Turner v. Colvin

Filing 15

DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/27/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KAREN LEE TURNER,
1:16-cv-00405 (MAT)

Plaintiff,

DECISION AND
ORDER
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

I.

Introduction
Plaintiff Karen Lee Turner(“plaintiff”) brings this action

pursuant to Titles II and XVI 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 her applications for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”). Presently 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.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social
Security on January 23, 2017. The Clerk of the Court is instructed to amend the
caption of this case pursuant to Federal Rule of Civil Procedure 25(d) to reflect
the substitution of Acting Commissioner Berryhill as the defendant in this
matter.

II.

Procedural History
Plaintiff protectively filed applications for DIB and SSI on

December

6,

2012

and

June

6,

2013,

respectively,

alleging

disability due to vertigo, syncope, diabetes, and hypertension.
Administrative

Transcript

(“T.”)

117-23,

145.

Plaintiff’s

applications were initially denied, and she timely requested a
hearing before an administrative law judge (“ALJ”), which occurred
on October 21, 2014, before ALJ Grenville W. Harrop, Jr.
79-80.

T. 34-56,

On January 5, 2015, ALJ Harrop issued a decision in which

he found plaintiff not disabled as defined in the Act.

T. 14-31.

The Appeals Council denied plaintiff’s request for review on March
25, 2016, rendering the ALJ’s determination the Commissioner’s
final decision.

T. 1-4.

Plaintiff subsequently commenced the

instant action.
III.

The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status

requirements of the Act through December 31, 2017.

T. 19.

At

step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since February 1, 2012, the alleged
onset date.
severe

Id.

At step two, the ALJ found that plaintiff had the

impairments

of

diabetes,

history

of

syncope,

hypertension, hyperlipidemia, and left ear deafness.
2

vertigo,
Id.

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.

T. 21.

Before proceeding to step four, the ALJ

found that plaintiff retained the residual functional capacity
(“RFC”)
§§

to

perform

404.1567(a)

and

sedentary

work

416.967(a),

with

as

defined

the

in

following

20

C.F.R.

additional

limitations: hearing impaired in the left ear, but able to hear and
respond to conversation in normal volume; not able to climb ladders
or work with heights or heavy, sharp instruments or machinery;
occasionally able to lift ten pounds and frequently able to lift
five pounds; can sit for six hours and stand and walk for two hours
in an eight hour workday.

Id.

At step four, the ALJ found that

plaintiff was unable to perform any past relevant work.
step

five,

the

ALJ

found

that,

considering

T. 25.

plaintiff’s

At

age,

education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that plaintiff can
perform.

Id.

disabled.
IV.

Accordingly, the ALJ found that plaintiff was not

T. 26.

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).
3

“Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation
omitted).
Here, plaintiff makes the following arguments in favor of her
motion for judgment on the pleadings: 1) the ALJ violated the
treating physician rule by giving little weight to the opinion of
her primary care physician, Dr. Kent Tisher and 2) the ALJ failed
to properly evaluate plaintiff’s crediblity.

For the reasons

discussed below, the Court finds these arguments without merit.
A.

The ALJ did not Violate the Treating Physician Rule

The

treating

physician

rule

requires

an

ALJ

to

give

controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other

substantial

evidence

in

[the]

record.”

20

§ 404.1527(c)(2); see also Green-Younger, 335 F.3d at 106.

C.F.R.
An ALJ

may give less than controlling weight to a treating physician's
opinion

if

it

does

not

meet

this

standard,

but

must

“comprehensively set forth [his or her] reasons for the weight
assigned to a treating physician’s opinion.” Halloran v. Barnhart,
362 F.3d 28, 33 (2d Cir. 2004); 20 C.F.R. § 404.1527(c)(2) (“We
will always give good reasons in our notice of determination or
decision for the weight we give [the claimant's] treating source's
4

opinion.”).

The ALJ is required to consider “the length of the

treatment relationship and the frequency of examination; the nature
and extent of the treatment relationship; the relevant evidence,
particularly medical signs and laboratory findings, supporting the
opinion; the consistency of the opinion with the record as a whole;
and whether the physician is a specialist in the area covering the
particular medical issues” in determining how much weight to afford
a treating physician’s opinion. Burgess v. Astrue, 537 F.3d 117,
129 (2d Cir. 2008) (quotation marks, alterations, and citations
omitted); see also 20 C.F.R. §§ 404.1527(c)(1)-(6).
In this case, Dr. Tisher drafted a letter dated July 18, 2013,
in which he discussed plaintiff’s vertigo and associated syncope.
T. 280.

Dr. Tisher stated that plaintiff suffered from “episodic

vertigo with syncopal episodes for which there has been no cause or
trigger identified.”

Id.

Dr. Tisher opined that plaintiff was

unable to return to her prior work as a personal care aide because
of

the

potential

patients.

danger to

herself,

her

colleagues,

and

her

Id. Dr. Tisher further opined that plaintiff’s vertigo

and associated syncope would prevent her from “work[ing] in an
environment

that

requires

regular

attendance.”

Id.

decision, the ALJ gave Dr. Tisher’s opinion little weight.

In

his

T. 23.

The ALJ explained that the record showed that plaintiff had not had
any syncopal episodes in almost three years, and that there was no

5

evidence that she could not perform work-related tasks if she were
in a seated position.

Id.

Plaintiff argues that the ALJ failed to articulate “good
reasons” for discounting Dr. Tisher’s opinion regarding plaintiff’s
ability

to

regularly

attend

work.

The

Court

disagrees.

