Giles v. Colvin

Filing 14

DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 10 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 6/12/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

OSBORNE GILES,
Plaintiff,
-vs-

No. 1:14-CV-00684 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Osborne Giles (“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). 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 May 2012, plaintiff filed an

application for SSI, alleging a July 1, 2009 amended onset date of
disability. After his application was denied, plaintiff requested
a hearing, which was held before administrative law judge Robert
Harvey

(“the

ALJ”)

on

October

11,

2012.

The

ALJ

issued

an

unfavorable decision on November 1, 2012. The Appeals Council
denied review of that decision and this timely action followed.
III.

The ALJ’s Decision
At step one of the five-step sequential evaluation, see 20

C.F.R. § 416.920, the ALJ found that plaintiff had not engaged in
substantial gainful activity since May 21, 2012, the application
date. At step two, the ALJ found that plaintiff had the severe
impairments of status post gunshot wound to the left side of the
chest and right thigh; asthma; and adjustment disorder with anxiety
and depression. 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 found that plaintiff
retained the residual functional capacity (“RFC”) to perform the
broad world of work as defined in SSR 83-10, but with the following
nonexertional limitations: he could not work in areas where he
would be exposed to pulmonary irritants, cold, or dampness; he had
occasional limitations in the ability to kneel; he had occasional
limitations in the ability to understand, remember, and carry out
detailed instructions; and he had occasional limitations in the
ability to interact appropriately with the general public. At step
four, the ALJ found that plaintiff could perform past relevant work
as a service clerk or child monitor. Accordingly, the ALJ found
plaintiff not disabled at step four and did not proceed to step
five.
2

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.

Failure to Develop the Record

Plaintiff contends that the ALJ failed to fully develop the
record. Specifically, plaintiff argues that the ALJ failed to
“clarify” the opinion of plaintiff’s treating physician, Dr. Satish
Arora, and failed to obtain more detailed treatment notes from the
doctor, prior to giving little weight to the opinion. For the
reasons discussed below, the Court finds that the administrative
record was complete and that the ALJ did not fail to develop the
record.
The regulations provide that although a claimant is generally
responsible for providing evidence upon which to base an RFC
assessment,

before

determination,

the

the
ALJ

Administration
is

“responsible

makes
for

a

disability

developing

[the

claimant’s] complete medical history, including arranging for a
consultative

examination(s)

if

necessary,

and

making

every

reasonable effort to help [the claimant] get medical reports from
3

[the claimant’s] own medical sources.” 20 C.F.R. §§ 404.1545,
416.945 (citing 20 C.F.R. §§ 404.1512(d) through (f); § 416.912(d)
through (e)). “Even though the ALJ has an affirmative obligation to
develop the record, it is the plaintiff’s burden to furnish such
medical and other evidence of disability as the Secretary may
require.” Long v. Bowen, 1989 WL 83379, *4 (E.D.N.Y. July 17, 1989)
(internal citations omitted).
Dr. Arora provided an August 20, 2012 opinion in which he
opined that due to conditions of leg and chest pain, as well as
asthma, plaintiff was “very limited” in lifting, carrying, pushing,
pulling, bending, and stairs or other climbing; and was “moderately
limited” in walking and standing. The record reveals that Dr. Arora
treated plaintiff four times between May 7, 2012 and August 20,
2012, when he issued his opinion. Dr. Arora’s opinion confirmed
what the records showed as far as treatment, i.e., that plaintiff
complained of limb pain, for which Dr. Arora prescribed Naprosyn
and advised physical therapy. Dr. Arora’s opinion, which notes that
he diagnosed plaintiff’s conditions on May 7, 2012 and June 4,
2012, supports the conclusion that Dr. Arora had no treatment
relationship with plaintiff prior to May 2012, and therefore no
additional records existed.
Thus, the treatment notes from Dr. Arora, while sparse, appear
to be complete. There is no obvious indication from these records
that any portion is missing. Accordingly, upon a review of the
record, the Court finds that it is complete with no “obvious gaps.”

4

See Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (“[W]here
there are no obvious gaps in the administrative record, and where
the ALJ already possesses a complete medical history, the ALJ is
under no obligation to seek additional information in advance of
rejecting a benefits claim.”) (internal quotation marks omitted);
Hofner v. Colvin, 2016 WL 777306, *2 (W.D.N.Y. Feb. 29, 2016) (“The
record in this case contains what appears to be a complete record
of plaintiff's medical treatment . . . and therefore the ALJ did
not have a duty to further develop the record.”); Trimm v. Colvin,
2015 WL 1400516, *4 (N.D.N.Y. Mar. 26, 2015) (“While the ALJ
certainly

has

an

obligation

to

adequately

develop

the

administrative record, the Court finds that there was no indication
that the record was not fully development . . . because Plaintiff's
medical

records

did

not

have

any

obvious

gaps

and

appeared

complete.”).
Plaintiff argues that the ALJ should have sought further
“clarification”

of

Dr.

