Forbes v. Colvin

Filing 18

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 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 7/20/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD EMANUEL FORBES,
Plaintiff,

13-CV-207(MAT)
DECISION
and ORDER

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

Richard Emmanuel Forbes, ("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) and 1383(c)(3).
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. ##10, 12.
BACKGROUND
Plaintiff filed applications for DIB and SSI on June 11, 2010,
alleging he was unable to work beginning October 25, 2007 due to
back pain

and

initially

denied,

Administrative

hernia.

Law

T.

and
Judge

a

124-32,
hearing
(“ALJ”).

150.
was
T.

His

applications

requested

66-81,

82-83.

before

were
an

Plaintiff

appeared with his attorney before ALJ William E. Straub in Buffalo,
New York, on December 8, 2011. T. 24-55.
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration (“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 did not engage in substantial gainful activity since
the alleged onset date; (2) he had the severe impairments of
degenerative changes of the lumbar spine with low back pain,
headaches, and right ankle pain post calcaneal fracture; (3) his
impairments did not meet or equal the Listings set forth at
20 C.F.R. 404, Subpt. P, Appx. 1, and that he retained the residual
functional capacity (“RFC”) to perform light work; (4) Plaintiff
could not perform any past relevant work; and (5) Plaintiff was not
disabled as he was capable of making an adjustment to other work in
the national economy. T. 11-19.
The ALJ’s unfavorable determination was issued on January 10,
2012, and became the final decision of the Commissioner when the
Appeals

Council

denied

Plaintiff’s

request

for

review

on

January 10, 2013. T. 1-3. This action followed. Dkt.#1.
The Commissioner now moves for judgment on the pleadings
asserting that the ALJ’s decision was supported by substantial
evidence and should be affirmed. Comm’r Mem. (Dkt.#10-1) 10-12.

2

Plaintiff has filed a cross-motion alleging that the ALJ failed to
develop the record regarding Plaintiff’s back pain, improperly
weighed

the

opinion

of

a

consultative

examiner,

and

mischaracterized the evidence. Pl. Mem. (Dkt. #12-1) 8-20.
DISCUSSION
I.

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

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

Relevant Medical Evidence
A.

Treating Sources

In February, 2008, Plaintiff saw his treating physician at
Lifetime Health (“Lifetime”) for a right inguinal hernia that he
had for “some time.” T. 214. He stated that he was afraid to have
surgery. Id.
He returned to Lifetime in June, 2010 for complaints of back
pain. T. 211. He reported that it began two years prior and was of
moderate severity

and

was worsening.

Id.

He

described

it

as

stabbing and persistent. Id. Location was upper and lower back,
without radiating pain. Id. Symptoms were relieved by lying down
3

and topical ointment. Examination revealed tenderness in the lumbar
spine and no pain with motion. T. 212. Plaintiff was assessed with
backache, NOS, chronic, and was prescribed physical therapy and
Motrin. Id.
Two

months

later,

Plaintiff

returned

for

a

physical

examination, which was unremarkable. The doctor noted a history of
back pain due to manual labor, and that Plaintiff was going to
physical therapy twice per week. T. 205.
In

September,

2010,

Plaintiff

visited

Lifetime

for

dizziness/lightheadedness, aggravated by bike riding and diminished
on its own by sitting down. T. 250. He reported associated symptoms
of headache, neck stiffness, slurred speech, weakness, and right
arm numbness. T. 250. Brain imaging was ordered and reviewed the
following month. T. 250, 255. A magnetic resonance imaging (“MRI”)
test was unremarkable. T. 255.
On March 22, 2011, Plaintiff returned to Lifetime for blood in
stool, ringing in right ear, back pain, and tobacco use. T. 275.
The doctor assessed a work related injury to lower back. T. 276-77.
He was given a prescription to follow up with physical therapy.
T.

277-79.

Two

months

later,

complaints of back pain. T.
and

Plaintiff

was

Plaintiff

visited

again

upon

285. Physical examination was normal,

prescribed

physical

T. 286-87.

4

therapy

and

Ibuprofen.

Plaintiff attended physical therapy on June 20, 2011, where he
reported his pain as 9/10. T. 294. On examination, Plaintiff showed
limited range of motion and positive straight leg raising. Id.
B.

