Shaffer v. Colvin
Filing
16
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 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 12/21/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RACHEL A. SHAFFER,
Plaintiff,
-vs-
No. 1:14-CV-00745 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Rachel A. Shaffer (“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 her 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 on June 28, 2011, plaintiff (d/o/b
December 10, 1970) applied for SSI, alleging disability as of
June 1, 2011. After her application was denied, plaintiff requested
a hearing, which was held before administrative law judge David S.
Lewandowski (“the ALJ”) on December 3, 2012. The ALJ issued an
unfavorable decision on January 22, 2013. The Appeals Council
denied review of that decision and this timely action followed.
III. The ALJ’s Decision
The ALJ followed the well-established five-step sequential
evaluation
promulgated
by
the
Commissioner
for
adjudicating
disability claims. See 20 C.F.R. § 404.1520. At step one, the ALJ
determined that plaintiff had not engaged in substantial gainful
activity since June 28, 2011, the application date. At step two,
the ALJ found that plaintiff suffered from the severe impairment of
chronic thoracic and low back pain, secondary to bulging disc at
L3-L4. 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
plaintiff retained the RFC to perform light work as defined in
20 C.F.R. § 416.967(b) except that she was able to stoop, turn, and
twist her back only occasionally; she could only occasionally
reach, push, and pull; and she must be afforded a sit/stand option.
After finding that plaintiff had no past relevant work, the ALJ
determined that, considering plaintiff’s age, work experience, and
RFC, jobs existed in significant numbers in the national economy
that plaintiff could perform. The ALJ thus found that plaintiff was
not disabled.
2
V.
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. Barnhard, 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.
Application of the Treating Physician Rule
Plaintiff contends that the ALJ did not properly apply the
treating physician rule when he accorded little weight to the
opinion of one of plaintiff’s treating physicians, Dr. Armit Singh.
Plaintiff also argues that the ALJ should have further developed
the record, because it contained only two treatment notes from
Dr. Singh and, according to plaintiff, inadequate records of
imaging tests. For the reasons discussed below, the Court finds
that the ALJ properly applied the treating physician rule and that
the ALJ did not fail in his duty to fully develop the record.
Initially, plaintiff contends that the ALJ failed to develop
the
record
by
seeking
out
additional
treatment
notes
from
Dr. Singh, given that the record contained only two treatment notes
from Dr. Singh despite plaintiff’s testimony that she treated with
Dr. Singh approximately every three months for pain management. As
3
the Commissioner points out, however, the ALJ twice requested
treatment notes from Dr. Singh, but received no response. See
T. 249. Additionally, at the hearing, the ALJ left the record open
for plaintiff’s counsel to provide documentation from Dr. Singh,
which
counsel
stated
was
forthcoming.
However,
when
that
documentation was provided, it consisted of only the two treatment
notes described below.
Moreover, the administrative record contains a longitudinal
record of plaintiff’s treatment history with Dr. Syed Raza, as well
as records of her treatment in physical therapy. Those records were
consistent
discussed
with
below,
assessment.
Dr.
did
“[W]here
Singh’s
not
two
support
there
are
treatment
his
no
notes,
restrictive
obvious
which,
as
functional
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.”
Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (internal
quotation marks omitted). The Court is not persuaded that the
absence
of
treatment
notes
from
plaintiff’s
pain
management
treatment constituted an obvious gap in this record.
“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
4
citations omitted). Considering the sequence of events that took
place in the development of this record, it was reasonable for the
ALJ to conclude that Dr. Singh provided all of the relevant
documentation on file at his office, and that future requests would
produce
nothing
further.
The
current
controlling
regulation,
20 C.F.R. § 416.920b(c), provides that re-contacting the treating
physician is an option for correcting inconsistencies in the
record, but that the ALJ “may choose not seek additional evidence
or clarification from a medical source if [the ALJ] know[s] from
experience that the source either cannot or will not provide the
necessary evidence.” See Gabrielsen v. Colvin, 2015 WL 4597548, *5
(S.D.N.Y. July 30, 2015) (noting that the prior regulations were
amended “on March 26, 2012 ‘in order to give adjudicators more
flexibility in determining when and how to obtain information from
medical sources to resolve an inconsistency or insufficiency in the
evidence.’”). Here, the record reflects that the ALJ met his
obligation to develop the record, and that, to the extent that the
record lacked any treatment notes from Dr. Singh, plaintiff failed
to meet her burden to provide those records.
