Sanders v. Commissioner of Social Security
DECISION AND ORDER granting the Commissioner's motion for judgment on the pleadings and dismissing the plaintiff's complaint with prejudice. Signed by Hon. Michael A. Telesca on 5/3/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Commissioner of Social Security
Plaintiff, Lenorris Sanders(“Plaintiff”), brings this action
pursuant to Title XVI of the Social Security Act, seeking review of
(“Commissioner”), denying his application for Supplemental Security
decision of the Administrative Law Judge, John P. Costello (“ALJ”),
denying Plaintiff’s application for benefits, was not supported by
applicable legal standards.
The Commissioner moves for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12 (c) (“Rule 12 (c)”), on the grounds that the
decision of the ALJ was supported by substantial evidence in the
record and was in accordance with the applicable legal standards.
The Plaintiff opposes the Commissioner’s motion, and cross-moves
for judgement on the pleadings on the grounds that the ALJ’s
decision was not supported by substantial evidence and was contrary
to the applicable legal standards. This Court finds that the ALJ’s
decision was supported by substantial evidence in the record and
was in accordance with the applicable legal standards.
for the reasons set forth below, the Commissioner’s motion for
judgment on the pleadings is granted, and the Plaintiff’s motion is
Plaintiff’s complaint is dismissed with prejudice.
Income on October 30, 2007 under Title XVI of the Social Security
Act, claiming disability due to “chronic lower back pain, left leg,
application was initially denied on February 20, 2008.
Id. at 43-
Plaintiff filed a timely written request for a de novo
hearing, which was held on September 20, 2009 before ALJ John P.
Id. at 19-41, 47. Plaintiff appeared at the hearing,
without counsel, and testified.
Id. at 21-22.
In a decision dated November 3, 2009, the ALJ found that the
Id. at 117-18.
Plaintiff sought review by the
Appeals Council on January 6, 2010.
Id. at 4-5.
decision became the final decision of the Commissioner on April 16,
Plaintiff then filed this action.
Jurisdiction and Scope of Review
42 U.S.C. §405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
considering these cases, this section directs the Court to accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is “such relevant evidence as a reasonable
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938).
Commissioner’s findings were supported by substantial evidence in
the record, and whether the Commissioner employed the proper legal
standards in evaluating the plaintiff’s claim.
See Monger v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (finding a reviewing
Court does not try a benefits case de novo).
The Court must
reasonableness of the decision reached.” Lynn v. Schweiker, 565
F.Supp. 265, 267 (S.D. Tex. 1983) (citation omitted).
The Commissioner asserts that the ALJ’s decision is supported
by substantial evidence in the record and is in accordance with the
applicable legal standards, and moves for judgment on the pleadings
pursuant to Rule 12 (c).
Under Rule 12 (c), judgment on the
pleadings may be granted where the material facts are undisputed
and where judgment on the merits is possible merely by considering
the contents of the pleadings. Sellers v. M.C. Floor Crafters,
Inc., 842 F.2d 639 (2d Cir. 1988).
If, after reviewing the record,
the Court is convinced that Plaintiff has not set forth a plausible
claim for relief, judgment on the pleadings may be appropriate. See
generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
After reviewing the entire record, this Court finds that the
Commissioner’s decision is supported by substantial evidence in the
record, and is in accordance with the applicable legal standards.
Therefore, the Commissioner’s motion for judgment on the pleadings
is granted, and the Plaintiff’s motion is denied.
The Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record.
The ALJ found that the Plaintiff was not disabled within the
meaning of the Social Security Act.
Tr. at 17-18.
analysis for evaluating Social Security disability benefits cases.
Id. at 9-18.
The 5-step analysis requires the ALJ to consider the
Whether the claimant is currently engaged in substantial
if not, whether the claimant has a severe impairment
which significantly limits his physical or mental ability
to do basic work activities;
if the claimant suffers a severe impairment, the ALJ
considers whether the claimant has an impairment which is
listed in Appendix 1, Subpart P, Regulation No. 4, if so,
the claimant is presumed disabled;
if not, the ALJ considers whether the impairment prevents
the claimant from doing past relevant work;
if the claimant’s impairments prevent her from doing past
relevant work, if other work exists in significant
numbers in the national economy that accommodate the
claimant’s residual functional capacity and vocational
factors, the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v).
