Hall v. Colvin
Filing
16
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 13 Commissioner's Motion for Judgment on the Pleadings; denying 14 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 12/9/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANGELA E. HALL,
Plaintiff,
13-CV-0292(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.
INTRODUCTION
Plaintiff Angela E. Hall ("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 her
applications
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. ##13, 14.
BACKGROUND
Plaintiff
applied for
DIB
and
SSI
on December
2, 2008,
alleging disability beginning May 14, 2007 due to congestive heart
failure, depression, bronchitis, asthma, carpal tunnel syndrome
(“CTS”), anemia sickle cell trait, thyroid problems, and lung
problems. T. 40, 212.
Her claims were initially denied, and a
hearing was requested before an Administrative Law Judge (“ALJ”) on
December 18, 2009. T. 98-104. A video hearing was held on March 9,
2011 before ALJ Scott Staller. T. 61-89. Following the hearing,
during which Plaintiff and a Vocational Expert (“VE”) testified,
the ALJ issued a written decision on March 24, 2011 finding
Plaintiff not disabled. T. 40-49.
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social
Security
Administration
(“SSA”),1
the
ALJ
found
that:
(1) Plaintiff had not engaged in substantial gainful activity since
the
alleged
onset
date;
(2)
she
suffered
from
the
severe
impairments of chronic obstructive pulmonary disease (“COPD”), CTS,
hypertension,
anemia,
congestive
heart
failure,
obesity,
depression, and anxiety; (3) her severe impairments did not meet or
equal the Listings set forth at 20 C.F.R. § 404, Subpart P,
Appx. 1, and Plaintiff retained the residual functional capacity
(“RFC”) to perform light work with restrictions in reaching,
handling, or fingering with both upper extremities; (4) Plaintiff
was capable of performing her past relevant work as a housekeeper
and laundry worker because this work was not precluded by her RFC;
(5) Plaintiff had not been under a disability from May 14, 2007,
through the date of the ALJ’s decision. T. 40-49.
1
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).
-Page 2-
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on January 24, 2013. T. 1-4. Plaintiff then filed this
timely action. Dkt.#1.
The Commissioner now moves for judgment on the pleadings on
the grounds that the ALJ's decision is correct, is supported by
substantial evidence, and was made in accordance with applicable
law. Comm’r Mem. (Dkt.#13-1) 13-22. Plaintiff’s motion alleges that
the ALJ’s decision is erroneous because it is not supported by
substantial
deficient,
evidence
and
contained
therefore
she
in
is
the
record,
entitled
to
or
is
judgment
legally
on
the
pleadings. Pl. Mem. (Dkt.#14-1) 4-6.
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
-Page 3-
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S.
121, 149 (1997).
When
determining whether
the
Commissioner's
findings
are
supported by substantial evidence, the Court's task is “to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits
the scope of the Court's review to two inquiries: determining
whether the Commissioner's findings were supported by substantial
evidence in the record as a whole, and whether the Commissioner's
conclusions
are
based
upon
an
erroneous
legal
standard.
Green–Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003); see
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
-Page 4-
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
(2d Cir. 1988). A party's motion will be dismissed if, after a
review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
II.
Medical Evidence2
A.
Treating Sources
Plaintiff was treated by Dr. Lee Chalupka on July 26, 2007,
for rash and right knee swelling with pain. T. 275. Plaintiff
complained of ongoing pain for four years, and rated its severity
at 9/10. Dr. Chalupka noted Plaintiff’s history of pulmonary
disease,
asthma,
migraines,
cholecystectomy,
and
right
arm
problems. Plaintiff’s symptoms were observed to be “mild” in
severity, and Plaintiff appeared comfortable, alert, and ambulatory
upon examination, despite her complaints of pain. T. 275-77. Her
lower extremities appeared normal, with the exception of diffuse
tenderness in the left knee, with normal range of motion. T. 277.
Dr. Chalupka diagnosed Plaintiff with chronic pain exacerbation and
eczema, and prescribed benadryl. Id.
