Williams v. Astrue
Filing
10
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 Commissioner's Motion for Judgment on the Pleadings; denying 8 Plaintiff's Motion for Judgment on the Pleadings; and dismissing Plaintiff's complaint with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 3/7/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________________
WAYLAND L. WILLIAMS,
Plaintiff,
12-CV-6175T
DECISION
and ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
___________________________________________________
INTRODUCTION
Represented
by
counsel,
Wayland
Williams
(“Williams”
or
“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1383(c)(3)
and 42 U.S.C. § 405(g) seeking review of a final decision of the
Commissioner
of
application
Social
for
Security
Supplemental
Specifically,
Plaintiff
Administrative
Law
Judge
alleges
(“ALJ”)
(“Commissioner”),
denying
Security
Income
that
decision
the
denying
his
his
(“SSI”).
of
application
the
for
benefits was not supported by substantial evidence and was contrary
to applicable legal standards.
The Commissioner has moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure
(“Rule 12(c)”) and 42 U.S.C. 405(g) seeking to affirm the ALJ’s
decision on the grounds that it was supported by substantial
evidence and was legally correct. Plaintiff has cross-moved for
judgment on the pleadings seeking to reverse the Commissioner’s
decision
or,
in
the
alternative,
to
remand
the
matter
for
reconsideration of the evidence.
For the reasons set forth below, this Court finds that the
decision of the Commissioner is supported by substantial evidence
in the record and is in accordance with the applicable legal
standards. Accordingly, this Court hereby grants the Commissioner’s
motion for judgment on the pleadings.
BACKGROUND
Plaintiff
protectively
filed
an
application
for
SSI
on
September 14, 2009, initially claiming a disability since March 1,
2008, due to a herniated disc in his back and pain in his neck and
fingers.
At the time he filed his application, Plaintiff was
thirty-one years old and had performed past work as a cleaner, in
auto body repair, and in auto sales.
Plaintiff’s application was
denied by the Social Security Administration (“the Administration”)
on January 15, 2010.
On February 22, 2010, Plaintiff filed a
written request for a hearing.
Plaintiff appeared for the hearing, with counsel, before ALJ
Brian Kane on May 26, 2011.
Julie A. Andrews, a vocational expert,
testified at the hearing.
At the hearing, Plaintiff amended his
alleged onset date to March 1, 2009.
In a decision dated June 8,
2011, the ALJ determined that Plaintiff was not disabled within the
meaning of the Social Security Act.
The ALJ’s decision became the
final decision of the Commissioner when the Social Security Appeals
Page -2-
Council denied Plaintiff’s request for review on February 10, 2012.
On April 5, 2012, 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,
this
Court
must
Commissioner,
accept
provided
the
that
findings
such
of
fact
findings
substantial evidence in the record.
are
made
by
supported
the
by
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
this
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).
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
Page -3-
Cir. 1988).
If, after a review of the record, this Court is
convinced that Plaintiff has not set forth a plausible claim for
relief, judgment on the pleadings may be appropriate.
Atl. Corp.
II.
See Bell
v. Twombly, 550 U.S. 544 (2007).
The Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record.
In his 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 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
residual
functional capacity 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
September
14,
2009,
his
application
Page -4-
date.
(Transcript
of
Administrative Proceedings (“Tr.”) at 58).
At Step Two, the ALJ
found that Plaintiff had the following severe impairments: cervical
spine pain status post cervical fusion, lumbar spine disorder, leg
pain, and shoulder pain. (Tr. at 58).
At Step Three, the ALJ
concluded that although severe, the Plaintiff’s impairments did not
meet or equal, alone or in combination, the criteria listed in
Appendix 1, Subpart P of Regulation No. 4. (Tr. at 58).
The ALJ
noted specifically that he considered listing 1.04 (disorders of
the spine) and listing 1.02 (disorders of the leg and arm), but he
found that the medical evidence did not support listing-level
severity. (Tr. at 58).
At Step Four, the ALJ found that Plaintiff’s past work in auto
body sales and repair and as a cleaner exceeded the exertional
requirements of his residual functional capacity, and therefore,
Plaintiff could not perform his past relevant work. (Tr. at 63).
The ALJ concluded that Plaintiff, despite his impairments, retained
the residual functional capacity to perform sedentary work, except
that he would not be able to use his right hand for fingering and
handling.
Additionally, the ALJ found that Plaintiff should avoid
reaching above shoulder level using his right hand, and he can only
occasionally reach using his left arm. (Tr. at 58-59).
