Motyka v. Colvin

Filing 11

DECISION AND ORDER DENYING Plaintiff's 5 Motion for Judgment on the Pleadings; GRANTING Defendant's 9 Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 10/16/2016. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KENNETH S. MOTYKA,
Plaintiff,
v.

DECISION AND ORDER
15-CV-54S

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff Kenneth S. Motyka challenges an Administrative Law Judge’s

(“ALJ”) determination that he is not disabled within the meaning of the Social Security
Act (“the Act”). Plaintiff alleges that he has been disabled since October 14, 2011, due
to diabetes mellitus, diabetic neuropathy, obesity, plantar fasciitis, status-post left knee
arthroscopy, status-post pacemaker replacement, hypertension, and history of basal
carcinoma on the head and face. Plaintiff contends that his impairments render him
unable to work. He therefore asserts that he is entitled to Disability Insurance Benefits
(“DIB”) under the Act.
2.

On October 15, 2011, Plaintiff applied for DIB, and the Commissioner

denied the application on December 16, 2011. Plaintiff requested a hearing on January
11, 2012, and, pursuant to Plaintiff’s request, ALJ Robert T. Harvey held a hearing on
March 13, 2013.

Plaintiff was represented by counsel at the hearing, where he

appeared in person and testified. An impartial vocational expert also appeared and
testified at the hearing. The ALJ considered the case de novo, and, on April 4, 2013, he
issued a decision denying Plaintiff’s application for benefits. On December 8, 2014, the
Appeals Council denied Plaintiff’s request for review.
1

Plaintiff filed the current civil

action on January 16, 2015, challenging Defendant’s final decision. 1
3.

On September 8, 2015, Plaintiff filed a Motion for Judgment on the

Pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 5).
On December 18, 2015, Defendant filed her own Motion for Judgment on the Pleadings.
(Docket No. 9). This Court took the motions under advisement without oral argument.
For the following reasons, Plaintiff’s motion is denied, and Defendant’s motion is
granted.
4.

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990).

Rather, the

Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that
which amounts to “more than a mere scintilla,” and it has been defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.
2d 842 (1971).

Where evidence is deemed susceptible to more than one rational

interpretation, the Commissioner’s conclusion must be upheld.

See Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5.

“To determine on appeal whether an ALJ’s findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.” In re Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner’s
1

The ALJ’s April 4, 2013 decision became the Commissioner’s final decision in this case when the
Appeals Council denied Plaintiff’s request for review.

2

finding must be sustained “even where substantial evidence may support the plaintiff’s
position and despite that the court’s independent analysis of the evidence may differ
from the [Commissioner’s].”
1992).

Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y.

In other words, this Court must afford the Commissioner’s determination

considerable deference, and will not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de
novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
6.

The Commissioner has established a five-step sequential evaluation

process to determine whether an individual is disabled under the Act. See 20 C.F.R.
§§ 404.1520, 416.920. The United States Supreme Court recognized the validity of this
analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing whether
a claimant is disabled. 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119
(1987).
7.

This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which
is listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a “listed” impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in

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original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. §
404.1520.
8.

While the claimant has the burden of proof on the first four steps, the

Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step is
divided into two parts.

First, the Commissioner must assess the claimant’s job

qualifications by considering his physical ability, age, education, and work experience.
Second, the Commissioner must determine whether jobs exist in the national economy
that a person having the claimant's qualifications could perform.

See 42 U.S.C. §

423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.
Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.

In this case, the ALJ determined that Plaintiff last met the insured status

requirements of the Act on December 31, 2015. He then made the following findings
with regard to the five-step process set forth above: (1) Plaintiff has not engaged in
substantial gainful activity since October 14, 2011, the alleged onset date (R. at 20)2; (2)
Plaintiff’s diabetes mellitus, diabetic neuropathy, obesity, plantar fasciitis, status-post left
knee arthroscopy, status-post pacemaker replacement, and history of basal carcinoma
on the head and face constitute “severe” impairments within the meaning of the Act 3
(id.); (3) Plaintiff’s impairments do not meet or medically equal any of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. at 21); (4) Plaintiff retained the
residual functional capacity (“RFC”) to perform medium work with certain limitations 4 (R.

2

Citations to the underlying administrative record are designated as “R.”

3

The ALJ found that Plaintiff’s hypertension and history of basal cell carcinoma on his head, face, and
back to be non-severe impairments within the meaning of the Act.
4

Plaintiff cannot work around heavy, moving, and dangerous machinery or in areas with unprotected
heights; he cannot climb ropes, ladders, or scaffolds; he cannot work in areas where he would be
exposed to cold, dampness, excessive sunlight, and electrical magnetic devices; and he has frequent
limitations in his ability to balance and reach in all directions with the right upper extremity. (R. at 22.)

