Truesdell v. Commissioner of Social Security
Filing
21
DECISION AND ORDER denying 12 Motion for Judgment on the Pleadings; granting 17 Motion for Judgment on the Pleadings. Plaintiffs motion for judgment on the pleadings [#12] is denied, Defendants motion [#17] is granted, and this matter is dismissed. The Clerk of the Court is directed to enter judgment for Defendant and close this action. Signed by Hon. Charles J. Siragusa on 9/30/19. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
LYDIA G. TRUESDELL,
Plaintiff
DECISION AND ORDER
-vs1:18-CV-0198 CJS
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
________________________________________
APPEARANCES
For the Plaintiff:
Brandi C. Smith, Esq.
Kenneth R. Hiller, Esq.
Law Offices of Kenneth Hiller
6000 N. Bailey Avenue, Suite 1A
Amherst, New York 14226
For the Defendant:
Heather Sertial, Esq.
Prashant Tamaskar, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Dennis J. Canning, Esq.
Scott C. Keller, Esq.
Social Security Administration
Office of General Counsel
601 E. 12th Street, Room 965
Kansas City, Missouri 64106
1
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of Lydia Truesdell for Supplemental Security Income
(“SSI”) benefits. Plaintiff claims to be completely disabled due to a combination of
ailments, including seizures, fibromyalgia, orthopedic problems and mental health
problems. Now before the Court is Plaintiff’s motion (Docket No. [#12]) for judgment on
the pleadings and Defendant’s cross-motion [#17] for the same relief. For the reasons
discussed below, Plaintiff’s application is denied, Defendant’s application is granted,
and this action is dismissed.
FACTUAL BACKGROUND
The reader is presumed to be familiar with the facts and procedural history of this
action. The Court will summarize the record as necessary for purposes of this Decision
and Order.
Plaintiff’s education consists of high school and some years of college.
Plaintiff’s employment history includes jobs as a waitress, janitor and retail store clerk. 1
Although, Plaintiff only had reported earnings during the five-year period between
2009 and 2013. 2 In 2012, Plaintiff earned almost fourteen thousand dollars, but during
the other four years she never earned above $7,500. Plaintiff is primarily a single,
stay-at-home parent, who subsists on social services benefits. At the start of the
1
2
Transcript at 289.
Transcript at 404.
2
period of alleged disability, Plaintiff was caring for two young children. Later during the
period at issue in this case, Plaintiff gave birth to another child.
In 2013, Plaintiff received her medical care from the Community Health Center of
Niagara, in Niagara Falls, New York, where her primary care physician was Tinh Dao,
M.D. (“Dao”). 3 Plaintiff also received mental health therapy at Niagara County Mental
Health, where her therapist was Mary Webb, LCSWR (“Webb”). 4 Plaintiff also saw a
neurologist, Naypathappa Anand, M.D. (“Anand”). 5
On July 26, 2013, Plaintiff began treatment with Webb at Niagara County Mental
Health. 6 Plaintiff told Webb that she was unemployed and lived by herself with her two
young sons, ages 7 and 1 month. Plaintiff’s chief complaint was ongoing problems with
the father of her 7-year-old child, whom Plaintiff claimed was abusive. Plaintiff stated
that she was experiencing “acute anxiety” over this relationship. 7 Plaintiff indicated that
she had no relationship with the father of her 1-month-old child, and implied that she did
not know the father’s identity, since she had been “assaulted and became pregnant.”8
Plaintiff told Webb that her former significant other (the father of the 7-year-old) had
physically and sexually abused her over a period of years, during which she had several
orders of protection against him. Plaintiff also stated, though, that this same man had
regular unsupervised visitation with their son. Plaintiff complained of symptoms
including crying spells, flashbacks, and feelings of detachment from others. Plaintiff
3
4
5
6
7
8
Transcript at 414, 426.
Transcript at 426,
Transcript at 429.
Transcript at 484.
Transcript at 474.
Transcript at 474, 498.
3
also claimed that she had been hospitalized on four occasions for depression years
earlier. 9 Upon examination, Webb reported that Plaintiff seemed oriented, alert and
euthymic, with normal memory. 10 Webb noted that Plaintiff seemed preoccupied with
domestic violence, and that she exhibited poor judgment and diminished
attention/concentration. Webb further noted that Plaintiff’s euthymic mood seemed
odd, since it “did not match the symptoms she was alleging,” and that she would need
to further explore and evaluate this inconsistency. 11 Indeed, Webb went so far as to
contact Plaintiff’s prior therapist about her concerns regarding the apparent “disconnect
between [the] client’s affect and reported symptoms,” and the prior therapist reportedly
told Webb that she had had the same concern about Plaintiff. 12
On August 1, 2013, Plaintiff again met with Webb for therapy, at which time
Webb noted that Plaintiff was “currently in a court battle with son’s father and has
petitioned for an Order of Protection and is clearly in opposition to what the court is
ordering and recommending.” 13
On August 7, 2013, Plaintiff saw Webb again, at which time Webb noted that
Plaintiff seemed to exhibit an “evasive” attitude. 14 Webb again noted that Plaintiff’s
affect seemed incongruous with the symptoms that she was alleging. Plaintiff told Webb
that her memory was impaired. Webb noted, though, that Plaintiff’s attention and
9
Transcript at 474-475.
Transcript at 475.
11 Transcript at 474.
12 Transcript at 485. The prior therapist further told Webb that Plaintiff had complained to her of posttraumatic stress disorder (“PTSD”) due to childhood sexual abuse. Id.
13 Transcript at 485.
14 Transcript at 488.
10
4
concentration seemed normal, and that she could “attend and maintain focus.” 15
Plaintiff told Webb that she had a few close friends and was actively involved in her
church. Plaintiff stated that in her free time she went for walks, worked on the
computer, and engaged in “painting, pottery, bowling, baking [and] cooking.” 16 Webb
again noted that Plaintiff seemed evasive, and that her statements did not seem to
match her outward appearance, stating: “Since her affect does not match her symptoms
nor the severity of symptoms as she identified them and her story was not making
sense as she related, therapist will further assess her on an ongoing basis for
clarification of this.”17
On August 21, 2013, Plaintiff went to physician Dao’s office for the first time, to
establish a treating relationship. During that visit, Plaintiff had a physical
examination. 18 At that time, Plaintiff’s only reported complaints were of a runny nose
and congestion. Plaintiff appeared to be in no distress, and the physical exam was
unremarkable, except for some mild congestion and tenderness in the sinuses.
Plaintiff had full range of motion in her neck, and an examination of her back was
similarly normal. 19 Neurologic findings were also normal, and Plaintiff had full strength
in all extremities. 20 The results of a mental status exam were similarly normal, with
Plaintiff exhibiting good eye contact, good judgment and insight, good mood, and full
15
16
17
18
19
20
Transcript at 488.
Transcript at 500.
Transcript at 500.
Transcript at 468.
Transcript at 468.
Transcsript at 469.
5
affect. 21 In sum, Plaintiff’s examination was completely normal, except for some sinus
congestion.
On August 28, 2013, Plaintiff had another therapy session with Webb, who again
noted that Plaintiff’s affect seemed “inappropriate, smiling,” in contrast with the
symptoms that she was alleging. 22 Webb reported that Plaintiff seemed preoccupied
with the fact that her ex-boyfriend (the father of the 7-year-old son) had moved his
residence nearer to her’s and the child’s, and that Plaintiff’ attitude seemed “dramatic.” 23
Webb reported that during the session, she pointed out that Plaintiff had made
statements that seemed to contradict what she had previously told Webb, but Plaintiff
denied that she had done so. 24
On October 9, 2013, Plaintiff had another therapy session with Webb, at which
time her mood was again “euthymic.” 25
On November 5, 2013, Plaintiff returned to Dr. Dao’s office, now complaining of
being “IN LOTS OF PAIN.” (Transcript at 466, emphasis in original). Plaintiff
complained of “generalized pain,” and stated that she had a family history of
fibromyalgia, and believed that she might also have fibromyalgia. In this regard,
Plaintiff claimed that she had painful and swollen joints, “coordination difficulty,”
dizziness, fainting, gait abnormality, headaches, loss of strength, tremors and loss of
bladder and bowel control. 26 Despite all of these complaints, upon physical examination
21
22
23
24
25
26
Transcript at 469.
Transcript at 501.
Transcript at 501.
Transcript at 502.
Transcript at 509.
Transcript at 467.
