Currie v. Commissioner of Social Security
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 10/17/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JASON F. CURRIE,
Plaintiff,
17-CV-602(MAT)
DECISION
and ORDER
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Jason F. Currie, (“Plaintiff”), who is represented by counsel,
brings this action pursuant to the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social
Security
(“the
Commissioner”)
denying
his
application
for
Supplemental Security Income (“SSI”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g). 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.
Dkt. ##12, 14.
BACKGROUND
A.
Procedural History
Plaintiff filed an application for SSI alleging disability
since October 9, 2013, based on right-arm nerve damage from a
gunshot wound, sleep apnea, and high blood pressure. T. 178.1
Plaintiff’s application was denied, and he requested a hearing
before an Administrative Law Judge (“ALJ”). T. 77-93. ALJ Susan
1
“T.__” refers to pages of the administrative record. Dkt. #9.
Smith held a hearing on December 3, 2015, where Plaintiff testified
with counsel. T. 32-76. On March 24, 2016, the ALJ issued a
decision
finding
Plaintiff
not
disabled.
T.
14-31.
Plaintiff
requested a review of the ALJ’s decision, which the Appeals Council
denied. T. 1-6, 156-59. The ALJ’s determination thus became the
final decision of the Commissioner subject to judicial review under
42 U.S.C. § 1383(c)(3). This action followed. Dkt. #1.
The issue before the Court is whether the Commissioner’s
decision
that
Plaintiff
was
not
disabled
is
supported
by
substantial evidence and free of legal error. See Pl. Mem. (Dkt.
#12-1) 23-29; Comm’r Mem. (Dkt. #14-1) 9-17.
B.
The ALJ’s Decision
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration (“SSA”), see 20 C.F.R. §§ 404.1520,
416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2
(W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found:
(1) Plaintiff did not engage in substantial gainful activity since
his application date; (2) he had the severe impairments of brachial
plexus injury status post gunshot wound 2012, cervical and lumbar
strains, multiple strains/sprains post a motor vehicle accident in
2014, degenerative changes, and obesity (weight of 350 pounds at a
height of 67 inches); (3) his impairments did not meet or equal the
Listings set forth at 20 C.F.R. § 404, Subpt. P, Appx. 1. The ALJ
2
found that Plaintiff retained the residual functional capacity
(“RFC”)
to
perform
light
work
with
additional
limitations:
Plaintiff could lift no more than five pounds occasionally with the
right upper extremity, and could only occasionally stoop, kneel,
balance, crouch, climb stairs and ramps, push and pull with his
right upper extremity, and handle, finger, and feel with his right
hand; Plaintiff should avoid climbing ladders or scaffolds, avoid
all exposure to hazards including unprotected heights and dangerous
moving machines, and avoid concentrated exposure to extreme cold or
hot temperatures; (4) Plaintiff had no past relevant work; and
(5) considering his RFC and vocational factors of age, education,
and work experience, he could make a successful adjustment to
unskilled
light
work
existing
in
significant
numbers
in
the
national economy, including inspector, machine tender, and bottling
line attendant. T. 19-27. The ALJ concluded that Plaintiff was not
disabled under the Act.
DISCUSSION
A.
Scope of Review
A federal court should set aside an ALJ decision to deny
disability benefits only where it is based on legal error or is not
supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support
3
a conclusion.” Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003) (internal quotation marks omitted).
B.
Opinion Evidence
Plaintiff contends that the ALJ erred in evaluating the
medical opinions when she failed to assess the records or opinion
of Plaintiff’s treating physician and pain management providers.
Pl. Mem. 25-28.
The record indicates as follows. In April 2015, chiropractor
Neal Pignatora conducted an independent examination of Plaintiff
and opined he was able to perform his usual activities of daily
living, including occupational duties with no restrictions. T. 400.
In November 2015, Dr. Michael Calabrese of the Diabetes
Wellness Clinic, who had previously seen Plaintiff in 2014 for
management of pre-diabetes, T. 544-46, examined Plaintiff for car
accident
injuries.
T.
526-30.
He
opined
that
Plaintiff
was
temporarily totally impaired because of the motor vehicle accident.
