Schmigiel v. Colvin

Filing 17

DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings. Plaintiffs complaint is dismissed in its entirety with prejudice. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 9/22/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CATHERINE T. SCHMIEGIEL,
Plaintiff,

1:15-cv-00205 (MAT)
DECISION AND
ORDER

-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

I.

Introduction
Plaintiff Catherine T. Schmiegiel(“plaintiff”) brings this

action
Act”),

pursuant to Title II of the Social Security Act (“the
seeking

review

of

the

final

decision

of

the

Acting

Commissioner of Social Security (“defendant” or “the Commissioner”)
denying her application for disability insurance benefits (“DIB”).
Presently before the Court are the parties’ competing motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.

For the reasons set forth below,

plaintiff’s motion is denied and defendant’s motion is granted.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social
Security on January 23, 2017. The Clerk of the Court is instructed to amend the
caption of this case pursuant to Federal Rule of Civil Procedure 25(d) to reflect
the substitution of Acting Commissioner Berryhill as the defendant in this
matter.

II.

Procedural History
Plaintiff

protectively

filed

an

application

for

DIB

on

August 31, 2011, alleging disability due to arthritis in the spine,
cervical fusion, and cervical disc herniation.
Transcript (“T.”) 105-13.

Administrative

Plaintiff’s application was denied on

November 17, 2011, and she timely requested a hearing before an
administrative law judge (“ALJ”), which occurred on February 22,
2013, before ALJ William M. Weir.

T. 31-55, 63-68, 72-73.

On

August 22, 2013, ALJ Weir issued a decision in which he found
plaintiff not disabled as defined in the Act.

T. 16-30.

The

Appeals Council denied plaintiff’s request for review on January 7,
2015, rendering the ALJ’s determination the Commissioner’s final
decision.

T. 1-3.

Plaintiff subsequently commenced the instant

action.
III.

The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status

requirements of the Act through December 30, 2015.
one

of

the

five-step

sequential

evaluation,

T. 21.
see

20

At step
C.F.R.

§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since February 24, 2011, the
alleged onset date.

Id.

At step two, the ALJ found that plaintiff

had the severe impairments of cervical spine disc herniation,
status post anterior cervical discectomy and fusion at C5-6, and
lumbar spine degenerative disc disease.
2

Id.

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.
Id.

Before proceeding to step four, the ALJ found that plaintiff

retained the residual functional capacity (“RFC”) to perform the
full range of sedentary work as defined in 20 C.F.R. § 404.1567(a).
T. 22.

At step four, the ALJ found that plaintiff was unable to

perform any past relevant work.
found

that,

considering

T. 25.

plaintiff’s

At step five, the ALJ
age,

education,

work

experience, and RFC, there are jobs that exist in significant
numbers in the national economy that plaintiff can perform.

Id.

Accordingly, the ALJ found that plaintiff was not disabled. T. 26.
IV.

Discussion
A

district

court

may

set

aside

the Commissioner’s

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).
Here, plaintiff makes the following arguments in favor of her
motion for judgment on the pleadings: 1) the ALJ failed to give
proper weight to plaintiff’s subjective complaints of pain and
2) the ALJ improperly relied on plaintiff’s reported activities of
3

daily living in finding her less than fully credible.

For the

reasons discussed below, the Court finds these arguments without
merit.
A.

The ALJ Properly
Complaints of Pain

Considered

Plaintiff’s

Subjective

Plaintiff testified before the ALJ that she suffered from pain
and

numbness in her left arm and hand every day, which had caused

her to drop items “like two or three times.”
Plaintiff

also

testified

that

she

was

able

T. 40, 45-46.

to

sit

for

only

30 minutes before needing to stand and walk for 5 to 10 minutes to
relieve her pain.
statements

T. 44-45.

regarding

the

In his decision, the ALJ found these

intensity,

persistence,

and

limiting

effects of her plaintiff’s symptoms less than fully credible.
T. 23.
1.