In this case, the ALJ found that: (1) the Plaintiff has not
engaged in substantial gainful activity since October 30, 2007;
(2) the Plaintiff has the following severe impairments: low back
and neck pain; (3) the Plaintiff’s impairments do not meet or
medically equal the listed impairments in Appendix 1, Subpart P,
Regulation No. 4; (4) the Plaintiff has no past relevant work, but
can complete light or sedentary work which requires lifting 20
pounds occasionally and/or 10 pounds frequently, sitting, standing
and/or walking for about 6 hours in an 8-hour workday, pushing
and/or pulling machinery controls, and does not include overhead
lifting, and (5) there are a significant number of jobs in the
education, work experience, and residual functional capacity, can
Tr. at 12-17.
Therefore, the ALJ concluded that the
Id. at 17-18.
This Court finds that the ALJ’s
decision was supported by substantial evidence in the record.
Plaintiff’s lower back and neck pain originally resulted from
a work-related injury occurring on July 25, 1991.
Id. 24-25, 290.
Plaintiff’s medical record begins with an x-ray of Plaintiff’s
lumbosacral spine on August 2, 1991 by Dr. Peter Mehnert, M.D.
which shows normal results.
Id. at 173.
Id. at 174.
Then, on August 2, 1991,
The results indicated very slight
disc bulging at L3-4, “considerable disc bulging centrally and
increased prominence of the ligamentum flavum” at L4-5, and no
evidence of abnormality at L5-S1. Id. Overall, Dr. Haggerty noted
Plaintiff had “relative spinal stenosis at L3-4 secondary to slight
disc protrusion and very prominent ligamentum flavum” as well as
“disc bulging with borderline herniation at L5-S1."
Plaintiff filed a worker’s compensation claim in connection
with the work-related injury occurring on July 25, 1991 in which
Plaintiff was found to have a “partial disability.”
Id. at 31.
The Plaintiff was examined by Dr. Fowler who diagnosed a partial
disability and recommended further neurological examination.
Dr. Fowler’s exam revealed “level shoulders, hips, and gluteal
folds with normal lordosis,” but mild left paraspinal muscle spasms
Dr. Fowler also noted good motion at the waist and a good heel to
In addition, Dr. Andre R. Lefebvre conducted an independent
examination of Plaintiff for his Worker’s Compensation claim.
Dr. Lefebvre diagnosed “recurring right sided low back
pain syndrome with transient radioculopathy, no myelopathy found,”
employability was “light to medium capacity” with suggested “job
retraining at VESID.”
Id. at 286-87.
In his review of Plaintiff’s
medical records, Dr. Lefebvre noted that Dr. Pearle diagnosed
Plaintiff with a “moderate temporary partial disability which
limits lifting over 20 pounds” on August 27, 1993.
compensation claim on May 4, 1994.
Id. at 283.
Id. at 289.
Plaintiff was incarcerated from 1996 to December 2000 under
the supervision of the Georgia Department of Corrections.
complained of back pain.
Id. at 256, 263.
Despite his complaints,
examining doctors found Plaintiff was able to perform his assigned
Id. at 269-270.
Additionally, an examining doctor
found Plaintiff had a full range of motion, 5/5 motor strength, and
could walk on heels and toes.
Id. at 191.
In 1997, Plaintiff visited the medical center on several
Plaintiff alleged that he sprained his back on the basketball court
on May 21, 1997.
Id. at 257.
After one visit, Plaintiff was
removed from work assignment until his next medical appointment.
Id. at 278.
On June 26, 1997, Plaintiff was diagnosed with spinal
stenosis L3-4 and disc bulging L5-S1.
Id. at 250.
given Motrin to relieve the pain and was not sent for further
diagnostic testing or to the chronic illness clinic.
On July 1, 1998, Plaintiff was treated for turning his right
ankle in basketball camp.
