Glab v. Commissioner of Social Security
Filing
15
DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/16/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID W. GLAB,
Plaintiff,
-vs-
No. 1:16-CV-00914 (MAT)
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, plaintiff David W. Glab (“Plaintiff”)
brings this action pursuant to Title XVI of the Social Security Act
(the “Act”), seeking review of the final decision of defendant the
Acting Commissioner of Social Security (the “Commissioner” or
“Defendant”) denying his application for 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,
Plaintiff’s
motion
is
denied
and
the
Commissioner’s motion is granted.
II.
Procedural History
Plaintiff protectively filed an application for SSI on May 29,
2013, alleging disability as of May 1, 2013 due to hypertension,
cervical spine impairment, pseudocyst, and hernia. Administrative
Transcript (“T.”) 56-57.
denied.
Plaintiff’s application was initially
T. 70-73. At Plaintiff’s request, a hearing was held
before administrative law judge (“ALJ”) Donald T. McDougall on
January 26, 2015, at which Plaintiff appeared with an attorney.
T. 26-54.
decision.
denied
On April 1, 2015, the ALJ issued an unfavorable
T. 8-23. On September 15, 2016, the Appeals Council
Plaintiff’s
request
for
review,
making
determination the Commissioner’s final decision.
the
ALJ’s
T. 1-7.
This
action followed.
III. The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied
the
five-step
sequential
§§ 404.1520, 416.920.
evaluation
set
forth
in
20
C.F.R.
At step one of the five-step sequential
evaluation, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since May 29, 2013, the date of his
application.
T. 13.
At step two, the ALJ found that Plaintiff suffered from the
severe
impairments
cervical
stenosis,
of
chronic
and
the
pancreatitis,
non-severe
pseudocyst,
impairment
of
and
diabetes
mellitus. T. 13-14. The ALJ further found that Plaintiff did not
have a medically determinable mental health impairment.
T. 14.
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled
the
severity
of
any
listed
impairment.
Id.
The
ALJ
particularly considered Listing 1.04 (disorders of the spine) and
section 5.00 (medical listings for digestive disorders) in reaching
this conclusion.
T. 14-15.
2
Before proceeding to step four, the ALJ determined that
Plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 416.967(b), with the
following additional limitations: must be able to change positions
briefly (for one to two minutes) at least every half-hour; cannot
kneel, crawl, or climb ladders, ropes, or scaffolds; and cannot
perform more than occasional balancing, stooping, crouching, or
climbing stairs or ramps. T. 14.
At step four, the ALJ relied on the testimony of a vocational
expert (“VE”) to find that Plaintiff was capable of performing his
past
relevant
work
as
a
ceramics
machine
operator.
T.
19.
Accordingly, the ALJ did not proceed to step five, but found that
Plaintiff was not disabled as defined in the Act.
IV.
T. 19-20.
Discussion
A.
A
Scope of Review
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) (internal quotation
omitted).
Although the reviewing court must scrutinize the whole
3
record and examine evidence that supports or detracts from both
sides, Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted), “[i]f there is substantial evidence to support the
[Commissioner’s] determination, it must be upheld.” Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “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).
In this case, Plaintiff argues that the ALJ’s RFC finding was
not supported by substantial evidence.
Specifically, Plaintiff
contends that (1) the medical evidence of record does not support
the conclusion that Plaintiff can perform light work, (2) the ALJ
failed to properly assess the opinions of treating physician
Dr. Vladan Radovic and evaluating occupational therapist (“OT”)
Janice Moffett, and (3) the ALJ failed to appropriately consider
Plaintiff’s subjective symptoms and chronic pain.
The Court has
considered these arguments and, for the reasons set forth below,
finds them without merit.
B.
Capacity to Perform Light Work
Plaintiff argues that the medical evidence of record does not
support the conclusion that he is capable of light work.
In
particular, Plaintiff alleges that the ALJ failed to consider
Plaintiff’s limitations on a function-by-function basis and relied
4
on his own lay opinion in determining Plaintiff’s RFC. Plaintiff’s
argument is without merit.