Consultative Examinations

Plaintiff

underwent

a

consultative

internal

medicine

examination on August 31, 2010 by Nikita Dave, M.D. T. 219. He
stated that he took Advil for his back pain and that physical
therapy helped. Id. He rated his pain at 4/10. Id. He had not had
any imaging done and did not have a specialist. Id. Plaintiff also
complained of intermittent headaches, and noted a diagnoses of
inguinal hernia from previous years, but he chose not to pursue
surgery. Id.
With

regard

to

his

daily

activities,

Plaintiff

cooked,

cleaned, did laundry, shopped, and performed self-care. T. 220.
Plaintiff’s physical examination was normal, except for pain
in

the

lumbar

spine

at

the

end

range

of

motion,

slightly

exaggerated tenderness, palpated at L4-5 midline and right lumbar
paraspinal at L5-S1. T. 222. An x-ray of the cervical spine
revealed mild disc thinning at C5-6, and an x-ray of the lumbar
spine showed disc thinning with sclerotic changes of the endplate
at L5-S1. T. 222, 225, 226. The consultative examiner diagnosed
Plaintiff with chronic axial low back pain with fair prognosis.
T. 223. She opined that Plaintiff may not be able to work in
outdoor climates, climb ladders, or lift/carry while on uneven

5

surfaces. T. 223. He would have mild to moderate limitations in
prolonged

sitting/standing/walking,

running,

jumping,

and

lifting/carrying/pushing/pulling greater than moderately weighted
objects. Id.
III. Non-Medical Evidence
Plaintiff was 43 years-old at the time of his hearing, had an
eighth-grade
received

education

some

and

vocational

general
training

equivalency
in

electrical

diploma,

and

wiring

and

maintenance. T. 29-30. He had held a variety of jobs in demolition,
construction, factory work, janitorial, and security. T. 31-32.
At the hearing, Plaintiff testified that although he could
likely perform a “light janitorial” job, he could not do so on a
full-time basis. T. 34, 44. He characterized his back pain as “very
intense” that lasted all day, almost every day, and it radiated to
his legs. T. 37, 46. The pain had gotten worse over time. T. 37. He
had pain between his shoulder blades and had trouble reaching. Id.
Plaintiff’s treatment included physical therapy, Tylenol, and
muscle relaxers. T. 34, 36. He told the ALJ that lying down was the
best therapy for him, and that sitting in a hot tub helped relieve
his pain. T. 49.
Plaintiff also testified to having a hernia with associated
pain, and he felt that he had symptoms of anxiety and depression,
but had never seen a psychiatrist or been treated for it. T. 40.

6

IV.

The decision of the Commissioner was supported by substantial
evidence.
A.

Development of the Record

Plaintiff first contends that the ALJ’s failure to develop
the

administrative

functional

record

capacity

resulted

determination

in

that

an

erroneous

was

not

residual

supported

by

substantial evidence. Pl. Mem. 8. Specifically, he argues that the
ALJ: (1) did not attempt to obtain additional physical therapy
records; (2) did not obtain a statement from Plaintiff’s treating
physical regarding his functional abilities and limitations; and
(3)

failed

to

order

an

additional

consultative

examination.

Pl. Mem. 8-14.
Both the ALJ and the claimant have obligations in assembling
the record. The claimant has the burden of producing evidence:
“[The claimant] must furnish medical and other evidence that [the
Commissioner] can use to reach conclusions about [the claimant's]
medical impairment(s).” 20 C.F.R. § 416.912(a). The ALJ must
affirmatively

develop

the

record:

“Even

when

a

claimant

is

represented by counsel ... the social security ALJ, unlike a judge
in a trial, must on behalf of all claimants ... affirmatively
develop the record in light of the essentially non-adversarial
nature of a benefits proceeding.” Moran v. Astrue, 569 F.3d 108,
112 (2d Cir. 2009).
At the hearing, the ALJ asked Plaintiff’s counsel about the
specific records in question, and counsel responded that the
7

facility had “searched their archives, their basement,” and they
could not “find anything.” T. 51. An ALJ need not seek additional
evidence from a medical source if he knows that “the source either
cannot or will not provide the necessary evidence.” 20 C.F.R.
§ 404.1520b(c)(1).
In any event, the record in this case included an otherwise
complete medical history with treatment notes and test results from
treating and consultative sources. The ALJ’s observation that
Plaintiff’s treatment for low back pain was “sporadic” remains
correct–he treated with his primary physician a handful of times in
two years, and did not complain of back pain in February, 2008.
T.

203-14.

