Stephens v. Astrue
Filing
17
DECISION AND ORDER GRANTING Defendant's 13 Motion for Judgment on the Pleadings; DENYING Plaintiff's 11 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Issued by William M. Skretny, Chief Judge on 6/21/2014. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHERRY L. STEPHENS,
Plaintiff,
v.
DECISION AND ORDER
12-CV-1069S
CAROLYN W. COLVIN, 1
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
1.
In this action, Plaintiff Sherry Stephens challenges an Administrative Law
Judge’s (“ALJ”) determination that she was not disabled within the meaning of the
Social Security Act (“the Act”).
2.
On February 26, 2009, Stephens filed an application for Disability
Insurance Benefits (“DIB”) under Title II of the Act, claiming she was unable to work
after a March 9, 2005 motor vehicle accident due to a herniated disc in her neck and
back. (R. 94-95, 137.)2 Her application was denied on August 6, 2009. (R. 50-53.)
Stephens then requested a hearing, which was held before ALJ William Weir on
January 6, 2011. (R. 22-48.) Stephens was represented by counsel at the hearing, at
which she appeared in person and testified. (Id.)
1
Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013. She is
substituted for Michael J. Astrue as the Defendant in this action under Rule 25(d) of the Federal Rules of
Civil Procedure.
2
Citations to the administrative record are designated as “R.”
1
3.
ALJ Weir considered her DIB application de novo and, on May 23, 2011,
issued a written decision finding Stephens was not disabled. (R. 10-17.) He also found
there was no good cause to reopen the denial of an earlier DIB application she had
filed. (Id.) Stephens requested review by the Appeals Council, which denied the request
on September 18, 2012. She commenced this civil action on November 2, 2012,
challenging the Commissioner’s final decision.3
4.
On January 17, 2014 and January 21, 2014, respectively, Stephens and
the Commissioner each filed a motion for judgment on the pleadings under Rule 12(c)
of the Federal Rules of Civil Procedure. (Docket Nos. 11 and 13.) The motions were
fully briefed on February 21, 2014, at which time this Court took the matter under
advisement. For the reasons set forth below, the Commissioner’s motion is granted and
Stephens’ motion is denied.
5.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that
which amounts to “more than a mere scintilla”; it has been defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842
3
The ALJ’s May 23, 2011 decision became the Commissioner’s final decision in this case when the
Appeals Council denied Plaintiff’s request for review.
2
(1971). Where evidence is deemed susceptible to more than one rational interpretation,
the Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982).
6.
“To determine on appeal whether the ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.” Williams on Behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the
Commissioner's finding must be sustained “even where substantial evidence may
support the plaintiff's position and despite that the court's independent analysis of the
evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's
determination considerable deference, and may not substitute “its own judgment for that
of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d
Cir. 1984).
7.
The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled as defined under the Act. See 20
C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the validity
of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291, 96
L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a
claimant is disabled.
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8.
The five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a "severe impairment" which
significantly limits his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which
is listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a "listed" impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
9.
Although the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant's job qualifications by considering his or her physical ability, age, education,
and work experience. Second, the Commissioner must determine whether jobs exist in
the national economy that a person having the claimant's qualifications could perform.
See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S.
458, 460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
10.
In this case, the ALJ made the following findings with regard to the five-
step process: (1) Stephens had not engaged in substantial gainful activity since her
alleged disability onset date of March 9, 2005 (R. 12); (2) her borderline intellectual
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functioning, neck and back pain, and depression were severe impairments within the
meaning of the Act (Id.); (3) these impairments did not meet or medically equal any of
the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Id.); (4) Stephens
had the residual functional capacity (“RFC”) to perform light work with the exception that
she was limited to work involving simple instructions (R. 14); (5) she was not able to
perform her past relevant work (R. 16); and (6) jobs existed in substantial number in the
national economy that an individual of her age, education, past relevant experience, and
RFC could perform (R. 16-17).
11.
Stephens contends the determination that she is not disabled is not
supported by substantial evidence. In particular, she maintains the ALJ erroneously
failed to give controlling weight to the opinion of her primary physician, and improperly
analyzed her credibility.
12.
ALJ Weir gave “very limited weight” to the opinion of Dr. Nadella, who was
Stephens’ primary physician during the relevant time period. In contrast, he gave “great
weight” to the assessments of three consultative examiners: Dr. Bender, who conducted
a medical examination and whose findings are discussed below; Dr. Baskin, who
evaluated Stephens’ intellectual functioning and concluded any cognitive problems
could be accommodated by a restriction to work involving simple instructions; and Dr.
Ryan, who conducted a psychiatric examination and found Stephens’ depression did
not significantly limit her ability to follow and understand simple directions and perform
simple tasks. (R. 15-16.) The ALJ explained that Dr. Nadella’s statement of total
disability due to chronic pain syndrome was entitled to little weight because it is
conclusory and his records contained very limited objective supporting criteria. (R. 16.)
5
Stephens does not dispute this explanation, but contends that the ALJ violated the
treating physician rule4 by failing to properly assess the weight to be accorded a treating
physician’s opinion where sufficient supporting evidence is lacking.
13.
