Muehleisen v. Commissioner of Social Security
Filing
13
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 8 Commissioner's Motion for Judgment on the Pleadings; denying 9 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 11/17/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL MUEHLEISEN,
Plaintiff,
12-cv-1182(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.
INTRODUCTION
Plaintiff Michael Muehleisen ("Plaintiff"), who is represented
by counsel, brings this action pursuant to the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying his
application
for
Disability
Insurance
Benefits
(“DIB”)
and
Supplemental Security Income (“SSI”). 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. ##8, 9.
BACKGROUND
On January 21, 2010, Plaintiff filed applications for DIB and
SSI alleging that he was disabled beginning January 1, 2000, due to
left shoulder injury, nerve damage, and neck injury. T. 155-65,
187-88. Those
applications
were
denied
on
May
18,
2010,
and
Plaintiff subsequently requested a hearing before an Administrative
Law Judge (“ALJ”). T. 73-80, 83-85. Plaintiff’s video hearing was
conducted before ALJ Roxanne Fuller on August 22, 2011. T. 40-64.
Independent Vocational Expert (“VE”) Dian L. Haller also testified
at the hearing. T. 59-63.
The ALJ issued a written decision on
September 7, 2011, finding that Plaintiff was not disabled. T. 1939.
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the SSA,
see 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249,
2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five
steps), the ALJ found: (1) Plaintiff had not engaged in substantial
gainful activity since the alleged onset date; (2) he had the
severe
impairments
of
degenerative
disc
disease,
multi-level
spondylosis, and facet osteoarthrosis; (3) his impairments did not
meet or equal the Listings set forth at 20 C.F.R. 404, Subpart P,
Appendix 1, and that Plaintiff retained the residual functional
capacity (“RFC”) to perform light work with varying limitations in
pushing and pulling, climbing, stooping, reaching, handling, gross
manipulation,
and
fine
manipulation;
(4)
Plaintiff
could
not
perform his past relevant work as a material handler, roofer, and
construction worker; and (5) Plaintiff was not disabled as he was
capable
of
making
an
adjustment
to
other
work
existing
in
significant numbers in the national economy. T. 24-35.
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
2
for review on October 2, 2012. T. 1-6. Plaintiff then filed this
timely action. Dkt.#1.
Plaintiff moves for judgment on the pleadings on the following
grounds: (1)
the
ALJ erred
when
he
found
Plaintiff’s mental
impairments non-severe; (2) the RFC determination was erroneous;
(3) the ALJ applied the improper legal standard in assessing
Plaintiff’s credibility; and (4) the testimony of the VE did not
constitute substantial evidence. Pl. Mem. (Dkt.#9-1) 10-20. The
Commissioner also moves for judgment on the pleadings on grounds
that the ALJ’s decision is correct and is supported by substantial
evidence. Comm’r Mem. (Dkt.#8-1) 15-19.
For the following reasons, Plaintiff’s motion is denied and
the Commissioner’s motion is granted.
DISCUSSION
I.
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g) (2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
3
findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S.
121, 149 (1997).
When
determining whether
the
Commissioner's
findings
are
supported by substantial evidence, the Court's task is “to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits
the scope of the Court's review to two inquiries: determining
whether the Commissioner's findings were supported by substantial
evidence in the record as a whole, and whether the Commissioner's
conclusions
are
based
upon
an
erroneous
legal
standard.
Green–Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003); see
also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not
try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be granted
where the material facts are undisputed and where judgment on the
merits is possible merely by considering the contents of the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
4
(2d Cir. 1988). A party's motion will be dismissed if, after a
review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
II.
Medical Evidence
A.
Treatment for Physical Impairments
On August 27, 2009, Plaintiff was evaluated by treating
physician Michael J. Ostempowski, M.D., who noted a history of back
pain and trouble with the left shoulder dating back 8 to 10 years.
T. 251. Dr. Ostempowski observed muscle atrophy in Plaintiff’s
upper left extremity, with “reasonably good strength” in the left
shoulder and intact distal neurovascular status was intact. Id. A
left shoulder x-ray showed significant cervical spinal disease but
no significant bony pathology. Id.
