Terrance v. Colvin
DECISION AND ORDER adopting 21 Report and Recommendation that Defendant's decision denying Plaintiff's application for Social Security benefits be affirmed, and denying 8 Plaintiff's Motion for Judgment on the Pleadings, and granting 16 Defendant's Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 8/8/17. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LEAANN L. TERRANCE,
DECISION AND ORDER
-vsCAROLYN COLVIN, Acting Commissioner
of Social Security,
This matter comes before the Court following a Report and
Recommendation (Dkt #21) filed on June 26, 2017, by the Honorable
Leslie G. Foschio, United States Magistrate Judge, pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 72(b) and (c) of the Western
District of New York. In his Report and Recommendation (“R&R”),
Judge Foschio recommended that the decision issued by defendant
(“Defendant” or “the Commissioner”) denying Supplemental Security
Income (“SSI”) benefits to Leaann L. Terrance (“Plaintiff” or
“Terrance”) be affirmed in full, that the Commissioner’s motion for
judgment on the pleadings be granted, and that Plaintiff’s motion
for judgment on the pleadings be denied. In pertinent part, the R&R
found that substantial evidence supported the conclusion by the
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
administrative law judge (“ALJ”) that Plaintiff’s carpal tunnel
syndrome was not a severe impairment at step two (see R&R at 13),
and that the
limitations in the residual functional capacity (“RFC”) assessment
was harmless (see R&R at 22), and that the ALJ properly developed
the record (see R&R at 15-16).
Plaintiff filed Objections to the Report and Recommendation
(“Pl’s Obj.”) (Dkt #22). Defendant filed a Response to Plaintiff’s
Objections (Dkt #24)), and Plaintiff filed a Reply (Dkt #28).
arguments: the R&R erred in finding that the ALJ did not err at
step two in concluding that bilateral carpal tunnel syndrome is not
a severe impairment; the R&R erred in finding that the ALJ’s
failure at steps four and five to include manipulative limitations
is harmless; the R&R erred in declining to remand the matter so
that the ALJ could obtain a treating source opinion. The Court will
discuss the administrative record, including Plaintiff’s medical
history and the ALJ’s decision, only insofar as is necessary to the
resolution of whether Plaintiff’s objections have merit.
For the reasons set forth herein, the Court adopts the R&R’s
Standard of Review
When reviewing a magistrate judge’s report and recommendation,
a district court is required to “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.
Where no “specific written objection” is made to portions of the
magistrate judge’s report, the district court may adopt those
portions, “as long as the factual and legal bases supporting the
findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law.” Eisenberg v. New England
Motor Freight, Inc., 564 F. Supp.2d 224, 226 (S.D.N.Y. 2008)
(citing Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149
(1985); other citation omitted). The district court is not required
to review any portion of a magistrate judge’s report that is not
the subject of an objection. Eisenberg, 564 F. Supp.2d at 227
(citing Thomas, 474 U.S. at 149).
Plaintiff’s First Objection
Erroneous Step Two Severity Determination
Plaintiff objects to the R&R’s findings that the ALJ properly
concluded, at step two, that her bilateral carpal tunnel syndrome
is not a severe impairment (see R&R at 13), and that any error at
steps four and five in failing to include manipulative limitations
was harmless (see R&R at 22).
“severe” impairments of diabetes mellitus; obesity; degenerative
changes of the lumbar spine, knees, and right shoulder; migraine
disorder. The ALJ found that Plaintiff’s carpal tunnel syndrome
status post bilateral release, diabetic neuropathy, neck pain, and
seizures were not “severe” impairments as defined in 20 C.F.R. §
404.920(c). The R&R found the ALJ’s step two finding regarding
Plaintiff’s bilateral carpal tunnel syndrome was supported by
substantial evidence. (See R&R at 13). In particular, the R&R
stated that the ALJ properly noted that “no evidence established
[consultative physician] Dr. [Samuel] Balderman’s opinion that
Plaintiff’s grip strength measured five out of five on a five-point
scale.” (R&R at 13) (citation to record omitted).
In assessing the severity of a claimant’s physical impairment,
“severe,” it must “significantly limit [a claimant’s] physical . .