Id. at 242.
Id. at 188.
The medical doctor rated
“intermediate” physical capability, and “strongest” upper extremity
and lower extremity strength. Id. This doctor noted Plaintiff had
been diagnosed with intervertebral disc disease and sciatic pain on
the left side and that Plaintiff was “not impaired, normal.”
On the same day, Plaintiff was restricted in his work detail to “no
lifting over 20 pounds, no prolonged standing over 30 min., no
bending or kneeling until May 16, 2000.”
Id. at 277.
annual exam on November 24, 1999, Dr. Jacobs noted Plaintiff had an
abnormal back and spine due to intervertebral disc disease and
sciatic pain on the left side.
Id. at 186.
In 2000, Plaintiff was treated on several occasions for back
Id. at 212, 217-221, 223.
Plaintiff was instructed to
continue exercises as previously ordered and to take ibuprofen to
alleviate the pain. Id. Plaintiff denied any history of numbness,
tingling, or loss of sensation due to his back pain.
Id. at 221.
During a follow-up back pain examination on January 20, 2000, the
medical doctor noted that Plaintiff’s condition was “good - no
distress” and Plaintiff’s lumbar spine had not changed since the
evaluation on November 16, 1999.
Id. at 223.
diagnosed intervertebral disc disease.
The doctor again
On May 6, 2000, Plaintiff had full range of motion and no
difficulty with straight leg raises despite complaints of “severe
Id. at 212.
Upon discharge from incarceration on
December 12, 2000, Plaintiff had no history of a present illness,
no current medications, and “no follow up care needed.”
On January 31, 2001, the New York Insurance Fund referred
Plaintiff to Dr. Joseph N. Saba, M.D. in Riverdale, GA.
310. Plaintiff reported “history of chronic lumbar syndrome” since
1991 and having a “permanent partial disability.”
examination, Dr. Saba found “no definite atrophy,” ability “to walk
both on his tip toes and his heels,” “sensory loss about the left
L5/left S1 distribution to pin prick and light touch,” and deep
tendon reflexes are 2+ equal except for the left ankle jerk which
is only a trace.”
Dr. Saba diagnosed “disc herniation at the
L5-S1 level with a left S1 radiculopathy” and a “history of
possible spinal stenosis at the L3-4 level.”
Plaintiff returned to Dr. Saba’s office on February 21, 2001
complaining of severe pain which caused him to walk in an antalgic
Id. at 311.
Dr. Saba could not examine Plaintiffs range
of motion and prescribed Oxycontin in response to Plaintiff’s
renewed request “to prescribe something stronger for his pain.”
fibrillation on the left side with “positive waves at the lower
left,” the same muscles on the right side were normal, and the
“anterior tibialis, gastronemius, and soleus were normal.”
Dr. Saba also noted the Plaintiff’s “H reflexes, surals, and
peroneals were normal” and straight leg raises were normal, but
that “the range of motion of the low back is reduced flexion
Dr. Saba diagnosed chronic lumbar syndrome with
“(a) significant setback by the patient’s report; (b) history of
possible spinal stenosis at L3-4; (c) disc bulge at the L4-5 level
Lastly, Dr. Saba noted that Plaintiff “is
using emotionally charged words to describe his pain, suffering and
He states that his condition is getting worse and he
would like a statement to that effect so that he can get Social
I gave him a statement saying that his symptoms are
However, Dr. Saba’s recommendations only
included continuing Plaintiff’s exercises and use of a TENS unit.
April 18, 2001 which revealed “degenerative discs at L3-4 and L4-5
with degenerative bulging, but no HNP.”
Id. at 312.
On May 21, 2001, Plaintiff returned to Dr. Saba’s office
complaining that “the only improvement he gets is on Oxycontin.”
Id. at 306.
Upon examination, Dr. Saba again noted sensory loss
unremarkable, there is no atrophy, and no pathological reflexes.
Dr. Saba noted that Plaintiff does not require surgery and
referred Plaintiff to a pain clinic for chronic pain management.
