Rugless v. Commissioner of Social Security

Filing 12

ORDER denying 6 Plaintiff's Motion for Judgment on the Pleadings; granting 8 Defendant's Motion for Judgment on the Pleadings and dismissing the Complaint with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/20/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________________
DARRYL L. RUGLESS,
11-CV-6624

Plaintiff,

DECISION
and ORDER

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

Defendant.
___________________________________________________
INTRODUCTION
Represented

by

counsel,

plaintiff

Darryl

L.

Rugless

(“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1383(c)(3)
and 42 U.S.C. § 405(g) of the Social Security Act (“the Act”)
seeking review of a final decision of the Commissioner of Social
Security (“Commissioner”), denying his application for Supplemental
Security Income (“SSI”).

Specifically, Plaintiff alleges that the

decision of the Administrative Law Judge (“ALJ”) denying his
application for benefits was not supported by substantial evidence
and was contrary to applicable legal standards.
Plaintiff has moved for judgment on the pleadings pursuant to
Fed. R. Civ. P. 12(c) (“Rule 12(c)”) and 42 U.S.C. 405(g) seeking
to reverse the Commissioner’s decision or, in the alternative, to
remand

the

matter

for

reconsideration

of

the

evidence.

The

Commissioner has cross-moved for judgment on the pleadings pursuant
to 42 U.S.C. § 405(g) on the grounds that the ALJ’s was supported
by substantial evidence and was legally correct.

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). For the reasons set forth below, this Court finds
that the decision of the Commissioner was supported by substantial
evidence in the record and was in accordance with the applicable
legal

standards.

Accordingly,

the

Commissioner’s

motion

for

judgment on the pleadings is hereby granted.
BACKGROUND
Plaintiff filed an application on September 11, 2009, for SSI
claiming a disability since December 31, 2008, due to a back
injury, panic attacks, and chronic pain.

At the time he filed his

application, Plaintiff was thirty-nine years-old and had performed
past work in factory assembly, as a teacher’s aid, and as a truck
driver/laborer.

Plaintiff’s application was denied by the Social

Security Administration (“the Administration”) on November 24,
2009.

On December 2, 2009, Plaintiff filed a written request for

a hearing.
Plaintiff appeared for the hearing, with counsel, before ALJ
Jennifer

Whang

videoconference.

on

May

10,

2011.

The

ALJ

appeared

via

Arthur Brown, a vocational expert, testified by

phone at the hearing.

In a decision dated June 6, 2011, the ALJ

determined that Plaintiff was not disabled within the meaning of

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the Act.

The ALJ’s decision became the final decision of the

Commissioner

when

the

Social

Security

Appeals

Council

Plaintiff’s request for review on October 26, 2011.

denied

On December

19, 2011, Plaintiff filed this action.
DISCUSSION
I.

Jurisdiction and Scope of Review
Title 42 U.S.C., § 405(g) grants jurisdiction to district

courts to hear claims based on the denial of Social Security
benefits. This section directs that when considering such a claim,
the

Court

must

Commissioner,

accept

provided

the
that

findings
such

of

findings

fact
are

made

by

supported

the
by

substantial evidence in the record. Substantial evidence is defined
as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB,
305 U.S. 197, 217 (1938); see also Moore v. Sec’y of Health and
Human Services, 778 F.2d 127, 130 (2d Cir. 1985). Section 405(g)
thus limits the Court’s scope of review to determining whether the
Commissioner’s findings were supported by substantial evidence, and
whether the Commissioner employed the proper legal standards in
evaluating the plaintiff’s claim. See Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir. 1983) (stating that a reviewing court does not
decide a benefits case de novo).

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II.

The Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record.
In her decision, the ALJ adhered to the five-step sequential

analysis for evaluating Social Security disability benefits claims,
which requires the ALJ to consider the following factors:
(1) whether the claimant is engaged in any substantial
gainful work activity;
(2) if not, whether the claimant has a severe impairment
that significantly limits his ability to work;
(3) whether the claimant’s impairment or combination of
impairments meets or medically equals a listed impairment
contained in Appendix 1, Subpart P, Regulation No. 4; if
so, claimant is considered disabled;
(4) if not, the ALJ determines whether the impairment
prevents the claimant from performing past relevant work;
if the claimant has the Residual Functional Capacity
(“RFC”)to do his past work, he is not disabled;
(5) even if the claimant’s impairment or combination of
impairments prevents him from doing past relevant work,
if other work exists in significant numbers in the
national economy that accommodates his RFC and vocational
factors, he is not disabled.
See 20 C.F.R. §§ 404.1520 (a) (I)-(iv) and 416.920(a)(4)(I)-(iv).
At Step One of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since his
alleged

disability

onset

date.