As a threshold matter, Plaintiff has failed to demonstrate
that the ALJ failed to perform a function-by-function analysis in
this case.
The ALJ specifically considered Plaintiff’s abilities
to “sit, stand or walk continuously for extended periods,” to
“perform more than light level lifting or carrying,” and to “engage
in certain postural activities” in considering his RFC.
T. 15.
These are precisely the sorts of functions identified in Social
Security Ruling ("SSR") 96-8p and 20 C.F.R. §§ 404.1545(b) and (c)
as requiring consideration by an ALJ in his RFC assessment.
Moreover, even assuming arguendo that the ALJ had failed to
perform
a
harmless.
function-by-function
“Where an
claimant’s
ALJ's
functional
analysis,
analysis
limitations
at
and
any
Step
such
Four
error
was
regarding
a
affords
an
restrictions
adequate basis for meaningful judicial review, applies the proper
legal standards, and is supported by substantial evidence such that
additional analysis would be unnecessary or superfluous, . . .
remand
is
not
necessary
merely
because
function-by-function analysis was not performed.”
an
explicit
Cichocki v.
Astrue, 729 F.3d 172, 177 (2d Cir. 2013); see also Goodale v.
Astrue, 32 F. Supp. 3d 345, 357 (N.D.N.Y. 2012) (“[A]n ALJ’s
failure to provide a function-by-function analysis...constitute[s]
harmless error, provided that the absence of the analysis did not
frustrate meaningful review of the ALJ’s overall RFC assessment.”).
5
Here, the ALJ thoroughly considered and analyzed the medical
evidence of record and set forth in detail the basis for his RFC
finding.
In particular, the ALJ explained that the objective
medical evidence of record showed that Plaintiff had only minor
physical impairments.
For example, electrodiagnostic studies of
Plaintiff’s upper extremities conducted in April 2010 and May 2012
showed
only
mild
radiculopathy.
scans
sensory
neuropathy
and
T. 16 (referring to T. 213-20).
performed
in
June
2012
showed
no
evidence
of
Additionally, CT
evidence
of
chronic
pancreatitis and mild ileus, but the overall appearance of the
pancreas was stable.
T. 272.
The ALJ further noted that physical examinations of plaintiff
during the relevant time period were largely unremarkable. T. 16.
In 2012 and 2013, Plaintiff’s physicians noted that his gait and
station were normal, as were his deep tendon reflexes, and that he
was not in distress.
See, e.g., T. 228, 230, 233, 237, 240, 243.
At a visit in October 2012, Plaintiff reported that his pain relief
was adequate and that his prescribed medications provided him with
80% relief.
T. 236. Similarly, at appointments in November 2012
and June 2013, Plaintiff reported 70% pain relief. T. 226, 238.
The relative minor findings of Plaintiff’s physicians support the
ALJ’s conclusion that Plaintiff was capable of light work.
The ALJ also properly relied upon the opinion of consultative
physician Dr. Donna Miller, who examined Plaintiff on July 25,
2013.
T. 274-77.
On physical examination, Plaintiff was in no
6
acute distress, had a normal gait and stance, and was able to squat
fully.
T. 275.
He had a reduced range of motion in his cervical
and lumbar spine, but straight leg raising tests were negative
bilaterally.
shoulders,
T. 276.
elbow,
bilaterally,
and
Plaintiff had a full range of motion in his
forearms,
his
wrists,
joints
were
hips,
stable
knees,
and
and
ankles
non-tender.
Id.
Plaintiff had full strength in his upper and lower extremities and
no sensory deficits were noted.
Id.
Dr. Miller opined that
Plaintiff had mild limitations in repetitive pushing, pulling,
lifting,
and
temperatures.
carrying,
and
that
he
should
avoid
extreme
T. 277.
The ALJ afforded some weight to Dr. Miller’s opinion in
assessing Plaintiff’s RFC.
T. 16-17.
The ALJ explained that
Dr. Miller’s opinion was “fairly consistent with the overall
medical evidence of record, including the largely benign findings
of her own examination.”
