Morgan v. Colvin, Acting Commissioner of Social Security

Filing 11

DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 9 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/5/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARK MORGAN,
1:15-cv-00449 (MAT)

Plaintiff,

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

I.

Introduction
Plaintiff

Mark

Morgan

(“plaintiff”)

brings

this

action

pursuant to Titles II and XVI of the Social Security Act (“the
Act”),

seeking

review

of

the

final

decision

of

the

Acting

Commissioner of Social Security (“defendant” or “the Commissioner”)
denying his applications for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”). 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 applications for DIB and SSI on

August

11,

2011

and

August

18,

2011,

respectively,

alleging

disability due to spinal injuries, broken screws from a faulty neck
operation, herniated and bulging discs, and lower back problems.
Administrative

Transcript

(“T.”)

175-76,

213.

Plaintiff’s

applications were initially denied, and he timely requested a
hearing before an administrative law judge (“ALJ”), which occurred
on February 19, 2013, before ALJ Nancy Pasiecznik.

T. 29-52.

ALJ

Pasiecznik retired prior to issuing a decision in plaintiff’s case,
and plaintiff’s case was transferred to ALJ Donald T. McDougall,
who held a supplemental hearing on September 19, 2014.

T. 10, 53-

77. On December 30, 2014, ALJ McDougall issued a decision in which
he found plaintiff not disabled as defined in the Act.

T. 7-22.

The Appeals Council denied plaintiff’s request for review on April
1, 2015, rendering the ALJ’s determination the Commissioner’s final
decision.

T. 1-4.

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 31, 2015.

T. 12.

At

step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged

2

in substantial gainful activity since April 30, 2011, the alleged
onset date.

Id.

At step two, the ALJ found that plaintiff had the

severe impairment of vertebrogenic disorder, status post cervical
fusion with hardware, and the non-severe impairment of depressive
disorder.

T. 12-13.

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.

T.

14.

Before

proceeding to step four, the ALJ found that plaintiff retained the
residual functional capacity (“RFC”) to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with the
following additional limitations: requires the ability to change
positions for one to two minutes at least every half-hour and
should not perform jobs that require rotation of the head or neck
more than 45 degrees in either direction (90 degrees total).

Id.

At step four, the ALJ found that plaintiff able to perform his past
relevant work as a debt collector.

T. 21.

found that plaintiff was not disabled.
IV.

Accordingly, the ALJ

Id.

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
3

mind might accept as adequate to support a conclusion.” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation
omitted).
Here, plaintiff makes the following arguments in favor of his
motion for judgment on the pleadings: 1) the ALJ violated the
treating physician rule by giving little weight to the opinions of
his treating physicians, Drs. Eric P. Roger, Franklyn Campagna, and
John

Pollina,

and

2)

plaintiff’s credibility.

the

ALJ

failed

to

properly

evaluate

For the reasons discussed below, the

Court finds these arguments without merit.
A.

The ALJ did not Violate the Treating Physician Rule

The

treating

physician

rule

requires

an

ALJ

to

give

controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other

substantial

evidence

in

[the]

record.”

20

§ 404.1527(c)(2); see also Green-Younger, 335 F.3d at 106.

C.F.R.
An ALJ

may give less than controlling weight to a treating physician's
opinion

if

it

does

not

meet

this

standard,

but

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. § 404.1527(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

4

opinion.”).

The ALJ is required to consider “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” in determining how much weight to afford
a treating physician’s opinion. Burgess v. Astrue, 537 F.3d 117,
129 (2d Cir. 2008) (quotation marks, alterations, and citations
omitted); see also 20 C.F.R. §§ 404.1527(c)(1)-(6).
1.

The ALJ Properly Assessed Dr. Roger’s Opinion

Plaintiff first argues that the ALJ erred in affording only
limited weight to Dr. Roger’s opinion dated October 20, 2011, and
failed to “even mention the further reports of Dr. Roger after his
initial consultation.” Docket No. 7-1 at 11. Plaintiff’s argument
lacks merit.
a.

Dr. Roger’s Treatment of Plaintiff

Plaintiff first treated with Dr. Roger, a neurosurgeon, in
October 2011.

Dr. Roger examined plaintiff on October 12, 2011,

and found that plaintiff had 5/5 strength in all muscle groups of
the right and left arms with normal sensation, and that plaintiff
had a full range of motion in his shoulders.

T. 510.

Dr. Roger

reviewed plaintiff’s imaging results and determined that prior
fusion surgery had resulted in a complete C5-C6 fuse, but that the
5

fusion at C6-C7 appeared incomplete, with bilateral screw fractures
at C7.