Plaintiff had a follow-up appointment with Dr. Saba on June
28, 2001 in which Plaintiff noted that he had been turned away from
Social Security Disability.
Id. at 305.
another prescription for Oxycontin after a long discussion about
his condition with Dr. Saba.
Plaintiff stated he has moved
and will be finding a new doctor closer to his new residence.
On October 3, 2001, Plaintiff returned to Dr. Saba’s office
“using emotionally charged words to describe his pain, suffering,
Id. at 304.
Plaintiff requested Oxycontin, which
Dr. Saba refused, and instead prescribed Ultram and Flexeril.
Plaintiff returned to Dr. Saba’s office on January 3, 2006.
Id. at 313.
Dr. Saba noted that Plaintiff had not visited the
office in over 3 years.
Plaintiff again requested opiods,
such as Oxycontin, which Dr. Saba refused.
During the exam,
Dr. Saba noted Plaintiff walks in a stooped over position like “a
frightened novice skier,” no atrophy, no pathological reflexes, and
“Plaintiff’s range of motion could not be
examined because of the pain.”
Dr. Saba further noted “[i]n
an abundance of caution, I am also taking the liberty of referring
him [Plaintiff] to a neurosurgeon...for a second opinion.”
Plaintiff was examined and treated by Dr. Gregory Hopkins,
M.D. on April 11, April 25, May 22, and August 17, 2006 for lower
back pain that radiated down the left leg.
Id. at 322-25.
Plaintiff stated Oxycontin helped his pain, but that other pain
medications slowly lost effect during his incarceration.
Dr. Hopkins diagnosed lumbroscral disc degeneration and
sciatica and prescribed Vicodin and Soma 350mg for muscle spasms.
On August 17, 2006, Dr. Hopkins referred Plaintiff for pain
Id. at 325.
On May 18, 2006, Plaintiff had an x-ray taken of his thoracic
spine and his lumbar spine by Dr. Barry Smith, M.D.
Id. at 315.
The thoracic spine series showed “very mild degenerative disc
disease with disc narrowing in mid-thoracic spine.”
the lumbar spine showed “degenerative disc disease with disc
narrowing ... at L3-4, L4-5, and L5-S1.”
This led Dr. Smith
to diagnose mild degenerative disc disease for the thoracic spine,
“osteoarthritic change lumbosacral junction,” mild scoliosis, and
Dr. Bharat Gupta next treated Plaintiff on July 11, 2006 for
Id. at 319-320.
Dr. Gupta diagnosed “Bachache NOS[not
Dr. Gupta observed tenderness upon palpation to the lumboscral
spine, but no kyphosis, scoliosis or paravertebral spasm.
October 25, 2006, Plaintiff visited Dr. Gupta with substantially
the same complaints and exams results.
referred Plaintiff to a chiropractor and started Plaintiff on
On November 5, 2007, Dr. Gupta completed a follow-up exam on
plaintiff for back pain, which was “accident related.” Id. at 33132.
Dr. Gupta noted that Plaintiff was in a motor vehicle
substantially the same.
Id. at 332.
Dr. Gupta noted no scoliosis
and no kyphosis, but posterior tenderness along the spine and
bilateral tenderness from L1 to S1.
for physical therapy.
Plaintiff was referred
Plaintiff participated in a consultative orthopedic exam on
January 5, 2008 by George Alexis Sirotenko, D.O.
Id. at 333-35.
Plaintiff’s complaints include back pain as well as “intermittent
numbness in the lateral aspect of his left calf.”
Id. at 333.
Plaintiff stated he had not been seen by a neurosurgeon, underwent
physical therapy with improvement of symptoms, and has never been
evaluated by a pain clinic.
Plaintiff did not appear to be in
acute distress, had a normal gait, walked normally, could do a full
squat, was able to rise from a chair without difficulty, and needed
no help getting onto or off of the examination table.
Id. at 334.
Plaintiff reported that his daily activities include bathing and
dressing himself, watching television, reading, listening to the
Dr. Sirotenko noted that the following limitations on the thoracic
and lumbar spine: “lumbar spine flexion 40 degrees, extension
20 degrees, lateral rotation 20 degrees.”
has tenderness from L1 to L5.
musculoskeletal ligamentous back pain with no features of extremity
Id. at 335.