(Transcript

of

Administrative

Proceedings (“Tr.”) at 51). At Step Two, the ALJ found that
Plaintiff had the following severe impairments: degenerative disc
disease and obesity. (Tr. at 51).

The Plaintiff also had the

following non-severe impairments: depression and anxiety. (Tr. at
51). At Step Three, the ALJ concluded that although severe, the
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Plaintiff’s

impairments

due

to

degenerative

disc

disease

and

obesity did not meet or equal, alone or in combination, the
criteria listed in Appendix 1, Subpart P of Regulation No. 4.
(Tr. at 52).
At Step Four, the ALJ found that Plaintiff’s past work as an
assembly line label inspector, truck driver, teacher’s aid, and
fork lift operator all exceeded the exertional requirements of his
Residual Functional Capacity, and therefore, Plaintiff could not
perform his past relevant work. (Tr. at 55).

The ALJ concluded

that Plaintiff, despite his impairments, retained the RFC to
perform a significant range of light work, except that he would
need to alternate positions between sitting or standing every
30 minutes.

Additionally, the ALJ found that Plaintiff could only

occasionally use ramps and climb stairs, but he could never climb
ladders, ropes, or scaffolds. Plaintiff also could balance, stoop,
kneel, crouch, or crawl only occasionally. Finally, Plaintiff must
avoid hazards, such as working around moving machinery and working
at unprotected heights. (Tr. at 53).
At Step Five, the ALJ found that, considering Plaintiff’s age,
education, work experience, and RFC, a significant number of jobs
existed in the national economy that Plaintiff could perform, such
as cashier and parking lot attendant. (Tr. at 55-56). Accordingly,
the ALJ found that the Plaintiff was not disabled within the
meaning of the Social Security Act.

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(Tr. at 57).

A.

The ALJ’s RFC finding is supported by substantial evidence in
the record.
Plaintiff claims that the ALJ’s RFC finding is not supported

by substantial evidence. After considering the medical evidence in
the record and Plaintiff’s testimony, the ALJ found that Plaintiff
retained the RFC for light work as defined by 20 C.F.R. 416.967(b),
including the ability to lift up to twenty pounds. However, the ALJ
found that due to his impairments, “he requires a job that will
allow him to alternate positions between sitting or standing every
30

minutes,”

(Tr.

at

53),

and

has

several

other

limitations

regarding his ability to climb, balance, stoop, kneel, crawl, or
crouch.

The

medical

evidence,

summarized

below,

provides

substantial evidence to support the ALJ’s RFC finding.
Plaintiff injured his back in 1997 while working as a truck
driver for the City of Rochester, and he claims that his condition
has deteriorated over time. Dr. Robert Wills–who is mistakenly
referred to as Dr. Marzulo in the ALJ’s decision-treated Plaintiff
in June of 1998 following his initial back injury.

X-rays of

Plaintiff’s back showed that Plaintiff’s lumbosacral spine was
normal. Dr. Wills found no evidence of radiculopathy or neuropathy.
Therefore, Dr. Wills concluded that Plaintiff’s limitations only
minimally affected his ability to work and that Plaintiff could
return to light work involving no lifting of over thirty pounds, no
bending, and no stooping. (Tr. at 233-34). The ALJ found this
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opinion to be consistent with the record and accordingly, gave it
great weight. (Tr. at 55).
Ten days before his alleged onset date, in December of 2008,
Plaintiff checked into Unity Hospital for an allergic reaction.
Dr. Osborne and Dr. Schenck noted that Plaintiff was in no acute
distress and had normal ranges of motion in his extremities, which
had normal muscle tone and no swelling or tenderness. (Tr. at 224).
Additionally, Plaintiff was alert and fully oriented, had no focal
neurological deficits, and had no motor or sensory deficit in any
extremity.