2
Plaintiff does not challenge the ALJ's determination as to her
mental impairments. Pl. Mem. 4. As such, the Court primarily focuses on
records documenting Plaintiff's medical treatment, although it will address
Plaintiff's mental treatment as relevant to her motion.
-Page 5-
Nearly two years later, Plaintiff was admitted to Mount
St. Mary’s hospital on April 9, 2009, upon the advice of her
primary physician for an evaluation of low hemoglobin. T. 293.
Plaintiff was diagnosed with mediastinal and hilar lymphadenopathy
(enlargement of the lymph nodes), hepatosplenomegaly (enlargement
of liver and spleen), profound anemia, pulmonary hypertension,
tricuspid regurgitation, congestive heart failure, ground-glass
opacity on chest CAT scan, history of tobacco use, hyperthyroidism,
and normal colonoscopy pending biopsies. Id. Upon examination,
Plaintiff appeared in no acute distress, yet appeared older than
stated age. Neck, heart, neurological, and abdomenal examinations
were normal, and an extremities examination showed moderate edema.
T. 294. She was advised upon discharge to follow-up with her
primary physician and to stop smoking. T. 295.
Plaintiff returned to Mount St. Mary’s on April 14, 2009 for
severe anemia, sickle cell trait, and mediastinal lymphadenopathy.
T. 448.
The physical examination was largely normal, however the
doctor noted that Plaintiff had thyromegaly
(enlargement of
thyroid) with multinodular goiter, decreased air entry in the lungs
and mild crackles at the back, moderate edema in her extremities,
and palpable spleen and liver tip. T. 449. Dr. Yahya S. Hashmi
suggested
disorders,
a
mediastinal
and
opined
biopsy
that
her
to
rule
severe
out
anemia
any
was
neoplastic
likely
combination of chronic disease on the sickle trait. T. 449-50.
-Page 6-
a
On April 21, 2009, Plaintiff saw Dr. Edward Ventresca for
pulmonary function testing, which revealed that her forced vital
capacity was mildly decreased, and her FEV1 was mildly decreased
T.
292. Other
pulmonary
function
tests were normal.
Id.
Dr.
Ventresca diagnosed decreased baseline spirometry with normal lung
capacity, suggesting “air trapping as may be seen with asthma,” and
moderate reduction in diffusing capacity. Id.
A
chest
moderate
and
fecal
abdominal x-ray
retention,
no
dated May 1,
evidence
of
2009 revealed
discrete
bowel
obstruction, and interstitial markings in a manner compatible with
pulmonary edema, suggesting an element of congestive heart failure.
T. 288.
Shortly thereafter, Plaintiff was treated by Dr. Mohammad A.
Khan, who indicated that Plaintiff had mild pulmonary hypertension,
and a review of systems was unchanged. T. 351. Dr. Khan recommended
follow-up pulmonary tests, a whole body CT PET scan, ACE level, and
smoking cessation. Id.
Dr. Khan also completed a function report on May 4, 2009.
T. 368-72. Therein, he diagnosed Plaintiff with “pulmonary heart
disease
–
lymph
nodes,”
and
opined
that
Plaintiff
had
no
limitations in lifting/carrying, standing/walking, sitting, and
pushing/pulling, but could not provide a medical opinion regarding
Plaintiff’s ability to do work-related activities. T. 368, 371.
-Page 7-
On October 6, 2009, Dr. Khan performed a pulmonary function
test, finding reduced spirometric value with no obvious airflow
obstruction, which could be secondary to inadequate effort. T. 473.
Testing
revealed
the
absence
of
significant
response
to
bronchodilator, an increase in residual volume consistent with air
trapping, and reduced diffusing capacity. T. 473.
A cardiac stress test conducted on October 8, 2009 revealed
normal left ventricular wall motion, and left ventricular ejection
fraction of 61%. T. 552. There was no evidence of ischemia. T. 552.
Dr.
Khan
noted
that
Plaintiff
failed
to
appear
for
two
separate PET scans, and continued to smoke two packs of cigarettes
per day as of October 23, 2009.
