Vesneske-Margage v. Carolyn W. Colvin

Filing 17

DECISION AND ORDER denying 12 Motion for Judgment on the Pleadings; granting 15 Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 09/18/2017. (CDH) -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LISA M. VESNESKE-MARGAGE,
Plaintiff,

1:16-cv-00500 (MAT)
DECISION AND
ORDER

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

I.

Introduction
Represented by counsel, Lisa M. Vesneske-Margage (“plaintiff”)

brings 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 her application for disability insurance benefits (“DIB”).
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.
II.

Procedural History
Plaintiff protectively filed an application for DIB on August

26, 2009, alleging disability due to right leg and back pain.
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.

Administrative

Transcript

(“T.”)

27-45,

74.

Plaintiff’s

application was denied, and she requested a hearing before an
administrative law judge (“ALJ”), which occurred on August 11,
2011, before ALJ Roxanne Fuller.

T. 46-74.

On August 24, 2011,

ALJ Fuller issued a decision in which she found plaintiff not
disabled as defined in the Act.

T. 11-21.

The Appeals Council

denied plaintiff’s request for review on March 15, 2013.

T. 1-3.

Plaintiff commenced an action in this Court seeking review of ALJ
Fuller’s decision, which was resolved when the parties stipulated
to remand the matter for further proceedings.

T. 609-10.

On remand, the Appeals Council likewise remanded the case to
an ALJ for a new hearing and decision. T. 611-16. A second hearing
was held before ALJ Timothy M. McGuan on November 13, 2014.
565-608.

ALJ McGuan issued a decision on February 23, 2015 in

which he found plaintiff not disabled as defined in the Act.
539-64.

T.

T.

The Appeals Council did not assume jurisdiction within 60

days, rendering ALJ McGuan’s decision the final determination of
the Commissioner.

Plaintiff subsequently commenced this action.

The Court assumes the parties’ familiarity with the extensive
factual and procedural background of this case, which will not be
repeated here. The Court also adopts and incorporates by reference
the

parties’

detailed

summaries

of

the

relevant

medical,

vocational, and other evidence. The Court will discuss the record
further below, as necessary to the resolution of the parties’
contentions.
2

III.

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

requirements of the Act through September 30, 2009.

T. 544.

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 from October 1, 2003, the alleged
onset date, through her date last insured of September 30, 2009.
T. 545.

At step two, the ALJ found that plaintiff had the severe

impairments of lumbar degenerative disc disease/facet arthropathy
with mechanical low back pain, complex regional pain syndrome
(“CRPS”)/regional

sympathetic

foot/ankle, and obesity.

Id.

dystrophy

(“RSD”)

of

the

right

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. 549-50.

Before proceeding to step four, the ALJ found that plaintiff
retained

the

residual

functional

capacity

(“RFC”)

to

perform

sedentary work as defined in 20 CFR 404.1567(a) with the following
additional limitations: cannot climb ladders, ropes, or scaffolding
and limited to occasional climbing of stairs, balancing, stooping,
kneeling, crouching, and crawling.

T. 550.

At step four, the ALJ

found that plaintiff was able to perform past relevant work as a
telephone solicitor.

T. 555.

At step five, the ALJ made the

alterative finding that, considering plaintiff’s age, education,
work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that plaintiff can perform.
3

T.

556.

Accordingly, the ALJ found that plaintiff was not disabled.

T. 557.
IV.

Scope of Review
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
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000). “The deferential standard
of

review

for

substantial

evidence

Commissioner’s conclusions of law.”

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
V.

Discussion
Here, plaintiff argues in her motion for judgment on the

pleadings that the ALJ’s decision was not supported by substantial
evidence because the ALJ did not properly apply the treating
physician rule in denying her DIB claim. For the reasons discussed
below, the Court finds this argument without merit and affirms the
ALJ decision.

4

A.

The ALJ Did Not Misapply 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 in such case the ALJ
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); see also 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 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) (internal quotation marks,
alterations,

and

citations

404.1527(c)(1)-(6).

omitted);

see

also

20

C.F.R.

