Lolo v. Colvin
DECISION AND ORDER: The Commissioner's motion for judgment on the pleadings 6 is granted, and the Plaintiff's motion for similar relief in his favor 5 is denied. The Complaint is dismissed in its entirety with prejudice. The Clerk of Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 1/10/17. (LAS)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MATTHEW J. LOLO,
DECISION AND ORDER
CAROLYN W. COLVIN,
OF SOCIAL SECURITY,
Matthew J. Lolo (“Plaintiff”), who is represented by counsel, 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”) denying
Plaintiff’s application for Disability Insurance Benefits (“DIB”). The Court has
jurisdiction pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt.
Nos. 5, 6. For the reasons that follow, the Commissioner’s motion is granted.
Procedural History. Plaintiff filed an application for DIB on October 9,
2012, alleging disability beginning December 18, 2011, due to herniated lumbar
discs, lower back pain, cervical disc problems, and a torn right rotator cuff. T. 20,
144-48, 168. 1 His initial application was denied, and a hearing followed before
Administrative Law Judge (“ALJ”) Donald McDougall on January 13, 2014. T. 3781, 102-03. Vocational Expert (“VE”) Gil Pearson also appeared at the hearing.
T. 37, 113-17. After the ALJ issued a decision finding that Plaintiff was not
disabled, Plaintiff requested Appeals Council review of the hearing decision. T. 15, 14, 20-32. On June 5, 2015, the Appeals Council denied Plaintiff’s request,
and the ALJ’s determination became the Commissioner’s final decision. This
action followed. Dkt. No. 1.
The ALJ’s Decision. In applying the familiar five-step sequential analysis,
as contained in administrative regulations promulgated by the Social Security
Administration (“SSA”), see 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue,
No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the
five steps), the ALJ found: (1) Plaintiff did not engage in substantial gainful
activity from his alleged onset date of December 18, 2011 through his date last
insured of December 31, 2013; (2) he had the severe impairments of cervical
disc herniation; lumbar disc herniation; and partial right rotator cuff tear; and (3)
his impairments did not meet or equal the Listings set forth at 20 C.F.R. § 404,
Subpt. P, Appx. 1. The ALJ found that Plaintiff retained the residual functional
capacity (“RFC”) to perform a range of light work with the limitations of not
bending over 45 degrees and occasional bending to 45 degrees; a sit/stand
Citations to “T.__” refer to the pages of the Administrative Transcript.
option every 30 minutes, for a few minutes; no ladders, ropes, scaffolds, stairs, or
ramps; avoiding heights; occasional balancing, stooping, kneeling, crouching, or
crawling; and no overhead work; (4) Plaintiff could not perform his past relevant
work; and (5) if Plaintiff had the RFC for a full range of light work, the Grids 2
would direct a finding of “not disabled,” however, Plaintiff’s additional limitations
impeded his ability to perform all or substantially of the requirements of light level
work. The ALJ noted the VE testimony that there were jobs that existed in
significant numbers which could be performed by a person of Plaintiff’s age,
education, vocational background, and RFC, such as cashier, sales attendant,
order clerk, and charge account clerk. The ALJ concluded that Plaintiff was not
disabled under the Act. T. 20-32.
The Scope of Review. A federal court should set aside an ALJ’s decision
to deny disability benefits only where it is based on legal error or is not supported
by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
“Substantial evidence means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Green–Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003) (internal quotation marks omitted).
“The Grids,” or the Medical Vocational Guidelines, divide work into sedentary, light, medium,
heavy, and very heavy categories, based on the extent of a claimant’s ability to sit, stand, walk,
lift, carry, push, and pull. 20 C.F.R. § 404, Subpt. P, Appx. 2. Each category has its own Grid
which takes into account the claimant’s age, education, and work experience. Based on these
factors, the Grids indicate whether the plaintiff can engage in any other substantial gainful work
which exists in the national economy.
Medical Evidence. On December 18, 2011, Plaintiff was involved in a
motor vehicle accident and was treated at Niagara Falls Medical Center two days
later upon complaints of aching pain to the back and neck of 5/10 severity. Xrays revealed intact right shoulder, unremarkable views of the cervical spine, and
mild L5-S1 disc narrowing with otherwise normal lumbosacral spine. Plaintiff was
diagnosed with cervical strain (whiplash) and shoulder strain, given Flexeril and
Motrin, and was discharged. T. 225-27.
