DiLorenzo v. Colvin
DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 17 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/15/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KATHERINE A. DILORENZO,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Represented by counsel, Katherine A. Dilorenzo (“Plaintiff”)
instituted this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)1
denying her application for Disability Insurance Benefits (“DIB”)
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
Plaintiff protectively filed an application for DIB on August
29, 2011, alleging that he was disabled commencing August 29, 2011,
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).
applications were denied, and Plaintiff requested a hearing, which
was held on April 9, 2013, and July 30, 2013, before Administrative
Law Judge Gietel Reich (“the ALJ”). (T.31-51). Plaintiff appeared
with counsel at the July hearing and testified, but the ALJ did not
(T.13-30) on August 14, 2013.
The Appeals Council denied Plaintiff’s request for review
(T.1-6) on August 27, 2014, making the ALJ’s decision the final
decision of the Commissioner.
Plaintiff then timely commenced this action. The parties have
cross-moved for judgment on the pleadings pursuant to Rule 12(c) of
incorporates by reference herein the undisputed and comprehensive
factual summaries contained in the parties’ briefs. The record will
be discussed in more detail below as necessary to the resolution of
this appeal. For the reasons that follow,
the Commissioner’s decision is affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step procedure established by the
§§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff
Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.
December 31, 2015, and had not engaged in substantial gainful
activity since August 22, 2011, the alleged onset date.
following severe impairments: fibromyalgia and cervicalgia, status
At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the listed Impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform less
than the full range of sedentary work, except that she is limited
to lifting/carrying a maximum of ten pounds at a time; sitting for
approximately six hours in an eight-hour day; standing/walking for
approximately two hours in an eight-hour day; and changing the
position of her head frequently, but not constantly.
At step four, the ALJ noted that Plaintiff was a “younger”
individual between the ages of 18 and 44, had at least a high
school education, and had past relevant work as a cook, server,
radio producer, manager, and dispatcher for emergency services.
Because the exertional requirements for each of these jobs exceeded
the less-than-sedentary RFC assigned to Plaintiff, she was unable
to perform her past relevant work.
At step five, the ALJ referred to Medical-Vocational Rule
201.28 and found that the additional limitations contained in
Plaintiff’s RFC have little or no effect on the occupational base
of unskilled sedentary work. A finding of “not disabled” was
therefore appropriate under the framework of Medical-Vocational
SCOPE OF REVIEW
A decision that a claimant is not disabled must be affirmed if
it is supported by substantial evidence, and if the ALJ applied the
Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct
legal standards is grounds for reversal. Id. Therefore, this Court
first reviews whether the applicable legal standards were correctly
applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
Erroneous Severity Determination at Step Two
anxiety “do not cause more than minimal limitation in [her] ability
non-severe”). Plaintiff asserts that the finding is deficient
because “there is no medical opinion evidence to support this
medical expert opinion evidence to determine whether Plaintiff’s
depression and anxiety were severe or non-severe. . . .”
Mem. at 19) (Dkt #12-1).
At step two, the ALJ must determine whether the claimant has
a “severe medically determinable physical or mental impairment,”
“significantly limits [her] physical or mental ability to do work
activities,” Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982);
see also SSR 85–28, Titles II and XVI: Medical Impairments That Are
Not Severe, 1985 WL 56856, at *3–4 (S.S.A. 1985). The claimant
bears the burden of proof as to the first four steps, Berry, 674
F.2d at 467, but step two’s “severity” requirement is de minimus,
meant only to screen out the weakest of claims. Dixon v. Shalala,
impairments are at issue, the severity determination is made
through application of a “special technique” set out in 20 C.F.R.
§§ 404.1520a(b)-(e), 416.920a(b)-(e). By means of the special
impairments are factored into the step two severity determination.
(1) “[a]ctivities of daily living;” (2) “social functioning;”
(3) “concentration, persistence, or pace;” and (4) “episodes of
decompensation.” 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The
ratings applicable to the first three functional areas are “[n]one,
mild, moderate, marked, [or] extreme.” Id. at §§ 404.1520a(c)(4),
five-point scale: “[n]one, one or two, three, four or more.” Id.
“According to the regulations, if the degree of limitation in each
of the first three areas is rated “mild” or better, and no episodes
of decompensation are identified, then the reviewing authority
generally will conclude that the claimant’s mental impairment is
not ‘severe’ . . . .” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir.