Plaintiff underwent an EMG/nerve conduction study in September
2009, which revealed a moderate-to-marked degree of old denervation
in nearly every muscle of the left upper extremity. T. 241. The
reviewing neurologist, Valerie Vullo, M.D., reported that there
appeared to be some acute/ongoing denervation in the left biceps,
but not in any other muscles, which could possibly be caused by
multilevel cervical radiculopathy or polyneuropathy. Id.
An MRI
two days later showed severe multilevel spondylosis and facet
osteoarthrosis, reversal of normal lordosis C3-7, and pronounced
5
disc disease at the C5-6 disc level where there was a large midline
focal spondylitic protrusion indenting the thecal sac and mildly
flattening
the
ventral
cord
and
severe
bilateral
foraminal
stenosis. T. 247.
At
a
follow-up
examination
on
September
24,
2009,
Dr. Ostempowski noted that Plaintiff had muscle atrophy, but good
range of motion of his left shoulder. T. 249. He recommended that
Plaintiff see a spine surgeon for evaluation. Id.
Orthopedic surgeon Anthony Leone, M.D., examined Plaintiff on
October 2, 2009, for neck and left arm pain. T. 267. Plaintiff had
full strength, sensation, and reflexes in the upper extremities and
full
digital
motion
and
full
range
of
motion
in
his
hands
bilaterally. T. 268. He had good rotation of his neck and some
atrophy of the left upper arm. Id. Dr Leone recommended ibuprofen,
a muscle relaxant, and physical therapy to strengthen and stabilize
the cervical spine. Id.
Plaintiff received physical therapy for his cervical spine and
left
upper
extremity
radiculopathy
from
October
9
through
November 27, 2009. During that time, he attended four sessions,
failed to appear at two sessions, and cancelled three sessions.
T. 257. The physical therapist noted that while his cervical range
of motion had increased, his symptoms remained the same. Id.
6
On December 2, 2009, Dr. Leone noted that on examination
Plaintiff had “a fairly good” range of motion. He recommended an
epidural steroid injection for Plaintiff’s continued pain. T. 266.
Plaintiff
received
an
epidural
steroid
injection
in
his
cervical spine on December 23, 2009, and another injection in his
lumbar spine on January 27, 2010. Both procedures were tolerated
well. T. 264, 279.
Internist Nikita Dave, M.D., consultatively examined Plaintiff
on May 3, 2010. Plaintiff complained of neck pain for the past year
and reported a history of seizures. He stated that he cooked, took
care of personal needs, watched television, listened to the radio,
read,
and
spent
time
with
his
friends
daily.
T.
327.
Upon
examination, Plaintiff had reduced range of motion of the cervical
spine with full range of motion in the lumbar spine and negative
straight leg raising test. T. 329. He had reduced range of motion
and atrophy of his left shoulder and near full strength in the left
upper extremity. Id.
Dr.
Dave
opined
that
Plaintiff
had
moderate
to
severe
limitations for repetitive gross motor manipulation through the
left upper extremity, particularly the shoulder; should not lift,
carry, push, or pull anything greater than light objects; and
should avoid repetitive turning, twisting, and sudden repetitive
movements
of
the
cervical
spine.
Id.
The
doctor
added
that
Plaintiff should not climb ladders, work around heights, or work
7
with heavy or dangerous equipment due to his reports of seizures,
which she noted he had never been tested or treated for. T. 327,
330.
Plaintiff saw Dr. Chinnah Ramgopal in June, 2010 for left
shoulder and left-side neck pain. Dr. Ramgopal prescribed Lortab
for Plaintiff’s pain. T. 399-400.
Dr. Leone completed a Physical Residual Functional Capacity
Questionnaire in October, 2010, in which he stated that Plaintiff’s
pain
would
frequently
interfere
with
the
attention
and
concentration needed to perform simple work tasks. T. 351. He
opined
that
Plaintiff
could
tolerate
moderate
stress,
could
sit/stand/walk less than 2 hours in an 8-hour workday, and that
Plaintiff needed a job that permitted him to shift positions at
will from sitting to standing to walking. Id. Plaintiff could
frequently lift less than 10 pounds and occasionally lift up to
10 pounds. Id. The doctor further indicated that Plaintiff could
occasionally twist, stoop, crouch, and climb stairs, and rarely
climb ladders, and could be absent more than four days per month.