T. 530.
In December 2015, chiropractor Michael Cardamone completed a
medical source statement wherein he opined that Plaintiff could
occasionally lift up to 20 pounds and carry up to 10 pounds, sit
two hours, stand one hour, and walk one hour. T. 519-20. He stated
Plaintiff could only occasionally reach, push, pull, and use his
feet to operate foot controls, but could frequently handle, finger,
and feel. T. 521. He indicated that Plaintiff would need to take
4
unscheduled breaks two to three times per day and would miss work
more than four days per month; Plaintiff could never climb ladders
or scaffolds or work around unprotected heights; could occasionally
work
around
moving
mechanical
parts,
vibrations,
and
motor
vehicles; and could continuously work around humidity, wetness,
pulmonary irritants, and extreme temperatures. T. 522-23.
The ALJ weighed these opinions in assessing Plaintiff’s RFC.
T.
23-24.
In
doing
so,
she
afforded
little
weight
to
Dr. Calabrese’s opinion that Plaintiff was unable to be gainfully
employed and was temporarily totally impaired because such a
statement
of disability
is
an
opinion
on
an
issue
“reserved
exclusively to the Commissioner,” and thus was not entitled to
deference. T. 23, 530. It is true that the disability determination
is an administrative finding that is dispositive of the case and,
as such, is an issue reserved to the Commissioner. See 20 C.F.R.
§ 416.927(d)(1)-(3) (treating source opinions on issues that are
reserved to the Commissioner are never entitled to any special
significance); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999)(
“A
treating
physician’s
statement
that
[plaintiff]
is
disabled cannot itself be determinative.”). Moreover, the ALJ noted
that Dr. Calabrese’s opinion conflicted with Plaintiff’s selfreport that physical therapy had improved his range of motion,
mobility, and overall level of functioning, T. 526, as well as with
Plaintiff’s admitted activities, which included coaching baseball
5
and
walking
for
transportation.
T.
69,
543.
Additionally,
Dr. Calabrese’s opinion that Plaintiff was unable to be gainfully
employed and was temporarily totally impaired, T. 530, conflicted
with chiropractor Pignatora’s opinion that Plaintiff was able to
perform
his
usual
activities
of
daily
living,
including
occupational duties with no restrictions. T. 400. An ALJ must
consider whether an opinion is consistent with the record as a
whole. See 20 C.F.R. § 416.927(c)(4); see also Domm v. Colvin, 579
Fed. Appx. 27, 28 (2d Cir. Sept. 23, 2014) (unpublished) (ALJ may
discount the opinion of a treating physician when the opinion is
internally inconsistent, inconsistent with other evidence, and
inconsistent with the claimant’s testimony).
With respect to chiropractor Cardamone’s opinion, the ALJ
afforded it “some weight” and adopted his assessed postural and
environmental limitations, while rejecting his findings that were
inconsistent
with
the
determination
accounted
restrictions,
which
record evidence.
for
limited
those
T.
24.
postural
Plaintiff
to
and
The
ALJ’s
RFC
environmental
occasional
stooping,
kneeling, balancing, crouching, and climbing ramps and stairs; and
avoiding hazards, extreme temperatures, and climbing ladders and
scaffolds. T. 20. While Cardamone opined that Plaintiff could lift
up to 20 pounds, carry up to 10 pounds, and frequently handle,
finger, and feel, T. 519, 521, the ALJ found that Plaintiff was
limited to lifting no more than five pounds and only occasionally
6
handling, fingering, and feeling with the right hand. T. 20. The
ALJ concluded that the part of the opinion limiting Plaintiff to
less than the full range of sedentary work was not supported by the
evidence of record. T. 24. The ALJ’s rejection of Cardomone’s
opinion was not legally flawed, as an ALJ may reject portions of a
medical opinion not supported by and even contrary to the objective
evidence
of
record
while
accepting
those
portions
that
are
supported by substantial evidence. See Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002) (it is within the ALJ’s discretion to sort
through and resolve conflicts in the evidence).
Plaintiff
consider and
further
weigh
a
claims
that
purported
the
opinion
ALJ
did
from his
not
properly
health
care
providers at the at New York Spine and Wellness Center. Pl. Mem.
26-27. However, none of those providers issued a medical opinion as
to Plaintiff’s functional limitations. The records from Physician
Assistant Ross Guarino and Drs. Jerry Tracy and Jafar Saddiqui
contain Plaintiff’s medical history and subjective complaints,
examination findings, and treatment recommendations. T. 402-44.
Contrary to Plaintiff’s suggestion, see Pl. Mem. 25-26, these
providers did not opine as to any functional limitations resulting
from
Plaintiff’s
treatment
notes
conditions.
