Bailey v. Colvin

Filing 18

DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/14/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DONNA BAILEY,
Plaintiff,
-vs-

No. 1:15-CV-00991 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Donna Bailey (“plaintiff”) brings this

action pursuant to Title II of the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social
Security

(“the

Commissioner”)

denying

her

application

for

disability insurance benefits (“DIB”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the Commissioner’s
motion is granted.
II.

Procedural History
The record reveals that in July 2012, plaintiff (d/o/b May 19,

1977) applied for DIB, alleging disability as of March 1, 2011.
After her application was denied, plaintiff requested a hearing,
which was held via videoconference before administrative law judge
Elizabeth W. Koennecke (“the ALJ”) on April 16 and August 11, 2014.
The ALJ issued an unfavorable decision on August 15, 2014. On

October

2,

2014,

the

Appeals

Council

granted

plaintiff

25 additional days to submit new evidence. Plaintiff then submitted
additional treatment records to the Appeals Council, after which
the Appeals Council denied review of the ALJ’s decision and this
timely action followed.
III. Summary of the Evidence
Plaintiff initially sustained an unspecified work-related
right ankle injury on October 17, 2009. Plaintiff returned to work
and

did

not

receive

further

treatment

for

her

injury

until

January 7, 2010, when she began treating with a podiatrist. On
February 8, 2010, an MRI of her right foot indicated mild proximal
tenosynovitis involving the flexor hallucis longus tendon sheath
and synovitis with joint effusions involving the fourth and fifth
metatarsolphalangeal joints. On April 26, 2010, plaintiff reported
that she had reinjured her foot at work by dropping a case of beer
on it. She received further treatment, and on September 2, 2010,
she reported that she had “returned to regular work duty/activity.”
T. 349.
On March 1, 2011, Dr. Beth Dollinger performed surgery to
repair plaintiff’s ankle. Plaintiff then attended regular physical
therapy sessions with physical therapist (“PT”) Jennifer Smielecki.
PT Smielecki recorded that plaintiff’s gait improved, even without
a crutch, in May and June 2011. Plaintiff also reported that
electrostimulation received at physical therapy improved her pain

2

and she was encouraged to use a TENS unit at home. In June 2011, PT
Smielecki noted that plaintiff’s tolerance for activity in physical
therapy

without

improving.

a

CAM

Plaintiff

(controlled
attempted

ankle

to

movement)

return

to

boot

work,

was
with

restrictions, in August 2011, but reported that her pain increased
significantly when she returned to work. Plaintiff continued to
attend physical therapy throughout the relevant time period. On
May 30, 2013, PT Smielecki noted that plaintiff was “improving in
strength, range of motion, and balance,” T. 651, and PT Smielecki
continued to focus on strengthening and balance.
In September 2011, Dr. Dollinger recorded that “[she was]
unclear as to what [was] exactly going on with [plaintiff,] but at
[that] point it [was] obvious that she [could not] work, so
[Dr. Dollinger took] her out of work.” T. 438. Physical examination
revealed a “significant limp” and tenderness over the abductor
hallucis incision but “no soft tissue swelling in and around her
foot.” T. 438. On October 13, 2011, Dr. Dollinger noted a moderate
amount of soft tissue swelling and continued tenderness over the
abductor hallucis release, Achilles tendon, and calf.
On

October

independent

6,

medical

2011,

Dr.

Gerald

examination

of

Coniglio
plaintiff

completed
for

an

worker’s

compensation purposes. He noted some limitation in range of motion
for the right foot as well as tenderness over the tarsel tunnel
area halfway between the medial malleolus and medial aspect of the

3

right heel. He assessed plaintiff with a fair prognosis with
treatment for tarsal tunnel syndrome. According to Dr. Coniglio,
plaintiff could return to work with the following restrictions: she
could walk 50 feet at one time on flat ground; she could not climb
stairs or ladders; she could not kneel or squat; she must be ablet
to sit and stand “as she so desire[d]”; she must be able to elevate
the right leg as necessary; and she could lift up to 20 pounds
occasionally

from

floor

level

to

tabletop

level.

T.

422.

Dr. Coniglio opined that plaintiff had not yet reached maximum
medical improvement and recommended cortisone injection therapy and
possible

tarsal

tunnel

release.

In

Dr.