§§

In this case, plaintiff alleges that the ALJ
5

failed to properly apply the treating physician rule to the
opinions of pain management specialist Jerry J. Tracy III, M.D.
(“Dr. Tracy”).
1.

The ALJ Properly Afforded No Weight to Dr. Tracy’s
Statements on the Ultimate Issue of Plaintiff’s
Ability to Work

Dr. Tracy treated plaintiff on April 11, 2007, and noted,
among other things, that plaintiff had undergone lumbar sympathetic
blocks which were effective in dealing with her foot and ankle pain
and symptoms.

T. 837-39.

He noted that plaintiff appeared to be

“healthy and well developed” with “no signs of acute distress,” but
she “walk[ed] with a slow gait.”

Dr. Tracy also stated that he did

“not see [plaintiff] having any gainful employment in the future.”
T. 837.

His observations about plaintiff’s employment prospects

are repeated, word for word, in his assessments of plaintiff on
June 13, 2007, and October 24, 2007.

T. 840-42, 846-48.

In his decision, the ALJ questioned whether “any gainful
employment” referred “to work in general or to claimant’s work as
a

nurse

alone,”

but

ultimately

concluded

that

Dr.

Tracy’s

assessment “was not clearly compatible with the findings here.” In
support of this finding, the ALJ referred to the more specific
work-related limitations set forth in Dr. Tracy’s June 30, 2009
assessment indicating that plaintiff should

avoid 1) “prolonged

standing, walking, bending, twisting, lifting, pulling, pushing,”
2) “excessive going up and down stairs or on inclines,” 3) crawling
positions, and 4) lifting more than 5-10 pounds.
6

T. 553.

Plaintiff contends that the ALJ’s assessment of Dr. Tracy’s
statement regarding “any gainful employment” “as possibly only
referring

to

[plaintiff’s]

work

as

a

nurse

is

clearly

not

sustainable.” Docket No. 12 at 7. However, the treating physician
rule requires only deference to the clinical findings and opinions
of Dr. Tracy, not his statements as to the ultimate conclusion
about

whether

employed.

plaintiff

was

disabled

or

could

be

gainfully

A statement or opinion that a claimant is totally or

partially “disabled” or is under a “disability”, even from an
acceptable medical source such as a treating physician, is not
entitled to any particular weight. See SSR 96-5p: Titles II and
XVI:

Medical

Source

Opinions

on

Issues

Reserved

Commissioner, 1996 WL 362206, 61 FR 34471-011996

to

the

(S.S.A. July 2,

1996). Pursuant to 20 C.F.R. § 404.1527(e) and § 416.927(e), “some
issues are not medical issues regarding the nature and severity of
an individual’s impairment(s) but are administrative findings that
are

dispositive

of

a

case;

i.e.,

that

would

direct

the

determination or decision of disability[.]” SSR 96-5p, 61 FR at
34472. Among these issues are whether an individual’s impairment(s)
meets or is equivalent in severity to the requirements of any
impairment(s) in the listings; whether an individual’s RFC prevents
him or her from doing past relevant work; and whether an individual
is “disabled” under the Act.

Id.

“[T]reating source opinions on

issues that are reserved to the Commissioner are never entitled to
controlling weight or special significance[,]” id., because to do
7

so would effectively “confer upon the treating source the authority
to make the determination or decision about whether an individual
is under a disability, and thus would be an abdication of the
Commissioner’s statutory responsibility to determine whether an
individual is disabled.”

Id.

Nevertheless, treating source

opinions on dispositive issues “must never be ignored” but “must
[be] evaluate[d]” along with “all the evidence in the case record
to determine the extent to which the opinion is supported by the
record.”

Id.

Dr. Tracy’s assertions that plaintiff was precluded

from all gainful employment thus were not entitled to deference by
the ALJ.

