Lawrence v. Commissioner of Social Security
Filing
17
DECISION AND ORDER RE 9 Motion for Judgment on the Pleadings; 12 Motion for Judgment on the Pleadings. Signed by Hon. Jeremiah J. McCarthy on 6/19/19. (DAZ)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
MAJOR D. LAWRENCE,
DECISION AND ORDER
Plaintiff,
1:17-CV-01251(JJM)
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,1
Defendant.
______________________________________
This is an action brought pursuant to 42 U.S.C. §405(g) to review the final
determination of defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, that
plaintiff was not entitled to Supplemental Security Income (“SSI”). Before the court are the
parties’ cross-motions for judgment on the pleadings [9, 12]. 2 The parties have consented to my
jurisdiction [13]. Having reviewed the parties’ submissions [9, 12, 15], the Acting
Commissioner’s motion is granted.
BACKGROUND
In November 2013, plaintiff, who was 46 years old, filed an application for SSI,
alleging a disability onset date of November 15, 2009, due to post traumatic stress disorder
1
Nancy A. Berryhill is currently the Acting Commissioner of Social Security. She is therefore
substituted for the “Commissioner of Social Security” as the defendant in this suit. See Fed. R. Civ. P.
25(d); 42 U.S.C. §405(g).
2
Bracketed references are to the CM/ECF docket entries. Unless otherwise indicated, page
references are to numbers reflected on the documents themselves rather than to the CM/ECF pagination.
(“PTSD”), anxiety, depression, “foot disorder”, and arthritis. Administrative record [7], pp. 15560, 195. After plaintiff’s claims were initially denied (id., pp. 89-91), an administrative hearing
was held on June 1, 2016 before Administrative Law Judge (“ALJ”) Michael Hertzig, at which
plaintiff, who was represented by an attorney, and a vocational expert, Rachel Duchon, testified.
Id., pp. 35-71.
The parties’ familiarity with plaintiff’s treatment history, which is fully set forth
in their submissions (plaintiff’s Memorandum of Law [9-1], pp. 4-13; Acting Commissioner’s
Brief [12-1], pp. 4-14), is presumed. The opinion evidence of plaintiff’s physical impairments
included a January 17, 2014 internal medicine consultative exam performed by Abrar Siddiqui,
M.D. [7], pp. 353-56. At that time, Dr. Siddiqui’s diagnoses tracked plaintiff’s chief complaints
of hypertension, sleep apnea, arthritis, depression, anxiety and PTSD. Id., pp. 353, 356. On
examination, plaintiff appeared to be in no acute distress. Id., p. 354. Although plaintiff
complained of low back pain, his lumbar spine showed full range of motion. Id., pp. 355-56. Dr.
Siddiqui diagnosed plaintiff with “mild limitations in the . . . ability to climb, push, pull or carry
heavy objects”. Id., p. 356.
Several months later, plaintiff began pain management treatment with Gautam
Arora, M.D. for his low back. Id., p. 522. At that time, plaintiff was noted to have pain in his
lumbar spine on “extremes of motion”. Id., p. 524. A straight leg test was positive and a sensory
exam of his lower back revealed “decreased sensation, lateral right foot”. Id.3 Dr. Arora
diagnosed plaintiff with “degeneration of lumbar or lumbosacral intervertebral disc”, lumbago,
“lumbosacral spondylosis without myelopathy”, and sciatica. Id., p. 522. Although some
“A straight-leg-raise test is used to indicate whether the patient has an injury to the lumbar spine,
such as a slipped disc or pinched nerve.” Rivera v. United States, 2012 WL 3132667, *2 n. 7 (S.D.N.Y.
2012).
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subsequent straight leg raise tests were negative and sensory exams were normal (see, e.g., id.,
pp. 504, 513), plaintiff continued to treat with Dr. Arora, who administered medial branch block
(id., p. 515) and transforaminal injections (id., pp. 496-97), performed radiofrequency ablation
(id., p. 510),4 and prescribed various pain medications, including Norco, Soma and MS Contin.
