Outman v. Colvin
Filing
18
DECISION AND ORDER denying 12 Plaintiff"s Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/2/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NANCY OUTMAN,
Plaintiff,
-vs-
No. 1:16-CV-00988 (MAT)
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, plaintiff Nancy Outman (“Plaintiff”)
brings this action pursuant to Titles II and XVI of the Social
Security Act (the “Act”), seeking review of the final decision of
defendant
the
“Commissioner”
Acting
or
Commissioner
“Defendant”)
of
denying
Social
her
Security
(the
applications
for
disability insurance benefits (“DIB”) and 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 applications for DIB and SSI on
May 10, 2013, alleging disability as of August 26, 2007 due to leg
pain and chronic back pain.
Administrative Transcript (“T.”) 70-
71, 75-76. Plaintiff’s applications were initially denied.
T. 88-
99.
At
Plaintiff’s
request,
a
hearing
was
held
before
administrative law judge (“ALJ”) Donald T. McDougall on January 12,
2015, at which Plaintiff appeared with her attorney.
T. 36-66.
June 3, 2015, the ALJ issued an unfavorable decision.
On
T. 17-32. On
September 28, 2016, the Appeals Council denied Plaintiff’s request
for review, making the ALJ’s determination the Commissioner’s final
decision.
T. 1-6.
This action followed.
III. The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied
the
five-step
sequential
evaluation
set
forth
in
20
C.F.R.
§§ 404.1520, 416.920. Initially, the ALJ determined that Plaintiff
met the insured status requirements of the Act through September
30,
2012.
T.
22.
At
step
one
of
the
five-step
sequential
evaluation, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since August 26, 2007, the alleged
onset date.
Id.
At step two, the ALJ found that Plaintiff suffered from the
severe
impairments
of
obesity,
venous
insufficiency,
degenerative disc disease of the thoracolumbar spine. Id.
and
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. T. 23. The ALJ particularly
considered Listings 1.04 (disorders of the spine) and 4.11 (chronic
venous insufficiency] in reaching this conclusion.
2
Id.
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. §§ 404.1567(b) and
416.967(b), with the following additional limitations: must be
permitted to change position briefly, for a minute or two, at least
every half hour; should not climb ladders, ropes, or scaffolds; can
occasionally climb stairs or ramps; should not kneel, crawl, work
from heights, or work around dangerous or moving machinery; and can
occasionally balance, stoop, or crouch.
Id.
At step four, the ALJ found that Plaintiff was unable to
perform any past relevant work.
T. 26.
At step five, the ALJ
relied on the testimony of a vocational expert (“VE”) to conclude
that, considering Plaintiff's age, education, work experience, and
RFC, there were jobs that exist in significant numbers in the
national
economy
that
Plaintiff
could
perform,
including
the
representative occupations of plastic molding machine operator,
small products assembler, ticket seller, and telemarketer.
27.
T. 26-
Accordingly, the ALJ found that Plaintiff was not disabled as
defined in the Act. T. 27-28.
IV.
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
3
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
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).
Here, Plaintiff argues that (1) the ALJ failed to properly
develop the record and (2) the ALJ failed to properly consider and
weigh consultative examiner Dr. Donna Miller’s opinion.
For the
reasons set forth below, the Court finds these arguments to be
without merit.
B.
Failure to Develop the Record
Plaintiff’s first argument is that the ALJ failed to properly
develop
the
record
in
this
matter.
In
particular,
Plaintiff
contends that the ALJ abused his discretion by denying her request
4
to subpoena treatment records from the Olean Family Health Center
(“OFHC”).
The Court disagrees.
“Because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record.”
Perez v. Chater, 77 F.3d 41,
47 (2d Cir. 1996) (internal citation omitted).
from
the
Commissioner’s
regulatory
“This duty arises
obligations
to
develop
a
complete medical record before making a disability determination,”
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996), and requires the
ALJ to take affirmative steps “where there are deficiencies in the
record,”
Rosa
v.
Callahan,
168
F.3d
72,
79
(2d
Cir.
1999).
However, “where there are no obvious gaps in the administrative
record, and where the ALJ already possesses a complete medical
history,
the
ALJ
is
under
no
obligation
to
seek
additional
information in advance of rejecting a benefits claim.” Lowry v.
Astrue, 474 F. App’x 801, 804 (2d Cir. 2012) (quotations and
citations
omitted).
The
ultimate
question
is
whether
the
administrative record is “robust enough to enable a meaningful
assessment of the particular conditions on which the petitioner
claims disability.” Sanchez v. Colvin, No. 13 Civ. 6303(PAE), 2015
WL 736102, at *7 (S.D.N.Y. Feb. 20, 2015).
With
respect
to
the
particular
issue
of
subpoenas,
the
Commissioner’s regulations provide that “[w]hen it is reasonably
necessary for the full presentation of a case, an administrative
law judge . . . may, on his or her own initiative or at the request
5
of a party, issue subpoenas . . . for the production of books,
records,
correspondence,
papers,
or
other
documents
that
are
material to an issue at the hearing.” 20 C.F.R. § 404.950(d)(1).