Arora’s

treatment

notes

because

they

contained little detail. Central to this argument is plaintiff’s
claim that the records, because not extremely detailed, were
somehow incomplete. In Petti v. Colvin, 2014 WL 6783703, *13
(E.D.N.Y. Dec. 2, 2014), the court addressed and rejected a similar
argument. The Court found that “the ALJ was not required to seek
out additional information and could ascribe limited weight to [the
treating physician’s] opinion based on the fact that functional
limitations were absent from the [two other physician’s] reports

5

[as well as the treating physician’s] reports prior to [the date
the treating physician issued the opinion].” Id. (citing Alachouzos
v. Commissioner, 2012 WL 601428, *6 (E.D.N.Y. Feb. 23, 2012)
(rejecting argument that “if the treating physician’s conclusions
are unsupported

by

medical

evidence,

then

the

ALJ’s

duty

to

complete the record entails going out and developing more evidence
until there is a basis for the treating physician’s conclusions”)).
The

same

reasoning

“incompleteness”

of

applies
Dr.

here.

Arora’s

The

notes

plaintiff’s
does not

perceived

equate

to

an

“obvious gap” in the record, and the ALJ’s duty to further develop
the record was therefore not triggered. See id.; Hofner, 2016 WL
777306, at *2; Trimm, 2015 WL 1400516, at *4.

The Court thus finds

that the ALJ did not err in failing to clarify Dr. Arora’s opinion
or treatment records.
The Court also notes that the ALJ did not reject Dr. Arora’s
opinion solely due to an apparent inconsistency between Dr. Arora’s
own treatment notes and his opinion, as plaintiff argues. Rather,
in giving little weight to Dr. Arora’s opinion, the ALJ noted that
it was inconsistent with other substantial evidence in the record,
including two consulting internal medicine examinations in the
record. The first of those was completed by Dr. Kathleen Kelley on
September 26, 2008, and the second was completed on June 25, 2012,
by Dr. Samuel Balderman. Dr. Kelley – who completed her examination
approximately

10

months

prior

to

the

alleged

onset

date

of

disability – opined that plaintiff should refrain from working

6

around areas with respiratory irritants and should have comfort
breaks with regard to lifting, carrying, reaching, pushing, or
pulling markedly heavy objects with his left upper extremity.
Dr. Balderman, who assessed plaintiff during the relevant time
period, reported an unremarkable physical examination and opined
that plaintiff had no physical limitations. These two opinions
provide substantial evidence in support of the ALJ’s RFC, as well
as

a

valid

basis

for

rejecting

Dr.

Arora’s

more

restrictive

opinion.1 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)).
B.

Failure to Evaluate Physical Therapy Records

Plaintiff contends that the ALJ “failed to evaluate in any
cogent way [p]laintiff’s physical therapy records from May 2012 and
September 2012.” Doc. 7-1 at 19. The record contains three physical
therapy treatment notes, which together comprise eight pages of the
332-page record.2 The first, dated May 29, 2012, was an “initial
evaluation” at which plaintiff complained of pain in the right
thigh and left chest as a result of a shooting that occurred in May

1
In giving less than controlling weight to Dr. Arora’s opinion, the ALJ
also noted that plaintiff had “very few office visits” with him, a fact which is
confirmed by the record. See 20 C.F.R. § 416.927(c)(2)(I) (noting that
“[g]enerally, the longer a treating source has treated you and the more times you
have been seen by a treating source, the more weight we will give to the source's
medical opinion.”).
2
Curiously, the first two treatment notes incorrectly reference plaintiff
as “female.”

