Murphy v. Astrue
Filing
10
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 Motion for Judgment on the Pleadings; denying 8 Motion for Judgment on the Pleadings; and dismissing the Complaint with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/9/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
CONNIE LYNN MURPHY,
DECISION AND ORDER
No. 12-CV-6271T
Plaintiff,
-vsMICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY
Defendant.
________________________________
INTRODUCTION
Represented by counsel, Connie Lynn Murphy (“Plaintiff” or
“Murphy”), brings this action pursuant to Titles II and XVI of the
Social Security Act (“the Act”), seeking review of the final
decision
of
the
Commissioner
of
Social
Security
(“the
Commissioner”) denying her application for disability insurance
benefits
(“DIB”)
and
supplemental
security
income
(“SSI”).
Presently before the Court are the parties’ competing motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
For the reasons set forth below, 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
Commissioner’s motion for judgment on the pleadings.
grants
the
BACKGROUND
On September 25, 2009 and September 16, 2009, respectively,
Plaintiff filed applications for SSI and DIB, claiming disability
for the period November 6, 2006 through December 8, 2009, alleging
disability as a result of degenerative disc disease in the lumbar
spine and status post L4-L5 decompression and fusion.
claim was denied on February 16, 2010.
Tr. 70-76.
Murphy’s
At Murphy’s
request, an administrative hearing was conducted on May 26, 2011,
with Administrative Law Judge (“ALJ”) Jennifer Whang, presiding via
video teleconference.
Tr. 8-42.
Murphy, who was represented by
attorney Kelly Laga, testified at the hearing, as did impartial
vocational expert Bassey A. Duke (“Duke” or “VE”).
On June 29, 2011, the ALJ issued a decision finding that
Murphy was not disabled prior to December 8, 2009, but became
disabled on that date and has continued to be disabled through the
date of the ALJ’s decision. Tr. 51-68. Plaintiff requested review
of the ALJ’s decision, and, on March 23, 2012, the Appeals Council
denied Murphy’s request for review, making the ALJ’s decision the
final
decision
of
the
Commissioner.
Tr.
1-4.
This
action
followed.
I.
Discussion
1.
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.
-2-
When
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
mind
might
accept
as
adequate
to
support
a
conclusion.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
The
Court’s
the
scope
of
review
is
limited
to
whether
or
not
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 Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (finding that a
reviewing Court does not try a benefits case de novo).
The Court
must “scrutinize the record in its entirety to determine the
reasonableness of the decision reached.”
Lynn v. Schweiker, 565
F.Supp. 265, 267 (S.D. Tex. 1983) (citation omitted).
In this case, the parties dispute whether the ALJ’s decision
is supported by substantial evidence and is in accordance with the
applicable legal principles, and have moved for judgment on the
pleadings pursuant to Rule 12(c). See Dkt. Nos. 7, 8.
the
pleadings
may
be
granted
where
the
material
Judgment on
facts
are
undisputed and where judgment on the merits is possible merely by
considering the contents of the pleadings.
Crafters, Inc., 842 F.2d 639 (2d Cir. 1988).
Sellers v. M.C. Floor
If, after reviewing
the record, the Court is convinced that plaintiff has not set forth
-3-
a plausible claim for relief, judgment on the pleadings may be
appropriate.
See generally Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007).
II.
The Commissioner’s Decision to Deny the Plaintiff Benefits was
Supported by Substantial Evidence in the Record
In her decision, the ALJ followed the required five-step
analysis for evaluating disability claims.1
Tr. 55-64.
Under step
1 of the process, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged date of disability.
Id. at 57.
At steps 2 and 3, the ALJ concluded that, since the
alleged onset date of disability (November 6, 2006), Plaintiff has
had the severe impairments of degenerative disc disease in the
lumbar spine, status post L4-5 decompression and fusion, but that
Plaintiff does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments.
The
ALJ also determined that Plaintiff suffered from hypertension and
anxiety
disorder,
impairments
but
insofar
as
that
these
they
did
did
not
not
constitute
severe
significantly
affect
1
The five-step analysis requires the ALJ to consider the following:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) if not, whether the claimant has a severe impairment which significantly
limits his or her physical or mental ability to do basic work activities; (3) 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; (4) if not, the ALJ considers whether the
impairment prevents the claimant from doing past relevant work; (5) if the
claimant’s impairments prevent his or 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).
