Wilson v. Colvin
Filing
28
DECISION AND ORDER denying 14 Plaintiff's Motion for Judgment on the Pleadings; granting 22 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/19/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GRETCHEN ERAN WILSON,
Plaintiff,
No. 1:16-cv-00765-MAT
DECISION AND ORDER
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
I. Introduction
Gretchen Eran Wilson (“Plaintiff”), represented by counsel,
brings this action under Title II of the Social Security Act (“the
Act”), seeking review of the final decision of Nancy A. Berryhill,
Acting Commissioner of Social Security (“the Commissioner” or
“Defendant”),
denying her application for disability insurance
benefits (“DIB”). The Court has jurisdiction over the matter
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.
Procedural Status
Plaintiff protectively filed for DIB on October 29, 2013,
alleging disability based on clubbed feet issues, corrective right
foot surgery, arthritis in her feet, bulging discs in her back,
sciatic issues, gastric bypass, high blood pressure, right and left
hip and knee pain, and depression. Her application was denied
initially, and she requested a hearing. Administrative Law Judge
Michael W. Devlin (“the ALJ”) conducted hearings on January 7,
2016, and January 20, 2016, respectively, in Buffalo, New York.
One hearing was conducted to take Plaintiff’s testimony; the other
to take the testimony of a vocational expert (“the VE”). On
April 21, 2016, the ALJ issued an unfavorable decision. T.20-29.1
The Appeals Council denied Plaintiff’s request for review on
July 26, 2016, making the ALJ’s decision the final decision of the
Commissioner. This action followed.
Presently before the Court are the parties’ 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 decision is affirmed.
III. The ALJ’s Decision
At step one of the five-step sequential evaluation, the ALJ
that Plaintiff had not engaged in substantial gainful activity
between the time of her September 2013 alleged onset date and the
December 2014 expiration of her insured status. At step two, the
ALJ found that Plaintiff’s cervicalgia; clubbed feet; chronic
pulmonary embolism; history of deep vein thrombosis in the right
lower extremity; unspecified abdominal pain; chronic fatigue; and
lumbar
disc
disease,
status
post-surgery
in
July
2014,
with
radiculopathy, were “severe” impairments. At step three, the ALJ
found that Plaintiff did not have an impairment or combination of
impairments that meets or equals a listed impairment.
1
Citations
transcript.
to
“T.”
refer
to
pages
-2-
in
the
certified
administrative
Before proceeding to step four, the ALJ found that Plaintiff
had the residual functional capacity (“RFC”) to perform unskilled
sedentary work. Specifically, Plaintiff could frequently lift and
carry less than 10 pounds and occasionally lift, carry, push, and
pull 10 pounds; could sit about 6 hours and stand and walk about
2 hours in an 8-hour workday; could occasionally stoop, kneel,
crouch, crawl, and climb ramps and stairs; could never climb
ladders, ropes, or scaffolds; and could look up and down and turn
her
head
to
concentrated
each
side
exposure
frequently.
to
fumes,
She
also
odors,
needed
dust,
to
avoid
gases,
poor
ventilation, and other respiratory irritants; she could understand,
remember, and carry out simple instructions and tasks; and she was
able to consistently maintain concentration and focus for up to two
hours at a time.
At step four, the ALJ found that Plaintiff could not perform
her past relevant work as a claims clerk, hospital cleaner, or
receptionist. At step five, the ALJ relied on the VE’s testimony to
find that a person of Plaintiff’s age (36 years-old) and with her
education (high school diploma and some college), work experience,
and RFC, could perform other work existing in significant numbers
in the national economy as a callout operator, surveillance system
monitor, and charge account clerk. Accordingly, the ALJ found
Plaintiff not disabled.
-3-
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). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in
the
record.
Commissioner’s
See
42
findings
U.S.C.
“as
to
§
405(g)
any
fact,
(stating
if
that
supported
the
by
substantial evidence, shall be conclusive”). The reviewing court
nevertheless must scrutinize the whole record and examine evidence
that supports or detracts from both sides. Tejada v. Apfel, 167
F.3d 770, 774 (2d Cir. 1998) (citation omitted). “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
A.