Plaintiff was given prednisone and famotidine for the

allergic reaction and was discharged. (Tr. at 224).
In November 2009, state disability analyst Dr. I. Blood opined
in a physical RFC assessment that Plaintiff had no manipulative
limitations and could occasionally lift and carry twenty pounds.
Dr. Blood found that even with his chronic back pain, Plaintiff had
an RFC for a full range of light work.

(Tr. at 257-262). Dr. Blood

also performed an evaluation on Plaintiff’s mental status and
limitations and opined that Plaintiff did not have more than slight
abnormalities of mental functions concerning restrictions in daily
activities; difficulties in maintaining social interaction; and
difficulties in maintaining concentration, persistence, and pace.
She further opined that Plaintiff retained the functional capacity
for concentration, persistence, and pace as required in the work
setting. (Tr. at 257-262).

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Dr. Karl Eurenius performed a consultative, internal medicine
examination

of

Plaintiff

on

behalf

of

the

Administration

in

November 2009. Dr. Eurenius found that although Plaintiff had some
limitation of range of motion in his lumbar spine, he had no
limitation in his cervical spine and no abnormality in his thoracic
spine. He also had full range of motion in his shoulders, elbows,
forearms,

wrists,

hips,

knees,

ankles,

and

extremities.

Dr. Eurenius found that Plaintiff’s deep tendon reflexes were
normal and equal in all four extremities, and he had no motor or
sensory deficits. Plaintiff displayed no muscle atrophy, and his
hand and finger dexterity were intact, with full grip strength in
both hands. Dr. Eurenius opined that Plaintiff’s prognosis was
fair.

(Tr. at 239-42).

In April 2010, Dr. Grattan, at the University of Rochester
Medical Center, noted that Plaintiff was able to walk without
difficulty and had full flexion and extension in his back, with
some pain. (Tr. at 273-74).

Dr. Grattan assessed chronic back

pain, but he described the examination results as “relatively
benign.” (Tr. at 241). The x-rays of Plaintiff’s lumbosacral spine
were interpreted as unremarkable by Dr. Jacoby. (Tr. at 301).
In May 2010, an MRI of Plaintiff’s lumbar spine showed no
evidence of central canal or foraminal stenosis, and only mild
stenosis with no signal abnormality within the nerve roots in the
lower lumbar spine (Tr. at 278-79). There were well-maintained

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vertebral body heights and intervertebral disc spaces from T12-L3.
(Tr. at 278). In follow-up later that month, examination revealed
positive straight-leg raising in the right leg, but nearly full
strength and intact sensation. (Tr. at 280). On the left side,
Plaintiff had full muscle strength, and straight-leg raising was
negative.
In June 2010, Plaintiff had full strength in both legs, a
normal range of motion in all four extremities, a steady gait, and
the ability to heel and toe walk. (Tr. at 283).

After examining

Plaintiff and reviewing the results of the May 2010 MRI, Dr. Girgis
found that the most likely the cause of his persistent axial back
pain was multi-level facet arthropathy. Even with such a diagnosis,
however, Dr. Girgis did not recommend surgery.
advised

Plaintiff

to

continue

conservative

Dr. Girgis instead
care,

which

could

include physical therapy, aquatherapy, chiropractic care, and pain
management. (Tr. at 283).
As Defendant argues, at the time of Plaintiff’s initial
injury,

the

objective

evidence,

in

the

form

of

x-rays

and

electrodiagnostic testing, was normal. (Tr. at 230-32). Only ten
days before his alleged onset date, the emergency room doctor
assessed normal ranges of motion in all his extremities, normal
muscle tone, and no tenderness. (Tr. at 224). Although Plaintiff
claims his condition deteriorated over time, his doctors found
minimal physical limitations at various times and only recommended

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conservative treatment. For instance, as late as April 2010,
Dr. Girgis described Plaintiff’s examination findings as benign.
Thus, reviewing the record as a whole, this Court finds that the
ALJ’s exertional RFC was supported by substantial evidence in the
record.

