Magby v. Commissioner of Social Security
Filing
15
DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 10 is DENIED, and the Commissioner's Motion for Judgment on the Pleadings 13 is GRANTED. Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. IT IS SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 09/01/2016. -CLERK TO FOLLOW UP- (AFM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KARL MAGBY,
Plaintiff,
Case # 15-CV-285-FPG
v.
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.
Karl Magby (“Magby” or “Plaintiff”) brings this action pursuant to the Social Security
Act (“the Act”) seeking review of the final decision of the Commissioner of Social Security (“the
Commissioner”) that denied his application for Social Security Income (“SSI”) under Title XVI
of the Act. ECF No. 1. This Court has jurisdiction over this action under 42 U.S.C. §§ 405(g),
1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure.
ECF Nos. 10, 13.
For the reasons that follow, the
Commissioner’s motion is GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On March 30, 2012, Magby protectively applied for SSI with the Social Security
Administration (“the SSA”). Tr.1 111-16, 124, 135. He alleged that he had been disabled since
November 8, 2007 due to a back injury and high blood pressure. Tr. 111, 135. After his
application was denied at the initial administrative level, a hearing was held before
Administrative Law Judge David S. Lewandowski (“the ALJ”) on July 10, 2013 in which the
ALJ considered Magby’s application de novo. Tr. 32-59. Magby appeared at the hearing with
his attorney and testified. Id. On October 9, 2013, the ALJ issued a decision finding that Magby
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References to “Tr.” are to the administrative record in this matter.
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was not disabled within the meaning of the Act.
Tr. 15-27.
That decision became the
Commissioner’s final decision when the Appeals Council denied Magby’s request for review on
February 9, 2015. Tr. 1-5. Thereafter, Magby commenced this action seeking review of the
Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.
District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation
marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner
is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (internal quotation marks omitted). It is not this Court’s function to “determine de
novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
(internal quotation marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary’s decision is not de novo and
that the Secretary’s findings are conclusive if supported by substantial evidence).
II.
Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
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the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f). The ALJ then
proceeds to step four and determines whether the claimant’s RFC permits him or her to perform
the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f). If the claimant can
perform such requirements, then he or she is not disabled. If he or she cannot, the analysis
proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that
the claimant is not disabled. To do so, the Commissioner must present evidence to demonstrate
that the claimant “retains a residual functional capacity to perform alternative substantial gainful
work which exists in the national economy” in light of his or her age, education, and work
experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see
also 20 C.F.R. § 404.1560(c).
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DISCUSSION
I.
The ALJ’s Decision
The ALJ’s decision analyzed Magby’s claim for benefits under the process described
above. At step one, the ALJ found that Magby had not engaged in substantial gainful activity
since March 30, 2012, the application date. Tr. 17. At step two, the ALJ found that Magby has
the following severe impairments: degenerative joint disease of the lumbar spine, osteoarthritis
of the bilateral knees, and obesity.
Tr. 17-18.
At step three, the ALJ found that such
impairments, alone or in combination, did not meet or medically equal an impairment in the
Listings. Tr. 18-19.
Next, the ALJ determined that Magby retained the RFC to perform light work2 except he
can occasionally climb stairs, balance, and stoop, but he cannot kneel, crouch, or crawl or climb
ladders, ramps, or scaffolds. Tr. 19-26. Magby needs a cane to ambulate, can occasionally push
and pull, but cannot lift from floor to waist level or perform overhead activities. Id. Magby also
must be able to alternate between sitting and standing as needed. Id. At step four, the ALJ found
that this RFC prevents Magby from performing his past relevant work as a taxicab driver. Tr.
25-26. At step five, the ALJ relied on the VE’s testimony and found that Magby is capable of
making an adjustment to other work that exists in significant numbers in the national economy
given his RFC, age, education, and work experience. Tr. 26-27. Specifically, the VE testified
that Magby could work as a cashier, ticket taker, or file clerk. Tr. 27. Accordingly, the ALJ
concluded that Magby was not “disabled” under the Act. Tr. 27.
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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must
have the ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that
he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 416.967(b).
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II.
Analysis
Magby argues that: (1) the ALJ erred by finding that he can perform light work even
though he needs to use a cane; and (2) the ALJ failed to give the proper weight to his treating
physician. ECF No. 7, at 8-12. These arguments are addressed in turn below.
A.