Coniglio’s

opinion,

plaintiff’s treatment to date had not be reasonable or necessary,
because several physicians failed to “entertain[] the diagnosis of
tarsal tunnel” and “none [had] performed an examination in an
attempt

to

determine

whether

[plaintiff

had]

tarsal

tunnel

syndrome.” T. 423. According to Dr. Coniglio, “if the diagnosis had
been made, the [plaintiff] would likely have been able to return to
her work in a reasonable and timely fashion [and] would not have
undergone ineffectual surgery.” Id.
On October 17, 2011, Dr. Look Persaud completed a consulting
orthopedic examination at the request of the state agency. On
physical examination, plaintiff presented as “an obese female in
moderate, chronic distress,” and demonstrated an abnormal gait with
limping on the right and difficulty with heel-toe walk and squat.

4

She had limited range of motion (“ROM”) of the right shoulder, some
limitation in ROM of the lumbar spine, and limited ROM of the right
ankle. Strength in the right ankle was 4/5, with “moderate atrophy
of the right foot, ankle, and right leg,” and “sensory deficit with
diminished vibration and light touch of the right ankle and foot.”
T. 488-89. In Dr. Persaud’s opinion, plaintiff had “no restrictions
to sitting,” but “moderate restriction from prolonged standing,
moderate to marked restriction for walking on even surfaces, marked
restrictions for walking on uneven terrain and up inclines, ramps,
and stairs,” “moderate to marked restrictions from squatting,
kneeling, and crawling,” “mild restrictions for bending . . . [and]
reaching

overhead

and

for

abduction,

internal

rotation,

and

external rotation of the right upper extremity,” “moderate to
marked restriction for lifting, carrying, pushing, and pulling.”
T. 489.
On November 30, 2011, Dr. Dollinger injected plaintiff’s
tarsal tunnel with lidocaine and Depo-Medrol and advised her to
continue

using

a

TENS

unit.

In

subsequent

treatment

notes,

Dr. Dollinger recorded that plaintiff continued to complain of pain
“localized to the right foot,” and diagnosed her with chronic pain
syndrome. See T. 457-60. Physical therapy notes dated January 2014
noted that plaintiff’s sessions focused on strengthening exercises.
On

January

6,

2014,

PT

Smielecki

noted

that

plaintiff

was

“challenged by strengthening exercises, however she report[ed]

5

decrease(d) pain afterwards.” T. 669-70. PT Smielecki noted that
plaintiff “require[d] encouragement to increase her activity at
home.” T. 656, 661. Plaintiff was eventually discharged to a home
exercise program due to insurance coverage issues.
Plaintiff’s most recent treatment notes from Dr. Dollinger
indicate that on February 13, 2013, plaintiff had “mild to moderate
soft tissue swelling” in her left knee, and she could perform a
straight

leg

raise

(“SLR”)

test

but

reported

tenderness.

Dr. Dollinger noted that plaintiff’s father attended her February
2013 visit “and seem[ed] very concerned that she should be on
Social Security disability because of a problem with her right
foot.” T. 515. Dr. Dollinger explained to plaintiff’s father that
Dr. Dollinger “under[stood] that [plaintiff] ha[d] chronic pain in
the right foot,” but “she could still do a sit down job and
need[ed] to be involved in some type of vocational rehabilitation.”
Id. Over the next few months, plaintiff continued to complain of
pain in her left knee, which she reported began after she “lost
balance and came down on her left knee and twisted it” several
months earlier. A November 2013 X-ray revealed minimal changes to
the

medial,

lateral,

and

patella-femoral

compartments

of

plaintiff’s left knee. A December 2013 MRI revealed “evidence of
old [Osgood]-Schlatter’s disease,”1 but was otherwise unremarkable.

1

Osgood–Schlatter disease (OSD), also known as apophysitis of
the tibial tubercle, or Lannelongue's disease, is an inflammation
of the patellar ligament at the tibial tuberosity. It is
6

Dr.

Bruce

Greene,

plaintiff’s

orthopedic

surgeon,

noted

an

unremarkable physical examination, including an “unassisted, normal
gait,” and referred plaintiff for further physical therapy due to
her continued complaints of pain.
In February 2014, Dr. Dollinger noted that plaintiff was due
to have knee surgery (an exploratory arthroscopy performed by
Dr. Greene) in March 2014. On physical examination, Dr. Dollinger
noted that plaintiff was a “very obese female who ambulate[d] with
a limp,” and the record indicates that although plaintiff reported
tenderness, no objectively abnormal results were found during the
physical examination. T. 524. Dr. Dollinger diagnosed plaintiff
with ankle pain associated with a sprain, which Dr. Dollinger
opined would “probably get better on its own,” and limb pain which
would be followed up on an as-needed basis. Two weeks after her
March 2014 arthroscopy, Dr. Greene noted that plaintiff was “doing
well” and was “without complaints.” T. 546.
IV.

