Whitehurst v. Colvin
Filing
21
DECISION AND ORDER denying 14 Plaintiff's Motion for Judgment on the Pleadings; granting 17 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/14/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
NATOUCHA J. WHITEHURST,
Plaintiff,
1:16-cv-01005-MAT
DECISION AND ORDER
-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Natoucha J. Whitehurst (“Plaintiff”), represented by counsel,
brings this action under Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner” or “Defendant”)
denying her applications for Disability Insurance Benefits (“DIB”)
and
Supplemental
Security
Income
(“SSI”).
The
Court
has
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
Plaintiff’s motion is denied and Defendant’s motion is granted.
PROCEDURAL BACKGROUND
On May 1, 2013, Plaintiff protectively filed applications for
DIB and SSI, alleging disability as of August 1, 2009, due to
protein S deficiency and a blood clot disorder. Administrative
Transcript (“T.”) 156-58. The claims were initially denied on
July 8, 2013. T. 68-69. At Plaintiff’s request, a hearing was
conducted
on
administrative
February
law
20,
judge
2015,
(“ALJ”)
in
Buffalo,
Donald
T.
New
York
McDougall,
by
with
Plaintiff appearing with her attorney. A vocational expert (“VE”)
also testified. T. 36-67. The ALJ issued an unfavorable decision on
April 24, 2015. T. 19-35. Plaintiff appealed the decision to the
Appeals Council (“AC”), which denied Plaintiff’s request for review
on November 2, 2016, making the ALJ’s decision the final decision
of the Commissioner. T. 1-6. This action followed.
THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a).
Initially, the ALJ determined that
Plaintiff met the insured status requirements of the Act through
June 30, 2011.
T. 24.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
August 1, 2009, the alleged onset date. Id.
At
step
two,
the
ALJ
determined
that
Plaintiff
had
the
following “severe” impairments: history of deep vein thrombosis
(“DVT”), protein S deficiency, and pulmonary embolism. T. 24. The
ALJ also noted Plaintiff had the medically determinable impairments
of obesity, vertebrogenic disorder, and depression. However, a
review of the record indicated these impairments had no more than
2
minimal impact on Plaintiff’s work-related functional abilities.
Accordingly, the ALJ found these additional impairments to be nonsevere. T. 25.
At step three, the ALJ found that Plaintiff’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. T. 26.
Before proceeding to step four, the ALJ found 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: no stairs or ramps; no more
than occasional balancing, stooping or crouching; no kneeling or
crawling; no ladders, ropes, or scaffolds; no heights or dangerous
moving machinery; must be able to change positions briefly for oneto-two
minutes,
at
least
every
half
hour;
no
exposure
to
temperature extremes; no exposure to extremes of fumes, dusts,
gases, or other respiratory irritants. T. 26.
At step four, the ALJ concluded that Plaintiff was unable to
perform any past relevant work. T. 30. At step five, the ALJ relied
on the VE’s testimony to find that there are unskilled jobs
existing in the national economy Plaintiff is able to perform,
including the representative occupations of office helper and mail
room clerk. T. 31. The ALJ accordingly found that Plaintiff was not
disabled as defined in the Act. Id.
3
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. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “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)
(quotation
omitted).
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)).
DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons: (1) the ALJ failed to provide “good reasons” for his
4
rejection of the opinions of treating physician Dr. Patrick Siaw;
and (2)
the
ALJ’s credibility analysis
was not
supported
by
substantial evidence. For the reasons discussed below, the Court
finds
Plaintiff’s
arguments
without
merit
and
affirms
the
Commissioner’s final determination.
I.
Evaluation of the Opinions of Plaintiff’s Treating Physician
Plaintiff’s first argument is that the ALJ failed to properly
comply with the treating physician rule when he gave limited weight
to the opinions of Dr. Siaw, Plaintiff’s primary care physician.
For the reasons set forth below, the Court disagrees.