Light Work and Cane Use
Magby argues that the ALJ erred by finding that he can perform light work even though
he needs to use a cane. ECF No. 10-1, at 12-14. The need to use a cane, however, does not
automatically limit a claimant to sedentary work or render him or her disabled. In fact, courts
have affirmed decisions where the ALJ found that the claimant could perform a reduced range of
light work with the use of a cane. See Rice v. Comm’r of Soc. Sec, 114 F. Supp. 3d 98, 107
(W.D.N.Y. 2015); Koszuta v. Colvin, No. 14-CV-694-JTC, 2016 WL 231383, at *1 (W.D.N.Y.
Jan 19, 2016), vacated in part on other grounds, 2016 WL 824445 (W.D.N.Y. Mar. 3, 2016).
Here, the ALJ made a similar finding. He determined that Magby could perform light work with
restrictions such as using a cane to ambulate, not lifting from the floor to waist level, not
performing overhead activities, and having the ability to sit or stand at will. Tr. 19-26. These
limitations reduce the range of light work as it is typically performed, see 20 C.F.R. §
416.967(b), and account for Magby’s need to use a cane.
Magby cites two cases in support of his argument that he cannot use a cane and perform
light work. The circumstances in those cases, however, are significantly different than the
circumstances present here. In Wright v. Colvin, No. 6:13-cv-06585 (MAT), 2015 WL 4600287,
at *4-5 (W.D.N.Y. July 29, 2015), the court found that the ALJ failed to properly consider
whether it was medically necessary for the plaintiff to use a cane. Here, however, the ALJ
clearly found that Magby’s cane use was medically necessary because he accounted for such use
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in the RFC determination. Tr. 19. The court in Wright also took issue with the fact that
“[a]lthough the ALJ found Plaintiff capable of doing less than the full range of light work, he did
not place any additional limitations on the amount Plaintiff was required to lift or the frequency
with which he was required to perform lifting activities.” Wright, 2015 WL 4600287, at *5. But
here the ALJ incorporated Magby’s cane use and additional lifting restrictions into the RFC
determination.
Magby also cites Miller v. Colvin, No. 1:13-CV-1388 (GLS/ESH), 2015 WL 1383816, at
*8 (N.D.N.Y. Mar. 25, 2015). In that case, the plaintiff argued that the ALJ erred when he failed
to discuss, evaluate, and incorporate his need for a cane into the RFC determination. Id. Again,
that clearly did not happen here because the ALJ accounted for Magby’s cane use in the RFC
determination.
Finally, the ALJ also complied with the suggestion in SSR 96-9p that an ALJ should
consult a VE to determine whether an individual who needs to use a cane can adjust to other
work. SSR 96-9p, 1996 WL 374185, at *7 (S.S.A. July 2, 1996). At the hearing, the ALJ posed
a hypothetical question to the VE that included the caveat that “the individual would use a cane
to ambulate.” Tr. 55. The VE opined that based on Magby’s age, education, work experience,
and RFC, he could work as a cashier, ticket taker, and file clerk. Tr. 55-58.
Accordingly, for all the reasons stated, the ALJ did not err when he determined that
Magby could perform a reduced range of light work with the use of a cane.
B.
Treating Physician Rule
Magby also argues that the ALJ improperly gave “little weight” to the opinion of his
treating physician, Theodore Pettle, M.D. (“Dr. Pettle”).
ECF No. 10-1, at 14-18.
The
Commissioner maintains that the ALJ applied the correct legal standards in evaluating Dr.
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Pettle’s opinion. ECF No. 13-1, at 18-21. This Court finds that the ALJ did not err when he
evaluated Dr. Pettle’s opinion.
The “treating physician rule” is “a series of regulations set forth by the Commissioner . . .
detailing the weight to be accorded a treating physician’s opinion.” De Roman v. Barnhart, No.
03 Civ. 0075 (RCC) (AJP), 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003) (citing 20 C.F.R.
§ 404.1527); see also 20 C.F.R. § 416.927(c)(2). Under the treating physician rule, the ALJ
must give controlling weight to a treating physician’s opinion when that opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 416.927(c)(2); see
also Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). While an ALJ may discount a
treating physician’s opinion if it does not meet this standard, the ALJ must “comprehensively set
forth [his or her] reasons for the weight assigned to a treating physician’s opinion.” Halloran v.
Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); 20 C.F.R. § 416.927(c)(2) (“We will always give good
reasons in our notice of determination or decision for the weight we give [the claimant’s] treating
source’s opinion.”).