The ALJ’s Decision
At step one of the five-step sequential evaluation process,

see 20 C.F.R. § 404.1520, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since March 1, 2011, the
alleged onset date. At step two, the ALJ found that plaintiff
suffered from the severe impairment of right foot tarsal tunnel

characterized by a painful bump just below the knee and is most
often seen in young adolescents.
7

syndrome. At step three, the ALJ found that plaintiff did not have
an impairment or combination of impairments that met or medically
equaled a listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC

“to

lift

twenty

pounds

occasionally

from

the

floor;

lift/carry/push/pull twenty pounds occasionally and ten pounds
frequently; sit without limitations; stand/walk for two hours in an
eight-hour workday; rarely walk up and down inclines, on uneven
terrain or up and down stairs; and never climb ladders.” T. 53.
At step four, the ALJ found that plaintiff was unable to
perform past relevant work. At step five, the ALJ found that
considering plaintiff’s age, work experience, and RFC, there were
significant numbers of jobs in the national economy which she could
perform.

Accordingly,

the

ALJ

found

that

plaintiff

was

not

disabled.
V.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable

8

mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

Vocational Expert Testimony

Plaintiff contends that the Commissioner failed to establish
that there were a sufficient number of jobs existing in the
national economy

which

plaintiff

could

perform.

Specifically,

plaintiff contends that the vocational expert’s (“VE”) testimony
was unreliable for two reasons. First, plaintiff contends that the
VE did not provide an accurate estimate of the number of jobs which
she could perform, because in addition to providing the relevant
Dictionary of Occupational Titles’ job titles (of charge-account
clerk,

addresser,

and

document

preparer),

he

also

referenced

Occupational Employment Survey codes, which included more job
titles than the three DOT codes listed by the VE as pertaining to
plaintiff. As the Commissioner points out, however, both the VE and
the ALJ recognized that the OES codes were broader than the DOT
codes.
Upon specific questioning from the ALJ, the VE testified that
he could estimate the numbers of jobs available relevant to the DOT
job titles only, an estimate that obtained by use of a program
called “Job Browser Pro.” The Court finds that the ALJ did not err
in relying on the VE’s testimony, considering the VE’s broad
experience and the explicit understanding that he estimated the
number of job titles available to plaintiff within the specific DOT

9

codes cited – not within the broader OES codes. See, e.g., Kennedy
v. Astrue, 343 F. App’x 719, 722 (2d Cir. 2009) (affirming the
Commissioner's decision where the VE “discounted from the total
numbers for all 60 DOT titles” to reach an estimate number of jobs
available in specific titles); cf. Walker v. Colvin, 2016 WL
4768806,

at

*7

(N.D.N.Y.

Sept.

13,

2016)

(collecting

cases,

clarifying that it reversed due to the VE’s “lack of any attempt to
demonstrate that the identified jobs titles were available to
plaintiff”).
Second,

plaintiff

argues

that

the

VE’s

testimony

was

inadequate to support the ALJ’s decision because the VE expressed
difficulty

estimating

the

number

of

jobs

available

for

an

individual limited to rarely climbing stairs. The VE did express
some uncertainty in this regard, testifying:
A.

[The VE:] The only thing that I see here that would
refute any employment would be the inability or the rare
ability to climb stairs. Most employers do require you to
get in and out of their building. So, that would limit
the number of jobs available.

Q.

[The ALJ:] You can’t name any?

A.

I can give you some sedentary positions, but again,
Judge, the numbers won’t be reliable because of the
inability to climb stars or the rare ability to climb
stairs. . . .

T. 84. However, the VE identified three DOT job titles to which he
referred, and the Court takes judicial notice of the fact that the
titles to which the VE referred provide that a requirement for
climbing is “not present” in any of these titles. See DICOT
10

§§

205.367-014,

Charge-Account

Clerk;

249.587-018,

Document

Preparer; 209.587-010, Addresser. Moreover, “climbing” is defined,
for purposes of the DOT, as “[a]scending or descending ladders,
stairs, . . . and the like, using feet and legs or hands and arms.”
SCODICOT, Appendix C, Physical Demands. Thus, the job titles to
which the VE referred did not require any climbing and the ALJ
properly relied on the VE’s testimony, which was based on the ALJ’s
RFC finding.

B.

Weight Given to Consulting Examiner’s Opinion

Plaintiff contends that the ALJ failed to properly evaluate
and weigh the opinion of consulting physician Dr. Look Persaud. As
discussed

above,

Dr.