Id.

Dr. Roger also noted some mild foraminal stenosis, but

no spinal cord compression.

Id.

He offered plaintiff either the

continuation of conservative management or surgical intervention,
and plaintiff chose surgical intervention.
On

October

screening

20,

assessment

2011,
for

Dr.

Roger

plaintiff,

T. 511.

completed
in

which

a

he

disability
noted

that

plaintiff had cervical disc displacement and was scheduled for
surgical intervention on November 22, 2011. T. 402-403. Dr. Roger
checked boxes indicating that plaintiff was very limited in his
abilities to walk, stand, sit, lift, carry, push, pull, bend, use
his hands, and climb.

T. 403.

On November 22, 2011, plaintiff underwent a post anterior
cervical disectomy and fusion C5-C6 and pseudarthrosis.
The procedure was completed without complication.

T. 447.

T. 476.

Plaintiff followed up with Dr. Roger on January 30, 2012.
T. 509.

Dr. Roger observed that plaintiff was doing “quite well”

and that his neck pain has “significantly improved.”
Dr.

Roger

recommended

physical

therapy.

Id.

He

T. 509.
refilled

plaintiff’s prescriptions for Valium and Oxycodone, but indicated
that he did “not feel comfortable refilling his OxyContin.”

Id.

Plaintiff followed up with Dr. Roger again on March 26, 2012.
T. 508.

Dr. Roger stated that plaintiff’s most recent CT scan

“look[ed] absolutely wonderful.”

T. 508.

6

He noted that plaintiff

was in danger of becoming dependent on his cervical collar, and
informed plaintiff that he “really need[ed] to take off his collar
and work towards aggressive rehabilitation.”

Id.

Dr. Roger

referred plaintiff to Buffalo Sport and Spine for rehabilitation.
Id.
b.

The ALJ’s Assessment of Dr. Roger’s Opinion

In his decision, the ALJ gave limited weight to Dr. Roger’s
October 2011 disability screening assessment.

T. 20.

The ALJ

noted that the assessment had been completed the same month that
plaintiff began treating with Dr. Roger, that Dr. Roger failed to
quantify plaintiff’s limitations, and that the assessment predated
plaintiff’s section cervical spine surgery.

Id.

The Court finds

that these constituted good reasons for granting Dr. Roger’s
opinion less than controlling weight.
First, with respect to the timing of the opinion, the relevant
regulations expressly instruct the ALJ to consider the length of
the treatment relationship in determining how much weight to afford
a medical source opinion.

See 20 C.F.R. § 404.1527(c).

Courts

have not hesitated to find that opinions rendered after only one or
two visits are not entitled to controlling weight.

See, e.g.,

Cramer v. Berryhill, 2017 WL 4784318, at *3 (W.D.N.Y. Oct. 24,
2017). Here, the ALJ correctly noted that Dr. Roger’s October 2011
opinion was issued almost immediately after he started treating
plaintiff, and was thus properly afforded less than controlling
weight.
7

Second, the ALJ was also correct to discount the weight given
to

Dr.

Roger’s

assessment

plaintiff’s limitations.

based

on

the

failure

to

quantify

Courts in this Circuit have consistently

held that “lack of supporting detail and/or objective findings
provides a . . . reason for affording [an] opinion less weight.”
Wright v. Colvin, 2013 WL 3777187, at *15 (N.D.N.Y. July 17, 2013)
(citing 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(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.”); see also Halloran v. Barnhart, 362 F.3d 28, 31 n. 2 (2d
Cir.

2004)

marginally

(describing
useful

for

standardized
purposes

of

form

checklist

creating

a

as

“only

meaningful

and

reviewable factual record”); Llorens–Feliciano v. Astrue, 2012 WL
6681772, at *3 (N.D.N.Y. Dec. 21, 2012) (“‘Form reports in which a
physician’s obligation is only to check a box or fill in a blank
are weak evidence at best.’”) (quoting Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir. 1993)).

In this case, the form completed by

Dr. Roger required him only to check off boxes and fill in blanks.
Dr. Roger provided no additional supporting evidence, such as
identifying the clinical or laboratory findings to support his
assessment, nor did he provide any additional explanation of the
basis for his conclusion.

The ALJ properly considered this factor

in determining what weight to afford Dr. Roger’s opinion.
8

Finally, the ALJ properly afforded Dr. Roger’s opinion less
than controlling weight because it was rendered before plaintiff’s
November 2011 surgery, which significantly improved his condition.
It is well-established that “medical source opinions that are ...
stale[] and based on an incomplete medical record may not be
substantial evidence to support an ALJ finding.”

