Cramer v. Colvin

Filing 17

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,
1:15-CV-00769 (MAT)
DECISION AND
ORDER

Plaintiff,

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

I.

Introduction
Plaintiff Steven J. Cramer (“plaintiff”) brings this action

pursuant to 42 U.S.C. § 405(g), alleging that defendant Nancy A.
Berryhill,

the

Acting

Commissioner

of

Social

Security

(“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
entirety.

II.

Discussion
A.

Legal Standard

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.
§ 636(b)(1)(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).
B.

Plaintiff’s Objections

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
(3)

that

the

credibility.

ALJ

failed

to

properly

evaluate

Plaintiff’s

Plaintiff’s objections to the R&R solely relate to

Judge Roemer’s findings as to the ALJ’s assessment of Dr. Vigna’s
opinion).

Accordingly, the Court has considered the propriety of

the ALJ’s assessment of Dr. Vigna’s opinion de novo.

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1.

Dr. Vigna’s Opinion

Dr. Vigna, an orthopedist, treated plaintiff on four occasions
between

May

18,

2012

and

August

1,

2012.

At

his

initial

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.
241-43.

Dr.

Vigna

opined

Administrative Transcript (“T.”)

that

plaintiff

had

a

“marked

75%

disability,” should not lift more than ten pounds, and should avoid
repetitive bending, lifting, and twisting.

Id.

Plaintiff saw Dr. Vigna on three additional occasions.

On

June 1, 2012, plaintiff complained of worsening lower pack pain.
T. 239-40.

Dr. Vigna told plaintiff that he could engage in light

exercise but should not lift more than ten pounds.

Id.

Dr. Vigna

assessed plaintiff with a “75% moderate disability” and referred
him to Dr. Pacana for chiropractic care.

Id.

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.”

T. 237-8.

Dr. Vigna

again assessed plaintiff with a “75% moderate disability.”

Id.

Plaintiff and Dr. Vigna discussed the possibility of transferring
to a job that did not require heavy lifting.

Id.

Plaintiff’s final appointment with Dr. Vigna was on August 1,
2012.

T. 235-36.

Plaintiff reported that he had been “feel[ing]

good in terms of his low back pain,” though he had experienced a

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significant worsening of pain in the prior two weeks.
Vigna once again assessed a “75% moderate disability.”
2.

Id.

Dr.

Id.

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
up

to

20

pounds

with

his

upper

extremities;

has

occasional

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.

T.

21.

In reaching this

conclusion, the ALJ discussed plaintiff’s treatment with Dr. Vigna,
and specifically noted that Dr. Vigna felt that plaintiff was 75%
disabled.

T. 22.

The ALJ did not, however, specifically assign a

weight to Dr. Vigna’s opinion.
3.

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

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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.

Docket

Accordingly, Judge Roemer found that remand was not

warranted.
4.

Analysis

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
first visit.
contingent

“[A]n individual’s status as a treating physician is
upon

relationship.”

the

existence

of

an

ongoing

treatment

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
physician).

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
circumstances,

sometimes

three

to

five

visits

will

be

insufficient.”

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

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entitled to controlling weight.’” Docket No. 11 at 15 (quoting
Hickman v. Colvin, 2014 WL 2765670, at *12 (M.D. Tenn. June 18,
2014)).
Plaintiff

argues

that

Judge

Roemer’s

analysis

is

flawed

because the Court can somehow infer that Dr. Vigna’s opinion
regarding plaintiff’s lifting ability continued over the course of
his treatment.
Vigna,

The Court disagrees.

plaintiff

reported

a

At his third visit with Dr.

significant

improvement

in

his

condition, stating that he was experiencing more relief of his
symptoms than he had in 16 years.

T. 237-38.

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
visits.
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)).
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Moreover,

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
omitted).

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
medical

evidence

conclusions.

of

record

plainly

substantiates

the

ALJ’s

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.

T. 24-25.

Treating chiropractor

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).
Dr.

Moreover, the ALJ’s RFC finding is largely consistent with
Vigna’s

opinion,

inasmuch

as

it

includes

significant

limitations with respect to plaintiff’s ability to bend and engage
in heavy lifting. Under these circumstances, the Court agrees with
Judge

Roemer

that

the

basis

for

the

ALJ’s

RFC

finding

is

sufficiently clear that the failure to expressly weigh Dr. Vigna’s
opinion does not warrant remand.
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C.

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.
III. Conclusion
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.

The

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.

The

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
Dated:

October 24, 2017
Rochester, New York

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