Id., pp. 497, 500, 515. Plaintiff ceased treating with Dr. Arora in October 2014. He testified that
he was discharged from pain management because a drug screen showed that he was not
properly taking his pain medications. Id., pp. 50-51.
A Physical Assessment for Determination of Employability was also prepared by
Donna Miller, D.O. for the Erie County Department of Social Services on December 30, 2014.
Id., pp. 552-55. She measured plaintiff’s ability to squat as “25% full”, but noted that plaintiff
declined to perform a lumbar flexion. Id., p. 553. Dr. Miller assessed plaintiff with moderate
limitations (i.e., the ability to perform an activity for between two to four hours) in the ability to
walk, stand, and push/pull, but found no limitation in his ability to sit for four or more hours. Id.
With respect to his capacity to lift, Dr. Miller found that plaintiff could occasionally lift twenty
pounds and frequently lift ten pounds. Id., p. 553. She determined that plaintiff was able to work
40 hours per week with “comfort breaks” and was to “[a]void repetitive or heavy lifting, bending
or carrying”. Id., pp. 554-55.
With respect to plaintiff’s mental impairments, a consultative psychiatric
evaluation was performed on January 17, 2014 by Christine Ransom, Ph.D., who diagnosed
plaintiff with several current conditions, including drug and alcohol abuse, moderate major
depressive disorder, mild to moderate PTSD, and moderate unspecified anxiety disorder. Id., p.
“Radiofrequency ablation involves ‘damaging the nerves that supply a painful joint with a
‘burning’ technique.’” Hamm v. Colvin, 2017 WL 1322203, *5 n.22 (S.D.N.Y. 2017).
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351. Dr. Ransom assessed that plaintiff had “mild difficulty following and understanding simple
directions and instructions, performing simple tasks independently, maintaining attention and
concentration for simple tasks, maintaining a simple regular schedule and learning simple new
tasks”, but also had “moderate difficulty performing complex tasks, relating adequately with
others and appropriately dealing with stress”. Id., p. 350. She explained that “[t]he results of the
evaluation are consistent with moderate psychiatric difficulties which will moderately interfere
with claimant’s ability to function on a daily basis”. Id., p. 351.
Approximately a year later, on January 8, 2015, Jerry Frisicaro, MS, a psychiatric
nurse practitioner, who had treated plaintiff for the previous year, completed an assessment,
which indicated that plaintiff suffered from PTSD and major depression since September 2013
and was “very limited” in the ability to function in a work setting at a constant pace, but was
otherwise moderately limited in nearly all of the other areas of mental functioning, except the
ability to make simple decisions. Id., pp. 549-50.5
In his June 29, 2016 decision, ALJ Hertzig determined that plaintiff’s severe
impairments included depressive disorder not otherwise specified and hypertension, but that
plaintiff PTSD, obstructive sleep apnea and arthritis of the feet were non-severe. Id., p. 18. ALJ
Hertzig also found that plaintiff did not have a medically determinable back impairment,
explaining that “the record contains little objective evidence to corroborate [his] reported
symptoms”. Id., p. 19. He explained that while treating with Dr. Arora, “x-rays of
[plaintiff’s] . . . lumbar spine were unremarkable in March 2014” and that while plaintiff did
have a positive straight leg raise test in April 2014 and “decreased sensation of the lateral right
foot or lateral right leg” at that time, “the remainder of the claimant’s physical examinations
5
Curiously, Nurse Frisicaro also assessed plaintiff physical limitations. [7], p. 550.
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returned no evidence of focal motor deficits and reflect no findings [of] gross neurologic deficits,
weakness, or muscle atrophy”. Id., p. 19. In any event, he noted that even if Dr. Arora’s
diagnosis of “degeneration of lumbar or lumbosacral intervertebral disc is sufficient to establish
the presence of a medically determinable impairment, the generally unremarkable physical
examination findings of record support a conclusion that the impairment is, at most, non-severe”.