An echocardiogram performed on February 5, 2010 revealed that
Plaintiff’s atria were at the upper limits of normal size, left
ventricle was normal in size and function, right ventricle mildly
enlarged
with
mildly
reduced
function,
trace
valvular
regurgitation, and no pericardial effusion. T. 470.
On February 17, 2010, Dr. Ahmed noted significant thyromegaly
as part of an otherwise normal physical examination. T. 583.
A CT scan of Plaintiff’s chest taken on February 20, 2010,
revealed early fibrotic lung disease. The reviewing physician
stated that it “could be fibrosis, COPD or sarcoidosis.” T. 523.
Plaintiff’s abdomen CT showed early hepatosplenomegaly, “a non
-Page 8-
specific finding without fluid or evidence of active inflammation.”
Id.
On May 24, 2010, Plaintiff underwent thyroid surgery. T. 461,
492, 502.
In June, 2010, Dr. Khan noted during a visit that Plaintiff
had
not
followed-up
with
him
since
October,
2009.
T.
479.
Plaintiff’s physical examination was largely normal, and her asthma
was stable. She was advised to quit smoking. T. 479.
A
Holter
test
conducted
in
July
of
2010
showed
average
results. T. 514.
On
August
2,
2010,
Plaintiff
again
saw
Dr.
Ahmed
upon
complaints of difficulty breathing upon exertion due to smoking and
thyroiditis. T. 586-87. Dr. Ahmed reported that Plaintiff had a
goiter, and was scheduled for thyroidectomy within the upcoming
weeks. T. 586. Plaintiff’s physical examination yielded some normal
results, including no significant lymphadenopathy in the neck,
normal gait and reflexes, and no edema in the extremities, however
significant thyromegaly was noted. T. 586-87. Dr. Ahmed noted that
a CT scan from February, 2010 showed no or resolved mediastinal
lymphadenopathy. T. 586.
Plaintiff
also saw
psychiatrist
Dr.
Kalaiselvi
Rajendran
between July and September, 2009. The doctor terminated Plaintiff’s
treatment twice on the basis of Plaintiff’s unreliability, non-
-Page 9-
compliance with her appointments, and because her behavior was “not
suitable” for an office environment. T. 381-82, 399.
B.
Consultative Examinations
Plaintiff was consultatively examined by Dr. Kathleen Kelley
on July 24, 2009. T. 385. Plaintiff reported a heart attack in
April,
2009,
chest
pain
accompanying
excitement
and
anxiety,
asthma, and bilateral carpal tunnel syndrome. T. 385. Plaintiff
stated that smoked one pack of cigarettes per day, cooked five days
per week, but did not clean because she did not want to strain her
heart. T. 385-86. She reported that when she wrote or braided her
daughters hair, her hands would cramp and she needed to take
breaks. T. 386. Plaintiff could not lift laundry baskets, but could
perform other related chores, shopped once or twice per month with
a friend, bathed and dressed herself daily, watched television and
read. Id. She reported “no childcare activity” to Dr. Kelley. Id.
Plaintiff’s physical examination indicated no acute distress,
normal
gait,
ability
to
walk
on
the
heels
and
toes
without
difficulty, and a 1/3 squat with questionable effort. T. 387. She
demonstrated normal stance, full range of motion in her cervical
spine, normal movement in the lumbar spine, used no assistive
devices,
needed
no
help
changing
or
getting
on
and
off
the
examination table. Id. Straight leg raising test was positive at
70 degrees in the supine position, negative while seated, and
lumbar extension was limited to 10 degrees. T. 388. Plaintiff
-Page 10-
otherwise had full range of motion and full strength in upper and
lower extremities, stable and non-tender joints, with no redness,
heat, swelling, or effusion. Id. She had slight pitting edema of
both legs. Id. Plaintiff’s deep tendon reflexes were present except
for ankle
jerks. Id. Dr. Kelley found no motor or sensory deficit.
Id.
