Livingston v. Berryhill

Filing 15

ORDER denying 10 Motion for Judgment on the Pleadings; granting 12 Motion for Judgment on the Pleadings. Signed by Hon. H. Kenneth Schroeder Jr. on 2/12/2019. (KER)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY LIVINGSTON,
Plaintiff,

17-CV-0567Sr

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all proceedings
in this case, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g). Dkt.
#13.

BACKGROUND
Plaintiff applied for disability insurance benefits and supplemental security
income payments with the Social Security Administration (“SSA”), on July 12, 2013,
alleging disability beginning March 2, 2010, at the age of 27, due to chronic neck and
back pain and depression. Dkt. #6, pp.184-215.

On June 18, 2015, plaintiff, represented by counsel, and an impartial
vocational expert, Jeanne Beachler, appeared and testified before Administrative Law

Judge (“ALJ”), Sharon Seeley. Dkt. #6, pp.31-84. Plaintiff, a high school graduate,
testified that he injured his shoulder at work on April 30, 2003 and subsequently
received a workers’ compensation settlement. Dkt. #6, p.47. Plaintiff testified that he left
his job as a debt collector in 2010 because he was in pain, unable to sit, and unable to
miss work for doctor’s appointments. Dkt. #6, p.45. Plaintiff testified that he was in a
motor vehicle accident on February 8, 2013, which exacerbated his condition. Dkt. #6,
p.48. Plaintiff testified that he drove his daughter to school and home each day, but
experienced difficulty driving more than ten minutes because sitting for too long caused
a strain in his back and a tingling in his foot. Dkt. #6, pp.38-39. Plaintiff testified that he
could lift no more than 10-15 pounds without pain, explaining that he couldn’t even hold
his daughter, who didn’t weigh more than 27 pounds. Dkt. #6, p.60. Plaintiff also
testified that he has “tingles” that shoot back and forth with his left leg, requiring him to
have to sit down or stand up. Dkt. #6, p.60. He believed that he could walk a half hour,
stand about 45 minutes and sit an hour, explaining that he was constantly getting up
and moving to try to ease his pain. Dkt. #6, p.60. Plaintiff testified that he also
experienced depression and anxiety and that the medication for that made him dizzy
and sleepy. Dkt. #6, p.61.

When asked to assume, inter alia, that plaintiff could lift and carry 20
pounds occasionally and 10 pounds frequently; sit for 6 hours out of an 8 hour work
day, alternating one hour of sitting with 10 minutes of standing; stand or walk for 6
hours out of an 8 hour work day, alternating 30 minutes of walking one hour of standing
with 10 minutes of sitting; occasionally stoop, kneel, crouch or crawl; and occasionally
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reach and finger with the non-dominant left upper extremity, the vocational expert
opined that plaintiff could perform his past relevant work as a debt collector and mail
room helper, and could also work as a storage facility clerk or machine tender. Dkt. #6,
pp.72-74. The vocational expert explained that her opinion regarding plaintiff’s ability to
alternate standing and sitting in the suggested occupations was based upon her
experience in job placement. Dkt. #6, p.81. When asked whether plaintiff could perform
these jobs if he was never able to reach with his left non-dominant extremity, the
vocational expert testified that plaintiff would still be able to work as a debt collector.
Dkt. #6, p.74. If plaintiff was limited to a low stress environment, with no supervisory
responsibilities, or independent decision making except for simple, routine work-related
decisions, with frequent incidental interaction with the public, the vocational expert ruled
out debt collector and cashier, but testified that plaintiff could still perform the jobs of
machine tender and storage facility clerk, as well as sedentary jobs of document
preparer and assembler. Dkt. #6, p.75.

The ALJ rendered a determination that plaintiff was not disabled on
February 2, 2016. Dkt. #6, pp.14-26. The Appeals Council denied plaintiff’s request for
review on April 24, 2017. Dkt. #6, p.5. Plaintiff commenced this action seeking review of
the Commissioner’s final decision on June 23, 2017. Dkt. #1.

DISCUSSION AND ANALYSIS
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial evidence in
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the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998).

To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than
twelve months. 20 C.F.R. § 404.1505(a). The Commissioner must follow a five-step
sequential evaluation to determine whether a claimant is disabled within the meaning of
the Act. 20 C.F.R. § 404.1520(a). At step one, the claimant must demonstrate that he is
not engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). At step two, the
claimant must demonstrate that he has a severe impairment or combination of
impairments that limits the claimant’s ability to perform physical or mental work-related
activities. 20 C.F.R. § 404.1520(c). If the impairment meets or medically equals the
criteria of a disabling impairment as set forth in Appendix 1 of Subpart P of Regulation
No. 4 (the “Listings”), and satisfies the durational requirement, the claimant is entitled to
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disability benefits. 20 C.F.R. § 404.1520(d). If the impairment does not meet the criteria
of a disabling impairment, the Commissioner considers whether the claimant has
sufficient residual functional capacity (“RFC”), for the claimant to return to past relevant
work. 20 C.F.R. § 404.1520(e)-(f). If the claimant is unable to return to past relevant
work, the burden of proof shifts to the Commissioner to demonstrate that the claimant
could perform other jobs which exist in significant numbers in the national economy,
based on claimant’s age, education and work experience. 20 C.F.R. § 404.1520(g).