While
(observing
they
the
ALJ
did
reflected
discuss
the
“conservative
treatment”), T. 22, there was no medical opinion, as defined by the
regulations, for the ALJ to weigh. See 20 C.F.R. § 416.927(a)(1)
7
(“Medical opinions are statements from acceptable medical sources
that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis,
what you can still do despite impairment(s), and your physical or
mental restrictions.”). The ALJ therefore did not err in her
handling of the treatment notes from the New York Spine and
Wellness Center. See Gray v. Astrue, No. 06–cv–0456, 2009 WL
790942, at *8 (N.D.N.Y. Mar.20, 2009) (“The opinion of a treating
physician is not entitled to controlling weight where the opinion
is not a functional analysis.”) (citing George v. Bowen, 692
F.Supp.
215,
219
(S.D.N.Y.
1988)
(concluding
that
treating
physician's report was not entitled to controlling weight as it
contained no assessment of plaintiff's ability to lift and carry
weight); see also Duffy v. Comm'r, No. 17-CV-3560, 2018 WL 4376414,
at *18 (S.D.N.Y. Aug. 24, 2018), report and recommendation adopted,
No.
17-CV-3560,
2018
WL
4373997
(S.D.N.Y.
Sept.
13,
2018)
(“Treatment notes and records are not afforded the same deference
and the ALJ is not required to assign them a specific weight, let
alone controlling weight.”).
C.
RFC Finding
Plaintiff also argues that the ALJ formulated Plaintiff’s RFC
without
supporting
opinions
from
medical
sources
regarding
functional limitations, and that the RFC is therefore unsupported
by substantial evidence. Pl. Mem. 28-29.
8
As stated earlier, the RFC finding is an administrative
finding that is dispositive of whether a claimant is disabled under
the Act. See 20 C.F.R. § 416.945. Although the ALJ considers
opinions
from
medical
sources,
the
final
responsibility
for
determining the RFC is reserved to the Commissioner. See id.
§ 416.927(d)(2). The ALJ has the responsibility to determine a
claimant’s RFC, based on all of the relevant medical and other
evidence in the record. See id. §§ 416.927(d)(2), 416.945(a),
416.946(c); Snell, 177 F.3d at 133 (the ultimate responsibility to
determine a claimant’s RFC rests solely with the ALJ).
This is exactly what the ALJ did here. In her decision, the
ALJ thoroughly reviewed the medical record, noting that much of
Plaintiff’s treatment was considered “conservative,” including
chiropractic and physical therapy for his brachial plexus injury
and
neck
and
back
injuries,
occasional
use
of
prescription
medications for pain, a “somewhat normal level of daily activity
and
interaction,”
and
the
treatment
notes
indicating
that
Plaintiff’s most severe condition was improving, not worsening.
T. 21-25. No surgical intervention was recommended,2 T. 24, and his
hearing testimony suggested that his longstanding unemployment may
not have been attributable to his medical problems. T. 25. In sum,
the ALJ evaluated all of the relevant evidence in formulating
2
Plaintiff underwent surgery to remove the bullet from his right upper
chest in 2012. Thereafter, his condition progressively improved. T. 21-22.
9
Plaintiff’s RFC. See Johnson v. Colvin, 669 Fed. Appx. 44, 46-47
(2d Cir. 2016) (citing 20 C.F.R. § 416.945(a)(3), explaining that
an ALJ looks to “all of the relevant medical and other evidence”
including relevant medical reports, medical history, and statements
from the claimant when assessing an applicant’s RFC); see also
Matta v. Astrue, 508 Fed. Appx. 53, 56 (2d Cir. 2013) (the RFC need
not correspond to any particular medical opinion; rather, the ALJ
weighs and synthesizes all evidence available to render a RFC
finding consistent with the record as a whole). Simply because the
ALJ afforded no single opinion controlling weight does not mean, in
this case, that she substituted her own expertise of the medical
proof for medical opinion. Where, as here, “the record contains
sufficient evidence from which an ALJ can assess the [claimant’s]
residual functional capacity,” Tankisi v. Comm’r of Social Sec.,
521 Fed. Appx. 29, 34 (2d Cir. 2013), a medical source statement or
formal medical opinion is not necessarily required.
For all of these reasons, I find that the ALJ’s analysis of
the
medical
opinions
and
her
RFC
finding
are
supported
by
substantial evidence in the record.
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision is not legally flawed and is based on
substantial
evidence
and
is,
therefore,
affirmed.
The
Commissioner’s motion for judgment on the pleadings is granted, and
10
Plaintiff’s motion for judgment on the pleadings is denied. The
Clerk of 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:
Rochester, New York
October 17, 2018
11
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?