Dr. Tisher’s opinion, which was issued roughly 18 months prior to
the

ALJ’s

decision,

explicitly

states

that

the

limitations

identified therein are a result of “episodic vertigo with syncopal
episodes.”

T. 280 (emphasis added).

plaintiff’s

condition

had

improved

As the ALJ explained,
between

the

date

of

Dr. Tisher’s opinion and the date of the ALJ’s decision, inasmuch
as

plaintiff

episodes.

was

no

longer

actively

suffering

from

syncopal

An ALJ is permitted to afford little weight to the

opinion of a treating physician where the medical record shows
improvement in the claimant’s condition.

See, e.g., Viteritti v.

Colvin, 2016 WL 4385917, at *12 (E.D.N.Y. Aug. 17, 2016) (ALJ did
not err in affording little weight to treating physician opinion
where treatment records showed plaintiff’s mood had stabilized with
treatment); Clark v. Colvin, 2015 WL 1458628, at *14 (W.D.N.Y.
Mar. 30, 2015) (ALJ did not err in affording little weight to
treating physician opinion where plaintiff’s condition had improved
with treatment and medication).
Moreover, and as the ALJ properly noted, plaintiff testified
at the hearing that she was able to sit all day and that her dizzy

6

spells would last for only a minute or two.

T. 46, 50.

In fact,

plaintiff testified that when she was having a “bad day,” she dealt
with it by not “do[ing] as much” and “sit[ting] around . . . all
day.”

T. 52-53.

She further testified that on a “bad day” she

could stand for “an hour or two,” except that if she actively felt
dizzy, she would need to sit down.

T. 53-54.

In other words, even

by plaintiff’s own account, her “bad days” do not prevent her from
engaging in seated activities, contrary to Dr. Tisher’s opinion.
An ALJ does not violate the treating physician rule where he
“properly conclude[s] that some of the limitations assessed by [the
treating physician] were directly refuted by [the claimant’s] own
testimony concerning his physical capabilities.”

Clark, 2015 WL

1458628, at *14.
For the foregoing reasons, the Court finds that the ALJ did
not violate the treating physician rule in assigning little weight
to Dr. Tisher’s opinion. Accordingly, plaintiff has failed to
demonstrate that remand is required.
B.

The ALJ Properly Assessed Plaintiff’s Credibility

Plaintiff’s second and last argument is that the ALJ failed to
take the episodic nature of her condition into account in assessing
her credibility.

This argument is also without merit.

“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
7

supported by substantial evidence.”
3572427,
omitted).

at

*5

(W.D.N.Y.

July

21,

Hargrave v. Colvin, 2014 WL
2014)

(internal

quotation

In this case, the ALJ found plaintiff not “entirely

credible”, noting that: 1) almost all of her examination findings
were normal; 2) she reported being able to cook, clean, do laundry,
shop for groceries, go for walks, and sit all day; and 3) she had
failed to take medications as prescribed in the past, sometimes due
to insurance issues and sometimes due to non-compliance. T. 23-24.
Plaintiff argues that the ALJ’s credibility analysis was
flawed because he failed to account for her limitations while
suffering

from

an

episode

of

vertigo.

However,

plaintiff’s

argument misstates the record. Although plaintiff did testify that
on a “bad day,” she would try not to leave her house and would sit
and relax for most of the day, she also testified that she was able
to walk around the house and that she could stand for “an hour or
two.”

T. 23-24.

Plaintiff further stated that the “biggest

difference” between a good day and a bad day was that she was
“[n]ot . . . able to do as much as [she] want[s] to.”

T. 54.

In

other words, and contrary to plaintiff’s current argument, she did
not testify before the ALJ that she was incapacitated during an
episode of vertigo. It is well-established that a claimant’s daily
activities are an appropriate factor to consider in assessing
credibility.

See, e.g., Crowley v. Barnhart, 220 F. Supp. 2d 176,

180 (W.D.N.Y. 2002).

Here, plaintiff has not shown that the ALJ’s

8

consideration of her daily activities ignored the episodic nature
of her condition.
Moreover, the ALJ’s credibility finding did not rest solely on
plaintiff’s reported daily activities, but was also supported by
the medical evidence of record and plaintiff’s history of noncompliance

with

her

prescribed

treatment.

These

are

both

appropriate and relevant factors for the ALJ to have considered in
assessing plaintiff’s credibility.

See, e.g., Bailey v. Colvin,

2017 WL 149793, at *5 (W.D.N.Y. Jan. 14, 2017) (ALJ properly
considered the fact that “diagnostic testing had generally been
normal

or

negative”

in

assessing

plaintiff’s

credibility);

Nicholson v. Colvin, 2015 WL 1643272, at *7 (N.D.N.Y. Apr. 13,
2015) (“The ALJ properly considered Plaintiff’s failure to comply
with medication treatment as prescribed as a factor weighing
against her credibility, particularly because she had continued
counsel from her treatment providers to maintain the medication
regimen.”).
“Credibility

findings

of

an

ALJ

are

entitled

to

great

deference and therefore can be reversed only if they are patently
unreasonable.”

Andrisani

v.

Colvin,

2017

WL

2274239,

(W.D.N.Y. May 24, 2017) (internal quotation omitted).
case,

the

ALJ

adequately

explained

the

rationale

at

*3

In this
for

his

credibility determination, and the Court is able to conclude that
he viewed the entire evidentiary record in doing so.
remand is not warranted.
9

Accordingly,

V.

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

the pleadings (Docket No. 10) is denied and the Commissioner’s
motion (Docket No. 12) is granted.

Plaintiff’s complaint is

dismissed in its entirety with prejudice.

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:

September 27, 2017
Rochester, New York.

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