At Step Five, the ALJ found that, considering Plaintiff’s age,
education, work experience, and residual functional capacity, a
significant number of jobs existed in the national economy that
Page -5-
Plaintiff could perform, such as a surveillance system monitor.
(Tr. at 63-64).
Accordingly, the ALJ found that the Plaintiff was
not disabled within the meaning of the Social Security Act. (Tr. at
64).
Based on a review of the entire record, I find that the ALJ
properly concluded that Plaintiff was not disabled within the
meaning of the Social Security Act.
A.
The ALJ’s residual functional capacity finding is supported by
substantial evidence in the record.
Plaintiff claims that the ALJ’s residual functional capacity
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 residual
functional capacity for sedentary work as defined by 20 C.F.R.
416.967(a). However, the ALJ found that due to his impairments, he
should not use his right hand for “fingering and handling,” and he
“should avoid reaching above shoulder level with his right hand.”
(Tr. at 59).
Additionally, the ALJ found that Plaintiff should
only occasionally reach using his left arm. (Tr. at 59).
I find
that the record provides substantial evidence to support the ALJ’s
residual functional capacity finding.
Just weeks after an anterior cervical discectomy and fusion in
August 2009, Dr. Robert Molinari, Plaintiff’s surgeon, noted that
Plaintiff reported significant relief compared to prior to surgery,
as his arm pain was much improved and his neck pain had subsided.
Page -6-
(Tr. at 325). An examination of Plaintiff showed full and painless
range of motion of the cervical spine, and Plaintiff’s upper
extremities showed intact motor and sensation bilaterally. (Tr. at
325).
Just
one
month
after
the
surgery,
in
September
2009,
Dr. Stephen Lurie, Plaintiff’s treating physician, noted that
Plaintiff had full range of motion in his elbows and wrists, and
had 5/5 strength throughout. (Tr. at 343).
On September 28, 2009, Plaintiff again stated that his pain
and activities of daily living had improved.
(Tr. at 339).
He was
dressing easier, was up and around more with his family, and was
sleeping
better.
(Tr.
at
339).
In
October
2009,
Plaintiff
responded that he was participating in more family activities and
was enjoying working out again. (Tr. at 336).
On
November
electromyographic
13,
2009,
testing
on
Dr.
Emma
Plaintiff.
Ciafaloni
performed
(Tr.
391-93).
at
Dr. Ciafaloni found that Plaintiff was very muscular and strong,
and except for his tricep on the right, Plaintiff retained full
strength in the upper and lower extremities. (Tr. at 392, 398).
Dr. Ciafaloni found that there was no evidence of significant
ongoing denervation, and she opined that it was unlikely that
Plaintiff’s atrophy and weakness would continue to worsen since his
cervical disc had been repaired. (Tr. at 393, 399).
Page -7-
On
December
22,
2009,
Dr.
Karl
Eurenius
consultative examination of Plaintiff.
performed
a
Plaintiff reported to
Dr. Eurenius that he was able to shower and dress himself, but
still had trouble moving his right arm above his head. (Tr. at
451).
Dr. Eurenius noted that Plaintiff had a very powerful and
muscular physique.
(Tr. at 451).
Plaintiff appeared in no acute
distress, had a normal gait and stance, could stand on heels and
toes
without
difficulty,
could
squat
fully,
did
not
use
an
assistive device, and could rise from a chair without difficulty.
(Tr. at 451).
Dr. Eurenius found that Plaintiff had a full range
of motion of the cervical spine, but his right shoulder could not
elevate above 110 degrees.
range of
motion
in
his
(Tr. at 452).
left shoulder,
forearms, and wrists. (Tr. at 452).
Plaintiff had a full
lumbar
spine,
elbows,
Additionally, Dr. Eurenius
found that Plaintiff had 4/5 strength in right shoulder elevation,
right grip, and right elbow flexion, but Plaintiff had 5/5 strength
in the remainder of the upper and lower extremities. (Tr. at 452).
Plaintiff
had normal
reflexes,
and
although
he had
a slight
decrease in sensation to vibration, Plaintiff had no motor deficits
in
his
hands.
(Tr.
at
452).
Dr.
Eurenius
also
found
that
Plaintiff’s hand and finger dexterity was intact. (Tr. at 453).
Dr. Eurenius opined that, due to mild weakness and pain, Plaintiff
was “moderately” limited in reaching, lifting with his right arm,
Page -8-
and handling objects above his head with his right arm. (Tr. at
453).
