Thompson v. Colvin
Filing
19
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 12 Commissioner's Motion for Judgment on the Pleadings; denying 13 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 7/29/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RENEE ELIZABETH THOMPSON,
Plaintiff,
13-CV-0350(MAT)
DECISION
and ORDER
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.
INTRODUCTION
Renee Elizabeth Thompson, ("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
application for Supplemental Security Income (“SSI”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
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. ##12, 13.
BACKGROUND
Plaintiff
protectively
filed
an
application
for
SSI
on
August 10, 2009, alleging disability beginning July 28, 2009 due to
hiparthritis, bulging and slipped discs, depression, anxiety, and
bursitis.1
T.139-46,172,
187-88.
Her
initial
application
was
1
Plaintiff alleged depression and anxiety in her SSI application, however
a State Agency review psychiatrist concluded that the evidence failed to
establish the existence of a severe mental impairment, and the ALJ found
these impairments to be non-severe. T. 30. Further, her pending motion
denied, and a hearing followed before Administrative Law Judge
(“ALJ”) William M. Weir in Buffalo, New York on July 26, 2011.
T.
53-77,
79-84,
86.
Plaintiff,
who
appeared
with
counsel,
testified at the hearing.
In applying the required 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
August 10, 2009; (2) she had the severe impairments of hip pain,
trochanteric bursitis, and degenerative disc disease; (3) her
impairments did not meet or equal the Listings set forth at
20 C.F.R. § 404, Subpt. P, Appx. 1, and that she retained the
residual functional capacity (“RFC”) to perform the full range of
sedentary work; (4) Plaintiff could not perform her past relevant
work; and (5) there was other work that existed in significant
numbers in the national economy that Plaintiff could perform.
T. 26-33.
The ALJ’s determination that Plaintiff was not disabled under
the Act was issued on December 21, 2011, and became the final
decision of the Commissioner when the Appeals Council denied
does not address any purported impairment that is not related to her
physical conditions. Pl. Mem. 1–14. Accordingly, only her physical
impairments are at issue in this Decision and Order.
2
Plaintiff’s request for review on February 4, 2013. T. 1-7, 21-33.
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. Comm’r Mem. (Dkt.#12-1) 16-23. Plaintiff has filed a
cross-motion alleging that the ALJ failed to follow the treating
physician rule and improperly evaluated Plaintiff’s credibility.
Pl. Mem. (Dkt. #14) 5-14.
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
On July 17, 2009, Dr. Scott Darling evaluated Plaintiff upon
complaints of left hip pain. T. 278. Plaintiff exhibited slightly
antalgic gait on the left and full range of motion in the hip with
some tenderness. Id. Negative straight leg raise was noted, and
there was tenderness of the left greater trochanter.
Id. X-rays
from July 10, 2009 were remarkable for mild joint space narrowing,
3
and revealed no dislocation, fracture, or significant arthritic
changes. T. 278, 281. Plaintiff was given an “off work” note for
one week, and was prescribed steroids, an injection, and physical
therapy. T. 279.
The following month, Plaintiff returned to Dr. Darling for
ongoing left hip pain, new right posterior hip pain, and midline
lower back pain with radicular symptoms. T. 286. She reported that
the corticosteroid injection only helped for three days, and that
she was taking ibuprofen as needed. Id. Upon examination Plaintiff
walked
with
normal
gait,
had
point
tenderness
at
the
right
sacroiliac joint, full range of motion in hips with pain at
internal and external rotation of the right hip, and full range of
motion in the spine. Straight leg raising test was positive. Id. No
tenderness was noted in the greater trochanter on the right.
T. 287. Dr. Darling ordered magnetic resonance imaging (“MRI”),
physical therapy, and a trial of Flector patches. Id. She was given
an off-work note for three weeks regarding lower back pain and
right hip pain. Id.