See, e.g., Cooke v. Colvin, No. 12-CV-1672 FB, 2013 WL

2444167, at *3 (E.D.N.Y. June 5, 2013) (“The ALJ properly noted
that the treating physician rule does not require deference to Dr.
Gordon’s ultimate conclusion that Cooke is disabled because the
ultimate finding of whether a claimant is disabled and cannot work
is an issue reserved to the Commissioner.” (internal quotation
marks and citation omitted)). Moreover, the ALJ did not ignore Dr.
Tracy’s statements; rather, he evaluated them and correctly found
them “incompatible” with Dr. Tracy’s opinion on June 30, 2009,
providing

specific,

work-related

limitations

for

plaintiff.

Plaintiff therefore has not shown that the ALJ erred in affording
no weight to Dr. Tracy’s statements on the ultimate issue of
plaintiff’s ability to work.

8

2.

The ALJ’s RFC Finding Adequately Incorporated the
Restrictions Identified by Tracy

Dr. Tracy treated plaintiff on June 30, 2009, and noted that
plaintiff had undergone facet injections in the past which helped
with her chronic low back pain. He also continued to treat her
right foot and ankle pain with lumbar sympathetic blocks.
28.

T. 426-

As noted above, Dr. Tracy observed that plaintiff appeared

“healthy and well developed” with “[n]o signs of acute distress
present,” but “walks with a slow gait.”
indicated

that

plaintiff’s

work

T. 426-27.

restrictions

Dr. Tracy also
were

to

avoid

“prolonged standing, walking, bending, twisting, lifting, pulling,
pushing or any excessive going up and down stairs or on inclines,”
and added that plaintiff would “not be able to have any crawling
positions, [and] her weight lifting would be nothing greater than
5-10 pounds on occasion.”

T. 426.

In assessing plaintiff’s RFC, the ALJ afforded partial weight
to treating physician Dr. Tracy’s opinion and found that plaintiff
could “perform sedentary work as defined in 20 CFR 404.1567(a),”
further

restricted

by

1)

not

climbing

ladders,

ropes,

or

scaffolding; 2) only “occasional climbing of stairs, balancing,
stooping, kneeling, crouching, and crawling”; 3) lifting no more
than 10 pounds; and 4) standing/walking for no more than 2 hours in
an 8 hour day.

T. 550.

The ALJ specifically noted that Dr. Tracy’s restrictions on
prolonged walking and standing were not incompatible with sedentary

9

work,

but

stated

that

Dr.

Tracy’s

restrictions

on

“lifting,

pushing/pulling, and some other activities are inconsistent” with
the ALJ’s RFC and “with the evidence as a whole.”

T. 553.

The ALJ

appeared to be confused and explained that these restrictions were
not consistent with, among other things, the 2004 independent
medical

examination

performed

by

Dr.

Walter

J.

Levy,

which

concluded plaintiff should be limited to lifting no more than 10
pounds, and the 2004 medical examination performed by neurologist
Dr. Gregory Castiglia providing a lifting restriction of 25 pounds.
T. 554.
Plaintiff argues that Dr. Tracy’s restrictions regarding
lifting, pushing, and pulling should have been given controlling
weight

based

upon

“his

long

treatment

of

consistent complaints of pain and cramping.”

Plaintiff

and

her

Docket No. 12 at 7.

Plaintiff’s argument is unpersuasive because, as set forth below,
the ALJ’s RFC finding adequately incorporated the restrictions
identified by Dr. Tracy.
The ALJ found that plaintiff could “perform sedentary work as
defined in 20 CFR 404.1567(a)” with the additional limitations set
forth above.

As defined in Section 404.1567(a), sedentary work:

involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job
is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other
sedentary criteria are met.

10

20 C.F.R. § 404.1567(a).
was

limited

inconsistent

to

Thus, Dr. Tracy’s opinion that plaintiff

lifting

with

5

to

10

sedentary

pounds

work,

as

on

occasion

set

is

forth

not

above.

Notwithstanding his statement to the contrary, the ALJ’s RFC
finding of sedentary work is consistent with the restrictions on
exertion set forth by Dr. Tracy on June 30, 2009.

The only

prolonged activity involved in sedentary work is sitting, and Dr.
Tracy did not restrict plaintiff’s sitting.