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at 22); and (5) Plaintiff is able to perform his past relevant work as a police dispatcher
(R. at 25). Ultimately, the ALJ determined that Plaintiff was not disabled, as defined by
the Act, at any time from October 14, 2011, through the date of his decision on April 4,
2013. (R. at 26.)
10.

Plaintiff advances two challenges to the ALJ’s decision.

First, Plaintiff

argues that the ALJ’s RFC for medium work is not supported by substantial evidence.
Under the Act, medium work requires, inter alia, that an individual be able to stand or
walk, off and on, for approximately six hours in an eight hour workday. See 20 C.F.R. §
404.1567(c); SSR 83-10, 1983 WL 31251, at *6. Plaintiff contends that this requirement
is inconsistent with his diabetic neuropathy, both because the ALJ found it to be a
severe impairment at Step Two and because, as Plaintiff testified, his diabetic
neuropathy makes him unable to stand for long periods of time. Plaintiff also contends
that an RFC of medium work is inconsistent with the opinion of Dr. Robert Weisberg, the
State Agency Review Medical Consultant, who found that Plaintiff can “stand and/or
walk with normal breaks” for “at least two hours” in an eight hour work day. (R. at 297.)
As an initial matter, “[a]n ALJ’s decision is not necessarily internally inconsistent
when an impairment found to be severe is ultimately found not disabling: the standard
for a finding of severity under Step Two of the sequential analysis is de minimis and is
intended only to screen out the very weakest cases.” McIntyre v. Colvin, 758 F.3d 146,
151 (2d Cir. 2014) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995)).
Therefore, there is no inconsistency between finding that Plaintiff suffers from more than
de minimis symptoms due to diabetic neuropathy, but that these symptoms would not
interfere with his ability to stand or walk, off and on, for approximately six hours in an
eight hour workday. See, e.g., Zabala v. Astrue, No. 05 CIV. 4483 (WHP), 2008 WL
136356, at *3 (S.D.N.Y. Jan. 14, 2008), aff’d, 595 F.3d 402 (2d Cir. 2010) (“this Court
finds that the ALJ’s determinations that [plaintiff] suffered from a severe impairment and
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was capable of performing work were not inconsistent”). And, as discussed in further
detail below, an ALJ “is not required to accept the claimant’s subjective complaints
without question; he may exercise discretion in weighing the credibility of the claimant’s
testimony in light of the other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010) (citing Marcus, 615 F.2d at 27). In this case, the ALJ found Plaintiff’s
testimony to be “credible, but not to the extent alleged,” because it was not consistent
with the medical record and Plaintiff’s own testimony regarding daily activities. (R. at
22.)
Nor is the ALJ’s RFC determination inconsistent with the opinion of Dr. Weisberg,
the State Agency Review Medical Consultant, who opined that Plaintiff can stand or
walk “at least two hours” in an eight hour work day. “[W]hen reviewing the medical
evidence, the ALJ has the authority to select among conflicting opinions.” Pines v.
Comm’r of Soc. Sec., No. 13-cv-6850-AJN-FM, 2015 WL 872105, at *3 (S.D.N.Y. Mar.
2, 2015). And, “[a]lthough the ALJ’s conclusion may not perfectly correspond with any
of the opinions of medical sources cited in his decision, he was entitled to weigh all of
the evidence available to make an RFC finding that was consistent with the record as a
whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). As noted above, the ALJ’s
RFC finding for medium work requires standing or walking, off and on, for a total of
approximately six hours in an eight hour workday. SSR 83-10, 1983 WL 31251, at *6.
Dr. Weisberg completed a form, which gave four options under the heading “stand
and/or walk (with normal breaks) for a total of”: (1) “less than two hours in an eight hour
workday,” (2) “at least two hours in an eight hour workday,” (3) “about six hours in an
eight hour workday,” or (4) “medically required hand-held assistive device is necessary
for ambulation.” (R. at 297.) Dr. Weisberg checked the box indicating, “at least two
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hours,” presumably meaning that Dr. Weisberg intended to opine that Plaintiff is capable
of standing and walking between two and six hours per workday.
The ALJ gave some weight to Dr. Weisberg’s opinion, adopting Dr. Weisberg’s
findings that Plaintiff could lift and carry 50 pounds occasionally and 25 pounds
frequently; Plaintiff could not climb ladders, ropes or scaffolds; Plaintiff must avoid
exposure to hazardous machinery and heights; and Plaintiff must avoid concentrated
exposure to extreme cold and extreme heat, because these findings were consistent
with the record as a whole. (R. at 23.) However, the ALJ properly gave less weight to
the opinion the Plaintiff could stand and walk for some amount of time between two and
six hours, because this opinion was not consistent with the remainder of the record.
Moreover, as a reviewing examiner, Dr. Weisberg did not personally examine Plaintiff,
and medical reports that are not based on personal observation are generally given less
weight than reports from examining sources, 20 C.F.R. § 416.927, particularly where, as
here, the nonexamining physician’s opinion conflicts with the opinions of medical
providers who do have the benefit of personal observation.
Indeed, Dr. Gautam Arora, who examined Plaintiff on December 25, 2011, at the
request of the Administration, opined that Plaintiff’s neuropathy resulted in only a “mild
limitation of walking and standing for a long period of time.” (R. at 240.) Dr. Arora
found that Plaintiff had a normal stance and gait, can squat fully, and can walk on his
heels and toes without difficulty. (R. at 238.) And, one year later on December 11,
2012, Dr. Michael A. Parentis, Plaintiff’s orthopedic surgeon, opined Plaintiff was “on
track and doing great” post left knee arthroscopy. (R. at 354.) The same day, Joseph
Benes, a physical therapy assistant and certified strength and conditioning specialist,