6
the findings were again normal, and Plaintiff appeared to be in no acute distress. 27 A
mental status exam was similarly normal. Nevertheless, the examiner diagnosed
Plaintiff with fibromyalgia, prescribed Lyrica, and referred Plaintiff for a neurological
exam (even though the examiner’s own neurologic exam was normal). 28
On September 11, 2013, Plaintiff returned to see Webb. Plaintiff discussed her
tumultuous relationship with her former boyfriend, ”Michael,” who she said might be the
father of her youngest child. Plaintiff stated that she was interested in reuniting with
Michael, but that he would need to change his behavior. Plaintiff also related ongoing
problems with the father of her older son. In that regard, Webb noted that Plaintiff
seemed “vague and avoidant” when asked about her alleged flashbacks involving
abuse by this man. Plaintiff indicated that her anxiety about this relationship was
causing her to only get 2-3 hours of sleep per night, but Webb noted that Plaintiff
appeared to be fully rested. On this point, Webb reported that Plaintiff had not
previously complained of difficulty sleeping, which was a further point of “incongruence”
that she would need to address with Plaintiff at some later time. 29
On October 23, 2013, Plaintiff returned for another session with Webb, at which
time Webb reported additional concerns over apparent inconsistencies in Plaintiff’s
statements. In particular, after Plaintiff again claimed that she was only getting 2-3
hours of sleep, Webb again noted that Plaintiff always seemed alert and rested during
27
28
29
Transcript at 467.
Transcript at 466.
Transcript at 511.
7
their sessions. 30 Plaintiff also indicated that resumed smoking after her boyfriend
Michael cheated on her with another woman. Webb pointed out, however, that Plaintiff
had previously indicated that she was not in a relationship with Michael. Webb
reiterated that there were “discrepancies that need to be cleared up.” 31
On November 1, 2013, Plaintiff filed an application for SSI benefits, claiming that
she became totally disabled on January 15, 2013. (This alleged disability onset date
was seven months prior to the completely normal examination by Dao on August 21,
2013). Plaintiff alleged disability due to bipolar disorder, post-traumatic stress disorder
(“PTSD”), anxiety, obsessive-compulsive disorder (“OCD”), spina bifida, fibromyalgia,
asthma, osteoarthritis, sciatica, cataracts and hashimoto thyroiditis. 32
On February 3, 2014, Plaintiff returned to Dao’s office, for follow up of her various
complaints. Plaintiff appeared to be in no distress and her physical/neurological
examination was normal, with full strength in all extremities. 33 Plaintiff denied having
any sleep disturbance, coordination difficulty, dizziness, fainting, gait abnormality,
headache or loss of strength. 34
On March 27, 2014, Plaintiff returned for another therapy session with Webb, at
which time she was smiling and euthymic. Webb reported that Plaintiff’s speech was
“contradictory,” and further stated: “This client continues to give contradictory
statements . . . to statements made in earlier sessions and is not able to clarify this.
30
31
32
33
34
Transcript at 513.
Transcript at 513.
Transcript at 317.
Transcript at 531-532.
Transcript at 532.
8
She has little insight into her problems.”35 Webb continued: “For example she said that
[her older son] James’s father is no longer giving her trouble and has not done so since
he was arrested last year in February. Therapist attempted to clarify this with her and
confronted how this does not line up with what she said when she first came in. Writer
looked back at admission note and read to her that her statements at the time in
opening in August 2013 were that James’s father still come around and has physically
and sexually abused her. She attempted to change the subject therapist brought her
back to focus on this issue which she denied.”36
On April 10, 2014, Plaintiff returned to Webb’s office. Plaintiff was initially
euthymic, but became angry when Webb pointed out that Plaintiff had seemingly made
various inconsistent statements to her, and that Plaintiff needed to be truthful if she
hoped to benefit from treatment. 37 Plaintiff stated that she had been truthful, and that
she felt that Webb was not listening to her concerns. In particular, Plaintiff stated that
she wanted the therapy sessions to focus more on her ongoing problems with her
boyfriend Michael, and less on Plaintiff’s past problems. 38
On April 14, 2014, neurologist Dr. Anand examined Plaintiff upon a referral from
Dr. Dao. Anand noted that Plaintiff was complaining of low back pain, radiating into her
lower extremities, primarily into the right leg. 39 Plaintiff reportedly stated that her
fibromyalgia symptoms consisted of pain around her shoulder blades, and that Lyrica
35
36
37
38
39
Transcript at 558
Transcript at 558.
Transcript at 255.
Transcript at 555.
Transcript at 573.
9
helped her symptoms. Plaintiff also reported having several migraine headaches per
week, but stated that Excedrin Migraine was effective in treating them. Anand
performed a physical exam and noted only slightly decreased foot flexion/dorsiflexion on
one side, and “tenderness at L4-L5 lumbar spine.”
On April 28, 2014, neurosurgeon Veetai Li, M.D. (“Li”) examined Plaintiff upon a
referral from Dr. Dao, concerning Plaintiff’s back pain. 40 According to Li, Plaintiff
described her condition as follows:
She was well until January of this year when out of the blue her back pain
recurred which is with her 24/7. The intensity is 8-9/10 located in the mid lower
lumbar area, radiates up her back and into her buttocks bilaterally but not any
farther than that. She denies any lower extremity paresthesias or weakness.
Her bladder is a little bit different in that she has a harder time emptying her
bladder[.] 41
Plaintiff denied having any “numbness, tingling or weakness in her extremities.” 42
However, Plaintiff told Li that she needed a cane to ambulate, due to pain. Upon
physical examination, Li noted that Plaintiff had “full range of motion of all of her
extremities with strength 5/5 and good tone noted throughout.” Further, Plaintiff’s gait
was normal, and “she was able to demonstrate a tandem gait without any difficulty.”
Nevertheless, Li ordered an MRI of the lumbar spine.
On May 15, 2014, Plaintiff returned to Dao’s office, now complaining of panic
attacks and anxiety. Plaintiff indicated that she was already receiving mental health
40
41
42
Transcript at 739-740.
Transcript at 740.
Transcript at 739.
10
therapy, but that Webb was “not interested” in treating her panic attacks. 43 Plaintiff
also apparently complained of pain and decreased movement in her lumbar-sacral
area. 44 Upon examination, Plaintiff appeared both physically and mentally normal, with
no abnormal findings. She had normal gait and normal motor strength and full strength
in all extremities. Plaintiff also denied any difficulty sleeping. 45 Nevertheless, based
on her subjective complaints Plaintiff was assessed with “depressive disorder, not
elsewhere classified,” and “panic disorder without agoraphobia,” prescribed medication
for her depression, and referred for a CT scan of her lumbo-sacral spine.
On June 3, 2014, Dr. Anand notified Dr. Dao’s office that he had again seen
Plaintiff. Anand reported that Plaintiff was again complaining of back pain radiating into
her right leg. 46 (She had previously told Dr. Li that the pain did not radiate into her legs).
Plaintiff also told Anand that she had been in a car accident, and had sustained a
“whiplash injury, [but had not gone] to the ER.” Plaintiff indicated that she was
experiencing neck pain, radiating into her left shoulder. Plaintiff stated that she took
Excedrin for migraine headaches, and Lyrica for “fibromyalgia,” and that both
medications were effective. Anand performed a physical exam and reported normal
findings, including full strength in all extremities, except that Plaintiff’s “foot flexion and
dorsiflexion on the right side [was] mildly weaker than the left side.”
On June 10, 2014, Plaintiff returned to see Webb, at which time Plaintiff seemed
43
44
45
46
Transcript at 529.
Transcript at 529.
Transcript at 530.
Transcript at 572.
11
anxious and depressed, with a constricted affect. Webb opined that to the extent
Plaintiff had depression and anxiety, it was related to her relationship with her boyfriend,
Michael. 47
On June 17, 2014, Plaintiff returned to Dr. Dao’s office, complaining only of a
sore throat and ear ache. 48
On July 15, 2014, Webb discharged Plaintiff due to Plaintiff’s non-compliance
with treatment. 49 In particular, Webb noted that over the course of their treating
relationship, Plaintiff had kept fourteen appointments and cancelled seven
appointments, without re-scheduling the missed appointments. Webb also reiterated
there had been apparent inconsistencies in Plaintiff’s statements to her.
On August 5, 2014, neurologist Dr. Anand again examined Plaintiff. 50 Anand
noted that Plaintiff now was complaining of “back pain with radiation down her low
extremities, left more than right.” (On June 3, 2014, Plaintiff told Anand that the pain
was radiating down her right leg). Anand noted that Plaintiff had already received
various tests, including an x-ray of her spine, MRI of her brain, and various tests for
connective-tissue problems, and that all the test results had been normal. Anand noted
that his own physical exam of Plaintiff was also normal, and that her “coordination/gait
[was] normal.” Anand nevertheless indicated that he was sending Plaintiff for a CT
scan of her lumbosacral spine.
47
48
49
50
Transcript at 541.
Transcript at 528.
Transcript at 535.
Transcript at 570.
12
On August 26, 2014, Dr. Anand wrote to Dao’s office with the results of a CT
scan of Plaintiff’s lumbar spine. 51 Anand indicated that the CT scan showed only “mild
disc bulging at L3-L4, L4-L5.” Anand noted that Plaintiff had complained to him of
“severe pain in the back and . . . difficulty with ambulation.” Anand further noted that
Plaintiff was using a cane to ambulate, purportedly due to pain. However, Anand
stated that upon examination, Plaintiff’s cranial nerves were unremarkable and her
strength was symmetrical. 52 Anand further indicated that he had conducted various
tests for connective disorders, the results of which were unremarkable.