On January 12, 2010, Plaintiff returned to Dr. Molinari for a
post-surgery follow-up, and Dr. Molinari found that Plaintiff
demonstrated a full range of motion in his neck. (Tr. at 492).
Additionally, Dr. Molinari noted “clinical evidence of improvement”
with respect to Plaintiff’s radicular pain symptoms. (Tr. at 492).
On February 1, 2010, Plaintiff saw pain specialist Dr. Angela
Mahajan at the University of Rochester Pain Management Center.
(Tr. at 481, 607-08).
acute
Examination showed that Plaintiff was in no
distress, but he had diffuse tenderness in his right neck
and shoulder. (Tr. at 608).
Plaintiff had 4/5 strength in his
right arm and 5/5 strength elsewhere. (Tr. at 608).
Dr. Mahajan
recommended physical therapy and a home exercise regimen, along
with continuing with his prescription for Neurontin (Tr. at 481,
608).
On February 17, 2010, Dr. Lurie examined Plaintiff and found
that he appeared well, was in no acute distress, and had full range
of motion in his right shoulder and arm. (Tr. at 625).
On May 10, 2010, Plaintiff returned to the Pain Management
Center. Plaintiff stated that he was going to physical therapy and
had no medication side effects. (Tr. at 596).
He reported being
functional with his daily activities, which included helping his
children with their daily homework. (Tr. at 596).
Page -9-
Dr. Lurie examined Plaintiff again, on May 19, 2010. (Tr. at
616, 668).
Dr. Lurie noted that Plaintiff was sitting comfortably
in his chair, despite endorsing a pain level of 10/10. (Tr. at
668).
Dr. Lurie found that Plaintiff showed a normal gait and a
full range of motion in the upper extremities. (Tr. at 668).
On June 17, 2010, Plaintiff saw nurse practitioner Laura
Carpenter at Highland Family Medicine. (Tr. at 665-66).
She noted
that Plaintiff had minimal pain with cervical range of motion and
had a full range of motion in his shoulders, with pain. (Tr. at
665).
After
therapist
a
number
of
Jeremy Peters
physical
noted,
on
therapy
July
sessions,
12, 2010,
physical
that
while
Plaintiff’s alleged symptoms were unchanged, his function and range
of motion had improved, and he had made “significant” gains in
exercise tolerance and strength. (Tr. at 582-85).
On September 23, 2010, Dr. Annie Philip provided a functional
assessment of Plaintiff’s physical abilities, see (Tr. at 675-76),
and found that Plaintiff had 4/5 strength in his right arm, and
finger flexion strength of 3/5. (Tr. at 847).
On November 11, 2010, Plaintiff again saw Dr. Philip.
She
noted then that Plaintiff had shoulder tenderness, but he retained
right arm strength of 4/5 and left arm strength of 5/5. (Tr. at
924).
Page -10-
Following a period of incarceration, see (Tr. at 932, 957-59),
Plaintiff returned to the Pain Management Center on April 28, 2011.
(Tr. at 925-26). Plaintiff sat comfortably in the chair and was in
no acute distress. (Tr. at 925). His cervical spine and paraspinal
muscles were not tender, and he had normal range of motion and 5/5
strength for his upper extremities. (Tr. at 925).
sensation
was
noted
as
grossly
intact,
except
Plaintiff’s
for
decreased
sensation to light touch in his right thumb and index finger.
(Tr. at 925).
On May 27, 2011, Plaintiff returned to the Pain Management
Center.
Although examination showed that Plaintiff had tenderness
in his cervical spine, right trapezius, right bicep, and right
shoulder, Plaintiff retained 3/5 strength in his right arm and 5/5
strength in his left arm and lower extremities. (Tr. at 985).
I find that this evidence supports the finding that Plaintiff
retained the residual functional capacity to perform sedentary work
with the restrictions as found by the ALJ.
B.
The ALJ did not err in evaluating the medical opinions in the
record.
Plaintiff claims that the ALJ’s residual functional capacity
determination,
insofar as
it
is
contrary
to
the
opinions
of
treating physicians Dr. Lurie and Dr. Philip, is inconsistent with
the treating physician rule.
This Court is not persuaded by this
argument.
Page -11-
An ALJ is generally required to give deference to the medical
findings and reports of the physician who has provided primary
treatment to the patient. Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003); see also 20 C.F.R. § 404.1527(d)(2).
However,
where the opinion of the treating physician is not consistent with
other substantial evidence in the medical record, the opinion may
be given less than controlling weight. Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002).