The Second Circuit has explained that “[t]he plain language of this
section clearly places the decision to issue a subpoena within the
sound discretion of the ALJ.” Yancey v. Apfel, 145 F.3d 106, 111
(2d Cir. 1998).
However, the ALJ’s discretion is not unlimited,
and
ignore
“he
cannot
essential
available
medical
evidence.”
Villarreal v. Colvin, No. 13 CIV. 6253 LGS, 2015 WL 6759503, at *20
(S.D.N.Y. Nov. 5, 2015); see also McClinton v. Colvin, No. 13CV8904
CM MHD, 2015 WL 5157029, at *24 (S.D.N.Y. Sept. 2, 2015).
failure
to
subpoena
medical
records
which
were
“[A]
‘reasonably
necessary’ is harmful error.” Kumar v. Berryhill, No. 3:16-CV-01196
(VLB), 2017 WL 4273093, at *5 (D. Conn. Sept. 26, 2017).
In this case, Plaintiff reported having been seen by Dr. Zia
M. Sheikh at OFHC for treatment regarding her leg pain and chronic
back pain between 2012 and January 2013.
T. 181.
At the January
12, 2015 hearing, Plaintiff’s counsel informed the ALJ that records
from OFHC had not been provided.
T. 38-39.
The ALJ indicated that
he would hold the record open for an additional 21 days to allow
Plaintiff’s counsel to obtain this information.
T. 39.
On February 13, 2015, Plaintiff’s counsel sent a letter to the
ALJ noting that she had been unable to obtain records from OFHC and
requesting that the ALJ issue a subpoena to secure the records.
T.
222.
On February 21, 2015, the ALJ sent a request for records
6
to OFHC.
2015.
T. 223.
T. 227.
The ALJ sent a follow-up request on March 19,
OFHC did not respond to either of these requests.
Plaintiff’s counsel sent another letter to the ALJ on May 14,
2015, again requesting that OFHC’s records be subpoenaed.
T. 229.
On June 2, 2015, the ALJ sent a letter to Plaintiff’s counsel
indicating that he had received the request to issue a subpoena to
OFHC and that the request was denied.
T. 141.
One day later, the
ALJ issued his decision, in which he explained that the subpoena
request had been denied because “two prior requests have been made
to [OFHC], without any success.”
T. 26.
The ALJ’s decision not to subpoena records from OFHC was not
an abuse of discretion, because those records were not “reasonably
necessary” to a determination of Plaintiff’s claim. As a threshold
matter, the Court notes that an ALJ is required only to make “every
reasonable
effort”
to
obtain
medical
records,
20
C.F.R.
§ 404.1512(b) (emphasis added), and that “whether to use a subpoena
instead of a request is a matter of [the ALJ’s] discretion,”
Gonell De Abreu v. Colvin, No. 16-CV-4892 (BMC), 2017 WL 1843103,
at *5 (E.D.N.Y. May 5, 2017). The record reveals that, the ALJ
issued two requests to OFHC for the records in question, which the
Court finds constitutes a reasonable effort to obtain them.
See
Daniels v. Colvin, No. 14-CV-02354 SN, 2015 WL 1000112, at *13
(S.D.N.Y. Mar. 5, 2015) ( “A ‘reasonable effort’ means that the ALJ
will make an initial request for evidence from the claimant’s
medical source
and
make
one
follow up
7
request
between 10–20
calendar
days
after
the
initial
one.”)
(internal
quotation
omitted).
Moreover, an ALJ is not required to subpoena additional
medical records
where
a claimant
opportunity to present her case,”
had “a
fair
and
meaningful
Henny v. Comm'r of Soc. Sec.,
No. 15-CV-0629 (RA), 2017 WL 1040486, at *14 (S.D.N.Y. Mar. 15,
2017), and the record was sufficient to permit the ALJ to make a
well-supported decision. In this case, the medical record contains
substantial evidence to support the ALJ’s conclusion that Plaintiff
was not disabled. The ALJ considered medical evidence from 2007,
the year that Plaintiff alleged her disability began.
As the ALJ
explained, an MRI of Plaintiff’s lumbar spine performed on May 1,
2007 revealed no evidence of disc bulge or herniation and no
evidence of stenosis. T. 252. Plaintiff thereafter began physical
therapy on May 17, 2007, but made only minimal progress due to her
inconsistent attendance.
T. 261.
Plaintiff was a no-show for her
last three physical therapy appointments and thereafter requested
to be discharged.
Id.
In February 2010, x-rays of Plaintiff’s lumbosacral spine
showed normal alignment, normal disc spaces, no degenerative facet
changes,
and
no
spondylosis.
T.
267.
concluded that it was a “normal exam.”
Id.
Dr.
John
Chotkowski
X-rays of Plaintiff’s
right knee taken at the same time also showed “no significant
abnormality.”
Plaintiff
T. 270.
T. 268.
underwent
an
electrocardiogram
in
July
2010.
There was no evidence of an acute current of injury,
8
significant dysrhythmia, ischemia, or strain.
Id.
Dr. Richard
Cudahy concluded that the electrocardiogram was “a normal tracing.”