Regarding the ALJ’s consideration of Dr. Singh’s opinion, the
treating physician rule provides that an ALJ must give controlling
weight to
a
treating physician’s
opinion if
that
opinion
is
well-supported by medically acceptable clinical and diagnostic
techniques and not inconsistent with other substantial evidence in
5
the record. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004);
20
C.F.R.
§
416.927(c)(2).
However,
“[w]hen
other
substantial evidence in the record conflicts with the treating
physician's
opinion
.
.
.
that
opinion
will
not
be
deemed
controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.” Snell v.
Apfel,
177
F.3d
128,
133
(2d
Cir.
1999)
(citing
20
C.F.R.
§ 404.1527(d)(4)).
In September 2011, Dr. Singh opined that plaintiff noted
diagnoses of low back pain, along with thoracic and lumbar disc
herniations, noting findings of tenderness, muscle spasms, impaired
sleep, and a bilateral straight leg raise of 65 degrees. In
Dr. Singh’s opinion, plaintiff could: not walk for one block
without experiencing severe pain; sit and/or stand for only 15 to
20 minutes at a time; sit, stand, and/or walk for less than two
hours in an eight-hour workday; would need to have period of
walking
around
permitting
in
shifting
an
eight-hour
positions
workday;
between
would
sitting,
need
a
job
standing,
and
walking; would need to take unscheduled breaks every 15-20 minutes
as a result of her limitations; and could never twist, stoop,
crouch, or climb ladders or stairs. The ALJ rejected Dr. Singh’s
opinion, finding that it was inconsistent with his own treatment
notes,
the
consulting
examination
by
state
agency
consultant
Dr. Donna Miller, and the substantial evidence of record.
6
Here, as the ALJ discussed, Dr. Singh’s assessment was not
consistent with his own treatment notes. The first note, dated
April 2010, recorded that plaintiff was referred by Dr. Raza and
reported that physical therapy was not resulting in progress in her
symptoms of back pain. Plaintiff reported that she experienced
tingling, coldness, and numbness in the legs and had difficulty
walking and standing, but she was able to do “all her activities of
daily living.” T. 331. She did not use a cane and had not had any
falls. Dr. Singh noted that she was able to take off her shoes and
socks, and get on the examination table, without assistance.
On physical examination, plaintiff reported pain with range of
motion
of
the
lumbar
spine.
She
stood
with
a
normal
lumbar
curvature, pelvic crests were level, demonstrated no unsteadiness
with Trendelenberg’s test and was able to stand on heels and toes.
Straight leg raising was performed at 65 degrees bilaterally. She
exhibited
“very
mild
tightness”
of
the
hamstrings
and
“mild
tightness” of the hip rotators, while reporting some discomfort.
She had no atrophy of the lower extremity musculature, motor power
within normal limits, sensory examination was normal, and deep
tendon reflexes were “brisk.” Id. She reported tenderness “on
palpation of the lower thoracic spine and thoracolumbar junction
with lesser tenderness noted over the lumbar spine and lumbar
paraspinals.” Id. Dr. Singh noted that a lumbar x-ray he reviewed,
dated March 24, 2010, was normal. His clinical impression was that
7
plaintiff had “symptoms of a thoracic disc herniation and low back
pain
with
secondary
myofascial
pain,”
with
possible
thoracic
myelopathy. Id. He recommended an x-ray of the thoracic spine and
a bone scan, and prescribed pain medication.
In September 2012 (approximately a year after Dr. Singh’s
opinion), plaintiff reported continued lower back pain as well as
numbness in her legs and feet. On examination, she reported “marked
discomfort with range of motion of the lumbar spine,” and stood
with a list to the right. Dr. Singh noted “marked spasm of the
right lumbar paraspinals, with increased tenderness over the lumbar
spine and paraspinals and lesser tenderness over the thoracic
spine. Dr. Singh’s clinical impression was that plaintiff had
“thoracic pain with lumbar disc degeneration with annular tear and
low back pain with lumbar radiculopathy and secondary myofascial
pain,” again with possible thoracic myelopathy.
