Begley v. Commissioner of Social Security
Filing
15
DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Government's Motion for Judgment on the Pleading. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/24/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
PHILIP BEGLEY,
Plaintiff,
1:18-cv-00224-MAT
DECISION AND ORDER
-vsNANCY A. BERRYHILL,
Defendant.
____________________________________
I.
Introduction
Philip Begley (“Plaintiff”), represented by counsel, brings
this action under Title XVI of the Social Security Act (“the Act”),
seeking review of the final decision of Nancy A. Berryhill, former
Acting Commissioner of Social Security (“the Commissioner” or
“Defendant”), denying his application for Supplemental Security
Income (“SSI”). The Court has jurisdiction over the matter pursuant
to 42 U.S.C. §§ 405(g), 1383(c). Presently before the Court are the
parties’ competing motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. For the
reasons
set
forth
below,
Plaintiff’s
motion
is
denied,
and
Defendant’s motion is granted. The Commissioner’s decision is
affirmed.
II.
Procedural Status
Plaintiff protectively filed for SSI on February 7, 2014,
alleging disability since September 6, 2012. This application was
denied initially on April 22, 2014. At Plaintiff’s request, a
hearing was conducted by administrative law judge Lynette Gohr
(“the ALJ”) in Buffalo, New York, on August 5, 2016. Plaintiff,
represented by counsel, appeared and testified via videoconference
from Belmont, New York. David Festa, a vocational expert (“the VE”)
also appeared and testified. On counsel’s advice, Plaintiff amended
his alleged onset date to June 5, 2014. T.38.1
On August 24, 2016, the ALJ issued an unfavorable decision.
T.7-19.
At
step
one
of
the
sequential
evaluation,
the
ALJ
determined that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date. At step two, the ALJ found
that Plaintiff’s “severe” impairments were a seizure disorder,
diabetes, diabetic neuropathy, cervical radicuopathy, obesity,
partial amputation of his first and second toes on his right foot,
hypertension, and right-sided carpal tunnel syndrome. With regard
to Plaintiff’s history of stroke, the ALJ found insufficient
evidence that this episode continued to have more than a de minimis
affect on his ability to perform physical or work activities, and
therefore it was non-severe; Plaintiff does not challenge this
finding on appeal. Similarly, the ALJ found that Plaintiff’s
medically determinable impairment of affective disorder does not
cause more than minimal limitations in his ability to perform basic
mental work activities and was non-severe. Again, Plaintiff does
not take issue with this finding on appeal. At step three, the ALJ
1
Citations
transcript.
to
“T.”
refer
to
pages
-2-
in
the
certified
administrative
determined that Plaintiff’s impairments did not meet or medically
equal a listed impairment. Prior to proceeding to step four, the
ALJ assessed Plaintiff as having the residual functional capacity
(“RFC”) to perform a limited range of light work with the following
limitations: he could perform frequent, but not constant, fine and
gross manipulation of objections with his right arm and hand; he
could only occasionally balance, stoop, kneel, crouch, crawl, climb
ramps and stairs; and he could never work at unprotected heights,
work around dangerous mechanical moving parts, or climb ladders,
ropes, or scaffolds. T.14. At step four, based on the RFC, the ALJ
found that Plaintiff could perform his past relevant work as a
sales clerk. T.17-18. The ALJ proceeded to step five and determined
that Plaintiff, a younger individual (48 years-old) with a high
school equivalency degree, could perform the requirements of the
following representative light exertional jobs that existed in
significant numbers in the national economy: routing clerk, office
helper, and checker. T.17-19. Accordingly, the ALJ entered a
finding of “not disabled.”
Plaintiff’s request for review of the ALJ’s decision was
denied by the Appeals Council, making the ALJ’s decision the final
decision of the Commissioner. Plaintiff then timely commenced this
action.
-3-
III. Scope of Review
A
district
court
may
set
aside
the
Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “Substantial evidence means ‘such relevant evidence
as
a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation
omitted).
The
reviewing
court
nevertheless
must
scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
review
for
substantial
evidence
does
not
apply
to
the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172,
179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984)).
-4-
IV.
Discussion
A.
