Mitchell v. Colvin

Filing 24

DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings; adopting Report and Recommendations in its entirety re 17 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/12/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LEON K. MITCHELL, JR.,
Plaintiff,
-vs-

No. 1:14-CV-00011 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Leon K. Mitchell, Jr. (“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 his
application for supplemental security income (“SSI”). The Court has
jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The
matter was initially before the Court on the parties’ cross motions
for judgment on the pleadings.1 The parties’ motions were referred
to Magistrate Judge Leslie G. Foschio for consideration of the
factual and legal issues presented, and to prepare and file a
Report

and

Recommendation

(“R&R”)

containing

a

recommended

disposition of the issues raised.
By

R&R

dated

August

8,

2016,

Magistrate

Judge

Foschio

recommended that the Commissioner’s motion be granted. Doc. 17.
Plaintiff filed objections on August 22, 2016. Doc. 18. The Court
1

This case was originally assigned to Judge Lawrence Vilardo, who referred
it to Magistrate Judge Foschio for a Report and Recommendation, which was
completed and filed on August 8, 2016. The case was referred to this Court by
order dated April 27, 2017.

(Vilardo, J.) held oral argument on the objections January 5, 2017.
For the reasons set forth below, the Court overrules plaintiff’s
objections and adopts the R&R in its entirety.
II.

Procedural History
The

record

reveals

that

in

June

2009,

plaintiff

(d/o/b

December 8, 1975) applied for SSI, alleging disability as of
February

2006.2

After

his

application

was

denied,

plaintiff

requested a hearing, which was held before administrative law judge
Marilyn Zahm (“the ALJ”) on April 11, 2011. The ALJ issued an
unfavorable decision on June 1, 2012. The Appeals Council granted
review of that decision and this timely action followed. The Court
incorporates

by

reference

the

R&R’s

thorough

summary

of

the

administrative record. See doc. 17 at 2-10.
III. Report and Recommendation
Plaintiff’s motion for judgment on the pleadings argues that
(1) the ALJ failed to properly weigh the medical opinions; (2) the
ALJ improperly substituted her own judgment for medical opinion;
(3) the ALJ did not properly consider obesity; (4) the ALJ failed
to fully develop the record; and (5) the ALJ did not consider all
of plaintiff’s severe impairments. The R&R rejected these arguments
and found that the ALJ’s decision was supported by substantial

2
A prior unfavorable disability determination found that plaintiff was not
disabled through February 5, 2009. The relevant time period for purposes of this
claim begins on the application date, June 17, 2009. See Frye ex rel. A.O. v.
Astrue, 485 F. App’x 484, 488 n.2 (2d Cir. 2012) (noting that the relevant time
period for an SSI benefits application is “the date the SSI application was
filed, to . . . the date of the ALJ’s decision”).

2

evidence. Accordingly, the R&R recommended that the Commissioner’s
motion be granted.
IV.

Discussion
When reviewing a magistrate judge’s report and recommendation,

a district court must “make a de novo determination of those
portions

of

the

report

or

specified

proposed

findings

or

recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[.]” Id.
Plaintiff

specifically

objects

to

each

of

Judge

Foschio’s

conclusions, although the objections essentially reiterate his
arguments on the original motion. The Court has reviewed the
administrative

record

and

finds

that

Judge

Foschio’s

recommendations are fully supported by the record.
A.

Failure to Properly Weigh Medical Opinions and Failure to
Clarify Opinions of the Treating Physician

Plaintiff’s

primary

argument

is

that

the

ALJ

failed

to

properly weigh the medical opinions of record and failed to clarify
the opinion of plaintiff’s treating physician, Dr. Siaw. Plaintiff
argues that

Judge

Foschio

consulting

reviewing

erred

physician

in

failing

Dr.

Dale

to

consider that

specialized

in

rheumatology, whereas consulting reviewing physician Dr. Trimble
was an internist. Plaintiff contends that the ALJ erred in giving
greater weight to Dr. Trimble’s opinion over Dr. Dale’s. However,
upon a review of the record, the Court concludes that the ALJ gave

3

good

reasons

for

rejecting

Dr.

Dale’s

opinion

in

favor

of

Dr. Dave’s. As the ALJ pointed out, evidence in the record,
including EMG study indicating “no electrodiagnostic evidence of
severe painful neuropathy” as well as subsequent treatment notes
and medical testimony at the hearing indicating no evidence of deep
vein thrombosis (“DVT”), undermined the conclusions of Dr. Dale’s
reviewing opinion. The ALJ was entitled to give more weight to
Dr. Trimble’s opinion based on its overall consistency with the
medical record. See, e.g.,

Beasock v. Colvin, 2014 WL 421324,*9

(N.D.N.Y. Feb. 4, 2014) (finding that ALJ “did not exceed the
bounds of his discretion when electing to give great weight to
opinions of [a] reviewing physician” where those opinions were
“consistent with the record as a whole”).
Plaintiff further argues that the R&R erred in concluding that
the

ALJ

properly

gave

little

weight

to

several

opinions

of

plaintiff’s treating physician, Dr. Siaw. As a corollary argument,
plaintiff contends that the ALJ should have further clarified
Dr. Siaw’s opinions by subpoenaing him to testify. However, the ALJ
did clarify certain aspects of Dr. Siaw’s opinions with two sets of
interrogatories. See T. 1497-1500 (responses dated July 19, 2011),
1507-12 (responses dated October 25, 2011). Dr. Siaw’s responses
indicate, as the R&R found, that he based his conclusions largely
on plaintiff’s own reports rather than objective medical testing.
Dr. Siaw stated that objective medical evidence supporting his