T. 17.
However, the ALJ found that
Dr. Miller’s assessment did not account for Plaintiff’s need to
change
positions
activities.
periodically
and
avoid
certain
postural
Id.
Dr. Miller’s opinion provided substantial evidence for the
ALJ’s conclusion that Plaintiff was capable of performing light
work.
It is well-established that “the opinion of a consultative
examiner can constitute substantial evidence supporting an ALJ’s
decision.”
Suarez v. Colvin, 102 F. Supp. 3d 552, 577 (S.D.N.Y.
2015) (internal quotation omitted).
7
The fact that the ALJ’s RFC conclusion was more restrictive in
some aspects
than
Dr.
Miller’s
opinion
does not
change
this
conclusion, nor does it establish that the ALJ was relying on his
own lay opinion.
An ALJ assessing a disability claim is required
to “weigh all of the evidence available to make an RFC finding that
[is] consistent with the record as a whole.”
F. App’x 53, 56 (2d Cir. 2013).
Matta v. Astrue, 508
The ALJ’s RFC finding need not
“not perfectly correspond with any of the opinions of medical
sources.”
Id.; see also Rosa v. Callahan, 168 F.3d 72, 29 (2d Cir.
1999) (“the ALJ’s RFC finding need not track any one medical
opinion”);Breinin v. Colvin, No. 514CV01166LEKTWD, 2015 WL 7749318,
at *3 (N.D.N.Y. Oct. 15, 2015), report and recommendation adopted,
2015 WL 7738047 (N.D.N.Y. Dec. 1, 2015) (“It is the ALJ’s job to
determine
a
claimant’s
physician’s opinion.”).
RFC,
and
not
to
simply
agree
with
a
Where an ALJ makes an RFC assessment that
is more restrictive than the medical opinions of record, it is
generally
not
a
basis
for
remand.
See
Castle
v.
Colvin,
No. 1:15-CV-00113(MAT), 2017 WL 3939362, at *3 (W.D.N.Y. Sept. 8,
2017) (“the fact that the ALJ’s RFC assessment did not perfectly
match Dr. Balderman’s opinion, and was in fact more restrictive
than that opinion, is not grounds for remand”); Savage v. Comm’r of
Soc. Sec., No. 2:13-CV-85, 2014 WL 690250, at *7 (D. Vt. Feb. 24,
2014) (finding no harm to claimant where ALJ adopted an RFC
determination that was more restrictive than medical source’s
opinion).
8
The ALJ’s conclusion that Plaintiff was capable of performing
light work was fully consistent with the medical evidence of
record, including Dr. Miller’s opinion.
Accordingly, the Court
finds that the ALJ’s RFC assessment was supported by substantial
evidence.
C.
Consideration of Dr. Radovic’s Opinion
Plaintiff also contends that the ALJ improperly assessed the
opinion of Dr. Radovic, one of his treating physicians. Dr. Radovic
completed a questionnaire on January 13, 2015, in which he opined
that Plaintiff would have a number of severe limitations in his
ability to perform basic work-related functions, including an
inability to sit, stand, or walk for more than two hours in an
eight-hour day.
T. 341-42.
However, when asked to identify the
“medical findings [that] support the limitations,” Dr. Radovic
wrote
“no
medical
findings.”
T.
341.
Dr.
Radovic
further
indicated in this questionnaire that Plaintiff complained of neck
pain and lower back pain but had “no abnormalities on exam.”
T. 342.
In his decision, the ALJ gave Dr. Radovic’s opinion little
weight.
T. 18-19.
The ALJ noted that Dr. Radovic himself had
stated that his opinion was not based on any medical findings and
that there were no abnormalities on Plaintiff’s exam.
T. 19.
The
ALJ further explained that the severe restrictions identified by
Dr. Radovic were “not supported by the relatively modest objective
findings in the record.”
