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
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?