7

2004. On physical examination, plaintiff’s range of motion (“ROM”)
and reflex testing of the lumbar spine were within normal limits;
he had a positive tension sign in the right upper thigh but
negative straight leg raise (“SLR”) test; range of motion of the
left shoulder was 175 degrees (normal is 180 degrees); and he had
a “slight” limp. Plaintiff was diagnosed with chronic right thigh
pain with intermittent numbness, with a fair prognosis. He was
advised to attend physical therapy twice a week for four weeks.
On July 10, 2012, in a progress summary note, plaintiff was
noted to have attended physical therapy four times since May 2012,
with one no show and one cancellation. The note indicates that
plaintiff had met two out of three of his “plan of care goals.” He
was assessed with a positive SLR at 60 degrees and a LEFS (lower
extremity functional scale) of 34.3 Once again, plaintiff was
advised to attend physical therapy two times per week for four
weeks.
The last physical therapy record, dated September 13, 2012, is
another “initial evaluation.” On physical examination, plaintiff’s
lumbar spine ROM and reflex testing were within normal limits;
tension sign was positive in the right lower extremity for tingling
but SLR was negative; slump test4 was positive on the right but
negative on the left; prone knee bend test was negative; hip motion

3
The minimum score on this test is zero and the maximum is 80, with a
higher score indicating higher functioning.
4

The Slump Test is a neural tension test used to detect altered
neurodynamics or neural tissue sensitivity.

8

was normal on the left and fair to good on the right; gross motion
of the knee was normal on the left and normal to good on the right;
in a balance test, plaintiff had a moderate ankle sway on the left
and was unable to maintain balance on the right; and plaintiff had
a limp favoring the right. Plaintiff was given instructions for
home exercise and was once again advised to attend physical therapy
twice a day for four weeks.
The ALJ did not discuss the physical therapy records in
detail. Rather, the ALJ noted physical therapy just once, in
finding that plaintiff had attended only a few visits to his
primary care physician and treated only with over the counter pain
relief medication, but had “no other treatment modalities with the
possible exception of physical therapy.” T. 31. Plaintiff argues
that the ALJ impermissibly “ignored” the physical therapy notes.
Doc. 7-1 at 16. As plaintiff recognizes, the ultimate inquiry is
whether

the

ALJ’s

determination

is

supported

by

substantial

evidence, and the ALJ is obligated to “consider all of the medical
and nonmedical evidence.” 16 C.F.R. § 416.945(d). However, although
plaintiff is correct that the ALJ must generally consider and
explicitly weigh each medical opinion of record, see 20 C.F.R.
§ 416.945(a)(3), the ALJ is not obligated to summarize every single
medical record in the administrative transcript. See Barringer v.
Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 78 (N.D.N.Y. 2005) (“The
ALJ was not required to mention or discuss every single piece of

9

evidence in the record.”) (citing Mongeur v. Heckler, 722 F.2d
1033, 1040 (2d Cir. 1983)).
Rather, where “the evidence of record permits [the court] to
glean the rationale of an ALJ’s decision, [the ALJ is not required
to explain] why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.” Mongeur,
722 F.3d at 1040. The ALJ’s decision in this case was supported by
substantial evidence which included two consulting examinations and
the relatively sparse treatment notes of plaintiff’s treating
physician.

The

ALJ’s

conclusion

that

plaintiff

received

conservative care for his condition was supported by the record,
and his reference to the physical therapy treatment notes indicate
that he

considered

the

records

in

his overall

evaluation of

disability.5 See Rivera v. Colvin, 2015 WL 6142860, *6 (W.D.N.Y.
Oct. 19, 2015) (finding that “ALJ was entitled to consider evidence
that plaintiff pursued a conservative treatment as one factor in
determining credibility”) (citing Netter v. Astrue, 272 F. App’x
54,

56

(2d

Cir.

2014)).

Therefore,

contrary

to

plaintiff’s

argument, the Court is able to “glean the rationale of [the] ALJ’s
decision.” Mongeur, 722 F.2d at 1040.
5
The ALJ also noted that plaintiff made inconsistent statements regarding
his activities of daily living, socialization, and consumption of alcohol, and
received unemployment benefits in 2010, 2011, and 2012. These observations, which
are supported by the record, constitute further substantial evidence underlying
the ALJ’s decision. See, e.g., Rivera v. Colvin, 2015 WL 6142860, *6 (W.D.N.Y.
Oct. 19, 2015) (“[T]he ALJ was . . . entitled to consider plaintiff’s own
inconsistent statements regarding his substance abuse as undermining his overall
credibility.”); Graham v. Colvin, 2014 WL 5465460, *6 (W.D.N.Y. Oct. 28, 2014)
(finding that the ALJ reasonably determined that the plaintiff’s statements were
not entirely credible based in part on her application and receipt of
unemployment benefits).

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V.

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

the pleadings (doc. 7) is denied and the Commissioner’s motion
(doc. 10) is granted. The ALJ’s finding that plaintiff was not
disabled is supported by substantial evidence in the record, and
accordingly, the complaint is dismissed in its entirety with
prejudice.

The Clerk of the Court is directed to close this case.

SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 12, 2017
Rochester, New York.

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