Under the Commissioner’s regulations in place at the time the
ALJ
issued
his
decision,
a
treating
physician’s
opinion
is
generally entitled to controlling weight where it is well-supported
by
medically
techniques
and
acceptable
where
it
clinical
is
not
and
laboratory
inconsistent
with
diagnostic
the
other
substantial evidence of record. See also Green-Younger, 335 F.3d at
106. If, acting within his discretion, an ALJ assigns less than
controlling weight to a treating physician’s opinion because it
does not meet this standard, the ALJ 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). The ALJ is required to consider “the length of the
treatment relationship and the frequency of examination; the nature
and extent of the treatment relationship; the relevant evidence,
5
particularly medical signs and laboratory findings, supporting the
opinion; the consistency of the opinion with the record as a whole;
and whether the physician is a specialist in the area covering the
particular medical issues” when determining what weight to afford
a treating physician’s opinion. Burgess v. Astrue, 537 F.3d 117,
129 (2d Cir. 2008) (quotation marks, alterations, and citations
omitted). However, the ALJ need not expressly discuss each of these
factors, so long as his “reasoning and adherence to the regulation
are clear.” Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)
(citing Halloran v. Barnhart, 362 F.3d 28, 31–32 (2d Cir. 2004)).
In this case, on September 24, 2013, Dr. Siaw completed a
Residual Functional Capacity questionnaire indicating he had been
treating Plaintiff for three years. T. 407. At that time, Dr. Siaw
opined
Plaintiff’s
symptoms
of
back
pain,
leg
weakness,
and
shortness of breath would constantly interfere with her attention
and concentration for simple work-related tasks. He further opined
Plaintiff could: walk two city blocks before needing to rest; sit
for ten minutes at a time; stand or walk for fifteen minutes at a
time; sit for only one hour total during an eight hour workday; and
stand or walk for only one hour total during an eight hour workday.
Id. Dr. Siaw also stated Plaintiff would need a job that would
permit her to shift positions and take unscheduled breaks about
four times per day, for fifteen to twenty minutes at a time. Id. He
opined Plaintiff was able to lift and carry up to ten pounds
6
occasionally and had no limitations doing repetitive reaching,
handling, or fingering. Finally, he opined Plaintiff would need to
be absent from work as a result of her impairments more than four
times per month, and was incapable of working an eight hour day,
five days per week on a sustained basis. T. 408.
On March 14, 2014, Dr. Siaw completed a medical examination
for employability assessment, opining Plaintiff was very limited in
her ability to walk, stand, sit, lift, carry, pull, push, bend, and
climb stairs. He opined Plaintiff should avoid prolonged sitting,
walking, and standing. He also opined Plaintiff had no limitations
in mental functioning. T. 475.
On February 12, 2015, Dr. Siaw completed a second medical
examination
for
employability
assessment,
opining
again
that
Plaintiff was very limited in her ability to walk, stand, sit,
lift, carry, and climb stairs. However, he updated Plaintiff’s
ability to push, pull, and bend from “very limited” to “no evidence
of limitations.” T. 507. He additionally opined Plaintiff was now
moderately limited in all mental functioning, including her ability
to carry out instructions, make simple decisions, and maintain
basic standards of personal hygiene and grooming. Id.
In his decision, the ALJ permissibly assigned limited weight
to the opinions of Dr. Siaw, noting that they are not supported by
his treatment records. Specifically, the ALJ noted that Plaintiff’s
treatment records, discussed in detail earlier in his decision,
7
showed unremarkable examination findings, as well as evidence of
Plaintiff’s noncompliance with treatment on occasion. T. 30. For
instance, on June 25, 2013, Dr. Siaw saw Plaintiff and noted
Plaintiff requested a letter saying she had a blood clot disorder.
Dr. Siaw noted Plaintiff had no complaints upon examination, was in
no acute distress and looked well. T. 464. On September 24, 2013,
Dr. Siaw saw Plaintiff again and noted she needed an evaluation for
disability. Upon physical examination, Dr. Siaw noted Plaintiff was
again in no acute distress and looked well. T. 463. Despite these
unremarkable
findings,
examinations
indicate
both
opinions
Plaintiff
had
corresponding
disabling
with
the
conditions.
See
T. 407-08; 474-75. A treating physician’s opinion is not entitled
to
controlling
weight
where
it
is
not
corroborated
by
the
contemporaneous treatment notes and further contradicted by other
medical evidence. Kennedy v. Astrue, 343 F. App’x 719, 721 (2d Cir.
2009); see also Micheli v. Astrue, 501 F. App’x 26, 28 (2d Cir.
