DiLorenzo v. Colvin

Filing 22

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
1:14-cv-00906-MAT

Plaintiff,
-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

INTRODUCTION
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”)
and

Supplemental

Security

Income

(“SSI”).

This

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
Plaintiff protectively filed an application for DIB on August
29, 2011, alleging that he was disabled commencing August 29, 2011,
due

to

degenerative

disc

disease,

arthritis,

nerve

damage,

1

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).

gastroparesis,

depression,

and

deficiencies.2

vitamin

The

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
call

any

witnesses.

The

ALJ

issued

an

unfavorable

decision

(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
the

Federal

Rules

of

Civil

Procedure.

The

Court

adopts

and

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
Commissioner

for

evaluating

disability

claims.

See

20

C.F.R.

§§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff

2

Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.

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meets

the

insured

status

requirements

of

the

Act

through

December 31, 2015, and had not engaged in substantial gainful
activity since August 22, 2011, the alleged onset date.
At

step

two,

the

ALJ

determined

that

Plaintiff

has

the

following severe impairments: fibromyalgia and cervicalgia, status
post-cervical

fusion

surgery,

gastroparesis,

and

migraine

headaches.
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

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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
Rule 201.28.
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
correct legal

standards.

See

42

U.S.C.

§ 405(g).

“Where

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

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applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
DISCUSSION
I.

Erroneous Severity Determination at Step Two
Plaintiff

concluding
impairments.

contends

that

her

(T.19

that

the

depression

(finding

ALJ
and

that

erred

at

anxiety

step

Plaintiff’s

were

two

by

non-severe

depression

with

anxiety “do not cause more than minimal limitation in [her] ability
to

perform

basic

mental

work

activities

and

are

therefore

non-severe”). Plaintiff asserts that the finding is deficient
because “there is no medical opinion evidence to support this
conclusion[,]”

and,

accordingly,

“the

ALJ

should

have

sought

medical expert opinion evidence to determine whether Plaintiff’s
depression and anxiety were severe or non-severe. . . .”

(Pl’s

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,”
20

C.F.R.

§§

404.1520(a)(4)(ii),

416.920(a)(4)(ii),

that

“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,

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meant only to screen out the weakest of claims. Dixon v. Shalala,
54

F.3d

1019,

1030

(2d.

Cir.

1995).

Where,

as

here,

mental

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
technique,

the

functional

effects

of

a

claimant’s

mental

impairments are factored into the step two severity determination.
Specifically,
limitation”

the

ALJ

caused

by

must
the

“rate
mental

the

degree

impairment

of

in

functional

four

areas:

(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),
416.920(c)(4).

“Episodes

of

decompensation”

are

rated

on

a

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)).
The

ALJ

first

described

Plaintiff’s

limited

history

of

treatment for her alleged mental impairments. In particular, the

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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
any treatment

specifically

directed

at

addressing

Plaintiff’s

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
concentration,

persistence,

or

pace;

and

had

experienced

no

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.
3

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.

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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
consultative

examination

to

determine

the

severity

of

the

claimant’s depression, noting that the Commissioner’s regulations
require

that

examination

the

when

ALJ
‘[a]

“must

normally

conflict,

order

a

inconsistency,

consultative
ambiguity

or

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.
§ 404.1519a(b)(4)).

Here, in contrast, the ALJ did not rejected a

properly supported expert medical opinion from one of Plaintiff’s
treating

sources;

nor

was

there

a

conflict,

inconsistency,

ambiguity or insufficiency in the evidence requiring resolution by

-8-

a consultative examiner. Therefore, the Court is unable to conclude
that the ALJ failed to apply the correct legal principles at step
two

of

the

implicitly

sequential
concedes,

evaluation.

substantial

Furthermore,

evidence

as

supports

Plaintiff
the

ALJ’s

special technique findings.
II.

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
impairment

that

could

reasonably

be

expected

to

produce

the

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
nature,
(3)

duration,

precipitating

frequency
and

and

aggravating

intensity
factors;

of
(4)

her
the

symptoms;
type

of

medication and other treatment or measures which the claimant uses

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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
having

any

problems

with

concentration.

Moreover,

at

each

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
claimant's

credibility.

Additionally,

while

the

claimant

has

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

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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
with

the

prescription

medication,

Cymbalta®

(duloxetine).

Plaintiff’s argument boils down to a complaint that the ALJ failed
to

investigate

how

long

Plaintiff

actually

was

able

to

take

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
product”).

Dr.

Saikali

also

indicated

that

his

office

would

“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.

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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
(T.687),

Plaintiff

was

“having

significantly

less

migraine

headaches and her pain overall is improving with the use of Lyrica”
although she “still has bouts of extreme pain from time to time.”
(T.695).

When

Dr.

Corigliano

saw

Plaintiff

in

October

2012,

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

4

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”).

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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.”
(T.643).
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).

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CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

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

June 15, 2017
Rochester, New York.

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