Fitzwater v. Colvin
DECISION AND ORDER denying 12 Motion for Judgment on the Pleadings; granting 16 Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 10/13/2017. (CDH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ALEXANDREA LEA FITZWATER,
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Represented by counsel, Alexandrea Lea Fitzwater (“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”) denying her application for disability insurance
Presently before the Court are the parties’
Rule 12(c) of the Federal Rules of Civil Procedure.
defendant’s motion is granted.
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
Plaintiff filed an application for DIB in September 2011,
degenerative) and affective disorder, with an alleged onset date of
March 3, 2011.
Administrative Transcript (“T.”) 85, 222-28, 249.
Plaintiff’s application was denied on November 22, 2011, T. 115-20,
and she timely requested a hearing before an administrative law
on January 28, 2013.
ALJ Donald T. McDougall held a hearing
On March 15, 2013, ALJ McDougall
issued a decision in which he found plaintiff was not disabled as
defined in the Act.
ALJ McDougall’s decision was
vacated and remanded by the Appeals Council on May 16, 2014.
ALJ McDougall then held a second hearing on November 10,
On January 28, 2015, ALJ McDougall issued a
second decision in which he found plaintiff was not disabled as
plaintiff’s request for review on June 27, 2016.
The Court assumes the parties’ familiarity with
the facts of this case, which will not be repeated here.
resolution of the parties’ contentions.
The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through June 30, 2012.
At step one
of the five-step sequential evaluation, see 20 C.F.R. § 404.1520,
the ALJ found that plaintiff had not engaged in substantial gainful
activity since March 3, 2011, the alleged onset date.
two, the ALJ found that plaintiff had the severe impairments of
posttraumatic disc disorders.
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 found that plaintiff
retained the residual functional capacity (“RFC”) to perform light
work as defined in 20 CFR 404.1567(b).
The ALJ added
the following limitations: 1) plaintiff had to change positions for
one to two minutes at least every one-half hour; 2) plaintiff could
not do any overhead work; 3) plaintiff should never climb ladders,
ropes or scaffolds; 4) plaintiff could not work at heights or
around dangerous, moving machinery; 5) plaintiff should never kneel
or crawl; and 6) plaintiff can balance, stoop, crouch, and climb
stairs or ramps no more than occasionally.
At step four, the
ALJ found that plaintiff was unable to perform any past relevant
work. T. 22. At step five, the ALJ found, considering plaintiff’s
age, education, work experience, and RFC, that jobs exist in
significant numbers in the national economy that plaintiff can
Accordingly, the ALJ found that plaintiff was
Scope of Review
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.’”
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
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) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
Plaintiff makes the following arguments in support of her
motion for judgment on the pleadings: 1) the ALJ failed to properly
consider medical listing 1.04A at step three; 2) the ALJ failed to
give good reason to reject the opinion of plaintiff’s treating pain
specialist; 3) the ALJ failed to properly evaluate the other source
opinion of plaintiff’s chiropractor; and 4) the ALJ failed to make
a proper credibility assessment under SSR 96-7p.
For the reasons
discussed below, the Court finds these arguments without merit and
affirms the ALJ’s decision.
Finding as to Listing 1.04A
Plaintiff argues that her spinal impairments met or medically
equaled the criteria for Listing 1.04A, and therefore a finding of
Docket 12 at 14-17.
Specifically, plaintiff contends
that the ALJ erred by finding, without analysis, that the “record
does not demonstrate” the elements of 1.04A, and thereby failed to
consider strong medical evidence in the record of plaintiff’s
cervical spine injury.
Id. at 16 (citing T. 15).
If the claimed symptoms and medical evidence support the
criteria described by a listing, the ALJ must give an explanation
why a claimant does not meet or equal the listing.
Barnhart, 232 F.Supp.2d 44, 52 (W.D.N.Y. 2002).
See Kuleszo v.
If the ALJ does
not provide reasons for rejecting a listed impairment, the Court
can look to other parts of the decision and credible evidence in
See Berry v. Schweiker, 675 F.2d 464, 469
(2d Cir.1982); see also Wood v. Colvin, 987 F.Supp.2d 180, 193-94
conclusory finding, the Court could nevertheless overlook the
decision’s shortcomings and affirm the finding.” (citing Berry, 675
F.2d at 468 (affirming hearing officer’s step three determination
despite “absence of an express rationale” because finding was
evidence on a matter where the claimant bears the burden of proof,
particularly when coupled with other inconsistent record evidence,
benefits.” Barry v. Colvin, 606 Fed.App’x 621, 622 (2d Cir. 2015).
