Johnson v. Colvin
DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/18/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
No. 1:16-CV-00419 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Kelvin Johnson (“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
Commissioner of Social Security (“the Commissioner”) denying his
supplemental security income (“SSI”). 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.
The record reveals that in November 2012, plaintiff (d/o/b
May 20, 1962) applied for DIB and SSI, alleging disability as of
requested a hearing, which was held before administrative law judge
David Lewandowski (“the ALJ”) on June 11, 2014. The ALJ issued an
unfavorable decision on October 10, 2014. The Appeals Council
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Act through December 31, 2010. At step one of
§§ 404.1520, 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since May 30, 2008, the
amended alleged onset date. At step two, the ALJ found that
prostatectomy with resulting incontinence; right elbow cubital
tunnel syndrome status-post surgical release; post-traumatic stress
disorder; depressive disorder; anxiety disorder; and pain disorder.
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
residual functional capacity (“RFC”) to perform light work as
defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), “except that he
[could] frequently reach with his right upper extremity”; he
“require[d] up to two unscheduled bathroom breaks, each up to five
minutes in duration”; he could “understand, remember and carry out
“interact occasionally with his co-workers and supervisors, and
[could not] interact with the general public.” T. 36. At step four,
the ALJ found that plaintiff was unable to perform any past
plaintiff’s age, education, work experience, and RFC, jobs existed
in the national economy which plaintiff could perform.
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
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff’s sole contention is that the ALJ’s assessment of
plaintiff’s cubital tunnel syndrome, and finding that he could
frequently reach overhead with his right arm, was not based on
substantial evidence. Plaintiff argues that because the consulting
examining opinion of Dr. Hongbiao Liu, who examined plaintiff at
the request of the state agency, was issued on February 13, 2013,
but plaintiff did not develop cubital tunnel symptoms until later
in 2013, Dr. Liu’s opinion was stale by the time the ALJ rendered
his decision on October 10, 2014. Plaintiff contends that the ALJ’s
conclusion that plaintiff could frequently reach with his right
upper extremity was based impermissibly on the ALJ’s own lay
The record reveals that Dr. Hongbiao Liu opined that plaintiff
had “mild limitation for prolonged walking, bending, kneeling, and
overhead reaching.” T. 543. When Dr. Liu examined plaintiff, he
demonstrated full grip strength, with hand and finger dexterity
intact, and no abnormalities of the upper extremities. Plaintiff
later reported symptoms of cubital tunnel syndrome, for which he
underwent right elbow ulnar release surgery on February 12, 2014.
When plaintiff first reported symptoms related to cubital tunnel,
he stated that the “symptoms [had] been present for at least about
2 years.” T. 23. However, as the ALJ correctly noted, plaintiff had
not reported such symptoms to Dr. Liu in the course
examination. Following his surgery, plaintiff’s orthopedic surgeon
Dr. David Nichols noted that plaintiff’s “ulnar nerve was now free
to move anteriorly on the elbow flexion” and plaintiff “tolerated
the procedure well.” T. 595.
On February 26, 2014, plaintiff reported to Dr. Nichols that
“he [had] almost no numbness in his hand at [that] point and his
paresthesias [had] disappeared,” he “[felt] much better overall”
and was “working on flexibility exercises for the right elbow.”
T. 590. On March 21, 2014, plaintiff reported that he had pain in
his right elbow. On physical examination, plaintiff’s elbow was
well-healed but he reported tenderness and decreased sensation. On
April 18, 2014, however, plaintiff was “much improved over his last
visit.” T. 586. “His elbow pain [had] almost completely resolved”
extension[,] his numbness [was] also almost completely resolved.”
Id. Also on April 28, 2014, Dr. Nichols wrote a letter stating that
plaintiff “underwent surgery to decompress the ulnar nerve at the
elbow and [was] currently recovering and rehabilitating from his
surgery,” and that “his rehabilitation will take 2 or 3 months from
now.” T. 585.
The ALJ fully considered the evidence regarding plaintiff’s
cubital tunnel syndrome, including evidence that the condition
improved following surgery. Based on the medical record, the ALJ
reasonably concluded that “[t]he longitudinal record [was] at odds
with [plaintiff’s] allegations that he [could] only lift one pound
with the right arm.” T. 38. Although plaintiff was not officially
examination, he later stated that the symptoms had been present for
at least two years, and he reported symptoms of cubital tunnel in
a function report completed in connection with his applications.
manifested prior to his examination by Dr. Liu, but he was found at
that examination to have full grip strength and dexterity as noted
Moreover, plaintiff has not shown that his cubital tunnel syndrome
resulted in limitations that could be expected to last for at least
12 months. See 42 U.S.C. § 423(d)(1)(A). Instead, his medical
record indicates that his condition continued to improve following
surgery, and Dr. Nichols expected him to be rehabilitated within
two to three months of April 18, 2014.
Dr. Nichols’ April 18, 2014 letter and accompanying treatment
notes, as well as Dr. Liu’s consulting examination, thus provided
limitations stemming from cubital tunnel syndrome. See, e.g.,
Alvarez v. Colvin, 2016 WL 5791205, *9 (W.D.N.Y. Sept. 30, 2016)
(noting that ALJ properly considered statements of physicians
contained in treatment notes although they were not formal medical
opinions). “[I]t is the province of the ALJ to make the RFC
determination,” and the Court finds that substantial evidence
supports the RFC determination in this case. Roehm v. Comm’r of
Soc. Sec., 2011 WL 6318364, *6 (N.D.N.Y. Nov. 28, 2011), report and
recommendation adopted, 2011 WL 6326105 (N.D.N.Y. Dec. 16, 2011)
(citing 20 C.F.R. § 416.946(c) (at the hearing level, it is the
ALJ's responsibility to assess RFC); Aldrich v. Astrue, 2009 WL
3165726, *9 (N.D.N.Y. Sept. 28, 2009) (the determination of a
claimant’s RFC is based on all relevant medical evidence and is
reserved solely for the ALJ)).
For the foregoing reasons, and based upon substantial evidence
in the record, plaintiff’s motion for judgment on the pleadings
(Doc. 10) is denied and the Commissioner’s motion (Doc. 12) 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
May 18, 2017
Rochester, New York
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