Petrongelli v. Colvin
DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 16 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/11/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ALYSIA B. PETRONGELLI,
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Represented by counsel, Alysia B. Petrongelli (“Plaintiff”)
instituted this action pursuant to Title II 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”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
October 3, 2011, alleging disability due to fibromyalgia, systemic
lupus erythmatous (“SLE”), irritable bowel syndrome (“IBS”), muscle
pain, arthritis, swollen joints, chronic fatigue syndrome (“CFS”),
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).
photosensitivity, and migraine headaches, with an onset date of
March 1, 2007. (T.10, 114-20, 138).2 After this application was
requested a hearing. (T.10, 69). On March 5, 2013, a hearing was
conducted via videoconference by administrative law judge Curtis
Axelsen (“the ALJ”). (T.21-64, 74-75). Plaintiff appeared with her
(“DeMarco”) also testified. The ALJ issued an unfavorable decision
on May 8, 2013. (T.10-17). Plaintiff’s request for review by the
Appeals Council was denied on November 8, 2014, making the ALJ’s
decision the final decision of the Commissioner. This timely action
The parties have filed cross-motions 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 Court will discuss the record evidence further
below, as necessary to the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
Citations to “T.” in parentheses refer to pages from the transcript of the
certified administrative record.
THE ALJ’S DECISION
established by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520, 416.920.
At step one, the ALJ fund that Plaintiff had not engaged in
substantial gainful activity from March 1, 2007, through June 30,
2008, her date last insured.
At step two, the ALJ determined that Plaintiff’s SLE and
fibromyalgia constituted “severe” impairments, but that the other
impairments she alleged were not severe. (T.12). In particular, the
hypertension caused significant limitations in her ability to
perform basic work activities. (T.12, 13). Additionally, the ALJ
found no objective evidence that Plaintiff suffers from headaches.
At step three, the ALJ compared Plaintiff’s severe and nonsevere impairments to the Listing of Impairments found at 20 C.F.R.
Pt. 404, Subpt. P, App. 1. The ALJ gave particular consideration to
Section 14.02 and found that Plaintiff’s SLE did not meet or
medically equal a medical listing thereunder. (T.13).
functional capacity (“RFC”) to perform a full range of sedentary
work, as defined in 20 C.F.R. § 404.1567(a). (T.13).
At step four, the ALJ found that Plaintiff was a younger
individual (30 years-old on the date last insured) with a high
school education and the ability to communicate in English. She was
unable to perform her past relevant work as an activities assistant
(light, skilled); medical records clerk (light, skilled); catering
assistant (light, unskilled); sales associate (light, semiskilled).
At step five, the ALJ determined that transferability of
skills was not material because the Medical Vocational Guidelines,
20 C.F.R., Pt. 404, Subpt. P, App. 2 (“the Grids”), would support
transferable skills. (T.16). Accordingly, the ALJ found that the
Grids directed a finding of “not disabled.” (T.16-17).
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Erroneous Weighing of Treating Physician’s Opinion
Plaintiff alleges that the ALJ erred in assigning “very little
weight” to the opinion of her treating rheumatologist, Dr. Joseph
Dr. Grisanti completed a Medical Source Statement of Ability
to Work-Related Activities (Physical) (“Medical Source Statement”)
at the Commissioner’s request on February 25, 2013. (T.452-57). He
opined that Plaintiff could never lift or carry 11 to 100 pounds;
could sit for 15 to 20 minutes at a time, stand for 10 minutes at
a time, and walk for 10 minutes at a time; could never reach,
handle, finger, feel, or operate foot controls; could rarely climb
stairs and ramps; and could never climb ladders or scaffolds,
balance, stoop, kneel, crouch, or crawl. All of these limitations
were indicated to be due to “joint pain, swelling [and] severe
fatigue.” (E.g., T.454). The Medical Source Statement, at Section
X, informs the provider as follows: “the limitations above are
assumed to be your opinion regarding current limitations only.
However, if you have sufficient information to form an opinion
within a reasonable degree of medical probability as to past
limitations, on what date were the limitations you found above
followed by a line and a space to provide a date, but it was left
blank by Dr. Grisanti on the Medical Source Statement.
The Commissioner “recognizes a rule of deference to the
treatment of a claimant.” Greek v. Colvin, 802 F.3d 370, 375
(2d Cir. 2015). “Thus, ‘the opinion of a claimant’s treating
physician as to the nature and severity of the impairment is given
“controlling weight” so long as it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case
record.”’” Id. (quoting Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(c)(2)). Circumstances
will arise when an ALJ appropriately declines to give controlling
weight to a treating physician’s opinion. Id. (citing Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (holding that
“the opinion of the treating physician is not afforded controlling
weight where, as here, the treating physician issued opinions that
are not consistent with other substantial evidence in the record,
such as the opinions of other medical experts”)). Even when an ALJ
Commissioner’s regulations require the ALJ to consider several
factors in determining how much weight the opinion should receive.
Id. (citing 20 C.F.R. § 404.1527(c)(2)(i), (2)(ii), (3)–(6)). The
Second Circuit has held that, in order “to override the opinion of
the treating physician, . . . the ALJ must explicitly consider,
inter alia: (1) the frequen[c]y, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the
opinion; (3) the consistency of the opinion with the remaining
medical evidence; and, (4) whether the physician is a specialist.”
