Hunter v. Colvin

Filing 18

DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 2/8/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY HUNTER,
Plaintiff,

1:15-cv-00610-MAT
DECISION AND
ORDER

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

I.

INTRODUCTION
Represented

by

counsel,

Anthony

Hunter

(“Plaintiff”)

has

brought 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 Security1 (“Defendant” or “the
Commissioner”) denying his applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”).

This

Court has jurisdiction over the matter pursuant to 42 U.S.C.
§ 405(g). 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 BACKGROUND
In

April

2012,

Plaintiff

protectively

filed

a

Title

II

application for DIB and a Title XVI application for SSI, alleging
disability beginning November 6, 2010, due to a heart condition,
chest pain, depression, sleep apnea, arthritis in his hands,
tendinitis in his feet, a steel rod in his right arm, and shoulder
problems.

Administrative

Plaintiff’s

applications

Transcript
were

(“T.”)

initially

at

denied

305-319,
and

he

337.
timely

requested a hearing, which was held before administrative law judge
(“ALJ”) Marilyn Zahm on June 25, 2013 and October 28, 2013.

T. 44-

163. On February 13, 2014, the ALJ issued an unfavorable decision.
T. 14-43. Plaintiff’s request for review was denied by the Appeals
Council on May 14, 2015, making the ALJ’s decision the final
decision of the Commissioner.

T. 1-6. Plaintiff then timely

commenced this action.
III. THE ALJ’S DECISION
The

ALJ

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See

20

C.F.R.

§

404.1520(a).

Initially,

the

ALJ

found

that

Plaintiff met the insured status requirements of the Act through
December 31, 2012.

T. 20.

At step one, the ALJ found that

Plaintiff had not engaged in substantial gainful activity from
November 6, 2010, the alleged onset date. Id.
At step two, the ALJ determined that Plaintiff had the severe
impairments of asthma, shoulder pain, arthritis, sleep apnea,

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depressive disorder, and anxiety disorder, and the non-severe
impairments of heart condition, boils, and substance abuse.

Id.

At step three, the ALJ considered Plaintiff’s impairments and
found

that,

singly

or

in

combination,

they

did

not

medically equal the severity of a listed impairment.

meet

or

Id.

In

particular, the ALJ considered Listings 1.02 (dysfunction of a
major weight-bearing joint due to any cause), 3.03 (asthma), 3.10
(sleep-related breathing disorders), 12.04 (affective disorders),
12.06 (anxiety-related disorders), and 12.09 (substance addiction
disorders). Id.
Prior to proceeding to step four, the ALJ determined that
Plaintiff has the residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), with
the

following

additional

limitations:

must

avoid

exposure

to

concentration of fumes, odors, gases, dusts, or poor ventilation;
can push and pull occasionally; can occasionally climb, balance,
stoop, kneel, crouch, and crawl; can have occasional contact with
others; is limited to simple, routine work; forward elevation of
the right upper extremity is limited to 80 degrees and forward
elevation of the left upper extremity is limited to 90 degrees.
T. 22.
At step four, the ALJ determined that Plaintiff was incapable
of performing his past relevant work.

T. 34.

At step five, the

ALJ relied on a vocational expert’s testimony to find that there
are other jobs that exist in significant numbers in the national

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economy

and

state-wide

that

Plaintiff

can

perform,

including

inspector, assembler of electrical accessories, and office helper.
T. 34-25.

The ALJ accordingly found that Plaintiff was not

disabled as defined in the Act.
IV.

T. 35.

DISCUSSION
A.

SCOPE OF REVIEW

When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
Although the reviewing court must scrutinize the whole record and
examine evidence that supports or detracts from both sides, Tejada
v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation omitted),
“[i]f there is substantial evidence to support the [Commissioner’s]
determination, it must be upheld.” Selian v. Astrue, 708 F.3d 409,
417 (2d

Cir.

substantial

2013).

evidence

conclusions of law.”

“The
does

deferential
not

apply

standard
to

the

of

review

for

Commissioner’s

Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.

2003).
In this case, Plaintiff argues that remand is required because
(1) the ALJ violated the treating physician rule in failing to
accord controlling weight to the opinion of treating physician
Dr. Winston G. Douglas, and (2) the ALJ was unduly adversarial

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towards Plaintiff,
hearing.

thereby

depriving

him

of

a full

and fair

For the reasons set forth below, the Court finds these

arguments without merit.
B.

The ALJ did not Violate the Treating Physician Rule

Plaintiff’s first argument is that the ALJ erred in affording
less than controlling weight to Dr. Douglas’ opinion. Dr. Douglas,
Plaintiff’s

primary

care

physician,

submitted

a

letter

dated

March 30, 2012 in which he stated that Plaintiff had a history of
chronic

shoulder

depression,

that

pain,

fibromyalgia,

Plaintiff

has

alcohol

difficulty

dependency,

functioning

due

and
to

chronic pain, and that Plaintiff “has not been able to work due to
his underlying illness.”

