Jankowski v. Commissioner of Social Security

Filing 13

DECISION AND ORDER DENYING Plaintiff's 8 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 6/30/2014. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

BRIAN JANKOWSKI,
Plaintiff,
v.

DECISION AND ORDER
13-CV-538S

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Brian Jankowski challenges the decision of an Administrative Law Judge

(“ALJ”) that he is not disabled within the meaning of the Social Security Act (“the Act”).
2.

Alleging disability due principally to back pain from an injury sustained at

work on November 17, 2007, Jankowski applied for Social Security benefits on
February 25, 2010. The Commissioner of Social Security (“Commissioner”) denied that
application, and as result, Jankowski requested an administrative hearing. He received
that hearing before ALJ Roxanne Fuller on September 19, 2011.The ALJ considered
the case de novo, and on December 8, 2011, issued a decision denying Jankowski’s
application. Jankowski filed a request for review with the Appeals Council, but the
Council denied that request, prompting him to file the current civil action, challenging
Defendant’s final decision. 1
3.

On November 12, 2013, Jankowski filed a motion for judgment on the

pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. The Commissioner
never filed a motion of her own, but eventually did file a response to Jankowski’s

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The ALJ’s decision became the Commissioner’s final decision in this case when the Appeals Council
denied Plaintiff’s request for review.

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motion. (See Docket Nos. 11, 12.) No further briefing occurred. For the following
reasons, Jankowski’s motion is denied.
4.

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).

Rather, the

Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that
which amounts to “more than a mere scintilla”; it has been defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842
(1971). Where evidence is deemed susceptible to more than one rational interpretation,
the Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982).
5.

“To determine on appeal whether the ALJ's findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.” Williams on Behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the
Commissioner's finding must be sustained “even where substantial evidence may
support the plaintiff's position and despite that the court's independent analysis of the
evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's
determination considerable deference and may not substitute “its own judgment for that
of the [Commissioner], even if it might justifiably have reached a different result upon a

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de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d
Cir. 1984).
6.

The Commissioner has established a five-step sequential evaluation

process to determine whether an individual is disabled as defined under the Act. See
20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287,
2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing
whether a claimant is disabled.
7.

This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a "severe impairment" which
significantly limits his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which
is listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a "listed" impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520. The claimant has the
burden of proof as to the first four steps, but the Commissioner has the burden of proof
on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728
F.2d 582, 584 (2d Cir. 1984).
8.

In this case, the ALJ made the following findings: (1) Jankowski has not

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engaged in substantial gainful activity since his onset date (R. 13) 2; (2) Jankowski
suffers from “status post back surgeries,” anxiety and depression, all severe
impairments (id.); (3) he does not have an impairment or combination of impairments
that meets or medically equals the criteria necessary for finding a disabling impairment
under the regulations (R. 14); (4) he retains the residual functional capacity (“RFC”) to
perform sedentary work with various limitations (R. 15–16)3; and (5) there are jobs that
exist in significant numbers in the national economy that he can perform. (R. 20.)
Ultimately, the ALJ concluded that Jankowski was not under a disability, as defined by
the Act, from his onset date through the date of the decision. (R. 21.)
9.

Jankowski raises two related objections to the ALJ’s findings. First, he

contends that the ALJ failed to properly consider the opinion of his treating physician,
Dr. William Capicotto. Second, he contends that the ALJ failed to properly consider the
opinion of his chiropractor, Dr. Michael Impaglia.
10.

Jankowski makes much of the fact that Dr. Capicotto repeatedly found him

to be totally temporarily disabled. But, as the Commissioner correctly points out, Social
Security law does not recognize disability designations such as “total” or “temporary.”
Rather, the standard to be applied by the ALJ asks whether Jankowski (or any claimant)
“is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than

2

Citations to the underlying administrative record are designated “R.”

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Specifically, the ALJ found that Jankowski could not perform jobs that required “foot[-]control operation
with the right foot” or that required him to “climb ramps, stairs, ladders, ropes, or scaffolds.” Further, he
cannot “balance” and he can only “occasionally stoop, crouch, kneel, or crawl.” He must avoid “all . . .
moving machinery” and “exposure to unprotected heights.” Additionally, he can “remember and carry out
one to two step instructions,” and he can perform only “simple, routine, repetitive tasks.” (R. 15–16.)

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twelve months.” 42 U.S.C. 1382c(a)(3)(A). Only if this standard is met can a claimant be
considered disabled for the purposes of the Social Security Act. There is simply no way
to know whether Dr. Capicotto was applying this standard when he found Jankowski to
be disabled. And that is one reason why, as the ALJ correctly noted, “the ultimate
finding of whether a claimant is disabled and cannot work . . . is ‘reserved to the
Commissioner.’” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (quoting 20 C.F.R. §
404.1527(d)(1). Indeed, the Commissioner is “responsible for making the determination
or decision about whether [the claimant] meet[s] the statutory definition of disability.” 20
C.F.R. § 404.1527(d)(1). Thus, while the ALJ is obligated to consider “the data that
physicians provide,” she must “draw[] [her] own conclusions as to whether those data
indicate disability.” Snell, 177 F.3d at 133. Accordingly, Jankowski’s argument that the
ALJ erred by “substituting her own opinion for [a] medical expert opinion” and by
“interpreting the objective medical findings” is off the mark. (Pl.’s Br. at 12). Indeed, this
is the ALJ’s duty.
11.