Id., p. 19.
ALJ Hertzig assessed plaintiff with the residual functional capacity (“RFC”) to
perform light work “except he can occasionally climb and can frequently interact with coworkers
supervisors, and the general public”. Id., p. 22. In reaching that RFC he gave little weight to the
opinion of Dr. Miller because of the lack of a treating relationship and the “absence of objective
evidence establishing a back impairment and the claimant’s generally unremarkable podiatry
examinations” which provided “little support for the standing, walking, bending, and carrying
limitations”, but found that the lifting limitations were consistent with his history of
hypertension. Id., p. 27. By contrast, ALJ Hertzig appeared to give (albeit not expressly)
substantial weight to Dr. Siddiqui’s opinion, also a consultative examiner. Id. He explained that
Dr. Siddiqui’s physical examination of plaintiff “was largely unremarkable and not suggestive of
significant limitations on his physical functioning”. Id.
With respect to plaintiff’s mental impairments, ALJ Hertzig gave “little weight”
to Nurse Frisicaro’s opinion because he was not an acceptable medical source and only gave
weight to the portion of Dr. Ransom’s opinion that assessed plaintiff with a moderate limitation
in relating with others. Id., pp. 26-27.
Based on the RFC and other factors, he determined that while plaintiff had no
prior relevant work, there were sufficient jobs in the national economy that he was capable of
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performing, and therefore was not disabled from November 12, 2013, through the date of his
decision. Id., pp. 28-29. ALJ Hertzig’s decision became the final decision of the Acting
Commissioner on October 5, 2017 when the Appeals Council found no basis to change the
decision. Id., pp. 1-5. Thereafter, this action ensued.
DISCUSSION
A.
Standard 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.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42
U.S.C. §405(g)). Substantial evidence is that which a “reasonable mind might accept as
adequate to support a conclusion”. Consolidated Edison Co. of New York. Inc. v. NLRB, 305
U.S. 197, 229 (1938).
It is well settled that an adjudicator determining a claim for Social Security
benefits employs a five-step sequential process. Shaw, 221 F.3d at 132; 20 C.F.R. §§404.1520,
416.920. The plaintiff bears the burden with respect to steps one through four, while the Acting
Commissioner has the burden at step five. Talavera v. Astrue, 697 F.3d 145, 151 (2d. Cir. 2012).
Plaintiff argues that ALJ Hertzig erred in determining that he did not have a
medically determinable back impairment (plaintiff’s Memorandum of Law [9-1], pp. 14-15),
failing to develop the record by obtaining the MRI and EMG referenced in the record (id., pp.
16-17), and failing to properly evaluate Dr. Ransom’s opinion that he had a moderate difficulty
dealing with stress. Id., pp. 21-23.6 He also argues that any remand should be to a different ALJ
In a footnote, plaintiff further argues that ALJ Hertzig created a gap in the record “[b]y
essentially rejecting both mental health expert opinions of record – those from Dr. Ransom and NP
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because ALJ Hertzig manifested inappropriate hostility, rather than conducting a full and fair
evaluation of the record Id., pp. 18-21.
B.
Did ALJ Hertzig Err in Determining that Plaintiff did not have a Medically
Determinable Impairment in his Low Back?
Plaintiff argues that ALJ Hertzig erred in determining that his lumbosacral
intervertebral disc disease and spondylosis are non-medically determinable impairments.
Plaintiff’s Memorandum of Law [9-1], p. 14. However, even if that were so, as the Acting
Commissioner argues, “[t]he mere presence of an impairment, or the fact that the claimant has
been diagnosed or treated for an impairment, is insufficient to render a condition ‘severe.’