4

opinion

included

a

“failed”

2006

back

surgery3

and

“old

MRI

records” showing evidence of lumbar radiculopathy. The Court finds
that the ALJ did not fail to develop the record by clarifying
Dr. Siaw’s opinions, given the two sets of interrogatories sent to,
and answered by, Dr. Siaw. If plaintiff wished to submit more
specific commentary from Dr. Siaw, he could have done so through
additional documentary evidence; however, on this record Dr. Siaw’s
opinions required no further clarification.
After reviewing the record and the ALJ’s decision, the Court
concludes that the ALJ gave good reasons for rejecting Dr. Siaw’s
treating opinions, which reasons were grounded in the factors set
forth in the regulations governing the evaluation of opinion
evidence. See 20 C.F.R. § 404.1527. The ALJ reasonably considered
that Dr. Siaw’s record of treatment with plaintiff included a gap
of approximately 18 months in the relevant time period. See id.
§ 404.1527(c)(2)(i), (ii). Moreover, the ALJ properly considered
the extent to which medical signs and laboratory findings supported
Dr. Siaw’s opinions. See id. § 404.1527(c)(3). Finally, the ALJ
properly considered the extent to which Dr. Siaw’s opinions were
consistent with the entire medical record, including the findings
of consulting examining physician Dr. Dave and reviewing physician
Dr. Trimble. See id. § 404.1527(c)(4). The reasons given by the ALJ
for rejecting Dr. Siaw’s opinions were supported by substantial

3
The Court notes that this surgery took place prior to the adjudication
of plaintiff’s previous disability application, which was resolved unfavorably
on February 5, 2009.

5

evidence

in

the

record,

and

the

Court

will

not

reweigh

the

evidence. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002)
(noting that where a decision “rests on adequate findings supported
by evidence having rational probative force,” a court may “not
substitute [its] judgment for that of the Commissioner.”).
B.

Substitution of ALJ’s Lay Judgment for Medical Opinion

Plaintiff contends that the ALJ improperly substituted her own
judgment for medical opinion, and argues that the R&R erred in
concluding otherwise. However, as the R&R points out, the ALJ
properly considered EMG testing, which was interpreted by Dr. Gary
Wang as indicating “no electrodiagnostic evidence of severe painful
neuropathy”

and

“[n]o

electrodiagnostic

evidence

of

acute

lumbosacral radiculopathy.” T. 596. Moreover, as the R&R noted,
Dr. Siaw’s responses to interrogatories indicated that he based his
assessment of plaintiff’s limitations on plaintiff’s subjective
complaints. See T. 1498-1500. As the R&R found, the ALJ did not err
in “differentiat[ing] between portions of Dr. Siaw’s reports based
on

medical

tests

and

those

supported

only

by

[p]laintiff’s

subjective reports.” Doc. 17 at 23 (citing Ford v. Astrue, 2010 WL
3825618,

*9

(N.D.N.Y.

Sept.

24,

2010)

(“[I]t

was

entirely

appropriate for the ALJ to differentiate between those portions of
[the treating physician’s] report based on objective tests and
those supported only by [p]laintiff's subjective report.”)).

6

C.

Consideration of Obesity

Plaintiff contends that the R&R erred in concluding that the
ALJ properly considered plaintiff’s obesity. Upon a review of the
record and the ALJ’s decision, the Court concludes that the ALJ
properly

considered

the

effects

of

plaintiff’s

obesity

in

accordance with the SSR 02-1p. That ruling provides that obesity is
to be considered throughout the sequential evaluation process. Id.;
see also Sotack v. Astrue, 2009 WL 3734869, *4 (W.D.N.Y. Nov. 4,
2009). Here, the ALJ’s decision makes clear that she considered
obesity in the overall disability determination, as the R&R found.
See T. 49, 53, 55, 58, 60.
D.

Step Two Determination

Plaintiff

objects

to

the

R&R’s

conclusion

that

the

ALJ

properly found plaintiff’s conditions of antiphospholipid syndrome
and

history

of

thoracic

spine

disc

bulge

to

be

non-severe

impairments at step two of the sequential analysis. The Court,
however, agrees with the R&R that the record supported the ALJ’s
conclusion that these impairments did not significantly limit
plaintiff’s ability to perform work activities. As the R&R noted,
evidence in the record indicated that during the relevant time
period, neither plaintiff’s antiphospholipid syndrome nor thoracic
spine disc bulge resulted in work-related limitations. Moreover,
the ALJ’s decision thoroughly reviewed the evidence and considered
the totality of plaintiff’s impairments such that any error at step
two was harmless. See Diakogiannis v. Astrue, 975 F. Supp. 2d 299,
7

311-12 (W.D.N.Y. 2013) (“[A]n error in an ALJ’s severity assessment
with regard to a given impairment is harmless . . . when it is
clear that the ALJ considered the

claimant’s [impairments] and

their effect on his or her ability to work during the balance of
the sequential evaluation process.”) (internal quotation marks and
citations omitted).
V.

Conclusion
The Court hereby adopts the R&R (doc. 17) in its entirety. For

the reasons discussed in this Decision and Order as well as those
set forth in the R&R, the Commissioner’s motion for judgment on the
pleadings (Doc. 12) is granted and plaintiff’s motion (Doc. 8) is
denied. Plaintiff’s objections (doc. 18) are overruled. 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:

May 12, 2017
Rochester, New York.

8