Summary of the Parties’ Arguments
Plaintiff asserts that remand is required because the ALJ
“relied heavily on stale State agency medical opinions throughout
his opinion,” and because “the ALJ’s RFC assessment is based almost
entirely on the ALJ’s lay judgment.” Plaintiff’s Memorandum of Law
(“Pl.’s Mem.”) at 7. Plaintiff then asserts that “[t]he only
medical opinion available” was consultative physician Dr. Michael
Rosenberg’s,
but
because
“[t]he
ALJ
rejected
the
moderate
limitations assessed by Dr. Rosenberg” as “allegedly inconsistent
with Plaintiff’s treatment notes[,]” this left the RFC based solely
on the ALJ’s lay judgment. Id. The Commissioner responds that
Plaintiff has misconstrued the ALJ’s decision, which permissibly
gave
“partial
weight”
to
Dr.
Rosenberg’s
opinion.
T.17.
The
Commissioner argues that the ALJ’s evaluation of Dr. Rosenberg’s
opinion
was
supported
by
substantial
evidence.
Plaintiff
additionally contends that it was improper for the ALJ to give
Dr.
Rosenberg’s
opinion
even
partial
weight
because
the
“examination pre-dated both a partial amputation of Plaintiff’s
foot after a lawn mower accident, seizure disorder and a cerebral
vascular accident.” See Pl.’s Mem. at 11. The Commissioner counters
that
the
ALJ
explicitly
considered
those
facts,
and
that
substantial evidence supports the ALJ’s determination that these
impairments did not cause disabling limitations.
-5-
B.
Point I: Alleged Failure by the ALJ to to Properly Weigh
the Consultative Physician’s Opinion
1.
In
Dr. Rosenberg’s Opinion
April
disability
2014,
two
benefits,
consultative
months
Michael
physical
after
Plaintiff
Rosenberg,
examination
of
M.D.,
applied
performed
Plaintiff
at
for
a
the
Commissioner’s behest. T.238-42. Plaintiff reported a history of
diabetes, high blood pressure, back and neck pain, intermittent
dizziness, and depression, for which he was not taking medication
or participating in treatment. He experienced one seizure at age
15, but had not had any recurrent seizures. Plaintiff’s daily
activities included cooking, cleaning, washing laundry, shopping,
watching
television,
listening
to
the
radio,
and
performing
personal care.
On examination, Plaintiff walked and stood normally, could
perform a full-range squat, and was able to rise from a chair and
climb on and off the examination table without difficulty. He
reported some mild neck and hip pain and could not walk on his
heels or toes. Plaintiff’s range of motion was decreased in his
neck, back, right shoulder, elbows, right wrist, right hip, and
right knee and ankle. Muscle strength and sensation in his right
arm and right leg and foot were mildly reduced; otherwise, muscle
strength was normal throughout the rest of his body. His grip
strength and hand and finger dexterity were intact bilaterally.
Dr. Rosenberg diagnosed Plaintiff with diabetes, hypertension, back
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and neck pain, a resolved seizure disorder, and a history of
dizziness. For his medical source statement, Dr. Rosenberg opined
that
Plaintiff
had
moderate
limitations
in
bending,
lifting,
pushing, pulling, reaching repetitively with his arms, twisting and
turning his neck, performing overhead activities, performing fine
manipulation, and carrying heavy objects. T.242. Dr. Rosenberg
assigned no limitations with regard to Plaintiff’s ability to sit,
stand, or walk.
2.
Medical Issues Subsequent to Dr. Rosenberg’s Report
On June 5, 2014, the amended onset date, Plaintiff “slipped on
a
bank
while
mowing”
his
lawn,
and
his
lawnmower
partially
amputated his first and second toes. T.307-10. Anwar Khan, M.D.,
and Puneet Chahal, D.P.M., performed surgery to debride and treat
Plaintiff’s injured toes. Post-surgery, Plaintiff was instructed to
use crutches and bear minimal weight on his right foot. T.310. At
discharge, Plaintiff’s wound “look[ed] good,” and he was “doing
fairly well.” Id.
In July of 2015, Plaintiff reported to Physician’s Assistant
Kari Andera (“PA Andera”) that he had some toe pain, for which she
prescribed Tramadol. T.275. There is a note that Plaintiff would be
referred to Gabriel Yacob for pain management, id., but it does not
appear that Plaintiff ever followed up with the referral. Although
Plaintiff complained of pain and numbness at subsequent doctor
appointments, the pain was located in his shoulders and neck, and
-7-
the numbness was in his right anterior thigh and finger tips. E.g.,
T.262. It does not appear that Plaintiff pursued any specific
follow-up treatment with regard to the partial toe amputations.