Between December 21, 2011 and January 9, 2014, Plaintiff received
chiropractic care one to two times per week. Douglas Monteleone, D.C.,
diagnosed Plaintiff with neck sprain, cervicobrachial syndrome (diffuse),
cervicocranial syndrome, thoracic sprain, and lumbar sprain. Plaintiff tested
positive for myofascitis. No significant changes were reported during this course
of treatment. Plaintiff continued to report pain in his legs, back, and arms, with
temporary relief from chiropractic care. He declined treatment by prescription
drugs. By January 9, 2014, Plaintiff’s prognosis was guarded and uncertain, with
a chance that he would need long-term treatment. T. 306-25, 354-87, 418-72.
Between January 12, 2012 and June 5, 2012, Plaintiff received massage
therapy two to three times per week. Plaintiff continuously reported headaches
and pain in his back, shoulders, and neck, sometimes radiating to his legs. Notes
from Massage Center of Niagara indicate that his pain level generally decreased
over time with occasional spikes, ranging from 1/10 to 7/10 in severity. T. 239-77.
On January 23, 2012, Plaintiff was examined by orthopedic surgeon
William Wind, who noted no tenderness and full strength and range of motion in
the neck; crepitation of the right shoulder with some tenderness but no obvious
instability; normal strength in the right shoulder with full range of motion and pain
at the extremes. Dr. Wind assessed sprains and strains to the shoulder, tendinitis
of the biceps, and possible partial tear. Physical therapy was recommended. T.
A February 7, 2012 magnetic resonance imaging (“MRI”) of the cervical
spine showed concentric bulging of the disc and annular tears at the C5-6 level
without evidence of cervical disc herniation or cervical spinal stenosis or cervical
cord compression. The C2-3 and C3-4 levels, C6-7 and C7-T1 levels, cervical
cord and craniocervical junction, and paravertebral soft tissues were normal or
unremarkable. No fracture or dislocation was identified. T. 280.
On February 27, 2012, Dr. Wind noted that Plaintiff was attending physical
therapy and reported “significant improvement in his pain over the anterior aspect
of his shoulder.” T. 234. Physical examination was normal except for crepitation
of the right shoulder with mild tenderness over the right bicipital groove and
greater tuberosity, a positive Hawkins impingement sign, positive Neer
impingement test, and painful arc of motion. Plaintiff was to continue physical
therapy and keep up with home exercises, avoiding aggravating activities. T.
234-35. Notes from a follow-up appointment on April 2 show similar complaints of
pain, similar physical examination findings, and an assessment of shoulder
sprain and strain and bursae and tendon disorder shoulder region. Physical
therapy and home exercise were again recommended. T. 233-34, 399-400.
Plaintiff saw orthopedic surgeon Franco Vigna on August 2, 2012 for a
consultation where Plaintiff reported neck pain at 3 to 4/10 and low back pain at
7/10, mild right shoulder pain, and tingling and numbness in his right hand. He
also reported right leg pain that was not as severe. Chiropractic care helped
relieve his pain. As a self-employed landlord, Plaintiff had to hire help to perform
maintenance and upkeep on his property that he was unable to perform himself
since his accident. Examination revealed negative impingement sign in the
shoulders, negative straight leg raises, and decreased sensations in C6, C7, and
C8 dermatomes on the right.
Dr. Vigna noted that a May 10, 2012 MRI of the lumbar spine showed
small, right paracentral, subligamentous L5-S1 disc herniation indenting the
anterior aspect of the thecal sac, and left far lateral L4-5 disc herniation
projecting into the left L4-5 neural foramen. T. 281. Reviewing a June 2, 2012,
imaging test of the lumbar spine, Dr. Franco Vigna assessed mild disc space
narrowing at L4/L5 and mild degenerative change at L1/L2, with no compression
fracture, spondylolisthesis or spondylolysis. T. 282. Imaging of the lumbosacral
spine dated August 2, 2012 produced identical results, and x-rays of the cervical
spine were normal. T. 223, 304.
Following a review of the current and previous diagnostic imaging tests
and a physical examination, Dr. Vigna assessed Plaintiff with cervical disc
protrusion, lumbar disc herniation, radiculopathies in the arms and legs with
weakness, displaced disc herniation without myelopathy, and displaced cervical
disc without myelopathy. Plaintiff was to continue physical therapy and
chiropractic treatment with potential lumbar epidural injections if he continued to
have pain. T. 283-86.
In September, 2012, Dr. Monteleone, Plaintiff’s regular chiropractor,
completed a review of his treatment over the past nine months, noting that
Plaintiff’s visits increased from two to three times per week due to ongoing high
pain levels. He further noted that Dr. Cardamone’s report from May 29, 2012,
was erroneous with respect to Plaintiff’s arm, and that Plaintiff regularly
complained of symptoms in his right shoulder, arms, and fingers. Plaintiff further
complained of moderate to severe lower back pain with radiation into the legs.