Erroneous
Weighing
Specialist’s Opinion
of
Treating
Pain
Management
Plaintiff contends that the ALJ erred by affording significant
weight to the opinion issued by her treating pain management
specialist, Dr. Eugene Gosy, at her first appointment on November
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6, 2013. See Plaintiff’s Memorandum of Law (“Pl.’s Mem.”) (Docket
No. 14-1) at Point (“Pt.”) I(A), pp. 12-14. At that time, Dr. Gosy
ordered an MRI of Plaintiff’s cervical spine and stated, “I advised
her
10
that
she
pounds.”
precaution
needs
T.228.
to
to
avoid
Plaintiff
prevent
injury
lifting
argues
rather
anything
that
this
than
an
greater
was
than
merely
assessment
a
of
Plaintiff’s lifting abilities in a work setting. Plaintiff further
contends that this statement was stale, because during the 29-month
interim between that appointment and the ALJ’s decision, Plaintiff
underwent
extensive
treatment
including
least
12
visits
to
Dr. Gosy, four visits to Dr. Salcedo, major back surgery in July of
2014, multiple spinal MRIs that showed significant pathologies, and
multiple emergency room visits and surgery for chronic abdominal
pain.
Plaintiff contends that it was inappropriate for the ALJ
to make his determination about Plaintiff’s lifting capability
“based on a stale one-time examination that was over that was
29 months old.” Pl.’s Mem. at 13 (citing Griffith v. Astrue,
No. 08-CV-6004 CJS, 2009 WL 909630, at *9 n.9 (W.D.N.Y. Mar. 31,
2009) (finding that “the State Agency Officials’ reports, which are
conclusory, stale, and based on an incomplete medical record, are
not substantial evidence”); other citations omitted).
The Commissioner asserts that, despite Plaintiff’s abdominal
surgery, emergency room treatment, and spinal diagnostic imaging
subsequent to Dr. Gosy’s 10-pound lifting limitation, little, if
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anything, about her status changed. First, with regard to her
surgical procedure in September 2014, to repair a hernia and to
address an obstructed bowel, Plaintiff recovered well from the
procedure. Upon discharge from the hospital following the surgery,
she was told that she should not lift more than 15 pounds. T.502.
This lifting restriction is consistent with Dr. Gosy’s 10-pound
lifting limitation and, indeed, is less restrictive. An abdominal
CT
scan
on
December
8,
2014,
was
negative
for
any
abnormal
pathology; her abdomen showed no leak, obstruction, fistula, or
small bowel pathology, and appropriate changes given her previous
gastric bypass. T.334. Plaintiff also had no swelling or tenderness
in her lower extremities, her gait was within normal limits, and
she
appeared
calm,
comfortable,
and
in
no
acute
distress.
Plaintiff’s abdominal surgery thus did not render Dr. Gosy’s 10pound lifting limitation stale.
With regard to Plaintiff’s emergency treatment, in June 2014,
she presented at the hospital complaining of vomiting, pruritus,
and difficulty breathing after taking a dose of Bactrim, which she
had been prescribed for a urinary tract infection. T.531-35. While
Plaintiff did have a severe allergic reaction (anaphylaxis) to the
antibiotic, the condition was transient. Plaintiff recovered well
after undergoing conservative treatment (corticosteroids).
T.535.
Upon discharge, she was told that she could engage in physical
activity “[a]s tolerated” and had no limits placed on her ability
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to lift or perform other physical activities. T.530. Again, these
limitations are far less restrictive than Dr. Gosy’s 10-pound
lifting limitation. Plaintiff’s emergency treatment for anaphylaxis
likewise did not render Dr. Gosy’s 10-pound lifting limitation
stale.
With regard to the diagnostic imaging Plaintiff underwent
after Dr. Gosy gave his lifting limitation in November 2013, the
MRIs
and
the
CT
scan
of
her
spine
revealed
a
shallow
disc
herniation in her cervical region and some stenosis, narrowing,
degeneration, and a protrusion in her lumbar region. Nonetheless,
Plaintiff
continued
to
have
normal
strength
and
sensation.
Plaintiff reported that the Lidoderm patches and Flexeril “work[ed]
quite well” at relieving her pain and spasms. T.300. In addition,
Plaintiff went from having positive straight leg raise testing2 on
the left at the time of Dr. Gosy’s opinion to negative straight leg
raise testing on both sides of her body during the remainder of the
disability period. Compare T.227 with T.286, 289, 294, 298, 306.