An MRI of the lumbar spine dated August 17, 2009 revealed mild
T11/12 and T12/L1 disc degeneration and bulging; mild L3/4 through
L5/S1
posterior
narrowing;
and
facet
no
arthrosis;
central
or
T11/12,
foraminal
T12/L1,
stenosis.
L5/S1
T.
disc
267-68.
Dr. Darling reviewed the MRI results and assessed pain joint pelvic
region
and
thigh;
radiculopathy;
disc
disorder,
other
and
unspecified lumbar region. T. 289. Plaintiff was to pursue a formal
course of physical therapy, continue use of the Flector patch, and
4
was instructed on changing sites of her pelvis and lower back.
T. 289-90. She reported that she was out of work, and there were no
light duty jobs available at that time. T. 290.
Plaintiff attended four physical therapy sessions in August
and
September,
2009,
but
did
not
attend
follow-up
sessions.
Physical therapy goals were not achieved. T. 362.
Plaintiff saw Dr. Darling on September 21, 2009, and stated
that her pain was becoming more severe with new radicular symptoms
into the left foot, tingling, and paresthesia. Previous medications
and prescriptions were not effective, and physical therapy provided
no substantial relief. T. 337. She was referred to surgery for
possible laminectomy and microdiscectomy, and was given a short
supply of Darvocet and ibuprofen. Physical therapy was stopped as
it was not helping her at that time. T. 337-38.
On January 13, 2010, Plaintiff saw Dr. Darling upon complaints
of lower back and glute pain after a fall. T. 367. She rated her
pain at 7/10 that was aggravated by sitting and lying down. Id.
Examination revealed normal gait, normal spinal contour, tenderness
to palpation over right sacroiliac joint and sacrum into the
coccyx, limited range of motion in the spine due to pain and
spasms, positive straight leg raising bilaterally, and negative
slump test. T. 367. Plaintiff had full range of motion in the hips.
T. 368. An x-ray showed no fracture, significant arthritic changes,
or spondylolisthesis. T. 368.
Plaintiff followed up one week later, reporting that her pain
had improved to 3/10, though it still occurred at the right
5
sacroiliac joint. T. 370. Examination revealed tenderness over the
right
sacroiliac
joint,
limited
motion
in
the
lumbar
spine,
positive straight leg raising bilaterally, absent deep tendon
reflexes on the right, full range of motion in the hips, normal
gait, and full strength in the lower extremities. T. 370-71. She
was diagnosed with right sacroiliac joint sprain and disc disorder
of the lumbar region. T. 371. She was noted to have improved
significantly, and was recommended physical therapy. Id. At a
follow-up appointment in February, Plaintiff stated that she was
unable to
start
physical
therapy
because she
had
moved.
She
complained of continued radicular pain, and examination findings
were unchanged. T. 373-74.
In a Spinal Impairment Questionnaire dated September 24, 2011,
Dr. Darling noted that he treated Plaintiff three times per year
and diagnosed her with pain the hips, rule out labral tear (MRI
pending); disc herniation, lumbosacral spine; and trochanteric
bursitis, right and left. T. 432. His findings included limited
range of motion, tenderness over the lumbar spinous process at L3
through S1, absent right patellar reflexes, positive straight leg
raising on the left, and tenderness over both hips. He noted no
muscle spasm, sensory loss, muscle atrophy, weakness, or abnormal
gait. T. 432-33. Dr. Darling cited to the August, 2009 MRI in
support of his findings. T. 434. Medications were prednisone,
Darvocet, ibuprofen, and Flector patches. Plaintiff was referred
for neurosurgery, lab work, and physical therapy. T. 436.
6
Dr. Darling opined that Plaintiff was in constant pain and
would be able to sit for two hours in an eight-hour day, stand/walk
for four hours, and that she would need to get up from the sitting
position every two hours for approximately 20 minutes. T. 435. She
could occasionally lift and carry up to 20 pounds. T. 436. She
could not push, pull, bend, or stoop on a sustained basis. T. 438.