Rather, severity is determined by the functional limitations that an impairment imposes.” Hayes
v. Berryhill, 2018 WL 3069116, *3 (W.D.N.Y. 2018). See Acting Commissioner’s Brief [12-1],
p. 18. In fact, ALJ Hertzig recognized that even if Dr. Arora’s diagnosis of “degeneration of
lumbar or lumbosacral intervertebral disc is sufficient to establish the presence of a medically
determinable impairment, the generally unremarkable physical examination findings of record
support a conclusion that the impairment is, at most, non-severe”. Id., p. 19.
That finding is supported by substantial evidence. Plaintiff’s treatment records
included little evidence of any limitations. Dr. Arora’s records repeatedly reflected that plaintiff
denied any neurologic difficulties, including balancing, gait, or loss of strength. [7], p. 508 (June
19, 2014), 513 (June 4, 2014), 520 (May 5, 2014), 523 (April 23, 2014), 526 (April 15, 2014).
Objectively, his gait and “sacroiliac joint mobility bilaterally” were almost consistently assessed
Frisicaro”. Plaintiff’s Memorandum of Law [9-1], p. 18 n. 1. However, “it is well-established that
arguments made only in footnotes need not be considered by the Court.” Guerra v. Commissioner of
Social Security, 2018 WL 3751292, *2 n. 1 (W.D.N.Y. 2018).
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as “normal”, and it was noted that he had either “no focal motor deficits” or that they were
within normal limits. Id., pp. 498 (October 3, 2014 – other than his gait, which was assessed as
“leaning to right side”); 501 (August 20, 2014 – other than his gait, which was assessed as “able
to bear weight but painful); 504 (July 21, 2014 – other than his gait, which was assessed as “able
to bear weight but painful”), 508 (June 19, 2014), 513 (June 4, 2014), 521 (May 5, 2014), 524
(April 23, 2014). An x-ray of his back in March 2014 was unremarkable. Id., p. 533. While he
had a positive straight leg raise test (to the left) on April 23 and May 5, 2014 with decrease
sensation in the lateral right foot (id., pp. 521, 524) by June 2014, his straight leg tests were
negative bilaterally and his sensory exams were normal and they remained so for the remainder
of his treatment with Dr. Arora. Id., pp. 501, 504, 508, 513.
In fact, his treating physician, Tinh Trung Dao, M.D., also twice recommended
during this period that plaintiff undertake aerobic activity. Id., pp. 542, 713. And even when
plaintiff saw Dr. Miller in December 2014 for his consultative examination, she assessed
plaintiff with normal gait, heel to toe walk, and neurologic examination. Id., p. 553.
While Dr. Miller assessed his musculoskeletal exam as “abnormal”, she specifically noted that
plaintiff “declined to do lumbar flexion” for that exam. Id.
“Although it is true that ‘the ALJ cannot arbitrarily substitute his own judgment
for competent medical opinion,’ he remains ‘free to choose between properly submitted medical
opinions’ and to rely on those opinions in reaching his disability determination.” Kessler v.
Colvin, 48 F. Supp. 3d 578, 597 (S.D.N.Y. 2014) (quoting McBrayer v. Secretary of Health and
Human Services, 712 F.2d 795, 799 (2d Cir.1983)). Hence, ALJ Hertzig was not bound to
accept Dr. Miller’s opinion over that of Dr. Siddiqui’s, which was consistent with plaintiff’s
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physical examinations and the objective evidence contained in the record. Therefore, I conclude
that ALJ Hertzig did not did not err in his assessment of plaintiff’s low back pain.
C.
Was there a Gap in the Record that ALJ Hertzig was Obligated to Fill?