T. 426-28; see Shane

v. Chater, No. 96–CV–66 (RSP/ DRH), 1997 WL 426203, at *14 n.8
(N.D.N.Y. July 16, 1997) (citing Social Security Ruling 83-12
explaining

that

sedentary

work

requires

prolonged

sitting).

Moreover, sedentary work does not involve any prolonged walking,
standing, or lifting of more than ten pounds, which is well within
Dr. Tracy’s work-specific limitations. See Pastor v. Apfel, No. 97
CIV. 8355(DLC), 1998 WL 788784, at *2 (S.D.N.Y. Nov. 10, 1998)
(“The ALJ’s finding that the Plaintiff could perform sedentary work
took account of the treating physician’s finding that [Plaintiff]
had a marked disability for lifting and prolonged standing.”).
Plaintiff also contends that the ALJ should have credited Dr.
Tracy’s opinion that plaintiff must avoid prolonged pushing or
pulling.

T. 254.

While some pushing and pulling is involved in

light work, see 20 C.F.R. § 404.1567(b), these activities are not
required to perform sedentary work.

See 20 C.F.R. § 404.1567(a).

As Defendant argues, if pushing or pulling, much less prolonged
pushing

or

pulling,

were

required
11

for

sedentary

work,

these

activities would have been mentioned in the definition of sedentary
work.

Moreover, SSR 96-9p specifically notes that a limited or

restricted ability to push or pull would have little effect on
sedentary work.

See SSR 96-9p, 1996 WL 374185, at *6.

Therefore,

Dr. Tracy’s opinion that plaintiff must avoid prolonged pushing or
pulling does not implicate the ALJ’s sedentary RFC finding.
Finally, the Court recognizes that the ALJ erred to the extent
that he stated Dr. Tracy’s opinion was inconsistent with his RFC
finding; the ALJ appears to have misapprehended the level of
physical exertion required by sedentary work.

However, this error

was harmless and does not require remand, because applying an
appropriate definition of sedentary work would not change the
outcome.

See Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)

(concluding error harmless in context of denial of social security
benefits if “application of the correct legal principles to the
record could lead [only to the same] conclusion” (alteration in
original)).
In sum, and for the reasons set forth above, plaintiff has not
shown that the ALJ erred in affording only partial weight to Dr.
Tracy’s opinion on plaintiff’s restrictions.

The Court therefore

rejects plaintiff's argument that the ALJ violated the treating
physician rule.

12

B.

Plaintiff Has Not Shown That the ALJ Failed to Follow the
Remand Instructions Imposed by the Appeals Council

Defendant argues that, apart from reciting the contents of the
Appeals Council’s February 23, 2015 remand order, plaintiff has not
identified how the ALJ failed to follow its directives.

Defendant

notes that the Appeals Council’s order identified various medical
reports predating plaintiff’s date last insured (September 30,
2009), see T. 613-14.

The Appeals Council indicated that this was

new, material evidence that warranted further consideration by the
ALJ.

In particular, the Appeals Council identified additional

reports from Dr. Tracy, reports of neurological examinations by Dr.
Walter J. Levy from 2004, and reports by George C. Kalonaros, M.D.,
from 2005.

See T. 613-14.

The record clearly indicates that the

ALJ did evaluate the new evidence in question.

See T. 553-55

(ALJ’s discussion of evidence identified by the Appeals Council).
The

Appeals

Council

also

instructed

the

ALJ

to

obtain

vocational expert testimony if warranted, T. 615, and the ALJ
complied,

see

T.

599-606.

Vocational

expert

Carol

McManus

testified at the supplemental hearing, and the ALJ relied on her
testimony to identify alternative work existing in the national
economy that plaintiff could perform.

See T. 525, 556.

In short,

plaintiff simply has not shown that the ALJ failed to abide by his
regulatory duty to follow the Appeals Council’s instructions.

13

VI.

Conclusion
For the foregoing reasons, the Commissioner’s decision is

affirmed, plaintiff’s motion for judgment on the pleadings (Doc.
12) is denied, and the Commissioner’s motion (Doc. 15) is granted.
Accordingly, the 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 18, 2017
Rochester, New York.

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