Schmigiel v. Colvin
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,
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Plaintiff Catherine T. Schmiegiel(“plaintiff”) brings this
pursuant to Title II of the Social Security Act (“the
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.
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
August 31, 2011, alleging disability due to arthritis in the spine,
cervical fusion, and cervical disc herniation.
Transcript (“T.”) 105-13.
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.
August 22, 2013, ALJ Weir issued a decision in which he found
plaintiff not disabled as defined in the Act.
Appeals Council denied plaintiff’s request for review on January 7,
2015, rendering the ALJ’s determination the Commissioner’s final
Plaintiff subsequently commenced the instant
The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 30, 2015.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since February 24, 2011, the
alleged onset date.
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.
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 the
full range of sedentary work as defined in 20 C.F.R. § 404.1567(a).
At step four, the ALJ found that plaintiff was unable to
perform any past relevant work.
At step five, the ALJ
experience, and RFC, there are jobs that exist in significant
numbers in the national economy that plaintiff can perform.
Accordingly, the ALJ found that plaintiff was not disabled. T. 26.
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
daily living in finding her less than fully credible.
reasons discussed below, the Court finds these arguments without
The ALJ Properly
Complaints of Pain
Plaintiff testified before the ALJ that she suffered from pain
numbness in her left arm and hand every day, which had caused
her to drop items “like two or three times.”
T. 40, 45-46.
30 minutes before needing to stand and walk for 5 to 10 minutes to
relieve her pain.
In his decision, the ALJ found these
effects of her plaintiff’s symptoms less than fully credible.
The ALJ Properly Considered Plaintiff’s Subjective
Complaint of Pain and Numbness in her Left Hand and
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
In assessing plaintiff’s subjective complaints of pain, the
ALJ was required to consider them “in the context of the entire
Morseman v. Astrue, 571 F. Supp. 2d 390, 396 (W.D.N.Y.
“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
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.
The ALJ gave great weight to Dr. Miller’s opinion,
Moreover, on March 17, 2013, and March 29, 2013,
plaintiff’s treating physician, Dr. John Pollina, Jr., found that
T. 769, 773.
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.
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.
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.
In particular, the ALJ
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
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.”
T. 25; see also T. 51.
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
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.
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.
plaintiff has failed to demonstrate that remand is required.
The ALJ’s Assessment of Plaintiff’s Credibility is WellSupported by the Record
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.”
Hargrave v. Colvin, 2014 WL
activities are an appropriate factor to consider in assessing
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
physicians and inconsistent with her reported activities of daily
living, and because plaintiff had made inconsistent statements
regarding her capabilities.
In particular, the ALJ
“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.
T. 25; see also T. 53-54.
plaintiff’s reported activities of daily living in assessing her
Instead, he properly considered them, along with
numerous other factors, in reaching a determination that was
consistent with the record as a whole.
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.
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
Judelsohn v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y. June 25, 2012).
deference and therefore can be reversed only if they are patently
(W.D.N.Y. May 24, 2017) (internal quotation omitted).
credibility determination, and the Court is able to conclude that
he viewed the entire evidentiary record in doing so.
remand is not warranted.
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
September 22, 2017
Rochester, New York.
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