-4-
Plaintiff’s ability to work.
Id. at 57-58.
At steps 4 and 5, the
ALJ concluded that Plaintiff had the residual functional capacity
(“RFC”) to perform sedentary work with certain limitations. Id. at
59.
Moreover,
the
ALJ
found
that,
since
November
6,
2006,
Plaintiff was unable to perform any past relevant work, but that
considering Plaintiff’s age, education, work experience, and RFC,
there were jobs that existed in the national economy that Plaintiff
could have performed.
Id. at 61-62.
In the instant proceeding, Plaintiff argues that the ALJ’s
decision denying SSI and DIB to her was against the weight of
substantial evidence, was arbitrary and capricious, and was an
error of law.
Specifically, Plaintiff maintains that: (1) the ALJ
erred when she failed to find Murphy’s anxiety to be a severe
impairment;
(2) the ALJ’s RFC finding is the product of legal
error and is not supported by substantial evidence; (3) the ALJ did
not apply the appropriate legal standards in assessing Murphy’s
credibility;
and
(4)
the
ALJ’s
step
5
determination
is
not
supported by substantial evidence. See Pltf’s Supporting Mem. Of
Law at p 1 (Dkt. No. 8-1).
evidence supports
the
should be affirmed.
Defendant contends that substantial
Commissioner’s decision
and,
therefore,
See Def’s Supporting Br. at p 1 (Dkt.
No. 7-1).
Based on the entire record, the Court finds that the ALJ
properly concluded that Plaintiff was not disabled within the
-5-
meaning of the Act for the relevant time period (November 6, 2006
through
December
8,
2009),
and
therefore
affirms
the
ALJ’s
decision.
(A)
The ALJ Did not Err when she Failed to Find Plaintiff’s
Anxiety to be a Severe Impairment
Plaintiff maintains that her anxiety is a severe impairment,
which the ALJ erroneously failed to classify as such. Plaintiff
maintains
that
the
ALJ’s
“failure
to
do
so
was
error
which
prejudiced the remaining steps of the sequential evaluation.”
See
Pltf’s Supporting Mem. at p 10.
A condition is a “severe impairment” when it “significantly
limit[s]
[the]
activities.”
physical
or
mental
ability
to
do
basic
work
See 20 C.F.R. § 404.1521 (giving examples of basic
work activities).
Put another way, “an impairment that is ‘not
severe’ must be a slight abnormality (or a combination of slight
abnormalities) that has no more than a minimal effect on the
ability to do basic work activities.”
SSR 96-3p, 1996 SSR LEXIS
10, 1996 WL 374181 (S.S.A.).
Here, the Court finds that the ALJ’s severity determination is
supported by substantial evidence and did not involve legal error.
The ALJ found Plaintiff’s anxiety was not severe because it did not
“significantly affect [Plaintiff’s] ability to work.”
This
determination,
as
the
ALJ
explained,
was
Tr. 58.
supported
by
Plaintiff’s testimony at the administrative hearing, as well as the
Plaintiff’s lack of significant mental health treatment.
-6-
Plaintiff testified at the hearing that she suffers from
anxiety attacks, especially when under stress.
Additionally, she
testified that she takes up to two Xanax pills a day, which,
according to Plaintiff, help to calm her down.
Tr. 26, 29.
Plaintiff stated that she began taking the Xanax medication during
her first marriage because she was “having problems.”
Id. at 28.
When
her
asked
by
the
ALJ
who
currently
prescribes
Xanax
medication, Plaintiff replied that it was “just [her] doctor.” Id.
at 29.
When asked by her attorney whether she considered seeking
any additional therapy for her anxiety, Plaintiff responded that
she did not because her anxiety is “under control.”
Tr. 30.
Plaintiff elaborated, explaining that “I know mostly what triggers
it, and stuff like that.”
Id.
Further, Adele Jones, Ph.D., a psychological consultative
examiner, evaluated Plaintiff on November 24, 2009.
Tr. 299-303.
Plaintiff reported to Dr. Jones that she received outpatient
psychiatric
treatment
between
ages
33
to
38,
and
that
she
occasionally struggled with anxiety and depression. Id. at 300. On
evaluation, Dr. Jones reported that Plaintiff’s speech was clear,
and that she had coherent and goal-directed thoughts with no
evidence of hallucinations, delusions, or paranoia. Id. Dr. Jones
also noted that Plaintiff’s mood was neutral, her sensorium was
clear and she was fully oriented.