Dr. Sirotenko stated Plaintiff has a
fair prognosis with “moderate limitations regarding repetitive
lumbar spine forward flexion, extension or rotation,” and Plaintiff
should avoid “lifting objects over his head on a repetitive basis.”
Dr. Sirotenko also noted that based on his evaluation,
Plaintiff does not require any assistive/supportive devices.
Further, as a part of this examination, the Plaintiff had x-rays
taken of his lumbosacral spine by Dr. Jitendra M. Sanghvi, M.D.
Id. at 335-36.
The x-rays revealed moderate degenerative disc
disease at L3-L4, slight narrowing of disc spaces at L4-L5 and L5S1, and osteophytes in the lower lumbar spine.
Id. at 336.
Plaintiff continued to see Dr. Gupta throughout 2008 for neck
and back pain.
Id. at 353, 357-372.
These examinations generally
revealed posterior tenderness and bilateral tenderness from L5 to
Id. at 353, 357, 364-65, 368, 370-71.
On January 24, 2008,
Plaintiff asked Dr. Gupta to give him a letter stating “that he is
totally and permanently disabled due to the aches and pains.”
On February 5, 2008, Dr. Gupta noted that Plaintiff was
not improving with physical therapy and instead referred Plaintiff
to the pain clinic.
Id. at 368.
On March 3, 2008, Plaintiff was evaluated by Dr. Annie Philip
at the Strong Memorial Hospital Pain Center.
Id. at 379-382.
Plaintiff stated he experienced cervical whiplash as a result of a
motor vehicle accident.
Id. at 379.
suffered from neck pain.
Since this accident, he has
Plaintiff stated that the TENS unit
and physical therapy only provided temporary relief.
extremities, and a normal gait, posture and heel-to-toe walk.
Dr. Phillips concluded that Plaintiff’s pain was mostly
myofacial in origin and suggested the use an NSAID, such as Mobic
to treat this pain.
Id. at 381.
Further, Dr. Phillips suggested
discontinuing the Vicodin prescriptions because of Plaintiff’s
history of substance abuse as well as a urine toxicology screen to
currently using any recreational drugs.
Plaintiff had a follow-up visit at the pain clinic with
Dr. Joel Kent on April 18, 2008.
Id. at 376-78.
medication, heat therapy and a TENS unit.”
Id. at 377.
this visit, Plaintiff stated that he forgot to get his urine
toxicology screen completed as instructed in his first visit.
Dr. Kent stated that this raised concern for inappropriate use of
Plaintiff’s Vicodin prescription.
An MRI of Plaintiff’s cervical spine on March 31, 2008 showed
spondylitic ridging at C3-4, C4-5, and C6-7.
was no significant spinal stenosis present.
Id. at 374.
Plaintiff missed his scheduled follow-up appointment at the
pain clinic on June 12, 2008.
Id. at 375.
Dr. Gupta treated Plaintiff for follow up appointments as well
as chronic back pain complaints on May 21, 2008, July 2, 2008,
August 1, 2008, October 23, 2008, December 1, 2008, December 22,
2008, and February 9, 2009.
Id. at 351, 353, 357, 359, 361, 363,
During the visit on February 9, 2009, Dr. Gupta noted
that he will continue the pain medicines but noted that Plaintiff
could work with restrictions.
Id. at 352.
Plaintiff “was very
upset” and felt that Dr. Gupta “was not fair to him [Plaintiff].”
Plaintiff “was not too happy” and argued that “he is totally
disabled and cannot do any kind of job.”
stated that “he want[ed] to switch to another doctor.”
On March 20, 2009, Plaintiff visited Dr. Amanat M. Yosha, M.D.
for chronic pain in his neck and lower back and requested “a letter
for disability saying that he cannot work due to chronic back and
Id. at 384-85.
Upon examination Dr. Yosha observed
full range of motion of Plaintiff’s back, a normal range of motion
for Plaintiff’s spine, and a normal gait.