A
review
of
the
two
treatment
notes
in
the
record
substantiates the ALJ’s conclusion that Dr. Singh’s opinion was
inconsistent with these notes, one of which actually postdated his
opinion.
Although
subsequent
to
plaintiff
Dr.
Singh’s
did
report
opinion,
some
tenderness
exhibited
some
and,
spasm,
Dr. Singh’s notes also reflected various unremarkable findings.
Considering those findings, along with the substantial evidence in
the
record
which
the
Court
will
8
summarize
below,
the
Court
concludes that the ALJ properly applied the treating physician
rule.
Imaging tests were largely unremarkable.1 The x-rays ordered
by Dr. Singh included an x-ray of the thoracic and lumbosacral
spine dated March 2010, which was unremarkable except for a “hint
of mid dorsal right scoliosis,” some of which was noted “could be
positional.” T. 190. A lumbosacral spine series taken at the same
time indicated an impression of a “normal lumbosacral spine,” with
an “[i]ncidental note . . . of moderate obstipation.” T. 191. A
bone
scan
plaintiff’s
was
also
normal.
lumbosacral
In
spine
September
showed
no
2011,
an
x-ray
significant
of
bony
abnormality, with “relatively well maintained” height of vertebral
bodies
and
intervertebral
disc
spaces.
T.
240.
An
x-ray
of
plaintiff’s thoracic spine revealed “mild dextroscoliosis.” T. 241.
Two relevant emergency room records, dated July 2010 and
November 2011, respectively, revealed no significant findings on
examination. Plaintiff was given pain medication and discharged
immediately. Treatment notes from Dr. Syed Raza, which appear
intermittently for the time period of February 2010 through August
1
The Court notes plaintiff’s argument that the ALJ should
have sought additional imaging tests based on Dr. Singh’s noted
review of a “normal” lumbar x-ray and assessment that plaintiff
suffered from an annular tear. A review of the record reveals
various imaging results, however, and Dr. Singh’s two treatment
notes do not indicate the presence of any additional probative
evidence. Therefore, the record in this regard appears complete,
and the ALJ did not err in failing to seek out additional imaging
test results. See Rosa, 168 F.3d at 79 n.5.
9
2012, indicate that plaintiff consistently reported tenderness to
palpation and exhibited some limitations in extension and flexion.
Plaintiff exhibited no progress in physical therapy, despite normal
range
of
motion
and
strength
testing
results.
She
reported
hypersensitivity, which her therapist indicated may “suggest a
neurologic issue,” but no evidence of such issue appears in the
record. T. 261.
In September 2011, Dr. Donna Miller performed a consulting
examination at the request of the state agency. Plaintiff reported
back pain “at a 9/10 intensity,” which radiated to her calves
bilaterally; a bulging disc at L3-L4; pain between her shoulder
blades; and tenderness to palpation. As to activities of daily
living, plaintiff reported cooking 14 times per week; cleaning once
a week; doing laundry once a week; shopping once a week; showering
and dressing daily; watching television; listening to the radio;
and reading.
On examination, plaintiff’s gait was slightly hesitant; she
could heel-toe walk with no difficulty; her squat was 75 percent of
normal; stance was normal; she used no assistive devices and 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. Her
cervical spine showed full flexion, extension, lateral flexion
bilaterally, and full rotary movement bilaterally. She exhibited no
scoliosis, kyphosis, or abnormality of the thoracic spine. Lumbar
10
flexion was to 50 degrees, extension zero degrees, and lateral
flexion 25 degrees bilaterally. Plaintiff declined to do rotation
and straight leg raising was negative. She exhibited full range of
motion of the shoulders, elbows, forearms, and wrists bilaterally,
with no additional abnormalities noted. Strength was full, 5/5, in
the upper and lower extremities. Dr. Miller opined that plaintiff
had
“mild
limitation
for
repetitive
heavy
lifting,
bending,
turning, twisting, reaching, pushing, and pulling.” T. 238.
As the above summary reveals, plaintiff’s treatment records as
well
as
imaging
constitutes
extremely
tests
and
substantial
restrictive
Dr.