. ability to do basic work activities.” 20 C.F.R. § 416.921(a).
After independently reviewing the record, the Court agrees with the
R&R that the ALJ’s step two finding as to Plaintiff’s carpal tunnel
syndrome status post bilateral release is supported by substantial
underwent two surgeries to remedy her bilateral carpal tunnel
syndrome; she had a right carpal tunnel release on December 3, 2008
(T.77),2 and a left carpal tunnel release on January 21, 2009
(T.76). In February of 2011, six months prior to the beginning of
the relevant disability period, Plaintiff informed her primary care
physician, Dr. Mark Richter, that she was having some numbness in
her hands. (T.248). After reviewing a January 2011 electromyogram
(“EMG”), Dr. Richter was concerned that it appeared to show a
recurrence of carpal tunnel syndrome. (T.248). He then referred
Plaintiff to Dr. Peter Janevski, a hand surgeon. (T.248, 250).
Plaintiff informed Dr. Janevski that she was having pain in her
hands and numbness in her fingers, with no symptoms at nighttime.
(T.245). Dr. Janevski’s physical examination of Plaintiff’s hands
and wrists was normal: She had full range of motion; she had no
circulation; and Tinel’s sign, Phalen’s test, and compression tests
all were negative in both hands. (T.245). Dr. Janevski reviewed the
January 2011 EMG and noted that it showed only mild carpal tunnel
syndrome with significant improvement since 2008. (T.245, 324-26).
Numerals in parentheses preceded by “T.” refer to pages from the transcript
of the administrative record.
Dr. Janevski explained the EMG findings to Plaintiff, and informed
her that she did not have recurrent carpal tunnel syndrome, that
she was doing “quite well after the surgery,” and that she did “not
require any further treatment for carpal tunnel syndrome.” (T.245).
Dr. Janevski informed Plaintiff that she “would not qualify for
tingling in Plaintiff’s fingers was most likely related to her
diabetes, and pointed out that her blood sugar was not well
controlled. (T.245). Substantial evidence, including the results of
clinical testing, objective imaging, and the medical expert opinion
of Dr. Janevski, establish that Plaintiff it was not carpal tunnel
syndrome status post bilateral release that was causing her alleged
pain and numbness in her hands; rather, if anything, it was her
diabetic neuropathy. Therefore, there is substantial evidence to
support the ALJ’s finding that Plaintiff’s carpal tunnel syndrome
condition does not
“significantly limit [her] physical . . .
ability to do basic work activities.” Accordingly, the Court finds
Plaintiff’s objection to the step two severity determination to be
Omission of Limitation to Occasional Fingering at
Steps Four and Five
The R&R went on to find that because the ALJ found that
Plaintiff’s diabetic neuropathy was a “severe” impairment at step
two, the ALJ was “required . . . to include limitations from
Plaintiff’s diabetic neuropathy in the hypothetical questions posed
by the ALJ to the VE [vocational expert], a limitation that,
fingering.” (R&R at 20-21). The R&R found that this error was
harmless, however, by sua sponte finding that “jobs exist that
Plaintiff, with all of the limitations put forth to the VE by the
ALJ and the additional limitation of occasional fingering, would be
able to perform. One such job includes surveillance system monitor
(DOT 379.367-010, sedentary, unskilled, SVP 2).” (R&R at 22)
(citing Medick v. Comm’r of Soc. Sec., No. 5:11–CV–851 (GTS/ATB),
2012 WL 5499447, at *14 (N.D.N.Y. June 22, 2012)).
Plaintiff argues that the conclusion of the R&R that any error
in including manipulative limitations in the RFC was harmless
because the job of surveillance system monitor “has a checkered and
suspect history in the case law.” (Pl’s Obj. at 4). Plaintiff’s
objection has merit to the extent that the R&R erroneously engaged
decision because the underlying premise—that diabetic neuropathy
was found to be a “severe” impairment—is contrary to the record.
The ALJ specifically found, at step two, that Plaintiff’s diabetic
Plaintiff “allege[d] diabetic neuropathy with some numbness and
tingling in her hands and problems causing her to drop things.”