The ALJ Properly Considered Plaintiff’s Subjective
Complaint of Pain and Numbness in her Left Hand and
Arm

Plaintiff first argues that the ALJ was obligated to give
great weight to her subjective complaints regarding pain and
numbness in her left hand and arm because they were “well supported
by

the

medical

record.”

Docket

No.

11-1

at

17.

The

Court

disagrees.
In assessing plaintiff’s subjective complaints of pain, the
ALJ was required to consider them “in the context of the entire
record.”

Morseman v. Astrue, 571 F. Supp. 2d 390, 396 (W.D.N.Y.

4

2008).

“The ALJ’s decision must contain specific reasons for the

finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the [ALJ]
gave to the individual’s statements and the reasons for that
weight.”

Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir. 2013)

(internal quotation omitted).
Here, the ALJ adequately explained his reasons for finding
plaintiff’s statements regarding her claimed left arm pain and
numbness less than credible.

Plaintiff claimed that her left arm

was painful and numb “every day” (T. 40), yet Dr. Donna Miller, who
performed a consultative examination of plaintiff, found that her
grip strength was 5/5 bilaterally, her hand and finger dexterity
were intact, and she had no limitations for handling and fingering.
T. 460-61.
which

The ALJ gave great weight to Dr. Miller’s opinion,

is

plainly

complaints.

inconsistent

with

plaintiff’s

subjective

Moreover, on March 17, 2013, and March 29, 2013,

plaintiff’s treating physician, Dr. John Pollina, Jr., found that
plaintiff

had

extremities.

“excellent
T. 769, 773.

strength”

bilaterally

in

her

upper

Notably, plaintiff told Dr. Pollina

that she only experienced “occasional” left arm pain, with “some
numbness and tingling” (T. 769), a statement that is clearly
inconsistent with her testimony to the ALJ that such pain and
numbness was an every day occurrence.

5

The ALJ’s determination that plaintiff’s claim regarding pain
and numbness in her left arm and hand was not fully credible is
well-supported by substantial evidence in the record. Accordingly,
the Court finds no error.
2.

The ALJ Properly Considered Plaintiff’s Subjective
Complaint Regarding her Ability to Sit

The ALJ also found that plaintiff’s statements regarding her
ability to sit were not fully credible.
noted that

Dr.

plaintiff’s

ability

treating

Miller
to

physicians

had
sit,

showed

not

In particular, the ALJ

identified

that
that

the

any

reports

plaintiff’s

limitations
of

in

plaintiff’s

back

pain

was

significantly relieved with treatment, that an MRI performed on
January 17, 2017 showed no signs of disc herniation, and that
Dr. Pollina’s sensory and motor examinations of plaintiff were
normal.

T. 24-25.

The ALJ further noted that plaintiff testified

she was able to ride in a car from her home in Lackawanna,
New York, to Erie, Pennsylvania (a roughly 1.5 hour trip) to have
lunch, and that she was only required to stop if she and her
husband took “the scenic route.”
The

Court

finds

that

T. 25; see also T. 51.

the

ALJ

adequately

explained

his

rationale for finding plaintiff’s statements regarding her ability
to sit less than credible.

No physician opined that plaintiff had

any restrictions in her ability to sit, and the medical evidence of
record

showed

treatment.

that

plaintiff’s

Moreover,

the

back

Court
6

pain

agrees

was
with

responsive
the

ALJ

to

that

plaintiff’s admission that she is able to ride in a car for
1.5 hours for purely recreational purposes (i.e. to go out for
lunch) is inconsistent with her claim that she can only sit for
30 minutes before the pain requires her to stand and walk.

See,

e.g., Claymore v. Astrue, 519 F. App’x 36, 38 (2d Cir. 2013) (ALJ
did not err is finding claimant was not credible in discussing his
pain where he was able to “vacuum, travel by car, take out the
trash, and wash dishes” and his pain medications “kept his pain
under fairly good control”).
In sum, and for the foregoing reasons, the Court finds that
the ALJ’s assessment of plaintiff’s subjective complaints was
appropriate and supported by substantial evidence.