At step three, the ALJ found:
Although the impairments are severe for Step 2, said
impairments are not attended, singly or in combination,
with the specific clinical signs and diagnostic finding
required to meet or equal the requirements set for in the
Listing of impairments. The medical evidence does not
document listing-level severity, and no acceptable
medical source has mentioned findings equivalent in
severity to the criteria of any listed impairment,
individually or in combination. The undersigned has
considered the Listing of impairments and gave particular
attention to Listings: 1.04 (Disorders of the Spine).
The claimant’s degenerative disc disease does not meet
Listing 1.04 because the record does not demonstrate
compromise of a nerve root (including the cauda equina)
or the spinal cord with additional findings of: A)
evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive
straight-leg raising; or B) spinal arachnoiditis; or C)
lumbar spinal stenosis resulting in pseudoclaudication.
The ALJ based his finding upon substantial evidence within the
The ALJ gave significant weight to Donna Miller, a doctor
of osteopathic medicine, and Abrar Siddiqui, M.D., because their
opinions were supported by their objective clinical findings and
examinations, and consistent with the record medical evidence.
Specifically, Dr. Miller, a consultative examiner for the
State Agency, evaluated plaintiff in November 2011, and plaintiff
“had a normal gait and she was able to walk on heels and toes
Her squat was full and she could rise from a
“slightly decreased range of motion in the cervical and lumbar
spine,” straight leg raising was negative, and she “had full range
of motion of the shoulders.”
T. 18, 433-35.
Also, plaintiff had
no sensory deficits and she had full strength in the upper and
T. 18, 433-35.
Hand and finger dexterity was
intact, and she had full grip strength.
T. 18, 433-35.
plaintiff “had a mild limitation for repetitive heavy lifting,
carrying and bending.”
T. 18, 433-35.
The ALJ noted that Dr.
Miller’s findings were supported by David Engin, MD, who, in March
2011, found “[n]o evidence of disc herniations or bulges with no
evidence of central canal stenosis or neural foraminal narrowing at
the visualized intervertebral disc levels of the cervical spine.”
The ALJ also noted that plaintiff did not put forth any
evidence of treatment for the nearly sixteen months from October
2013 to the date of the ALJ’s decision.
As such, in order to
obtain current information on plaintiff’s condition, plaintiff was
seen by State Agency consultative examiner Dr. Siddiqui in August
T. 20, 619-20.
Dr. Siddiqui reported that plaintiff was
able to ambulate without any assistive devices, was able to walk on
heels and toes without difficulty, and was able to get on and off
Moreover, plaintiff’s hand and finger dexterity were intact, and
she had full grip strength bilaterally.
T. 20, 619-20.
unremarkable, and plaintiff had full range of motion in the upper
extremities and shoulders.
T. 20, 619-20.
The ALJ accorded these
findings significant weight as they were consistent with other
The Court finds that the ALJ properly gave
significant weight to Dr. Siddiqui’s findings.
The ALJ explicitly
credited and relied upon these consultative opinions supported by
other record medical evidence.
In sum, and for the reasons set forth above, the ALJ’s finding
as to Listing 1.04A is supported by substantial medical evidence in
Rejection of the Treating Physician Opinion
Plaintiff also argues that the ALJ failed to give good reasons
for giving “little weight” to the medical opinion of plaintiff’s
treating pain specialist, Dr. Mikhail Strutsovskiy.
Docket 12 at
17, 19-20. Furthermore, plaintiff adds, rejecting Dr. Strutsovskiy
medical opinion left the ALJ to interpret bare medical findings
Id. at 22.
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
404.1527(c)(2); see also Green-Younger, 335 F.3d at 106.
physician’s opinion if it does not meet this standard, so long as
the ALJ sets forth the reasons for the determination. See Halloran
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.”).
inconsistent with substantial evidence in the record.
As the ALJ
observed, Dr. Strutsovskiy’s opinion was inconsistent with, among
other things, plaintiff’s self-reported decrease in pain over two
years and twenty-five consultations between 2011 and 2013.
