Lewis v. Colvin

Filing 19

ORDER denying 15 Plaintiff's Motion for Judgment on the Pleadings; granting 17 Commissioner's Motion for Judgment on the Pleadings and dismissing the complaint. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/19/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KIM LEWIS,
Plaintiff,
-vs-

No. 1:13-CV-01152 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Kim Lewis (“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 December 2010, plaintiff (d/o/b

June

3,

1961)

applied

for

DIB,

alleging

disability

as

of

January 17, 2010. After her application was denied, plaintiff
requested a hearing, which was held before administrative law judge
Robert T. Harvey (“the ALJ”) on August 8, 2012. The ALJ issued an
unfavorable decision on September 5, 2012. The Appeals Council

denied

review

of

the

ALJ’s

decision

and

this

timely

action

followed.
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Act through March 30, 2015. At step one of the
five-step sequential evaluation process, see 20 C.F.R. § 404.1520,
the ALJ determined that plaintiff had not engaged in substantial
gainful activity since January 17, 2010, the alleged onset date. At
step two, the ALJ found that plaintiff suffered from the severe
impairments of status post anterior cervical discectomy and fusion
at C5-C6, cervical pain with radiculopathy, and degenerative disc
disease of the thoracic and lumbar spine. 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,
considering all of plaintiff’s impairments, plaintiff retained the
residual functional capacity (“RFC”) to perform light work as
defined in 20 C.F.R. § 404.1567(b) except that she could not lift
or carry more than 10 pounds; she had occasional limitations in
bending, climbing, stooping, squatting, kneeling, and balancing,
with no climbing of ropes, ladders, or scaffolds and no crawling;
she had ccasional limitations in the ability to reach in all
directions, with her non-dominant (left) upper extremity, and
occasional

limitations

in

pushing

or

pulling

with

the

upper

extremities; and she could not work in areas where she would be
exposed to cold or dampness. At step four, the ALJ found that
2

plaintiff

was capable

of performing

past

relevant

work

as

a

substance abuse counselor and caseworker, which jobs did not
involve the performance of work-related activities precluded by her
RFC. Accordingly, the ALJ found plaintiff not disabled and did not
proceed to step five.
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. 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’s primary contention is that the ALJ failed to
properly assess her credibility. Plaintiff argues that the ALJ
“cherry picked” testimony that supported his credibility finding
and failed to consider her work history in reaching his credibility
determination. “Generally speaking, it is the function of the ALJ,
not the reviewing court, ‘to resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.’”
Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 113 (2d Cir.
2010) (quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d
638, 642 (2d Cir. 1983)). The ALJ is required to consider all of

3

the evidence before him, including the plaintiff’s testimony, in
reaching his credibility determination. See id.
In reaching his credibility finding in this case, the ALJ
summarized plaintiff’s testimony as well as her treatment notes
including objective medical evidence. He noted that plaintiff
testified that her “activities of daily living [“ADLs”] [included]
doing puzzles 3 to 4 hours per week, driving a car 15 miles per
week, cleaning, cooking, vacuuming, sweeping, attending church and
visiting friends,” and found that these ADLs were “inconsistent
with the allegations of disability.” T. 15.
The

ALJ

summarized

evidence

indicating

that

plaintiff

underwent an anterior cervical discectomy and fusion at C5-C6 in
January 2005, after which she returned to full-time work. The ALJ
noted that plaintiff pursued relatively conservative treatment,
indicating to treating sources that she did not wish to pursue
surgical intervention, and instead treating primarily with pain
medication. In December 2009, pain management specialist Dr. Andrew
Matteliano continued plaintiff on hydrocodone for pain, and noted
that

she

would

“continue

with

the

exercises

and

go

to

the

chiropractor.” T. 311. In treatment with Dr. Matteliano throughout
2012, plaintiff continued to be prescribed hydrocodone and Soma, as
well

as

moist

heat

and

exercises.

On

physical

examinations,

plaintiff demonstrated tenderness and some limited range of motion
of the cervical spine and trapezius muscles bilaterally.
The ALJ also considered the results of diagnostic imaging
tests. In January 2010, a cervical spine MRI revealed development
4

of a new C4-C5 disc degeneration “with a minimal annular disk
bulge” and “increased mild broad-based C6-C7 disk herniation.” See
T.

302.

The

ALJ

gave

this

MRI

“significant

weight.”

T.

15.

Additional imaging studies performed in 2011 and 2012 indicated
mild spinal canal stenosis at L3-L4 and L4-L5, with no evidence of
foraminal

stenosis;

minimal

degenerative

changes

of

the

left

sacroiliac joints; facet joint degenerative changes at the L4-L5
and L5-S1 levels; moderate degenerative disc disease at T10-T1 and
T11-T12; minimal degenerative disc disease at the L1-L4 levels;
multilevel degenerative disc disease with small disc herniations
and mid/lower facet arthrosis, “although the lumbar canal caliber
remain[ed] adequate,” T. 408; and bulging and disc protrusion
combined with spurring, encroaching on multiple neural foramina,
especially on the left. As the ALJ noted, imaging tests did not
indicate nerve root or significant thecal sac compression of the
lumbar spine.
In February 2011, Dr. Donna Miller performed a consulting
examination

at

the

request

of

the

state agency.