Accordingly,

plaintiff has failed to demonstrate that remand is required.
B.

The ALJ’s Assessment of Plaintiff’s Credibility is WellSupported by the Record

Plaintiff’s

second

and

last

argument

is

that

the

ALJ

improperly relied on her activities of daily living in finding her
less than fully credible.

This argument is without merit.

“Because the ALJ has the benefit of directly observing a
claimant’s demeanor and other indicia of credibility, his decision
to discredit subjective testimony is entitled to deference and may
not be disturbed on review if his disability determination is
supported by substantial evidence.”
3572427,
omitted).

at

*5

(W.D.N.Y.

It

is

July

Hargrave v. Colvin, 2014 WL

21,

2014)

well-established

that

7

(internal
a

quotation

claimant’s

daily

activities are an appropriate factor to consider in assessing
credibility.

See, e.g., Crowley v. Barnhart, 220 F. Supp. 2d 176,

180 (W.D.N.Y. 2002) (ALJ properly considered plaintiff’s testimony
that he did household chores and engaged in “day traveling” in
discrediting his claim that he could stand for only 15-20 minutes
at a time).
In this case, the ALJ explained that he found plaintiff less
than credible because her subjective assessment of her functional
limitations

was

unsupported

by

the

reports

of

her

treating

physicians and inconsistent with her reported activities of daily
living, and because plaintiff had made inconsistent statements
regarding her capabilities.
noted

that

plaintiff

T. 24-25.

first

claimed

In particular, the ALJ
that

she

only

drove

“infrequently,” before subsequently admitting to driving herself to
therapy appointments twice per week and to the stores to shop, and
that plaintiff had claimed to have extremely limited mobility such
that she could not walk across a parking lot, yet she also
testified that she was capable of walking a quarter mile for
exercise every day.
plaintiff’s

argument,

T. 25; see also T. 53-54.
the

ALJ

did

not

give

undue

Contrary to
weight

to

plaintiff’s reported activities of daily living in assessing her
credibility.

Instead, he properly considered them, along with

numerous other factors, in reaching a determination that was
consistent with the record as a whole.

8

Plaintiff argues that the ALJ erred because he did not take
into account her “exemplary work history” and her consistent
engagement in treatment.

Docket No. 11-1 at 24.

Plaintiff is

correct that a positive work history bears positively on her
credibility. “However, a positive work history is just one of many
factors that an ALJ should consider in assessing credibility” and
“[t]he fact that Plaintiff previously demonstrated a strong work
ethic does not so significantly bolster [her] credibility as to
overcome the other factors weighing against a finding that [her]
testimony was entirely credible.”

May v. Colvin, 2014 WL 3546297,

at *12 (W.D.N.Y. July 10, 2014) (internal quotation omitted).
Moreover, “[f]ailure to expressly consider every factor set forth
in the regulations is not grounds for remand where the reasons for
the ALJ’s determination of credibility are sufficiently specific to
conclude

that

he

considered

the

entire

evidentiary

record.”

Judelsohn v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y. June 25, 2012).
“Credibility

findings

of

an

ALJ

are

entitled

to

great

deference and therefore can be reversed only if they are patently
unreasonable.”

Andrisani

v.

Colvin,

2017

WL

2274239,

(W.D.N.Y. May 24, 2017) (internal quotation omitted).
case,

the

ALJ

adequately

explained

the

rationale

at

*3

In this
for

his

credibility determination, and the Court is able to conclude that
he viewed the entire evidentiary record in doing so.
remand is not warranted.

9

Accordingly,

V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Doc. 11) is denied and the Commissioner’s motion
(Doc. 14) is granted.

Plaintiff’s complaint is dismissed in its

entirety with prejudice.

The Clerk of the Court is directed to

close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

September 22, 2017
Rochester, New York.

10