Fitzwater v. Colvin

Filing 21

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,
Plaintiff,

1:16-cv-00696 (MAT)
DECISION AND
ORDER

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

I.

Introduction
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

of

Social

Security1

(“defendant”

or

“the

Commissioner”) denying her application for disability insurance
benefits (“DIB”).

Presently before the Court are the parties’

competing

for

motions

judgment

on

the

pleadings

pursuant

Rule 12(c) of the Federal Rules of Civil Procedure.
reasons

set

forth

below,

plaintiff’s

motion

is

to

For the

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 filed an application for DIB in September 2011,

alleging

disability

due

to

back

disorder

(discogenic

&

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
judge (“ALJ”).

T. 121-22.

on January 28, 2013.

ALJ Donald T. McDougall held a hearing

T. 29-62.

On March 15, 2013, ALJ McDougall

issued a decision in which he found plaintiff was not disabled as
defined in the Act.

T. 92-109.

ALJ McDougall’s decision was

vacated and remanded by the Appeals Council on May 16, 2014.
110-14.
2014.

T.

ALJ McDougall then held a second hearing on November 10,
T. 63-84.

On January 28, 2015, ALJ McDougall issued a

second decision in which he found plaintiff was not disabled as
defined

in

the

Act.

T.

9-28.

The

Appeals

plaintiff’s request for review on June 27, 2016.
action followed.

Council
T. 1-6.

discuss

the

This

The Court assumes the parties’ familiarity with

the facts of this case, which will not be repeated here.
will

denied

record

further

below

as

The Court

necessary

to

the

resolution of the parties’ contentions.
III.

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

requirements of the Act through June 30, 2012.

T. 14.

At step one

of the five-step sequential evaluation, see 20 C.F.R. § 404.1520,
2

the ALJ found that plaintiff had not engaged in substantial gainful
activity since March 3, 2011, the alleged onset date.

Id.

At step

two, the ALJ found that plaintiff had the severe impairments of
posttraumatic disc disorders.

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.
15.

T.

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).

T. 15-21.

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.

Id.

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
perform.

T. 22-23.

not disabled.
IV.

Accordingly, the ALJ found that plaintiff was

T. 23.

Scope of Review
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
3

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).

Shaw v.

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

Discussion
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.
A.

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
disabled

was

evaluation.

appropriate

at

step

Docket 12 at 14-17.

three

of

the

sequential

Specifically, plaintiff contends
4

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
the

record

to

determine

substantial evidence.

if

the

rejection

was

supported

by

See Berry v. Schweiker, 675 F.2d 464, 469

(2d Cir.1982); see also Wood v. Colvin, 987 F.Supp.2d 180, 193-94
(“If

substantial

evidence

supported

the

hearing

officer’s

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
supported

by

substantial

evidence))).

“A

lack

of

supporting

evidence on a matter where the claimant bears the burden of proof,
particularly when coupled with other inconsistent record evidence,
can

constitute

substantial

evidence

supporting

a

denial

of

benefits.” Barry v. Colvin, 606 Fed.App’x 621, 622 (2d Cir. 2015).

5

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
record.

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.
21.

T.

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
without difficulty.
chair

without

Her squat was full and she could rise from a

difficulty.”

T.

18,

433-35.

Plaintiff

had

a

“slightly decreased range of motion in the cervical and lumbar

6

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
lower extremities.

T. 18, 433-35.

Hand and finger dexterity was

intact, and she had full grip strength.

T. 18, 433-35.

As such,

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.”
T. 421.
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
2014.

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
the

examination

table

without

assistance.

T.

20,

619-20.

Moreover, plaintiff’s hand and finger dexterity were intact, and
she had full grip strength bilaterally.

T. 20, 619-20.

Dr.

Siddiqui

cervical

was

also

noted

that

plaintiff’s

spine

unremarkable, and plaintiff had full range of motion in the upper
7

extremities and shoulders.

T. 20, 619-20.

The ALJ accorded these

findings significant weight as they were consistent with other
record

medical

plaintiff.

evidence

T. 21.

including

Dr.

Miller’s

assessment

of

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
the record.
B.

Plaintiff’s RFC
1.