371 (August 2011), 588 (March 2012-February 2013).
during the two years, plaintiff’s limitation in cervical and lumbar
range of motion remained stable at 25% despite plaintiff’s claims
of increased pain. T. 19, 588. In addition, plaintiff claims that
the ALJ did not credit Dr. Strutsovskiy’s opinion that plaintiff
had headaches twice per week which served as the basis for his
conclusion that plaintiff would miss four to eight work days per
As the ALJ observed, Dr. Strutsovskiy’s opinion concerning
plaintiff’s limitations because of her headaches were not supported
chiropractor and physical evaluations of her limitations according
to Drs. Miller and Siddiqui.
T. 21, 381.
The ALJ gave significant
weight to Dr. Miller’s opinion, who found that plaintiff had only
a mild limitation for repetitive heavy lifting, bending, and
carrying, because it was based on objective clinical findings,
other objective medical evidence in the record and consistent with
Dr. Siddiqui’s narrative statement.
T. 21, 435.
The ALJ also
explained that plaintiff had “mild limitations in pushing, pulling,
sitting, or walking.
T. 21, 619-20.
These limitations are
consistent with the RFC assessed by the ALJ.
Although the ALJ is required to consider several factors when
weighing a treating source opinion, “slavish recitation of each and
every factor [is not required] where the ALJ’s reasoning and
adherence to the regulation are clear.”
Fed.Appx. 67, 70 (2d Cir. 2013).
Atwater v. Astrue, 512
Therefore, this Court defers to
the Commissioner’s resolution of conflicting evidence and decision
to credit the consultative physicians’ reports over plaintiff’s
treating physician as they are supported by substantial evidence in
See Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d
resolution of conflicting evidence.” (citation omitted)); Veino v.
conflicts in the medical evidence . . . for the Commissioner to
resolve.” (citation omitted)). It is clear from the ALJ’s decision
that he considered Dr. Strutsovskiy’s opinion and applied 20 C.F.R.
Plaintiff also contends that the ALJ should have recontacted
Dr. Siddiqui to address any discrepancy between 1) his narrative of
his examination of plaintiff and 2) his medical source statement.
Docket 12 at 22.
However, on this extensive medical record and
narrative, the ALJ was entitled to resolve conflicts in the medical
evidence based on his consideration of the substantial evidence in
the record which supported his decision.
Moreover, the Court
cannot conclude that the ALJ was interpreting bare medical findings
since the ALJ clearly credited limitations or portions thereof on
plaintiff’s exertional abilities set forth in the record by Drs.
Miller and Siddiqui.
T. 435, 619-20.
Thus plaintiff’s contention that the ALJ violated the treating
physician rule by affording little weight to Dr. Strutsovskiy’s
opinion is without merit.
2. ALJ’s Failure to Give Proper Weight to Treating
Plaintiff also argues that the ALJ erred in failing to give
proper weight to the opinion of plaintiff’s treating chiropractor,
Dr. Acquisto, under SSR 06-03P. Docket 12 at 24. The Commissioner
contends that the ALJ properly concluded that Dr. Acquisto’s
plaintiff’s “subjective complaints of pain and limitations.”
The regulations permit consideration of opinions by other
impairment(s) and how it affects [the claimant’s] ability to work.”
20 C.F.R. § 404.1513(d).
For purposes of the Act, “other sources”
do not include chiropractors as “acceptable medical sources.”
C.F.R. § 404.1513(a). Although the ALJ is “free to decide that the
opinions of ‘other sources’ . . . are entitled to no weight or
little weight, those decisions should be explained” and based on
all the evidence before the ALJ.
Oaks v. Colvin, 2014 WL 5782486,
at *8 (W.D.N.Y. Nov.6, 2014); see Diaz v. Shalala, 59 F.3d 307, 314
(2d Cir. 1995).
Even as to recognized medical sources, “[t]he
amount of weight to give such opinions is based in part on the
examining and treatment relationship, length and frequency of the
examinations, the extent of relevant evidence given to support the
opinion, and consistency with the record as a whole.”
rel. N.T.C.B. v. Colvin, 2015 WL 3961167, at *8 (W.D.N.Y. June 29,
2015) (citation omitted).
Here, the ALJ properly explained his reason for according
little weight to the opinion of plaintiff’s chiropractor, Dr.
Acquisto, by relying upon the record evidence.
The ALJ recognized
the length of time that Dr. Acquisto had been treating plaintiff.
However, the ALJ correctly found that Dr. Acquisto’s
plaintiff’s “subjective complaints of pain rather than objective
The ALJ explained this finding by referring to
Dr. Acquisto’s x-ray of plaintiff’s cervical spine which offered no
evidence of disc herniations, bulges, fractures, or dislocations.