There appears to have been an MRI and possibly an electromyogram (“EMG”) of
plaintiff’s lumbar spine that was not included in the record. See [7], pp. 522 (Dr. Arora’s April
21, 2014 treatment record ordering an MRI), 517 (Dr. Arora’s May 21, 2014 treatment record
referring to prior EMG and MRI testing). Pointing to the significance the absence of supporting
objective evidence of plaintiff’s low back impairment played in the ALJ Hertzig’s decision,
plaintiff argues that the ALJ erred in failing to obtain those records. Plaintiff’s Memorandum of
Law [9-1], p. 17. In response, the Acting Commissioner argues that “[p]laintiff bears the ultimate
burden of proving that he was disabled throughout the period for which benefits are sought” and
that since plaintiff “had plenty of opportunities to provide the MRI records to the ALJ, the ALJ
cannot be penalized for [his] failure to do so”. Acting Commissioner’s Brief [12-1], pp. 19-20.
“Where the record evidence is sufficient for the ALJ to make a disability
determination, the ALJ is not obligated to seek further medical records”. Johnson v.
Commissioner of Social Security, 2018 WL 1428251, *5 (W.D.N.Y. 2018). When that is not the
case, the Second Circuit has broadly held that “[e]ven when a claimant is represented by counsel
. . . the social security ALJ, unlike a judge in a trial, must on behalf of all claimants
affirmatively develop the record in light of the essentially non-adversarial nature of a benefits
proceeding”. Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). This, however, is not absolute
in all contexts. For example, “[w]here there is a gap in the record . . . district courts in this
circuit have reached conflicting conclusions as to whether the ALJ satisfies that duty by relying
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on the claimant's counsel to obtain the missing evidence”. Sotososa v. Colvin, 2016 WL
6517788, *4 (W.D.N.Y. 2016). See also Edwards v. Commissioner of Social Security, 2019 WL
1673486, *5 (W.D.N.Y. 2019) (“fulfilling her duty to develop the record, the ALJ shared all of
the evidence received by the SSA with Plaintiff and advised him that she would assist him
further with development of the record if he identified witnesses or documents, along with their
names and addresses. Plaintiff made no such requests. At the appeals level . . . . Plaintiff did not
submit additional evidence . . . . If Plaintiff believed additional evidence was in fact available, it
was his duty to provide it or at the very least, take advantage of the ALJ’s offers to assist him in
doing so”).
This is not the ordinary circumstance where the missing records are in the
possession of a third party and the ALJ fails to obtain those records directly or delegates the duty
to do so to plaintiff’s counsel. Compare with Sotososa, 2016 WL 6517788 at *4 (“ALJ did not
satisfy his duty to develop the record just because he told Sotososa’s attorney to obtain the
missing records”); Harris o/b/o N.L.K. v. Berryhill, 293 F. Supp. 3d 365, 369 (W.D.N.Y. 2018)
(“[t]he fact that the essential treatment records were requested, but not received, does not obviate
the ALJ's independent duty to develop the record, particularly since the ALJ could have
exercised his power to subpoena them, but did not”). Here, plaintiff and his counsel were in
possession of the MRI at the hearing and presumably aware of its content. See [7], p. 52 (“Let’s
go off the record for a few minutes while your lawyer looks at those records you just handed
in”). However, even after being told by ALJ Hertzig to promptly submit anything further (id., p.
39 (“if you get them in before the decision goes out the door, I’ll look at them. Otherwise, I
won’t. . . . I’m not holding the record open”), plaintiff and his counsel did not do so. Likewise,
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when plaintiff received the ALJ’s decision, he did not attempt to introduce the MRI before the
Appeals Council. Therefore, “the ALJ did not err in failing to obtain a copy of the . . .
MRI . . . . [T]here was nothing preventing Plaintiff's counsel from submitting the MRI at the
hearing, if she felt that it was necessary”. Ventura v. Colvin, 2014 WL 4955390, *13 (W.D.N.Y.
2014).
While the Acting Commissioner correctly notes that the absence of supporting
objective evidence was not the sole reason for ALJ Hertzig’s rejection of plaintiff’s back
impairment (Acting Commissioner’s Brief [12-1], pp. 18-19), the absence of that evidence was
plainly relevant to his determination. Nevertheless, under these particular circumstances, and in
the absence of any indication that those records showed anything different from what was
already in the record, ALJ Hertzig cannot be faulted for failing to obtain the MRI and EMG.