With regard to Plaintiff’s nonexertional limitations,

consultative psychologist Dr. Kavitha Finnity examined Plaintiff in
November 2009.

Dr. Finnity concluded that Plaintiff could follow

and understand simple directions, perform simple and complex tasks,
learn new tasks, and make appropriate decisions.
that

Plaintiff

would

have

difficulty

with

She also opined
attention

and

concentration, relating with others, dealing with stress, and
maintaining a regular schedule. (Tr. at 235-38).
great

weight

to

Dr.

Finnity’s

opinion

The ALJ assigned

regarding

Plaintiff’s

abilities because they were consistent with the record.
the

ALJ

gave

no

weight

to

Dr.

Finnity’s

opinion

However,
regarding

Plaintiff’s limitations because they contradicted Dr. Finnity’s own
analysis inasmuch as Dr. Finnity had concluded that Plaintiff’s
attention and concentration were intact and that Plaintiff had a
good relationship with his family. (Tr. at 54). In addition, after
reviewing
Dr. E.

the

Kamin

record
found

in

that

2009,

Administration

Plaintiff

had no

psychologist

severe impairments

stemming from anxiety disorders. (Tr. at 243). State disability
analyst Dr. Blood found, in 2009, that Plaintiff had the functional
capacity

to

maintain

concentration,

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persistence,

and

pace

as

required in the work setting. (Tr. at 258). Reviewing the record as
a whole, this Court finds that the ALJ’s RFC with regard to
Plaintiff’s

non-exertional

limitations

also

was

supported

by

substantial evidence in the record.

B. The ALJ did not err in evaluating the medical opinions in the
record.
Plaintiff argues that the ALJ’s RFC determination, insofar as
it is contrary to the opinion of treating physician Dr. Carroll
that Plaintiff would be able to lift only up to ten pounds, would
have trouble maintaining a consistent pace for up to twenty percent
of the day, and would be likely to miss work up to four days per
month, is inconsistent with the treating physician rule. Plaintiff
also contends that the ALJ erroneously discounted the opinion of
consultative

examiner

Dr.

Eurenius

that

Plaintiff

would

have

trouble lifting more than ten pounds, which was consistent with
Dr. Carroll’s opinion. The ALJ found that based on the totality of
the evidence in the record, Plaintiff could occasionally lift up to
twenty pounds. (Tr. at 55).
The treating physician rule generally gives deference to the
physician who has provided the primary treatment for the patient.
20 C.F.R. § 404.1527(d)(2); Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003).

Where the opinion of the treating physician is

not consistent with other substantial evidence in the medical

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record, it may be given less than controlling weight. Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
Here, there is evidence in the record that is inconsistent
with Dr. Carroll’s opinion that Plaintiff has a limitation in
lifting more than ten pounds, an ability to maintain attention or
perform at a consistent pace, and impairments causing him to miss
work up to four days in a month. To the contrary, substantial
evidence

supports

the

conclusion

that

Plaintiff

retains

the

residual functional capacity to perform light work. For instance,
in June of 1998, Dr. Wills opined that Plaintiff could return to
light duty work provided it involved no lifting over thirty pounds.
(Tr. at 234). In 2009, Dr. Blood determined that Plaintiff had the
ability

to

“[o]ccasionally

lift

and/or

carry”

twenty

pounds.

(Tr. at 258). In June 2010, Dr. Girgis did not recommend surgical
intervention and instead prescribed only a course of conservative
care. (Tr. at 283). Notably, Dr. Carroll signed off on a treatment
note with Dr. Martin in January 2011 stating that Plaintiff “needs
PT and exercises to make pain manageable so that he can be employed
again.” (Tr. at 289). Although Drs. Carroll and Martin found that
Plaintiff will “always have some pain, . . . with some limits, he
should be able to work.”

(Id.).

With regard to Plaintiff’s non-exertional limitations, in
2009, Dr. Kamin found that Plaintiff’s mental impairments were not
severe, (Tr. at 243), and Dr. Blood opined in 2009 that Plaintiff

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retained the “functional capacity for concentration, persistance
[sic] and pace required in the work setting” (Tr. at 198). Insofar
as there was medical evidence in the record inconsistent with
portions of Dr. Carroll’s opinion, the ALJ was entitled to give
those portions of the opinion less than controlling weight.