Even when a treating physician’s opinion is not given “controlling” weight, the ALJ
must still consider several factors in determining how much weight it should receive. “The ALJ
must consider, inter alia, the length of the treatment relationship and the frequency of
examination; the nature and extent of the treatment relationship; the relevant evidence . . . ,
particularly medical signs and laboratory findings, supporting the opinion; the consistency of the
opinion with the record as a whole; and whether the physician is a specialist in the area covering
the particular medical issues.” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (internal
quotation marks, alterations, and citations omitted); 20 C.F.R. § 416.927(c)(1)-(6).
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Here, the ALJ discussed Dr. Pettle’s opinion at length, and it is clear that he considered
the requisite factors when he gave “little weight” to that opinion. Tr. 25. The ALJ noted, for
instance, that Dr. Pettle examined Magby only three times before he completed the medical
source statement (Tr. 25), which is a valid reason for assigning less weight to Dr. Pettle’s
opinion. 20 C.F.R. § 416.927(c)(2)(i) (“Generally, the longer a treating source has treated you
and the more times you have been seen by a treating source, the more weight we will give to the
source’s medical opinion.”).
The ALJ also detailed the limitations that Dr. Pettle imposed, which the ALJ concluded
were “extreme” because they were not supported by the medical evidence. Tr. 25; 20 C.F.R. §
416.927(c)(3) (“The more a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight we will give that opinion.
The better an explanation a source provides for an opinion, the more weight we will give that
opinion.”). Dr. Pettle opined, for example, that Magby could walk less than one city block, stand
for only ten minutes at a time, stand or walk less than two hours in an eight hour workday, sit for
30 minutes at a time, and sit a total of four hours in an eight hour workday. Tr. 25 (citing Tr.
483-86). Dr. Pettle also opined that Magby could “rarely” lift less than ten pounds, could never
left ten or more pounds, and would be off task for 25% or more of the workday. Id.
The ALJ explained that these limitations conflicted with the treatment records, which
documented “only crepitus and pain with palpitation and abnormal gait, while diagnostic
imaging studies revealed mild to moderate osteoarthritis of the knees and degenerative changes
in the lumbar spine.” Tr. 25 (citing Tr. 613-36). Additionally, Dr. Pettle did not reference any
range of motion findings to support the prescribed limitations.
Tr. 25 (citing Tr. 620).
Moreover, the ALJ reasoned that, although one x-ray showed mild to moderate osteoarthritis of
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the left knee (Tr. 636), the majority of the medical records revealed only mild osteoarthritis of
the left knee and only questionable minor degenerative changes of the right knee (Tr. 477). Tr.
25 (emphasis in ALJ’s decision).
Magby also asserts that the ALJ erred when he gave greater weight to the opinions of
consultative examiner Nikita Dave, M.D. and state agency review physician Mary L. Rees, M.D.
than to Dr. Pettle’s opinion. ECF No. 14, at 5. The ALJ gave “significant weight” to these
opinions because he found that they were supported by relevant medical evidence and were
consistent with the record as a whole. Tr. 24-25; see also 20 C.F.R. § 416.927(c)(3)-(4). Under
the regulations, these are proper reasons to give great weight to a medical opinion, and “[i]t is
well established that an ALJ may rely on the medical opinions provided by State agency
consultants and that those opinion[s] may constitute substantial evidence.” Barber v. Comm’r of
Soc. Sec., No. 6:15-CV-0338 (GTS/WBC), 2016 WL 4411337, at *7 (N.D.N.Y. July 22, 2016)
(citing 20 C.F.R. §§ 416.912(b)(6), 416.913(c), 416.927(e)); Baszto v. Astrue, 700 F. Supp. 2d
242, 249 (N.D.N.Y. 2010) (“[A]n ALJ is entitled to rely upon the opinions of both examining
and non-examining State agency medical consultants, since such consultants are deemed to be
qualified experts in the field of social security disability.”).
Accordingly, for all the reasons stated, this Court finds that the ALJ properly evaluated
Dr. Pettle’s opinion and was entitled to give it “little weight” for the reasons set forth in the
ALJ’s decision.
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CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings (ECF No. 13) is GRANTED
and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10) is DENIED. Plaintiff’s
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to
enter judgment and close this case.
IT IS SO ORDERED.
Dated: September 1, 2016
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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