Mitchell v. Colvin
Filing
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DECISION AND ORDER GRANTING Defendant's 7 Motion for Judgment on the Pleadings; DENYING Plaintiff's 6 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 6/22/2015. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROOSEVELT M. MITCHELL,
Plaintiff,
v.
DECISION AND ORDER
14-CV-303S
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
1.
Plaintiff Roosevelt M. Mitchell challenges an Administrative Law Judge’s
(“ALJ”) determination that he is not disabled as defined by the Social Security Act (“the
Act”). Plaintiff alleges that he became disabled in March 2011, due to neck pain, back
pain, and diabetes. Plaintiff contends that his impairments have rendered him unable to
work. He therefore asserts that he is entitled to payment of Supplemental Security
Income benefits (“SSI”) under the Act.
2.
Plaintiff filed an application for SSI benefits on April 5, 2011. His
application was denied. At Plaintiff’s request, an administrative hearing was held before
ALJ Robert T. Harvey on June 21, 2012. Plaintiff appeared with counsel at the hearing
and testified.
ALJ Harvey considered the case de novo. On August 6, 2012, ALJ
Harvey found that Plaintiff was not disabled. On March 7, 2014, the Appeals Council
denied Plaintiff’s request for review.
3.
Plaintiff filed the current civil action on April 23, 2014, challenging
Defendant’s final decision. On August 1, 2014 and August 7, 2014, the parties filed
Motions for Judgment on the Pleadings (Docket Nos. 6, 7) pursuant to Rule 12(c) of the
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Federal Rules of Civil Procedure. For the reasons discussed below, Defendant’s motion
is granted and Plaintiff’s is denied.
4.
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is
evidence that amounts to “more than a mere scintilla,” Richardson v. Perales, 402 U.S.
389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971), and is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5.
“To determine on appeal whether the ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight." Williams on Behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the
Commissioner's finding must be sustained "even where substantial evidence may
support the plaintiff's position and despite that the court's independent analysis of the
evidence may differ from the [Commissioner’s]." Rosado v. Sullivan, 805 F. Supp. 147,
153 (S.D.N.Y. 1992).
In other words, this Court must afford the Commissioner's
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determination considerable deference, and may not substitute "its own judgment for that
of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review." Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d
Cir. 1984).
6.
The Commissioner has established a five-step sequential evaluation
process to determine whether an individual is disabled as defined under the Social
Security Act. See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court
recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107
S. Ct. 2287, 2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for
analyzing whether a claimant is disabled.
7.
This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a "severe impairment" which
significantly limits his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which
is listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a "listed" impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8.
While the claimant has the burden of proof as to the first four steps, the
Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
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at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this
inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant's job qualifications by considering his physical ability, age, education and work
experience.
Second, the Commissioner must determine whether jobs exist in the
national economy that a person having the claimant's qualifications could perform. See
42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458,
460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.
In the present case, the ALJ made the following findings with regard to the
five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful
activity since the alleged onset of his disability (R. at 13); (2) Plaintiff has “severe
impairments,” including discogenic cervical spine and cervical radiculopathy, which
significantly limits his physical or mental ability to perform basic work activities (20 CRF
404.1520(c) and 416.920(c)), (R. at 13); (3) Plaintiff does not have a mental or physical
impairment, based solely on medical evidence, listed in Appendix 1 of the regulations.
20 CFR Part 404, Subpart P. Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.92(6), (R. at 13-14); (4) Plaintiff has retained the residual
functional capacity (“RFC”) for light work, with certain limitations; 1 and (5) Plaintiff has
the ability to perform past relevant work as a machine operator and janitor. (R. at 18).
Ultimately, the ALJ found that Plaintiff was not disabled, as defined by the Act, and was
not entitled to supplemental security income. (R. at 18).
10.
Plaintiff advances three challenges to the ALJ’s decision. First, he argues
that the ALJ erred in evaluating his residual functional capacity (“RFC”) by improperly
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Light work includes (1) lifting no more than 20 pounds at a time, (2) limiting the ability to reach in all
directions or pull with his upper extremities, and (3) no crawling or working in areas where Plaintiff would
be exposed to cold. (R. at 14).
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evaluating the opinion of Donna Miller, D.O., and failing to develop the record. Second,
Plaintiff argues that the ALJ did not rely on substantial evidence in evaluating whether
he could perform his past relevant work. Third, Plaintiff argues that the ALJ did not fairly
or adequately assess his credibility. All three arguments are unpersuasive.
11.
Plaintiff’s first challenge is that the ALJ erred in evaluating his RFC. He
asserts that the ALJ failed to incorporate Dr. Miller’s opinion concerning his ability to
bend, turn, twist, and reach, with no explanation. Dr. Miller opined that Plaintiff had
moderate limitation with respect to repetitive heavy lifting, bending, turning, twisting,
reaching, pushing, and pulling. (R. at 311-314).