T. 21, 421. In addition, Dr. Acquisto’s findings as to plaintiff’s
physical limitations were inconsistent in that he said she could
never sit, stand, or walk in an eight-hour work day, yet otherwise
stated she could sit and stand for a half hour each, and walk less
than half a mile.
T. 21, 504. Therefore, the ALJ’s opinion
chiropractor is clearly supported in the record and consistent with
the controlling regulation.
3. Credibility Determination
Plaintiff also argues that the ALJ failed to properly assess
her credibility under SSR 96-7P and 20 C.F.R. § 404.1529.
12 at 27.
Specifically, plaintiff contends that the ALJ’s reasons
for finding her not credible – use of cocaine and marijuana, poor
work record, and inconsistent statements about her medications – do
not stand up to scrutiny.
Docket 12 at 28-29.
contends that the ALJ was at liberty to rely upon each observation
which were supported by substantial evidence in the record. Docket
16 at 28-30.
Relying upon evidence in the record, the ALJ found that
plaintiff’s statements as to the extent of her limitations were
“not entirely credible” because:
[Plaintiff] has a poor work record (Exhibit 3D) and is
not suggestive of an individual well motivated to engage
in work activity to the best of her ability. In addition,
the claimant’s testimony is inconsistent with the
treatment record. During the most recent consultative
examination, she reported that she was only using
over-the-counter medications (Exhibit 20F, p. 1),
however, at the hearing, she reported that she was taking
oxycodone and Xanax. The claimant is not credible and
the record shows that she tested positive on two
occasions for cocaine, not to mention marijuana. She had
been taken off narcotic pain medications by her pain
management doctor, who actually suggested she undergo
treatment for addiction. In addition, objective findings
in the record are minimal and only suggest a mild
Although plaintiff contends that substantial evidence would
support a conclusion that her conditions caused greater limitations
substantial evidence supports plaintiff’s position, but whether it
supports the ALJ’s decision.
See Bonet ex rel. T.B. v. Colvin, 523
Fed.Appx. 58, 59 (2d Cir. 2013) (citing Selian v. Astrue, 708 F.3d
plaintiff’s credibility, citing relevant authorities and applying
them to the record evidence.
T. 15, 20-21; see Britt v. Astrue,
486 Fed.Appx. 161, 164 (2d Cir. 2012) (finding explicit mention of
20 C.F.R. § 404.1529 and SSR 96–7p as evidence that the ALJ used
plaintiff’s testimony with the objective medical evidence regarding
her use of medication and illegal drugs.
As the ALJ observed,
plaintiff testified that she used oxycodone, but during her most
recent examination with Dr. Siddiqui, claimed she only used over
plaintiff’s claim that she had ceased using marijuana in 2010 was
inconsistent with a urine toxicity screen showing she had used it
T. 18, 369, 433; see, e.g., Gehm v. Astrue, 2013 WL
25976, at *5 n.6 (N.D.N.Y. Jan. 2, 2013) (noting that “[a]t the
second step of the credibility analysis it [is] proper to consider
objective evidence in the record.”) (citing Meadors v. Astrue, 370
F. App’x 179, 184 (2d Cir. 2010)); Campbell v. Astrue, 465 F. App’x
4, 7 (2d Cir. 2012) (“Here, other factors—in particular, the
The ALJ also noted that plaintiff had a poor work record,
which was supported by substantial evidence. T. 20-21, 238-44; see
Lussier v. Colvin, 2014 WL 3928456, at *9 (W.D.N.Y. Aug. 12, 2014)
(citing Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998)).
The ALJ’s credibility findings are entitled to great deference
unless patently unreasonable.
See Andrisani v. Colvin, 2017 WL
2274239, at *3 (W.D.N.Y. May 24, 2017) (“Credibility findings of an
ALJ are entitled to great deference and therefore can be reversed
only if they are ‘patently unreasonable.’” (citation omitted)).
Here, substantial evidence supports the ALJ’s credibility finding
and therefore plaintiff’s argument that the ALJ improperly assessed
plaintiff’s credibility is without merit.
For the foregoing reasons, the Commissioner’s decision is
affirmed, plaintiff’s motion for judgment on the pleadings (Docket
12) is denied, and the Commissioner’s motion (Docket 16) is
Accordingly, the complaint is dismissed in its entirety
The Clerk of the Court is directed to close this
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
October 13, 2017
Rochester, New York.
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