Id. at 384.
there was no swelling, deformity, or scoliosis, but decreased
Plaintiff requested Dr. Yosha prescribe
Vicodin, but Dr. Yosha informed Plaintiff he does not prescribe
Vicodin, and prescribed Flexeril and Ultram instead.
also referred Plaintiff to a physical therapist for his back and
Id. at 385.
On May 5, 2009, Plaintiff was evaluated by physical therapist
Id. at 387.
On a follow-up on May 29, 2009,
Plaintiff stated that “he feels looser and a little better since
[his] initial eval[uation].”
Id. at 388.
Dr. Gogstetter noted no
significant change to Plaintiff’s range of motion and strength, and
referred Plaintiff back to his practitioner.
Plaintiff returned to Dr. Gupta on April 15, 2009, July 1,
2009, August 3, 2009, and September 4, 2009.
Id. at 432, 434, 436,
On the latest visit, Plaintiff noted that his pain was
controlled with medicine at a level of “4/10."
Id. at 438.
The ALJ properly determined that Plaintiff does not meet the
criteria of Listing 1.04.
Plaintiff claims that the ALJ committed error in finding that
Plaintiff’s impairments do not meet the requirements of Listing
Pl. Mem. of Law at 14.
Specifically, Plaintiff argues that
he meets the requirements of Listing 1.04 which requires a disorder
of the spine that results in the compromise of a nerve root or the
spinal cord with evidence of nerve root compression.
C.F.R. Part 404, Subpart P, Appendix 1 (“Listing of Impairments”).
Plaintiff inaccurately cites the results of an MRI conducted on
April 18, 2001 in support of his claim.
Pl. Mem. of Law at 14.
The MRI Plaintiff refers to showed “disc bulging . . . without
encroachment upon both L5 nerve roots,” Dr. Hugo Falcon, Jr., M.D.
did not state that either nerve root or spinal cord compression was
Without evidence of compression of the nerve root or
spinal cord, Plaintiff does not meet the requirements of Listing
Thus, this Court finds that the ALJ correctly held that
Plaintiff does not meet step 3 of the analysis.
Additionally, although there are several instances in which
the Plaintiff has been diagnosed with spinal stenosis, none of
these instances indicate that “pseudoclaudication and inability to
perform fine and gross manipulation or ambulate effectively,” which
would also cause Plaintiff to meet the requirements of Listing
Id. at 12.
It is important to note that the diagnosis of
spinal stenosis was not consistent, as an MRI of Plaintiff’s
cervical spine on March 31, 2008 showed no significant spinal
Id. at 374.
Regardless, even if the Plaintiff
suffers from spinal stenosis, because the Plaintiff does not suffer
from pseudoclaudication and inability to perform fine and gross
manipulation or ambulate effectively, the Court finds that the ALJ
correctly held that Plaintiff does not meet the requirements under
The ALJ gave proper weight to Dr. Gupta’s evaluation in the
ALJ’s Residual Functional Capacity Assessment.
Plaintiff claims that the ALJ did not give appropriate weight
to the evaluations by Dr. Gupta in his Residual Functional Capacity
Assessment (hereinafter RFC).
Pl. Mem. of Law at 17-21.
RFC, the ALJ found Plaintiff “has the residual functional capacity
to lift 20 pounds occasionally and 10 pounds frequently; sit, stand
and/or walk (with normal breaks) for a total of about 6 hours in an
8-hour workday; push and/or pull (including operation of hand
and/or foot controls[)]; and is precluded from overhead lifting.”
Tr. at 12.
Ultimately, Plaintiff argues that this variance from
treating physician Dr. Gupta’s recommendation, which stated that
Plaintiff should not to lift more than 10 pounds and should not
stand for more than 1 hour is erroneous. Pl. Mem. of Law at 17-21.