Plaintiff

had

not

consulted

with

an

orthopedist,

neurosurgeon, or other specialist. T. 16. He was treated with
Motrin and physical therapy, and examination results were generally
normal. Id. The physical therapy progress notes from 2011 indicated
that Plaintiff was “doing well” at most sessions. T. 293-96. Thus,
even if Plaintiff’s physical therapy records from the previous year
were available, it is unlikely that these additional records would
have affected the ALJ’s decision, and any error in this regard
would be considered harmless. See Yeomas v. Colvin, No. 13-CV-6276,
2015 WL 1021796 (W.D.N.Y. Mar. 10, 2015) (ALJ’s failure to obtain
treatment records was harmless error where there was doubt as to
whether the records existed); see also Contreras v. Comm’r of Soc.
Sec., No. 13-CV-6474, 2014 WL 5149111 (S.D.N.Y. Oct. 14, 2014)

8

(“[I]n light of the consistent evidence in the record and the
extremely low likelihood that these . . . records would have
changed or significantly affected the ALJ's decision, it is not
clear that the ALJ committed legal error by not seeking them.”)
For these reasons, the Court finds that no legal error arose
out of the ALJ’s purported failure to request the physical therapy
records from 2010.
Also contrary to Plaintiff’s contention, the absence of a
function-by-function analysis of a treating source did not render
the record incomplete, as explicitly provided by the regulations:
“[m]edical reports should include . . . [a] statement about what
you can still do despite your impairment . . . the lack of the
medical source statement will not make the report incomplete.”
20 C.F.R. § 404.1513(b)(6)(emphasis added). Pl. Mem. 10.
The ALJ found that Plaintiff retained the residual functional
capacity to perform light work, which is defined as lifting no more
than 20 pounds, with frequent lifting or carrying of objects of up
to 10 pounds, and involves a good deal of walking or

standing or

sitting with some pushing and pulling of arm or leg controls.
20

C.F.R.

§§

404.1567(b),

416.967(b).

In

reaching

this

determination, the ALJ considered Plaintiff’s “sporadic” treatment,
conservative treatment regimen of anti-inflammatory medication and
physical therapy, the lack of evidence demonstrating stenosis or
other significant spinal abnormality, the physical examination

9

results, and Plaintiff’s activities of daily living. T. 15-17.
Notably, Plaintiff exhibited normal gait, full range of motion of
the lumbar spine, and negative straight leg raising during his
consultative examination. T. 17. Likewise, an examination by his
treating physician was essentially unremarkable. T. 286.
The ALJ also afforded the consultative examiner’s opinion that
Plaintiff had mild to moderate limitations in sitting, standing,
walking, running, jumping, and lifting, carrying, pushing, and
pulling greater than moderately weighted objects “some weight” as
it was inconsistent with Plaintiff’s admitted activities. T. 18,
223. Plaintiff testified that he stopped working because his job
ended, not due to his medical condition, and described his work
history as “inconsistent.” T. 17. As discussed in further detail
throughout the remainder of this Decision and Order, the ALJ’s
residual

functional

capacity

assessment

was

supported

by

substantial evidence, and the absence of formal opinion from
Plaintiff’s treating physician does not require remand. See Tankisi
v. Comm’r of Soc. Sec., 521 Fed.Appx. 29 (2d Cir. 2013) (“remand is
not always required when an ALJ fails in his duty to request
opinions,

particularly

where,

as

here,

the

record

contains

sufficient evidence from which an ALJ can assess the petitioner's
residual functional capacity.”)(citations omitted); accord Hogan v.
Colvin, No. 12-CV-1093, 2015 WL 667906, at *5-6 (W.D.N.Y. Feb. 17,
2015)(no duty to request opinion from treating source where reports

10

of consultative examiner, expert testimony, and clinical findings
by treating physicians were consistent with one another).
The ALJ was also not required to order additional testing,
such as an MRI or discogram of the lower back. Pl. Mem. 12.
The Second Circuit case Firpo v. Chater is analogous to the
present case in which the court found that additional testing was
not required where the balance of the evidence supported a finding
of no disability:
Nothing in the regulations supports Firpo's
contention that the ALJ was required to order
an orthopedic exam or a CT scan. SSA is not an
HMO, and the regulations do not undertake to
afford claimants the best available diagnostic
services, or treatment. The burden is on a
claimant to provide all relevant medical
evidence, and the ALJ is to order a
consultative exam only when this information
is not “sufficient” to make a decision. And
even if a consultative exam is ordered,
nothing in the regulations suggests that in
every case the consultative doctor must be a
specialist. Here, the evidence from the SSA
consultative exam was consistent with the
conclusion from Dr. Abreu (Firpo's own doctor)
that her disability was not severe enough to
prevent her from working.
100 F.3d 943, 1996 WL 49258, at *2