Shortly thereafter, Plaintiff switched to an entirely new team of doctors, including
a new primary care doctor, neurologist and mental health treatment provider. Plaintiff
reportedly indicated that she had been dissatisfied with the care that she was receiving
from her old doctors, although the particular reasons for that are not specified. 53
On September 9, 2014, Plaintiff began a new mental health treatment
relationship at Horizon Corporation (“Horizon”), 54 where her primary therapist was
Elizabeth Ostrom, N.P. (“Ostrom”). According to the intake note, Plaintiff self-referred
herself for treatment of depression and anxiety. Plaintiff reportedly stated, however,
that her immediate interest was to get her “case worker off [her] back about work”: “I
need help with my mind. My thoughts are all over the place. I need help to get my
case worker off my back about work – I will flip out. I can’t work. I can’t be around
51
52
53
54
Transcript at 569.
Transcript at 569.
Transcript at 658.
Transcript at 690.
13
people, I can’t handle it.” 55 The Court concludes that means that at that time, Plaintiff’s
social services caseworker was encouraging her to find employment.
Plaintiff reportedly told Ostrom that she had previously been diagnosed with
“PTSD, OCD, social anxiety, panic, bipolar and depression.” Plaintiff stated that she
had been depressed “on and off” since age eleven, but that her depression had been
particularly bad since 2013, when she had a child and then found out that her boyfriend
was cheating on her. 56 Plaintiff stated that her depression was 10/10, that she felt
hopeless and helpless, and that she could not concentrate or focus. 57
Regarding her alleged OCD (obsessive compulsive disorder), Plaintiff told
Ostrom that she constantly checks the locks on her doors at home, and constantly runs
the vacuum cleaner. Indeed, Plaintiff asserted that she cleaned her home with the
vacuum cleaner for hours at a time: “She reports constantly vacuuming – states that she
spends “a lot of hours” vacuuming – “as much as I can physically try to.” 58
Plaintiff further told Ostrom that she had been diagnosed with attention deficit
disorder (“ADD”) as a teenager, 59 although as far as the Court is aware this is the first
and only mention of such a diagnosis in the record.
Regarding her family history, Plaintiff reportedly told Ostrom that her father had
attempted suicide and that her second cousin’s father had actually committed suicide. 60
However, when Plaintiff previously provided her family history to Webb, she stated only
55
56
57
58
59
60
Transcript at 690.
Transcript at 690.
Transcript at 690.
Transcript at 691.
Transcript at 691.
Transcript at 691.
14
that her cousin had committed suicide, but made no mention of her father having mental
illness or attempting suicide. 61
Plaintiff told Ostrom that she feels paranoid and believes that people are out to
get her. Plaintiff alleged that she had attempted suicide four times as a teenager,
though she previously told Webb that she had attempted suicide one time. 62 Plaintiff
also claimed that she had been hospitalized seven times for mental health issues.
However, she previously told Webb that she had been hospitalized only four times for
depression. 63 Oddly, Plaintiff indicated that on one occasion she had admitted herself
to the hospital for a “nervous breakdown” after witnessing a friend have a seizure,
although she indicated that she herself had no history of seizures. 64
Plaintiff also
reported having “paralyzing” panic attacks “every day and night” for over a year, with
each attack lasting “hours to days.” 65 Plaintiff stated that she could not go out in public
without having a panic attack, although she could occasionally go grocery shopping. 66
When Ostrom formulated her Plan of Care for Plaintiff, she noted that she
questioned Plaintiff’s credibility at times due to the inconsistency of some of her
statements. 67 In doing so, Ostrom became the third mental health therapist to question
61
Transcript at 497.
Transcript at 483 (“one suicide attempt as a teenager”).
63 Transcript 474-475.
64 Transcript at 691 (“I fell apart after I found my best friend convulsing on her sofa.”); see also, Transcript
at 691 (“Denies history of seizures, diabetes.”).
65 Transcript at 690.
66 Transcript at 691.
67 See, Transcript at 693 (“I do question her credibility at times due to mixed reports – for instance,
records indicate a history of reported hallucinations, and Lydia denies ever having any A.V
hallucinations.”).
62
15
Plaintiff’s credibility. 68
On October 15, 2014, Plaintiff had her first office visit with her new primary care
doctor, Lonny Walter, M.D. (“Walter”). 69 Plaintiff reportedly told Walter that she had
been in a motor vehicle accident in 2004, and that she had experienced chronic pain
ever since, particularly in her back. Plaintiff also stated that she had been diagnosed
with fibromyalgia and headaches. Upon physical examination, Dr. Walter noted that
Plaintiff appeared to be “healthy [and] in no apparent distress.” Regarding Plaintiff’s
musculoskeletal system, Walter noted: “Good overall tone and ROM [range of motion]
extremities. Normal gait. [She d]oes complain of some pain with trunk and neck
ROM.”
On November 6, 2014, Plaintiff saw Dr. Walter for a possible upper respiratory
infection, at which time Walter noted that Plaintiff appeared to be healthy and in no
apparent distress, apart from sounding congested. 70
On November 10, 2014, Plaintiff met with her new neurologist, Michael Giglio,
M.D. (“Giglio”). 71 Plaintiff reportedly stated that she had been experiencing pain
“everywhere” since she was a teenager, but that the pain had been getting worse “over
the last few months.” Plaintiff further stated that she was having “new symptoms,”
namely “shakiness, weakness in upper and lower extremities.” Plaintiff claimed that
she was having memory loss and “uncontrollable shakes” or seizures at night. Plaintiff
68
69
70
71
Transcript at 485.
Transcript at 746.
Transcript at 745.
Transcript at 593.
16
stated that her migraine headaches were better and that she wanted to focus on her
seizures. Upon physical examination, Plaintiff claimed to have pain in her jaw, upper
neck muscles and upper back muscles. Giglio also observed a “slightly antalgic gait.”
Otherwise, though, Plaintiff’s results were normal, including full strength bilaterally in her
extremities. 72 Giglio also noted “little to no pain on palpitation of the cervical
vertebrae.”
On November 18, 2014, Plaintiff told Ostrom that she was “[g]etting 5-6 hours of
interrupted sleep most nights.” 73
On December 4, 2014, Plaintiff returned to see Giglio. Plaintiff denied having
any shaking “spells” since her last visit. She complained, however, about “general
pain” and “stinging and burning sensations in her neck.” 74 The results of Giglio’s
physical examination were normal, including a normal gait. 75 Giglio noted, somewhat
vaguely, that Plaintiff “continues to have copious general pain,” 76 though the results of
his examination were, again, unremarkable.
On December 29, 2014, Plaintiff returned to Giglio’s office, stating again that she
had no new shaking episodes. Plaintiff also stated that her migraine headaches had
improved, and that she was happy with the treatment she was receiving for those.
On February 17, 2015, Plaintiff reportedly told Ostrom that she belonged to a
Bible study group, which provided her with a good support network. 77
72
73
74
75
76
77
Transcript at 595.
Transcript at 670.
Transcript at 590.
Transcript at 591.
Transcript at 589.
Transcript at 654, 655.
17
On February 19, 2015, Giglio provided Plaintiff with a report concerning her
ability to work. At that time, Plaintiff was pregnant, and Giglio noted that the pregnancy
was considered “high risk.” Notably, Giglio’s report did not purport to measure or report
on any of Plaintiff’s functional limitations. Instead, Giglio crossed out the section of the
form intended for measurements of Plaintiff’s functional abilities and wrote, “Not
measured.” Below that section of the form, there are two fill-in-the-blank narrative
sections, one entitled “Limitations on Work Activities,” and one entitled “Screening for
Possible SSI Referral.” It clearly appears to this Court that the handwriting in these two
sections is different, though this is not explained. 78 The section entitled “Limitations on
Work Activities” appears to be in the same handwriting with which Giglio purportedly
signed the form, and suggests that Plaintiff is temporarily unable to work, due to her
pregnancy, stating: “The pt is currently in high levels of general pain + during pregnancy
I cannot treat her pain well without harming the baby.” 79 Meanwhile, the writing under
“Limitations on Work Activities” appears to be in a different hand, and suggests that
Plaintiff is permanently unable to work, stating: “Pt has severe impairment + function not
able + not allowed to work under any circumstances or conditions.” As an aside, the
78
79
Transcript at 737.
Transcript at 737.
18
handwriting on the second narrative appears to match Plaintiff’s handwriting. 808182
However, since the Commissioner has not noted this or expressed any similar concern
on this issue, the Court, for purposes of this Decision and Order, will assume that the
entire document represents Giglio’s opinion. 83
On February 21, 2015, Plaintiff went to a hospital emergency room, claiming that
she had suffered a seizure. 84 Plaintiff indicated that she was not taking her usual
medication because she was pregnant. 85 Neurological testing and an MRI scan of
Plaintiff’s brain were negative for any problems. 86 Plaintiff was given Keppra, an antiseizure medication, and sent home. Plaintiff later unilaterally stopped taking the
Keppra, purportedly because she felt that it was making her angry.