In

sum, the Court finds that the ALJ properly decided the weight to be
given to the medical opinions in the record.
C.

The ALJ properly evaluated Plaintiff’s credibility.
Plaintiff argues that the ALJ erred in her evaluation of

Plaintiff’s credibility. The credibility of witnesses, including
the claimant, is primarily determined by the ALJ and not the
courts.

Carroll v. Secretary of Health and Human Services, 705

F.2d 638, 642 (2d Cir. 1982) (citations omitted).

The Social

Security regulations provide that “in determining the credibility
of the individual statements, the adjudicator must consider the
entire record.”

SSR 96-7p.

This Court is compelled to uphold the

ALJ’s decision discounting a claimant’s testimony if the finding is
supported

by

substantial

evidence.

Aponte

v.

Secretary

of

Department of Health and Human Services, 728 F.2d 588, 591 (2d Cir.
1984) (citations omitted).
Here, the ALJ found that Plaintiff’s “statements concerning
the intensity, persistence and limiting effects of [his] symptoms
[were] not credible to the extent that they [were] inconsistent
with the above residual functional capacity assessment.”

Page -13-

(Tr. at

54).

Plaintiff’s RFC was based on all the evidence in the record,

including Plaintiff’s subjective complaints and the opinions of the
examining and consulting physicians, all of which the ALJ actually
considered. (Tr. at 54-55). Where an ALJ rejects a claimant’s
subjective complaints, the ALJ must do so “explicitly and with
sufficient specificity to enable the Court to decide whether there
are legitimate reasons for the ALJ’s disbelief.” Brandon v. Bowen,
666 F. Supp. 604, 608 (S.D.N.Y. 1987); see also SSR 96-7p.
Here, the ALJ found that the objective evidence in the record
did not indicate that Plaintiff’s impairments were as severe as he
alleged. (Tr. at 54). The ALJ pointed out three reasons for
rejecting Plaintiff’s testimony: Plaintiff continued to work from
the time of the injury in 1997 until the alleged disability period,
Plaintiff sought no treatment for his psychiatric symptoms, and the
objective evidence in the record showed only minor injuries to his
back. (Tr. at 54).

Accordingly, I find that the ALJ gave a clear

and convincing rationale for not only the portion of Plaintiff’s
testimony that was rejected, but also for why the testimony was
rejected. Based on the above, the Court finds that the totality of
the evidence

in

the

record

supports

the

ALJ’s

assessment of

Plaintiff’s credibility.
D.

The ALJ posed a complete hypothetical to the vocational
expert.
Plaintiff argues that the ALJ provided the vocational expert

with an incomplete hypothetical that omitted some of Plaintiff’s
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limitations, which yielded job results that were inconsistent with
his actual RFC. The Court finds that the hypothetical question
posed to the vocational expert, accurately reflected Plaintiff’s
vocational profile and RFC.

As discussed above, in determining

Plaintiff’s RFC, the ALJ properly evaluated the entire record and
declined to give controlling weight to the medical opinions that
were inconsistent with the record as a whole.

The ALJ did not err

in declining to include in her hypothetical the limitations as to
which she found inadequate record support. See, e.g., Priel v.
Astrue No. 10-566-cv, 453 Fed. Appx. 84, 87 (2d Cir. 2011) (finding
that the ALJ properly declined to include in his hypothetical
question

symptoms

and

limitations

suggested

by

the

treating

physician that both conflicted with other substantial evidence in
the record and were discounted in the RFC assessment).

Because

Plaintiff’s RFC was supported by substantial evidence in the
record,

the

complete.

hypothetical

Therefore,

I

posed
conclude

to

the

that

vocational
the

ALJ’s

expert

was

decision

at

Step Five was supported by substantial evidence.
CONCLUSION
For the reasons set forth above, I find that the ALJ’s
decision denying Plaintiff’s claim for Supplemental Security Income
is supported by substantial evidence in the record.

Accordingly,

Defendant’s motion is granted and Plaintiff’s motion for judgment

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on the pleadings is denied.

Plaintiff’s complaint is dismissed

with prejudice.
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

November 20, 2012
Rochester, New York

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