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stated that Plaintiff was “doing really well [and] walking really good.” (R. at 356.) Thus,
the ALJ properly gave less weight to Dr. Weisberg’s opinion, as substantial evidence
supports the RFC determination that Plaintiff is able to stand and walk six hours in an
eight hour work day.
Plaintiff also argues that the ALJ’s RFC finding does not account for Plaintiff’s
limitations arising from the side effects of his medication. Plaintiff contends that his
ability to work is limited because he suffers from diarrhea due to two medications,
Metformin and Novolog.

In support of this, Plaintiff cites progress notes from his

primary care physician, noting his diarrhea from Metformin. (R. at 222, 226, 254, 258,
262.) However, the progress notes cited by Plaintiff note diarrhea only as “past medical
history.” (Id.) According to the record, Plaintiff is no longer taking Metformin, and did
not take it during the relevant period, from his onset date of October 14, 2011, through
the date of the time of the ALJ’s decision on April 4, 2013. (R. at 210, 226, 237, 275,
277, 279, 314, 317-318, 325, 328, 333-334, 336, 358, 361.) Plaintiff also testified that
he experienced diarrhea several times a week as a side effect of Novolog (R. at 42),
which the record indicates that Plaintiff began taking on May 7, 2012, and this
prescription continues through the most recent note in the record on January 8, 2013
(R. at 317, 328, 336, 358). During this period, the record contains no notation that the
Novolog caused diarrhea (R. at 318, 329, 337, 359), and indeed, Dr. Darren M.
Caparaso, a treating physician, unambiguously stated that Plaintiff “reports no problem
with Novolog.” (R. at 317.) Because the record does not reflect Plaintiff’s complaints,
the ALJ did not err in concluding that the side effects were not disabling. See Brockway
v. Barnhart, 94 F. App’x 25, 28-29 (2d. Cir. 2004) (rejecting plaintiff’s argument that ALJ
improperly ignored side effects of his medications in assessing RFC because the
medical reports did not reflect such complaints).

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Accordingly, this Court finds no inconsistency between the record and the RFC
as determined by the ALJ.
11.

Second, Plaintiff argues that the ALJ’s conclusions regarding Plaintiff’s

credibility as to the severity of the alleged symptoms are not supported by substantial
evidence.

Specifically, Plaintiff contends that the ALJ erred by failing to consider

Plaintiff’s work history and consistency as evidence of credibility. As noted above, while
an ALJ “is required to take the claimant’s reports of pain and other limitations into
account . . . [he] is not required to accept the claimant’s subjective complaints without
question.”

Genier, 606 F.3d at 49.

Rather, the ALJ “may exercise discretion in

weighing the credibility of the claimant’s testimony in light of the other evidence in the
record.” Id. This requires a two-step process. First, “the ALJ must decide whether the
claimant suffers from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged.” Id. If so, the ALJ must then consider “the
extent to which [the claimant’s] symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence of record.”
quotation marks omitted; alteration in Genier).