2008) (citing 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1)).
treatment for her alleged mental impairments. In particular, the
ALJ noted that the record did not “reflect continuous mental health
treatment, or significant psychiatric symptoms that interfere with
[Plaintiff’s] functionality.” Indeed, the record does not reflect
alleged anxiety and depression. As the ALJ observed, Plaintiff
“never saw a specialist for any mental health condition, nor is
there any comprehensive mental status examination in the record
that documents abnormal findings.”3
After discussing the lack of specific treatment Plaintiff
received for her mental impairments, the ALJ performed the special
technique. The ALJ concluded that Plaintiff had no limitations in
her ability to perform activities of daily living; no limitations
in the area of social functioning; no limitations in maintaining
episodes of decompensation. The ALJ cited to specific items of
Plaintiff’s testimony or other pieces of evidence in the record to
support each special technique finding. Notably, Plaintiff does not
raise an evidentiary challenge to any of the ALJ’s ratings of
Plaintiff’s limitations in the three functional areas and the ALJ’s
finding that she had experienced no functional limitations.
There is a September 2012 notation by Joseph Corigliano, D.O., who treated
Plaintiff for her body pain, stating that Plaintiff “deals with anxiety and
depression.” However, Dr. Corigliano did not perform a mental status examination
or document any specific symptoms reported by Plaintiff. Nevertheless, he
prescribed the anti-depressant Cymbalta® (duloxetine) (Ex. 17F, p. 64-65).
Approximately ten months prior to that, Plaintiff obtained a prescription for
Xanax from her primary care physician, Helen Suchanick, M.D., who noted that
Plaintiff used it sparingly to help her calm down to sleep.
Rather, Plaintiff argues, the treatment evidence in the record
“should have prompted the ALJ to secure some sort of medical
opinion as to the severity of her depression and anxiety, and how
it affected her ability to work. . . .” (Pl’s Mem. at 21-22
(citations omitted)). The Court has reviewed the cases Plaintiff
cites in support this argument, but finds that they are inapposite.
For instance, in Matejka v. Barnhart, 386 F. Supp.2d 198, 209
(W.D.N.Y. 2005), the ALJ was presented with an opinion offered by
the claimant’s treating psychotherapist that she claimant] is
unable to deal with work stresses or to maintain attention and
concentration due to depression and pain. The ALJ rejected the
treating source’s opinion, despite the fact that there was no
medical evidence to contradict that opinion. The district court
found that, at a minimum, the ALJ should have ordered a psychiatric
claimant’s depression, noting that the Commissioner’s regulations
insufficiency in the evidence must be resolved. . . .’” Falcon v.
Apfel, 88 F. Supp.2d 87, 91 (W.D.N.Y. 2000) (quoting 20 C.F.R.
Here, in contrast, the ALJ did not rejected a
properly supported expert medical opinion from one of Plaintiff’s
ambiguity or insufficiency in the evidence requiring resolution by
a consultative examiner. Therefore, the Court is unable to conclude
that the ALJ failed to apply the correct legal principles at step
special technique findings.
Erroneous Credibility Evidence
The ALJ discounted, as less than fully credible, Plaintiff’s
allegations that she cannot stand or walk for more than 15 minutes,
cannot sit upright for more than an hour, and cannot hold anything
over 5 pounds; that she has constant body pain, which is only
relieved when she is under sedation in the hospital; and is that
she disabled because she cannot sit upright or concentrate long
enough to work. (See T.21, 39, 226, 231). Plaintiff argues that the
ALJ’s credibility assessment was legally erroneous and unsupported
by substantial evidence. (See Pl’s Mem. at 23-26).
Where, as here, an individual has a medically determinable
symptoms alleged but the objective evidence does not substantiate
the alleged intensity and persistence of the symptoms, the ALJ must
consider other factors in assessing the individual’s subjective
symptoms, including (1) the claimant’s daily activities; (2) the
medication and other treatment or measures which the claimant uses
to relieve pain and other symptoms; (5) treatment other than
medication the claimant has received for relief of pain and other
symptoms; (6) any other measures used by the claimant to relieve
pain and other symptoms; and (7) other factors concerning the
claimant’s functional limitations and restrictions due to pain or
other symptoms. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). “On
appeal, the court’s proper function is merely to determine whether
the appropriate legal standards have been applied and assess
whether the [Commissioner]’s findings of fact are supported by
substantial evidence.” Mimms v. Heckler, 750 F.2d 180, 185–86
(2d Cir. 1984).
