Morgan v. Colvin, Acting Commissioner of Social Security
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
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
pursuant to Titles II and XVI of the Social Security Act (“the
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
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
Plaintiff protectively filed applications for DIB and SSI on
disability due to spinal injuries, broken screws from a faulty neck
operation, herniated and bulging discs, and lower back problems.
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.
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.
The Appeals Council denied plaintiff’s request for review on April
1, 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 31, 2015.
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
in substantial gainful activity since April 30, 2011, the alleged
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
At step three, the ALJ found that plaintiff
did not have an impairment or combination of impairments that met
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).
At step four, the ALJ found that plaintiff able to perform his past
relevant work as a debt collector.
found that plaintiff was not disabled.
Accordingly, the ALJ
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) (internal quotation
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
For the reasons discussed below, the
Court finds these arguments without merit.
The ALJ did not Violate the Treating Physician Rule
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
§ 404.1527(c)(2); see also Green-Younger, 335 F.3d at 106.
may give less than controlling weight to a treating physician's
“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
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).
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
Dr. Roger’s Treatment of Plaintiff
Plaintiff first treated with Dr. Roger, a neurosurgeon, in
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.
reviewed plaintiff’s imaging results and determined that prior
fusion surgery had resulted in a complete C5-C6 fuse, but that the
fusion at C6-C7 appeared incomplete, with bilateral screw fractures
Dr. Roger also noted some mild foraminal stenosis, but
no spinal cord compression.
He offered plaintiff either the
continuation of conservative management or surgical intervention,
and plaintiff chose surgical intervention.
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.
On November 22, 2011, plaintiff underwent a post anterior
cervical disectomy and fusion C5-C6 and pseudarthrosis.
The procedure was completed without complication.
Plaintiff followed up with Dr. Roger on January 30, 2012.
Dr. Roger observed that plaintiff was doing “quite well”
and that his neck pain has “significantly improved.”
plaintiff’s prescriptions for Valium and Oxycodone, but indicated
that he did “not feel comfortable refilling his OxyContin.”
Plaintiff followed up with Dr. Roger again on March 26, 2012.
Dr. Roger stated that plaintiff’s most recent CT scan
“look[ed] absolutely wonderful.”
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.”
referred plaintiff to Buffalo Sport and Spine for rehabilitation.
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.
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.
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).
have not hesitated to find that opinions rendered after only one or
two visits are not entitled to controlling weight.
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
Second, the ALJ was also correct to discount the weight given
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
opinion.”); see also Halloran v. Barnhart, 362 F.3d 28, 31 n. 2 (2d
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.
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.”
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
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.”
circumstances, Dr. Roger’s October 2011 assessment, which was
outdated and based on an incomplete medical record, clearly was not
entitled to controlling weight.
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,
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.
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.
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
As discussed further below, the ALJ in this case
appropriately determined that plaintiff was not credible.
physician’s opinion if it is “based largely upon [the claimant’s]
subjective responses, which were not themselves entirely credible.”
Roma v. Astrue, 468 F. App’x 16, 19 (2d Cir. 2012).
plaintiff has failed to demonstrate that the ALJ’s treatment of
Dr. Campagna’s opinion was error or that remand is warranted.
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.
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
Dr. Pollina’s office notes say nothing about plaintiff’s RFC and do
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.
He also recommended that plaintiff wean himself off his
surgical collar, noting that doing so would significantly help his
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.
such, plaintiff has failed to demonstrate that remand is warranted
on this basis.
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
prescribed treatment; and 3) find plaintiff less than credible
because he exhibited drug-seeking behaviors.
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.”
Hargrave v. Colvin, 2014 WL
In this case, the ALJ found plaintiff not credible,
noting that: 1) his allegations were not supported by the medical
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
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.,
boilerplate language when discussing credibility “does not merit
claimant’s testimony”) (quotation omitted).
Here, in addition to
the boilerplate statement with which plaintiff takes issue, the ALJ
As such, “the Court finds that the ALJ’s use of the
contested boilerplate does not warrant remand here.
On the other hand, reviewing courts do not demand
inadequate, by itself, to support a credibility finding, its use,
does not make a credibility determination invalid.”
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.
misuse of medications is a valid factor in an ALJ’s credibility
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.
Similarly, Dr. Roger noted
that he was not “comfortable” refilling plaintiff’s prescription
Plaintiff also cancelled a follow-up
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
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
considered Plaintiff’s failure to comply with medication treatment
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.
deference and therefore can be reversed only if they are patently
(W.D.N.Y. May 24, 2017) (internal quotation omitted).
credibility determination, and that rationale was reasonable in
light of the record.
Accordingly, remand is not warranted on this
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
December 5, 2017
Rochester, New York
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