On June 8, 2015, Plaintiff, who was still pregnant, saw Giglio again, complaining
of increased pain in her hips and lower back. 87 Plaintiff stated that she had stiffness
and inflammation, and difficulty “walking, standing, going up and down stairs, walking to
80
Compare, the aforementioned section of Giglio’s report, Transcript 737, with Plaintiff’s handwritten
request for Appeals Council Review, Transcript 391.
81 It is a crime to obtain or to attempt to obtain SSI benefits by fraud. See, 42 U.S.C. § 1383a(a)(3)
(“Whoever . . . having knowledge of the occurrence of any event affecting (A) his initial or continued right
to any such [SSI] benefit, or (B) the initial or continued right to any such benefit of any other individual in
whose behalf he has applied for or is receiving such benefit, conceals or fails to disclose such event with
an intent fraudulently to secure such benefit either in a greater amount or quantity than is due or when no
such benefit is authorized . . . shall be fined under Title 18, imprisoned not more than 5 years, or both[.]”)
82 This report was submitted to the ALJ directly by Plaintiff’s attorney, who presumably obtained it from
Plaintiff. Transcript at 315-316.
83 The Court’s belief on this point has no bearing on the outcome of this action in any event, since, as
discussed further below, the Court agrees with the ALJ’s determination that even if Giglio wrote the
report, the report is merely an opinion on an issue reserved to the Commissioner, which is not supported
by actual testing or by Giglio’s own treatment notes.
84 Transcript at 238.
85 Transcript at 239.
86 Transcript at 239.
87 Transcript at 582.
19
the corner store.” 88 Plaintiff stated that she had been in “horrible” pain lately, since she
had run out of Lyrica, her fibromyalgia medication. 89 Giglio’s physical examination of
Plaintiff, though, revealed normal results, with full strength in all extremities and normal
gait. 90
On September 22, 2015, Plaintiff told Ostrom that she was having difficulty with
her youngest son, in that she was having to chase him because he kept climbing out of
his stroller: “States that he makes his way out of the stroller and is running off on her
while they are out and about. Reports significant amount of stress related to this.
States that her knee pain has increased due to having to run after [him].”91 Plaintiff also
stated that she was taking her various medications, and experienced no side effects:
“Reports medication compliance, denies having side effects. . . . Sleep is fair –
reports getting 4-6 hours of sleep most nights.” 92
On October 19, 2015, Giglio saw Plaintiff again for an office visit, at which time
Plaintiff, who had recently given birth, was complaining of having a “terrible”
headache. 93 Plaintiff stated that she was not sleeping well, “secondary to her new
baby.” Plaintiff again complained of “copious general pain.” Plaintiff had not had any
new seizures. Regarding the alleged seizures, Giglio referred to them as “unspecified
convulsions,” and noted that he was “not yet convinced that these are epileptic seizures
vs non-epileptic ones.” Plaintiff complained of pain in her neck and back upon
88
89
90
91
92
93
Transcript at 582.
Transcript at 582.
Transcript at 583.
Transcript at 620.
Transcript at 620.
Transcript at 579.
20
palpation. Otherwise, though, the results of Giglio’s physical examination were again
normal, including normal gait. 94
Also, on October 19, 2015, Plaintiff was seen by Gaurav Jain, M.D. (“Jain”), a
specialist in “physiatry,” meaning physical medicine and rehabilitation. 95 Plaintiff stated
that she had pain at the level of 7-9/10, and that her symptoms were exacerbated by
walking, lifting and standing. According to Jain: “She describes her discomfort as
sharp tingling, burning, stabbing sensation throughout her shoulders, low back, legs and
feet; global in nature.” Jain noted that Plaintiff put forth “poor effort” during his physical
examination of her, and concluded that she had essentially full strength (“motor
examination with reinforcement appears 5/5 and again, with poor effort; rated 4+/5
globally”), with negative straight-leg raising tests bilaterally. 96
On January 22, 2016, Plaintiff went to the hospital complaining of slurred speech
and left-sided weakness. 97 Hospital staff initially suspected that Plaintiff might be having
a stroke or cerebral vascular accident (“CVA”), and they performed various testing
including a cervical spine MRI 98 and a CT scan of Plaintiff’s head and brain. The CT
scan showed only a “dystrophic calcification 5 mm focus left central cerebellum,” which
Plaintiff apparently maintains is from an old head injury sustained during a motor vehicle
accident. The MRI of Plaintiff’s neck showed three abnormalities: a disc protrusion at
CS-C4, indenting the thecal sac and touching the anterior aspect of the spinal cord; a
94
95
96
97
98
Transcript at 580.
Transcript at 576.
Transcript at 577.
See, Transcript Ex. 9F, pp. 695-719.
Transcript at 698.
21
mild diffuse disc protrusion at C5-C6; and a mild annular tear at C6-C7 without disc
protrusion.” There is no statement in the medical record, however, relating these
findings to Plaintiff’s complaint of left-sided weakness and slurred speech, and Plaintiff
was evidently released from the hospital without restrictions. 99 The actual date of
discharge is unclear, since some of the documents indicate that Plaintiff was discharged
on January 22nd, 100 while others suggest that she remained in the hospital until January
25th.
On February 26, 2016, after Plaintiff’s claim for SSI benefits was denied initially,
a hearing was held before an Administrative Law Judge (“ALJ”). At the hearing,
Plaintiff testified that she lived with and provided care for her three children, ages nine,
two and seven months. 101 Plaintiff also testified, however, that she was essentially a
complete invalid, who was barely able to walk and who was unable to perform any
household chores such as cooking, cleaning or shopping. Plaintiff indicated that she
received help doing all of those chores from family members or persons in the
community. 102 Plaintiff attributed her alleged physical limitations to orthopedic
problems in her neck and a traumatic brain injury. 103
99
Transcript at 697.
Transcript at 202, 707, 714.
101 Transcript at 300.
102 Transcript at 306. For example, concerning Plaintiff’s claimed inability to lift, which would preclude
her from lifting her own baby, she testified that first thing in the morning, one of her older daughters would
need to come over to her house and physically hand the baby to her, and that someone would need to
hand the baby to her every time it needed to be fed. See, e.g., Transcript at 305 (“I wake up and my
daughter comes over and helps me[.] . . . She’ll pick up and bring over the baby to me so I can feed him.
When I’m done feeding him, she’ll hold him while I crawl up the stairs to go to the bathroom”; see also, id.
at 311 (“I have to make sure I’m sitting on the sofa when I hold the baby.”).
103 Transcript at 308.
100
22
Plaintiff further testified that a month prior to the hearing, she had been
hospitalized for a potential stroke, after she lost feeling in the left side of her body and
had slurred speech. 104 Plaintiff stated that her doctors concluded that she did not have
a stroke, and that her symptoms were caused by cervical disk issues and a brain injury.
In this regard, Plaintiff stated: “I have five vertebrae in my cervical [sic] that are
herniated and the top two that are herniated and pushing on my spinal cord. And I
have brain damage on the left side of my brain caused by traumatic brain injury.” 105
Plaintiff indicated that she needed a motorized scooter or cane to ambulate, that
she was unable to stand long enough to take a shower, and that she was unable to sit
for very long. 106 Regarding her alleged need to use a cane, Plaintiff testified that her
cane was “given” to her by her “original neurologist,” Dr. Eugene Gosy, and that Dr.
Giglio told her to “keep using it,” though there is no record of either event in the
transcript. Plaintiff stated that she did not take walks outside because she was afraid
that she would fall. 107
Regarding Plaintiff’s purported inability to stand or walk, at the hearing she
stated:
I can only walk a couple steps at a time then I have to stop and take a rest. The
left side of my body becomes tingly, numb and weak because of the herniated
discs. And on the right side of my body, I’ll lose feeling and sensation and
movement because of the brain damage in the left side of my brain. 108
104
Transcript at 303.
Transcript at 304. In this regard, Plaintiff seems to assume that an injury to the left side of her brain
would cause weakness on the left side of her body, though the Court questions the accuracy of that
assumption.
106 Transcript at 308-309.
107 Transcript at 307-308.
108 Transcript at 308.
105
23
However, earlier in the hearing Plaintiff indicated that her doctors had told her that her
episode in January 2016, involving weakness on her left side, had been caused in part
by the same left-side brain damage. 109
Plaintiff further testified that her doctors had told her not to lift more than five
pounds. 110 When the ALJ asked Plaintiff which doctor had told her not to lift more than
five pounds, she indicated that “all” of her doctors had told her that, including Giglio,
Jain, Walter and Anand, 111 although there is no mention of such a limitation in any of
those doctors’ notes.
