Cramer v. Colvin
DECISION AND ORDER adopting 11 Report and Recommendations, denying 7 Motion for Judgment on the Pleadings, and granting 9 Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 10/24/2017. (CDH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEVEN J. CRAMER,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social
Plaintiff Steven J. Cramer (“plaintiff”) brings this action
pursuant to 42 U.S.C. § 405(g), alleging that defendant Nancy A.
(“Commissioner” or “defendant”), improperly denied his application
for disability insurance benefits.
Currently 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.
The parties’ motions were referred to Magistrate Judge Michael J.
Roemer for consideration of the factual and legal issues presented,
and to prepare and file a Report and Recommendation (“R&R”)
containing a recommended disposition of the issues raised.
On May 25, 2017, Judge Roemer issued an R&R (Docket No. 11)
recommending that plaintiff’s motion be denied and that defendant’s
motion be granted. For the reasons discussed below, the Court
agrees with Judge Roemer’s findings and adopts the R&R in its
When specific objections are made to a magistrate judge’s
report and recommendation, the district judge makes a “de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
When no objections or only general objections are
made, the district judge reviews the report and recommendation for
clear error or manifest injustice. See, e.g., DiPilato v. 7-Eleven,
Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). After conducting
the appropriate review, the district court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
In support of his motion for judgment on the pleadings,
plaintiff made three arguments: (1) that the administrative law
judge (“ALJ”) improperly ignored the treating source opinion of Dr.
Franco Vigna; (2) that the ALJ failed to properly evaluate the
treating other source opinion of chiropractor Dr. David Pacana; and
Plaintiff’s objections to the R&R solely relate to
Judge Roemer’s findings as to the ALJ’s assessment of Dr. Vigna’s
Accordingly, the Court has considered the propriety of
the ALJ’s assessment of Dr. Vigna’s opinion de novo.
Dr. Vigna’s Opinion
Dr. Vigna, an orthopedist, treated plaintiff on four occasions
appointment with plaintiff, Dr. Vigna assessed plaintiff with a
work-related injury of the lumbar spine, lumbar disc desiccation,
lumbar spinal stenosis, displaced lumbar disc without myelopathy,
and degenerative lumbar disc.
Administrative Transcript (“T.”)
disability,” should not lift more than ten pounds, and should avoid
repetitive bending, lifting, and twisting.
Plaintiff saw Dr. Vigna on three additional occasions.
June 1, 2012, plaintiff complained of worsening lower pack pain.
Dr. Vigna told plaintiff that he could engage in light
exercise but should not lift more than ten pounds.
assessed plaintiff with a “75% moderate disability” and referred
him to Dr. Pacana for chiropractic care.
On June 29, 2012, plaintiff returned to Dr. Vigna and reported
that Dr. Pacana had significantly improved his symptoms and that he
had “not had this much relief in 16 years.”
again assessed plaintiff with a “75% moderate disability.”
Plaintiff and Dr. Vigna discussed the possibility of transferring
to a job that did not require heavy lifting.
Plaintiff’s final appointment with Dr. Vigna was on August 1,
Plaintiff reported that he had been “feel[ing]
good in terms of his low back pain,” though he had experienced a
significant worsening of pain in the prior two weeks.
Vigna once again assessed a “75% moderate disability.”
The ALJ’s Decision
In his decision, the ALJ determined that plaintiff had the
residual functional capacity (“RFC”) to perform light work, with
the following additional limitations: can stand and walk for six
hours in an eight hour workday; can sit for two hours in an eight
hour workday; can occasionally lift and carry 20 pounds; can
frequently lift and carry 10 pounds; can occasionally push or pull
limitations in his ability to bend, climb stairs or ramps, stoop,
squat, kneel, and/or crawl; cannot work in an area involving
exposure to excessive cold or dampness.
In reaching this
conclusion, the ALJ discussed plaintiff’s treatment with Dr. Vigna,
and specifically noted that Dr. Vigna felt that plaintiff was 75%
The ALJ did not, however, specifically assign a
weight to Dr. Vigna’s opinion.
Plaintiff’s Argument and Judge Roemer’s R&R
Plaintiff argued in his motion for judgment on the pleadings
that the ALJ had ignored Dr. Vigna’s opinion, resulting in a
violation of the treating physician rule.
Judge Roemer rejected
this argument in his R&R.
As a threshold matter, Judge Roemer noted that Dr. Vigna’s
opinion was issued on the first occasion he saw plaintiff, prior to
the establishment of a treating relationship. Judge Roemer further
found that, although the ALJ had not expressly weighed Dr. Vigna’s
opinion in reaching his RFC conclusion, his discussion of Dr.