Id. at 301.
According to
Dr. Jones, Plaintiff was able to follow and understand simple
-7-
directions,
perform
simple
and
complex
tasks
independently,
maintain attention and concentration, maintain a regular schedule,
learn new tasks, and make appropriate decisions.
Tr. 58, 301.
As
Plaintiff points out in her supporting memorandum, Dr. Jones did
indeed note that Plaintiff had “difficulties relating adequately
with others and appropriately dealing with stress, and half the
time she appears to avoid doing so and the other half forces
herself to . . . .”
Id. at 58, 301-302.
Dr. Jones also
recommended that Plaintiff continue with psychotropic medications
as currently provided and recommended psychological therapy.
Id.
at 302. However, at the end of her evaluation, Dr. Jones concluded
that, although “[t]he results of the examination appear to be
consistent with psychiatric problems,” Plaintiff’s psychiatric
problems,
“with
effort,”
did
not
“appear
to
be
currently
significant enough to interfere with [Plaintiff’s] ability to
function on a daily basis.”
Id.
Additionally, on February 11,
2010, T. Andrews, the State Agency’s psychological consultant
assessed
that
impairment.
Plaintiff’s
anxiety
disorder
was
not
a
severe
Id. at 58, 311.
Accordingly,
the
Court
finds
that
the
ALJ’s
severity
determination is supported by substantial evidence and did not
involve legal error.
Plaintiff’s argument is therefore rejected.
-8-
(B)
The ALJ’s RFC Finding is Not the Product of Legal Error
and is Supported by Substantial Evidence
Plaintiff claims that the ALJ’s RFC finding is the product of
legal
error
and
is
not
supported
by
substantial
evidence.
Specifically, Plaintiff maintains that “[i]n addition to the lack
of mental limitations, particularly relating to the ability to cope
with work stress, the RFC is unsupported by substantial evidence
regarding
physical
and
postural
Supporting Mem. at 13-19.
in
the
record
and
limitations.”
See
Pltf’s
After considering the medical evidence
Plaintiff’s testimony,
the
ALJ
found
that
Plaintiff retained the RFC for sedentary work as defined in 20
C.F.R. 404.1567(a) and 416.967(a), except “she requires a sit/stand
option, allowing her to alternate between a sitting and standing
position every thirty minutes; can occasionally use ramps and climb
stairs, but can never climb ladders, ropes or scaffolds; can only
occasionally stoop, kneel, crouch and crawl; and should also avoid
hazards, including
moving
machinery
and
unprotected
heights.”
Tr. 59.
As
an
initial
matter,
the
ALJ
properly
determined
that
Plaintiff’s anxiety did not constitute a severe impairment (see
discussion supra), and the ALJ therefore properly accounted for
only Plaintiff’s physical limitations in her RFC finding.
The Court also rejects Plaintiff’s contention that “[t]he
record contains no medical opinion of the specific functional
limitations
that
result
from
Murphy’s
-9-
impairments,
and
there
doesn’t appear to have been any attempt on the part of the ALJ to
obtain one.”
See Pltf’s Supporting Mem. of Law at p 14-17.
Contrary to Plaintiff’s argument, the ALJ’s RFC was supported by
the
November
24,
2009
evaluation
by
consultative
physician
Dr. Harbinder Toor, who expressly addressed Plaintiff’s impairments
and her functional limitations.
Upon
examination
of
Tr. 61.
Plaintiff,
Dr.
Toor
observed
that
Plaintiff’s gait was normal, she had difficulty walking on her
heels and toes, and did not require the use of an assistive device.
Id.
at
306.
Plaintiff
did
not
need
help
changing
for
the
examination or getting on and off the examination table and was
able to rise from a chair without difficulty.
Dr. Toor noted that
Plaintiff had varicose veins, more severe in the left leg than the
right leg.
Id.
Dr. Toor reported that Plaintiff’s cervical spine
had full range of motion and her lumbar spine had some limited
range of motion.
Id. at 307.
Plaintiff’s straight leg raise test
was positive bilaterally at 30 degrees with pain in the back.
Id.
Dr. Toor reported that Plaintiff had full range of motion in her
shoulders,
elbows,
bilaterally.