On December 26, 2015, Plaintiff had a stroke and a simple
partial seizure. T.286, 324-26, 336-39, 341-43. At the time,
Plaintiff “was not taking his medications regularly,” and he “was
uncontrolled with all of his conditions,” including his diabetes
mellitus and hypertension. T.279. Plaintiff displayed a normal
range of motion in his neck, arms, and legs; his neurological
function and motor function were normal. T.327, 342. His physicians
diagnosed him with diabetes, syncope, and an epileptic seizure. He
was
prescribed
medications.
insulin
T.329-30.
along
with
Plaintiff
pain
testified
and
anti-epileptic
that
he
had
no
subsequent seizures. T.44-45.
On December 29, 2015, Naveed Shahid, M.D., diagnosed Plaintiff
with an atrial septal defect, ischemic stroke, and epilepsy.
Medications
were
prescribed
for
these
conditions.
T.289-90,
295-301, 338-39. However, Dr. Shahid indicated that Plaintiff’s
atrial defect did not require treatment unless he had recurrent
episodes. T.279, 338. At discharge, Plaintiff’s condition was
described as “[g]ood” and “[s]table.” T.293. Dr. Shahid stated that
Plaintiff should not drive or operate heavy machinery but could
resume activities as tolerated. T.293, 339.
-8-
On February 8, 2016, Plaintiff reported to Ann N. Anderson,
Physician’s Assistant (“PA Anderson”), that he “does not have any
residual effects” from his stroke and seizures. T.276-77. He stated
that he “walks 5 miles a day,” had not had a podiatry check in
“many years,” and had no weakness, numbness, or dizziness. T.276.
On examination, Plaintiff walked normally and had full range of
motion throughout his body without any swelling or deformity; in
his extremities, he had full range of motion without clubbing,
cyanosis, or swelling. T.277. His diabetic foot exam revealed
normal pulses, sensation, and motor function. PA Anderson stated
that Plaintiff demonstrated no “abnormal findings.” T.277. Although
Plaintiff was not taking his blood pressure medication, his blood
pressure was normal. T.277-78. Later that month, PA Anderson
observed that Plaintiff was “doing well” and walked normally, with
full range of motion throughout his body and normal neurological
function. T.280. Although PA Anderson prescribed pain medication,
Plaintiff indicated that he did not need the medication regularly
and that “a month supply last[ed] him 2-3 months.” T.281. In March
2016, PA Anderson noted that Plaintiff was walking normally, was
“doing
well,”
had
“no
active
complaints,”
and
had
normal
neurological function throughout his body. T.282-83.
3.
The ALJ’s Weighing of Dr. Rosenberg’s Opinion
The ALJ determined that although Dr. Rosenberg’s opinion was
based on an in-person examination of Plaintiff, it preceded the
-9-
amended onset date. In addition, the ALJ observed, Dr. Rosenberg’s
findings regarding Plaintiff’s limitations with regard to rotating
the cervical spine and engaging in overhead reaching were not fully
supported by the medical record as “the majority of [Plaintiff]’s
physical examinations . . . were seen to be unremarkable.” However,
the ALJ found Dr. Rosenberg’s “opinion pertaining to [Plaintiff]’s
limitations affecting the right hand are supported by the . . . EMG
study”
in
the
record.
Therefore,
the
ALJ
determined,
“Dr. Rosenberg’s opinion will be given partial weight.”
As an initial matter, the Court finds that Dr. Rosenberg’s
opinion was
not
rendered
stale
as
the result
of
Plaintiff’s
subsequent stroke, seizure, and two partial toe amputations. “While
the mere passage of time does not necessarily render a medical
opinion outdated or stale, subsequent surgeries and treatment notes
indicating a claimant’s condition has deteriorated may.”
Moon v. Comm’r of Soc. Sec., No. 17-CV01312-MAT, 2019 WL 2240235,
at
*6
(W.D.N.Y.
May
24,
2019)
(citing
Jones
v.