Id. Dr. Leone noted that he had not seen Plaintiff in about
6 months. Id.
An April 29, 2011 MRI of Plaintiff’s cervical spine showed
“multilevel and multifactorial encroachment on the thecal sac that
causes mild C5-C6 as well as C6-C7 central stenosis and C5-C6
flattening of the cord’s ventral margin.” T. 403. The study also
8
revealed
“multiple
described
and
levels
multilevel
of
severe
recess
foraminal
encroachment
compromise
that
is
as
most
significant and severe at C6-7 on the left.” Id.
Dr. Leone recommended cervical fusion surgery for Plaintiff on
July 20, 2011.1 T. 410. Two days later, an MRI of Plaintiff’s left
shoulder indicated “significant edema within the proximal humeral
metaphysis and diaphysis, cannot exclude insufficiency fracture or
other pathology, correlation with x-rays and nuclear medicine bone
scan suggested.” T. 412. The study also showed a 12mm intraosseous
cyst of the anatomic neck of the humerus, and a complex ganglion
cyst extending superiorly from the spinoglenoid notch. T. 413.
In August, 2011, Dr. Ramgopal noted that Plaintiff had no
masses
in
his
neck
and
no
edema,
and
refilled
Plaintiff’s
prescription for Lortab. T. 499.
B.
Mental Health Treatment
Plaintiff was consultatively examined by psychologist Alan
Dubro, Ph.D., on May 3, 2010, during which he reported that pain
medication helped his neck pain to a limited extent, and that the
pain
exacerbated
his
depression
and
irritability.
T.
321.
A
transient ischemic attack four years prior left him with weakness
in his left arm. Id. He also reported a history of alcohol abuse.
Id. Plaintiff’s mental examination was largely unremarkable, save
1
Plaintiff had not yet had his surgery by the date of the
disability hearing. T. 47.
9
for
impaired
processing
concentration
difficulties,
and
memory
and
he
secondary
to
struggled
cognitive
with
simple
multiplication and division problems. T. 320-23. Dr. Dubro opined
that Plaintiff could follow and understand simple instructions and
that his concentration and attention were moderately impaired.
T. 323. Plaintiff would have moderate difficulties in learning new
tasks, could perform daily tasks independently on a regular basis,
would
have
moderate
difficulties
in
performing
complex
tasks
independently, would have some difficulty in interacting with
others, and would have moderate difficulties in his ability to
regularly attend to a routine and maintain a schedule. Id.
On
May
17,
2010,
Dr.
Cheryl
Butensky,
a
state
agency
psychological consultant reviewed the evidence of record and opined
that Plaintiff had moderate limitations in the following workrelated areas: (1) ability to understand, remember, and carry out
detailed instructions, (2) maintain attention and concentration for
extended
periods,
(3)
perform
activities
within
a
schedule,
(4) work in coordination with others without being distracted,
(5) complete a normal workday and workweek without interruptions
from psychologically-based symptoms, (6) interact appropriately
with the general public, (7) accept instructions and respond
appropriately to criticism, (8) respond appropriately to changes in
the work setting, (9) be aware of normal hazards, and (10) set
realistic goals or make plans independently of others. T. 346-47.
10
Dr. Butensky opined that Plaintiff could perform simple job tasks,
sustain attention and concentration for simple tasks, had mild-tomoderate limitations in his ability to interact appropriately with
coworkers and supervisors, and adapt to changes in a routine work
setting. She indicated that Plaintiff would not be significantly
limited in every other area. T. 346-47.
Plaintiff was also treated for alcohol and marijuana abuse at
Sisters of Charity Hospital from February through July, 2011.
T. 417-97. There, he reported that he fished, bowled, camped,
hunted, went bird watching, and picked flowers and made floral
arrangements. T. 436, 438. He indicated that he spent time with his
family and his girlfriend daily, and that he was interested in
computer training. T. 436-38. The attending physician reported that
Plaintiff’s
cognitive
functioning
was
normal,
he
was
fully
oriented, and communicated well with appropriate behavior and
affect. T. 437.
III. Non-Medical Evidence
Plaintiff alleged that he became unable to work on January 1,
2000, due to a left shoulder injury, nerve damage, and neck injury.