Dr. Monteleone’s physical examination revealed limited range of motion in the
lumbar and cervical spine, spasm in the cervical lumbar spine upon palpation,
negative straight leg raise test, mild weakness in the bicep of the right arm with
upper extremities otherwise normal, and positive Kemp’s test. He reviewed
Plaintiff’s imaging tests and diagnosed him with ongoing sprain/strain whiplash
type injury to the cervical spine, with associated cervical discopathy and annular
tears and cervical brachial syndrome; lumbar sprain/strain; and herniation in the
lumbar spine resulting in radicular syndrome to the legs. The chiropractor opined
that further resolution of Plaintiff’s symptoms may be minimal, and the prognosis
at that time was guarded. Plaintiff was assessed with a temporary, moderate to
severe overall disability. T. 350-51.
A New York Motor Vehicle No Fault Insurance Law Denial of Claim Form
dated November 15, 2012, stated that Plaintiff’s benefits for chiropractic and
massage therapy were denied as of June 1, 2012. This determination was based
on the results of a health service examination by chiropractor Michael
Cardamone, D.C., on May 29, 2012, indicating that such treatment was no longer
necessary for the injuries sustained in Plaintiff’s December, 2011, car accident.
Dr. Monteleone completed a Range of Motion Chart Functional
Assessment on November 18, 2012, which concluded that Plaintiff was limited in
his ability to push and/or pull with his arms and could not climb ladders. T. 347.
Plaintiff was consultatively examined by Donna Miller, D.O., on December
7, 2012. His chief complaints were chronic neck and lower back pain, and right
shoulder partial rotator cuff tear since his motor vehicle accident. He was not on
any medications and reported drinking alcohol once per month and marijuana
use since age nine with current use a few times per week. He lived alone and
cooked and cleaned daily, did laundry, shopped, showered, and dressed himself.
His hobbies were watching TV, listening to the radio, and rescuing homeless
animals. Physical examination revealed difficulty walking on toes and a 25% of
full squat, and some reduced range of motion in the cervical spine, lumbar spine,
and hip. Plaintiff was diagnosed with chronic neck pain; bulging cervical disc;
chronic lower back pain; history of partial right rotator cuff tear; and headaches.
His prognosis was stable and the consultative examiner concluded that Plaintiff
had mild limitations in heavy lifting, bending, carrying, reaching, pushing, and
pulling. T. 388-91.
Social Security Form DDD-3883 was completed on December 11, 2012,
by Dr. Wind with respect to Plaintiff’s shoulder. Diagnosis was tendinitis of the
biceps and subscapularis tendon and subacromial impingement of the right
shoulder. Current symptom was pain, treatment was physical therapy, and
prognosis was rated as good. Dr. Wind opined that Plaintiff was limited in lifting
and overhead activities. T. 392-98.
On October 28, 2013, Dr. Monteleone completed a Patient
Evaluation/Management Form which noted ongoing neck, back, and extremity
pain, including right and left hand and finger tingling. Diagnoses were lumbar disc
displacement; lumbosacral neuritis, NOS; cervical disc displacement; and
brachial neuritis, NOS. The doctor assessed that progress was slower than
expected due to chronicity, overuse, and instability. A treatment plan of one to
two visits per week for 10 weeks was indicated, and recommendations were ice,
heat, walking, and neck and back exercises at home. T. 428-30.
In a letter dated January 10, 2014, Dr. Monteleone opined that Plaintiff had
an ongoing sprain/strain; whiplash-type injury to the cervical spine, with
associated cervical discopathy and annual tears; cervical brachial syndrome; and
a lumbar spine sprain/strain with disc herniation resulting in radicular syndrome
to the legs. According to the chiropractor, Plaintiff had a moderate to severe
disability in the lumbar spine, moderate to severe disability in the cervical spine,
and moderate to severe overall disability. His prognosis was fair to guarded, and
he was precluded from engaging in substantial gainful employment since
December 21, 2011. T. 474.
On January 30, 2014, Dr. Monteleone completed a Medical Assessment of
Ability to Do Work-Related Activities, and opined that Plaintiff could occasionally
lift/carry five pounds and frequently lift two pounds. In an eight-hour workday he
could stand/walk continuously for five minutes and for a total of one hour; sit
continuously for 15-20 minutes and for a total two to three hours. Plaintiff could
never climb, balance, kneel, or crawl, and occasionally stoop or crouch. His
abilities in reaching, handling, and feeling were affected, and should be restricted
from exposure to heights, temperature extremes, dust, fumes, and vibrations. His
impairments also affected his general mental capacity and emotions on a daily
basis. Plaintiff required four 30-minute breaks in a standard workday. The
chiropractor concluded that Plaintiff was unable to engage in substantial gainful
employment. T. 476-78.