(T.15). However, the ALJ determined, “this is inconsistent with the
consultative examiner [Dr. Balderman]” who “found an unremarkable
sensory deficit” and full strength (5/5) in her upper and lower
extremities.” (T.15). The ALJ observed that there was “no objective
evidence . . . , such as an electrodiagnostic study, which would
confirm a diagnosis of diabetic neuropathy.” (T.15).
In sum, although the Court disagrees with the R&R’s analysis
at pages 20 to 23 regarding Plaintiff’s diabetic neuropathy and
declines to adopt the findings discussed therein, the Court also
finds Plaintiff’s arguments concerning the hypotheticals posed to
the VE to be without merit.
Plaintiff’s Second Objection
Plaintiff argues that the R&R erroneously concluded that the
ALJ fulfilled his obligation to develop the record and did not err
in declining to attempt to supplement the record with a medical
source statement from one of Plaintiff’s treating physicians.
In essence, Plaintiff objects because the ALJ’s RFC assessment
does not track a specific medical opinion. Plaintiff notes that the
ALJ gave “great weight” only to Dr. Balderman’s opinion, which
found “minimal physical limitations (T.356),” but then the ALJ did
not adopt any specific limitations from Dr. Balderman’s opinion.
Plaintiff asserts that the actual RFC (light work with the ability
to change position at least every 30 minutes) bears “no similarity”
to Dr. Balderman’s opinion. (Pl’s Obj. at 7). Plaintiff further
consultant Dr. Peril’s opinion because the ALJ specifically gave
that opinion less weight. (T.24). Plaintiff asserts that since the
ALJ “did not adopt any limitations from Dr. Balderman and rejected
Dr. Peril’s opinion[,]” the ALJ “interpreted the medical findings
on his own, which is an obvious legal error.” (Pl’s Obj. at 7).
During his consultative examination, Dr. Balderman observed
that both Plaintiff’s cervical spine and lumbar spine showed full
flexion, extension, lateral flexion bilaterally, and full rotary
movement bilaterally. (T.355). Straight-leg raising (“SLR”) test
was negative bilaterally, and Plaintiff had full range of motion in
her shoulders, elbows, forearms, wrists, hips, knees, and ankles
reflexes were physiologic (normal) and equal in the upper and lower
extremities, with no sensory deficits noted. Plaintiff had full
strength in her upper and lower extremities. With regard to fine
motor activity in her hands, Dr. Balderman found that her hand and
finger dexterity was intact, with full grip strength bilaterally.
(T.356). A back x-ray performed that day was negative. For his
medical source statement, Dr. Balderman opined that Plaintiff “has
minimal physical limitations.” (Id.).
Contrary to Plaintiff’s contention, it does not follow that
she is entitled to a reversal based on the failure of the ALJ’s RFC
assessment to conform exactly to a specific medical opinion. While
an “ALJ cannot arbitrarily substitute his own judgment for a
competent medical opinion[,]” Rosa v. Callahan, 168 F.3d 72, 79 (2d
Cir. 1999) (citation omitted), “[t]here is no requirement that the
agency accept the opinion of a consultative examiner concerning a
claimant’s limitations[.]” Pellam v. Astrue, 508 F. App’x 87, 89
(2d Cir. 2013) (unpublished opn.) (finding that ALJ properly
declined to credit certain conclusions in consultative examiner’s
opinion that were inconsistent with other evidence of record).
“Although [an] ALJ’s conclusion may not perfectly correspond with
any of the opinions of medical sources cited in his decision, he
[is] entitled to weigh all of the evidence available to make an RFC
finding that [is] consistent with the record as a whole.” Matta v.
Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (unpublished opn.)
(citing Richardson v. Perales, 402 U.S. 389, 399 (1971) (“We
conflicting medical evidence. The trier of fact has the duty to
resolve that conflict.”)).
After reviewing the record, the Court concludes that Dr.