T. 540.

On May 3, 2013, prior to the administrative hearing, the ALJ
submitted 14 multi-part, written interrogatories to Dr. Douglas,
seeking additional information regarding Plaintiff’s functioning.
T. 435-442. In these interrogatories, the ALJ asked Dr. Douglas to
specifically identify the impairments for which he had treated
Plaintiff and to identify the objective signs of each impairment,
among other questions.

T. 435.

Dr. Douglas did not reply to the

ALJ’s interrogatories.
In her decision, the ALJ gave little weight to Dr. Douglas’
opinion, explaining that it was unsupported by his treatment notes
and that Dr. Douglas had not responded to her questions seeking an
explanation for his statement.

T. 33.

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Plaintiff contends that

these did not constitute “good reasons” to afford Dr. Douglas’
opinion less than controlling weight.

The Court disagrees.

Under the Commissioner’s Regulations in effect at the time of
the ALJ’s decision, a treating physician’s opinion is generally
entitled to “controlling weight” when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
[the]

case

record.”

20

C.F.R.

§

404.1527(c)(2);

see

also

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). 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
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,

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129 (2d Cir. 2008) (quotation marks, alterations, and citations
omitted); see also 20 C.F.R. §§ 404.1527(c)(1)-(6).
In

this

case,

the

Court

finds

that

the

ALJ

adequately

explained her reasons for affording limited weight to Dr. Douglas’
opinion.

The Commissioner’s

Regulations specifically contemplate

that when a treating physician’s opinion is not “well-supported by
medically

acceptable

clinical

and

laboratory

diagnostic

techniques[,]” 20 C.F.R. § 1527(d)(2), an ALJ is not bound to give
it

controlling

weight.

Here,

as

the

ALJ

correctly

found,

Dr. Douglas’ opinion that Plaintiff was totally disabled was
unsupported by the objective medical evidence.
The objective medical evidence of record in this case is not
consistent with the severe restrictions identified by Dr. Douglas.
Cardiac testing by cardiologist Dr. Kenton Forte on February 1,
2010,

showed

appropriate

heart

rate

arrhythmias, and no cardiac symptoms.

response,

T. 529.

no

malignant

Dr. Forte assessed

Plaintiff with good work tolerance and mildly reduced functional
capacity. Id. An echocardiogram performed in March 2012 showed no
new wall motion abnormalities, with retained left ventricular
systolic function and ejection fraction in excess of 60 percent.
T. 535.
Imaging
impairments.

of

Plaintiff’s

shoulder

showed

similarly

mild

An x-ray of Plaintiff’s left shoulder performed on

December 6, 2012 revealed no osseous or articular abnormality,

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while an x-ray of the left shoulder performed on January 11, 2013
showed only mild osteoarthritis of the left AC joint.

T. 762, 782.

Physical examinations performed by Dr. Forte and consultative
examiner Dr. John Schwab were also largely benign.

Dr. Forte

examined Plaintiff on both November 1, 2010 and March 15, 2012.
T. 527, 531.

On both occasions, he had a normal gait for his age,

no scoliosis or thoracic kyphosis, and 5/5 strength bilaterally in
his upper and lower extremities.

Id.

Dr. Schwab examined Plaintiff on July 31, 2012.

T. 558-61.

Plaintiff was in no acute distress, had a normal gait, and could
walk on his heels and toes without difficulty. T. 559.

He was

asked to squat, but stopped two-thirds of the way down, claiming
that his leg muscles had tightened.

Id.

Plaintiff’s chest and

lungs were clear to auscultation, with no significant chest wall
abnormality and normal diaphragmatic motion.

T. 560.

His heart

had a regular rhythm, with no murmur, gallop, or rub audible.

Id.

Plaintiff’s cervical spine showed full flexion, extension, lateral
flexion bilaterally, and full rotary movement bilaterally.

Id.

Plaintiff declined lumbar spine extension, and had lumbar spine
flexion of 30 degrees, with right lateral flexion of 10 degrees and
left lateral flexion of 20 degrees.

Id.

He had a full range of

motion in his elbows and forearms bilaterally, as well as in his
hips, knees, and ankles bilaterally.

Id.

His joints were stable

and non-tender, with no redness, heat, swelling, or effusion.

Id.

He had 5/5 strength in his lower and upper extremities, with no
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cyanosis, clubbing, or edema.

Id.

were

strength

intact,

with

5/5

grip

His hand and finger dexterity
bilaterally.

T.

561.

Dr. Schwab noted that Plaintiff’s physical examination was not
consistent with his reported medical history, and opined that his
only restriction was a possible “mild restriction to reaching his
arms above shoulder height.”

Id.

Dr. Douglas’ treatment records do not provide significant
objective support for his opinion.

They largely memorialize

Plaintiff’s subjective complaints of pain but, as the ALJ correctly
noted, Plaintiff is not credible.