D.
Did ALJ Hertzig Err in Giving Little Weight to Dr. Ransom’s Opinion that Plaintiff
had a Moderate Difficulty in Dealing with Stress?
Plaintiff argues that ALJ Hertzig erred by being “completely silent on why he
rejected Dr. Ransom’s opinion that [he] would have moderate limitations in dealing with stress”.
Plaintiff’s Memorandum of Law [9-1], p. 22 (emphasis added). That is simply not so. As the
Acting Commissioner responds, ALJ Hertzig was not silent on why he rejected that portion of
Dr. Ransom’s opinion. Acting Commissioner’s Brief [12-1], pp. 20-21. He explained that he
gave “partial weight” to that opinion, crediting that plaintiff has moderate difficulties in relating
with others because it was supported by plaintiff’s “consistent reports of anger and mood swings
and by the observations of depressed mood noted throughout the mental health records” [7], p.
26. ALJ Hertzig gave “little weight” to the remainder of the limitations assessed by Dr. Ransom,
including the moderate difficulty in dealing with stress, because they were “not consistent with
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[his] reported daily activities, which include raising his children, cooking meals, using public
transportation, shopping, and helping his children with homework. These tasks require an ability
to follow simply and sometimes complex instructions, maintain attention, and maintain a
schedule.” He further explained that “[a]lthough Dr. Ransom identified impairment in the
claimant’s attention and concentration and immediate memory, no such findings are noted with
consistency in the mental health treatment records of evidence. Given that Dr. Ransom
examined the claimant on only one occasion, her findings are a snapshot of the claimant’s
functioning and do not provide a description of his mental status over time”. Id., pp. 26-27.
Additionally, in concluding that plaintiff’s PTSD was a non-severe impairment, he explained that
notwithstanding Dr. Ransom’s diagnosis of plaintiff with PTSD, plaintiff’s
“mental health records reflect little workup or treatment for PTSD, and
[plaintiff’s] subjective complaints are related primarily to issues with depression
and anger. The record reveals few, if any, reported symptoms or observed behaviors
one would expect of an individual with PTSD, such as hypervigilance, avoidance of
situations, and flashbacks. Notably, during the psychological consultative examination,
[plaintiff] reported that PTSD had improved with counseling and Dr. Ransom indicated
that the severity of the condition was ‘currently mild to moderate’. . . . Based on the
limited evidence of PTSD symptoms and [plaintiff’s] reported improvement with
treatment, the undersigned finds that PTSD has been managed and has no more than a
minimal effect on [plaintiff’s] ability to perform basic work activities”. Id., p. 20.
In reply, plaintiff switches gears. He no longer argues that ALJ Hertzig was silent
on why he rejected the stress limitation; instead, he argues for the first time that his explanation
(i.e., that the stress limitation is inconsistent with his activities of daily living) is “not enough to
reject a medical opinion”. Plaintiff’s Reply [15], p. 4. However, “the Court generally does not
consider arguments that are raised for the first time in a reply brief”. Mcfall v. Colvin, 2016 WL
1657877, *8 (W.D.N.Y. 2016). In any event, it is evident from the portions of ALJ Hertzig’s
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opinion discussed above that he relied on more than plaintiff’s daily activities in giving little
weight to Dr. Ransom’s opinion that plaintiff had moderate difficulties in dealing with stress.7
CONCLUSION
For these reasons, the Acting Commissioner’s motion [12] is granted and
plaintiff’s motion for judgment on the pleadings [9] is denied.
SO ORDERED.
Dated: June 19, 2019
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
7
Based upon my conclusion that remand is not warranted, it is unnecessary for me to address
plaintiff’s argument that this case should be referred to a different ALJ on remand. Plaintiff’s
Memorandum of Law [9-1], pp. 18-21.
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