetical questions were based upon an RFC
limitations, the VE's testimony provided substantial evidence to
support the finding of no disability.
judgment on the pleadings (Dkt.#11) is granted, and Plaintiff's
cross-motion for judgment on the pleadings (Dkt.#12) is denied. The
complaint is dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
November 3, 2014
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