Fleming v. Colvin

Filing 18

ORDER granting 12 the Government's Motion for Judgment on the Pleadings; denying 13 Plaintiff's Motion for Judgment on the Pleadings; and terminating 7 Motion to Stay. Signed by Hon. Michael A. Telesca on 11/04/2015. Clerk to close case. (ET)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TRINA E. FLEMING,
Plaintiff,
-vs-

No. 1:13-CV-00788 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Trina E. Fleming (“plaintiff”) brings

this action pursuant to Title XVI of 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”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the Commissioner’s
motion is granted.
II.

Procedural History
The record reveals that in May 2010, plaintiff (d/o/b April

27, 1970) applied for SSI, alleging disability as of November 15,
2008

due

to

blood

clots

in

the

legs

and

lungs.

After

her

application was denied, plaintiff requested a hearing, which was
held before administrative law judge Stanley A. Moskal, Jr. (“the
ALJ”) on April 23, 2012. The ALJ issued an unfavorable decision on

June 8, 2012. The Appeals Council denied review of that decision
and this timely action followed.
III. The ALJ’s Decision
The ALJ followed the well-established five-step sequential
evaluation

promulgated

by

the

Commissioner

for

adjudicating

disability claims. See 20 C.F.R. § 404.1520. At step one, the ALJ
determined that Plaintiff had not engaged in substantial gainful
activity since May 13, 2010, the application date. At step two, the
ALJ

found

that

plaintiff

suffered

from

the

following

severe

impairments: deep vein thrombosis, protein C deficiency, bilateral
osteoarthritis of the knees, and morbid obesity. At step three, the
ALJ found that plaintiff did not have an impairment or combination
of impairments that met or medically equaled a listed impairment.
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work as defined in 20 C.F.R. 416.967(a) and that
she could: lift and carry five pounds frequently and ten pounds
occasionally; stand and walk for up to two hours during the course
of an eight-hour workday; sit for up to six hours in an eight-hour
workday; engage in postural activities occasionally but not climb
ropes, ladders, or scaffolds. The ALJ also found that she should
avoid working around heights and avoid concentrated exposure to
environmental contaminants. Because plaintiff had no past relevant
work,

the

ALJ

proceeded

to

step

2

five

and

determined

that,

considering plaintiff’s age, education, work experience, and RFC,
jobs existed in significant numbers in the national economy that
plaintiff could perform. Accordingly, the ALJ found that plaintiff
was not disabled.
IV.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

Treating Physician Rule

Plaintiff contends that the ALJ improperly substituted his own
medical judgment for that of her treating physician, Dr. Neelish
Welling,

when

the

ALJ

rejected

Dr.

Welling’s

statement

that

plaintiff needed to elevate her legs. Plaintiff also argues that to
the

extent

that

the

ALJ

intended

to

rely

upon

a

consulting

examination from Dr. Donna Miller instead of Dr. Welling’s more
restrictive opinion, the RFC finding is not actually supported by
Dr. Miller’s opinion. For the reasons discussed below, the Court
finds

that

the

ALJ

properly

evaluated

Welling’s and Dr. Miller’s opinions.

3

and

weighed

both

Dr.

Dr. Welling, who treated plaintiff at Cleve-Hill Family Health
Care Center for approximately five months, submitted opinions dated
January 25, 2012 and May 17, 2012. The January 2012 statement,
portions of which the ALJ gave weight in his decision, assessed
plaintiff’s abilities to do work-related activities. That statement
opined that plaintiff could frequently lift up to ten pounds;
occasionally lift up to 20 pounds; occasionally carry up to 20
pounds; sit for up to six hours in an eight-hour workday; stand for
up to five hours in an eight-hour workday; walk for up to four
hours in an eight-hour workday; sit and stand for up to 45 minutes
at a time; walk for up to 30 minutes at a time; never climb ropes
or ladders; occasionally climb stairs and ramps, stoop, kneel,
crouch,

and

crawl;

and

frequently

balance.

According

to

Dr.