When determining what weight should be
given to the treating physician’s opinion, the ALJ must evaluate:
“(i) the frequency of examination and the length, nature, and
extent of the treatment relationship; (ii) the evidence in support
of the opinion; (iii) the opinion's consistency with the record as
a whole; (iv) whether the opinion is from a specialist; and
(v) other relevant factors.” Schaal v. Apfel, 134 F.3d 496, 503
(2d Cir. 1998)(citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)).
Here, Dr. Lurie and Dr. Philip both opined that Plaintiff was
disabled and could do significantly less than sedentary work. See
(Tr. at 671-72, 675-76).
This Court notes that the separate
Physical Residual Functional Capacity Questionnaires as submitted
by Dr. Lurie and Dr. Philip were identical copies and
espoused the exact same physical limitations for Plaintiff.
both
See
(Tr. at 671-72, 675-76). This included an obvious error in filling
out
the
questionnaire.
restrictions
in
working
For
around
Plaintiff’s
machinery
Page -12-
or
limitations
any
and
occupational
environmental
categories:
machinery,
hazards,
a)
c)
the
questionnaire
unprotected
exposure
to
heights,
marked
b)
changes
has
blanks
being
in
for
around
five
moving
temperature
and
humidity, d) driving automotive equipment, and e) exposure to dust,
fumes, and gases. (Tr. at 671, 675).
Both questionnaires as
submitted by Dr. Lurie and Dr. Philip mark “total” restrictions for
only four of the categories. (Tr. at 671, 675).
It is not clear,
however, which of the five categories the doctors meant for this
“total” restriction to apply.
which
of
the
categories
the
This Court cannot speculate for
check
restrictions are supposed to correspond.
marks
showing
“total”
However, I note that
Dr. Lurie and Dr. Philip both have asserted the same major and
“total”
restrictions
corresponding
to
Plaintiff’s
work
with
machinery and occupational environmental hazards.
In both questionnaires, Dr. Lurie and Dr. Philip opine that
Plaintiff could never lift or carry up to 5 pounds; that Plaintiff
could sit for only up to one half of an hour a day; that Plaintiff
could stand or walk for only up to one half of an hour a day; that
Plaintiff was not able to grasp, push, pull, or manipulate with
either his left or his right hand; that Plaintiff could not use
either of his feet in pushing or pulling leg controls; that
Plaintiff could never bend, squat, crawl, climb, or reach; that
Plaintiff had total restrictions in working around any machinery or
any occupational environmental hazards; that pain and medications
Page -13-
will frequently significantly impair and/or preclude performance of
even simple work tasks; that Plaintiff would need to relieve pain
by lying down for more than six hours in a normal 8-hour workday;
that it would be impossible for Plaintiff to function in a work
setting; that Plaintiff would have to miss work four or more days
per month due to pain; and that Plaintiff was disabled from fulltime competitive employment. (Tr. at 671-72, 675-76).
It is unclear that Dr. Philip was a “treating source” at the
time that her functional questionnaire was submitted.
The only
evidence in the record from Dr. Philip prior to the September 23,
2010
functional
assessment
questionnaire
was
a
prescription for physical therapy. (Tr. at 891).
February
2010
Additionally,
Dr. Philip only saw Plaintiff one other time after September 23.
See (Tr. at 923-24).
Furthermore, Dr. Philip noted in her treatment notes that on
September 23, 2010, Plaintiff visited the Pain Management Center
for a functional capacity evaluation.
Dr. Philip noted, however,
that Plaintiff had brought in paperwork for a functional capacity
assessment that he had copied from a form that had been signed by
Dr. Lurie. (Tr. at 847).
Dr. Philip also noted, “[Plaintiff]
reported that his lawyer wanted this to be filled out by every
physician he was seeing.” (Tr. at 847).
Dr. Philip then suggested
that it would be beneficial in his case for Plaintiff “to go for a
formal functional capacity evaluation” and that she would follow-up
Page -14-
with Plaintiff in 4-6 weeks. (Tr. at 847).
Plaintiff nonetheless
submits
Functional
the
copied
Physical
Residual
Capacity
Questionnaire from Dr. Philip as dated September 23, 2010. See
(Tr. at 675-76).
Although it is clear that Dr. Lurie’s treatment of Plaintiff
establishes a sufficient time period to obtain a longitudinal
picture of Plaintiff’s impairments, see C.F.R. § 416.927(d)(2),
there is substantial evidence in the record that is inconsistent
with the limitations as set forth by both Dr. Lurie and Dr. Philip.