Colvin,
No. 13-CV-06443, 2014 WL 256593, at *7 (W.D.N.Y. June 6, 2014) (ALJ
should not have relied on a medical opinion in part because it “was
1.5 years stale” as of the plaintiff’s hearing date and “did not
account for her deteriorating condition”); Girolamo v. Colvin,
No. 13-CV-06309(MAT), 2014 WL 2207993, at *7-8 (W.D.N.Y. May 28,
2014) (ALJ should not have afforded “great” weight to medical
opinions rendered before plaintiff’s second surgery)).
-10-
Here, the Court finds that while Plaintiff’s stroke, seizure,
and two partial toe amputations are not insignificant medical
events, they did not cause a deterioration in Plaintiff’s condition
or functional abilities. With regard to the stroke and seizures, it
is significant that Plaintiff’s attorney described them as “almost
non-severe,” “with no noted . . . residual effects[.]” T.39.
With regard to the two partial toe amputations, the record
does
not
reflect
that
Plaintiff
had
any
limitations
on
his
exertional abilities as a result. As discussed above, Plaintiff’s
treatment providers consistently noted that he was walking normally
and had no neurological abnormalities; indeed, in February 2016, he
reported to PA Anderson that he walked five miles a day. T.276.
Since
there
is
no
indication
that
Plaintiff’s
condition
deteriorated after the issuance of Dr. Rosenberg’s opinion, the
Court does not find that it should be deemed “stale.” See, e.g.,
Andrews v. Berryhill, No. 17-CV-6368 (MAT), 2018 WL 2088064, at *3
(W.D.N.Y. May 4, 2018) (“The record does not support the conclusion
that Plaintiff’s condition had significantly deteriorated after the
issuance of Dr. Brownfeld and Dr. Selesner’s opinions such that
they were rendered stale or incomplete.”) (citation omitted).
Plaintiff’s
primary
critique
of
the
ALJ’s
treatment
of
Dr. Rosenberg’s opinion is that the ALJ “rejected the moderate
limitations assessed . . . because they were allegedly inconsistent
with [the] . . . treatment notes.” Pl.’s Mem. at 9-10. Plaintiff
-11-
contends
that
the
ALJ
“‘arbitrarily
substitute[d]
[her]
own
judgment for competent medical opinion.’” Id. at 10 (quotation and
internal
quotation
marks
omitted).
As
discussed
below,
this
assessment of the relevant records is supported by substantial
evidence.
Dr.
Rosenberg
assigned
moderate
limitations
in
bending,
lifting, pushing, pulling, reaching repetitively with his arms,
twisting and turning his neck, performing overhead activities, and
lifting
heavy
limitations
on
objects.
Of
“rotating
these,
the
the
cervical
ALJ
only
spine
and
rejected
engaging
the
in
overhead reaching” as not “fully supported by the record” since the
“majority of the physical examinations” were “unremarkable.” For
instance, in April 2014, Dr. Rosenberg himself did not find any
decreased range of motion (“ROM”) in Plaintiff’s left shoulder. The
right shoulder was somewhat decreased on elevation, abduction, and
external rotation, but the “remainder of right shoulder ROM [was]
full.” T.241.
Although Plaintiff reported that his lawnmower accident in
June 2014
had
aggravated
his
neck
and shoulder
pain,
T.312,
Dr. Shafi Raza observed in July 2014, that Plaintiff had full range
of motion in his neck and back and full muscle strength and
neurological function in his arms and legs. T.258. Dr. Raza did
observe that Plaintiff had some shoulder weakness and pain with
internal rotation, and accordingly prescribed pain medication and
-12-
recommended physical therapy. Id. However, Plaintiff never followed
up with the physical therapy recommendation. And, although he
requested stronger pain medications from Dr. Raza in April 2015,
his musculoskeletal examination was normal and he had normal motor
strength
in
his
upper
and
lower
extremities
without
any
neurological abnormalities. T.270.
In December 2015, Dr. Sameer Gunukula observed that Plaintiff
had normal range of motion in his neck, arms, and legs and normal
neurological and motor function. T.327, 342. On review of systems,
Dr. Gunukula noted that Plaintiff’s neck was “[n]egative for injury
or . . . pain with movement.” T.327. Dr. Gunukula’s examination of
Plaintiff’s neck revealed no vertebral tenderness or crepitus;
Plaintiff’s ROM was “normal,” “supple,” and “without pain;” and he
had “no range of motions limitations.” Id.