Plaintiff At several appointments with Dr. Suchanick, in
December 2011, June 2012 and October 2012, the claimant did not
report being unable to sit upright, having difficulty walking or
examination, the musculoskeletal exaritination documented that the
claimant had a normal range of motion in all areas and no
tenderness, decreased strength, sensory deficit, inflanunatory
conditions or gait problems (Exhibit 18F, pages 2 -12). The failure
to report her allegedly disabiing symptoms detracts from the
alleged that she is unable to work because she has difficulty
concentrating, there were no abnormal mental status examinations in
the record or documentation of this side effect
Plaintiff contends that in reaching the conclusion that her
complaints of severe pain were less than fully credible (T.23), the
ALJ stated that Plaintiff’s treatment has “significantly helped in
alleviating some of her symptoms.” Plaintiff asserts that this is
a “gross mischaracterization” of the record, but Plaintiff does not
dispute that the record reflects substantial improvement in her
headaches, mood, fibromyalgia symptoms, and musculoskeletal pain
Plaintiff’s argument boils down to a complaint that the ALJ failed
Cymbalta®, a medication that was not covered by her insurance
carrier. (See T.705; treatment note dated 6/21/13 from Dr. Saikali
stating that “unfortunately, insurance carrier will not cover this
“continue to provide her with samples of Cymbalta as often as we
can.” (T.706). Plaintiff asserts that the ALJ “should have fully
evaluated the situation she was in with this medication before he
relied on it so heavily in his determination.” (Pl’s Mem. at 24).
Plaintiff offers no authority for such a proposition. The record,
as it stood at the time of the ALJ’s decision, reflected that
Plaintiff was able to obtain Cymbalta samples from Dr. Saikali, and
therefore there the ALJ did not mischaracterize the record.
Plaintiff also argues that the ALJ incorrectly concluded that
the evidence demonstrated that her migraines4 improved to the
extent she could perform sedentary work. The Court finds that the
ALJ’s conclusion was supported by substantial evidence. On June 25,
2012, Dr. Joseph F. Corigliano, D.O., P.T., record that, since her
diagnosis in April of 2012, and commencement of Lyrica and Tramadol
headaches and her pain overall is improving with the use of Lyrica”
although she “still has bouts of extreme pain from time to time.”
Plaintiff “report[ed] improvement of her fibromyalgia” symptoms,
and she did not present with complaints related to her migraines.
(T.593). On March 19, 2013, Dr. Corigliano noted that Plaintiff was
“doing reasonably well with her current medications” and had “[n]o
new issues or concerns.” (T.703). The only diagnoses indicated that
day were gastroparesis, fibromyalgia, arthritis, and depression
with anxiety. (Id.). On June 21, 2013, Dr. Corigliano reported that
Plaintiff “deals with chronic fibromyalgia pain.” (T.705). She had
no complaints related to migraine headaches and, again, the only
diagnoses indicated were gastroparesis, fibromyalgia, arthritis,
and depression with anxiety. (Id.). The records also reflect that
Some records reflect that most of Plaintiff’s headaches were not migraines,
but were primarily analgesic rebound headaches or tension type headaches with
“occasional migraine headaches.” (See T.499-500 (2/27/12 note from neurologist
Dr. Steven Dofitas; advising Plaintiff “to cut down on the narcotic analgesics”
which “is significantly important in the control of her headaches”).
on May 9, 2013, Plaintiff reported to Dr. Nicolas Saikali at the
DENT Headache & Neuro-Oncology Center that, after each round of
Botox injections, she “continued to notice significant improvement
in her migraine headaches” and was “doing overall quite well.”
Plaintiff faults the ALJ for failing to develop the record on
the issue of what “stable” meant in the context of her migraine
headaches. Plaintiff argues that “[t]he most glaring support that
[her] ‘stability’ was still below the level needed to perform work
in the national economy was her migraine headaches.” (Pl’s Reply at
4). In his decision, the ALJ noted that reports have “documented
continued improvement to the point where [Plaintiff] was clinically
stable and doing well, even though she still had chronic pain.”
(T.32). Leaving aside whether the ALJ’s choice of the word “stable”
was an apt one, it makes no meaningful difference to the overall
analysis. Significantly, the ALJ did not misrepresent the record in
discussing her migraine headaches, and clearly recognized that
Plaintiff continued to experience chronic pain even though she did
show improvement with treatment.
There was no obligation to
“develop the record” because
there were “no obvious gaps” in the administrative record, and the
ALJ already possessed a “complete medical history[.]” Rosa v.
Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (quotation omitted).
Commissioner’s decision is not legally flawed and is based on
substantial evidence. Accordingly, it is affirmed. Defendant’s
motion for judgment on the pleadings is granted, and Plaintiff’s
motion for judgment on the pleadings is denied. The Clerk of Court
is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 15, 2017
Rochester, New York.
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