The diagnostic evidence post-surgery, including x-rays of the
cervical spine, x-rays of the lumbosacral spine, an MRI of the
thoracic spine, and electromyographic testing showed mostly normal
findings, see (Tr. at 381-82, 383-84, 454, 490, 574, 599, 927-28,
981), with only slightly abnormal findings of “mild” chronic C7
radiculopathy with no evidence of significant ongoing denervation
in November 2009 and “mild” degenerative changes of cervical
spondylosis in February 2011. See (Tr. at 392-93, 399, 938).
Additionally, medical examination evidence from Dr. Lurie’s
colleagues
at
Highland
Family
Medicine,
from
Dr.
Philip’s
colleagues at the Pain Management Center, and from Plaintiff’s
orthopedic surgeon Dr. Molinari is inconsistent with Plaintiff’s
extremely restrictive limitations as opined by Dr. Lurie and
Dr. Philip. Plaintiff was continually noted as alert and oriented,
(Tr. at 319, 348, 366, 586, 588, 634, 665, 925, 985), and in no
Page -15-
acute distress. (Tr. at 366, 392, 596, 608, 634, 665, 925, 978,
981, 985).
Plaintiff was noted as having a normal gait, (Tr. at
327, 332, 334, 336, 339, 341, 348, 392, 792, 575, 588, 596, 608,
634, 665, 925, 981), and a very muscular physique. (Tr. at 392,
588). Plaintiff had generally no cervical spine tenderness or only
slight tenderness, (Tr. at 316, 363, 369, 372, 588, 623, 691, 925),
and generally had a full range of motion for his cervical spine.
(Tr. at 325, 327, 332, 334, 336, 339, 492, 588, 623, 634, 665, 901,
981).
Although he had pain, Plaintiff generally retained a full
range of motion in his right shoulder. (Tr. at 332, 334, 336, 339,
341, 372, 634, 665, 925).
He also exhibited full strength in his
right upper extremity on numerous evaluations, (Tr. at 316, 325,
341, 370, 392, 634, 665, 925, 981), with other examinations noting
that he had 3/5 or 4/5 strength. (Tr. at 327, 332, 334, 336, 364,
492, 575, 590, 605, 608, 901, 985).
Plaintiff had full strength in
his left arm and lower extremities. (Tr. at 327, 332, 334, 336,
341, 364, 370, 392, 492, 588, 590, 608, 925, 985).
Finally,
Plaintiff generally exhibited normal sensation, (Tr. at 316, 325,
341, 392, 492, 605, 608, 634, 665, 981), with only some findings of
somewhat diminished sensation. (Tr. at 364, 366, 370, 372, 925).
As outlined above, Dr. Karl Eurenius also provided a medical
opinion of Plaintiff’s physical limitations that was much more
consistent with the totality of the medical evidence in the record,
as opposed to the physical limitations espoused by Dr. Lurie and
Page -16-
Dr. Philip. See (Tr. at 450-53).
mild
weakness
and
pain,
Dr. Eurenius opined that due to
Plaintiff
was
moderately
limited
in
reaching and lifting with his right arm and handling objects above
his head with his right arm. (Tr. at 453).
The ALJ afforded some
weight to this opinion. (Tr. at 63).
Moreover, the extremely restrictive limitations as set forth
by Dr. Lurie and Dr. Philip are completely unsupported in their own
treatment notes.
For example, Dr. Lurie regularly noted that
Plaintiff was in no acute distress, (Tr. at 343, 614, 625, 648,
667),
and
appeared
well.
(Tr.
at
625,
648).
Additionally,
Dr. Lurie noted that Plaintiff was muscular, had 5/5 strength
thoughout, and had full range of motion in his right shoulder and
arm. (Tr. at 343, 625, 668).
In May 2010, Dr. Lurie found that
Plaintiff had a normal gait and noted that Plaintiff claimed a pain
level of 10/10, but was sitting comfortably in his chair. (Tr. at
668).
In September 2010, the same day that Dr. Lurie signed the
functional assessment with such restrictive limitations, Dr. Lurie
noted that Plaintiff could change from sitting to standing with
minimal hesitation and had a gait that was “somewhat antalgic,
although less so as he walks down the hall away from the examining
room.” (Tr. at 614).
Additionally, prior to the September 2010
functional assessment, although noting it on the questionnaire,
Dr. Lurie made no mention of diffuse, chronic, whole-body pain.
(Tr. at 672).