2012) (finding ALJ properly declined to accord controlling weight
to the opinions of plaintiff’s treating physician where those
opinions were internally inconsistent and inconsistent with other
substantial evidence of record).
The Court also notes that all three of Dr. Siaw’s opinions
were form assessments in which he merely checked boxes regarding
limitations, as opposed to providing a narrative description of
Plaintiff’s abilities. Courts in this Circuit have consistently
8
held that “lack of supporting detail and/or objective findings
provides a . . . reason for affording [an] opinion less weight.”
Wright v.
Colvin,
No.
5:12-cv-0440,
2013
WL
3777187,
at
*15
(N.D.N.Y. July 17, 2013) (citing 20 C.F.R. §§ 404.1527(d)(3),
416.927(d)(3))
(“The
more
a
medical
source
presents
relevant
evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion. The
better an explanation a source provides for an opinion, the more
weight we will give that opinion.”); see also Halloran v. Barnhart,
362 F.3d 28, 31 n. 2 (2d Cir. 2004) (describing a standardized form
checklist as “only marginally useful for purposes of creating a
meaningful and reviewable factual record”); Llorens–Feliciano v.
Astrue, No. 6:11-cv-924, 2012 WL 6681772, at *3 (N.D.N.Y. Dec. 21,
2012) (“‘Form reports in which a physician’s obligation is only to
check a box or fill in a blank are weak evidence at best.’”)
(quoting Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993)).
This factor further supports the ALJ’s determination to assign
limited weight to Dr. Siaw’s opinions.
The ALJ further reasoned Dr. Siaw’s opinions were entitled to
little
weight
because
Dr.
Siaw’s
assessment’s
of
Plaintiff’s
abilities were inconsistent with the findings of consultative
examiner Dr. Hongbiao Liu. The ALJ noted that none of the symptoms
Dr.
Liu
observed
approached
the
in
his
magnitude
June
of
2013
symptoms
9
examination
that
would
of
Plaintiff
require
the
disabling limitations Dr. Siaw outlined in his opinions. T. 29. An
ALJ may permissibly decline to afford controlling weight to the
opinion of a treating physician when that opinion is inconsistent
with other medical evidence, including the opinion of other medical
experts, and the claimant’s reported activities of daily living.
See Rusin v. Berryhill, 726 F. App’x 837, 839 (2d Cir. 2018)
(citing 20 C.F.R. § 404.1527(d)(2)); Halloran, 362 F.3d at 32
(finding that a treating physician’s opinion is not afforded
controlling weight if it is inconsistent with the opinions of other
medical experts)). In this case, Dr. Liu’s opinion was consistent
with the medical evidence of record, unlike Dr. Siaw’s opinion.
Indeed, Dr. Siaw’s opinion was inconsistent with Plaintiff’s own
testimony that she was capable of lifting her twenty-three pound
daughter and
had no difficulty using her hands or following
written or spoken instructions. T. 52, 204. Accordingly, the ALJ
did not err in relying on Dr. Liu’s opinion.
The Court rejects Plaintiff’s contention that the ALJ should
not have relied on Dr. Liu’s June 2013 consultative examination
because it was “stale”. The mere passage of time does not render an
opinion
stale.
Instead,
a
medical
opinion
may
be
stale
if
subsequent treatment notes indicate a claimant’s condition has
deteriorated. See Jimmerson v. Berryhill, No. 16-CV-442-FPG, 2017
WL 3149370, at *5 (W.D.N.Y. July 25, 2017) (citing Jones v. Colvin,
No. 13-CV-06443, 2014 WL 256593, at *7 (W.D.N.Y. June 6, 2014)).
10
Here, the record indicates that Plaintiff’s condition showed no
meaningful deterioration following Dr. Liu’s examination. To the
contrary, Dr. Siaw examined Plaintiff on March 4, 2014 and noted
she looked well and that her pulmonary embolus was clinically
stable. T. 455. See Jones, 2014 WL 256593, at *7 (consultative
examiner’s opinion was not stale where plaintiff failed to show a
deterioration in her condition after the report).
For the foregoing reasons, the Court finds that the ALJ
properly provided “good reasons” for affording limited weight to
the opinions of Dr. Siaw. Accordingly, the Court finds the ALJ
complied with the treating physician rule in place at the time he
issued his decision and no error was committed.