Balderman’s medical source statement is supported by his clinical
findings and is not inconsistent with the ALJ’s RFC assessment
concluding that Plaintiff had the ability to perform “light” work
provided that she was able to change positions at least every 30
minutes during an 8-hour workday.3 If anything, Dr. Balderman’s
medical source statement arguably could support an RFC assessment
that assigns to Plaintiff the ability to perform work at a heavier
Likewise, the ALJ’s failure to adopt Dr. Peril’s limitations
regarding Plaintiff’s manual dexterity was supported by substantial
evidence, discussed above in the context of Plaintiff’s objection
regarding the step two severity determination.
Plaintiff argues that the ALJ’s error in allegedly “playing
doctor” was especially harmful because treating physician Dr.
Richter opined on September 1, 2010, that Plaintiff was unable to
work because of her diabetes, neck pain with neuropathy of the
arms, and migraine headaches, as well as the medications she uses
to control her symptoms. (T.238). Plaintiff concedes that the
opinion was stale, but argues that it should have prompted the ALJ,
after declining to fully adopt Dr. Balderman’s or Dr. Peril’s
opinion, to request an RFC assessment from one of Plaintiff’s
Dr. Richter’s opinion predated the relevant period by almost
The ALJ also imposed certain nonexertional limitations (unable to work with
the general public, no more than frequent contact with coworkers and supervisors,
and simple, routine tasks with no more than occasional changes in the work
setting), which are not challenged here.
physical examinations of Plaintiff. (See T.245, 248, 250-51, 256,
305, 311, 313, 315-16, 354-56, 386, 394, 410-11, 414-17, 422-23,
434-35, 457-62, 494-95, 497-500, 519, 552, 554, 556). Indeed, Dr.
Richter informed Plaintiff on September 1, 2010, that “it may be
difficult for her to qualify for complete disability with her
medical conditions.” (T.257).
Furthermore, Dr. Richter’s medical
source statement was not entitled to any particular significance or
weight because it consisted of an opinion on the issue of whether
Plaintiff was disabled, a question reserved to Defendant. (See
T.238 (Dr. Richter opined only that Plaintiff was “unable to
Plaintiff next argues that the ALJ had a duty to further
develop the record by affirmatively requesting a medical opinion
because there is no opinion from a treating source with regard to
the relevant time period. The Second Circuit has held that “where
there are no obvious gaps in the administrative record, and where
the ALJ already possesses a ‘complete medical history,’” and
therefore the ALJ was “under no obligation to seek additional
information in advance of rejecting a benefits claim.” Rosa, 168
F.3d at 79 n. 5 (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir.
1996)). Thus, the Second Circuit “does not always treat the absence
physicians as fatal to the ALJ’s determination[.]” Swiantek v.
Comm’r of Soc. Sec., 588 F. App’x 82, 84 (2d Cir. 2015) (summary
order) (citing Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29,
33–34 (2d Cir. 2013) (summary order) (noting that while 20 C.F.R.
§§ 404.1513(b)(6), 416.913(b)(6) state that the Commissioner “will
request a medical source statement” from a claimant’s treating
physician, they also state that the “lack of the medical source
statement will not make the report incomplete”). After reviewing
the record, the Court finds that this is not a case where the
absence of a medical source statement from a treating source made
the record incomplete. Physical examinations of Plaintiff are
pre-dating the December 2011 hospitalization and some post-dating
the hospitalization. (See T.245, 248, 250-51, 256-57, 305, 311,
313, 315-16, 354-56, 386, 394, 410-11, 414-17, 422-23, 434-35,
457-62, 494-95, 497-500, 519, 552, 554, 556). Moreover, the notes
from treating physicians such as Dr. Richter do not demonstrate
restrictive than that found by the ALJ.
Given that Dr. Peril’s
opinion based on a review of the record was inconsistent with Dr.
Balderman’s clinical findings, and that the ALJ also had all of the
treatment notes from Plaintiff’s treating physicians which were
largely consistent and stable over time, the Court cannot find that
the ALJ had any further obligation to supplement the record by
acquiring a medical source statement from one of the treating
For the foregoing reasons, the Court adopts Judge Foschio’s
benefits to Plaintiff be affirmed. Accordingly, it is hereby
ORDERED that Defendant’s motion for judgment on the pleadings
is granted, and Plaintiff’s motion for judgment on the pleadings is
The Clerk of the Court is directed to close this case.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
August 8, 2017
Rochester, New York
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