Jankowksi relies on Gilbert v. Apfel, for the proposition that “the ALJ

cannot arbitrarily substitute her own judgment for competent medical opinion, nor can
she set her own expertise against that of a physician who submitted an opinion or
testified before her.” 70 F. Supp. 2d 285, 290 (W.D.N.Y. 1999) (internal citations,
quotations, and modifications omitted). But the opinions of the medical sources in that
case (and the cases cited therein) were not the conclusory findings of disability present
here. Rather, the medical sources in those cases described medical and functional
impairments – findings that the ALJ ultimately rejected. These two types of opinions
cannot be conflated. Unlike the familiar “treating-physician rule,” which compels the ALJ
in some situations to assign greater weight to the medical findings of a treating source,

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the Social Security regulations make clear that the Commissioner will “not give any
special significance to the source of an opinion on issues reserved to the
Commissioner.” 20 C.F.R. § 404.1527(d)(3). Jankowski’s objection on this ground is
therefore rejected.
12.

Jankowski’s next objection fares no better. He contends that the “ALJ

summarily dismissed the records and recommendations from Dr. Impaglia.” (Pl.’s Br. at
21.) But throughout an argument in which he explains at length the rules that apply to
“other sources,” such as a chiropractor, the only “records” or “recommendations” that
Jankowski specifically identifies are a letter from Dr. Impaglia to the workers
compensation board in January of 2008 and a later letter from March of 2008. In the first
letter, Dr. Impaglia noted that Jankowksi “is unable to resume his duties at work” and
expressed his “strong” suspicion that Jankowski has a herniated lumbar disc. (R. 698.)
The second letter, addressed “to whom it may concern” notes simply that Jankowski is
“totally disabled.” (R. 701.)
13.

Of course the disability findings can be accorded no weight for the same

reasons discussed immediately above. And, as for the other finding, Jankowski makes
no effort to describe how a suspicion of a herniated disc either compels a finding of
disabled or was not fully accounted for in the ALJ’s opinion.
14.

As the ALJ noted, Dr. Impaglia also found that Jankowski can stand for 1–

4 hours and can sit for 1-3 hours so long as he is able to change positions. (R. 690.)
Dr. Impaglia also found that Jankowski could lift ten pounds, but never bend, squat or
climb. (Id.) The ALJ specifically noted that he “accommodate[d] this opinion” by, among
other things, “limiting the claimant to a reduced range of sedentary work” and by
adopting the postural limitations described by Dr. Impaglia. (R. 19.) It clearly cannot be

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said then that the ALJ “summarily dismissed” Dr. Impaglia’s opinions. Unlike Simpson v.
Astrue, a case on which Jankowski relies, the ALJ did not “merely recite[] [the] opinion
and reject[] it in one sentence” because it did not come from an acceptable medical
source. No. 11-CV-6500JWF, 2013 WL 4495090, at *10 (W.D.N.Y. Aug. 19, 2013).
Rather, she considered it and “accommodate[d]” it. This Court finds no error in the
weight that the ALJ afforded Dr. Impaglia’s opinion.
15.

Based on a thorough review of the record, this Court has no doubt that

Jankowksi suffers from problems with his lumbar spine. Indeed, he had two back
surgeries. But the ALJ found that, post surgery, Jankowski retains the capacity to do
some limited, sedentary work as long as certain conditions are met. Much of the
evidence to the contrary – suggesting that Jankowski cannot perform any work – is in
the form of his own testimony about the pain he suffers. While an ALJ must consider the
claimant’s testimony, he “is not required to accept the claimant's subjective complaints
without question; he may exercise discretion in weighing the credibility of the claimant's
testimony in light of other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d
Cir.2010) (per curiam). Indeed, “the ALJ alone decides issues of credibility and this
Court must give great deference to those decisions, as the ALJ observed the witness's
testimony and demeanor.” Walker v. Astrue, No. 11-CV-766S, 2012 WL 4473249, at *5
(W.D.N.Y. Sept. 26, 2012) (citing Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n. 6
(S.D.N.Y.1995); Serra v. Sullivan, 762 F. Supp. 1030, 1034 (W.D.N.Y.1991)). Applying
that deferential standard, this Court finds no error in the ALJ’s determination that the
persistence and intensity of Jankowski’s symptoms were somewhat overstated and that
he could perform the type of work outlined in the RFC.

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****
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 11) is DENIED.
FURTHER, that the Clerk of Court shall close this case.
SO ORDERED.
Dated: June 30, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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