Id.
forearms,
wrists,
hips,
knees,
and
ankles
Dr. Toor also noted that Plaintiff had full
strength in her upper and lower extremities.
Id.
Plaintiff’s
joints were intact and she had full grip strength bilaterally. Id.
Dr. Toor noted that an X-ray of Plaintiff’s lumbar spine was
normal.
Id.
With respect to Plaintiff’s functional limitations,
-10-
Dr. Toor opined that Plaintiff had moderate physical limitations
with regard to standing, walking, bending, and heavy lifting, and
had mild difficulty with regard to sitting for a long time.
Tr.
60, 308. The ALJ took Dr. Toor’s assessments into consideration in
her RFC, which she found “to be largely consistent with the record
as a whole,”.
Tr. 61.
The ALJ specifically stated that the RFC
“in significant measure reflects the standing, walking, and bending
and lifting limitations Dr. Toor assessed.”
Id.
To the extent Plaintiff’s claim that the ALJ failed to develop
the record, as required by 20 C.F.R. §§ 404.1512(d), (e), insofar
as she failed to obtain functional limitations from a treating
source, that claim is also meritless.
See Pltf’s Supporting Mem.
of Law at p 15-17.
Indeed, an ALJ is required to contact a
claimant’s
for
physician
additional
information
regarding
a
plaintiff’s impairments when the evidence from a treating physician
is inadequate for the ALJ to determine whether the claimant is
disabled.
20 C.F.R. §416.912(e)(1).
Where as here, however,
“there are no obvious gaps in the administrative record, and where
the ALJ already possesses a complete medical history, the ALJ is
under no obligation to seek additional information in advance of
rejecting a benefits claim.” Crawley-Nunez v. Astrue, 08-CV-0295-A,
2009 U.S. Dist. LEXIS 119034, 2009 WL 5171880, *6 (W.D.N.Y. Dec.
22,
2009)
(citing
Rosa
v.
Callahan,
(2d Cir.1999)).
-11-
168
F.3d
72,
79,
n.
5
In this case, the ALJ relied on Dr. Toor’s assessments in
determining
Plaintiff’s
RFC,
finding
that
his
“largely consistent with the record as a whole.”
assessment
Tr. 61.
was
Indeed,
the record is replete with evidence from Plaintiff’s treating
physicians, opining on Plaintiff’s impairments and limitations.
For example, on August 1, 2007, treating physician Dr. Laura
Brachman saw Plaintiff for right hip and right thigh pain.
258.
Tr.
Dr. Brachman noted that Plaintiff had no weakness in her
lower extremities. She noted further that Plaintiff had tenderness
in her right hip and her straight leg raise test was negative
bilaterally.
On
Id.
November
Dr. Donna
Ferrero
5,
2007,
for
Plaintiff
right-sided
saw
lower
treating
back
pain
orthopedist
and
lower
extremity pain. Id. at 228. Dr. Ferrero observed that Plaintiff’s
gait was intact and she could heel and toe walk without difficulty.
Id.
Dr. Ferrero observed that Plaintiff’s lumbar range of motion
was full in flexion, but significantly restricted in extension with
functional bending. Id. She had some tenderness to palpation over
the right paraspinal musculature.
Dr. Ferrero reported further
that Plaintiff had full strength in her lower extremities and she
was neurologically intact.
Plaintiff’s seated and supine shoulder
raising test was negative, her hips had normal range of motion, and
her pelvic X-ray was negative.
Id.
On November 13, 2007,
Plaintiff saw Dr. Ferrero to review the results of her lumbar spine
-12-
MRI study, which demonstrated moderate to marked disc spinal
stenosis at L4-L5 and degenerative disc disease at L5-S1.
226.
Id. at
Plaintiff saw Dr. Ferrero again on June 11, 2008 for back and
right leg pain.
Id. at 225.
At that time, Dr. Ferrero reported
that Plaintiff’s straight leg raise test was negative bilaterally,
and that she had full strength in both lower extremities.
Id.
On
July 23, 2008 and September 19, 2008, and March 25, 2009, Plaintiff
saw Dr. Ferrero for follow-up visits at which no significant
changes to Plaintiff’s health were noted, except that Plaintiff
reported that since beginning physical and aquatic therapy, her
back pain had lessened.
Tr. 215, 218, 222.