T. 187. He previously worked as a truck loader and roofer from 1997
through 2007. Plaintiff is a high school graduate. T. 44.
In a Function Report form, Plaintiff stated that he lived
alone in his apartment, watched television, read, socialized with
friends
and
family,
and
cared
11
for
his
pets,
and
had
some
difficulties with his personal needs.
T. 198-203. He indicated
that he had problems paying attention due to pain, but could follow
spoken and written instructions, and had no problem getting along
with people. T. 204.
Plaintiff testified at his disability hearing that his average
pain level in his neck and shoulder was 9 out of 10. T. 47.
Dampness, rain, and cold exacerbated his pain. T. 50. He stated
that Lortabs “don’t really seem to work,” and that physical therapy
“didn’t work at all.” Id. Plaintiff told the ALJ that he would need
to change positions from sitting to standing every hour, could walk
about one hour before needing rest, and could lift about 10 pounds.
T. 52-3. Plaintiff’s girlfriend or sister would occasionally help
him with chores, cooking, grocery shopping, and laundry. T. 55.
The ALJ also heard testimony from VE Dian L. Haller. T. 59-64.
She posed a hypothetical regarding an individual of Plaintiff’s
age, work experience, and education, who could perform light work
with the following limitations: (1) never pushing or pulling with
the left arm and frequently pushing or pulling with the right
dominant
arm;
(2)
occasionally
climbing
ramps
or
stairs;
(3) occasionally stooping; (4) never climbing ladders, ropes, or
scaffolds; (5) never reaching overhead with the left arm and
frequently
reaching
overhead
with
the
right
arm;
and
(6) occasionally handling and fingering objects with the left hand
and frequently handling and fingering objects with the right hand.
12
T. 60-61. The VE responded that such an individual could perform
work as a gate guard, rental clerk, and usher. T. 61-62.
The ALJ posed a second hypothetical that involved the same
facts except the individual could occasionally push/pull with the
right arm, occasionally reach and reach overhead with the right
arm, never handle or finger objects with the left hand, and
occasionally handle and finger objects with the right hand. T. 62.
In response, the VE stated that the individual could not perform
any jobs, and further testified that if the individual required
unscheduled breaks two to three times per day at 10 minutes each
time, the
individual
could
not
perform
work in
the
national
economy. T. 63.
IV.
The Decision of the Commissioner that Plaintiff was not
disabled is supported by substantial evidence.
A.
Severity of Impairment
The Act defines disability is the “inability to engage in any
substantial
gainful
activity
by
reason
of
any
medically
determinable physical or mental impairment which can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
Plaintiff first contends that the ALJ erred when he found
Plaintiff’s mental impairments non-severe. Pl. Mem. 10-13. For an
impairment to be considered severe, it must more than minimally
limit the claimant's functional abilities, and it must be more than
a
slight
abnormality.
20
C.F.R.
13
§
416.9249(c).
Further,
the
Regulations provide that where a claimant has alleged multiple
impairments, the ALJ is obligated to consider the disabling effect
of the combination of the impairments without regard to whether any
one impairment, if considered separately, would be disabling. See
20
C.F.R.
416.969(a)
§§
404.1523,
(discussing
416.923;
combined
see
also
exertional
§§
404.1569a(d),
and
nonexertional
limitations); Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995).
“In such instances, it is the duty of the [ALJ] to make specific
and well-articulated findings as to the effect of the combination
of impairments and to decide whether the combined impairments cause
the claimant to be disabled.” Bowen v. Heckler, 748 F.2d 629, 635
(11th Cir. 1984), quoted in Costanzo v. Apfel, 2000 WL 575660, at
*3 (W.D.N.Y. Feb. 8, 2000).
Here, the ALJ found that Plaintiff’s medically determinable
mental impairments of substance abuse, mood disorder, and cognitive
disorder, considered singly and in combination, did not cause more
than minimal limitation in his ability to perform basic mental work
activities
and
were
therefore
non-severe.
T.
24.
Substantial
evidence in the record supports the ALJ's determination.
At the outset, the Court points out that the ALJ incorrectly
determined that “the record supports that the claimant’s substance
abuse is in remission.” T. 24. Treatment notes from Sisters of
Charity indicate that he used illicit substances sporadically
throughout his chemical dependancy treatment, and he testified at
14
his hearing on August 22, 2011 that he drank two beers the night
before but had been “good on the drinking” prior to that. T. 56,
417-96.