Welling, plaintiff could tolerate occasional exposure to dust,
odors, fumes and pulmonary irritants, extreme cold, and extreme
heat, but could never be exposed to unprotected heights, moving
mechanical parts, operating a motor vehicle, or vibrations. Dr.
Welling checked boxes indicating that plaintiff could perform all
activities of daily living. Dr. Welling stated that his opinion was
supported

by

objective

findings

consisting

of

x-rays

showing

bilateral osteoarthritis of the knees, and a history of deep vein
thrombosis and protein C deficiency.
Dr. Welling’s May 2012 opinion was in the form of a one-page
letter, which stated that plaintiff had treated with him since

4

January for protein C deficiency, right lower extremity deep vein
thrombosis, and bilateral osteoarthritis of the knees. He then went
on to state that “[s]ince her diagnosis, she has complained of the
symptoms of . . . [a] [n]eed to elevate legs during the course of
a day for symptomatic relief of pain.” T. 314 (emphasis added). Dr.
Welling opined that this symptom, as well as the other symptoms of
which plaintiff complained, prohibited plaintiff from sitting in
one position for more than three hours at a time and standing for
more than one and a half hours at a time.
Dr. Miller issued a January 2010 consulting opinion, which
found plaintiff’s physical examination to be essentially normal
except for limited range of motion in the lumbar spine. Dr. Miller
opined that plaintiff “had no significant physical limitations,”
but recommended that she avoid heavy lifting, repetitive bending,
and kneeling secondary to her protein C deficiency. T. 223.
The

ALJ

summarized

Dr.

Welling’s

two

medical

source

statements, and gave weight to those opinions to the extent that
they were consistent with an RFC for sedentary work. In general,
sedentary work requires six hours of sitting and up to two hours of
standing and walking in an eight-hour day. See SSR 96–9p; SSR
83–10. If the need for a sit/stand option “cannot be accommodated
by

scheduled

breaks

and

a

lunch

period,”

it

will

erode

the

claimant's occupational base. SSR 96–9p. Here, the ALJ rejected
those portions of Dr. Welling’s opinions which suggested that she

5

may need a sit/stand option, instead finding that she could perform
a full range of sedentary work. In rejecting the portions of Dr.
Welling’s

opinions

which

conflicted

with

an

RFC

to

perform

sedentary work, the ALJ found that Dr. Welling’s own treatment
notes, Dr. Miller’s consulting opinion, and other substantial
evidence in the record contradicted Dr. Welling’s restrictive
findings.
The treating physician rule provides that an ALJ must give
controlling weight to a treating physician's opinion if that
opinion is well-supported by medically acceptable clinical and
diagnostic techniques and not inconsistent with other substantial
evidence in the record. See Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004); 20 C.F.R. § 416.927(c)(2). The Court agrees with
the ALJ, however, that Dr. Welling’s assessment of plaintiff’s
sitting and standing limitations was not supported by substantial
record evidence. Plaintiff’s physical examinations, including those
performed by Dr. Welling, were consistently unremarkable with the
exception of crepitus in both knees. Where the extent of the
crepitus was explained, it was noted to be slight, with full range
of motion of both knees, and “slight pain on palpation” of the
lateral joint line. T. 302. X-rays of both knees showed only mild
osteoarthritis,

which

condition

was

controlled

with

Tylenol.

Moreover, Dr. Miller found that plaintiff had no significant
physical limitations whatsoever. Contrary to plaintiff’s argument,

6

that finding was consistent with an ability to perform sedentary
work.
The ALJ was within his discretion to accept certain portions
of Dr. Welling’s opinion, but reject those that were not supported
by his own treatment notes or other substantial record evidence.
See Pavia v. Colvin, 2015 WL 4644537, at *4 (W.D.N.Y. Aug. 4, 2015)
(noting that it is “within the province of the ALJ to credit
portions of a treating physician's report while declining to accept
other portions of the same report”) (citing Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002)). The Court concludes that the ALJ’s
RFC finding was based on a proper application of the relevant legal
principles and that it is supported by substantial record evidence.
V.

Conclusion
For the foregoing reasons, the Commissioner’s motion for

judgment on the pleadings (Doc. 12) is granted and plaintiff’s
cross-motion (Doc. 13) is denied. The ALJ’s finding that plaintiff
was not disabled is supported by substantial evidence in the
record, and accordingly, the Complaint is dismissed in its entirety
with prejudice. The Clerk of the Court is directed to close this
case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated

November 4, 2015
Rochester, New York.
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