Camille v.

Colvin, 104 F. Supp. 3d 329, 343-44 (W.D.N.Y. 2015), aff'd, 652 F.
App’x 25 (2d Cir. 2016) (quotation marks and citation omitted); see
also Jones v. Comm'r of Soc. Sec., 2012 WL 3637450, at *2 (E.D.N.Y.
Aug. 22, 2012) (ALJ should not have relied on a medical opinion in
part because it was 1.5 years stale as of the plaintiff's hearing
date and did not account for her deteriorating condition); Girolamo
v. Colvin, 2014 WL 2207993, at *7-8 (W.D.N.Y. May 28, 2014) (ALJ
should not have afforded great weight to medical opinions rendered
before plaintiff’s second surgery).

In this case, Dr. Roger’s

October 2011 assessment was indisputably rendered stale by the
successful

surgery

that

occurred

in

November

2011.

Indeed,

Dr. Roger’s own treatment records state that the surgery went well,
that plaintiff’s condition had significantly improved, and that his
post-surgery CT scan looked “absolutely wonderful.”

Under these

circumstances, Dr. Roger’s October 2011 assessment, which was
outdated and based on an incomplete medical record, clearly was not
entitled to controlling weight.

9

2.

The ALJ Properly Considered Dr. Campagna’s Opinion

Plaintiff next argues that the ALJ erred in not affording
controlling weight to the opinion of his primary care physician,
Dr. Campagna.

This argument is also without merit.

The opinion of Dr. Campagna’s to which plaintiff refers
appears to be nothing more than a single line in a progress note
referring to plaintiff as “disabled” from his past work.
T. 526.

See

The ALJ noted in his decision that this opinion by

Dr. Campagna was not supported by any objective evidence and
appeared to be based solely on plaintiff’s subjective statements.
T. 20. Accordingly, the ALJ afforded this opinion minimal weight.
Id.
As a threshold matter, an ALJ is not required to defer to
statements by a treating physician that a claimant is disabled.
See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (the “ultimate
finding of whether a claimant is disabled and cannot work” is
reserved to the Commissioner).

As such, the ALJ plainly did not

err in declining to afford controlling weight to Dr. Campagna’s
opinion with respect to this ultimate issue.
Moreover, it was proper for the ALJ to discount Dr. Campagna’s
opinion

where

complaints.

it

was

based

solely

on

plaintiff’s

subjective

As discussed further below, the ALJ in this case

appropriately determined that plaintiff was not credible.
is

not

required

to

give

controlling

weight

to

a

An ALJ

treating

physician’s opinion if it is “based largely upon [the claimant’s]
10

subjective responses, which were not themselves entirely credible.”
Roma v. Astrue, 468 F. App’x 16, 19 (2d Cir. 2012).

In short,

plaintiff has failed to demonstrate that the ALJ’s treatment of
Dr. Campagna’s opinion was error or that remand is warranted.
3.

Dr. Pollina Did Not Issue Any Opinions

In his moving papers, plaintiff contends that the ALJ should
have afforded controlling weight to two “opinions” rendered by
Dr. Pollina on April 25, 2014 and June 6, 2014.
11.

Docket No. 7-1 at

However, a review of the record shows that Dr. Pollina did not

issue any opinion regarding plaintiff’s physical limitations on
either
Dr.

of

those

Pollina

reflecting

dates.

examined

the

results

Instead,

plaintiff
of

his

on

and

each

of

completed

examination.

See

those

dates,

office
T.

notes

498-501.

Dr. Pollina’s office notes say nothing about plaintiff’s RFC and do
not

contain

functioning.

any

information

regarding

any

limitations

in

As such, it is not clear to the Court, nor has

plaintiff explained, what exactly in Dr. Pollina’s notes plaintiff
contends the ALJ should have afforded controlling weight to.
In any event, Dr. Pollina’s notes are in no way inconsistent
with the ALJ’s RFC determination. Dr. Pollina noted that plaintiff
had a normal gait and station, 5/5 strength bilaterally in his
upper extremities, no tenderness on palpation of his cervical spine
or paraspinal muscles, and negative Hoffman’s sign bilaterally.
T. 499.

He also recommended that plaintiff wean himself off his

surgical collar, noting that doing so would significantly help his
11

cervicalgia.

Id.

Plaintiff has proffered no explanation, nor can

the Court discern one, for how these notes would support a more
restrictive RFC finding.
For the foregoing reasons, the Court rejects plaintiff’s
argument that the ALJ violated the treating physician rule in
considering the opinions of Drs. Roger, Campagna, and Pollina.