Other
reports
assess
Plaintiff
as
being
in
partial
remission. T. 324, 327, 512. This is indicative that Plaintiff’s
substance abuse not in full remission as stated. Nonetheless,
because the record indicates this impairment imposed no more than
minimal limitation on Plaintiff's ability to perform work-related
activities,
testimony
the
nor
ALJ
the
properly
found
that
medical
evidence
neither
indicates
Plaintiff's
significant
work-related limitations due to mental impairments. T. 24-25.
At the time of his consultative examination with Dr. Dubro,
Plaintiff had never received any psychiatric treatment. T. 320. His
own statements indicate that his limitations in daily living were
primarily due to his physical impairments. T. 55, 199-205, 320-25.
With regard to his activities of daily living, Plaintiff reported
that he socialized, took public transportation, watched television,
read, and took care of most of his personal needs. T. 199-205, 323.
Dr. Dubro’s assessment of cognitive disorder is not otherwise
supported by the record, was based upon a one-time evaluation, and
appears to have relied heavily on Plaintiff’s self-report of
symptoms. To that end, the ALJ rejected the restrictive opinions of
the consultative psychological examiner and the state agency review
physician, which she was entitled to do. Neither Dr. Dubro nor
Dr. Butensky was a treating physician, and as such their opinions
15
were
not
entitled
to
any
special
weight.
See
20
C.F.R.
§ 404.1527(c)(2).
The ALJ also properly applied the special technique to be
followed when dealing with mental impairments. See 20 C.F.R.
§ 404.1520a. In considering the four broad functional areas, she
noted that Plaintiff had strong activities of daily living, which
included self-care, socializing, and engaging in hobbies. T. 25.
With respect to social functioning, Plaintiff stated that he
becomes easily irritated and annoyed due to his pain, however he
spends the majority of his time with his girlfriend, family, and
friends.
Id.
The
ALJ
acknowledged
that
Plaintiff
had
mild
limitations in maintaining concentration, persistence, or pace, and
had no episodes of decompensation of extended duration. Id. In
employing the so-called “special technique,” the ALJ found that
Plaintiff’s mental impairments caused no more than mild limitations
in any of the first three functional areas and no episodes of
decompensation, commanding a finding of non-severe impairments.
This is contrary to Plaintiff’s assertion that “the ALJ did not
consider any mental impairments throughout the evaluation . . . .”
Pl. Mem. 11.
The
ALJ’s
omission of
further
consideration
of
Plaintiff’s non-severe mental impairments at the RFC stage thus
amounts to harmless error. See Insel v. Colvin, Civil Action
No. 5:13–903, 2014 WL 4804282, at *9 (N.D.N.Y. Sept. 26, 2014).
16
Based on the evidence cited above and in the record as a
whole, the ALJ's finding that Plaintiff's mental impairments were
not severe was supported by substantial evidence.
B.
Treating Source Opinion
Plaintiff next contends that the ALJ erred in giving no weight
to the opinion of treating physician Dr. Leone. Pl. Mem. 13-17.
Under the Commissioner's regulations, a treating physician's
opinion is entitled to controlling weight, provided that it is
well-supported in the record:
If we find that a treating source's opinion on
the issue(s) of the nature and severity of
your
impairment(s) is
well-supported
by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent
with the other substantial evidence in your
case record, we will give it controlling
weight.
20 C.F.R. § 416.927(d)(2); 20 C.F.R. § 404.1527(d)(2). However,
“[w]hen other substantial evidence in the record conflicts with the
treating physician's opinion ... that opinion will not be deemed
controlling. And 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)).
When an ALJ refuses to assign a treating physician's opinion
controlling
weight,
he
must
consider
a
number of
factors
to
determine the appropriate weight to assign, including: (i) the
17
frequency of the examination and the length, nature and extent of
the treatment relationship; (ii) the evidence in support of the
treating physician's opinion; (iii) the consistency of the opinion
with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to the Social Security
Administration's attention that tend to support or contradict the
opinion. See 20 C.F.R. § 404.1527(c).