II.
The ALJ’s Credibility Finding was Proper
Plaintiff’s second and final argument is that the ALJ’s
reasons
for
finding
Plaintiff’s
statements
concerning
the
intensity, persistence, and limiting effects of her symptoms less
than fully credible were not supported by substantial evidence.
Specifically, Plaintiff contends the ALJ erred in his analysis of
Plaintiff’s failure to seek treatment and her activities of daily
living. For the reasons set forth below, the Court finds no error
in the ALJ’s credibility finding.
An ALJ’s credibility assessment is entitled to deference.
“Because the ALJ has the benefit of directly observing a claimant’s
demeanor
and
other
indicia
of
11
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.” Hargrave v. Colvin, No. 12-CV-6308 (MAT),
2014 WL 3572427, at *5 (W.D.N.Y. July 21, 2014) (internal quotation
omitted). The Commissioner’s regulations set forth seven factors
the ALJ is expected to consider in assessing credibility; however,
the ALJ is not required to explicitly discuss each of the factors,
so
long
as
he
sets
forth
the
reasoning
for
his
credibility
determination, and that determination is adequately supported by
the evidence. “[T]he predominant focus of a credibility analysis
must be the entire case record as a whole, and ... the adjudicator
[need only] show specific cause, grounded in evidence, for his or
her conclusion.” Snyder v. Barnhart, 323 F. Supp. 2d 542, 547
(S.D.N.Y. 2004). In this case, for the reasons set forth below, the
Court finds that the ALJ’s credibility assessment was adequately
supported by the evidence of record.
A.
The ALJ Properly Assessed Plaintiff’s Activities of Daily
Living
When making a credibility determination, “[a]n ALJ is entitled
to take a plaintiff’s activities of daily living into account...”
Pennock v. Comm’r of Soc. Sec., 7:14-CV-1524 (GTS/WBC), 2016 WL
1128126, at *5 (N.D.N.Y. Feb. 23, 2016), report and recommendation
adopted, 2016 WL 1122065 (N.D.N.Y. Mar. 22, 2016). Furthermore, an
ALJ is entitled to take inconsistencies between Plaintiff’s own
testimony about her activities of daily living and her complaints
12
of total disability into consideration when making a credibility
determination. See Rusin, 726 F. App’x at 840-41(finding claimant’s
activities of daily living were inconsistent with his complaints of
total debilitation).
At the hearing, Plaintiff testified she has pain in her entire
right leg, which is worsened by too much walking or sitting. She
claimed she is able to sit for maybe half an hour before she needs
to adjust or move around. T. 50-51. Plaintiff testified she doesn’t
really walk anywhere outside, but inside her house she is able to
walk up and down the stairs three or four times. T. 49. Plaintiff
also testified that she goes grocery shopping on the first of the
month, attends parent-teacher conferences, and does the cooking,
cleaning, dishes, and laundry for her three children, with the
occasional help of her mother or her oldest daughter. T. 49-50.
Plaintiff testified she is able to pick up her youngest daughter,
who weighs about twenty-three pounds, though it can be a bit too
much for her. T. 52.
The ALJ found that while the record supports Plaintiff’s
allegations
of
some
limitations,
her
own
testimony
was
not
consistent with a finding of disability within the meaning of the
Act. T. 29. Specifically, the ALJ noted Plaintiff remains able to
perform
most
activities
of
daily
living,
including
cooking,
cleaning, laundry, and grocery shopping for herself and her three
children, with occasional assistance from her mother. Furthermore,
13
Plaintiff’s testimony that she is able to cook meals, do laundry,
clean, do dishes, pick up her two year-old daughter, and climb the
stairs in her house all comport with the ALJ’s RFC finding. T. 26.
The ALJ’s discussion of Plaintiff’s activities of daily living was
consistent with her testimony and the medical evidence of record,
and
the
ALJ
did
not
place
undue
emphasis
on
Plaintiff’s
capabilities, but instead compared her testimony to the other
evidence of record.
Accordingly, the Court finds the ALJ properly
assessed Plaintiff’s activities of daily living when evaluating
Plaintiff’s
credibility.
See
Morris
v.
Comm'r
of
Soc.