In the instant case, the ALJ made the following findings with regard to the
five-step sequential evaluation: (1) plaintiff had not engaged in substantial gainful
activity since the alleged onset date of March 2, 2010; (2) plaintiff’s brachial plexus
injury and depressive disorder constitute severe impairments; (3) plaintiff’s impairments
did not meet or equal any listed impairment; (4) plaintiff retained the capacity to perform
less than a full range of light work, to wit, plaintiff could lift and carry 20 pounds
occasionally and 10 pounds frequently, sit for 6 hours of an 8 hour workday, stand
and/or walk for 6 hours of an 8 hour workday, if able to sit for 10 minutes after walking
one hour, occasionally stoop, kneel, crouch and crawl, occasionally finger with the nondominant left upper extremity but never reach overhead with the non-dominant left
upper extremity, work in a low-stress environment, to wit, one with no supervisory
responsibilities, no independent decision making except with respect to simple routine
work-related decisions and no frequent changes in work process, routines or settings,
respond appropriately to ordinary levels of supervision, and have frequent incidental
interaction with co-workers or the general public; and (5) plaintiff retained the functional
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capacity to work in unskilled, light work positions such as storage facility clerk and
machine tender or unskilled sedentary positions such as document preparer or
assembler and was not, therefore, disabled within the meaning of the SSA. Dkt. #6,
pp.16-26.

Plaintiff argues that the ALJ failed to explain the weight he afforded to the
opinion of consultative examiner, Dr. Liu, after failing to afford Dr. Diaz Del Carpio’s
treating source opinion controlling weight. Dkt. #10-1, p.19. Moreover, plaintiff argues
that the ALJ’s determination regarding plaintiff’s limitations for prolonged walking,
bending, kneeling and overhead reaching are inconsistent with Dr. Liu’s opinion. Dkt.
#10-1, p.21 & Dkt. #14, p.1. Plaintiff further argues that Dr. Liu’s opinion was stale and
failed to account for plaintiff’s deteriorating condition. Dkt. #10-1, p.22.

The Commissioner argues that the ALJ explained that she gave greater
weight to Dr. Liu’s opinion because his assessment, which was based upon his
examination of plaintiff, was consistent with the medical evidence and that the ALJ’s
determination of plaintiff’s RFC was consistent with Dr. Liu’s opinion. Dkt. #12-1, pp.2325. The Commissioner further argues that plaintiff received very little treatment
subsequent to his examination by Dr. Liu, and the medical record does not suggest that
plaintiff’s medical condition deteriorated. Dkt. #12-1, pp.25-26. Finally, the
Commissioner argues that the ALJ properly discounted Dr. Diaz Del Carpio’s opinion
regarding plaintiff’s limitations given the lack of documentation substantiating such
limitations within plaintiff’s medical records. Dkt. #12-1, pp.27-28.
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The ALJ’s determination of plaintiff’s residual functional capacity is
supported by substantial evidence in the record and properly afforded greater weight to
Dr. Liu’s consulting opinion than Dr. Diaz Del Carpio’s treating opinion because, as the
ALJ noted, Dr. Liu’s opinion was based on personal examination and was more
consistent with the medical evidence. Dkt. #6, p.23. Although Dr. Diaz Del Carpio’s
physical examination generally noted limited mobility and range of motion in plaintiff’s
left arm/shoulder, there are no measurements in his treatment notes and no evidence
of any examination by Dr. Diaz Del Carpio which would relate to plaintiff’s capacity to
sit, stand, walk, stoop, kneel, crouch and crawl. See, e.g., Dkt. #6, p.635. Dr. Diaz Del
Carpio’s treatment notes indicate that plaintiff’s neck pain was resolved as of January
30, 2013, as evidenced by the EMG of plaintiff’s left arm which “showed normal study
with no evidence of cervical radiculopathy on the left and right.” See, e.g., Dkt. #6,
p.572. With respect to plaintiff’s lumbar pain, on August 16, 2013, Dr. Diaz Del Carpio
noted the June 27, 2013 EMG results indicated no electophysiological evidence of
active or chronic lumbar radiculopathy, lumbrosacral pleosopathy, focal lower extremity
entrapment syndrome, diffuse lower extremity peripheral neuropathy of myopathy. See,
e.g., Dkt. #6, p.579. Moreover, Dr. Diaz Del Carpio’s physical residual functional
capacity questionnaire does not indicate any limitations in plaintiff’s ability to sit, stand,
walk, stoop, kneel crouch or crawl. Dkt. #6, pp.607-609. Furthermore, Dr. Diaz Del
Carpio’s opinion that plaintiff could never lift ten pounds and never look up or down,
turn his head in either direction or hold his head in a static position is clearly
contradicted by plaintiff’s testimony that he drove his daughter to school each day and
could lift up to 15 pounds. Dkt. #6, pp.38-39 & 60.
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Dr. Liu’s examination of plaintiff on September 5, 2013 noted the
following:
Cervical spine shows full flexion, extension, lateral flexion
bilaterally, and full rotary movement bilaterally. . . . Lower
lumbar spine flexion and extension 50 degrees, lateral
flexion 15 degrees bilaterally, and rotation 15 degrees
bilaterally. SLR test positive at 10 degrees bilaterally
confirmed in supine and sitting position. Full ROM of right
shoulder. Left shoulder forward elevation 100 degrees,
abduction 100 degrees, adduction 15 degrees, internal
rotation 20 degrees, and external rotation 45 degrees.
Dkt. #6, p.538. Dr. Liu discerned no evidence of muscle atrophy in the extremities and
observed intact hand and finger dexterity, left grip 4/5, right grip 5/5. with mild
decreased ability to zip, button and tie with the left hand. Dkt. #6, p.538. Dr. Liu
diagnosed chronic left shoulder pain, chronic low back pain and anxiety, opining that
plaintiff’s prognosis was stable and that plaintiff had “moderate limitation for prolonged
walking, bending, kneeling, and overhead reaching.” Dkt. #6, p.538.