Persaud

opined

that

plaintiff

had

“no

restrictions to sitting,” but “moderate restriction from prolonged
standing, moderate to marked restriction for walking on even
surfaces, marked restrictions for walking on uneven terrain and up
inclines, ramps, and stairs,” “moderate to marked restrictions from
squatting, kneeling, and crawling,” “mild restrictions for bending
. . . [and] reaching overhead and for abduction, internal rotation,
and external rotation of the right upper extremity,” “moderate to
marked restriction for lifting, carrying, pushing, and pulling.”
T. 489. Plaintiff argues that the ALJ failed to consider the
applicable factors, delineated in 20 C.F.R. § 404.1527(c), when
evaluating the weight given to Dr. Persaud’s opinion. The Court
disagrees.

11

The ALJ gave Dr. Persaud’s opinion “some” weight, but declined
to incorporate Dr. Persaud’s upper extremity limitations into the
RFC finding because they were “inconsistent with the finding above
that this

is

the

claimant’s

only severe

impairment.”

T.

54.

Although, as plaintiff points out, the ALJ is required to consider
all of plaintiff’s impairments during the sequential analysis, see
20 C.F.R. § 404.1525(a), the Court finds the ALJ’s statement
constituted

harmless

error

because

the

decision

as

a

whole

indicates that the ALJ did consider all of plaintiff’s impairments,
including those deemed to be nonsevere, when coming to her RFC
finding. See Sevene v. Astrue, 2011 WL 4708793, *4 (D. Vt. Sept.
15, 2011), report and recommendation adopted sub nom. Sevene v.
Comm’r of Soc. Sec., 2011 WL 4708787 (D. Vt. Oct. 4, 2011). The ALJ
here considered plaintiff’s allegations of a right upper extremity
impairment, but cited evidence from the record indicating that an
EMG/NCS of the right upper extremity was normal and plaintiff was
diagnosed with a temporary wrist contusion in February 2014. The
ALJ was within her discretion to credit certain limitations opined
by the consulting examiner, and reject others. See Lutz v. Colvin,
2016

WL

5401088,

*7

(N.D.N.Y.

Sept.

8,

2016),

report

and

recommendation adopted, 2016 WL 5394740 (N.D.N.Y. Sept. 27, 2016)
(holding that it was “not an error for the ALJ to accept only those
portions of the consultive examiner’s medical source statement that
were consistent with the evidence in the record”). Moreover, other

12

than the upper extremity limitations which are not supported by
this record, the ALJ’s RFC finding adequately took into account the
lower extremity limitations noted by Dr. Persaud. Therefore, the
Court finds that the ALJ properly evaluated Dr. Persaud’s opinion
when formulating her RFC finding.
C.

Credibility

Plaintiff next contends that the ALJ improperly evaluated her
credibility. In assessing credibility, an ALJ is required to
consider the factors listed in 20 C.F.R. § 416.929(c) as well as
other relevant authorities, including SSR 96-7p. Pursuant to SSR
96-7p,2 the ALJ “must consider the entire case record, including
the objective medical evidence, the individual’s own statements
about

symptoms,

statements

and

other

information

provided

by

treating or examining physicians or psychologists and other persons
about the symptoms and how they affect the individual, and any
other relevant evidence in the case record.” The ALJ’s discussion
in

this

case,

which

incorporates

her

review

of

plaintiff’s

testimony, indicates that she used the proper legal standard in
assessing credibility, especially in light of the fact that she
cited relevant authorities in that regard. See Britt v. Astrue, 486
F. App’x 161, 164 (2d Cir. 2012) (finding explicit mention of 20

2

The Court notes that SSR 96-7p was recently superceded by
SSR 16-3p, which became effective March 28, 2016. SSR 96-7p,
however, remains the relevant guidance for purposes of plaintiff’s
claim.
13

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).
“‘The ALJ has discretion to evaluate the credibility of a
claimant and to arrive at an independent judgment, in light of
medical findings and other evidence, regarding the true extent of
the pain alleged by the claimant,’ . . . though a ‘finding that the
witness is

not

credible

must

nevertheless

be

set

forth

with

sufficient specificity to permit intelligible plenary review of the
record[.]’”

Martins

v.

Chater,

112

F.3d

504

(2d

Cir.

1996)

(internal citations omitted). In this case, the ALJ considered the
following factors in assessing plaintiff’s credibility: the ALJ
concluded that plaintiff’s testimony was not persuasive; plaintiff
was repeatedly advised by her treating physical to participate in
vocational rehabilitation but never did so; plaintiff was able to
increase activity to lose weight, but allegedly not to perform work
functions; plaintiff’s knee condition was temporary; diagnostic
testing had generally been normal or negative aside from her right
ankle and

plaintiff

appeared

able

to

sit

comfortably

at

the

hearing, without elevating her leg or requesting to do so; and
finally, plaintiff’s obesity complicated her physical conditions.
Therefore, here, like in Martins, the ALJ “adequately explained
[her] negative assessment of [plaintiff’s] credibility as to the
extent of her pain, citing [the] ‘multiple factors [discussed

14

above.]’”