An RFC assessment is “a finding of the range of tasks [a claimant] is capable of
performing notwithstanding the impairments at issue.” See Amrod v. Comm’r of Social
Sec., No. 5:08-CV-464, 2010 WL 55934, 17 (N.D.N.Y. Jan. 5, 2010) (citing 20 C.F.R. §§
404.1545(a), 416.945(a)). As a preliminary matter, an ALJ is not required to accept a
physician’s opinion in whole; the ALJ may accept certain portions of the opinion and
reject others. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
Here, the ALJ determined that Plaintiff had the RFC to perform light work, with
the exception that he had “occasional limitations in the ability to reach in all directions or
pull with his upper extremities, he cannot crawl or work in areas where he would be
exposed to cold.” (R. at 14). In reaching this determination, the ALJ considered Dr.
Miller’s observations stemming from her examination of Plaintiff on July 12, 2011. (R. at
311-314). At that time, Dr. Miller found Plaintiff’s gait and stance normal. (R. at 311314). Further, she observed that Plaintiff did not require any assistance in dressing or
getting on and off the examination table. (R. at 311-314). Additionally, Dr. Miller noted
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that “[Plaintiff’s] joints were stable and non-tender. There was no redness, heat,
swelling, or effusion.” (R. at 311-314). But Dr. Miller also noted that Plaintiff had
unspecified “issues” with lifting, bending, turning, twisting, reaching, pushing, and
pulling. (R. at 311-314).
Notwithstanding Dr. Miller’s identification of unexplained “issues,” evidence from
the record establishes that Plaintiff completed a range of daily tasks---cleaning, cooking,
and shopping---with the help of his daughter. (R. at 35). Plaintiff was also able to walk
and push weight. (R. at 35).
Dr. Miller’s own observations and Plaintiff’s testimony concerning his daily
activities conflict with Dr. Miller’s assessment of Plaintiff’s limitations. The ALJ was
therefore permitted to give “great weight” to that portion of Dr. Miller’s opinion that was
supported by the evidence and discount the portion that was not. See Venio v.
Barhnhart, 213 F.3d 578, 588 (2d Cir. 2002).
12.
Moreover, the ALJ’s RFC finding is supported by other medical evidence
in the record, from Drs. Patel, Fox, Bansal, and Williams, which included no limitations
on twisting, turning, or bending, as determined by Dr. Miller. The treatment notes
support the ALJ’s finding that Plaintiff’s RFC included light work.
Observations by Dr. Fox and Dr. Patel reveal that Plaintiff’s diabetes was under
control and he was taking his medications regularly. On February 14, 2011, Dr. Patel
examined Plaintiff and determined that his average glucose readings were 135-140. (R.
at 214-216). Further, Plaintiff disclosed to Dr. Patel that he was walking 30 minutes per
day indicating that Plaintiff was mobile. (R. at 214-216). Finally, Dr. Fox found that
Plaintiff had full range of motion of the cervical spine. (R. at 222-223).
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Further examinations by Drs. Bansal and Williams revealed that Plaintiff had
normal sensation and reflexes. (R. at 249-289, 324-333). Specifically, Dr. Bansal’s
examination revealed that Plaintiff had a normal sensory system, motor system, and
deep tendon reflexes in the upper and lower extremities. (R. at 249-289). Dr. Bansal
recommended that Plaintiff stretch at home to help ease his pain. (R. at 249-289). Dr.
Williams found that Plaintiff had normal muscle tone and full range of motion. (R. at 324333). During a subsequent appointment with Dr. Williams, Plaintiff informed him that his
pain level had decreased. (R. at 324-333).
Months later, Plaintiff was again seen by Dr. Bansal, at which time Plaintiff
expressed that he no longer had back pain and his flexibility had increased, although
Dr. Bansal noted neck pain and recommended physical therapy. (R. at 249-289). Upon
a subsequent examination, Dr. Bansal reported that Plaintiff stated the physical therapy
was hurting his back and the medication prescribed was not controlling his pain to a
tolerable level. (R. at 249-289). Despite Plaintiff’s complaints, Dr. Bansal determined
that Plaintiff’s sensory, motor, and deep tendon reflexes were normal in the upper and
lower extremities. (R. at 249-289). Thus, the various examinations performed by the
various physicians support the ALJ’s conclusion that Plaintiff is able to perform light
work, with the limitations noted.
13.
Plaintiff also argues that the ALJ erroneously relied on an absence of
evidence in evaluating his limitations, rather than properly developing the record by
requesting opinions from his treating physicians. It is, however, Plaintiff’s burden to
prove his RFC. An ALJ must develop a claimant’s complete medical history for at least
12 months before the month the claimant filed his or her application for disability. See
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20 C.F.R. §§ 404.1512(d), 416.912(d). Further, requesting additional opinions from
medical providers is only necessary when the ALJ cannot make a credibility
determination based on the evidence of record. See 20 C.F.R. § 404.15612(e)(1). This
occurs when there is a conflict or ambiguity that must be resolved because of a lack of
necessary information in evaluating opinion evidence to make a disability determination.
See Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496,
505 (2d Cir. 1998).
