Moore v. Colvin
Filing
14
ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/5/16. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
HELEN HATFIELD MOORE,
15-CV-00908T
Plaintiff,
DECISION AND
ORDER
-v-
CAROLYN W. COLVIN, ACTING
Commissioner OF Social Security,
Defendant.
Helen Hatfield Moore (“plaintiff”) brings this action under
Title II of the Social Security Act (“the Act”), claiming that the
Commissioner of Social Security (“Commissioner” or “defendant”)
improperly denied her applications for supplemental security income
(“SSI”) and disability insurance benefits (“DBI”).
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.
For the reasons set forth below,
plaintiff’s motion is denied and defendant’s motion is granted.
PROCEDURAL HISTORY
On March 12, 2103, plaintiff filed applications for DIB and
SSI alleging disability as of March 1, 2011, which was later
amended to August 16, 2011. Administrative Transcript (“T.”) 227239, 270.
Following denials of her applications initially on
May 3, 2013 and June 13, 2013, upon reconsideration, plaintiff and
vocational expert (“VE”) Beverly K. Majors testified at a hearing,
that was held at plaintiff’s request, on May 8, 2014 before
administrative law judge (“ALJ”) Richard LaFata.
An unfavorable
decision was issued on July 8, 2014, and a request for review was
denied by the Appeals Council on September 3, 2015.
Considering the case de novo and applying the five-step
analysis
contained
in
the
Social
Security
Administration’s
regulations (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ made the
following
findings:
(1)
plaintiff
met
the
insured
status
requirements of the Act through December 31, 2015; (2) she had not
engaged in substantial gainful activity since August 16, 2011, the
date of the onset of her alleged disability; (3) her degenerative
disc disease was a severe impairment (20 CPR 404.1520(c) and
416.920(c)); (4) her impairment, or combination of impairments, did
not meet or medically equal the severity of any impairments listed
in
20
CFR
Part
§§
404.1520(d),
404,
Subpart
404.1525,
P,
404.1526,
Appendix
1
416.920(d),
(20
C.F.R.
416.925
and
416.926); and (5) plaintiff had the residual functional capacity to
perform light work as defined in 20 CFR 404.157(b) and 416.967(b)
with the following limitations:
occasionally perform postural
activities like climbing ramps or stairs, balancing, stooping,
kneeling, crouching, and crawling but never climb ladders, ropes,
or scaffolds. T. 15-16.
2
The ALJ also found that plaintiff is capable of performing
past relevant work as a telemarketer (DOT# 299.357-014, sedentary,
semi-skilled,
SVP
3),
a
stocker
(DOT#
290.477-014,
light,
semi-skilled, SVP 3), and a cashier (DOT# 211.462-014, light,
semi-skilled, SVP 3). T. 19.
DISCUSSION
I.
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g) (2007).
The Court must
accept the findings of fact made by the Commissioner, provided that
such findings are supported by substantial evidence in the record.
When
determining whether
the
Commissioner’s
findings
are
supported by substantial evidence, the Court’s task is “‘to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999), quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam). Section 405(g) limits
the scope of the Court’s review to two inquiries: whether the
Commissioner’s findings were supported by substantial evidence in
3
the record as a whole and whether the Commissioner’s conclusions
are based upon an erroneous legal standard. See Green–Younger v.
Barnhart, 335 F.3d 99, 105–106 (2d Cir. 2003).
Plaintiff, 52 years old with a GED-level education, testified
that she lived with her 22-year-old daughter, son-in-law, and
granddaughter in a mobile home in Waskom, Texas.
Plaintiff was
five feet and one inch tall and weighed 240 pounds for about the
last ten years, but she testified that her weight did not present
an
obstacle
functions.
to
maintaining
her
home
or
performing
her
daily
Plaintiff did not obtain any additional training or
certifications beyond her GED.
She denied using any alcohol or
drugs.
In 2013, plaintiff worked for a medical supply assembly
company for six days before she was terminated for failing to meet
standards.
She testified that, by the third day of constant
sitting, she experienced shooting back pain that spread to her leg
and hips.
When she tried standing to alleviate the pain, she was
repeatedly told that she was not allowed to do so in the unit area
but had to wait until her break or lunch time. Plaintiff needed to
stand for 15 minute before sitting down again and was able to sit
for 30 to 60 minutes before switching positions again.