Additionally, Plaintiff testified that spina bifida affected her bladder and bowel
function. 112 Plaintiff indicated that she had a seizure disorder, but that she had not
experienced a seizure during the past year. Plaintiff also stated that she had intense
anxiety and was afraid to leave her home. 113
Plaintiff further testified that she experienced side effects from her various
medications, including a feeling of “exhaustion,” trouble concentrating and thinking, and
frequent need to urinate. 114
Regarding her work history, Plaintiff asserted that she had last worked as a retail
associate in January 2013, but that she stopped working because “[i]t became too
painful [to the point] where [she] was starting to become dependent on narcotic pain
109
Transcript at 304. Though, again, there is no evidence that her doctors made such a correlation, or,
indeed, that they ever identified a cause for Plaintiff’s stroke-like symptoms.
110 Transcript at 311.
111 Transcript at 311.
112 Transcript at 312.
113 Transcript at 308.
114 Transcript at 304-305.
24
medications.” 115
At the close of the hearing, the ALJ left the record open for Plaintiff’s attorney to
submit additional medical records. The ALJ also ordered orthopedic and psychological
consultative examinations, 116 both of which took place on March 31, 2016. 117
The psychiatric consultative evaluation was performed by Susan Santarpia,
Ph.D. (“Santarpia”). In relating her background and employment history, Plaintiff
reportedly told Santarpia that she had stopped working in January 2013, at the direction
of her doctors: “Doctors told me to stop working and not work anymore because of my
disabilities and excruciating pain.”118 However, there is no record of any doctor
instructing Plaintiff to stop working, or even expressing an opinion that she should stop
working due to pain. 119 Santarpia reported that when she asked Plaintiff to describe her
mental health symptoms, Plaintiff’s responses were “extremely vague,” and that when
Santarpia asked Plaintiff whether she had particular symptoms, Plaintiff claimed to have
every symptom that Santarpia mentioned. 120 Santarpia noted that despite claiming to
have anxiety, depression and manic symptomatology, Plaintiff insisted that she was
able to care for her three young children. 121 Santarpia conducted a mental status
examination, and reported essentially normal findings, including coherent and goal-
115
Transcript at 301.
Transcript at 315.
117 Transcript at 749-757, 760-770.
118 Transcript at 749.
119 The earliest reference in the medical records to Plaintiff’s employment status is on July 26, 2013,
when Plaintiff reportedly told Webb that she was “unemployed,” as opposed to disabled. Transcript at
473; see also, id. at 498.
120 Transcript at 750-751.
121 Transcript at 751.
116
25
directed thoughts, full and appropriate affect, euthymic mood, intact attention and
concentration, intact recent and remote memory, average cognitive functioning, and fair
insight and fair judgment. 122 Regarding potential problems that Plaintiff might have with
employment, Santarpia stated in pertinent part: “Mild impairment i[n] demonstrating and
performing complex tasks independently. Difficulties are caused by lack of
motivation.”123 In the section of Santarpia’s report entitled “appearance,” she reported
that Plaintiff’s “posture and motor behavior [were] normal,” and made no mention of
Plaintiff using a cane. 124
The orthopedic consultative examination was conducted by Rita Figueroa, M.D.
(“Figueroa”). When Figueroa asked Plaintiff to describe her chief complaints, Plaintiff
began by telling Figueroa that her cervicalgia gave her constant pain in both arms and
fingers, with the left arm being worse than the right. Plaintiff indicated that she had
migraines that “never go away,” and that she has fibromyalgia which “hurts from head to
toe.”125 Plaintiff further stated that she had suffered from seizures since 2004,
consisting of both “grand mal” and “petit mal” seizures. 126 Plaintiff further offered that
she “had a few petit mal seizures a few weeks ago,” though there is no mention of that
elsewhere in the record. Indeed, during the hearing before the ALJ on February 26,
2016, Plaintiff stated that she had not had a seizure during the past year. 127 When
122
Transcript at 751-752.
Transcript at 753, 755.
124 Transcript at 751.
125 Transcript at 760.
126 Transcript at 760. The Court observes that Giglio never used the terms “grand mal” or “petite mal” in
his notes and, indeed, he indicated that he was not even sure about the nature of Plaintiff’s seizures. In
any event, Plaintiff never previously claimed to have anything resembling a petit mal seizure.
127 Transcript at 309.
123
26
asked about her activities of daily living, Plaintiff told Figueroa, “I’m in constant
excruciating pain,” and further stated that she was unable to walk or stand without
falling frequently with caused her additional injuries, and that she had to walk slowly and
carefully using a cane. Figueroa attempted to perform a typical orthopedic
examination, but Plaintiff essentially declined to perform most of the requested
movements, purportedly due to pain. Figueroa’s “prognosis” was “poor,” and her
medical source statement was as follows:
The claimant will have limitations with activities requiring moderate exertion.
The claimant should avoid exposure to smoke, dust, and any respiratory irritants.
The claimant should avoid driving, operating motorized machinery, and being up
on ladders due to her history of seizures. The claimant will have moderate
limitations to prolonged walking and standing due to the gait instability. Overall,
this was a difficult exam because the claimant could not fully engage.
Transcript at 765. Regarding Figueroa’s reference to “gait instability,” she had, earlier
in her report, mentioned that Plaintiff was using a cane, and stated that the cane was
“medically necessary,” based on Plaintiff’s statements and her gait during the
examination. 128 Nevertheless, Figueroa stated that Plaintiff could lift and carry up to 10
pounds occasionally; sit for one hour at a time and for six hours during an 8-hour
workday; stand for thirty minutes at a time and for one hour during a workday; and walk
for 30 minutes at a time and for one hour during a workday. Figueroa stated that
Plaintiff could continually use her right hand, but was unable to use her left hand at all.
On August 3, 2016, after having received the consultative examiners’ reports and
some additional evidence from Plaintiff’s attorney, the ALJ conducted a supplemental
128
Transcript at 763.
27
hearing, at which he took testimony from a vocational expert. 129
On August 17, 2016, the ALJ issued his decision, denying Plaintiff’s application.
In pertinent part, applying the familiar five-step analysis for evaluating disability claims,
the ALJ found that Plaintiff has not engaged in substantial gainful activity since
November 1, 2013; that she has severe impairments consisting of degenerative
changes in the cervical spine, fibromyalgia, migraine headaches, anxiety, bipolar
disorder, depression and PTSD, as well as non-severe impairments consisting of
asthma and a seizure disorder; and that none of her impairments, singly or in
combination, meet or equal a listed impairment. Prior to reaching the fourth step of the
sequential evaluation, the ALJ found that Plaintiff had the residual functional capacity
(“RFC”) to perform light work, except that, she was “limited to performing simple,
routine, and low stress [work], which is defined as having occasional decisionmaking,
occasional changes in the work setting, and occasional interaction with others.” Based
on this RFC finding, the ALJ determined, at the fourth step of the sequential evaluation,
that Plaintiff could not perform her only past relevant job, in retail, due to the lifting
requirements of that job. However, at the fifth and final step, the ALJ found, based
upon the VE’s testimony in response to hypothetical questions involving the subject
RFC determination, that Plaintiff could perform at least six particular jobs in the national
economy, which the ALJ listed. 130
In making the RFC determination, the ALJ reviewed the medical evidence and
129
130
Transcript at 286-295.
Transcript at 28-29.
28
found that Plaintiff’s claims concerning the severity of her symptoms were “not fully
consistent with the evidence.” The ALJ noted, for example, that while Plaintiff testified
that four of her doctors had told her not lift more than five pounds, there was no record
of such a statement by any doctor in the record. The ALJ also noted that while Plaintiff
claimed to need a cane to ambulate, medical examinations by her doctors typically
showed that she had a normal gait and full strength in her extremities. Regarding the
opinion evidence, the ALJ found that Dr. Figueroa’s findings and opinion were entitled to
little weight, since Plaintiff’s presentation at the consultative examination was “so
divergent from the clinical findings of [her] [treating] doctors.” Indeed, the ALJ stated:
“Claimant’s presentation at the consultative orthopedic examination on March 31, 2016
appears completely unrepresentative of her physical functioning for much of the alleged
period of disability when compared with the other objective medical evidence.” 131
Similarly, the ALJ gave little weight to Dr. Giglio’s opinion that Plaintiff was “not allowed
to work under any circumstances or conditions” since it was inconsistent with the other
medical or record and not supported by Giglio’s own findings. On the other hand, the
ALJ gave “significant weight” to Dr. Santarpia’s consultative opinion, finding that it was
supported by her examination findings and consistent with the other evidence of record.
After receiving the ALJ’s unfavorable ruling, Plaintiff requested review by the
Appeals Council. Specifically, on October 13, 2016, Plaintiff, who had previously had
an attorney but who was apparently proceeding pro se at that time, filed a request for
131
Transcript at 27.
