Myers v. Commissioner of Social Security
Filing
17
DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/25/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RON L. MYERS,
1:16-cv-80-MAT
Plaintiff,
DECISION AND ORDER
-vsCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
INTRODUCTION
Represented by counsel, Ron L. Myers (“Plaintiff”) has brought
this action pursuant to Title II of the Social Security Act (“the
Act”), seeking review of the final decision of the Acting Commissioner
of Social Security (“Defendant” or “the Commissioner”) denying his
application for disability insurance benefits (“DIB”).
This Court has
jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently
before the Court are the parties’ competing motions for judgment on the
pleadings
Procedure.
pursuant
to
Rule 12(c)
of
the
Federal
Rules
of
Civil
For the reasons set forth below, Plaintiff’s motion is
denied and Defendant’s motion is granted.
II.
PROCEDURAL BACKGROUND
On August 16, 2012, Plaintiff protectively filed an application
for DIB, alleging disability beginning June 15, 2004, due to a steel
plate in his neck, cardiovascular disease, a stent in his heart, and
“severe out of control diabetes.” Administrative Transcript (“T.”) 11,
152.
Plaintiff’s
application
was
initially
denied
and
he
timely
requested a hearing, which was held before administrative law judge
(“ALJ”) Donald T. McDougall on March 28, 2014.
T. 28-60.
In a brief
submitted by counsel prior to the hearing, Plaintiff noted that he had
amended his alleged onset date to May 22, 2010.
T. 207.
On May 12, 2014, the ALJ issued an unfavorable decision. T. 8-27.
Plaintiff’s request for review was denied by the Appeals Council on
December 1, 2015, making the ALJ’s decision the final decision of the
Commissioner.
T. 1-6. Plaintiff then timely commenced this action.
III. THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation promulgated
by the Commissioner for adjudicating disability claims. See 20 C.F.R.
§ 404.1520(a). Initially, the ALJ determined that Plaintiff last met
the insured status requirements of the Act on December 31, 2011.
T. 13.
As such, in order to be successful on his DIB application,
Plaintiff must have become disabled prior to the date last insured.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful employment from his amended alleged onset date of
May 22, 2010, through the date last insured.
Id.
At step two, the ALJ determined that through the date last
insured, Plaintiff had the severe impairments of diabetes, coronary
artery disease, and a history of cervical spine surgery.
Id.
The ALJ
further found that Plaintiff’s depressive disorder was non-severe.
13-15.
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T.
At step three, the ALJ considered Plaintiff’s impairments and
found that through the date last insured, singly or in combination,
they
did
not
impairment.
meet
or
medically
equal
the
severity
of
a
listed
T. 15.
Prior to proceeding to step four, the ALJ determined that through
the date last insured, Plaintiff had the residual functional capacity
(“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b),
with the following additional limitations: must be able to change
positions at least every 30 minutes for a brief period; cannot climb
ladders, ropes, or scaffolds; can climb stairs and ramps no more than
occasionally; can balance, stoop, kneel, crouch, or crawl no more than
occasionally; cannot work around heights or dangerous moving machinery.
T. 15.
At step four, the ALJ determined that through the date last
insured, Plaintiff was unable to perform any past relevant work.
21.
T.
At step five, the ALJ relied on the testimony of a vocational
expert to find that, taking into account Plaintiff’s age, education,
work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform, including
the representative occupations of bench worker, glass cutter, mail
clerk, cashier, and ticket taker. T. 21-22. The ALJ accordingly found
that through the date last insured, Plaintiff was not disabled as
defined in the Act.
T. 23.
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IV.
DISCUSSION
A.
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such findings
are supported by “substantial evidence” in the record. See 42 U.S.C.
§ 405(g) (the Commissioner’s findings “as to any fact, if supported by
substantial evidence, shall be conclusive”). Although the reviewing
court must scrutinize the whole record and examine evidence that
supports or detracts from both sides, Tejada v. Apfel, 167 F.3d 770,
774 (2d Cir. 1998) (citation omitted), “[i]f there is substantial
evidence to support the [Commissioner’s] determination, it must be
upheld.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “The
deferential standard of review for substantial evidence does not apply
to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003).