The Court is not persuaded by this argument.
physician’s opinion on the subject of medical disability, i.e.,
diagnosis and nature and degree of impairment, is: (i) binding on
the fact-finder unless contradicted by substantial evidence; and
(ii) entitled to some extra weight because the treating physician
is usually more familiar with a claimant’s medical condition than
are other physicians, although resolution of genuine conflicts
between the opinion of the treating physician, with its extra
weight, and any substantial evidence to the contrary remains the
responsibility of the fact-finder.”
Schisler v. Heckler, 787 F.2d
76, 81 (2d Cir. 1986).
“Where the treating physician’s opinion is
not given controlling weight, the ALJ must determine how much
factors: the length and frequency of the treating relationship; the
nature and extent of the relationship; the amount of evidence the
physician presents to support his or her opinion; the consistency
specialization; and any other factors the claimant brings to the
Carlantone v. Astrue, 2009 WL 2043888 (S.D.N.Y. 2009).
The Court finds that Dr. Gupta is a treating physician.
Dr. Gupta has examined Plaintiff on many occasions for complaints
of neck and back pain as well as other ailments.
correctly argues that Dr. Gupta found that the Plaintiff is capable
of working with restrictions such that Plaintiff should not to lift
more than 10 pounds and should not stand for more than 1 hour at a
Id. at 352, 369.
However, despite the Plaintiff’s claims to
the contrary, this Court finds that the ALJ weighed this diagnosis
heavily in forming his opinion that Plaintiff can perform light or
Id. at 12-16.
In addition to relying on the
medical opinion of Dr. Gupta, the ALJ also considered the medical
opinions of other acceptable medical sources in his determination
of Plaintiff’s Residual Functional Capacity.
282-87, 333-35, 337-342.
Id. at 12-16, 277,
During several of these visits with Dr. Gupta as well as
visits to other acceptable medical sources, it is important to note
completely disabled for social security disability.
Id. at 307,
352, 369, 384-85.
Refusal to give Plaintiff this letter caused
condition as well as to make statements that Plaintiff would seek
a new doctor for the purpose of receiving such a letter.
medical evidence contained in the record . . . [supporting this]
Pl. Mem. of Law at 19.
The ALJ’s finding is supported by
Dr. Gupta’s diagnosis and recommendations.
Id. at 352, 369.
ALJ’s finding is also supported by the consultive examination of
Plaintiff conducted by Dr. Andre R. Lefebvre for Plaintiff’s
Worker’s Compensation Claim.
Tr. at 282-87.
It is further
supported by the limitations put on the Plaintiff for work detail
during his incarceration.
Id. at 277.
For example, on November
Department of Corrections facility restricted Plaintiff in his work
detail to “no lifting over 20 pounds, no prolonged standing over 30
min., no bending or kneeling” for a period of 6 months.
Finally, the ALJ’s decision regarding the Plaintiff’s physical
limitations is supported by the consultative examination by Dr.
Functional Capacity Assessment completed by disability examiner
Id. at 337-342.
The ALJ considered the opinions of
extensive records, opinions, and treatments by treating physician
Id. at 12-16.
Thus, this Court finds that the ALJ
gave appropriate weight to Dr. Gupta’s opinion as the treating
physician along with other acceptable medical sources.
The ALJ gave proper weight to the testimony of Dr. Peter
Mansey, a vocational expert.
doctors, including treating physician Dr. Gupta, all of which
suggest that the Plaintiff is at least limited to lifting no more
than 20 pounds and should limit long periods of standing.
Under these limitations, the ALJ found that “there are jobs in
significant numbers in the national economy that the claimant can
perform,” including light and sedentary work.
Id. at 16.
testimony of Dr. Peter Mansey, a vocational expert, supports this
In questioning a vocational expert, hypothetical questions
must precisely and comprehensively set out every physical and
mental impairment of the Plaintiff that the ALJ accepts as true and
Varley v. Sec’y of Health & Human Services, 820 F.2d
777, 779 (6th Cir. 1987).
In the present case, Dr. Mansey’s
opinion was restricted to discussing a person experiencing the same
conditions as the Plaintiff.
Tr. at 37-38.
Dr. Mansey testified
perform light work such as that of cashier or collator operator and
sedentary work such as that of general assembler or addresser. Id.