Id.

Accordingly,

the

Court

will

not

disturb

the

credibility finding.
D.

Severity of Plaintiff’s Alleged Fibromyalgia

Plaintiff argues that the ALJ improperly determined that she
did not suffer from fibromyalgia as a severe impairment. The ALJ
found that “[w]ith regard to pain syndrome, fibromyalgia and
headaches, there [was] no evidence that any of these [had] been
formally diagnosed.” T. 52. The ALJ went on to find that pursuant
to the relevant Social Security Ruling, SSR 12-2p, “it [was] clear
the claimant [did] not meet the necessary criteria.” Id. The Court
agrees. SSR 12-2p requires, as a threshold, that a plaintiff have
a “history of widespread pain – that is, pain in all equal
quadrants

of the

body .

.

.

–

that

has

persisted

(or that

persisted) for at least three months.” SSR 12-2p goes on to require
“[a]t least 11 positive tender points on physical examination[.]”
Plaintiff’s

medical

records

do

not

establish

a

diagnosis

of

fibromyalgia which comes close to meeting the standards of SSR 122p. The Court therefore finds that the ALJ properly considered
plaintiff’s allegations of fibromyalgia and determined that the
impairment was not severe.
Moreover, there is no indication from the ALJ’s decision that
she failed to consider the impact of plaintiff’s chronic pain –
described in most of her records to be localized to her left lower
extremity – throughout the balance of the sequential evaluation

15

process. See Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 311-12
(W.D.N.Y. 2013) (““As a general matter, an error in an ALJ's
severity assessment with regard to a given impairment is harmless
. . . when it is clear that the ALJ considered the

claimant's

[impairments] and their effect on his or her ability to work during
the balance of the sequential evaluation process.”) (internal
quotation marks and citations omitted).
E.

New Evidence

Plaintiff contends that the Appeals Council failed to include
new evidence in the administrative record and failed to provide a
detailed

explanation

of

its

review

of

the

records

submitted

subsequent to plaintiff’s hearing. After receiving her unfavorable
decision, plaintiff submitted three sets of documents to the
Appeals Council: (1) medical evidence from Dr. Saeed Anwar dated
September

24,

2014

which

noted

that

plaintiff

complained

of

“generalized body and predominantly low back pain,” found that
plaintiff was “[p]ositive for myalgias, back pain, and joint pain,”
and diagnosed plaintiff with fibromyalgia syndrome; (2) medical
evidence from Dr. David Graham dated August 25 and September 10,
2014, which noted plaintiff’s complaints of right hand pain and
numbness in her right hand, and stated that “[a]lthough her nerve
conduction tests were negative, her symptoms and exam [were]
somewhat consistent with carpal tunnel syndrome” (see T. 23); and
(3) medical evidence dated May 14 and July 6, 2015 from Dr. Laura

16

Llinas-Lux, which noted plaintiff’s complaints of generalized pain,
that she “had a recent fall,” see T. 27, 30, and diagnosed her with
chronic pain syndrome.
The Appeals Council declined review of the ALJ’s decision,
finding that the records submitted by plaintiff constituted “new
information . . . about a later time.” T. 2. The Court finds no
error

in

the

Appeals

Council’s

determination.

The

evidence

submitted by plaintiff to the Appeals Council, which this Court has
thoroughly reviewed as it is contained within the administrative
record, see T. 16-44, does not relate to the relevant time period
in

any

meaningful

way

because

it

is

not

“relevant

to

[her]

condition during [that] time period and it is [not] probative.”
Shrack v. Astrue, 608 F. Supp. 2d 297, 302 (D. Conn. 2009). The new
evidence submitted by plaintiff relates only to her conditions
after the relevant time period, and provides no new insight into
her conditions as they existed during that time period. “While
documents generated after the ALJ’s decision may bear upon the
“‘severity and continuity of impairments existing’” during the
relevant period, ‘if the new evidence concerns only the claimant’s
condition

after

the

relevant

time

period,

a

remand

for

consideration of this evidence is not appropriate.’” Collins v.
Comm’r of Soc. Sec., 960 F. Supp. 2d 487, 501 (S.D.N.Y. 2013)
(internal citations omitted). Accordingly, the Court finds that the
Appeals Council properly denied review based on the new evidence.

17

VI.

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

the pleadings (Doc. 10) is denied and the Commissioner’s motion
(Doc. 14) is granted. 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:

January 14, 2017
Rochester, New York.

18