Non-Medical Evidence. On November 26, 2012, Plaintiff completed a
Function Report. Plaintiff drove his daughter to soccer and karate four to five
times a week, and cared for his nine cats. Sometimes he had to sit when
dressing, and would have to use his arms to push himself up out of the bathtub.
He had no difficulties shaving, feeding himself, or using the bathroom. He
prepared his own meals, but was unable to “clean for long period[s]” and needed
help with yard work due to his back pain T. 185. He was able to walk, drive, and
go out alone. Plaintiff shopped for about 20 minutes once per week. He
socialized by phone, online, in person on a daily basis. He was no longer able to
exercise or play sports. Although Plaintiff could lift, he could not do so for long
periods or consistently. Plaintiff could stand for 20-60 minutes before needing to
sit, and walk for 15-20 minutes before needing to rest for one to two minutes.
Climbing stairs was “very hard.” T. 188. He was unable to kneel and his right side
would hurt and “give out” when squatting. Id. He had no limitations in using his
hands or reaching. Stress caused Plaintiff fatigue and anxiety. T. 182-90
Plaintiff also completed a Pain Questionnaire, which indicated that he had
experienced pain in his neck, shoulder and back, since December 18, 2011,
which he described as pinching and stabbing. The pain radiated down the back
of his head in to his neck, and down to his lower back and hip, and produced
headaches. T. 191. Plaintiff reported that his shoulder pain was “better,” his neck
was “somewhat better except for headaches,” and his back was “worse from
non-treatment.” Id. Running, walking upstairs, kneeling, and bending over would
accelerate his pain. Plaintiff’s back pain lasted all day. He took no medication,
and stated that his pain was “depressing.” T. 190-92. An accompanying
Headache Questionnaire indicated that Plaintiff saw a chiropractor twice a week.
Plaintiff testified at his disability hearing in January, 2014, that he had
problems bending over, headaches, and constant neck and lower back pain that
radiated down his legs when he bent over. Initially, he treated with physical
therapy, massage therapy, and chiropractic care. He also attended physical
therapy three times a week for four or five months. At the time of the hearing,
Plaintiff’s only treatment consisted of chiropractic care and Motrin. Plaintiff told
the ALJ that he would “not be walking very often,” if he stopped his chiropractic
care. T. 56. He also treated his back pain with ice, and stated that he did not take
prescribed medication because it caused him to become disoriented, and muscle
relaxers put him in a bad mood. He stopped seeing his orthopedist [Dr. Vigna]
because he did not have insurance.
At the time of the hearing, Plaintiff’s daily activities were checking on his
rental properties and running errands for one to two hours. He hired someone to
perform basic maintenance of his property. During the week, he would also drive
his 12-year old daughter to karate and soccer practice. Plaintiff cooked, cleaned,
did laundry, and shopped, but could not clean or do dishes for long periods of
time. If he overexerted himself on a particular day, his back pain worsened the
Plaintiff estimated that he could lift 10 or 20 pounds, but any more would
cause pain in his legs or back. He could sit for 10 to 15 minutes before needing
to change positions. He also testified that if he had to, he could sit for one to two
hours, if he were allowed to “shift around in the chair.” T. 47. Plaintiff could walk
15 to 30 minutes before experiencing back pain, and, depending on how his back
felt on a particular day, he could stand for one to three hours. The level of his
back pain varied from day-to-day. He also experienced numbness and tingling in
his hand once or twice a month, which his chiropractor attributed to his neck and
shoulder pain. Plaintiff testified to experiencing “excruciating headaches” once or
twice per week T. 61. Plaintiff described his total pain level on an average day as
5 to 7/10. On bad days, his pain would be 7 to 8/10, once or twice per week.
Plaintiff also had difficulty sleeping due to his pain one or two nights per week.
During an eight-hour workday, Plaintiff estimated he would need to lie down for
one to three hours to relieve his pain. T. 40-65.
Plaintiff last worked making heat and flame-resistant paints from 1997 to
2008. That job required him to lift 45-50 pound bags, shift 400-500 pound drums,
load mills, and operate a forklift. He also managed a nightclub three days per
week. He testified that he never had a problem with alcohol or illegal drugs. T.
