White v. Commissioner of Social Security
Filing
16
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner'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 9/14/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATTY L. WHITE,
Plaintiff,
-vs-
No. 1:13-CV-01045 (MAT)
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Patty L. White (“plaintiff”) brings
this action pursuant to Title II 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
disability insurance benefits (“DIB”). 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 January 2010, plaintiff (d/o/b July
1, 1967) applied for DIB, alleging disability as of June 2009.
After her applications were denied, plaintiff requested a hearing,
which was held before administrative law judge William M. Weir
(“the ALJ”) on August 19, 2011. The ALJ issued an unfavorable
decision on February 24, 2012. The Appeals Council denied review of
that decision and this timely action followed.
III. Summary of the Record
Plaintiff initially injured her back in 2002, but returned to
her job as a factory worker until June 2009, when she re-injured
her back. She then remained out of work for approximately one year
due to her injury. After returning to work in July 2010, she
injured her shoulder and neck in September 2010. She did not return
to work following that injury. Dr. Franco Vigna, an orthopedic
surgeon, diagnosed plaintiff with lumbar disc herniation at L4-5
and L5-S1, bilateral lower extremity radiculopathy left worse than
right, and bilateral lower extremity weakness. In February 2011,
Dr. Vigna performed a left hemilaminotomy and discectomy at L4-5
and L5-S1. Subsequently, plaintiff attended physical therapy and
reported decreased pain.
The record contains several functional assessments, the most
recent of which came from Dr. Gerald Coniglio and Dr. Vigna. In
June
2011,
Dr.
Coniglio,
an
orthopedic
surgeon
who
examined
plaintiff for worker’s compensation purposes, opined that, among
other restrictions, plaintiff could lift up to 10 pounds, must have
an at-will sit/stand option, and should be provided with a “soft,
well-padded chair.” T. 419. Dr. Coniglio rated plaintiff as 75
percent temporarily disabled, and recommended continued treatment
through physical therapy and steroid injections. In July 2011, Dr.
Vigna opined that plaintiff could occasionally lift or carry no
more than 10 pounds, stand and/or walk less than three hours, sit
less than three hours, must have a sit/stand option every 15 to 30
2
minutes, and
however,
that
could
not
plaintiff
climb,
had
stoop,
not
yet
or
bend.
reached
He indicated,
maximum
medical
improvement, and recommended a work hardening program and continued
physical therapy. He opined that plaintiff’s capabilities would
increase by August 24, 2011.
At her hearing in August 2011, plaintiff testified that she
could lift 10 pounds, could sit for one hour before needing to move
around, and could stand for one hour and walk one block before
getting tired. She testified that she helped her husband with
household cleaning, laundry, and cooking, although she reported
burning herself
cooking.
She
reported
an inability
to
use
a
computer for more than an hour at a time.
IV.
The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2014.
At step one of the five-step sequential evaluation, see 20 C.F.R.
§ 404.1520, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since June 5, 2009, the alleged onset
date. At step two, the ALJ found that plaintiff suffered from the
severe impairments of degenerative disc disease and status post
industrial accident. At step three, the ALJ found that plaintiff
did not have an impairment or combination of impairments that met
or medically equaled the severity of any listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
3
RFC
to
perform
sedentary
work
as
defined
in
20
C.F.R.
§
404.1567(a), except that she was unable to perform repetitive
bending or twisting. At step four, the ALJ found that plaintiff was
capable of performing past relevant work as a factory worker.
Accordingly, the ALJ did not proceed to step five and determined
that plaintiff was not disabled.
V.
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. Barnhart, 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.
Credibility
Plaintiff contends that the ALJ failed to properly assess her
credibility. Specifically, plaintiff argues that the ALJ failed to
perform a sufficiently detailed analysis of her credibility, failed
to properly consider her positive work history as a credibility
factor, and failed to consider plaintiff’s subjective complaints of
pain. A review of the ALJ’s decision reveals that he thoroughly
reviewed plaintiff’s testimony and reports of pain and limitations,
and compared plaintiff’s reports to the medical evidence of record.
See T. 24-27. In coming to his finding that plaintiff’s reports
4
were not entirely credible, the ALJ cited the requirements of 20
C.F.R. § 404.1529, SSR 96-4p, and SSR 96-7p.
The ALJ’s discussion, which incorporates his review of the
testimony, indicates that he used the proper standard in assessing
credibility, especially in light of the fact that he cited the
relevant authorities in that regard. See Britt v. Astrue, 486 F.
App'x
161,
164
(2d
Cir.
2012)
(finding
explicit
mention
of
20 C.F.R. § 404.1529 and SSR 96–7p as evidence that the ALJ used
the proper legal standard in assessing the claimant's credibility);
Judelsohn v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y. June 25, 2012)
(“Failure to expressly consider every factor set forth in the
regulations is not grounds for remand where the reasons for the
ALJ's determination of credibility are sufficiently specific to
conclude that he considered the entire evidentiary record.”). The
ALJ’s conclusion that plaintiff’s reports were not credible because
they
were
inconsistent
with
substantial
record
evidence
was
thus based on a proper application of the law and is supported by
substantial record evidence. See Pietrunti v. Dir., Office of
Workers' Comp.
Programs,
119
F.3d
1035,
1042
(2d
Cir.
1997)
(“Credibility findings of an ALJ are entitled to great deference
and
therefore
can
be
reversed
only
if
they
are
‘patently
unreasonable.’”).
B.
Necessity of Vocational Expert Testimony
Plaintiff contends that the ALJ erred in failing to obtain
vocational expert (“VE”) testimony to assess plaintiff’s ability to
5
perform work in the national economy given her nonexertional
limitations. Plaintiff argues that, pursuant to SSR 83-12, the ALJ
had a duty to consult a VE because plaintiff required a “soft,
well-padded chair,” required a sit/stand option, and could not
stoop. Doc. 12-1 at 8. The only nonexertional limitation found by
the ALJ, however, was that plaintiff could not perform repetitive
bending or twisting.1 There is no indication from the record or
from
precedent
that
such
a
limitation,
by
itself,
would
so
substantially erode plaintiff’s sedentary occupational base that VE
testimony was necessary. See Zabala v. Astrue, 595 F.3d 402, 410–11
(2d
Cir.
2010)
(“[T]he
impairment does not
‘mere
existence
of
a
nonexertional
automatically . . . preclude reliance on the
guidelines.’”); Medley v. Colvin, 2015 WL 4112477, *5 (W.D.N.Y.
July 8, 2015) (“[S]ince Plaintiff's non-exertional limitations did
not significantly erode her occupational base for work at all
exertional levels, the ALJ properly applied Grid Rule 204.00 as a
framework for determining that Plaintiff was not disabled within
the meaning of the Act.”).
VI.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 12) is denied and the Commissioner’s motion
(Doc. 13) is granted. The ALJ’s finding that plaintiff was not
disabled is supported by substantial evidence in the record, and
1
Significantly, plaintiff’s brief does not challenge the
adequacy of the RFC finding.
6
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:
September 14, 2016
Rochester, New York
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