Miller’s
evidence
functional
consulting
contradicting
assessment.
Dr.
Dr.
opinion
Singh’s
Singh’s
own
treatment notes, which were sparse although the record reveals that
he was contacted multiple times and asked to provide them, did not
indicate
any
significant
clinical
findings
supporting
his
restrictive assessment. Imaging tests were essentially normal, and
Dr. Miller found only mild limitations in various functional
activities, a finding which was supported by the record.
Although plaintiff argues that the ALJ failed to consider the
factors set out in the regulations for consideration of a treating
source’s opinion, an ALJ need not explicitly discuss each of the
factors, but rather must apply “the substance of the treating
physician rule.” Halloran, 362 F.3d 28, 32 (2d Cir. 2004); see
Atwater v. Astrue, 2013 WL 628072, *2 (2d Cir. 2013) (“[S]lavish
11
recitation of each and every factor [is not required] where the
ALJ's reasoning and adherence to the regulation are clear.”). The
ALJ’s decision in this case contains a detailed discussion of the
record and sound reasoning, supported by substantial evidence, for
rejecting Dr. Singh’s opinion. It is apparent from the decision
that he applied the substance of the treating physician rule.
Therefore, his decision will not be disturbed.
B.
Credibility
Plaintiff contends that the ALJ “mischaracterized” the record
in an effort to “diminish” plaintiff’s credibility. The Court
disagrees. Upon a review of the entire record and a reading of the
ALJ’s decision, the decision reflects a thorough summary of the
record
evidence
and
a
reasoned
consideration
of
plaintiff’s
credibility. The ALJ specifically found that plaintiff was not
credible as a result of various inconsistencies between her hearing
testimony and her own reports, including reports she gave in her
adult function report and at the consulting examination with
Dr. Miller. The ALJ gave specific examples of the inconsistencies,
noting that plaintiff reported in her adult function report, and to
Dr. Miller, that she was able to do a wide variety of activities of
daily living without requiring assistance.
The
ALJ
also
found
that
plaintiff
produced
very
little
evidence of a severe disabling condition, a finding which is
supported by substantial evidence as discussed above. Finally, the
12
ALJ
noted
that
plaintiff’s
treatment
for
her
condition
was
essentially routine and conservative, consisting of medication
management
and
physical
therapy.
Upon
review
of
the
record,
substantial record evidence supports all of the ALJ’s reasons for
declining to fully credit plaintiff’s subjective accounts. As the
Second Circuit has repeatedly noted,
“the ALJ [has] discretion to
weigh the credibility of [a claimant’s] testimony ‘in light of the
other evidence in the record.’” Penfield v. Colvin, 563 F. App'x
839, 840 (2d Cir. 2014) (quoting Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010)).
Plaintiff also argues that the ALJ erred in finding plaintiff
incredible “to the extent [her reports were] inconsistent with the
above residual functional capacity assessment.” T. 23. However, the
ALJ did not merely compare plaintiff’s complaints to his own RFC
finding.
Rather,
as
described
above,
the
ALJ’s
credibility
assessment was actually quite detailed, and it was supported by
substantial evidence. Therefore, this case is distinguishable from
those cited by plaintiff, which involve boilerplate credibility
determinations based simply on the comparison of a plaintiff’s
complaints
to
the
ALJ’s
RFC
finding,
with
no
attendant
consideration of the evidence in the record. See, e.g., Molina v.
Colvin, 2014 WL 3445335, *14 (S.D.N.Y. July 15, 2014) (“The ALJ's
conclusory reasoning is unfair to the claimant, [where] subjective
statements
about
his
symptoms
are
13
discarded
if they
are
not
compatible with an RFC that has been predetermined based on other
factors.”); Gehm v. Astrue, 2013 WL 25976, *5 (N.D.N.Y. Jan. 2,
2013) (“A
claimant's
credibility
may
be
questioned
if
it
is
inconsistent with the medical evidence. However, it is improper to
question
the
plaintiff's
credibility
[solely]
because
it
is
inconsistent with the RFC determined by the ALJ.”).
VI.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 10) is denied and the Commissioner’s motion
(Doc. 12) 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.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
December 21, 2015
Rochester, New York.
14
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?