T. 18.
9
The
Court
finds
Dr. Radovic’s opinion.
no
error
in
the
ALJ’s
consideration
of
Under the regulations in place at the time
the ALJ issued his decision in this case, a treating physician’s
opinion was generally entitled to “controlling weight” if it was
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial
evidence
in
[the]
case
record.”
20
C.F.R.
§ 404.1527(c)(2); see also Green-Younger, 335 F.3d at 106. An ALJ
may give less than controlling weight to a treating physician's
opinion
if
it
does
not
meet
this
standard,
but
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.”).
In this case, Dr. Radovic acknowledged that his opinion was
not supported by medically acceptable evidence, stating that the
limitations
he
had
identified
were
supported
by
“no
medical
findings” and that Plaintiff had “no abnormalities on exam.”
T. 341-42.
Radovic’s
The ALJ was therefore not required to afford Dr.
opinion
controlling
weight.
Moreover,
an
ALJ
may
properly discount a treating physician’s opinion where it is “not
consistent with other substantial evidence in the record, such as
the opinions of other medical experts.” Halloran, 362 F.3d at 32.
In this case, as the ALJ noted, the severe limitations identified
10
by Dr. Radovic were inconsistent with the medical evidence of
record (including Dr. Miller’s examination and opinion) showing
relatively
minor
physical
abnormalities.
The
ALJ
therefore
appropriately afforded Dr. Radovic’s opinion little weight.
D.
Consideration
Assessment
of
Occupational
Therapist
Moffett’s
Plaintiff also contends that the ALJ failed to properly
consider an assessment of Plaintiff performed by OT Moffett.
This
contention is without merit.
OT Moffett evaluated Plaintiff on December 31, 2014, to
determine whether he would benefit from occupational therapy.
T.
343-44.
OT
Moffett
performed
a
physical
Plaintiff, and noted his complaints of pain.
examination
of
She ultimately
concluded that Plaintiff would “not benefit from a formal OT
program” because his “limitations are due to pain which will not
change with therapy.”
T. 343.
In his decision, the ALJ noted and discussed OT Moffett’s
evaluation of Plaintiff, but afforded it little weight.
T. 18.
The ALJ explained that OT Moffett had not provided a function-byfunction assessment of Plaintiff’s work-related abilities, but had
instead focused narrowly on the issue of whether occupational
therapy would be beneficial to Plaintiff.
Id.
The ALJ further
explained that OT Moffett’s report appeared to be based largely on
Plaintiff’s own subjective complaints of pain.
Id.
Occupational therapists are not considered “acceptable medical
sources” under the Commissioner’s regulations, but are instead
“other sources” whose opinions are evaluated using the factors set
11
forth in 20 C.F.R. § 416.927(c). “[T]he ALJ has full discretion to
determine the appropriate weight to accord the opinion of an ‘other
source’ based on all the evidence before him.”
Conlin ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 387
(W.D.N.Y. 2015). In this case, the ALJ appropriately exercised his
discretion in concluding that OT Moffett’s report was based largely
on Plaintiff’s subjective complaints of pain, which was wellsupported by the record.
Indeed, OT Moffett repeatedly noted
Plaintiff was unable to perform various tasks because he complained
of pain.
See T. 343.
An ALJ is not required to accept a medical
opinion that is nothing more than a provider’s “recording of [the
claimant’s] own reports of pain.” Polynice v. Colvin, 576 F. App’x
28, 31 (2d Cir. 2014).
Moreover, the ALJ correctly noted that OT
Moffett offered no opinion on Plaintiff’s current work capacity,
but instead focused on the question of whether he would benefit
from occupational therapy.
Under these circumstances, the Court
finds no error in the ALJ’s decision to afford OT Moffett’s opinion
little weight.
E.
Credibility Assessment
Finally, Plaintiff argues that the ALJ did not appropriately
consider his subjective complaints of pain, contending that there
was “no evidence contradicting the fact that Plaintiff experienced
his symptoms at the intensity and frequency that he reported.”
Docket No. 9-1 at 20.
The Court finds this argument without merit.