Rather, Dr. Lurie had only noted pain related to
Page -17-
Plaintiff’s neck, back, and right upper extremity. See (Tr. at 338,
343-44, 616, 621-22, 625, 630, 648, 659, 667-68).
Dr. Philip’s treatment notes, although limited, also do not
provide any support for the extremely restrictive limitations she
opined.
On September 23, 2010, the day she signed the functional
capacity questionnaire, Dr. Philip noted that Plaintiff was alert
and oriented, had 4/5 right arm strength, 3/5 finger flexion
strength, and diminished sensation to light touch only in the right
C6 distribution. (Tr. at 847).
examination
of
Plaintiff
showed
In November 2010, Dr. Philip’s
normal
gait,
normal
posture,
limited range of motion in the cervical spine and right shoulder,
shoulder tenderness, 4/5 right arm strength, and 5/5 left arm
strength. (Tr. at 924).
As to Dr. Lurie’s and Dr. Philip’s opinion that Plaintiff was
“disabled from full-time competitive employment,” (Tr. at 672,
676), I find that the ALJ was correct in noting that the ultimate
issue of Plaintiff’s legal disability is an issue reserved for the
Commissioner. (Tr. at 62); see Snell v. Apfel, 177 F.3d 128 (2d
Cir. 1999)(finding that whether a claimant is disabled is reserved
to the Commissioner); Social Security Ruling 96-5p(stating that the
responsibility for deciding whether an individual is disabled under
the Social Security Act is reserved to the Commissioner).
The totality of the medical evidence in the record does not
support Dr. Lurie’s and Dr. Philip’s opinions concerning the extent
Page -18-
of Plaintiff’s disability. Therefore, the ALJ correctly gave those
opinions less than controlling weight.
C.
The ALJ properly evaluated Plaintiff’s credibility.
Plaintiff asserts that the ALJ erred in his 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.
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]
capacity
inconsistent
assessment.”
with
(Tr.
at
the
above
62).
residual
Contrary
to
functional
Plaintiff’s
allegations, I find that the ALJ’s conclusion that Plaintiff’s
symptoms
were
not
credible
to
the
extent
that
they
were
inconsistent with the residual functional capacity finding was
correct.
Here, Plaintiff’s residual functional capacity was based on
all the evidence in the record, which included not only the
opinions of the examining and consulting physicians, but also
Plaintiff’s subjective complaints, treatment history, activities of
daily
living,
and
other
factors
as
Page -19-
enumerated
at
20
C.F.R.
§ 416.929(c)(3). (Tr. at 59-62).
I find that the totality of the
evidence in the medical records, as summarized above, does not
support the symptoms as alleged by Plaintiff.
Additionally,
some
of
the
doctors
question Plaintiff’s alleged symptoms.
of
record
explicitly
In May 2010, Dr. Lurie
noted that “despite endorsing a pain level of 10, patient is
sitting comfortably in chair.” (Tr. at 668).
In July 2010, the
University of Rochester Pain Management Center encouraged Plaintiff
to be as active and productive as possible, continue with physical
therapy, and orient his goals to a more productive life, but
Plaintiff spent most of the visit “blaming and being upset about
the fact that he has not received oxycodone.” (Tr. at 586, 588).
After
this
encounter,
the
Pain
Management
Center
attending
physician assessed that Plaintiff was “malingering.” (Tr. at 588).
In his decision, the ALJ notes several inconsistencies between
Plaintiff’s hearing testimony and what is found in the medical
record.
(Tr.
at
62).
For
example,
Plaintiff
alleges
total
disability and trouble lifting even small objects, but numerous
examinations found that Plaintiff had a very muscular and strong
physique. (Tr. at 62, 343, 392, 451, 588).
Plaintiff testified
that he has trouble walking because of his pain, but nearly every
examination of Plaintiff showed that he had a normal gait. (Tr. at
96-97, 327, 332, 334, 336, 339, 341, 348, 392, 451, 492, 575, 588,
596, 608, 634, 665, 924-25, 981).
On one of the two occasions that
Page -20-
Plaintiff’s gait was noted as even slightly abnormal, Dr. Lurie
noted in September of 2010 that Plaintiff’s “gait [was] somewhat
antalgic, although less so as he walks down the hall away from the
examining
room.”
corrected
his
(Tr.
at
testimony,
614).
the
Although
ALJ
notes
Plaintiff
that
eventually
Plaintiff
first
testified that he had never applied for public assistance even
though he was receiving Medicaid and that he had contacted and
applied
to
the
New
York
State
Department
of
Vocational
and
Educational Services to Individuals with Disabilities even though
no application was on file. (Tr. at 62, 103-106).