This Court finds that the ALJ correctly held that Plaintiff is
capable of performing light work and sedentary work, specifically
addresser, and thus is not disabled under the Act.
The ALJ properly developed the record.
In social security disability cases where the Plaintiff is
proceeding pro se, the ALJ has a heightened duty to develop the
record and “scrupulously and conscientiously probe into, inquire
of, and explore all the relevant facts.”
Cruz v. Sullivan, 912
F.2d 8, 11 (2d Cir. 1990); Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
Further, the ALJ must “make every reasonable effort to
obtain not merely the medical records of the treating physician but
physician as to the existence, the nature, and the severity of the
Peed v. Sullivan, 778 F.Supp. 1241, 1246
Here, the ALJ noted at the start of the hearing that he spoke
with the Plaintiff and delayed the hearing by approximately six
weeks in order to allow the Plaintiff the opportunity to retain an
Tr. at 21.
Plaintiff did not retain an attorney and
instead Plaintiff stated that he was ready to proceed with the
hearing pro se on September 22, 2009.
The ALJ asked the
Plaintiff if he had any objection to the entering of his entire
medical record into the record, and Plaintiff did not object.
The record contains an abundance of documentation from Dr. Gupta,
the Plaintiff’s treating physician, as well as documentation from
other acceptable medical sources including other physicians and
summaries, Plaintiff’s treating physician, Dr. Gupta, clearly gave
his medical opinion on numerous occasions that Plaintiff is capable
of working with restrictions.
Id. at 352, 369.
examiner Dr. Sirotenko gave a similar opinion that Plaintiff can
work with restrictions.
Id. at 333-35.
Lastly, Dr. Lefebvre
stated Plaintiff’s employability was “light to medium capacity”
Ultimately, this Court finds that the ALJ met his duty to fully
develop the record and correctly found that the Plaintiff is not
disabled under the Act.
The ALJ correctly evaluated the Plaintiff’s credibility.
Once an ALJ has determined that an applicant suffers from a
medically determinable impairment that could reasonably be expected
to produce a claimant’s pain and other symptoms, he is required to
evaluate the intensity of these symptoms by the following factors:
(i) daily activities; (ii) the location, duration, frequency, and
intensity of your pain or other symptoms; (iii) precipitating and
aggravating factors; (iv) the type, dosage, effectiveness, and side
effects of any medications taken to alleviate this pain or these
symptoms; (v) other treatment used for relief of these symptoms;
(vi) any other measures used to relieve the pain or symptoms;
(vii) other factors regarding your restrictions or limitations due
to pain or symptoms.
20 C.F.R. § 416.929(c)(3); SSR 96-7p.
ALJ finds the Plaintiff’s testimony not to be credible, than the
ALJ must give a detailed explanation explaining the ALJ’s reasoning
behind his conclusion.
See Marshall v. Heckler, 731 F.2d 555
(8th Cir. 1984).
In his decision, the ALJ discussed the Plaintiff’s testimony
Plaintiff’s own description and testimony about his pain and
symptoms, any and all measures used to relieve his pain including
medications such as Oxycontin and Vicodin, use of a TENS unit,
Plaintiff’s general bodily positioning used to alleviate pain, and
Plaintiff’s participation in physical therapy.
Tr. at 14-16.
Plaintiff’s “statements are not credible to the extent that they
are inconsistent with the . . . residual functional capacity
assessment,” which was based on the consultative examination by
Dr. Sirotenko as well as the entire medical record provided by the
Id. at 12-16.
The ALJ proceeded to give a detailed
discussion of the Plaintiff’s testimony in regards to these factors
and further how the medical findings of Dr. Gupta and the other
physicians related to and disagreed with many of the Plaintiff’s
Ultimately, this Court finds that the ALJ properly
considered the testimony of the Plaintiff in his finding that the
Plaintiff is not disabled under the Act.
For the reasons set forth above, this Court finds that the
supported by substantial evidence in the record.
grant the Commissioner’s motion for judgment on the pleadings. The
Plaintiff’s complaint is dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
May 3, 2011
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?