Dr. Liu’s opinion of moderate limitation is consistent with a lumbar MRI on
February 22, 2013 revealing minimal disc bulges at L3-4; L4-5; and L5-S1 (Dkt. #6,
pp.305), and an unremarkable cervical MRI from the same date. Dkt. #6, p.304. This
Court agrees with those cases finding that an opinion of moderate limitation for
prolonged walking and standing is not inconsistent with the ability to perform light work.
See Harrington v. Colvin, No. 14-CV-6044, 2015 WL 790756, at *14-15 (W.D.N.Y. Feb.
25, 2015) (collecting cases). In any event, the vocational expert also identified
sedentary work which plaintiff could perform. Dkt. #6, p.75.
.
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The day after Dr. Liu’s examination, plaintiff underwent an extensive EMG
of the left upper extremity which was “normal,” with “no electro diagnostic evidence of a
left cervical radiculopathy, brachial plexopathy or median neuropathy at the wrist,
[carpal tunnel syndrome].” Dkt. #6, p.542. On September 9, 2013, plaintiff underwent an
MRI of the brachial plexus which revealed
mild increase in thickness and signal of the left brachial
plexus at the level of the upper and middle trunks, extending
to the divisions and all cords, but most pronounced in the
lateral and posterior cords. No evidence of associated
enhancement is noted. There is no evidence of denervation
within the shoulder girdle muscles. The findings are most
consistent with mild stretch injury of the brachial plexus.
Dkt. #6, p.564. Dr. Siddiqui examined plaintiff on September 24, 2013 and diagnosed
brachial plexopathy with intractable pain. Dkt. #6, p.566.

Subsequently, plaintiff was seen by his primary care physician, Dr. Diaz
Del Carpio, on January 22, 2014, for pre-operative clearance for a neurostimulator
implant wherein he informed Dr. Diaz Del Carpio that he could “walk more than 4
blocks/climb stairs without getting SOB” (Dkt. #6, p.578); on May 7, 2014 wherein he
informed Dr. Diaz Del Carpio that he did not feel that the neurostimulator worked and
that he had stopped taking Lortab because it did not make any difference in his pain
and where, upon review of symptoms, Dr. Diaz Del Carpio noted “[n]o back pain” (Dkt.
#6, pp.587 & 589); on August 7, 2014, wherein he informed Dr. Diaz Del Carpio that his
pain had increased today (Dkt. #6, p.597); on February 12, 2015, wherein he informed
Dr. Diaz Del Carpio that he stopped seeing his pain management doctor because none
of the medications were helping and he is able to manage his pain with Ibuprofen and
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was able to enjoy his activities and did not feel depressed (Dkt. #6, p.614); on March
30, 2015 wherein he complained of a recent exacerbation with pain, but denied taking
his NSAIDS and, upon examination, his neck was recorded as supple and non-tender
(Dkt. #6, pp.623 & 625); on May 12, 2015 wherein Dr. Diaz Del Carpio observed that
plaintiff was stable overall and his depression and mood was better (Dkt. #6, pp.633 &
635); and June 16, 2015 wherein plaintiff informed Dr. Diaz Del Carpio that he was
sleeping better, which has helped with the pain and that his pain is slightly better
controlled than before, but increases when he moves his left arm and shoulder or
becomes frustrated. Dkt. #56, pp.643 & 645. None of these treatment notes suggest
that plaintiff’s medical condition deteriorated subsequent to Dr. Liu’s examination.

CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #10), is denied, and the Commissioner’s motion for judgment on the pleadings
(Dkt. #12), is granted.

SO ORDERED.

DATED:

Buffalo, New York
February 12, 2019
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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