Thus,
Plaintiff’s
spinal
diagnostic
imaging
conducted
after
Dr. Gosy’s opinion regarding Plaintiff’s ability to lift did not
cause it to become stale.
2
The “straight leg raising test,” or “Lasègue’s sign,” is a
clinical, neurodynamic test to demonstrate lumbosacral radicular irritation.
Lasègue’s sign is said to be positive if the angle to which the leg can be
raised (upon straight leg raising) before eliciting pain is less than 45°.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5483767/. The straight leg
raising test is considered to be an important physical sign of disc
herniation, regardless of the degree of disc injury.
https://www.physio-pedia.com/Straight_Leg_Raise_Test
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Finally, the Court notes that there is other evidence in the
record showing that Plaintiff can actually lift 10 pounds. For
instance, at the hearing, which was held more than a year after the
expiration of her insured status, Plaintiff stated that she could
lift up to 10 pounds and that she did grocery-shopping and cooking.
T.60, 65. She also reported that had worked as a receptionist for
a year after her back had “gone out.” T.38. Thus, notwithstanding
her back problems, Plaintiff was able to perform the exertional
requirements of sedentary work, which includes lifting up to
10 pounds.3 While the ALJ found Plaintiff could no longer perform
her past relevant work as a receptionist, that was due to the
presence of certain nonexertional limitations caused by Plaintiff’s
mental impairments; it was not due to any limitations from her
physical impairments.
B.
Plaintiff’s Second Argument: Failure to Obtain a Medical
Expert Opinion Regarding Plaintiff’s Ability to Sit,
Stand, and Walk
Plaintiff contends that the ALJ erred by failing to obtain a
medical expert opinion regarding Plaintiff’s ability to sit, stand,
and walk. See Pl.’s Mem. at Pt. I(B), pp. 14-15. Therefore,
Plaintiff argues, the RFC findings regarding these work-related
functions
improperly
were
based
solely
upon
the
ALJ’s
lay
3
As the ALJ’s decision indicates, Plaintiff’s receptionist job was
classified as “sedentary” work. “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.”
20 C.F.R. § 404.1567(a).
-8-
interpretation of the medical evidence and were unsupported by
substantial evidence. See id.
It is well settled that an ALJ has an obligation to develop
the administrative record, even when a claimant is represented by
counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); see also
see also 20 C.F.R. § 404.1512(e) (“When the evidence we receive
from your treating physician or psychologist or other medical
source is inadequate for us to determine whether you are disabled,
we will need additional information to reach a determination or a
decision”); id. § 404.1527(c)(3) (“If the evidence is consistent
but we do not have sufficient evidence to decide whether you are
disabled, or if after weighing the evidence we decide we cannot
reach a conclusion about whether you are disabled, we will try to
obtain additional evidence. . . .”). By the same token, “an ALJ
does
not
have
an
affirmative
duty
to
expand
the
record
ad
infinitum. Instead, he or she must only develop it when there are
gaps in the record, or when the record serves as an inadequate
basis
on
which
to
render
a
decision.”
Walker
v.
Astrue,
No. 11-CV-766S, 2012 WL 4473249, at *3 (W.D.N.Y. Sept. 26, 2012)
(citing Perez, 77 F.3d at 47).
Plaintiff argues that the absence of a medical expert opinion
on her ability to sit, stand, and walk created a gap requiring the
ALJ to develop the record further. At the time of the ALJ’s
decision on April 21, 2016, “the SSA’s regulations as to the need
-9-
for seeking a treating physician’s opinion contain directives that
may be seen as competing.” Pellam v. Astrue, 508 F. App’x 87, 90
(2d Cir. 2013) (summary order) (citing Tankisi v. Comm’r of Soc.
Sec., 521 F. App’x 29, 33 (2d Cir. 2013) (summary order)). On the
one hand, they provide, in language that “does not appear to be
conditional or hortatory,” Tankisi, 521 F. App’x at 33,
that the
Social Security Administration “will request a medical source
statement about what you can still do despite your impairment(s).”