Plaintiff
contends
that
remand
of
this
matter
for
further
administrative proceedings is necessary because: (1) the ALJ’s RFC
finding is not supported by substantial evidence; and (2) the ALJ
failed to appropriately consider Plaintiff’s subjective complaints of
pain. For the reasons discussed below, the Court finds these arguments
without merit.
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B.
The ALJ’s RFC Finding
Plaintiff’s first argument is that the ALJ’s RFC finding was not
supported by substantial evidence.
In particular, Plaintiff contends
that the ALJ failed to incorporate limitations on Plaintiff’s abilities
to repetitively lift and to look up and down, and that there was
therefore no basis for the ALJ to conclude that Plaintiff was capable
of light work.
This argument is unsupported by the medical evidence
of record and lacks merit.
Plaintiff underwent a cervical spine fusion surgery in May 2004,
following a motor vehicle accident in 2003. T. 17. Orthopedic Surgeon
Dr. Edwards Simmons examined Plaintiff on January 10, 2005, and found
that Plaintiff stood with a normal posture and ambulated with a normal
gait. His anterior cervical incision was well healed and he had a
fairly good range of motion of the cervical spine with seventy percent
flexion and extension, as well as seventy percent rotation to the left
and right. T. 248. At that time, Dr. Simmons opined that Plaintiff
“could be involved in lighter duty work with no repetitive lifting, no
lifting over fifty pounds, no repetitive overhead lifting and no
prolonged looking upwards or downwards.”
Tr. 249. On September 15,
2006, Dr. Simmons and his nurse practitioner (“NP”) Susan T. Giardino
saw Plaintiff again.
At that time, Plaintiff reported he was doing
“fairly well” and that he manages his mild stiffness and discomfort on
a day-to-day basis. T. 244. On examination, Plaintiff walked with a
normal gait and posture. He had some limited motion of his cervical
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spine with seventy degrees of flexion, approximately seventy degrees
of rotation to the left and right, and had excellent strength in his
upper extremities. T.
245. Imaging of his cervical spine showed
excellent bone fusion from C5 to C7 with intact instrumentation. Id.
Dr. Simmons and NP Giardino stated at that time that Plaintiff was
capable of “lighter duty work with no heavy lifting over 50 pounds, no
repetitive overhead lifting or prolonged looking upwards or downwards,”
but did not limit Plaintiff to no repetitive lifting as Dr. Simmons did
in 2005. They opined he was doing “quite well” but noted he had some
limitations in motion which may be permanent, yet tolerable. Id.
Plaintiff argues that the ALJ was bound by Dr. Simmons’ and NP
Giardino’s 2005 opinion that he was unable to engage in repetitive
lifting and prolonged looking upwards or downwards.
As an initial
matter, Plaintiff’s argument relies on a misstatement of the record.
Although Dr. Simmons initially indicated in 2005 that Plaintiff was
incapable of repetitive lifting, that restriction was not included in
the September 2006 assessment. The ALJ therefore could have reasonably
concluded that Dr. Simmons and NP Giardino believed that the limitation
on repetitive lifting had resolved by that time.
See Diaz v. Shalala,
59 F.3d 307, 315 (2d Cir. 1995) (ALJ may properly rely on the absence
of findings by a physician regarding particular claimed limitations).
Moreover, Dr. Simmons’ and NP Giardino’s opinions were issued in
2005 and 2006, several years before the amended onset date of May 22,
2010.
More recent physical examinations showed that Plaintiff’s range
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of motion had continued to improve. For example, on December 20, 2012,
Plaintiff
was
seen
by
Dr.
Thomas
McTernan,
Jr.
and
had
only
a
moderately limited range of motion in his neck. T. 332. "When there is
a conflict in the medical evidence, we leave it for the finder of fact
to resolve, and '[w]here the Commissioner's decision rests on adequate
findings supported by evidence having rational probative force, we will
not substitute our judgment for that of the Commissioner.'" Galiotti
v. Astrue, 266 F. App'x 66, 67 (2d Cir. 2008) (quoting Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir.2002)). The ALJ’s decision to base
the RFC on Plaintiff’s more recent physical examinations rather than
the more remote opinions of Dr. Simmons’ and NP Giardino was well
within his discretion and was supported by the record.