The ALJ also
notes that Plaintiff testified that his surgeon instructed him to
stay on bed rest for one year after his cervical surgery and that
he complied with those instructions, yet there are no medical
records confirming the instruction from his surgeon. (Tr. at 62,
82).
Additionally, there are no instances in the record that
support Plaintiff’s testimony that he did, in fact, stay on bed
rest following his surgery. See(Tr. at 82-83).
This Court also notes that Plaintiff testified that his
surgeon instructed him to wear a neck brace for a year, but after
Plaintiff’s surgery on August 5, 2009, the only mention in the
record of Plaintiff wearing a cervical collar was on August 21,
2009, just days after his surgery. (Tr. at 82, 346).
Furthermore,
Plaintiff testified at his hearing that he had not exercised since
his onset date in March 2009, but throughout October 2009 (merely
Page -21-
two months after decompressive surgery on his neck), Plaintiff told
his doctors on separate occasions that he had been exercising both
arms with weights, resistance pulling, and push ups, and that he
was enjoying working out again. (Tr. at 97, 334, 336).
As for Plaintiff’s treatment post-surgery, the ALJ noted that
Plaintiff was prescribed narcotics for his pain, but his physicians
seriously questioned his use of the drugs. (Tr. at 60-61, 92-95,
343-44, 586, 621-22, 648, 659).
Plaintiff also underwent physical
therapy to help with his pain, but he was twice discharged because
of
his
failure
to
attend
appointments.
(Tr.
at
604,
920).
Plaintiff’s treatment included physical therapy and home exercise
to
improve
his
strength,
stability. See (Tr. at 46).
endurance,
pain
control,
and
core
His most recent “rehab” prognosis was
“fair.” (Tr. at 46).
This
Court
is
compelled
to
uphold
the
ALJ’s
decision
discounting a claimant’s testimony if the finding is supported by
substantial
evidence,
as
it
is
here.
Aponte
v.
Secretary
of
Department of Health and Human Services, 728 F.2d 588, 591 (2d Cir.
1984) (citations omitted). Accordingly, based on the above, I find
that the totality of the evidence in the record supports the ALJ’s
assessment of Plaintiff’s credibility.
D.
The vocational expert testimony provides substantial evidence
to support the ALJ’s finding that Plaintiff was not disabled.
Plaintiff claims that the testimony of the vocational expert
cannot provide substantial evidence to support the denial of
Page -22-
benefits because the hypothetical questions posed to the expert
were based
upon
a
residual functional
capacity
that
did
not
accurately and completely describe Plaintiff’s limitations.
This Court finds that the hypothetical question posed to the
vocational
expert
accurately
reflected
profile and residual functional capacity.
determining
properly
Plaintiff’s
evaluated
the
residual
entire
Plaintiff’s
As discussed above, in
functional
record
vocational
and
capacity,
the
declined
to
ALJ
give
controlling weight to the treating physicians’ medical opinions to
the extent that they were inconsistent with the record as a whole.
Specifically, the ALJ properly found that the limitations opined by
Dr. Lurie and Dr. Philip that Plaintiff could never lift or carry
up to 5 pounds; that Plaintiff could sit for only up to one half of
an hour a day; that Plaintiff could stand or walk for only up to
one half of an hour a day; that Plaintiff was not able to grasp,
push, pull, or manipulate with either his left or his right hand;
that Plaintiff could never use either of his feet in pushing or
pulling leg controls; that Plaintiff could never bend, squat,
crawl, climb, or reach; that Plaintiff had total restrictions in
working around any machinery or any occupational environmental
hazards; that pain and medications will frequently significantly
impair and/or preclude performance of even simple work tasks; that
Plaintiff would need to relieve pain by lying down for more than
six hours in a normal 8-hour workday; that it would be impossible
Page -23-
for Plaintiff to function in a work setting; that Plaintiff would
have to miss four or more days per month due to pain; and that
Plaintiff was disabled from full-time competitive employment were
not supported in the record.
Accordingly, the ALJ did not err in declining to include in
his hypothetical these limitations or any other limitations for
which he 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 residual functional capacity
assessment).
Plaintiff also asserts that the ALJ erred in identifying only
one
occupation
that
could
accommodate
Plaintiff’s
functional capacity and vocational background.
residual
This Court is not
persuaded by this argument.
Plaintiff cites to Kuleszo v. Barnhart, 232 F.Supp.2d 44, 55
(W.D.N.Y.