On

physical

examination, Dr. Miller noted that plaintiff was in no acute
distress; her gait was normal; she could walk on heels and toes
without difficulty, had a full squat, normal stance, and used no
assistive devices; she needed no help changing for the exam or
getting on or off the exam table; and she was able to rise from her
chair

without

difficulty.

Plaintiff

had

“some

cervical

and

paracervical tenderness” at C5-C7 and demonstrated decreased range
of motion (“ROM”) of the cervical spine. T. 319. Straight leg
5

raising (“SLR”) test was negative. Plaintiff had reduced ROM of the
shoulders,

but

full

ROM

of

the

elbows,

forearms,

and

wrists

bilaterally, with full range of motion of the hips and ankles
bilaterally. Dr. Miller diagnosed chronic neck pain, status post
cervical fusion; sleep apnea; obesity; and tobacco abuse; all with
a stable prognosis. Dr. Miller opined that plaintiff had “moderate
limitations for repetitive heavy lifting, reaching, pushing and
pulling.” T. 320.
The

Court

has

reviewed

the

administrative

transcript,

including plaintiff’s testimony at her hearing. Although the ALJ’s
decision does not give a thorough summary of plaintiff’s testimony,
he did not err in pointing out that plaintiff’s ADLs included
cleaning, cooking, vacuuming, sweeping, attending church, visiting
friends, and driving. Plaintiff testified that she cleaned and
cooked “[l]ightly,” “tr[ied]” to sweep and vacuum, went to church
and visited friends, drove a car approximately 15 miles a week, and
bathed and dressed herself although it was “difficult.” T. 40-41.
In a function report completed for purposes of her application,
plaintiff averred that although her son helped her with chores
around the house, she did “light work” including “some cleaning.”
T. 167-68.
Although the ALJ could have given a more balanced summary of
plaintiff’s testimony, in which she stated that she had difficulty
with many ADLs and suffered from constant pain, the Court concludes
that the ALJ’s credibility finding was supported by substantial
evidence, including plaintiff’s own testimony, objective medical
6

evidence, and the consulting opinion of Dr. Miller. See Stanton v.
Astrue, 370 F. App’x 231, 234 (2d Cir. 2010) (“We have no reason to
second-guess the credibility finding in this case where the ALJ
identified

specific

record-based

reasons

for

his

ruling.”).

Plaintiff also argues that the ALJ failed to properly consider
her work history in considering her credibility. However, it is
clear from the decision that the ALJ was aware of plaintiff’s work
history and

found

her

partially

incredible

in

spite

of

that

history. “No different conclusion is warranted by the ALJ's failure
to reference specifically [plaintiff’s] good work history [in his
credibility discussion], because substantial evidence aside from
work history supports the adverse credibility ruling.” Id. (citing
Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998)).
Finally, plaintiff argues that the ALJ failed to properly
consider

the

applicable

regulatory

factors,

see

20

C.F.R.

§ 404.1529, in reaching his credibility determination. The Court
finds, however, that the ALJ’s credibility discussion indicates
that he used 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). Moreover, “[a]lthough the ALJ did not
explicitly discuss all of the relevant factors, [plaintiff] has
failed to point to any authority requiring him to do so. In any
event,

the

ALJ

cited

the

applicable
7

regulation,

20

C.F.R.

§ 404.1529, explicitly mentioned some of the regulatory factors
[such as plaintiff’s ADLs and course of treatment], and stated that
he considered all of the evidence required by § 404.1529.” Pellam
v. Astrue, 508 F. App’x 87, 91 (2d Cir. 2013). Accordingly, the
Court finds that the credibility determination was supported by
substantial evidence.
B.

Vocational Expert Testimony

Plaintiff next contends that the ALJ “fail[ed] to credit”
answers given by the vocational expert (“VE”) in response to the
various hypotheticals posed by the ALJ. See doc. 15-1 at 11-12. In
response to a first hypothetical posed by the ALJ, which included
limitations on sitting and standing, the VE testified that such an
individual could not perform any of plaintiff’s past relevant work.
The ALJ then revised the hypothetical to describe an individual
consistent with his ultimate RFC finding; the VE responded that
such an individual could perform plaintiff’s past relevant work of
substance abuse counselor and case manager.
Plaintiff’s argument hinges on an underlying contention that
the ALJ’s RFC was unsupported by substantial evidence. See doc. 151 at 12 (arguing that the “RFC was faulty in that it did not
reflect the objective evidence and testimony[,] [n]o sit/stand
limitation was given, no limitation as to twisting of the neck was
given, [and] no usage of a cane was mentioned”). However, the Court
finds that the RFC was supported by substantial evidence, in that
it was consistent with the medical record as a whole and with the
opinion of consulting examiner Dr. Miller, who found limitations
8

only as to heavy lifting, reaching, pushing, and pulling – but no
limitations as to sitting and standing. See Petrie v. Astrue, 412
F. App’x 401, 405 (2d Cir. 2011) (“The report of a consultative
physician may constitute . . . substantial evidence.”) (citing
Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (per
curiam)). The hypothetical posed to the VE was consistent with
Dr. Miller’s findings as well as the RFC found by the ALJ, and the
ALJ was therefore entitled to rely upon the VE testimony in making
his step four finding. See Thompson v. Astrue, 2013 WL 265239, *5
(W.D.N.Y. Jan. 23, 2013)).
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Doc. 15) is denied and the Commissioner’s motion
(Doc. 17) is granted. 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:

March 18, 2017
Rochester, New York

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