29
review by the Appeals Council, using a pre-printed form. 132 Thereafter, on both
December 30, 2016 and January 10, 2017, Plaintiff, who by then had obtained new
counsel, submitted additional evidence to the Appeals Council. 133 The additional
evidence consisted of approximately 250 pages of medical records, from the period
2014-2016. The additional evidence consists of the following: Mental health office
notes from Horizon, covering the period February 17, 2015 through November 15, 2016;
office notes from Dr. Jain for the period October 31, 2014 through October 19, 2015;
records from family practitioner Jeffrey Burnett, D.O. (“Burnett”) for the period January
13, 2015 through October 24, 2016; records from Dr. Walter for the period October 2,
2014 through March 1, 2016; records from Dr. Giglio for the period October 15, 2014
through December 10, 2015; records from St. Mary’s Hospital relating to Plaintiff’s
hospitalization following a seizure in February 2015; records from Niagara Falls
Memorial Medical Center for the period January 10, 2016 through October 11, 2016;
records from nephrologist Richard Steinacher, D.O. (“Steinacher”) for the period
September 24, 2014 through October 9, 2014; records from rheumatologist Stanley
Michalski, M.D. (“Michalski”), dated March 29, 2016; and records from neurosurgeon
Tobias Mattei, M.D. (“Mattei”), dated March 29, 2016.
The bulk of the additional evidence submitted to the Appeals Council is additional
evidence from Horizon, consisting of notes from Plaintiff’s talk-therapy sessions with
Ostrom. Some of the information in the records is duplicative of exhibits that were
132
133
Transcript at 395.
Transcript at 41, 152.
30
before the ALJ. Otherwise, the records are generally unremarkable, consisting
primarily of notes concerning attempts to vary Plaintiff’s medications due to the fact that
she was continuing to breastfeed her child; Plaintiff’s complaints regarding side-effects
of various medications, particularly a medication, Reglan, that she was taking to
increase her breast milk production; and Plaintiff’s discussion of stressors in her life,
primarily the stress of having to care for three young children, including an active and
defiant two-year-old boy. However, one office note in particular, which is dated March
15, 2016, jumps out. 134 To put this date in context, it was approximately two months
after Plaintiff allegedly suffered her stroke-like symptoms, several weeks after the first
ALJ hearing, and two weeks before Plaintiff’s consultative examination with Dr.
Figueroa. The reader will recall that at the hearing, Plaintiff had told the ALJ that she
was barely able to walk or stand and was completely unable to perform any household
chores. However, during the office visit with Ostrom on March 15th, Plaintiff reportedly
stated that she was experiencing insomnia, and that she was “keeping herself busy” by
“doing chores around the house all night.”135 (Plaintiff had also previously told Ostrom,
on September 9, 2014, that she constantly vacuum cleaned her house for hours at a
time due to her alleged OCD condition.) During the same office visit on March 15,
2016, Plaintiff told Ostrom that she felt overweight, and was “hoping to start some kind
of exercise, but is limited with her sciatica.” Significantly, Ostrom’s notes contain no
reference to Plaintiff’s hospitalization in January 2016, no reference to Plaintiff being
134
135
Transcript at 66.
Transcript at 66.
31
almost completely unable to use the left side of her body, and no reference to Plaintiff
using a cane. Also contained within the additional evidence is a note of an office visit
on February 17, 2015, at which Plaintiff reportedly told Ostrom, “I can’t work because if I
go and be around people I’m going to snap.”136
The additional records from Dr. Jain are two office notes, together totaling seven
pages. The first such note, dated October 19, 2015 is a duplicate of a report that was
before the ALJ. In the second note, dated October 31, 2014, Plaintiff reportedly told
Jain that she was having pain from her neck radiating into her leg arm and hand,
decreased strength, and lower back pain radiating into her left leg. Plaintiff also told
Jain that she was “fighting for the disability because of psychiatric and physical
problems.” 137 Upon physical examination, Jain noted tenderness over Plaintiff’s spine
and decreased strength bilaterally, though he noted that Plaintiff “did not put in much
effort” during the exam. Jain did not refer to Plaintiff using or needing a cane to
ambulate. Instead, Jain noted that Plaintiff “walks with a normal gait.”
The additional records from Dr. Burnett consist of 25 pages of office notes and
test results. The office notes are from October 2016, and refer to Plaintiff wanting to
switch her primary care from Dr. Walter to a new primary care physician. At her initial
visit with Burnett, Plaintiff reported having a variety of psychological problems on a daily
basis, including thoughts that she would be better off dead. 138 Plaintiff also stated that,
“her left side of her body goes weak and limp a few times/month and each episode lasts
136
137
138
Transcript at 85.
Transcript at 152.
Transcript at 160.
32
a day to a few days.” 139 Plaintiff claimed that her other doctors had not been able to find
a cause for this problem. She suggested, though, that it was due to brain damage:
“[S]he has seen neurogy and neurosurgery [and] neither has been able to figure out
why this is happening but they did find a necrotic area in her brain.” However, attached
to Burnett’s office note are results from a cranial CT scan and cranial MRI taken at the
time Plaintiff was complaining of stroke-like symptoms, which mention that calcifications
on the left side of Plaintiff’s brain, but conclude that there is “no acute intracranial
abnormality.” 140 Plaintiff also told Burnett that she had migraine headaches “4-5
days/week.” The office note does not mention Plaintiff using or needing a cane to
ambulate. On October 24, 2016, Plaintiff returned to Burnet’s office with the same
complaints. Plaintiff stated that she had an episode of left-sided ”numbness” a week
earlier. The examiner noted that Plaintiff appeared to be well and in no acute distress,
and a musculoskeletal exam showed “no swelling deformity.” 141 The office note does
not mention Plaintiff using a cane.
The additional evidence from Dr. Walter consists of random office notes from
2014 through 2016, some of which are duplicative of records that were before the
ALJ. 142 Of particular interest is an office note dated March 1, 2016, shortly after
Plaintiff claimed to suffer stroke-like symptoms. 143 Plaintiff was complaining of a “flare in
neck pain,” and complained that she was not getting proper pain management
139
140
141
142
143
Transript at 160.
Transcript at 180.
Transcript at 158.
See, Transcript at 196-197.
Transcript at 191-193.
33
treatment from her other doctors. When Walter indicated that he could only offer
Plaintiff conservative measures for her pain, she responded that she might as well have
gone to a different doctor. 144 Oddly, the office note does not mention the stroke-like
incident and hospitalization in January 2016. Walter noted, however, that Plaintiff
claimed to having pain and weakness down one side of her body, but that her
movements did not seem consistent with her complaint: “Appears unhappy, holding
neck and head stiffly, has LT side coat on and RT side off. Moves strongly dependent
on cane in RT hand. [Complaining of] pain and weakness down entire side of body but
body movement not consistent with that.”145 Walter opined that Plaintiff’s bipolar
disorder was “strongly influencing her response to this current neck issue.” 146
The additional records from Dr. Giglio consist of office notes from 2014 and
2015, and most if not all of the information contained therein is duplicative of evidence
that was before the ALJ. On October 15, 2014, Giglio noted that Plaintiff’s migraine
headaches responded “remarkably” well to over-the-counter Excedrin, though he
warned Plaintiff that she could experience worse headaches from over using
analgesics. 147
The additional records from St. Mary’s Hospital relate to Plaintiff’s ER visit in
February 2015 following a seizure, and are basically duplicative of evidence already in
the record. That is, the hospital accepted Plaintiff’s claim that she had a seizure and
144
145
146
147
Transcript at 191.
Transcript at 193.
Transcript at 193.
Transcript at 235.
34
placed her on medication, though neurological and MRI testing was negative. 148
The additional evidence from Niagara Falls Memorial Medical Center consists of
a summary of laboratory test results from 2016.
The additional evidence from Dr. Steinacher relates to kidney stones and
urological problems which do not appear to relate to Plaintiff’s disability claim. 149
Finally, the additional records from Doctors Michalski and Mattei consist of office
notes, both from visits that took place on March 29, 2016. 150 Neither Michalski nor
Mattei refers to Plaintiff using or needing a cane to ambulate. Michalski’s report does
not mention Plaintiff’s recent hospitalization or her alleged stroke-like symptoms
involving complete inability to use her left side. Michalski reported that Plaintiff was
complaining of pain in her neck and shoulder blades, and of more generalized pain that
she had been experiencing for twenty years. Plaintiff claimed that she was unable to
stand on the scale to be weighed. Upon examination, Michalski noted that movement
of Plaintiff’s neck appeared to be “poor and painful,” and he recommended Tramadol,
heat and massage. In Mattei’s notes from that same day, he reported that Plaintiff was
complaining of “diffuse pain in her cervical, thoracic and lumbar spine.” Mattei noted
that Plaintiff had undergone testing in January 2016, and that such testing showed
degenerative changes in the cervical spine “without any significant central canal or
foraminal stenosis,” as well as “multilevel degenerative disc disease.” Mattei also
noted that while there was a bulging disc in Plaintiff’s cervical spine, it was a “very small
148
149
150
Transcript at 239.
Transcript at 261-275.
Transcript at 277-283.
35
posterior disc protrusion,” without stenosis. Mattei further observed that the MRI of
Plaintiff’s brain in January 2016 showed “no acute findings.” Mattei opined that
Plaintiff’s pain was “essentially myofascial in nature,” meaning muscular. 151 Mattei
further stated: “The patient seems to be in mild discomfort, but no acute distress. She
has poor body care. She has diffuse pain on palpation of her cervical , thoracic and
lumbar spine. Sensation is normal in the upper and lower limbs. Strength is normal in
the upper and lower limbs. Reflexes are physiologic and symmetric in the upper and
lower limbs. No major pain on palpation of the SI joints.”152 Mattei recommended
“conservative treatment,” and stated that it that failed, they could consider trying
“cervical epidural spinal stimulation.”