The Second Circuit recently
held that it does not require a “slavish recitation of each and
every factor [provided in 20 C.F.R. § 404.1527(c)] where the ALJ’s
reasoning and adherence to the regulation are clear.” Atwater v.
Astrue, No. 12-902-cv, 512 Fed. Appx. 67 (2d Cir. Feb. 21, 2013)
(unpublished opinion).
In rejecting Dr. Leone’s functional limitations assessment,
the ALJ reasoned that it was “inconsistent with the claimant’s
objective medical record . . . and his ability to perform his
activities of daily living.” T. 33.
Prior to concluding that Dr. Leone’s RFC limitations were too
restrictive, she engaged in a thorough discussion of the medical
evidence,
noting
Dr.
Leone’s
own
examination
findings,
which
included: (1) full neck extension and almost full flexion bringing
his chin down to his chest and full rotation to the right and 45degree rotation to the left; (2) 1 inch of atrophy in the left
upper arm as compared to the right; (3) 140 degrees of forward
flexion and abduction in the shoulder (normal range of motion);
18
(4) strength, sensation, and reflexes in the upper extremities were
otherwise normal; (5) full digital motion and full range of motion
in the hands; (6) “fairly good” range of motion at a follow-up
appointments,
(7)
with
administration
subjective
of
an
complaints
epidural
steroid
of
pain;
injection
with
and
no
complications. T. 29-30. The doctor also prescribed a conservative
course of treatment that included ibuprofen, muscle relaxants, and
physical therapy. T. 29. These notes are inconsistent with his
finding
that
Plaintiff’s
neck
movements
were
restricted
to
occasional looking up/down, turning left or right, and holding the
head in a static position. T. 353.
Likewise, Dr. Leone’s opinion that Plaintiff was limited in
fingering,
reaching,
and
handling
on
the
right
side
was
inconsistent with the objective medical evidence, such as x-rays
showing normal findings in the right hand and MRI and EMG testing
revealing a markedly abnormal study in the left upper extremity.
T. 251, 306.
Even though the ALJ found Dr. Leone’s RFC limitations
unduly restrictive, she accounted for Plaintiff’s “well-documented”
left arm pain and therefore tailored his RFC to reflect limitations
in pushing/pulling with the left arm, occasional climbing of ramps
or
stairs,
occasional
stooping,
never
climbing
ladders/ropes/scaffolds, never reaching or overhead reaching with
the left arm, and only occasional handling of objects with the left
hand. T. 31, 32. Finally, the opinion of the physical consultative
19
examiner noted moderate-to-severe limitations for repetitive gross
motor
manipulation
through
the
upper
left
extremity
and
restrictions pushing or pulling with the left arm. T. 31, 330. This
opinion was accorded some weight by the ALJ, and was properly
relied upon in determining Plaintiff’s RFC.
Here, the ALJ applied the appropriate legal standards when she
considered the full record and properly evaluated Plaintiff's
treating
source
opinions.
Thus,
her
decision
was
based
upon
substantial evidence.
C.
Plaintiff’s Credibility
Plaintiff argues that the ALJ failed to apply the appropriate
legal standards set forth in Social Security Ruling (“SSR”) 96-7p
and 20 C.F.R. §§ 416.929, 404.1429 in assessing his credibility.
Pl. Mem. 17-20.
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
is
available.
20
C.F.R.
§ 416.929(c)(2). If the claimant's symptoms suggest a greater
20
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. Thus, it is well within the Commissioner's
discretion to evaluate the credibility of Plaintiff's testimony and
render an independent judgment in light of the medical findings and
other evidence regarding the true extent of symptomatology. Mimms
v. Sec’y, 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v. Shalala,
882 F.Supp. 1413, 1419 (S.D.N.Y. 1995).
Therefore,
testimony
“[i]f
the
concerning pain
ALJ
and
decides
other
to
reject
symptoms,
he
subjective
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, Valente v. Sec’y of HHS, 733 F.2d 1037, 1045
(2d Cir. 1984); footnote omitted).