This evidence, along
with the assessment from Plaintiff’s consultative physician, is
substantial evidence to support the ALJ’s decision on Plaintiff’s
claim
without
needing
to
contact
and/or
obtain
information from Plaintiff’s treating sources.
additional
See Rebull v.
Massanari, 240 F. Supp. 2d 265, 272 (S.D.N.Y. 2002); see also Veino
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
Accordingly,
Petitioner’s argument is rejected.
Next, the Court rejects Plaintiff’s argument that the ALJ’s
RFC assessment was inadequate because the ALJ did not detail
specific limitations on a “function by function” basis. See Pltf’s
Supporting Mem. of Law at 17-19.
SSR 96-8p, 1996 SSR LEXIS 5 provides that the ALJ’s RFC
assessment must include a function-by-function analysis of the
-13-
claimant’s functional limitations or restrictions and an assessment
of the claimant’s work-related abilities on a function-by-function
basis. With regard to physical limitations, the ALJ is required to
make a function by function assessment of the claimant’s ability to
sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, or
crouch.
See
416.969a(a);
1999).
20
C.F.R.
§
404.1513(c)(1);
§§
404.1569a(a),
Martone v. Apfel, 70 F. Supp.2d 145, 150 (N.D.N.Y.
Once the function-by-function analysis is completed, the
RFC may be expressed in terms of exertional levels of work, e.g.,
sedentary, light, medium, heavy, and very heavy. Hogan v. Astrue,
491 F.Supp.2d 347, 354 (W.D.N.Y.2007).
This Court finds that, although the ALJ did not methodically
walk through each “function,” the ALJ adequately considered how the
evidence supported her conclusion concerning Plaintiff’s physical
limitations and her ability to perform sedentary work, with certain
restrictions.
The ALJ expressly stated that she relied on the
opinion of consultive examiner Dr. Toor, who found that Murphy had
moderate limitations in standing, walking, bending, and heavy
lifting, and had mild difficulty sitting for a long time. Tr. 308.
Additionally, in assessing Plaintiff’s RFC, the ALJ recounted, in
detail, Plaintiff’s medical history, including her physical therapy
treatments, which improved her symptoms. Tr. 60. For instance, as
the ALJ pointed out, Plaintiff reported to her physical therapist
that her symptoms improved after having treatments insofar as “she
-14-
was able to do the dishes without needing to sit down, and that she
was also able to walk to her mailbox without pain.”
Tr. 60.
The ALJ also summarized Plaintiff’s hearing testimony, noting
that, with respect to Plaintiff’s daily activities, Plaintiff
testified that she “takes her children to school daily, does dishes
and laundry, and cooks, but that she needs to be able to sit and
cannot lift 10 pounds per her doctor’s order.”
Accordingly,
the
Court
finds
that
“the
Tr. 60.
ALJ
adequately
explained how the evidence supports [her] conclusions about the
claimant’s limitations and discussed the claimant’s ability to
perform sustained work activities.” Casino-Ortiz v. Astrue, No. 06
CIV.0155 DAB JCF, 2007 U.S. Dist. LEXIS 69526, 2007 WL 2745704, at
*14 (S.D.N.Y. Sept. 21, 2007) (rejecting an exacting approach that
would require ALJs to produce a detailed statement walking through
each function.).
The Court also rejects Plaintiff’s contention that the ALJ’s
RFC assessment was the product of legal error because the ALJ did
not “indicate how long Murphy could sit or stand total in an 8 hour
workday; whether she could do this on a sustained basis; [and] how
long she needed to stand in relation to the sit/stand option.”
See
Pltf’s Supporting Mem. of Law at 18-19.
SSR 96-9p, 1996 SSR LEXIS 6 provides that “[a]n individual may
need to
alternate
the
required
sitting
of sedentary
standing (and, possibly, walking), periodically.
-15-
work
by
Where this need
cannot be accommodated by scheduled breaks and a lunch period, the
occupational base for a full range of unskilled sedentary work will
be eroded.
The extent of the erosion will depend on the facts in
the case record, such as the frequency of the need to alternate
sitting and standing and the length of time needed to stand.
The
RFC
of
the
individual’s need to alternate between sitting and standing.”
SSR
assessment
must
be
specific
as
to
the
frequency
96-9p, 1996 SSR LEXIS 6 at *19, 2006 WL 374185, *7 (1996).