Although she had applied for many jobs, she had not performed
any work since March 1, 2011, when she was terminated by her then
employer, “Expert Communications,” for whom she had worked since
4
2008 at $7.25 per hour. T. 47-49.
supervisor
by
the
company
and
After being promoted to night
moving
to
an
upstairs
office,
plaintiff fell twice while descending stairs and started missing
“anywhere from two days at a time to one week,” due to the
resulting back pain. T. 47-48.
Plaintiff had also previously
worked as a dishwasher, retail store stocker, cook, cashier, and
telemarketer.
Plaintiff testified that she was in several car accidents when
she was younger, including one in the mid-1990s that caused her
severe back and hip pain and a tingling sensation in her hands and
feet.
Because plaintiff did not have health insurance at that
time, she was treated in the emergency room and had one follow-up
appointment.
The
VE
testified
in
response
to
the
ALJ’s
hypothetical
question whether an individual of plaintiff’s age, education, and
experience was able to perform light work with the following
limitations: occasional use of ramps and stairs; never climb
ladders,
ropes
or
scaffolds;
occasional
stooping,
kneeling,
crouching, and crawling; and never work from unprotected heights.
The VE opined that such a person could perform plaintiff’s past
work as a telemarketer, stocker, cashier, and kitchen helper.
She
further opined that such an individual could perform the work of a
rental clerk and light office clerk.
Such jobs would still exist
for someone who needed to change postural positions between sitting
5
and standing at their workstation for about five minutes every
hour.
At the sedentary exertional level, such individual could
still perform the work of a telemarketer, as well as sedentary
receptionist, order clerk, and “call out operator.” T. 80-82.
II.
The Commissioner’s Decision Denying Plaintiff Benefits is
Supported by Substantial Evidence in the Record.
Plaintiff’s sole contention on appeal concerns the ALJ’s
assessment of her credibility.
Plaintiff contends that the ALJ
erred when he discounted her subjective complaints on the basis of
her limited and conservative medical treatment history without
further inquiring whether she could afford treatment or and medical
insurance.
Defendant
responds
that
the
ALJ’s
credibility
determination is based on substantial evidence, including objective
medical examination results and diagnostic imaging, and that there
was no affirmative indication in the record that she was unable to
afford treatment.
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 plaintiff’s
symptoms suggest an even greater restriction of function than can
6
be demonstrated by the medical evidence, the ALJ may consider
factors such as her 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); Social Security Ruling (“SSR 96–7p”),
(July 2, 1996), 1996 WL 374186, at *7.
It is well within the ALJ’s
discretion to evaluate the credibility of 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).
In his credibility determination, the ALJ found that:
The limited medical history and the conservative nature
of [plaintiff’s] medical treatment reduce the credible
sustainability of the alleged functional impact of [her]
impairments.
[Plaintiff]
sought medical
treatment
approximately twice per year due to symptoms related to
her impairments, and in those examinations, [plaintiff]
was prescribed pain medications to improve her symptoms.
Impairments causing the degree of limitations alleged
would generally require more medical
treatment and hospitalizations including more invasive
physical
medicine
treatment
modalities
and/or
consideration for surgery.
T. 18. The ALJ also noted that plaintiff’s “medical reports do not
depict [her] impairments as causing the degree of limitations
alleged.” T. 18.
The ALJ points out that, although plaintiff’s
recent diagnostic imaging reveals “some degenerative disc disease
that would cause her some degree of the pain and limited mobility
7
that she alleges, . . . she generally maintained normal physical
functioning throughout the alleged disability period.” T. 18.
During the hearing, plaintiff testified that she did not have
medical insurance at the time of her automobile crash, which
occurred in 1994 or 1995. T. 46.
Her attorney also advised the ALJ
that plaintiff “had an emergency visit at Longview Regional Medical
Center March 8, 2014, due to falling [and] extreme back pain,” and
stated: “They actually did X-rays so if you see in the record, we
don’t have any since 2012.
And the reason for that is because she
doesn’t have insurance.” T. 31.
The records reveals that plaintiff was treated at the Longview
Regional Medical Center emergency room for a back injury after
falling down stairs. T. 330, 336. X-ray imaging of the lumbosacral
spine revealed degenerative changes, mild narrowing of the L5-S1
disc space with vacuum disc phenomenon, and mild spondylosis of the
lumbar spine.