Additionally, and as the Commissioner correctly notes, any error
by the ALJ in failing to include limitations in Plaintiff’s abilities
to repetitively lift or to engage in prolonged looking downward or
upward
was
harmless.
At
the
hearing,
the
VE
identified
three
representative jobs (mail clerk, cashier, and ticket taker) whose
occupational
definitions
do
not
include
repetitive
lifting,
or
prolonged looking up or down. Even if such limitations had been
included in the RFC, the jobs identified by the VE would remain viable.
For the foregoing reasons, the Court concludes that the ALJ’s
determination not to include limitations on repetitive lifting and
prolonged looking upwards or downwards did not constitute reversible
error.
Accordingly, remand is not warranted on this basis.
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C.
Assessment of Plaintiff’s Subjective Complaints
Plaintiff’s second argument is that the ALJ failed to properly
consider and assess his subjective complaints. Plaintiff claims that,
contrary to the ALJ’s findings, the record demonstrates that Plaintiff
has chronic, severe pain and limited daily living activities, and
moreover, that the ALJ was required to reconcile any inconsistencies
with
Plaintiff’s
testimony
about
his
daily
activities
and
his
treatment. The Court disagrees.
As a threshold matter, the Court notes that an ALJ is entitled to
great deference when making credibility findings and can only be
reversed if those findings are patently unreasonable. Andrisani v.
Colvin, No. 1:16-CV-00196 (MAT), 2017 WL 2274239, at *3 (W.D.N.Y. May
24, 2017). “Because the ALJ has the benefit of directly observing a
claimant’s demeanor and other indicia of credibility, his decision to
discredit subjective testimony is entitled to deference and may not be
disturbed on review if his disability determination is supported by
substantial evidence.” Hargrave v. Colvin, No. 13–CV–6308(MAT), 2014
WL
3572427,
at
*5
(W.D.N.Y.
July
21,
2014)
(internal
quotation
omitted).
In his decision, the ALJ found Plaintiff’s allegations of pain
were inconsistent with his treatment history, and further noted that
the
medical
record
demonstrated
that
Plaintiff
was
frequently
noncompliant with treatment recommendations. T. 19. When assessing a
Plaintiff’s credibility, an ALJ is instructed to consider whether his
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subjective complaints are “consistent with the medical and other
objective evidence.” Wells v. Colvin, 87 F. Supp. 3d 421, 431 (W.D.N.Y.
2015). “The ALJ's decision must contain specific reasons for the
finding on credibility, supported by the evidence in the case record,
and must be sufficiently specific to make clear to the individual and
to
any
subsequent
reviewers
the
weight
the
[ALJ]
gave
to
the
individual's statements and the reasons for that weight.” Cichocki v.
Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013) (internal quotation
omitted).
Here,
the
ALJ
met
these
requirements
and
sufficiently
explained his reasoning in support of his finding that Plaintiff’s
statements were not entirely credible.
The ALJ initially noted that Plaintiff had been non-compliant with
prescribed treatment. This conclusion is well-supported by the record.
In March 2010, Plaintiff presented to a new primary care physician in
Florida for treatment, complaining of weight loss and blurred vision.
He admitted he had been out of insulin for two weeks. T. 341. In
October
2010,
treatment
records
show
Plaintiff
came
into
his
physician’s office to pick up prescriptions and he was advised to make
an appointment. T.
339. He did not return to the office until February
2011, when he admitted he had not taken any of his medications,
including his insulin, for the past three months. T. 338. Plaintiff had
a follow-up appointment two weeks later and reported he was compliant
with his medications and his blood sugars were “doing great” with
fasting sugars below 120. Plaintiff had no complaints and no abnormal
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clinical finding were noted on exam. T. 337. Plaintiff returned in
October 2011 for new prescriptions, reporting he had run out of
medication several weeks prior. T. 336. The record indicates Plaintiff
had no medical treatment or appointments again until December 2012,
when he reported to his
primary care physician in New York that he had
recently moved back from Florida and he had lost over fifty pounds
since July, when he stopped taking all of his medications. T. 331.
Plaintiff’s well-documented history of non-compliance with respect to
the treatment for his diabetes was an appropriate factor for the ALJ
to take into account in assessing his credibility.