In assessing a claimant’s credibility, an ALJ is instructed to
consider whether his subjective claims of pain are “consistent with
12
the medical and other objective evidence.” Wells v. Colvin, 87 F.
Supp. 3d 421, 431 (W.D.N.Y. 2015). “The ALJ’s decision must contain
specific 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 [ALJ] gave to the individual’s statements and the
reasons for that weight.” Cichocki, 534 F. App’x at 76 (internal
quotation omitted).
An ALJ is entitled to deference when making
credibility findings and can only be reversed if those findings are
patently unreasonable.
Andrisani
v.
Colvin,
No.
1:16-CV-00196
(MAT), 2017 WL 2274239, at *3 (W.D.N.Y. May 24, 2017). “Because the
ALJ has the benefit of directly observing a claimant’s demeanor and
other indicia of credibility, his decision to discredit subjective
testimony is entitled to deference and may not be disturbed on
review if his disability determination is supported by substantial
evidence.”
3572427,
Hargrave
at
*5
v.
Colvin,
(W.D.N.Y.
July
No.
21,
13–CV–6308(MAT),
2014)
(internal
2014
WL
quotation
omitted).
In this case, the ALJ found that Plaintiff’s subjective
complaints were less than fully credible because (1) there were
inconsistencies between his testimony and his reports to his
physicians,
significantly
(2)
Plaintiff
pre-dating
had
his
a
sporadic
alleged
work
onset
history,
date,
and
(3) Plaintiff’s treatment had been conservative, with none of his
treating sources recommending surgery and no use of assistive
13
devices.
T. 19.
The ALJ’s analysis was appropriate and well-
supported by the record.
The ALJ correctly noted that Plaintiff’s hearing testimony was
inconsistent with his reports to his physicians.
As the ALJ
explained, Plaintiff testified that his medications made him sleepy
and groggy,
interfering
with
his
ability to
work.
However,
Plaintiff reported on multiple occasions to his physicians that he
had no side effects from his medications.
See, e.g., T. 298, 317,
329, 334. Inconsistencies between a claimant’s “reported symptoms”
and the medical evidence of records constitute substantial evidence
in support of an adverse credibility finding.
Rock v. Colvin, 628
F. App’x 1, 3 (2d Cir. 2015).
The ALJ also correctly noted that Plaintiff had a sporadic
work history starting in the early 1990s, well before he claimed to
have become disabled.
See T. 124. “[T]he ALJ was permitted to
consider Plaintiff’s sparse work record in assessing Plaintiff’s
credibility.” Camille v. Colvin, 104 F. Supp. 3d 329, 347 (W.D.N.Y.
2015), aff’d, 652 F. App'x 25 (2d Cir. 2016).
Finally, the ALJ did not err in noting that Plaintiff’s
treatment was conservative. The ALJ was correct that none of
Plaintiff’s physician’s recommended that he undergo surgery and
that he did not require any assistive devices.
See T. 19.
A
conservative pattern of treatment is an appropriate factor to
consider in assessing credibility. See, e.g., Rivera v. Colvin,
No. 1:14-CV-00816 MAT, 2015 WL 6142860, at *6 (W.D.N.Y. Oct. 19,
2015) (“[T]he ALJ was entitled to consider evidence that [the
14
claimant]
pursued
a
conservative
treatment
as
one
factor
in
determining credibility[.]”)(citation omitted); Amoroso v. Colvin,
No. 13-CV-5115 SJF, 2015 WL 5794226, at *10 (E.D.N.Y. Sept. 30,
2015) (ALJ “properly considered [claimant’s] daily activities ...
and her ‘conservative’ treatment ... which both suggest that she is
capable of performing sedentary work”).
In sum, the Court finds that the ALJ appropriately assessed
Plaintiff’s credibility and gave adequate reasons for finding
Plaintiff less than fully credible.
The Court therefore finds no
basis to disturb the Commissioner’s denial of Plaintiff’s claim.
V.
Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 9) is denied. The Commissioner’s motion
for judgment on the pleadings (Docket No. 10) 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
Dated:
July 16, 2018
Rochester, New York.
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?