VE Gil Pearson also testified at the hearing. The ALJ asked the VE to
assume a hypothetical person with Plaintiff’s age, education, and work
experience, who was able to perform light work with the following restrictions: he
could never bend over 45 degrees and only occasionally bend up to 45 degrees;
he would need the option to change between sitting and standing positions every
30 minutes, for a few minutes; he could not use ladders, ropes, scaffolds, stairs,
or ramps, and must avoid heights; he could only occasionally balance, stoop,
kneel, crouch, or crawl; and he could never perform overhead work. The VE
responded that jobs existed which such an individual could perform, specifically:
cashier II, light work, with 817,195 positions nationally and 3,669 positions
regionally; sales attendant, light work, with 2,475,636 positions nationally and
10,308 positions regionally; order clerk (food and beverage), sedentary work,
with 11,418 positions nationally and 28 positions regionally; and charge account
clerk, sedentary work, with 34,497 positions nationally and 160 positions
In response to questioning by Plaintiff’s attorney, the VE stated that there
was “potential” for erosion of the occupational base if the individual had to
alternate positions at will, but the types of jobs he identified were “the types of
unskilled jobs that really will accommodate that type of thing.” T. 72. He went on
to state that if an individual needed a sit/stand option four times per hour and
would be off-task for more than nine or ten minutes per hour, that individual
would not be able to maintain employment. T. 65-81.
The Sufficiency of the Record. Plaintiff first contends that the ALJ was
under a duty to develop the record more fully by requesting additional records
from Advanced Care Physical Therapy. Pl. Mem. (Dkt. No. 5-1) at 15.
“[W]here there are deficiencies in the record, an ALJ is under an affirmative
obligation to develop a claimant’s medical history even when the claimant is
represented by counsel or by a paralegal.” Rosa v. Callahan, 168 F.3d 72, 79 (2d
Cir. 1999) (internal quotation marks omitted). The ALJ’s duty to develop the
record reflects “the essentially non-adversarial nature of a benefits proceeding.”
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal quotation marks omitted);
see also Sims v. Apfel, 530 U.S. 103, 111 (2000) (“It is the ALJ’s duty to
investigate the facts and develop the arguments both for and against granting
benefits....”). However, “where there are no obvious gaps in the administrative
record, and where the ALJ already possesses a ‘complete medical history,’ the
ALJ is under no obligation to seek additional information in advance of rejecting a
benefits claim.” Rosa, 168 F.3d at 79 n. 5 (quoting Perez v. Chater, 77 F.3d 41,
48 (2d Cir. 1996)).
This point does not set forth a basis for remand. The present record is
comprised of over 250 pages of medical records spanning a relevant time period
of two-and-a-half years, including approximately 175 documented visits to
Plaintiff’s chiropractor alone. The record also includes treatment notes from
Plaintiff’s massage therapist, two orthopedists, a consultative examiner, hospital
records, and MRI and other imaging reports.
During the hearing, the ALJ was made aware of the physical therapy
records and he provided Plaintiff’s representative 21 days to obtain them. T. 44,
81. Counsel submitted a letter to the ALJ 45 days later indicating that the records
would not be submitted because Plaintiff was unable to afford the cost of
obtaining the copies. T. 219. Neither Plaintiff nor his counsel requested the
ALJ’s assistance in obtaining those medical records, see Jordan v. Comm’r of
Soc. Sec., 142 Fed.Appx. 542, 543 (2d Cir. 2005) (summary order) (finding that
the ALJ fulfilled his duty to develop the record where counsel volunteered to
obtain documents from the plaintiff’s treating physician; the ALJ kept the record
open to allow counsel to submit the documents; counsel later advised that he
had “nothing further to add”; and counsel did not request the ALJ to help him
obtain the documents); and Plaintiff does not explain how the record is
incomplete without them. Cf. Apolito v. Astrue, No. 11-CV-1065, 2012 WL
6787365, at *3-5 (N.D.N.Y. Nov. 5, 2012) (remanding for further development of
the record where counsel could not obtain records from the plaintiff’s psychiatrist,
the ALJ did not make his own effort to obtain the records, and the records were
“central to the disability determination”), report and recommendation adopted,
2013 WL 66706 (N.D.N.Y. Jan. 4, 2013). Under these circumstances, where the
records were not central to the disability determination, and there were no gaps
in the record as a whole, the ALJ was under no obligation to obtain the records
on his own.
The Opinion Evidence. Plaintiff next asserts that the ALJ’s evaluation of
opinion evidence of Drs. Monteleone and Miller was erroneous. Pl. Mem. at 16.
In the written decision, the ALJ gave great weight to the opinion of the
consultative examiner, and little weight to the opinion of Plaintiff’s treating
Chiropractors are typically not “acceptable medical sources” qualified to
opine about the existence or non-existence of a disability, but they are “other
sources” whose opinions can be considered in evaluating the severity of a
disability. See SSR 06–03p, 2006 WL 2329939 (Aug. 9, 2006); see also
Losquadro v. Astrue, No. 11–CV–1798, 2012 WL 4342069, at *14 (E.D.N.Y.