Id. (quoting 20 C.F.R. §§ 404.1513(b)(6), 416.913(b)(6); emphasis
in Tankisi). This regulation “thus seems to impose on the ALJ a
duty to solicit such medical opinions.” Id. (quoting 20 C.F.R.
§§ 404.1513(b) (6), 416.913(b)(6)). However, the same subsection
ends by noting that “‘the lack of the medical source statement will
not
make
the
report
incomplete.’”
Id.
(quoting
20
C.F.R.
§§ 404.1513(b)(6), 416.913(b)(6)). Further, the regulation provides
that “‘[m]edical reports should include . . . [a] statement about
what you can still do despite your impairment,’ not that they must
include such statements.” Id. (quoting 20 C.F.R. §§ 404.1513(b)(6),
416.913(b)(6)) (emphases, ellipsis, and alteration in Tankisi). In
both Tankisi and Pellam, the Second Circuit found that it was not
per se error for the ALJ to make a disability determination without
having sought the opinion of the claimant’s treating physician.
Tankisi, 521 F. App’x at 33-34; Pellam, 508 F. App’x at 90. The
Second Circuit followed an “approach that focuses on circumstances
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of the particular case, the comprehensiveness of the administrative
record, and, at core, whether an ALJ could reach an informed
decision based on the record[.]” Sanchez v. Colvin, No. 13 CIV.
6303 PAE, 2015 WL 736102, at *5 (S.D.N.Y. Feb. 20, 2015) (citing
Tankisi, 521 F. App’x at 33-34).
Here, the Court finds that under the particular circumstances
presented in Plaintiff’s case, it was not necessary for the ALJ to
obtain an RFC statement from a medical source regarding Plaintiff’s
ability to sit, stand, and walk because substantial evidence in the
record demonstrated that Plaintiff could perform the sitting,
standing, and walking requirements of sedentary work. Of note is
Plaintiff’s testimony at the January 2016 hearing that she had
continued working for a year at a sedentary job (receptionist) even
after her back had “gone out,” and that it was the heavy lifting
required at her most recent job in a bakery that had caused her to
stop working. T.37, 50. Plaintiff also reported that her back
surgeries in 2008 and 2014 had helped her leg pain. See T.52 (the
2008 surgery relieved the pain in the front of her right leg),
T.253 (noting that following the 2014 surgery, she had “100%
improvement of the pain in the lateral aspect of her thigh,” but
the pain in the anterior portion of the calf remained the same).
Plaintiff’s negative straight leg raising tests were negative
bilaterally during nearly the entire relevant time period. T.286,
289, 298, 306. She reported to pain management specialist Dr. Gosy
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that the medications prescribed for her “work[ed] quite well” to
relieve her pain and spasms. T.300. She also admitted that her
clubbed feet and lumbar pain were impairments that predated the
alleged onset of disability. T.226, 294, 298. The Court finds that
the
record
for
the
16-month
disability
period
at
issue
was
comprehensive, internally consistent, and more than adequate for
the ALJ to reach an informed decision that Plaintiff had the RFC to
perform a range of sedentary work. The absence of a medical source
opinion did not create an obvious gap necessitating action on the
part of the ALJ. See Wilson, 136 F. Supp.3d at 479.
C.
Plaintiff’s Third Argument: Credibility
Unsupported by Substantial Evidence
Plaintiff
contends
that
the
ALJ
improperly
Assessment
ignored
her
subjective complaints in the RFC assessment, noting she testified
to pain and limitations which were in direct conflict with the RFC
findings of the ALJ. See Pl.’s Mem. at Pt. II, pp. 15-19.
Where, as here, “an individual’s statements about pain or
other symptoms are not substantiated by the objective medical
evidence, the adjudicator must consider all of the evidence in the
case record, including any statements by the individual and other
persons concerning the individual’s symptoms” and “must then make
a finding on the credibility of the individual’s statements about
symptoms and their functional effects.” SSR 96-7P, 1996 WL 374186,
at *4(S.S.A. July 2, 1996). As Plaintiff points out, the ALJ’s
“decision
must
contain
specific
-12-
reasons
for
the
finding
on
credibility, supported by the evidence in the case record, and must
be sufficiently specific to make clear to the individual and to any
subsequent
reviewers
the
weight
the
adjudicator
gave
to
the
individual’s statements and the reasons for that weight.” Id. at
*2.
