Mikulec v. Colvin
DECISION AND ORDER denying 9 Motion for Judgment on the Pleadings; granting 13 Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 06/27/2017. (MEG)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL KEVIN MIKULEC,
No. 1:14-CV-01025 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
brings this action pursuant to Title II of the Social Security Act
Commissioner of Social Security (“the Commissioner”) denying his
applications for disability insurance benefits (“DIB”). 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.
The record reveals that in August 2011, plaintiff (d/o/b
disability beginning March 4, 2011. After his application was
denied, plaintiff requested a hearing, which was held before
administrative law judge Donald McDougall (“the ALJ”) on April 8,
2013. The ALJ issued an unfavorable decision on June 20, 2013. The
Appeals Council denied review of that decision and this timely
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff satisfied the insured
status requirements of the Act through December 31, 2016. At step
§ 404.1520, the ALJ found that plaintiff had not engaged in
substantial gainful activity since March 4, 2011, the alleged onset
date. At step two, the ALJ found that plaintiff suffered from the
severe impairments of morbid obesity, asthma, and lumbar spine
disorder. 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 light
work as defined in 20 C.F.R. § 404.1567(b), “with the following
limitations: [he] must be able to change positions every half-hour;
[he] cannot be exposed to extremes of pulmonary irritants; [he] can
only occasionally climb, balance, kneel, stoop, crouch or crawl;
and, [he] can never climb ladders, ropes, or scaffolds.” T. 13-14.
At step four, the ALJ found that plaintiff was incapable of
performing past relevant work. At step five, the ALJ found that
considering plaintiff’s age, education, work experience, and RFC,
there were jobs existing in significant numbers in the national
economy that he could perform. Accordingly, the ALJ found that
plaintiff was not disabled.
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).
Development of the Record
Plaintiff contends that the ALJ failed to fully develop the
medical record. Specifically, plaintiff argues that because his
primary care physician, Dr. Sukhwinder Kodial, was referenced in
several treatment notes from other medical sources, the record was
necessarily incomplete because it did not contain any treatment
notes from Dr. Kodial. The record reveals, as plaintiff contends,
that Dr. Kodial was carbon-copied on a handful of notes in the
medical record. Plaintiff testified, and the record reflects, that
he treated primarily with Dr. George Haddad through approximately
July 2012, when he switched to Dr. Kodial for primary care.
Plaintiff testified that he saw both primary physicians primarily
for pain medication, and that he changed care to Dr. Kodial because
Dr. Haddad required him to come in monthly in order to renew a pain
medicine prescription, whereas Dr. Kodial did not require visits of
The Commissioner argues that the ALJ possessed a complete
medical history of plaintiff, and the Court agrees. The information
includes full treatment notes from neurosurgeon Dr. Elad Levy and
his nurse practitioner (“NP”) Laura Mason, treatment notes as well
as a medical opinion from primary care physician Dr. Haddad, and a
consulting examining opinion from state agency physician Dr. Donna
Miller. The only references to Dr. Kodial that appear in the record
are treatment notes either addressed to, or carbon-copied to, his
office. There is no indication in the record that these treatment
notes would shed any additional light on plaintiff’s conditions
significantly included treatment notes from plaintiff’s primary
care physician, Dr. Haddad, for the bulk of the relevant time
Accordingly, the Court finds that this record was complete
with “no obvious gaps,” and therefore the ALJ was “under no
obligation to seek additional information in advance of rejecting
[plaintiff’s] benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79
n.5 (2d Cir. 1999) (internal quotation marks omitted). “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).
Under these circumstances, the ALJ did not err in failing to obtain
treatment records from Dr. Kodial. See Lozama v. Colvin, 2016 WL
1259411, *4 (N.D.N.Y. Mar. 30, 2016) (finding that ALJ did not err
in failing to obtain primary care physician’s records where “the
evidence of record was sufficiently complete for the ALJ to make an
informed decision”) (citing 20 C.F.R. § 404.1512(d); Rosa, 168 F.3d
at 79 n.5)).