Plaintiff’s pain would periodically interfere with attention and
concentration, she would need to take unscheduled breaks every four
hours for approximately 20 minutes, and she was capable of low work
stress. T. 436-37. Dr. Darling did not indicate whether Plaintiff
would be able to do a full time competitive job that requires
activity on a sustained basis, but noted that she had good days and
bad days, and would likely be absent from work about two to three
times
per
month.
T.
437.
He
noted
that
emotional
factors
contributed to Plaintiff’s symptoms because she was non-compliant
with treatment. T. 436. The doctor stated that her pain was
“moderate level, not debilitating.” T. 437.
B.
Consultative Examinations
Plaintiff was consultatively examined by Dr. Kathleen Kelley
on February 5, 2010. T. 345-49. Plaintiff reported problems with
her
back
and
hip
and
a
history
of
depression.
examination, her gait and station were normal with a
T.
345.
On
3/4 squat.
T. 347. She was obese, and complained of pain in the supine
position. Remarkable findings in the musculoskeletal and neurologic
examination included limited motion of the lumbar spine, positive
straight leg raising, and decreased deep tendon reflexes in the
7
right patella and ankle. T. 347-48. Other results were normal,
including in the extremities, fine motor activity of the hands, and
the thoracic and cervical spine. T. 348.
Activities of daily living included cooking seven days per
week, cleaning four days per week, doing laundry three days per
week, and shopping twice per week. T. 346. Plaintiff needed help
with vacuuming and carrying. Id. She performed self-care. For
hobbies, she watched television, listened to the radio, read, and
rebuilt old computers. Id.
Dr.
Kelley
assessed
degenerative
disc
disease
of
lower
thoracic and lumbar spine as described, noting that Plaintiff did
not describe radiculopathy, weakness, or bladder/bowel compromise.
Id. The consultant opined that kneeling, squatting, crawling, and
climbing stairs repetitively would require comfort breaks, and that
Plaintiff “should be leery of working around heights of [sic] heavy
equipment.” T. 349. Bending or twisting repetitively of the lumbar
spine would require comfort breaks, and the remaining limitations
were psychiatric in nature. Id.
III. Non-Medical Evidence
Plaintiff was 47 years-old on the alleged onset date of
disability, had a general equivalency diploma, and previously
worked as a delivery driver, stocker, and retail sales associate.
T. 176-81. She testified at her disability hearing that she stopped
working because she required excessive breaks. T. 57-58. She
estimated that she could stand for 30 minutes, walk for a couple of
blocks, and sit for 30 minutes to an hour before she would need to
8
get up and move around. T. 59-60. She told the ALJ that she would
lie down on the couch or in a reclining chair for three or four
hours per day, five or six days per week when her symptoms were
bad. T. 61. Plaintiff prepared mostly frozen foods, and could not
wash dishes for very long. T. 61-62. She could do a little
sweeping, could not vacuum, and had trouble doing laundry. T. 62.
She reported difficulty with stairs. Id. Plaintiff testified that
she discontinued physical therapy because it “hurt too much.”
T. 63. Injections provided relief for about six hours, and she took
ibuprofen which did not help. She stated that she was allergic to
the glue in her Flector patches. Id.
IV.
The decision of the Commissioner was supported by substantial
evidence.
A.
Treating Physician Rule
Plaintiff first contends that the ALJ failed to appropriately
weigh the opinion of Plaintiff’s treating source, Dr. Darling.
Pl. Mem. 5.
Under the treating physician rule, the medical opinion of a
claimant's treating physician will be given “controlling” weight if
that opinion “is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R.
§
404.1527(c)(2);
see
also
Green–Younger,
335
F.3d
at
106.
Medically acceptable clinical and laboratory diagnostic techniques
include consideration of “a patient's report of complaints, or
9
history, [a]s an essential diagnostic tool.” Id., 335 F.3d at 107
(internal quotation omitted).