(2d Cir. 1996) (table). Thus,

while an ALJ has a duty to develop the administrative record, it
cannot be said that in the instant case, there was insufficient
evidence in the present record to determine whether Plaintiff was
disabled. Although Dr. Dave noted that Plaintiff did not have
recent imaging done and did not have a specialist, she reviewed the
x-ray results from the same day, which revealed mild disc changes
11

in the cervical and lumbar spines. Relying upon the x-rays and her
examination, she formed her opinion as to Plaintiff’s residual
functional capacity. T. 222-23. This is not a case, as Plaintiff
suggests, where there had been no diagnostic testing completed or
that such testing was too remote in time to enable the ALJ to make
a proper determination. See Parker v. Callahan, 31 F.Supp.2d 74, 78
n.10 (D.Conn. 1998)(“Courts have required ALJs to order x-rays to
ensure development of a full and fair administrative record, but
only when x-rays are entirely absent or have not been taken for a
long period of time.”) (collecting cases).
Accordingly, the ALJ in this case had no duty to further
develop the record regarding Plaintiff’s back impairment as there
were no obvious evidentiary gaps, and the record presented a
complete medical history. Perez v. Chater, 77 F.3d 41, 48 (2d Cir.
1996).
B.

Consultative Examiner Opinion

Plaintiff next argues that the ALJ erred in considering the
opinion of the consultative examiner because her findings were “so
vague as to make them useless.” Pl. Mem. 14.
In

Curry

superceded

by

v.

Apfel,

regulation

209
on

F.3d

117,

other

123

grounds

(2d
by,

Cir.

2000),

20

C.F.R.

§ 404.1560(c)(2), the Second Circuit found that a medical opinion
was too vague to permit the ALJ to determine whether the claimant
could perform sedentary work where the only evidence supporting the

12

ALJ's RFC determination was the opinion of one doctor who reported,
without additional information, that “plaintiff's impairment is:
lifting and carrying moderate; standing and walking, pushing and
pulling and sitting mild.” Curry, 209 F.3d at 123.
Here, Dr. Dave specifically opined that Plaintiff had mild to
moderate limitations in prolonged sitting/standing/walking, and
assessed limitations in lifting/carrying/pushing/pulling greater
than moderately weighted objects with regard to his lumbar spine
impairment. T. 223.

This, in addition to other objective evidence

in the record, supported the ALJ’s determination. The ALJ discussed
Plaintiff's

treatment

history

and

detailed

the

results

of

Dr. Dave’s physical examination. T. 16-18. He also noted that Dr.
Dave reported that Plaintiff had a normal gait and stance, was able
to walk on his heels and toes without difficulty, needed no
assistance with changing or getting on or off the examination
table, and was able to rise from a chair without difficulty. T. 17.
The ALJ further pointed out that Dr. Dave did not observe body
system abnormalities aside from slightly exaggerated responses to
tenderness testing, and Plaintiff had full strength and range of
motion in the lumbar spine, with some pain at the end of the range.
Id. The ALJ also noted that Dr. Dave observed negative straight leg
testing. Id. Dr. Dave did not observe any neurological deficits,
and Plaintiff’s joints were stable and nontender. Id. The ALJ then
assigned “some weight” to Dr. Dave’s opinion, on the basis that

13

Plaintiff’s admitted daily activities contradicted to some extent
the restrictive limitations assessed. T. 18.
Curry,

Dr.

Dave’s

conclusion

coupled

with

Thus, unlike in
the

other

medical

evidence were sufficient to support the inference that Plaintiff
could perform work at the light exertional level. See Tankisi, 521
Fed. Appx. at 34 (rejecting challenge to consulting physician’s
opinion

as

“incomplete

and

vague”

where

physician

provided

additional clarifying information and there was other medical
evidence to support the ALJ’s finding).
The Court finds that the ALJ properly assessed the opinion of
the consultative examiner and that his residual functional capacity
determination was supported by substantial evidence in the record.
C.