However, the Second Circuit has stated that “[t]he regulations do
not mandate the presumption that all sedentary jobs in the United
States require the worker to sit without moving for six hours,
trapped like a seat-belted passenger in the center seat on a
transcontinental flight.”
Halloran v. Barnhart, 362 F.3d 28, 33
(2d Cir. 2004). Furthermore, the regulations provide that “[t]here
are some jobs in the national economy . . . in which a person can
sit or stand with a degree of choice. If an individual had such a
job and is still capable of performing it . . . he or she would not
be found disabled.” SSR 83-12, 1983 SSR LEXIS 32, 1983 WL 31253, *4
(1983).
Here, the ALJ’s finding that Plaintiff maintains the RFC to
perform sedentary work, with certain limitations, is well supported
by the record evidence.
sitting and
occasional
§ 404.1567(a).
A sedentary job is one that requires
walking
and
standing.
See
20
C.F.R.
In this case, the ALJ expressly determined that
-16-
Plaintiff must be able “to alternate between a sitting and standing
position every thirty minutes” in order to meet the exertional
requirements
of
sedentary
work.
Tr.
59.
Based
upon
the
substantial evidence in the record, and the determination of the
thirty minute frequency with which Plaintiff needs to alternate
positions, the Court finds that the ALJ’s RFC determination was
consistent with the record and applicable legal principles.
Accordingly, Plaintiff’s argument that the ALJ’s RFC finding
is the product of legal error and is not supported by substantial
evidence is rejected.
(C)
The ALJ Applied the Proper Legal Standards in Assessing
Plaintiff’s Credibility
Plaintiff
credibility.
claims
See
that
Pltf’s
the
ALJ
Supporting
improperly
Mem.
of
rejected
Law
at
her
19-22.
Specifically, Plaintiff argues that the ALJ did not apply the
appropriate legal standards, as set forth in SSR 96-7p and 20 CFR
§ 416.929.
The Court rejects this argument.
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, 1996
SSR LEXIS 4. The ALJ found that Plaintiff’s “statements concerning
the intensity, persistence, and limiting effects of [her] symptoms
-17-
[were] not credible to the extent that they [were] inconsistent
with the above residual functional capacity assessment.”
The
Court
finds
that
the
ALJ
properly
evaluated
Tr. 30.
Plaintiff’s
credibility.
Here, Plaintiff’s RFC was based on all the evidence in the
record, including Plaintiff’s subjective complaints, treatment
history,
activities
of
daily
living,
and
other
factors
as
enumerated at 20 C.F.R. § 416.929(c)(3); Tr. 59-61.
Plaintiff testified that she was able to drive a vehicle, did
laundry, did the dishes, could prepare meals, and that she cared
for her personal needs. Tr. 19, 22.
The record evidence also shows
that she shopped, managed her finances, cared for her children ages
12 and 5, which included taking them to school and helping them
with their homework.
Tr. 175-177, 179, 301.
Plaintiff also
reported that physical therapy treatments improved her symptoms.
Tr. 215, 218, 222, 264.
Notably, Dr. Ferrero indicated at her
initial examination with Plaintiff that Plaintiff’s rehabilitation
potential was “good.”
Tr. 216.
Additionally, Plaintiff’s complaints of disabling pain were
inconsistent with the other medical evidence in the record, namely
Dr. Toor’s report that Plaintiff’s gait was normal, she needed no
help changing from the examination or getting on and off the
examination table, and was able to rise from a chair without
difficulty.
Tr. 307.
-18-
Accordingly, 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).
Thus, 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’s Step 5 is Supported by Substantial Evidence
At Step 5 of the analysis, the ALJ determined that, “[p]rior
to December 8, 2009 . . . considering the [Plaintiff’s] age,
education, work experience, and residual functional capacity, there
were jobs that existed in significant numbers in the national
economy that the [Plaintiff] could have performed.”
Tr. 62.
Plaintiff claims that “[t]his is error because the vocational
expert’s testimony was based upon an incomplete and inaccurate
hypothetical and therefore cannot provide substantial evidence to
support the denial, and because a significant number of jobs were
not identified.”
Pltf’s Supporting Mem. at p 22.
The Court
rejects this contention.
Here, Plaintiff was found to be 49 years old at the time she
applied for benefits, and therefore was a “younger individual" as
defined by C.F.R. 20 C.F.R. § 1563(c).