In the present case, the ALJ properly developed and analyzed the evidence in
the record. As the record shows, the agency sent Plaintiff a letter explaining, “[i]f there is
any evidence you want the ALJ to see, please give it to us as soon as possible. . . If a
physician, expert or other person is not providing documents important to your case;
you may ask the ALJ to issue a subpoena.” (R. at 84). There exists no evidence that
Plaintiff asked the ALJ for assistance in this matter. Nor did the ALJ find that additional
medical information was necessary to resolve Plaintiff’s application. Indeed, the record
was complete with evidence from Drs. Fox, Bansal, Patel, Miller, and Williams. This was
sufficient evidence from which the ALJ could make an RFC finding. Development of the
record was therefore not required. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.
1999); see also Thompson v. Colvin, No. 12-CV-0890 (MAT), 2015 WL 3621532
(W.D.N.Y. June 9, 2015).
14.
Plaintiff’s second argument is that the ALJ’s finding that Plaintiff could
perform his past relevant work is not supported by substantial evidence. Plaintiff argues
that the ALJ erred by neglecting to consult the U.S. Department of Labor’s Dictionary of
Occupational Titles (DOT), or a vocational expert when determining whether he had a
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disability. The Second Circuit has held that, “the mere existence of a nonexertional
impairment does not automatically require the production of a vocational expert.” See
Bapp v. Bower, 802 F.2d 601, 605 (2d Cir. 1986). An individual is able to perform past
relevant work when he can perform the functional demands and duties of the job as he
actually performed it or as generally required by employers throughout the national
economy. See Jock v. Harris, 651 F.2d 133, 135 (2d Cir. 1981).
15.
Here, the record includes several descriptions of Plaintiff’s past work.
Plaintiff testified that his janitorial job required that he lift 10 to 25 pounds. (R. at 33).
Further, Plaintiff explained that he spent approximately four and a half hours on his feet
and about three and a half hours kneeling daily. (R. at 34). Additionally, Plaintiff testified
that as a machine operator, he was required to lift 5 pounds and was on his feet for
most of the day. (R. at 18). This type of work is consistent with the ALJ’s RFC finding.
(R. at 18). Plaintiff further argues that his work as a machine operator should not be
considered because he did not work long enough for it to constitute past relevant work
under the law. He also argues that there is no evidence to illustrate that he had the RFC
to perform his past janitorial work.
These arguments are unpersuasive. A claimant must only perform work long
enough to learn to do it for it to properly be considered past relevant work. See 20
C.F.R. §§ 404.1565(a), 416.965(a). Plaintiff testified that he worked at Star-Lite
Manufacturing on a production line as a machine operator between 2000 and 2001. (R.
at 32). Nothing in the record suggests that Plaintiff’s skill set was insufficient for him to
learn the job. Finally, as explained above, the ALJ’s determination that Plaintiff could
perform his past janitorial work is supported by substantial evidence.
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16.
Third and finally, Plaintiff argues that the ALJ failed to properly evaluate
his credibility because the ALJ did not properly consider his subjective complaints.
Credibility determinations are generally reserved to the Commissioner, not the
reviewing court. See Aponte v. Sec’y of Health of Human Svcs., F.2d 558, 591 (2d Cir.
1984). An ALJ is, “not require[d] to accept the claimant’s subjective complaints without
question.” See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Under the
Commissioner’s regulations, a claimant must demonstrate by medical signs or findings
that an underlying condition exists that produces the disability and symptoms alleged.
See 42 U.S.C. §§ 423(d)(5)(A) and 1382c(a)(3)(A); 20 C.F.R. §§ 404.1529(c)(2),
416.929(b); Social Security Ruling (SSR) 96-7p; see also Gallagher v. Schweiker, 697
F.2d 82, 84 (2d Cir. 1983).
17.
Plaintiff asserts that the ALJ failed to consider the necessary factors in
evaluating his credibility. The record reflects, however, that the ALJ considered
Plaintiff’s subjective complaints, and in fact, incorporated them into his RFC finding. For
example, the ALJ accepted Plaintiff’s testimony that he could not work in cold weather,
could not pull, and had difficulty moving in various directions. (R. at 14). Further, the
ALJ considered that Plaintiff’s neck and back pain caused him to be able to perform
only a light range of work. Accordingly, the ALJ exercised his discretion to evaluate the
credibility of Plaintiff’s testimony and render an independent judgment regarding the
extent of his pain based on the medical findings and other evidence. See Mimms v.
Sec’y of Health and Human Servs., 750 F.2d 180, 186 (2d Cir. 1984).
18.
After carefully examining the administrative record, this Court finds that
substantial evidence supports ALJ Harvey’s decision, including the objective medical
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evidence and medical opinions contained therein.
This Court is satisfied that ALJ
Harvey thoroughly examined the record and afforded appropriate weight to all of the
medical evidence in rendering his decision that Plaintiff is not disabled within the
meaning of the Act. Finding no reversible error, this Court will grant Defendant’s Motion
for Judgment on the Pleadings and deny Plaintiff’s motion seeking similar relief.
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the
Pleadings (Docket No. 7) is GRANTED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 6)
is DENIED.
FURTHER, that the Clerk of Court shall close this case.
SO ORDERED.
Dated: June 22, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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