Consideration of the Evidence

Plaintiff
testimony

and

also
the

argues
medical

that

the

evidence

ALJ
in

mischaracterized

reaching

the

his

residual

functional capacity determination. Pl. Mem. 15-20.
It is well-settled that an ALJ cannot “cherry pick” only the
evidence from medical sources that support a particular conclusion
and ignore the contrary evidence. See, e.g., Royal v. Astrue,
No. 11–CV–456, 2012 WL 5449610, at *6 (N.D.N.Y. Oct. 2, 2012)
(while ALJs are entitled to resolve conflicts in the record, they
cannot pick and choose only evidence from the same sources that
supports a particular conclusion) (citing, inter alia, Fiorello v.
Heckler, 725 F.2d 174, 175–76 (2d Cir. 1983)).

14

Plaintiff states that he “testified to a great many problems
taking care of his needs and with his activities of daily living.”
Pl. Mem. 16. It is true that in both the Function Report and his
hearing testimony, Plaintiff reported upper back pain when cutting
his hair, discomfort when using the bathroom, and an inability to
stand on one foot. T. 157-58. He also had trouble reaching, needed
to take frequent breaks from household chores and work, and could
walk

for

about

three

blocks

and

sit

comfortably

for

about

30 minutes. T. 34-50. However, the ALJ reasonably concluded that
these activities were consistent with the ability to perform light
work, as Plaintiff also reported frequently riding a bicycle,
completing

household

chores

such

as

washing

dishes,

cooking,

cleaning, doing laundry, shopping, and performing self-care. T. 17,
158-59,

220.

examining

The

ALJ

physicians,

relied
the

upon

clinical

Plaintiff’s
findings,

statements

and

the

to

hearing

testimony in reaching his conclusion. T. 14, 17.
Moreover, the ALJ properly noted that Plaintiff was able to
sit for the duration of the hearing without changing position.
T. 17. See, e.g., Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir.
1998)(observations

of

claimant's

physical

demeanor

should

be

assigned only “limited weight” in social security disability case,
but there is no per se legal error where ALJ considers physical
demeanor as one of several factors in evaluating credibility).
Moreover,

the

ALJ

properly

found

15

that

Plaintiff’s

subjective

complaints not fully credible on the basis of his admitted daily
activities, poor work history, the objective medical evidence, lack
of significant medical treatment for his impairments, lack of
consultation by specialists, and the credible opinion evidence.
T. 17-18. Given the ample record evidence, the ALJ reasonably
concluded that Plaintiff’s symptoms did not preclude substantial
gainful activity. See Prince v. Astrue, 490 Fed. Appx. 399, 400 (2d
Cir. 2013) (“While Prince definitely reported pain, in both his
testimony

and

some

supporting

medical

documents,

‘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.’”)(quoting Dumas v. Schweiker, 712 F.2d 1545, 1552
(2d Cir. 1983)).
Plaintiff

also

asserts

that

the

ALJ

erred

in

noting

Plaintiff’s negative straight leg raising tests. Pl. Mem. 19,
T. 16-17. However, consultative examiner Dr. Dave noted this
finding in her report. T. 222. Even assuming Plaintiff’s reading of
the

handwritten

physical

therapy

notes

from

2011

indicating

positive straight leg raising is correct, it is well-settled that
an ALJ is not required to discuss every piece of evidence in his
decision, see Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 448
(2d Cir. 2012); and it is for the Commissioner, not the court, to
weigh conflicting evidence in the record. See Veino v. Barnhart,

16

312 F.3d 578, 588 (2d Cir. 2002). The ALJ thoroughly considered the
medical records, and straight leg raise testing was but one example
contained in the ALJ’s larger discussion of Plaintiff’s generally
unremarkable examination findings. T. 13-18. Moreover, there is no
evidence of positive straight leg raise tests prior to 2011,
despite an alleged onset date of October, 2007, nor does he cite to
any evidence indicating that the positive findings establish an
inability to perform light work. Pl. Mem. 10, 19-20. Indeed, the
ALJ acknowledged that Plaintiff suffered lower back pain, but the
objective medical evidence and other evidence in the record was
consistent with the residual functional capacity assessment. T. 1618.
Plaintiff’s remaining arguments regarding the ALJ's purported
mischaracterization of the evidence fail for the same reasons
stated above. Pl. Mem. 19-20. The Court reminds Plaintiff that a
reviewing court “may only set aside a determination which is based
upon legal error or not supported by substantial evidence.” Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Here, substantial
evidence in the record supported the ALJ's detailed decision,
including his discussion of the medical evidence and Plaintiff’s
daily activities.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Dkt.#10) is granted, and Plaintiff’s

17

cross-motion (Dkt.#12) is denied, and 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
July 20, 2015

18