In February 2016, Plaintiff did not complain of shoulder pain
to PA Anderson, who found that he had full range of motion on
examination of his extremities and musculoskeletal system. T.280.
Shoulder pain was not one of the diagnoses listed. T.279. Plaintiff
was given a 30-day prescription for Norco, but he said that a
30-day supply would last him two to three months, T.281, suggesting
that he did not need to take it very frequently. Plaintiff’s
failure to pursue physical therapy as recommended by Dr. Raza and
the fact that he took his pain medications less frequently than
prescribed suggest that his shoulder pain was not so severe as to
-13-
be disabling, contrary to his testimony. See, e.g., Bitz v. Colvin,
No. 14-CV-7453(ADS), 2016 WL 1595383, at *13 (E.D.N.Y. Apr. 20,
2016) (“When viewed in light of the lack of any other medical
evidence within the relevant disability period corroborating the
Plaintiff’s complaints, the fact that the Plaintiff waited nearly
a year and a half to seek follow-up treatment for her back pain
does, at the very least, suggest that the Plaintiff did not suffer
from a totally disabling impairment.”) (citing, inter alia, Banks
v. Astrue, 955 F. Supp.2d 178, 190 (W.D.N.Y. 2013) (affirming an
ALJ’s decision to discredit a plaintiff’s credibility, in part,
because “the [p]laintiff’s failure to seek followup treatment for
alleged
physical
ailments
contradicted
his
claims
of
total
disability and severe symptoms.”)).
It bears noting that the only aspect of the ALJ’s weighing of
Dr. Rosenberg’s opinion with which Plaintiff appears to take issue
is the “moderate” limitation on “frequent overhead reaching.”2
Dr. Rosenberg did not assign any limitations as to Plaintiff’s
ability to sit, stand, or walk, and none are supported by the
record,
including
Plaintiff’s
Plaintiff’s
ability
to
own
lift
and
statements.
carry,
the
With
regard
ALJ
to
accepted
Dr. Rosenberg’s moderate limitations and limited Plaintiff to light
work.
In
any
event,
the
Court
notes
that
Plaintiff
himself
2
At the hearing, counsel’s only questioning of the VE pertained to whether
the jobs identified would still be available if the hypothetical claimant could
only reach overhead occasionally instead of frequently. See T.70.
-14-
testified that he could occasionally lift 20 pounds, T.51-52, which
is not inconsistent with light work. The ALJ likewise accepted
Dr. Rosenberg’s moderate limitations as to bending by limiting
Plaintiff to only occasional stooping. After reviewing the record,
the Court concludes that the RFC assessment was not formulated
based solely on the ALJ’s lay opinion. Rather, the ALJ accepted
almost
all
of
Dr.
Rosenberg’s
medical
source
statement
and
incorporated limitations that were congruent with it and supported
by substantial evidence. Plaintiff’s challenge to the RFC simply
reflects a disagreement between the parties about how to weigh the
evidence.
“Although
the
ALJ’s
conclusion
may
not
perfectly
correspond with any of the opinions of medical sources cited in his
decision, [s]he was entitled to weigh all of the evidence available
to make an RFC finding that was consistent with the record as a
whole.”
Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)
(summary order) (citing Richardson v. Perales, 402 U.S. 389, 399
(1971) (“We therefore are presented with the not uncommon situation
of conflicting medical evidence. The trier of fact has the duty to
resolve that conflict.”)). Where “there is substantial evidence to
support either position, the determination is one to be made by the
fact-finder[.]” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990). Here, there is ample evidence supporting the ALJ’s weighing
of Dr. Rosenberg’s opinion and the RFC assessment. Therefore, the
Court must
“regard
th[e]s[e]
determination[s]
-15-
as
conclusive.”
Davila-Marrero v. Apfel, 4 F. App’x 45, 46 (2d Cir. 2001) (summary
order).
V.
Conclusion
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision is supported by substantial evidence and
contains no
errors
of
law.
Accordingly,
it
is
affirmed. The
Commissioner’s motion for judgment on the pleadings is granted, and
Plaintiff’s motion is denied. The Clerk of Court is directed to
close this case.
SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
September 24, 2019
Rochester, New York
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