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per curiam).
rheumatologist, and stated that he did “not question the treating
physician’s opinion that the claimant carried a diagnosis of lupus
prior to the date last insured.” (T.14). However, the ALJ noted,
“the functional impact of the disease process . . . on or before
the date last insured [was] the issue in this matter.” (T.14)
After reviewing the record, the aLJ decided
to accord “very little weight” to Dr. Grisanti’s Medical Source
Statement. First, the ALJ noted, Dr. Grisanti “did not attach any
objective medical evidence” or a “narrative statement to explain
“Dr. Grisanti did not report that these functional limitations
existed during the time period at issue.” (T.15-16). Lastly, the
limitations.” (T.16). While the ALJ’s discussion did not track the
Regulations to the letter, the Court finds that it was supported by
substantial evidence, which “‘means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)). The ALJ did not misquote or
mischaracterize the record, or rely on improper factors. See
determining the weight to give the [treating physician’s] opinion’
. . ., [including] . . . (ii) the evidence in support of the
opinion, i.e., ‘[t]he more a medical source presents relevant
evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight’ that opinion is given. . .
.”). Moreover, as the ALJ noted, Dr. Grisanti, by failing to
indicate a specific date on which the limitations in the Medical
statement were “[his] opinion regarding current limitations only .
. . .” (T.457). “While the existence of a pre-existing disability
can be proven by a retrospective opinion, such an opinion must
refer clearly to the relevant period of disability and not simply
express an opinion as to the claimant’s current status.”
Vitale v. Apfel, 49 F. Supp.2d 137, 142 (E.D.N.Y. 1999) (citing
Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (finding no error
in application of treating physician rule where Dr. Michael Shaw,
who began to see claimant in January, 1987, stated in February,
1987, that claimant “was totally disabled and in his opinion had
been for many years,” but “did not indicate . . . whether the
[claimant]’s disability pre-dated December 31, 1980; and Dr. Ronald
Miller wrote in a letter dated February 24, 1987, that claimant
“could not currently conform to a work schedule and opined that
[claimant] was disabled” but “had no opinion about her condition
prior to 1987”; circuit court agreed with ALJ that “their opinions
are clearly relevant only to 1987 and cannot be read as expressing
any view about 1980[,]” the relevant disability period).
Erroneous Weighing of Lay Witness Opinion
significant weight to the opinion testimony of her friend, DeMarco,
about the extent of the functional limitations resulting from her
non-medical sources, such as ‘spouses, parents, and friends,’ it is
appropriate to consider the nature and extent of the relationship,
‘whether the evidence is consistent with other evidence, and any
other factors that tend to support or refute the evidence.’” Werts
v. Comm’r of Soc. Sec., No. 5:13-CV-0914 LEK/ATB, 2014 WL 6078434,
at *13 (N.D.N.Y. Nov. 13, 2014) (quoting SSR–06–03p, TITLES II AND
XVI:II AND XVI: CONSIDERING OPINIONS AND OTHER EVIDENCE FROM
SOURCES WHO ARE NOT “ACCEPTABLE MEDICAL SOURCES” IN DISABILITY
CLAIMS, 2006 WL 2329939, at *6 (S.S.A. Aug. 9, 2006).
DeMarco testified that she had known Plaintiff for more than
15 years and has witnessed Plaintiff’s “health deteriorate over the
years.” (T.14). DeMarco testified that in 2007, Plaintiff would lie
down “most of the day” because of chronic pain and fatigue, and
“would miss a lot of work as a result of her illness.” (Id.).
The ALJ found that “significant weight cannot be given” to
DeMarco’s testimony for several reasons, including that she is “not
medically trained to make exacting observations as to dates,
frequencies, types and degrees of medical signs and symptoms, or of
the frequency or intensity of unusual moods or mannerisms.” (T.15).
As the ALJ noted, the “accuracy of [DeMarco’s] testimony was
questionable.” (Id.). DeMarco testified in fairly general terms and
did not provide specific dates regarding her observations or
quantify Plaintiff’s limitations and restrictions. For instance,
DeMarco stated that “[i]t seemed like every time Plaintiff had a
baby, her health deteriorated even more[,]” and Plaintiff “would
just get sicker by the day.” (T.37). When asked by the ALJ about
Plaintiff’s “functioning back in ‘07 and ‘08[,]” the relevant time
period, DeMarco replied, without elaboration, simply that Plaintiff
“was starting to get really sick.” (Id.).
relationship as Plaintiff’s friend, DeMarco cannot be considered a
disinterested witness whose testimony would not “tend to be colored
by affection for the claimant and a natural tendency to agree” with
Plaintiff’s account of her symptoms. (T.15). “More importantly,”
the ALJ found, DeMarco’s testimony was “simply not consistent with
the preponderance of the opinions and observations by medical
doctors in this case.” (T.15). While Plaintiff “may be correct in
arguing that the ALJ cannot simply reject [P]laintiff’s [friend]’s
testimony because she is inherently biased in [her] favor, the ALJ
in this case rejected the testimony because it was not consistent
with the evidence.” Werts, 2014 WL 6078434, at *13. SSR 06-03p
As the ALJ observed, although Plaintiff alleges
“total disability since March 2007,” she returned to part-time work
as a food server and sales associate at Kohl’s department store and
has “sought very little treatment” for her medical conditions
during the period at issue, i.e., March 1, 2007, through June 30,
2008. (T.15). Plaintiff also testified to a “wide range” of daily
activities during that time period that “tend[ed] to show a greater
residual functional capacity than alleged.” (Id.). The ALJ did not
misapply SSR 06-03p in evaluating the credibility of Plaintiff’s
reasonable mind might accept as adequate to support a conclusion.’”
Perez, 77 F.3d at 46 (quoting Richardson, 402 U.S. at 401).
Commissioner’s decision is not legally erroneous and is supported
by substantial evidence. Accordingly, the Commissioner’s decision
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
September 11, 2017
Rochester, New York.
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