Here, the ALJ he also set forth a detailed discussion of the
evidence in reaching the conclusion that Plaintiff’s statements
regarding his symptoms and limitations were not credible to the
21
extent alleged. Namely, Plaintiff’s daily activities and stated
hobbies belied Plaintiff’s allegations of total disability. T. 2633, 58, 199, 203, 323, 327, 436, 438. The ALJ pointed out that
although Plaintiff alleged a disability onset date of January 1,
2000, the medical records indicated that he did not seek treatment
for his impairments until September 6, 2007, and further noted a
subsequent year-and-a-half gap between medical appointments. T. 2728. Plaintiff’s non-compliance with physical therapy further casts
doubt upon his subjective complaints of pain.2 T. 29.
The ALJ went
on to discuss how, although Plaintiff’s left shoulder and neck pain
were
established
by
the
evidence
of
record,
his
remaining
complaints, including those affecting his lower extremities, were
unsubstantiated by the medical record. T. 31. Plaintiff alleges
that the ALJ simply overlooked Plaintiff’s testimony that he spends
most days lying on the couch (Pl. Reply Mem. (Dkt.#11) 10),
however, the Court notes that special deference is afforded to the
ALJ, who had the opportunity to observe the witness' demeanor while
testifying. See Yellow Freight Sys. Inc. v. Reich, 38 F.3d 76, 81
(2d Cir. 1994).
2
Though Plaintiff suggests that his failure to regularly
attend physical therapy appointments was because he “did not
drive,” (Pl. Mem. 16, T. 58) the record indicates Plaintiff’s
inability to drive was not due to his allegedly disabling
symptoms, but because his driver’s license was lost to DWI
proceedings. T. 201, 321.
22
It is important to note that “disability requires more than
mere inability to work without pain. To be disabling, pain must be
so severe, by itself or in conjunction with other impairments, as
to
preclude
any
substantial
gainful
employment.
Otherwise,
eligibility for disability benefits would take on new meaning.”
Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983). The Court
therefore finds that the ALJ's credibility determination is proper
as a matter of law, and is supported by substantial evidence in the
record.
D.
VE Testimony
Plaintiff also argues that the ALJ erred in relying on the
VE's testimony because it was based on an incomplete hypothetical.
Pl. Mem. 20.
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
23
a claimant's impairments, limitations and restrictions, or is
otherwise
inadequate,
a
vocational
expert's
response
cannot
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).
In determining Plaintiff’s RFC, the ALJ evaluated the complete
record,
including
both
medical
and
non-medical
evidence,
and
afforded partial weight to the consultative examiner’s assessed
physical limitations. In doing so, she determined that Plaintiff
could never push or pull with the left arm; could only occasionally
climb ramps or stairs; never climb ladders, ropes, or scaffolds;
occasionally stoop; never reach or overhead reach with the left
arm; and only occasionally handle and finger objects. T. 32. Thus,
the RFC determination accommodates his established left arm pain.
His diagnoses of degenerative disc disease, multilevel spondylosis,
and facet osteoarthritis did not preclude him from performing light
work with the aforementioned limitations. The treatment notes show
that although Plaintiff had a reduced range of motion in his left
shoulder, he had full strength in his upper extremities and was
neurologically intact, had full digital motion and full range of
motion in his hands bilaterally, normal gait, full range of motion
in his lumbar spine, and a negative straight leg raising test.
Further, Plaintiff had full range of motion of his right shoulder
and full range of his elbows, forearms, and wrists bilaterally. He
24
had full grip strength bilaterally and full strength in his lower
extremities. T. 251, 268, 329. The objective findings thus support
the ALJ’s assessed limitations. In contrast, Dr. Leone’s assessment
of significant limitations in reaching, handling, and fingering was
inconsistent with the aforementioned evidence, as well as with
x-rays of his right hand and left shoulder. T. 251, 306. As such,
the ALJ properly determined Plaintiff's RFC in this case, which is
supported by substantial evidence in the record.
Because the hypothetical questions were based upon an RFC that
realistically and accurately described Plaintiff's limitations, the
VE's testimony provided substantial evidence to support the finding
of no disability. See Christina v. Colvin, No. 12–CV–963, 2014 WL
1279035 (W.D.N.Y. Mar. 27, 2014).
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on
the pleadings (Dkt.#9) is denied, and the Commissioner's crossmotion for judgment on the pleadings (Dkt.#8) is granted. The
Complaint is dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
November 17, 2014
25
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