On December 8, 2017, the Appeals Council issued a notice indicating that it had
denied Plaintiff’s request for review. Along with this notice, the Appeals Council
provided both an “AC Exhibit List,” describing Plaintiff’s 1-page request for review as
Exhibit 11B, and an Order making Exhibit 11B part of the record. Apart from this
reference to Exhibit 11B, the Appeals Council’s notice and order are essentially
boilerplate, devoid of any reference to the 250 pages of additional medical records that
Plaintiff submitted to the Appeals Council.
On February 5, 2018, Plaintiff commenced this action, and on November 28,
2018, she filed the subject motion [#12] for judgment on the pleadings. Plaintiff
contends that the Commissioner’s decision should be reversed for the following
151
152
Transcript at 281.
Transcript at 282.
36
reasons: 1) the ALJ gave inadequate reasons for the weight that he assigned to the
opinions of Doctors Giglio and Figueroa; 2) the ALJ mischaracterized the medical
record concerning Plaintiff’s hospital treatment for stroke-like symptoms; 3) the ALJ
failed to evaluate Plaintiff’s need to use a cane to ambulate; 4) the ALJ relied on his
own lay opinion to interpret raw medical data; and 5) the Appeals Council failed to
indicate whether it had considered the additional evidence.
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.” The issue to be determined by this Court is whether the
Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). Substantial evidence is defined as “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”
The ALJ’s RFC Determination
As already mentioned, Plaintiff contends that the ALJ’s RFC determination was
erroneous for several reasons, namely, that 1) he improperly “rejected the opinions of
Dr. Giglio and Dr. Figueroa for inadequate reasons and without the support of conflicting
medical opinion”; 2) he “mischaracterized emergency department records as to
Plaintiff’s CVA”; 3) he “failed to evaluate Plaintiff’s need to use a cane”; and 4) he “relied
on his lay interpretation of bare medical findings.”
37
The ALJ Did Not Mischaracterize the Record
The Court begins with Plaintiff’s contention that the ALJ “mischaracterized
emergency department records as to Plaintiff’s CVA.” Insofar as this assertion
attempts to imply that Plaintiff actually suffered a CVA (stroke), it is disingenuous and
deserving of little discussion since Plaintiff admitted to the ALJ that she did not suffer a
stroke. 153 Plaintiff now attempts to rely on a bare reference in the medical record to her
having suffered a CVA. That, though, appears to have been merely a preliminary
diagnosis which was ruled out by testing. 154 None of Plaintiff’s doctors subsequently
indicated that she actually suffered a CVA/stroke. Alternatively, Plaintiff contends that
the ALJ “obviously mischaracterized” the medical evidence concerning this same
hospitalization, by indicating that Plaintiff was treated and released after less than two
hours. Plaintiff contends, rather, that she was in the hospital for three days, which, she
seems to suggest, lends credence to her contention that she was diagnosed with a
CVA. However, to the extent that the ALJ may have erred concerning the amount of
time that Plaintiff remained in the hospital for observation and testing, such error is
understandable since, as the Court already mentioned, the records from this
hospitalization are not entirely clear. On the other hand, there are admit/discharge
dates and times in the records that directly support the ALJ’s comment about Plaintiff
being released after less than two hours. 155 Regardless, this alleged time discrepancy
153
Transcript at 304. As previously noted, Plaintiff admitted that she did not have a stroke, and
suggested instead that her doctors had attributed her symptoms to either to cervical discs or to a prior
traumatic brain injury, though there actually is no evidence that her doctors made such a correlation.
154 Transcript at 707, 714.
155 Transcript at 707, 714.
38
is irrelevant since as already discussed, Plaintiff admits that she did not suffer a
stroke. 156 Accordingly, Plaintiff’s attempt to now use this potential error as some proof
that she actually suffered a stroke is unavailing.
The ALJ’s Decision to Reject Dr. Giglio’s Opinion of Disability
Was Not Erroneous
Plaintiff next contends that “the ALJ’s reasons for rejecting Dr. Giglio’s treating
medical opinion were unsupported and conclusory.” Actually, though, it was Giglio’s
report that was unsupported and conclusory. In support of her position, Plaintiff
attempts to rely on this statement from Giglio’s report: “Pt has severe impairment +
function not able +not allowed to work under any circumstances or conditions.” This is
not a medical opinion as to Plaintiff’s particular physical limitations. Indeed, Giglio
declined to fill out the portion of the form detailing such limitations. Instead, this
sentence is a conclusion as to Plaintiff’s ability to work. 157 However, “[i]t is well settled
that a treating physician’s opinion that an individual is disabled is not entitled to
controlling weight, because the ultimate issue of disability is reserved for the
Commissioner.” Fazzio v. Comm'r of Soc. Sec., No. 17-CV-977S, 2019 WL 342411, at
*6 (W.D.N.Y. Jan. 28, 2019) (citation and internal quotation marks omitted); see also,
Taylor v. Barnhart, 83 F. App'x 347, 349 (2d Cir. 2003) (“Dr. Desai's opinion that Taylor
was “temporarily totally disabled” is not entitled to any weight, since the ultimate issue of
disability is reserved for the Commissioner.”). Accordingly, it was not erroneous for the
156
Transcript at 304.
See, Pl. Memo of Law [#12-1] at p. 15 (“Dr. Giglio made it very clear he believed Plaintiff was disabled
and she should [not] be working.”).
157
39
ALJ to state that Giglio’s “refusal to evaluate claimant’s physical ability to perform any
basic work activity weighs against placing any special significance on his conclusion
that claimant is unable to work.” 158
Plaintiff alternatively contends that it was improper for the ALJ to reject Giglio’s
opinion of disability as being “inconsistent with the medical evidence,” 159 since “[t]he
examinations of record consistently revealed limited range of motion, reduced muscle
strength, diminished sensation, difficulty performing heel and toe walking, and abnormal
gait.” As support for this assertion, Plaintiff cites to three pieces of evidence: Dr.
Anand’s office note from June 3, 2014; Dr. Jain’s office note from October 19, 2015; and
Dr. Giglio’s office note from November 6, 2014. 160 However, this argument is
unavailing, primarily because, as discussed above, the physical examinations of Plaintiff
by various doctors were generally unremarkable, contrary to what Plaintiff asserts.
Moreover, even the three pieces of evidence that Plaintiff cites for this proposition do
not support her position. For example, as already discussed Dr. Anand’s examination
on June 3, 2014, showed normal findings, including full strength in all extremities,
except that Plaintiff’s “foot flexion and dorsiflexion on the right side [was] mildly weaker
than the left side.”161 Similarly, although Dr. Jain’s note from October 19, 2015,
indicates that Plaintiff was unable to walk heel to toe, he seems to attribute that to her
“poor effort on exam.” 162 Finally, Dr. Giglio’s office note from November 6, 2014,
158
159
160
161
162
Transcript at 25.
See, ALJ’s Decision at p. 16, Transcript at 25.
Pl. Memo of Law [#12-1] at p. 15.
Transcript at 572.
Transcript at 577.
40
showed essentially normal exam results, except that Plaintiff had some muscle pain and
“a slightly antalgic gait.” 163 Interestingly, the next time that Giglio examined Plaintiff
after that date, on December 2, 2014, he observed that Plaintiff had a normal gait. 164
Consequently, Plaintiff’s argument on this point also lacks merit.
The ALJ’s Decision to Reject Dr. Figueroa’s Consultative
Opinion Was Not Erroneous
Plaintiff next contends that the ALJ’s rejection of Dr. Figueroa’s consultative
opinion was erroneous. 165 On this point, Plaintiff first contends that it was “grossly
inappropriate” for the ALJ to imply that Plaintiff had duped Figueroa by exaggerating her
symptoms, since as a medical professional, Figueroa would surely have been able to
see through such a ruse. 166 Once again, however, the Court disagrees.
Preliminarily, it should be remembered that even if the ALJ had accepted
Figueroa’s opinion, such opinion supports Plaintiff’s ability to perform at least sedentary
work. Further, Plaintiff makes no effort to rebut the ALJ’s factual observation that
Figueroa’s findings were clearly inconsistent with the findings by other doctors. In any
event, the Court notes that the ALJ’s finding on that point is clearly supported by
substantial evidence.
Plaintiff nevertheless contends that the ALJ improperly substituted his own
medical judgment in place of Figueroa’s medical judgment. Admittedly, an ALJ “is not
163
Transcript at 594-595.
Transcript at 591.
165 Figueroa’s findings would support Plaintiff’s ability to perform sedentary work.
166 See, Pl. Memo of Law [#12-1] at p. 16 (“It is highly concerning the ALJ, a person with no medical
expertise, concluded her was so much more medically knowledgeable than Dr. Figueroa that he was able
to identify Plaintiff’s malingering but Dr. Figueroa was not.”).