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
thus

rendering

the

substantial evidence.
The

treating

ALJ’s

RFC

determination

unsupported

by

Id. at 22.

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.
8

C.F.R.

§

However,

an

ALJ

may

give

less

than

controlling

weight

to

a

treating

physician’s opinion if it does not meet this standard, so long as
the ALJ sets forth the reasons for the determination. See 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 opinion.”).
Here,

the

Strutsovskiy’s

ALJ

gave

opinion

good

reason

controlling

for

weight,

not

giving

because

inconsistent with substantial evidence in the record.

it

Dr.
was

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).

T. 19,

Moreover,

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
month.

As the ALJ observed, Dr. Strutsovskiy’s opinion concerning

plaintiff’s limitations because of her headaches were not supported
by

record

evidence

including

plaintiff’s

statements

to

her

chiropractor and physical evaluations of her limitations according
to Drs. Miller and Siddiqui.

T. 21, 381.
9

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.
accorded

significant

weight

to

T. 21, 435.

Dr.

The ALJ also

Siddiqui’s

report

which

explained that plaintiff had “mild limitations in pushing, pulling,
or

carrying

heavy

objects,”

sitting, or walking.

and

no

limitations

T. 21, 619-20.

in

standing,

These limitations are

consistent with the RFC assessed by the ALJ.

T. 15.

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
the record.

See Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d

Cir.

(“In

2012)

our

review,

we

defer

to

the

Commissioner’s

resolution of conflicting evidence.” (citation omitted)); Veino v.
Barnhart,

312

consultative

F.3d

578,

physician’s

588

(2d

report

Cir.
where

2002)
there

(ALJ
are

may

credit

“[g]enuine

conflicts in the medical evidence . . . for the Commissioner to
resolve.” (citation omitted)). It is clear from the ALJ’s decision
10

that he considered Dr. Strutsovskiy’s opinion and applied 20 C.F.R.
§ 404.1527.
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.
where

Dr.

However, on this extensive medical record and

Siddiqui

set

forth

plaintiff’s

limitations

in

his

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
Chiropractor’s Opinion
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
summary

opinions

that

plaintiff

based

on

plaintiff’s “subjective complaints of pain and limitations.”

T.

11

was

disabled

was

25-26.
The regulations permit consideration of opinions by other
treating

sources

“to

show

the

severity

of

[the

claimant’s]

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.”

20

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.”

Conlin ex

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.
T. 16-17.
finding

However, the ALJ correctly found that Dr. Acquisto’s

that

plaintiff

was

“totally

disabled”

was

based

on

plaintiff’s “subjective complaints of pain rather than objective
12

findings.”

T. 21.

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.
regarding

the

T. 21, 504. Therefore, the ALJ’s opinion

“little

weight”

to

be

given

to

plaintiff’s

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.

Docket

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.

The Commissioner

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:

13

[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
impairment.
T. 20-21.
Although plaintiff contends that substantial evidence would
support a conclusion that her conditions caused greater limitations
than

those

found

by

the

ALJ,

the

question

is

not

whether

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
409,

417

(2d

Cir.

2013)).

Here,

the

ALJ

properly

assessed

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
proper

legal

Furthermore,

standard
the

ALJ

in

assessing

correctly

plaintiff’s

weighed

the

credibility).

inconsistency

of

plaintiff’s testimony with the objective medical evidence regarding
her use of medication and illegal drugs.
14

As the ALJ observed,

plaintiff testified that she used oxycodone, but during her most
recent examination with Dr. Siddiqui, claimed she only used over
the

counter

medications.

T.

20-21,

35-36,

618.

Moreover,

plaintiff’s claim that she had ceased using marijuana in 2010 was
inconsistent with a urine toxicity screen showing she had used it
in 2011.

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
whether

subjective

complaints

of

pain

were

inconsistent

with

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
inconsistency
records—weighed
Campbell’s

between
against

subjective

Campbell’s
a

positive

assessment

testimony

and

credibility
of

the

his

medical

finding

intensity

as
of

to
his

symptoms.”).
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)).
15

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.
VI.

Conclusion
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
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:

October 13, 2017
Rochester, New York.

16