Sept. 21, 2012) (“Although a chiropractor does not qualify as an ‘acceptable
medical source’ and thereby cannot establish a medical impairment, a
chiropractor is listed as an ‘other source,’ whose opinion should be considered in
step two of the analysis.”).
In accordance with the regulations, ALJs are permitted to take a
chiropractor’s opinion into account, though they are not required to do so. See
Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995) (granting ALJs “discretion to
determine the appropriate weight to accord the chiropractor’s opinion based on
all the evidence”). In determining how much weight to accord a chiropractor’s
opinion, an ALJ may consider: (i) how long the source has known the plaintiff and
the frequency of treatment; (ii) how consistent the opinion is with other evidence;
(iii) the degree to which the source presents relevant evidence to support an
opinion; (iv) how well the source explains the opinion; (v) whether the source has
a specialty or area of expertise related to the individual’s impairment; and (vi) any
other factors that tend to support or refute the opinion. See S.S.R. 06–03p.
In his decision, the ALJ noted Plaintiff’s longstanding treatment relationship
with Dr. Monteleone, and reasoned that Dr. Monteleone’s highly restrictive
opinion was inconsistent with the balance of the medical record, and with
Plaintiff’s own testimony as to his limitations. T. 30. For example, the
chiropractor’s opinion that Plaintiff could only frequently lift two pounds and
occasionally lift five pounds was contradicted by Plaintiff’s hearing testimony that
he could lift ten to 20 pounds. Id. The ALJ further noted that Dr. Monteleone’s
conclusion that Plaintiff was disabled was not entitled to any weight pursuant to
SSR 96-5 (whether the claimant is disabled is a determination reserved to the
Commissioner). Id. As observed by the ALJ, Dr. Monteleone’s opinion was
inconsistent with that of Dr. Miller, who found only mild limitations for heavy
lifting, bending, carrying, reaching, pushing, and pulling, and treating orthopedist
Dr. Wind, who opined that Plaintiff had no limitations in his abilities to lift, carry,
stand, walk, sit, push, or pull. T. 391, 393-97. The ALJ did, however, incorporate
into the RFC determination Dr. Monteleone’s assessment of a restriction with
regard to avoiding heights and/or ladders, thus partially crediting his opinion.
Although “chiropractors are not ‘accepted medical sources’ whose opinions
are entitled to controlling or even special weight,” an ALJ “may not flatly reject
them without explaining his basis for doing so.” Nigro v. Astrue, No. 10-CV-1431,
2011 WL 4594315, at *5 (E.D.N.Y. Sept. 30, 2011) (collecting cases). An ALJ
has discretion to determine “[h]ow much weight to give” the opinions of a
chiropractor, but “should consider the opinions” and “explain what weight he
gives those opinions.” Id. It is apparent from the record and the written opinion
that the ALJ applied the correct legal standard in evaluating Dr. Monteleone’s
assessment of Plaintiff’s limitations.
With regard to the ALJ’s decision to afford Dr. Miller’s opinion great weight,
the Court notes that it “is not per se legal error for an ALJ to give greater weight
to a consulting opinion than a treating opinion.” Rivera v. Colvin, 2015 WL
1027163 at *16 (S.D.N.Y. Mar. 9, 2015). When controlling weight is not afforded
to the opinion of a treating physician, or when assessing a medical opinion from
another source, such as a consultative examiner, the ALJ should consider the
following factors to determine the proper weight to afford the opinion: (1) the
source’s examination relationship and treatment relationship with the plaintiff,
including the length, nature, and extent of the treatment relationship, if
applicable, (2) the opinion’s supportability, (3) the opinion’s consistency with the
record as a whole, (4) the source’s specialization, if any, and (5) other factors,
such as the source’s knowledge of disability programs and familiarity with the
case record. 20 C.F.R. § 416.927(c); Halloran v. Barnhart, 362 F.3d 28, 31-32
(2d Cir. 2004) (listing regulatory factors).
The ALJ’s weight determination in this case was proper. He stated that the
opinion of Dr. Miller was based on personal observations and examinations, and
was supported by the relatively mild clinical abnormalities on physical
examination. He further noted that Dr. Miller was familiar with Social Security’s
rules and regulations regarding physical impairments and disabilities. T. 30.
Significantly, Plaintiff overlooks the fact that the ALJ also afforded great weight to
the opinion of Dr. Wind, Plaintiff’s treating orthopedist, whose opinion that
Plaintiff would have limitations in lifting and overhead activities, but no other
limitations with regard to his right shoulder, was less restrictive than Dr. Miller’s.
T. 30, 396. Accordingly, the ALJ applied the proper legal standard and
substantial evidence supports the weight he assigned to the medical opinions in
Listings (Step Two). Plaintiff next argues that the ALJ erred in finding
that his headaches were a non-severe impairment at step two of the sequential
analysis. Pl. Mem. at 19.