Id.
A chest x-ray performed in July 2010 also showed no acute
disease, while a CT scan of Plaintiff’s abdomen was performed in
July 2012, and showed “no acute process.”
T. 277, 288.
Consultative physician Dr. Donna Miller examined Plaintiff on
July 3, 2013.
T. 240-243.
On physical examination, Plaintiff
showed full flexion, extension, lateral flexion bilaterally, and
rotary movement
bilaterally
in
her
cervical
spine.
T.
242.
Plaintiff had lumbar spine flexion of 60 degrees, extension of
5 degrees, lateral flexion of 25 degrees bilaterally, and rotation
25 degrees bilaterally.
negative bilaterally.
Id.
Straight leg raising tests were
Id. Plaintiff had a full range of motion in
her shoulders, elbows, forearms, wrists, knees, and ankles.
Id.
Plaintiff’s hips had flexion-extension of 85 degrees bilaterally,
interior rotation of 30 degrees bilaterally, backward extension of
20 degrees bilaterally, abduction of 30 degrees bilaterally, and
adduction of 20 degrees bilaterally.
Id.
Plaintiff’s joints were
stable and non-tender and she had 5/5 strength in her upper and
lower extremities.
were negative.
Id.
Id.
X-rays of Plaintiff’s lumbosacral spine
Dr. Miller diagnosed Plaintiff with chronic
low back pain, obesity, and diet-controlled hypertension, and
opined that she had a “mild limitation for repetitive lifting,
bending, and carrying.”
T. 243.
The ALJ also considered treatment records from physician’s
assistant (“PA”) Nicole Dusenbury from 2013 and 2014.
9
At her
initial examination with PA Dusenbury on August 29, 2013, Plaintiff
had a normal range of motion in her spine and extremities, along
with normal muscle strength and tone.
similar
findings
on
March
5,
2014
T. 318.
(T.
(T. 338), and June 11, 2014 (T. 343).
PA Dusenbury made
332),
March
31,
2014
An x-ray of Plaintiff’s
cervical spine perform on June 13, 2014 was normal, while an x-ray
of
Plaintiff’s
spondylosis.
lumbosacral
spine
showed
intact
vertebrae
and
T. 345-46.
The ALJ’s conclusion that Plaintiff was capable of a limited
range of light work was amply supported by the medical evidence in
the record.
Objective diagnostic testing from throughout the
relevant period, the treatment records of Plaintiff’s treatment
providers, and Dr. Miller’s examination and opinion all showed that
Plaintiff had only minor physical impairments. Plaintiff has failed
to demonstrate that additional records from OFHC could reasonably
have been expected to change that conclusion.
Significantly, the
most recent physical examinations of Plaintiff by PA Dusenbury were
largely normal, and the most recent x-rays of Plaintiff’s spine
showed only minor abnormalities. Under these circumstances, the
Court finds that the ALJ did not abuse his discretion in declining
Plaintiff’s request to subpoena OFHC’s records, because those
records were not reasonably necessary to resolve Plaintiff’s claim.
D.
Consideration of Dr. Miller’s Opinion
Plaintiff’s second and final argument is that the ALJ erred in
failing to explicitly weigh Dr. Miller’s opinion.
Plaintiff notes
that the ALJ discussed Dr. Miller’s findings, but did not state
10
what particular weight he afforded her medical source statement.
For the reasons set forth below, the Court finds that any error by
the ALJ in this regard was harmless.
The details of Dr. Miller’s opinion are set forth above.
In
his decision, the ALJ discussed Dr. Miller’s findings and noted her
diagnoses, but did not expressly weigh her opinion regarding
Plaintiff’s functional limitations.
T. 24.
Although an ALJ is required to consider and weigh the medical
opinions of record, the failure to assign a specific weight is
harmless error where it did not affect the outcome of the matter.
See, e.g., Ryan v. Astrue, 650 F. Supp. 2d 207, 217 (N.D.N.Y.
2009); Clark-Gyllenboga v. Colvin, No. 12-CV-0538 MAT, 2015 WL
2151823, at *7 (W.D.N.Y. May 7, 2015).
In this case, the ALJ’s RFC
finding was fully consistent with Dr. Miller’s opinion.
As set
forth above, the only limitations Dr. Miller identified were “mild
limitation[s]
for
repetitive
lifting,
bending,
and
carrying.”
T. 243. These limitations are fully consistent with the ability to
perform light work. See, e.g., Gurney v. Colvin, No. 14-CV-688S,
2016 WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016) (collecting cases
holding that even moderate limitations in bending, lifting, and/or
carrying
do
not
preclude
the
performance
of
light
work).
Accordingly, the ALJ’s RFC finding accounted for the limitations
identified by Dr. Miller, and his failure to expressly specify the
weight given to her opinion was harmless error and does not warrant
remand of this matter.
11
V.
Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 12) is denied. The Commissioner’s motion
for judgment on the pleadings (Docket No. 14) is granted. The Clerk
of the Court is directed to enter judgment in favor of the
Commissioner and to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
August 2, 2018
Rochester, New York.
12
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?