164
41
permitted to substitute his own expertise or view of the medical proof for the treating
physician's opinion or for any competent medical opinion.” Greek v. Colvin, 802 F.3d
370, 375 (2d Cir. 2015). However, that is not what happened here. Such a violation
might have occurred if the ALJ had interpreted Figueroa’s findings to reach different
conclusions than Figueroa reached. However, the Court does not believe that principle
applies where the ALJ merely points out that the way the claimant presented herself to
the evaluating doctor was entirely different than how she presented herself to her other
doctors. Indeed, the ALJ never implied that Figueroa’s opinion was somehow wrong or
unreasonable based on what she observed during the consultative examination; in fact,
the ALJ acknowledged that “Dr. Figueroa’s clinical observations support her findings.”167
Rather, the ALJ pointed out that what Figueroa reported observing was very different
from what Plaintiff’s other doctors had reported observing, with the implication being of
course that that either Plaintiff’s symptoms drastically worsened just prior to the
consultative exam by Figueroa, or Plaintiff dramatically exaggerated her symptoms
during the consultative examination. The ALJ considered the former possibility, but
ruled it out, based on a lack of medical evidence to explain such a rapid deterioration. 168
In particular, the ALJ noted the lack of a medical explanation for the stroke-like
symptoms that Plaintiff claimed to have experienced in January 2016. The ALJ further
noted that during the hearing, which was after Plaintiff claimed to have experienced
167
Transcript at 26.
Transcript at 27 (“While one possible explanation for this could be that claimant’s condition
significantly deteriorated after she went to the hospital for exhibiting stroke-like symptoms in January
2016, there are no medical records indicating claimant actually had a stroke.”).
168
42
stroke-like symptoms and shortly before Figueroa’s examination, Plaintiff “gave no
indication that she had lost nearly all use of the left side of her body.” 169 In sum, the
ALJ properly explained how he weighed Figueroa’s opinion, based upon all the
evidence in the record. Therefore, the Court concludes that Plaintiff’s contention that
the ALJ improperly substituted his own medical judgment for Figueroa’s medical
judgment is without merit.
The ALJ Did Not Err In Making An RFC Finding That Was
Not Directly Supported By A Medical Opinion
Plaintiff further maintains that since the ALJ “rejected” the opinions of Doctors
Giglio and Figueroa, he must have improperly relied on his own lay interpretation of
bare medical findings in making his RFC determination. The gist of Plaintiff’s argument
is that an ALJ can never properly reach an RFC determination that is not supported by a
specific medical opinion, since such a determination would involve the ALJ rendering
his own medical opinion. Insofar as Plaintiff is alleging the existence of a per se rule in
this regard requiring remand, the Court disagrees, since the Second Circuit has rejected
this same argument. See, Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 34 (2d Cir.
2013) (“The medical record in this case is quite extensive. Indeed, although it does not
contain formal opinions on Tankisi's RFC from her treating physicians, it does include
an assessment of Tankisi's limitations from a treating physician, Dr. Gerwig. Given the
specific facts of this case, including a voluminous medical record assembled by the
claimant's counsel that was adequate to permit an informed finding by the ALJ, we hold
169
Transcript at 27.
43
that it would be inappropriate to remand solely on the ground that the ALJ failed to
request medical opinions in assessing residual functional capacity.”) (emphasis added);
see also, Monroe v. Commissioner of Social Security, 16-1042-cv, 676 Fed.Appx. 5, 8-9
(2d Cir. Jan. 18, 2017) (“[Claimant] specifically contends that, because the ALJ rejected
Dr. Wolkoff's opinion, there was no competent medical opinion that supported the ALJ's
RFC determination. Where, however, the record contains sufficient evidence from which
an ALJ can assess the claimant's residual functional capacity, a medical source
statement or formal medical opinion is not necessarily required.”) (citing Tankisi).
The holdings of Tankisi and Monroe apply here, since, as already discussed at
great length, the instant case involves an extensive record spanning several years, that
is “adequate to permit an informed finding by the ALJ” as to Plaintiff’s functional
limitations. Specifically, the medical findings by Plaintiff’s doctors consistently report
unremarkable findings, or, put differently, they consistently show the lack of any
significant positive findings to support Plaintiff’s claim of disability. The ALJ relied upon
those “clinical findings,” as well as “diagnostic tests, and the treatment that [Plaintiff]
received,” in reaching his RFC determination, 170 and his determination is supported by
substantial evidence. 171 Accordingly, remand is not required simply because there is
no opinion evidence that corresponds to the physical aspects of the RFC. 172
170
ALJ’s decision at p. 10, Transcript at 19 (“The medical evidence concerning claimant’s physical
impairments is not consistent with the severity of symptoms and the degree of limitations that would
preclude claimant from performing work. Clinical findings, diagnostic tests, and the treatment that
claimant has received provide a reasonable basis to conclude that claimant is capable of performing a
range of light work.”).
171 The ALJ also relied on non-medical evidence, such as Plaintiff’s statement that she had to run after
her toddler when he kept escaping from his stroller, despite her claim of being unable to walk.
172 There is opinion evidence from Dr. Santarpia supporting the non-exertional aspects of the RFC
44
The ALJ Did Not Err By Failing To Evaluate Plaintiff’s
Need to Use a Cane
Plaintiff next contends that the ALJ failed to evaluate her need to use a cane to
ambulate. In particular, Plaintiff asserts that “the ALJ was required to consider [the
impact of Dr. Figueroa’s finding that Plaintiff’s cane was medically necessary] or at least
explain how he determined [that the cane] was not truly medically necessary. As he
failed to do so, remand is further warranted.” 173 However, the Court again disagrees.
Plaintiff’s reference to Dr. Figueroa’s report tacitly emphasizes the significant
point that Figueroa is the only doctor of record to indicate that Plaintiff needed a cane.
As already explained, Dr. Figueroa’s opinion in that regard may well have been justified,
based on what she observed during the consultative exam. However, the Court has
already explained that the ALJ was justified in rejecting Figueroa’s opinion, since
Plaintiff’s presentation during the consultative exam was “vastly divergent” from her
presentations to her other doctors, both before and after the consultative exam. In
addition to explaining why Figueroa’s report was not entitled to weight, the ALJ referred
several times to other evidence supporting Plaintiff’s ability to walk without a cane, as
well as to the lack of evidence suggesting otherwise. For example, the ALJ stated that
“there is insufficient evidence to establish that claimant’s impairments render her unable
to ambulate effectively.” 174 Additionally, the ALJ referred to multiple findings by various
doctors that Plaintiff had a normal gait, as well as to evidence that Plaintiff was able to
finding.
173 Pl. Memo of Law [#12-1] at p. 19.
174 Transcript at 14.
45
“run after her son” when he climbed out of his stroller. 175 Accordingly, Plaintiff’s
argument, that remand is required because the ALJ failed to evaluate Plaintiff’s need to
use a cane, lacks merit.
The Additional Evidence Submitted To The Appeals Council
Does Not Cast Doubt On The ALJ’s Determination
Lastly, Plaintiff contends that remand is required for consideration of the
additional evidence submitted to the Appeals Council. In this regard, Plaintiff contends
that the Appeals Council erred by failing to discuss or even acknowledge the additional
evidence. The Court agrees that the Appeals Council did not discuss the additional
evidence, but does not agree that remand is required.
The Second Circuit has explained that “[e]ven if the Appeals Council err[s] by
rejecting additional evidence, remand is only appropriate where there is a reasonable
possibility that this evidence would have influenced the ALJ to decide the disability
determination differently.” Tricarico v. Colvin, No. 15-3786, 681 Fed.Appx. 98, 102 (2d
Cir. Mar. 3, 2017) (citation and internal quotation marks omitted).
Based on the Court’s review above of the additional evidence that was submitted
to the Appeals Council, there is no reasonable possibility in this action that such
evidence would have caused the ALJ to decide Plaintiff’s claim differently. To the
contrary, the Court believes that the additional evidence adds support for the ALJ’s
decision to deny Plaintiff’s claim. Most notably, as already discussed, Ostrom’s office
note from March 15, 2016 raises further doubts about the legitimacy of Plaintiff’s
175
Transcript at 21.
46
presentation at the consultative examination with Figueroa two weeks later, since in that
office note, Plaintiff reportedly states both that she is considering starting an exercise
routine, and that she spends hours performing household chores when she is unable to
sleep. Even ignoring the implications of that office note, the additional evidence simply
does not provide any compelling new evidence of disability that would have been likely
to change the ALJ’s mind. Accordingly, Plaintiff’s contention that remand is required
for consideration of this additional evidence lacks merit.
CONCLUSION
For the reasons discussed above, Plaintiff’s motion for judgment on the
pleadings [#12] is denied, Defendant’s motion [#17] is granted, and this matter is
dismissed. The Clerk of the Court is directed to enter judgment for Defendant and
close this action.
So Ordered.
Dated: Rochester, New York
September 30, 2019
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
47
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