Dr. Kelley opined that Plaintiff would need comfort breaks for
repetitive
activity
with
both
hands,
and
to
avoid
smoke,
respiratory irritants, overexertion, heights, sharps, and heavy
equipment. T. 389. She would need to take breaks to prevent
becoming short of breath. Id.
A
consultative
psychiatric
evaluation
was
conducted
on
November 6, 2007 by Dr. Thomas Chou, who opined that the results of
Plaintiff’s mental health screening were consistent with stressrelated problems and did not appear to be significant enough to
interfere with Plaintiff’s daily functioning. T. 416. Dr. Chou
diagnosed Plaintiff with adjustment disorder with mixed disturbance
of emotions and conduct, pain disorder, rule out violent action due
to
hyperthyroidism,
hyperthyroidism,
congestive
heart
failure
history, asthma, carpal tunnel syndrome, and obesity. Prognosis was
fair, given no serious psychiatric problem. T. 412-17.
III. Non-medical Evidence
At her disability hearing, Plaintiff testified that she was
43 years-old, had a 10th grade education, and previously worked as
-Page 11-
a housekeeper and nursing aide. T. 66-68. She did not drive because
she let her license expire, and was driven to the hearing by her
friend. T. 66.
Plaintiff told the ALJ that she had COPD, which caused her to
become short of breath, carpal tunnel syndrome, which made her
hands stiffen, and high blood pressure controlled by medication.
T. 70. She stated that her chronic heart failure required her to
sit up, causing her to have difficulty sleeping. T. 70-71. She also
suffered from anxiety, anemia, and depression. T. 71-72.
With regard to daily activities, she stated that she would
perform
childcare,
cook
meals,
help
her
children
with
their
homework, relax, and read her bible. T. 72-73. She bathed and
dressed herself, and performed some housework such as dishes and
separating clothes, and grocery shopped twice a month. T. 73.
The ALJ also heard testimony from VE Maria Vargas. T. 82-87.
The ALJ posed a hypothetical person of Plaintiff’s age, education,
and work experience, who could perform light work with frequent
reaching,
handling,
and
fingering
with
both
hands;
could
understand, remember, and carry out simple instructions; make
judgments on simple work-related decisions; interact appropriately
with supervisors and coworkers; respond to usual work situations
and changes; maintain attention and concentration for two-hour
segments;
and
complete
a
normal
workweek
without
excessive
interruptions from psychologically or physically-based symptoms.
-Page 12-
T. 83. The VE responded that Plaintiff’s past work of housekeeper
and laundry worker fit within that hypothetical. If the light work
classification were further limited by only occasional reaching,
handling, or fingering, then her past work would be eliminated,
however such person could perform the jobs of counter clerk, bus
monitor, or gate guard. T. 84-85. The ALJ further modified the
hypothetical to encompass a person who was off-task for 20% or more
of the day, or who missed two days of work per month. T. 85. The VE
responded that no jobs would be available. Id.
With regard to the sedentary exertion work level with the
original limitations, the hypothetical individual would be able to
perform the jobs of order clerk, account clerk, or surveillance
monitor,
which
exist
in
significant
numbers
in
the
national
economy. T. 84. Those jobs too, would be eliminated, if the person
were further restricted to only occasional reaching, handling, or
fingering. Id.
IV.
The Decision of the Commissioner that Plaintiff was not
disabled is supported by substantial evidence.
A.
Physical RFC Finding
Plaintiff contends that the ALJ’s physical RFC finding was not
supported by substantial evidence on the following grounds: (1) the
record does not establish that Plaintiff can perform frequent
repetitive activity with both hands; (2) Plaintiff’s exertional
functional
capacity
is
unsupported
by
the
record;
(3)
the
consultative examiner offered no opinion regarding Plaintiff’s
-Page 13-
ability to sit, stand, or walk; and (4) there is ample objective
medical evidence to support Plaintiff’s claim that she is limited
to less than light work. Pl. Mem. 4-6. The Court will address each
of Plaintiff’s arguments in turn.
1.
Repetitive Activity
Plaintiff
first
avers
that
Dr.