Sec.,
No. 5:12-CV-1795 MAD/CFH, 2014 WL 1451996, at *8 (N.D.N.Y. Apr. 14,
2014) (“The issue is not whether Plaintiff’s limited ability to
undertake normal daily activities demonstrates her ability to work.
Rather,
the
issue
is
whether
the
ALJ
properly
discounted
Plaintiff’s testimony regarding her symptoms to the extent that it
is inconsistent with other evidence.”).
B.
The ALJ Properly Assessed Plaintiff’s Failure to Seek
Treatment
Plaintiff further contends the ALJ’s credibility determination
is flawed and unsupported by substantial evidence because he failed
to explain why Plaintiff’s non-compliance with medical care damaged
her credibility. This argument lacks merit.
For the purposes of judging credibility, “a longitudinal
medical
record
demonstrating
[a
claimant’s]
attempts
to
seek
medical treatment . . . and to follow that treatment once it is
14
prescribed lends support to [a claimant’s] allegations of intense
and persistent pain or other symptoms...” Social Security Ruling
(“SSR”) 96-7p, 1996 WL 374186, at *7 (July 2, 1996)1. Conversely,
a claimant’s “statements may be less credible if the level or
frequency
of
treatment
is
inconsistent
with
the
level
of
complaints, or if the medical reports or records show that the
individual is not following the treatment as proscribed.” Id.
However, before drawing an adverse inference from a claimant’s
failure to seek or follow through with treatment, the ALJ must
first consider any explanations the claimant provides, or other
information in the record that may explain the failure to seek
treatment. Weed Covey v. Colvin, 96 F.Supp.3d 14, 33 (W.D.N.Y.
2015) (internal quotation omitted).
At the hearing, Plaintiff testified Dr. Siaw had referred her
to a therapist for her back pain, but she had not received any
treatment because the offices he referred her to “doesn’t do it.”
T. 45. A treatment note from Dr. Siaw’s office dated November 13,
2014
stated
Plaintiff
was
“noncompliant
to
medical
care
--
presently not taking her Xarelto –- last dose was 3 days ago” and
that all of Plaintiff’s prescriptions had run out. T. 449.
In his decision, the ALJ discussed both Plaintiff’s testimony
that she was referred to physical therapy but had not received
1
SSR 96-7p was superseded by SSR 16-3p in 2017, which eliminated the use
of the term “credibility” from the sub-regulatory policy. However, SSR 96-7p
was in effect at the time the ALJ wrote his decision in 2015, thus making its
application in this case appropriate.
15
treatment (T. 27), and the November 2014 treatment note stating
Plaintiff was noncompliant with her medical care (T. 29).
Later,
in his credibility assessment, the ALJ noted that Plaintiff’s
noncompliance
with
her
medical
care
demonstrated
a
possible
unwillingness to do what is necessary to improve her condition. He
further noted that the noncompliance may also be an indication that
Plaintiff’s symptoms are not as severe as she alleges. T. 29.
Here, the ALJ considered the explanations offered by Plaintiff
regarding her failure to seek treatment and lack of compliance, but
ultimately concluded that her actions showed an unwillingness to
actively try
to
improve
her
condition. The Court
notes
that
Plaintiff did not proffer any explanation for why she allowed her
prescriptions to run out, thus resulting in her not taking her
medication. Moreover, the ALJ also appropriately explained the
factors he took into account when assessing Plaintiff’s credibility
and how he arrived at his determination. See Price v. Colvin,
No. 1:14-CV-00756(MAT), 2017 WL 2572311 at *5 (W.D.N.Y. June 14,
2017) (internal citation omitted) (“a claimant’s failure to adhere
to prescribed treatment, as well as gaps in treatment, are relevant
considerations in the assessment of credibility”). Accordingly, the
Court finds the ALJ provided adequate explanations as to why he
found
Plaintiff’s
noncompliance
impacted her credibility.
16
with
medical
care
negatively
For the reasons set forth above, the Court finds no error in
the ALJ’s finding that Plaintiff was less than fully credible. The
Court accordingly finds that remand is not warranted on this basis.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 14) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 17) is granted.
Plaintiff’s 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
_____________________________
MICHAEL A. TELESCA
United States District Judge
Dated:
August 14, 2018
Rochester, New York
17
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