Vigna’s treatment notes was sufficient to demonstrate that he “gave
due consideration to Dr. Vigna’s opinion, but ultimately found it
to be less persuasive than other evidence in the record.”
No. 11 at 15.
Accordingly, Judge Roemer found that remand was not
Having reviewed the record and having considered plaintiff’s
arguments de novo, the Court agrees with Judge Roemer that the
ALJ’s treatment of Dr. Vigna’s opinion does not warrant remand.
First, Judge Roemer correctly concluded that Dr. Vigna was not a
treating physician when he rendered an opinion during plaintiff’s
“[A]n individual’s status as a treating physician is
Partlow v. Astrue, 2011 WL 320955, at *4 n.7(E.D.
Va. Jan. 28, 2011) (rejecting argument that an opinion rendered on
an initial visit should be treated as the opinion of a treating
Accordingly, courts have not hesitated to conclude
that “[a] single visit to a doctor is insufficient to establish a
treating physician relationship and, indeed, depending on the
Kane v. Astrue, 2011 WL 3353866, at *6 (N.D. Ohio
Aug. 3, 2011).
Therefore, and as Judge Roemer noted, “‘[o]pinions
rendered during a physician’s first visit with a claimant are not
entitled to controlling weight.’” Docket No. 11 at 15 (quoting
Hickman v. Colvin, 2014 WL 2765670, at *12 (M.D. Tenn. June 18,
because the Court can somehow infer that Dr. Vigna’s opinion
regarding plaintiff’s lifting ability continued over the course of
The Court disagrees.
At his third visit with Dr.
condition, stating that he was experiencing more relief of his
symptoms than he had in 16 years.
Notably, although he
had previously opined that plaintiff could not lift more than ten
pounds, Dr. Vigna did not include that opinion in his treatment
notes following this third visit, nor did he include in his
treatment notes from plaintiff’s fourth and final visit. The Court
therefore sees no basis in the record to infer or assume that Dr.
Vigna’s opinion remained static over the course of plaintiff’s four
Plaintiff further argues that Judge Roemer’s analysis was
flawed even assuming that Dr. Vigna was not a treating physician,
because the ALJ’s failure to explain the weight given to his
opinion necessitates remand. Again, the Court disagrees. As Judge
Roemer explained in his thorough R&R, while an ALJ is required to
consider and weigh the medical opinion evidence of record, “[a]n
ALJ’s failure to cite specific evidence does not indicate that such
evidence was not considered.”
Docket No. 11 at 15 (quoting Brault
v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012)).
it is well-established that “the failure to explicitly assign
weight to an opinion is harmless in certain situations, such as
where the ALJ’s decision reflects that the opinion was considered
or where the limitations assessed in the opinion are ultimately
accounted for in the RFC.”
Hazelton v. Comm’r of Soc. Sec., 2017
WL 1437194, at *6 (N.D.N.Y. Apr. 21, 2017) (internal quotation
The Court agrees with Judge Roemer that the ALJ’s
decision, which discussed Dr. Vigna’s treatment and assessment of
plaintiff, adequately demonstrates that Dr. Vigna’s opinions were
considered in determining plaintiff’s RFC.
The Court’s conclusion is supported by the fact that the
As the ALJ noted, plaintiff reported taking no
medications whatsoever to relieve his back pain or discomfort and
testified that he was able to do yard work, carry packages, and
lift a 20 pound bag of potatoes.
Dr. Pacana opined that could occasionally lift 21 to 50 pounds (T.
354-57), while examining physician Dr. Donna Miller stated that
plaintiff’s restriction for heavy lifting was only mild (T. 31821).
Moreover, the ALJ’s RFC finding is largely consistent with
limitations with respect to plaintiff’s ability to bend and engage
in heavy lifting. Under these circumstances, the Court agrees with
sufficiently clear that the failure to expressly weigh Dr. Vigna’s
opinion does not warrant remand.
Review of the Remainder of the R&R
With respect to the unobjected-to portions of the R&R, the
Court has reviewed Judge Roemer’s findings and recommendations for
clear error and has found none.
Accordingly, the Court adopts the
R&R in total.
For the reasons set forth in Judge Roemer’s thorough and
well-reasoned R&R, the undersigned adopts all of his conclusions.
The R&R (Docket No. 11) is hereby adopted in its entirety.
Commissioner’s motion for judgment on the pleadings (Docket No. 9)
is granted and plaintiff’s motion for judgment on the pleadings
(Docket No. 7) is denied for the reasons set forth therein.
Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
October 24, 2017
Rochester, New York
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