Kelley’s
“vague”
opinion
regarding comfort breaks from repetitive hand activities cannot
constitute
substantial
evidence
to
support
the
ALJ’s
RFC
determination. Pl. Mem. 4.
An individual's RFC is his “maximum remaining ability to do
sustained
work
activities
in
an
ordinary
work
setting
on
a
continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.
1999) (quoting Social Security Ruling (“SSR”) 96–8p, 1996 WL
374184, *2 (July 2, 1996)). When making an RFC assessment, the ALJ
should consider “a claimant's physical abilities, mental abilities,
symptomology, including pain and other limitations which could
interfere with work activities on a regular and continuing basis.”
Pardee v. Astrue, 631 F.Supp.2d 200, 221 (N.D.N.Y. 2009) (citing
20 C.F.R. § 404.1545(a)).
“To determine RFC, the ALJ must consider all the relevant
evidence, including medical opinions and facts, physical and mental
abilities, non-severe impairments, and [p]laintiff's subjective
evidence of symptoms.” Stanton v. Astrue, 2009 WL 1940539, *9
(N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff'd, 380
-Page 14-
Fed. Appx. 231 (2d Cir. 2010). “An expert's opinion can be deemed
‘not
substantial’
when
the
expert
describes
the
claimant's
impairments in terms which are ‘so vague as to render it useless in
evaluating’ [p]laintiff's RFC.” Mancuso v. Colvin, 2013 WL 3324006,
*3 (W.D.N.Y. 2013) (quoting Burgess v. Astrue, 537 F.3d 117, 128–29
(2d Cir. 2008)). In other words, an expert's opinion that uses
vague phrases may not constitute substantial evidence to support an
RFC
determination
when
it
is
“accompanied
by
no
additional
information, [and thus] prevent[s] the ALJ, as a layperson, from
being able to make the necessary inference whether [p]laintiff can
perform the particular requirements of a specified type of work.”
Id.
Plaintiff’s
contention
on
this
point
warrants
little
discussion because the ALJ specifically rejected the portion of
Dr. Kelley’s opinion regarding Plaintiff’s ability to use her hands
repetitively and her need for comfort breaks:
This opinion is given little weight because
the undersigned sees little objective medical
evidence or evidence in her activities of
daily living[ ] which suggests that the
claimant cannot use her hands for repetitive
activity. The claimant’s activities of daily
living suggest that the claimant can use her
hands without comfort breaks because the
claimant bakes and cooks for her family and
sorts laundry.
T. 48.
Here, the ALJ did not incorporate a limitation into his RFC
determination requiring Plaintiff to take “comfort breaks” during
-Page 15-
a scheduled work day, thus any omission regarding how often the
claimant would require breaks and how long those breaks would be is
immaterial to his determination. See Cichocki v. Astrue, 729 F.3d
172 (2d Cir. 2013)(citing Zatz v. Astrue, 346 Fed.Appx. 107, 111
(7th Cir. 2009) (“[A]n ALJ need not provide superfluous analysis of
irrelevant limitations or relevant limitations about which there is
no conflicting medical evidence.”).
2.
Exertional Functional Capacity
For the same reason, the Court rejects Plaintiff’s argument
that Dr. Kelley’s recommendation for Plaintiff to refrain from
overexertion could not constitute substantial evidence in support
of the ALJ’s RFC finding. Pl. Mem. 5.
The ALJ found Plaintiff capable of performing light, unskilled
work, including her past relevant work as a housekeeper and laundry
worker. T. 48. Light work requires a person to be on her feet for
up to two-thirds of a work day, lift 20 pounds occasionally, and
10 pounds frequently. 20 C.F.R. § 404.1567(b); SSR 83-10.
In his RFC determination, the ALJ did not adopt Dr. Kelley’s
recommendation
that Plaintiff
should
avoid
overexertion, thus
defining the term “overexertion” would not change his finding that
Plaintiff was able to perform light work. See Blowers v. Astrue,
No. 05-CV-557, 2008 WL 398464, at *6 (N.D.N.Y. Feb. 12, 2008)
(“When, as here, the evidence of record permits the Court to glean
the rationale of an ALJ's decision, the Court will not require that
-Page 16-
he have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.”)