She exhibited tenderness overlying the sacrum, and
spasm in the paraspinous muscles with mild to moderate tenderness.
In May 4, 2012, she was again treated in the emergency room of the
Longview Regional Medical Center on May 4, 2012 for lower back pain
after lifting a heavy box and was diagnosed with acute lumbar
myofascial strain, acute low back pain, and acute muscular spasm.
She reported moderate, sharp pain exacerbated by moving, standing,
and changing positions, and she received prescriptions for Flexeril
and acetaminophen and codeine.
8
On November 5, 2012, plaintiff was treated in the emergency
room of the Good Shepard Memorial Center for acute back pain after
falling the previous day.
She exhibited pain with range of motion
bank and vertebral tenderness at L3, L4, L5, and sacrum.
X-ray
imaging revealed degenerative disc disease, facet hypertrophy at
L4-5
and
L5-S1,
and
minimal
anterior
osteophyte
formation
throughout the lumbar spine. She was diagnosed with acute low back
pain,
acute
back
sprain,
and
acute
contusion
and
received
prescriptions for Keflex and Norco.
Plaintiff suffered another fall after losing consciousness on
March 15, 2014 and was treated at Good Shepard Memorial Center
emergency room for acute back pain and lumbar spine sprain with
prescription
medication.
CT
imaging
revealed
moderate
degenerative changes, with multilevel degenerative disc narrowing
and mild bony spurring, of the cervical spine and minor lower
degenerative change, including vacuum discs at L3-4 and L4-5 and
congenital disc narrowing at L5-S1, of the lumbar spine, with facet
arthrosis inferiorly. T. 409.
In April 2014, she was treated in
the emergency department for a bladder infection.
Based on its review of the foregoing record evidence, the
Court
concludes
that
the
ALJ’s
credibility
determination
is
supported by substantial objective medical evidence in the record.
Pursuant to Social Security Rule 96-7p, the ALJ has a duty, in
assessing credibility, to inquire about possible explanations for
9
lack of treatment.
(W.D.N.Y.
2007)
See Garrett v. Astrue, 2007 WL 4232726, at *9
(holding
it
“improper
for
ALJ
to
question
plaintiff’s credibility based solely on her inability to afford
pain medication”); Young v. Comm'r of Soc. Sec., 2014 WL 3107960,
at *11 (N.D.N.Y. 2014).
Although the hearing testimony and plaintiff’s history of
emergency room visits here suggest that plaintiff’s access to
treatment may have been limited at times by her lack of medical
insurance and financial resources, the Court finds no indication
that the ALJ challenged plaintiff’s credibility solely based on her
lack of treatment or inability to afford it.
In addition to the
objective medical evidence listed above, the ALJ noted the negative
result of her straight-leg raise test, which indicating “that her
pain
levels
are
not
so
significant
that
they
could
not
be
accommodated during the normal breaks available throughout the
workday.” T. 18.
The ALJ gave “great weight . . . to the assessments of the
state medical consultants who all determined that [plaintiff] could
perform
at
assessments
a
reduced
are
light
consistent
exertional
with
the
level
because
[plaintiff’s]
throughout the record.” T. 19; See 109-110.
their
functioning
The ALJ also referred
to the physical examination records, which revealed consistently
normal
findings
in
plaintiff’s
extremities,
neurological
functioning, range of motion (sometimes reduced), muscle strength,
10
gait, and heel and toe balance, despite her back pain, which she
reported to be mild as of April 2014. T. 323, 346-349, 402, 393.
Based on the foregoing, the Court finds no error in the ALJ’s
assessment of plaintiff’s credibility, which indicates that the ALJ
used the legal proper standard and considered the relevant factors
contained in the Regulations to reach his finding. As such, remand
is not required.
CONCLUSION
For the foregoing reasons, the plaintiff’s motion for judgment
on the pleadings is denied, and the Commissioner’s cross-motion for
judgment on the pleadings is granted.
The ALJ’s decision denying
plaintiff’s claims for SSI and DIB is supported by substantial
evidence in the record.
The Clerk of Court is directed to close
the case.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATE:
December 5, 2016
Rochester, New York
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