Under the regulations, “[a]n impairment or combination of impairments is
not severe if it does not significantly limit a [claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. §§ 404.1521(a), 416.921(a). The
regulations define “basic work activities” as the “abilities and aptitudes necessary
to do most jobs,” with examples including the following: (1) physical functions
such as walking, standing, lifting, pushing, pulling, carrying or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) using judgment; (5) responding
appropriately to supervisors, co-workers, and usual work situations; and (6)
dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b),
416.921(b). Accordingly, the severity of an impairment is determined by the
limitations imposed by the impairment, and not merely by diagnosis of the
impairment. Ellis v. Comm’r, 11-CV-1205, 2012 WL 5464632, at *4 (N.D.N.Y.
Sept. 7, 2012) (citing Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)).
Step two of the disability review analysis may do nothing more than screen
out de minimus claims, Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995), and
a finding of a non-severe impairment should be made only where the medical
evidence establishes only a slight abnormality which would have no more than a
minimal effect on the claimant’s ability to work. Rosario v. Apfel, 1999 WL
294727, at *5 (E.D.N.Y. March 19, 1999) (quoting SSR 85-28, 1985 WL 56856).
When an ALJ finds that one or more of a plaintiff’s impairments are severe, an
error in the severity analysis at step two may be harmless because the ALJ
continued with the five-step analysis and did not deny the claim based on lack of
a severe impairment alone. Ellis, 2012 WL 5464632, at *5.
Plaintiff cites to various references in the record to his complaints of
headaches. Pl. Mem. at 20. This, however, is insufficient to mandate a finding
that the condition is a severe impairment. See Ellis, 2012 WL 5464632, at *4.
Although Plaintiff was diagnosed with headaches by Dr. Miller, and he
complained of headaches to his massage therapist and his chiropractor, there is
nothing in the record that suggests that his ability to do any basic work activities
would be severely compromised due to the presence of headaches. To the
contrary, Plaintiff’s Headache Questionnaire was mostly incomplete and only
specified that he saw a chiropractor two times per week, that he underwent a pro
scan imaging test, and that he did not keep a headache diary. No questions were
answered relating to the frequency or severity of his headaches, or the functional
limitations associated therewith. T. 193. The step two determination involves the
presence of functional limitations, an element that was not established by the
evidence of record with respect to Plaintiff’s headaches. See SSR 85-25 (“The
severity requirement cannot be satisfied when medical evidence shows that the
person has the ability to perform basic work activities, as required in most jobs
. . . . Thus, these basic work factors are inherent in making a determination that
an individual does not have a severe medical impairment.”)
Credibility Assessment of Plaintiff. The Plaintiff also contends that the
credibility assessment of the ALJ was not supported by substantial evidence. Pl.
Mem. at 20-23. It is well-settled that to establish disability, there must be an
underlying physical or mental impairment demonstrated by clinical and laboratory
diagnostic techniques that could reasonably be expected to produce the
symptoms alleged. See 20 C.F.R. § 416.929(b); Gallagher v. Schweiker, 697
F.2d 82, 84 (2d Cir. 1983). When such an impairment exists, objective medical
evidence, if available, must be considered in determining whether disability
exists. See 20 C.F.R. § 416.929(c)(2). Where a plaintiff’s symptoms suggest an
even greater restriction of function than can be demonstrated by the medical
evidence, the ALJ may consider factors such as his daily activities, the location,
duration, frequency and intensity of pain, any aggravating factors, the type,
dosage, effectiveness, and adverse side-effects of medication, and any treatment
or other measures used for pain relief. See 20 C.F.R. § 416.929(c)(3); SSR 96–
7p (July 2, 1996), 1996 WL 374186, at *7. It is well within the ALJ’s discretion to
evaluate the credibility of a plaintiff’s testimony and assess, in light of the medical
findings and other evidence, the true extent of her symptoms. See Mimms v.
Heckler, 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v. Shalala, 882 F.Supp.
1413, 1419 (S.D.N.Y. 1995).
Here, the ALJ determined that Plaintiff’s subjective complaints were not
fully credible and the objective medical evidence did not support the alleged
severity of symptoms. T. 30. In doing so, he considered Plaintiff’s activities of
daily living (cooking, cleaning, laundry, shopping, driving, going out alone, and
taking care of nine cats), Plaintiff’s statements regarding his pain improving in his
shoulder, and the inconsistencies in his testimony regarding illegal substance
abuse. T. 29. The ALJ further discussed the conservative nature of Plaintiff’s
treatment, consisting only of chiropractic care and over-the-counter medications.