2002)(Siragusa,
J.),
to
provide
support
for
this
argument.
In Kuleszo, the Court found that “the existence of only
one unskilled sedentary job, i.e. surveillance system monitor,
indicates that the full range of sedentary work is significantly
eroded.” The Court stated that under Social Security Ruling 96-9p,
a finding of disabled can apply when the full range of sedentary
Page -24-
work is significantly eroded. Id.
By eliminating those sedentary
jobs that actually exceeded that claimant’s residual functional
capacity,
the Court
significantly
found
eroded
that
that
the
“there
occupational
were
no
jobs
base
was
so
existing
in
significant numbers in the national economy which the claimant
could do.” Id. at 56.
However, unlike Plaintiff here, the claimant in Kuleszo was
suffering from diabetic neuropathy in both hands, had definite
wasting of the intrinsic muscles of both hands, and had early
flexion contractures of all the digits in her right hand. Id. at
The claimant in Kuleszo had no aptitude
48-49 (emphasis added).
for fingering, and could do no fine manipulations. Id. at 55
(emphasis added).
Accordingly, the Court’s finding that the
occupational base was so significantly eroded was based upon a
distinction
identified
that
by
with
the
those
specific
vocational
expert
claimant’s residual functional capacity.
Here,
Plaintiff
has
a
residual
limitations,
actually
the
exceeded
jobs
the
Id. at 55-56.
functional
capacity
for
sedentary work, except that he cannot use his non-dominant hand for
fingering and cannot reach above shoulder level using his nondominant hand.
I find that these limitations do not erode the full
range of sedentary work.
substantial
evidence
that
I find that the record here contians
Plaintiff
retains
the
aptitude
for
fingering and manual dexterity as required by a systems monitor
job. See Dictionary of Occupational Titles § 379.367-010, 1991 WL
Page -25-
673244 (surveillance system monitor); Fox v. Comm'r of Soc. Sec.,
6:02-CV-1160, 2009 WL 367628 (N.D.N.Y. Feb. 13, 2009).
Therefore,
the occupational base is not significantly eroded to the point
where there are no jobs that Plaintiff could do that exist in
significant numbers in the national economy.
To be found disabled, a claimant must be unable to engage in
any kind of gainful employment available nationally or regionally.
42
U.S.C.
§§
423(d)(1)(A);
423(d)(2)(A);
1382c(a)(3)(A);
1382c(a)(3)(B).
Additionally, Social Security Ruling 96-6p provides that the
mere inability to perform substantially all sedentary occupations
does not equate with a finding of disability.
“There may be a
number of occupations...that exist in significant numbers, that an
individual may still be able to perform even with a sedentary
occupational base that has been eroded.” SSR 96-6p, 1996 WL 374185,
at *3-4.
Here, after hearing testimony from the vocational expert, the
ALJ determined that Plaintiff retained the residual functional
capacity to be able to perform the duties associated with a job as
a surveillance system monitor (Tr. at 63).
I find that although
the full range of sedentary work was somewhat eroded by Plaintiff’s
limitations,
the
surveillance
system
Commissioner’s
listing
burden
of
monitor
to
show
only
one
was
sufficient
that
vocation,
other
that
to
work
of
a
carry
the
existed
that
Plaintiff could perform, given his residual functional capacity,
Page -26-
age, education, and work experience. See Fox v. Comm'r of Soc.
Sec., 2009 WL 367628; Magee v. Astrue, 5:05-CV-413, 2008 WL 4186336
(N.D.N.Y. Sept. 9, 2008); Colon v. Comm'r of Soc. Sec., 6:00-CV0556, 2004 WL 1144059 (N.D.N.Y. Mar. 22, 2004).
Because the ALJ’s residual functional capacity finding was
supported by substantial evidence in the record, the hypothetical
posed to the vocational expert was complete. Additionally, because
the vocational expert’s testimony has shown that there exists work
in significant numbers in the national economy that Plaintiff could
perform, I find that the Commissioner has carried his burden at
Step Five.
Plaintiff
Accordingly, I conclude that the ALJ’s finding that
was
not
disabled
at
Step
Five
was
supported
by
substantial evidence in the record.
CONCLUSION
For the reasons set forth above, I conclude that the ALJ’s
decision was supported by substantial evidence in the record and,
therefore, grant the Commissioner’s motion for judgment on the
pleadings.
This Court denies Plaintiff’s motion for judgment on
the pleadings and dismisses Plaintiff’s Complaint with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
March 7, 2013
Rochester, New York
Page -27-
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?