Id. (internal

In the present case, the ALJ found

Plaintiff’s testimony “credible, but not to the extent alleged,” because it was not
consistent with the medical record and Plaintiff’s own testimony regarding daily
activities. (R. at 22.)
“[A] good work history may be deemed probative of credibility.” Schaal v. Apfel,
134 F.3d 496, 502 (2d Cir. 1998); see also Rivera v. Schweiker, 717 F.2d 719, 725 (2d
Cir. 1983). However, work history is “just one of many factors” considered in assessing
credibility. Id. In declining to fully credit Plaintiff’s testimony as to the severity of his
impairments, “the ALJ reasonably relied on contrary evidence in the record, including
extensive testimony and treatment notes from numerous physicians” and Plaintiff’s “own
account of his participation in a range of daily activities.” Wavercak v. Astrue, 420 F.
9

App’x 91, 94 (2d Cir. 2011). As noted above, the medical records and opinions support
the ALJ’s conclusion that Plaintiff was capable of performing medium work with certain
limitations.

The ALJ relied on findings from Dr. Arora, Dr. Parentis, and physical

therapy assistant Benes, that Plaintiff has only mild limitations walking or standing (R. at
240), and that Plaintiff was walking well following his left knee arthroscopy (R at 356).
The ALJ also relied on the opinion of Dr. Michael J. Battaglia, a neurologist, who found
Plaintiff’s neurologic examination to be unremarkable other than findings of dense
neuropathy, and that Plaintiff’s symptoms are not “representative of significant serious
or worrisome central nervous system or peripheral nervous system disorders” (R. at
210). Dr. Ravi Sinha, a metabolism and endocrinology specialist, stated that Plaintiff’s
diabetes mellitus has been controlled since June 21, 2011 (R. at 225, 228, 334, 338),
and also noted that Plaintiff was negative for dizziness, tingling, sensory changes, and
weakness, and that Plaintiff’s vision was not blurred (R. at 220, 224, 334, 337). These
opinions constitute substantial evidence contrary to Plaintiff’s testimony as to the
severity of his impairments.
The ALJ’s conclusion is also consistent with Plaintiff’s own account of his
participation in a range of daily activities during the period in question, which include
cleaning his home inside and out, mowing his lawn, clearing snow, cooking quick meals,
weekly shopping with his wife, weekly breakfast outings with old co-workers, weekly
outings with social groups, as well as pistol shooting and running model trains. (R. at
139-42.) See 20 C.F.R. § 404.1529(c)(3)(i) (noting that daily activities are a factor the
ALJ considers relevant to a claimant’s symptoms). Finally, although the ALJ did not
discuss Plaintiff’s work history in the credibility analysis, he did not ignore it entirely. To
the contrary, the ALJ considered Plaintiff’s prior work history when he concluded that
Plaintiff’s RFC allowed him to continue his career as a police dispatcher, as he had
previously performed that job. (R. 26.) In light of this evidence, the ALJ committed no
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error by not discussing Plaintiff’s work history as part of his credibility assessment.
Wavercak, 420 F. App’x at 94 (“That [plaintiff]’s good work history was not specifically
referenced in the ALJ’s decision does not undermine the credibility assessment, given
the substantial evidence supporting the ALJ’s determination.”).
Nor is this Court persuaded by Plaintiff’s argument that his subjective complaints
have been consistent through the relevant period, and thus, the complaints should be
fully credited. Consistency alone is not sufficient to establish a disability:
[S]tatements about your pain or other symptoms will not alone establish
that you are disabled; there must be medical signs and laboratory findings
which show that you have a medical impairment(s) which could
reasonably be expected to produce the pain or other symptoms alleged
and which, when considered with all of the other evidence . . . would lead
to a conclusion that you are disabled.
20 C.F.R. § 404.1529(a). This District has stated that “the court ‘must show special
deference’ to credibility determinations made by the ALJ, ‘who had the opportunity to
observe the witnesses’ demeanor’ while testifying.” Lee v. Colvin, No. 13-CV-1151JTC, 2015 WL 3505791, at *3 (W.D.N.Y. June 3, 2015) (quoting Yellow Freight Sys. Inc.
v. Reich, 38 F.3d 76, 81 (2d Cir. 1994)). “It is the function of the [ALJ], not [the Court], .
. . to appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of
Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Accordingly, this Court finds
no error in the ALJ’s credibility assessment.
12.

Having considered Plaintiff’s challenges, this Court is satisfied that the

ALJ committed no reversible error, and that his decision is based on substantial
evidence. Defendant’s Motion for Judgment on the Pleadings is therefore granted and
Plaintiff’s motion seeking the same relief is denied.

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IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 5) is DENIED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No.
9) is GRANTED.
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: October 16, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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