The ALJ also found that,
with having only completed the tenth grade, Plaintiff had a limited
education. Tr. at 61;
20 C.F.R. §1564(b)(3). Further, the ALJ
-19-
found that the transferability of Plaintiff’s job skills from her
past work was not material to the determination of disability. Tr.
at 61.
The Commissioner may properly rely on the testimony of a
vocational expert in response to a hypothetical question regarding
the availability of jobs which could be performed by the claimant
and which exist in sufficient numbers in the national economy. See
Dumas v. Schweiker, 712 F. 2d 1545, 1553-54 (2d Cir. 1983); see
also 20 C.F.R. § 416.966 (b) (stating, “Work exists in the national
economy when there is a significant number of jobs in one or more
occupations . . .” (parenthesis omitted)).
At the administrative
hearing, the ALJ posed the following hypothetical to the VE: (1) an
individual possessing the same age, educational background, and
past work experience as Plaintiff; (2) who is limited to sedentary
work; (3) requires a sit/stand option allowing her to alternate
between sitting and standing positions every 30 minutes; (4) can
occasionally use ramps and climb stairs, but can never climb
ladders, ropes, or scaffolds; (5) can occasionally stoop, kneel,
crouch and crawl; and (6) should avoid hazards including moving
machinery and unprotected heights.
Tr. 36.
In this case, the ALJ properly relied upon the testimony of
the VE who opined that, based on the vocational profile and RFC of
Plaintiff, she could work as a silver wrapper, ticket taker or
-20-
checker, and addressor.2
Tr. 38.
The VE testified that silver
wrapper positions exist in the numbers of 421,000 nationally and
10,000 regionally, that ticket taker or checker positions exist in
the numbers of 100,000 nationally and 2,000 regionally, and that
addressor positions exist in the numbers of 3 million nationally
and 10,000 regionally.
Tr. 62.
Plaintiff maintains that the ALJ’s step 5 determination is
flawed insofar Plaintiff does not possess the ability to perform
the tasks related to the remaining occupations –- i.e., ticker
taker or checker and addressor –- identified by the VE. See Pltf’s
Supporting Mem. of Law at 24.
Plaintiff’s argument fails insofar
as the Plaintiff’s education was expressly considered by the VE in
the ALJ’s hypothetical.
Tr. 36-38.
In her pleadings, Plaintiff also argues that “[t]here is no
job titled ‘ticket taker/checker’ in the Dictionary of Occupational
Titles, [and] [that] the DOT number cited by the [VE] (not the
ALJ)” is for that of parimutuel ticker-checker, which has general
education scores of 3 in reasoning, math and language, such that
Plaintiff
would
not
have
the
ability
to
perform
the
tasks
associated with this occupation. See Pltf’s Supporting Mem. of Law
at 23-24.
papers.
Respondent has not addressed this particular issue its
In any event, even assuming the VE misidentified the
2
In her decision, the ALJ found that Plaintiff could only perform the work
of two of these occupations –- that of ticket taker or checker and addressor -–
because the VE’s testimony that the work of a silver wrapper had a sedentary
exertional level was not consistent with the Dictionary of Occupational Titles
(“DOT”). Tr. 62.
-21-
ticket taker or checker occupation as one that Plaintiff was
capable of performing given her vocational profile and RFC and the
ALJ improperly relied upon said testimony at step 5, any error was
harmless insofar as the VE also identified the occupation of
addressor. To reiterate, the VE testified that addressor positions
exist in the numbers of 3 million nationally and 10,000 regionally.
Tr. 62. Pursuant to 20 C.F.R. § 416.966 (b), “[w]ork exists in the
national economy when there is a significant number of jobs in one
or more occupations . . .” (parenthesis omitted) (emphasis added))
Accordingly, the Court finds that the ALJ’s decision at step
5 was proper and was supported by substantial evidence.
III. Conclusion
After careful review of the entire record, and for the reasons
stated, this Court finds that the Commissioner’s denial of benefits
was based on substantial evidence and was not erroneous as a matter
of law.
Accordingly, the ALJ’s decision is affirmed. For the
reasons stated above, I grant Commissioner’s motion for judgment on
the pleadings (Dkt. No. 7). Plaintiff’s motion for judgment on the
pleadings is denied (Dkt. No. 8), and Plaintiff’s complaint (Dkt.
No. 1) is dismissed with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
April 9, 2013
Rochester, New York
-22-
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?