There is evidence in the record

that he was engaged in drug-seeking behavior - indeed, his treating
psychiatrist, Dr. Wendy Weinstein, noted at her initial evaluation
of Plaintiff that he thought she was going to prescribe him pain
medication and that he was disappointed when she explained she
could not do so.

T. 508.

Plaintiff also told inconsistent stories

about his daily activities to his various treatment providers, as
well as admitting that he lied to employers about his educational
history.

See T. 160-61.

As the ALJ further noted, Plaintiff

failed to follow up with referrals to pain management doctors,
alcohol treatment, and hand and orthopedic specialists. T. 33.
Under these circumstances, it was not error for the ALJ to find
Plaintiff’s subjective complaints of pain, swelling, and other
limitations not credible, and therefore not an appropriate basis
for

Dr.

Douglas’

opinion.

An

ALJ

is

not

required

to

give

controlling weight to a treating physician’s opinion if it is
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“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).
The ALJ also did not err in noting that Dr. Douglas did not
respond

to

regarding

her

request

Plaintiff’s

for

an

explanation

functioning.

Dr.

of

his

Douglas’

statement

letter

was

conclusory, and provided no narrative explanation or other support
for his assessment.

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.”). Dr. Douglas’ failure to provide an explanation for his
opinion was a valid consideration for the ALJ in determining what
weight it should be afforded.
McAninch v. Astrue, 2011 WL 4744411(W.D.N.Y. Oct. 6, 2011), on
which Plaintiff relies, is inapposite. In McAninch, the ALJ sent a
59-question questionnaire to the plaintiff’s treating physicians
without an explanation of why it was sent, and despite the fact
that at least one of those physicians had already provided a sevenpage report assessing the plaintiff’s functional limitations.
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Id.

at *16-17.
that

it

Under those particular circumstances, the Court found

was

inappropriate

for

the

ALJ

to

afford

less

than

controlling weight to the treating physicians’ opinions based on
their failure to complete the follow-up questionnaire.

In this

case, unlike in McAninch, Dr. Douglas had provided only a foursentence letter, and had failed to explain the basis for his
opinion.

Moreover, the ALJ explained in her cover letter that the

interrogatories had been sent because she did not have enough
information to understand the basis for Dr. Douglas’ opinion.
These are fundamentally different circumstances than those that led
the Court to order remand in McAninch.
For all the reasons discussed above, the Court concludes that
the ALJ did not err in affording limited weight to Dr. Douglas’
opinion.

Accordingly, Plaintiff has not shown that remand is

warranted on this basis.
C.

The ALJ was not Unduly Hostile

Plaintiff’s second and final argument is that the ALJ was
unduly

hostile,

lacking fairness.

resulting

in

a

proceeding

that

fundamentally

Again, the Court disagrees.

“Before determining whether the Commissioner’s conclusions are
supported by substantial evidence . . . [the Court] must first be
satisfied that the claimant has had a full hearing under the . . .
regulations and in accordance with the beneficent purposes of the
[Social Security] Act.”

Moran v. Astrue, 569 F.3d 108, 112

(2d Cir. 2009) (internal quotation omitted and second alteration in
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original).

“In the absence of . . . a full and fair hearing, the

Court cannot determine whether the ALJ’s conclusions are supported
by

substantial

development.”

evidence

and

thus

must

remand

for

further

Estrada v. Comm’r of Soc. Sec., 2014 WL 3819080, at

*4 (S.D.N.Y. June 25, 2014).
Here, Plaintiff contends, based on McAninch, that the ALJ, by
sending interrogatories to Dr. Douglas, evidenced such hostility
towards Plaintiff as to deprive him of a full and fair hearing.
This argument lacks merit.

As the Court explained above, the

circumstances in this case are fundamentally different than those
in McAninch, inasmuch as Dr. Douglas had failed to provide any
explanation

whatsoever

for

his

assessment

of

Plaintiff’s

functioning.

The ALJ has an affirmative obligation to develop the

record in every case, and the Court is not persuaded that her
attempt to do so here was evidence of hostility towards Plaintiff
or of an attempt to undermine his claim.
Plaintiff
characterizes

argues
as

small

that

the

ALJ

inconsistencies

highlighted
in

his

what

he

testimony,

and

contends that this is further evidence of her alleged bias.

This

argument

with

is

also

without

merit.

The

ALJ

was

charged

evaluating Plaintiff’s credibility, and it was therefore highly
relevant that Plaintiff’s testimony was inconsistent with his past
statements.

The Court disagrees with Plaintiff’s assertion that

the inconsistencies identified by the ALJ had limited relevancy -

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when the issue is credibility, inconsistencies are relevant by
definition.
In sum, the Court, having reviewed the record, does not find
any evidence of hostility or inappropriate bias on the part of the
ALJ.

Accordingly, the Court finds that Plaintiff was afforded a

full and fair hearing, and that remand is not warranted.
V.

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

the pleadings (Docket No. 10) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 13) 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:

February 8, 2018
Rochester, New York

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