Where, as here, the treating physician’s opinion is not “well supported” by
other medical evidence, the ALJ must consider a number of factors to determine the
weight that will be given: (1) the length of the treatment relationship and the frequency
of examination; (2) the nature and extent of the treatment relationship; (3) the evidence
that supports the treating physician's report; (4) how consistent the treating physician's
opinion is with the record as a whole; (5) the specialization of the physician in contrast
to the condition being treated; and (6) any other factors which may be significant. 20
C.F.R. § 404.1527(d)(1-6). Among other things, ALJ Weir noted that: Stephens treated
with Dr. Nadella regularly during the relevant period; his treatment records indicate
Stephens’ range of motion is limited by pain, but the records do not contain objective
tests indicating the extent of limitations; Nadella prescribed Stephens pain medication in
a consistent dosage over an extended time; and, he did not note any improvement or
exacerbation of Stephens’ symptoms over time. (R. 15.) Nadella’s records indicate he
referred Stephens to a pain management physician, but there is no evidence that she
consulted with that specialist. (Id.) The ALJ also considered Dr. Nadella’s statement of
total disability in light of the record as a whole—including the consultative physicians’
assessment—and found Nadella’s opinion was inconsistent with the medical evidence.
4
“The ‘treating physician’s rule’ is a series of regulations set forth by the Commissioner in 20
C.F.R. § 404.1527 detailing the weight to be accorded a treating physician’s opinion.” DeRoman
v. Barnhart, No. 03-CV-0075, 2003 U.S. Dist. LEXIS 11217, at * 32 (S.D.N.Y. July 2, 2003).
Effective March 26, 2012, the Commissioner amended §§ 404.1527 and 416.927. Uu FR
10651, 10656. This opinion refers to regulations in effect when the ALJ adjudicated this claim.
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In sum, it is apparent that ALJ Weir considered the requisite factors in concluding he
would accord only “very limited weight” to Dr. Nadella’s opinion. Stephens provides no
citations in support of her assertion that Dr. Nadella’s opinion was entitled to “great
weight” based on her lengthy treatment relationship alone, and such a conclusion is
inconsistent with the balancing of factors required by the regulation. It is well
established that “the less consistent [the treating physician’s] 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).
14.
Stephens also suggests the ALJ did not properly develop the
administrative record when he failed to re-contact Dr. Nadella for additional information.
Stephens does not state how the record was deficient and there is no indication that the
treatment records received from Dr. Nadella were incomplete. “[W]here there are no
obvious gaps in the administrative record, and where the ALJ already possesses a
‘complete medical history,’ the ALJ is under no obligation to seek additional information
in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.
1999) (citation omitted).
15.
As for Stephens’ credibility, ALJ Weir found that her “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms [i.e.—daily pain in her neck and back which, in turn, causes her to be
depressed]; however, [her] statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the [ ]
residual functional capacity assessment.” (R. 14.) Stephens urges the ALJ's credibility
finding was improper because his conclusion that her statements were inconsistent with
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his own RFC determination is meaningless boilerplate language, and he should have
drawn a favorable inference from her good work history.
16.
Courts in this district have recognized that "[I]t is not sufficient for an ALJ
to merely state that he finds the claimant incredible to the extent that her complaints are
inconsistent with his RFC determination.” Kunkel v. Comm’r of Soc. Sec., No. 12-CV6478, 2013 U.S. Dist. LEXIS 11791, at *58 (W.D.N.Y. Aug. 20, 2013). Rather, “[t]he
determination or decision must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave
to the individual's statements and the reasons for that weight.” SSR 96-7p, 1996 SSR
LEXIS 4, at *3-4 (SSA July 2, 1996).
17.
This Court finds that the ALJ properly assessed Stephens' credibility in
light of the record a whole, including her work history. In particular, the ALJ reviewed the
limitations described by treating and consultative sources, which are inconsistent with
Stephens’ claim that her symptoms were totally disabling. The consultative medical
examiner, Dr. Bender, determined that Stephens had full fine motor activity of the
hands, no limitations in walking or climbing, only mild limitations in handling objects, and
moderate limitations in bending, pushing, pulling, lifting, and reaching due to neck and
back pain. (R. 342-346.) Dr. Nadella routinely noted that Stephens’ range of motion was
limited by pain, but that she had a normal gait and station, and could sit and stand
comfortably. (R. 287, 290, 292-93, 295, 298, 301, 308, 311, 313, 316, 322.) ALJ Weir
noted that Stephens failed to follow recommended treatments that might have relieved
her symptoms. Specifically, there was no indication she attended physical therapy as
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was recommended following a discectomy in 2006, or that she saw the pain
management specialist recommended by Dr. Nadella after he found she was not taking
her pain medication as prescribed. To the extent Stephens claimed an inability to
function due to a borderline intellect, the ALJ noted that she had been able to hold
various jobs for several years and had no cognitive difficulties performing her work in
the past. (R. 15.) The ALJ’s reasons are sufficiently specific to conclude that he
considered relevant factors in light of the entire evidentiary record in arriving at his
credibility determination.
*****
IT HEREBY IS ORDERED, that Defendant=s Motion for Judgment on the
Pleadings (Docket No. 13) is GRANTED;
FURTHER, that Plaintiff=s Motion for Judgment on the Pleadings (Docket No. 11)
is DENIED;
FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.
Dated: June 21, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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