See, e.g., Weed
Covey v. Colvin, 96 F. Supp.3d 14, 33 (W.D.N.Y. 2015) (ALJ properly
found credibility diminished where claimant failed to regularly attend
appointments); Lasalle v. Colvin, No. 14-CV-872-JTC, 2016 WL 420589,
at *6 (W.D.N.Y. Feb. 4, 2016) (“[T]he ALJ was permitted to consider
plaintiff’s noncompliance with treatment as a factor weighing against
her credibility.”).
The ALJ’s conclusion that Plaintiff’s subjective complaints were
inconsistent
supported.
with
the
medical
evidence
of
record
is
also
well-
For example, at the hearing, Plaintiff testified he has
problems with stairs, can sit or stand for no more than twenty minutes
at a time, cannot lift more than ten pounds, and becomes dizzy when
walking even short
distances.
Plaintiff’s
records,
medical
T.
the
37-38.
ALJ
However, on
found
only
one
review
of
mention
of
dizziness, which was accompanied by other symptoms suggestive of a
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possible cardiac problem he was having in May 2010. T. 19-20, see also
T. 339. At that time, Plaintiff was referred to the emergency room for
an evaluation; however, nothing in the record indicates Plaintiff went
to the emergency room or received any testing for his complaints.
Treatment
records
from
December
2012
through
December
2013
note
Plaintiff repeatedly denied vertigo and difficulty concentrating. See
Id., T. 313-32, 363.
Similarly, in direct contrast to Plaintiff’s testimony at the
hearing, in 2010 Plaintiff reported to his primary care physician he
was walking three miles, three times per week. T. 341-42. From December
2012 through March 2013, the record shows Plaintiff denied trouble
walking. T. 322-34. In June 2013, Plaintiff requested his primary care
physician complete disability papers documenting his disabilities,
including coronary artery disease, diabetes, and past cervical spine
fusion. At that time, Plaintiff reported he was having trouble walking,
but
the
correlating
musculoskeletal
exam
findings
notes
of
his
indicate
lower
no
vertigo
extremities,
and
normal
including
no
clubbing, cyanosis or edema bilaterally and full motor strength of 5/5
bilaterally.
See
T.
319-21.
Subsequent
exams
produced
similarly
unremarkable findings through the end of 2013. See T. 312-18.
The ALJ
properly took these inconsistencies between Plaintiff’s testimony and
his medical record into account in finding Plaintiff less than fully
credible.
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Finally, the ALJ noted that Plaintiff’s testimony was inconsistent
with his reported activities of daily living. “An ALJ is entitled to
take a plaintiff’s activities of daily living into account in making
a
credibility
determination.”
Pennock
v.
Comm’r
of
Soc.
Sec.,
7:14-CV-1524 (GTS/WBC), 2016 WL 1128126, at *5 (N.D.N.Y. Feb. 23,
2016), report and recommendation adopted, 2016 WL 1122065 (N.D.N.Y.
Mar. 22, 2016).
“The issue is not whether [Plaintiff's] limited
ability to undertake normal daily activities demonstrates [his] ability
to work. Rather, the issue is whether the ALJ properly discounted
[Plaintiff's] testimony regarding [his] symptoms to the extent that it
is inconsistent with other evidence.” Morris v. Comm'r of Soc. Sec.,
5:12–cv–1795 (MAD/CFH), 2014 WL 1451996, at *8 (N.D.N.Y. Apr. 14,
2014). Plaintiff reported in his Function Report that he occasionally
does some cooking and light housework. He also reported he walks in
stores while shopping with his wife and is able to drive, though his
wife usually drives. T. 177-83. It was proper for the ALJ to consider
these reported activities of daily living in assessing Plaintiff’s
credibility. See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(I).
For the foregoing reasons, the Court finds no error in the ALJ’s
assessment of Plaintiff’s credibility.
The Court accordingly finds
that remand is not warranted on this basis.
V.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on the
pleadings (Docket No. 7) is denied and the Commissioner’s motion for
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judgment on the pleadings (Docket No. 13) is granted.
complaint is dismissed in its entirety with prejudice.
Plaintiff’s
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:
May 25, 2018
Rochester, New York
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