Opinion of Nurse Practitioner
Plaintiff contends that the ALJ erred in giving “great” weight
to an opinion from NP Mason, who was involved in plaintiff’s
treatment at Dr. Levy’s office. This “opinion” is contained within
an October 26, 2011 treatment note, which is signed by NP Mason,
plaintiff’s physical examination showed full strength in the lower
extremities, a normal gait, a healed incision from a prior back
surgery, and an ability to stand on tiptoes and heels. NP Mason
opined that plaintiff should be limited to “light duty with no
twisting, turning, pushing, or pulling.” T. 319. She noted that
plaintiff was “anxious to return to work, . . . [and] [i]f there is
indicates that she would see plaintiff back in Dr. Levy’s office in
Plaintiff points out that the ALJ mistakenly referred to this
opinion as being from Dr. Levy, but in fact the opinion came from
NP Mason and was not signed by Dr. Levy. Because of this mistake,
plaintiff contends, the ALJ erred in giving NP Mason’s opinion
great weight. In effect, plaintiff argues that the ALJ erroneously
applied the treating physician rule, see 20 C.F.R. § 404.1527(c),
to NP Mason’s opinion.
Plaintiff’s argument is flawed for several reasons. First, the
ALJ gave only “great” – but not “controlling” – weight to NP
Mason’s opinion. Thus, NP Mason’s opinion was considered in the
ALJ’s overall decision and RFC finding, but did not control his
finding. Thus, the ALJ did not give undue deference to NP Mason’s
mistakenly applying the treating physician rule to the opinion.
Second, although the ALJ erroneously ascribed the opinion to
“consistent with the objective evidence in the record.” T. 17. As
NP Mason was an “other source” under the regulations, it was
appropriate for the ALJ to consider her opinion and to assign it
evidence of record, including treatment notes from Dr. Levy’s
office which indicated that plaintiff’s physical examinations were
relatively unremarkable and his condition was noted as improving
over time. See, e.g., T. 237, 249, 267, 306. Opinions from Drs.
Haddad and Miller were also consistent with NP Mason’s opinion. See
SSR 06–03p, 2006 WL 2329939, at *4 (noting that in weighing an
opinion from an “other source,” the ALJ should consider “[h]ow
consistent the opinion is with other evidence”); Brown v. Colvin,
2014 WL 1679761, *5 (W.D.N.Y. Apr. 28, 2014) (“[A]s a nurse
practitioner and ‘other source’ opinion, the assessment by that
practitioner is entitled to some weight especially where there is
a treatment relationship with plaintiff[.]”).
Finally, Dr. Levy’s treatment records indicate that he and NP
Mason treated plaintiff jointly, and therefore the record makes
clear that NP Mason enjoyed an extensive treatment relationship
with plaintiff. See, e.g., Williams v. Comm’r of Soc. Sec., 2016 WL
1271486, *7 (N.D.N.Y. Mar. 31, 2016) (“It was proper for the ALJ to
give great weight to [the nurse practitioner’s] opinions because
even though she was not an acceptable medical source, she . . . had
an extensive history and relationship as [p]laintiff's primary
treatment provider.”) (citing SSR 06-03p (noting that factors to be
considered when evaluating the opinion of a source who is not an
acceptable medical source are the degree to which the source
presents relevant evidence to support her opinion and whether the
source has a specialty related to the claimant's impairment)).
Accordingly, the Court finds that the ALJ’s mistaken attribution of
NP Mason’s opinion to Dr. Levy was not significant. Moreover,
substantial evidence supported his decision to give the opinion
Plaintiff contends that the ALJ’s RFC finding is unsupported
by substantial evidence, arguing specifically that the ALJ did not
have a basis for imposing the sit-stand option that “[plaintiff]
must be able to change positions every half-hour.” T. 13. As the
Commissioner points out, plaintiff’s brief appears to place him “in
the unusual position of arguing that the ALJ’s RFC determination
was erroneous because it took too narrow a view of [p]laintiff’s
functional capacity.” Doc. 13-1 at 16 (emphasis added). However,
unsupported by substantial evidence even in the absence of a sitstand option, because the sit-stand option advocated by plaintiff
occupational base of work.
The Court finds that substantial evidence supports the sitstand option incorporated into the ALJ’s RFC finding. First, the
medical opinions of record provided substantial evidence supporting
plaintiff was (at least at the time of her October 26, 2011
treatment note) restricted to light work “with no lifting greater
than 25 lbs and no excessive bending, twisting, turning, pushing,
or pulling.” T. 319. Dr. Miller’s consulting opinion as well as Dr.
Haddad’s treating opinion also supported a finding that plaintiff
could perform light work with the restrictions outlined by the ALJ.
Significantly, Dr. Haddad reported that plaintiff could sit for one
hour at a time, without interruption. Second, plaintiff himself
testified that he could sit for a period of 30 to 45 minutes before
needing to change positions. Accordingly, the Court finds that the
ALJ’s RFC finding, including the sit-stand option, was supported by
substantial evidence of record.
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (doc. 9) is denied and the Commissioner’s motion
(doc. 13) 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
The Clerk of the Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 27, 2017
Rochester, New York.
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