3.
Work-related Physical Activities
Plaintiff next contends that Dr. Kelley’s silence with respect
to Plaintiff’s ability to lift, stand, walk, and sit should not be
construed as an opinion that Plaintiff had an unlimited ability to
perform these functions. Pl. Mem. 5.
While it is true that the silence of a consultative physician
on an issue pertinent to a claimant's RFC is not an appropriate
basis on which to resolve that issue to the claimant's detriment,
see Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), such is not
the case here.
Plaintiff’s treating physician Dr. Kahn opined that Plaintiff
would have no limitations in lifting/carrying, standing/walking,
sitting, pushing/pulling, or other postural functions. T. 371. The
remainder of the record, which includes mild to moderate findings,
supports Dr. Kahn’s function report. Cf. Perez-Rodriguez v. Astrue,
2011
WL
6413763
(S.D.N.Y.
2011),
(ALJ
erred
in
interpreting
consultative examiner’s silence on the issue of lifting as an
affirmative refutation of a treating physician’s opinion). The
ALJ’s RFC determination that Plaintiff could perform light work
with the above-mentioned limitations in reaching, handling, and
-Page 17-
fingering, is therefore supported by substantial evidence in the
record.
4.
Light Work
Finally, Plaintiff argues that Plaintiff could not perform
light work because the medical evidence supports dyspnea and
fatigue so significant that she reported to her physician she was
“unable to walk across a room without getting short of breath.”
T. 326. Pl. Mem. 6.
The Court reminds Plaintiff that subjective complaints alone
cannot establish conclusive evidence of a disability under the Act.
42 U.S.C. § 423(d)(5)(A) (“An individual's statement as to pain or
other symptoms shall not alone be conclusive evidence of disability
as defined in this section; there must be medical signs and
findings,
established
by
medically
acceptable
clinical
or
laboratory diagnostic techniques.”); accord Betances v. Comm'r, 206
Fed. Appx. 25, 26 (2d Cir. 2006) (summary order). Substantial
evidence
in
the
record
supports
the
ALJ’s
finding
regarding
Plaintiff’s credibility.
In finding Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms not entirely
credible, the ALJ pointed out that despite a diagnosis of COPD,
Plaintiff’s medical examinations and objective testing generally
showed normal lung capacity and moderate reduction in diffusing
-Page 18-
capacity. T. 288, 319, 509. Ignoring her doctors’ repeated orders,
Plaintiff continued to smoke one or two packs of cigarettes per
day. T. 276, 295, 305, 385, 478. Plaintiff’s treating psychiatrist
characterized her as unreliable and a “poor historian,” and the
consultative examiner questioned Plaintiff’s effort with respect to
the physical examination. T. 387, 389. Thus, her complaint to
doctors that she was “unable to walk across a room without getting
short of
breath”
is insufficient
to undermine
the
ALJ’s
RFC
determination. T. 326.
It is well within the discretion of the Commissioner to
evaluate the credibility of Plaintiff’s complaints and render an
independent judgment in light of the medical findings and other
evidence regarding the true extent of such symptomatology. See
Mimms v. Heckler, 750 F.2d 180, 185–86 (2d Cir. 1984). Although
Plaintiff certainly possesses multiple serious impairments, they do
not, considered singly and in combination, have any more than a
minimal impairment on her ability to work. The ALJ therefore
properly concluded that Plaintiff’s allegations of disability were
not entirely credible after evaluating them in light of the records
of treating and examining physicians, and his RFC determination was
supported by substantial evidence.
CONCLUSION
For
the
foregoing
reasons
the
Commissioner's
motion
for
judgment on the pleadings (Dkt.#13) is granted, and Plaintiff's
-Page 19-
cross-motion for judgment on the pleadings (Dkt.#14) is denied. The
complaint is dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
December 9, 2014
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