In evaluating the opinion of Dr. Darling, the ALJ noted that
the doctor’s responses to the Spinal Impairment Questionnaire were
“somewhat
inconsistent,”
however
his
more
specific
responses
reflected a sedentary work capability and that the statement, read
as a whole, was consistent with the sedentary exertion level.
T. 27-28.
At the outset, it is unclear whether Plaintiff is correct as
to whether the ALJ failed to afford to Dr. Darling’s opinion
controlling weight. In his decision, the ALJ discussed the Spinal
Impairment Questionnaire and treatment notes at length before
concluding that Dr. Darling’s opinion was, “as a whole . . .
consistent with at least a sedentary work capacity.” T. 28.
This
statement suggests that the ALJ, to some extent, relied upon
Dr. Darling’s opinion in reaching his residual functional capacity
determination rather than discounting it.
The Spinal Impairment Questionnaire indicated that Plaintiff
could sit for up to two hours and stand or walk for up to four,
while occasionally lifting and carrying up to 20 pounds. T. 27. She
would need to get up from the seated position and move around for
20 minutes every two hours,2 and would need to take breaks every
2
The ALJ stated that “Dr. Darling’s responses on his medical source
statement form are somewhat inconsistent, but his more specific
and, hence, inherently more reliable responses reflect a sedentary
work capability.” T. 27. The Court sees no conflict between the
ability to sit for up to two hours and having to change positions
10
four hours before returning to work. T. 28. Significantly, the
doctor
stated
that
Plaintiff’s
pain
was
“moderate”
and
“not
debilitating.” Id.
The ALJ also considered the opinion of the consultative
examiner. Although Dr. Kelley noted some abnormal findings on
physical examination, the limitations assessed were comfort breaks
with kneeling, squatting, crawling, climbing stairs repetitively,
and bending or twisting repetitively of the lumbar spine, with no
other limitations noted. Id. To the extent the ALJ relied upon
Dr. Kelley’s opinion as to Plaintiff’s functional limitations, he
was entitled to do so. See, e.g., Mongeur v. Heckler, 722 F.2d 1033
(2d Cir. 1983) (a consultative physician's opinion may serve as
substantial evidence in support of an ALJ's decision); accord
Babcock v. Barnhart, 412 F.Supp.2d 274, 280 (W.D.N.Y. 2006) (“State
agency physicians are qualified as experts in the evaluation of
medical issues in disability claims. As such their opinions may
constitute substantial evidence if they are consistent with the
record as a whole.” (quotation omitted)).
Here, the ALJ correctly found that both of these opinions were
consistent with sedentary work, which involves lifting no more than
10 pounds at a time and involves sitting with a certain amount of
walking
and
standing.
T.
27-28;
see
20.
C.F.R.
§
404.1567.
Accordingly, any purported error the ALJ’s failure to assign a
specific weight to Dr. Darling’s opinion was harmless and does not
from sitting every two hours.
11
necessitate remand in light of the consistent record evidence,
which the ALJ carefully and thoroughly evaluated. See Arguinzoni v.
Astrue, No. 08–CV–6356, 2009 WL 1765252, *9 (W.D.N.Y. June 22,
2009) (ALJ's failure to assign weight to medical opinions was
harmless; “[t]he ALJ engaged in a detailed discussion of the
medical opinions in the record and his determination that the
plaintiff was not disabled does not conflict with the medical
opinions”); Pease v. Astrue, No. 06-CV-0264 2008 WL 4371779, *8
(N.D.N.Y. Sept. 17, 2008) (ALJ's failure to comment on the weight
of the evidence was harmless error where there was a detailed
summary and
analysis
of
reports
and
records
of
treating
and
examining physicians).
In a related argument, Plaintiff contends that the ALJ failed
to include a sit/stand option in the residual functional capacity
finding. Although the record contains evidence that Plaintiff
alleged pain in sitting, standing, walking, and lying down, the
record does not establish that sit/stand option was required.