The ALJ determined that the limitations alleged by Plaintiff
were “not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this decision.”
T.25.
Plaintiff
asserts
that
other
than
this
“recitation
of
boilerplate,” the ALJ’s decision “contains no cogent analysis” of
her credibility. Pl.’s Mem. at 17-18. In particular, Plaintiff
alleges that the ALJ erroneously ALJ failed to consider evidence
other than objective medical findings. Id. at 18. This is not
accurate, as the ALJ explicitly considered, and gave significant
weight to, the opinion of treating physician Dr. Gosy, who stated
in
November
2013,
that
Plaintiff
should
not
lift
more
than
10 pounds. This lifting restriction is consistent with the RFC for
a
range
of
sedentary
work.
Plaintiff
faults
the
ALJ
for
disregarding her testimony that can only sit a half-hour at a time,
stand a half-hour at one time, and walk a few blocks. T.59-60.
Notably, however, Dr. Gosy did not impose any other postural or
exertional restrictions on Plaintiff at any point during his
treatment of her. With regard to her ability to sit, Plaintiff
contradictorily testified that she spent most of her day in a
-13-
recliner. T.59, 63. With regard to Plaintiff’s testimony that she
can only lift between 5 and 10 pounds, that is not inconsistent
with an RFC for sedentary work, which does not require lifting
greater than 10 pounds. With regard to her ability to stand and
walk, Plaintiff testified that she performed a variety of daily
activities, including cooking, driving, and shopping for groceries,
and also reported that she was primarily responsible for the care
of her seven and eight-year-old children because her husband worked
long hours. T.62, 64, 65. Also, as noted above, Plaintiff worked at
a sedentary job even after her back had gone out. Thus, Plaintiff’s
own testimony about her daily activities undermines the credibility
of her assertions regarding her exertional abilities. See, e.g.,
Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (substantial
evidence
supported
ALJ’s
finding
that
claimant’s
subjective
complaints of pain were insufficient to establish disability where
claimant recovered well from his left ankle injury, his orthopedist
believed he could return to lighter work, claimant was able to care
for
his
one-year-old
child,
including
changing
diapers,
he
sometimes vacuumed and washed dishes, he occasionally drove, and he
watched television, read, and used the computer); see also SSR 967p,
1996
WL
374186,
at
*5
(“One
strong
indication
of
the
credibility of an individual’s statements is their consistency,
both internally and with other information in the case record.”).
-14-
Plaintiff also asserts that the ALJ erred in concluding that
her condition had improved with her microdiskectomy when it had
allegedly gotten worse.
Pl.’s Mem. at 18-19. However, there was
substantial evidence in the record to support the ALJ’s finding
that her back issues did not become disabling during the relevant
time period, which ended on December 31, 2014.
In particular,
Plaintiff continued to have normal exam findings after the surgery,
and Dr. Jody Leonardo indicated that Plaintiff had “100% resolution
in terms of her posterior left lateral thigh pain.” T.253. While
Plaintiff did have continued discomfort in her anterior thigh,
Dr. Leonardo recommended only conservative treatment—a course of
physical therapy, and Flexeril for spasms. T.253-54. At her last
physical
examination
during
the
relevant
time
period,
a
December 30, 2014, post-bariatic surgery follow-up, Plaintiff’s
mobility
and
gait
were
within
normal
limits,
she
appeared
comfortable, and she had no tenderness, swelling or deformity upon
review of her musculoskeletal system. T.336.
Here, the ALJ did not misapply the applicable regulations; nor
did he mischaracterize the record assessing Plaintiff’s subjective
complaints. Since “the credibility determination is supported by
substantial
evidence,
the
Court
may
not
disrupt
the
ALJ’s
findings.” Kessler v. Colvin, 48 F. Supp.3d 578, 595 (S.D.N.Y.
2014) (citing Bischof v. Apfel, 65 F. Supp.2d 140, 147 (E.D.N.Y.
1999)).
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VI.
Conclusion
For the foregoing reasons, the Commissioner’s decision is
affirmed. Plaintiff’s motion for judgment on the pleadings is
denied, and Defendant’s motion for judgment on the pleadings is
granted. The Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
__________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
December 19, 2018
Rochester, New York.
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