As

such, plaintiff has failed to demonstrate that remand is warranted
on this basis.
B.

The ALJ Properly Assessed Plaintiff’s Credibility

Plaintiff’s second and final argument is that the ALJ failed
to properly assess his credibility.

In particular, plaintiff

contends that it was improper for the ALJ to: 1) use boilerplate in
describing his assessment of plaintiff’s credibility; 2) find
plaintiff

less

than

credible

because

he

failed

to

follow

a

prescribed treatment; and 3) find plaintiff less than credible
because he exhibited drug-seeking behaviors.

Again, plaintiff’s

argument lacks 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.

July

21,

Hargrave v. Colvin, 2014 WL
2014)

(internal

quotation

In this case, the ALJ found plaintiff not credible,

noting that: 1) his allegations were not supported by the medical
12

evidence of record; 2) he had been inconsistent in reporting his
medical history; 3) he had been dishonest with his physician by
seeking an oxycodone prescription despite having already obtained
that medication from another source; and 4) he had failed to follow
through with treatment recommendations - namely, the recommendation
from multiple physicians that he wean himself off the cervical
collar.

T. 20.

As a threshold matter, the ALJ’s use of some boilerplate in
discussing plaintiff’s credibility, standing alone, does not render
his determination improper. See Abdulsalam v. Comm’r of Soc. Sec.,
2014

WL

420465,

at

*7

(N.D.N.Y.

Feb.

4,

2014)

(the

use

of

boilerplate language when discussing credibility “does not merit
remand if

the

ALJ

offers specific

reasons to

claimant’s testimony”) (quotation omitted).

disbelieve

the

Here, in addition to

the boilerplate statement with which plaintiff takes issue, the ALJ
offered

specific,

credible.

concrete

reasons

for

finding

plaintiff

As such, “the Court finds that the ALJ’s use of the

contested boilerplate does not warrant remand here.
agrees

that

unhelpful.
perfect

not

the

use

of

such

boilerplate

is

Th[e] Court

conclusory

and

On the other hand, reviewing courts do not demand

decisions,

and

while

this

sort

of

boilerplate

is

inadequate, by itself, to support a credibility finding, its use,
does not make a credibility determination invalid.”
(quotation omitted).

13

Id. at *8

The ALJ also did not err in taking into account plaintiff’s
drug-seeking behavior and his failure to abide by his physicians’
recommendations in assessing his credibility.

“[A] claimant’s

misuse of medications is a valid factor in an ALJ’s credibility
determinations.”

Pidkaminy v. Astrue, 919 F. Supp. 2d 237, 250

(N.D.N.Y. 2013) (finding that ALJ properly discounted plaintiff’s
testimony based on drug-seeking behavior). The record in this case
supports the ALJ’s conclusion that plaintiff had engaged in drugseeking behavior.

As the ALJ explained, Dr. Pratibha Bansal of

Pain Rehab of WNY noted that plaintiff had been dishonest with him
in seeking a prescription for oxycodone, telling him that he was
out of the medication when another physician had given him a
prescription that same day.

T. 436.

Similarly, Dr. Roger noted

that he was not “comfortable” refilling plaintiff’s prescription
for OxyContin.
appointment

with

T. 509.
Dr.

Hans

Plaintiff also cancelled a follow-up
Kortiz

of the

Kortiz

Medical

Pain

Management Office after Dr. Kortiz told him he could not prescribe
him pain medication. T. 466. Under these circumstances, the Court
cannot find that it was error for the ALJ to conclude that
plaintiff’s

drug-seeking

behavior

reflected

poorly

on

his

credibility.
Similarly, it was proper for the ALJ to consider plaintiff’s
failure to follow his physician’s treatment recommendations in
assessing his credibility.

See, e.g, Nicholson v. Colvin, 2015 WL

1643272,

Apr.

at

*7

(N.D.N.Y.

13,

2015)

(“The

ALJ

properly

considered Plaintiff’s failure to comply with medication treatment

14

as

prescribed

as

a

factor

weighing

against

her

credibility,

particularly because she had continued counsel from her treatment
providers to maintain the medication regimen.”).

The record in

this case is replete with recommendations by multiple physicians
that plaintiff wean himself of his cervical collar, yet he failed
to do so.

The ALJ did not err in taking this fact into account

when he found plaintiff not credible.
“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 that rationale was reasonable in
light of the record.

Accordingly, remand is not warranted on this

basis.
V.

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

the pleadings (Docket No. 7) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 0) 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:

December 5, 2017
Rochester, New York
15