T. 58-60, 240, 335, 345, 348.
First,
Plaintiff’s
allegations
of pain
were
inconsistent
throughout the record. Despite her statements to the consultative
examiner and in her disability forms that she experienced pain
while lying down, she testified at her hearing that she tried to
lie down as much as possible to relieve her pain. T. 59-60, 240,
348. Second, the consultative examiner did not assess limitations
in sitting, standing, or walking. T. 349 (noting “no other obvious
12
limitations on exam”). Finally, the RFC as written without a
sit/stand
option
is
supported
by
Dr.
Darling’s
opinion
that
Plaintiff could sit for two hours before changing position and is
consistent with the requirements of sedentary work. See SSR 96–9p,
at
*6
(noting
that
sedentary
work
requires
sitting
for
“approximately 2–hour intervals” between breaks).
For all of these reasons, the ALJ’s decision did not run afoul
of the treating physician rule and the RFC determination was
supported by substantial evidence in the record.
B.
Credibility Assessment
Next,
appropriate
Plaintiff
alleges
standards
set
that
forth
the
in
ALJ did
SSR
96–7p
not
apply
and
20
the
C.F.R.
§ 404.1529 in assessing Plaintiff’s credibility. Pl. Mem. 10-14.
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
restriction of function than can be demonstrated by objective
medical evidence alone, consideration is given to such factors as
13
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. 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).
“If the ALJ decides to reject subjective testimony concerning
pain
and
other
symptoms,
he
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, 733 F.2d 1037, 1045 (2d Cir. 1984); footnote
omitted).
The ALJ found that Plaintiff’s subjective complaints were
inconsistent with the previously-determined residual functional
capacity assessment. T. 31.
Despite using the frowned-upon boilerplate language in his
decision,
the ALJ's
credibility
determination
was
nonetheless
supported by substantial evidence. He explicitly considered many of
14
the factors outlined in the regulations, including, but not limited
to: Plaintiff’s treatment with over-the-counter medication, noncompliance with prescribed treatment, and activities of daily
living. T. 31; see SSR 96-7p. He also noted Plaintiff’s conflicting
testimony and inconsistencies between her reports and the treatment
notes from her physician. Id. Moreover, Plaintiff did not follow-up
with specialist to determine whether she would be a candidate for
surgery,
despite
her
allegations
that
physical
therapy
was
resulting in additional pain. T. 32. The ALJ further reasoned that
her allegations were unsupported by the treating examining and
medical source opinions, and pointed out that Plaintiff’s testimony
indicated that she felt incapable of performing sedentary work
because of lack of training and job availability, but did not know
how her pain would have prevented her from performing a desk job.
T. 32, 42-73. To that end, the ALJ also observed that Dr. Darling,
Plaintiff’s treating physician, “clearly felt the claimant was
capable of performing some work activity . . . [H]e had discussed
with her ‘working light duty at work.’ The claimant reported that
no light duty was available to her.” T. 26.
In assessing Plaintiff’s credibility, the ALJ considered the
medical evidence, Plaintiff’s statements concerning her symptoms
and alleged functional limitations, and her activities of daily
living. The credibility determination was therefore proper. See
Diakogianis v. Astrue, 975 F.Supp.2d 299, 318–19 (W.D.N.Y. 2013)
(determining the ALJ's credibility assessment was supported by
15
substantial
evidence
where
the
ALJ
assessed
the
plaintiff's
subjective complaints “in the context of a comprehensive review of
the entire medical record,” despite the use of the boilerplate
language that the plaintiff's complaints were “inconsistent with
the above residual functional capacity”); Abdulsalam v. Comm'r,
No. 12–CV–1632, 2014 WL 420465, at *7 (N.D.N.Y. Feb. 4, 2014)
(same).
The Court finds that the ALJ's credibility determination was
proper as a matter of law and supported by substantial evidence in
the record.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Dkt.#12) is granted, and Plaintiff’s
cross-motion (Dkt.#13) 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 29, 2015
16
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