Id. Finally, he noted that objective medical evidence did not support limitations
beyond the RFC determination. Id. He also discussed Plaintiff’s pain in
conjunction with the objective medical evidence, the hearing testimony, and the
RFC assessment. Id.
The ALJ employed proper standard in assessing Plaintiff’s credibility and
cited the relevant authorities in that regard, see, e.g., Britt v. Astrue, 486 Fed.
Appx. 161, 164 (2d Cir. 2012) (finding explicit mention of 20 C.F.R. § 404.1529
and SSR 96–7p as evidence that the ALJ used the proper legal standard in
assessing the claimant’s credibility), and substantial evidence supports his
determination. Credibility findings of an ALJ are entitled to deference, therefore
the Court sees no reason to disturb the ALJ’s credibility finding in this case. See
Salmini v. Comm’r of Soc. Sec., 371 Fed.Appx. 109, 113 (2d Cir. 2010) (“[i]t is
the function of the ALJ, not the reviewing court, to resolve evidentiary conflicts
and to appraise the credibility of witnesses, including the claimant.”) (internal
Impairments. Plaintiff argues that the ALJ improperly considered the
combination of exertional and non-exertional impairments which render him
disabled. Pl. Mem. at 23. At the outset, to the extent Plaintiff re-asserts that the
ALJ erroneously found that Plaintiff’s headaches were non-severe and
improperly evaluated Plaintiff’s credibility, Pl. Mem. at 24-25, the Court has
already considered and rejected those contentions.
The Court also disagrees that the ALJ improperly considered Plaintiff’s
impairments and limitations. Pl. Mem. at 25. The ALJ found that Plaintiff’s
cervical disc herniation, lumbar disc herniation, and partial right rotator cuff tear
were severe impairments, which limited Plaintiff in his abilities to, inter alia, stoop,
kneel, crouch, work at heights, or overhead. T. 24. In determining Plaintiff’s
limitations, the ALJ clearly took into consideration Plaintiff’s complaints of pain in
his back and shoulder, noting that, “mild to moderate pain or discomfort is not, in
itself, incompatible with the performance of sustained work activity.” T. 29. The
Court finds that Plaintiff has submitted no evidence (as is his burden) showing
that he had any additional impairments that were severe or caused functional
limitations that precluded him from performing substantial gainful activity.
The VE Testimony (Step Five). Plaintiff concludes his appeal by arguing
that the hypothetical posed to the VE by the ALJ was not supported by
substantial evidence upon which the ALJ could rely. Pl. Mem. at 25-28.
The Court finds that the above-discussed RFC is supported by substantial
evidence and thus concludes that the ALJ’s step five analysis is also supported
by substantial evidence. See Hamilton v. Comm’r of Soc. Sec., 105 F. Supp. 3d
223, 229 (N.D.N.Y. 2015) (“The Second Circuit has stated that there must be
‘substantial record evidence to support the assumption upon which the vocational
expert based [her] opinion.”) (alteration in original) (quoting Dumas v. Schweiker,
712 F.2d 1545, 1554 (2d Cir. 1983)). Although Plaintiff urges the Court to revisit
the ALJ’s weight determination with respect to the opinion of chiropractor Dr.
Monteleone, see Pl. Mem. at 28, it has been previously discussed that the
limitations ascribed to Plaintiff by Dr. Monteleone were not supported by the
balance of the medical evidence and Plaintiff’s own testimony. The additional
limitations discussed in Plaintiff’s brief (absence from work more than one day
per month and remaining off-task more than nine minutes per hour), were not
part of the RFC as determined by the ALJ and therefore were not considered as
part of the step five determination. To the contrary, the VE testified that the
unskilled, light and sedentary jobs he presented with respect to Plaintiff’s RFC
would typically accommodate a sit/stand option, stating that changing positions
“usually . . . every half hour . . . is tolerable by employers.” T. 72.
“Although the ALJ is initially responsible for determining the claimant’s
capabilities based on all the evidence, a hypothetical question that does not
present the full extent of a claimant’s impairments cannot provide a sound basis
for vocational expert testimony.” Hamilton, 105 F. Supp. 3d at 229 (citing Dumas,
712 F.2d at 1554 n.4). Here, however, the ALJ posed hypothetical questions that
fully captured Plaintiff’s RFC. T. 31-32. Accordingly, this Court finds that the
ALJ’s step five analysis was proper and free from error.
For the foregoing reasons, the Plaintiff’s motion for judgment on the
pleadings (Dkt. No. 5) is denied, and the Commissioner’s cross-motion (Dkt. No.
6) is granted. The complaint is dismissed in its entirety with prejudice. The Clerk
shall enter Judgment accordingly.
s/Richard J. Arcara___________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: January 10, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?