Youngman v. Astrue
Filing
14
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 11 Commissioner's Motion for Judgment on the Pleadings; denying 12 Plaintiff's Motion for Judgment on the Pleadings; and dismissing the complaint with prejudice. (clerk to close case.). Signed by Hon. Michael A. Telesca on 10/18/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
LINDA M. YOUNGMAN,
DECISION
Plaintiff,
and ORDER
vs.
12-CV-6500T
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________
INTRODUCTION
Plaintiff, Linda M. Youngman ("Youngman" or "Plaintiff"), brings
this action pursuant to the Social Security Act § 216(i) and § 223,
seeking review of the final decision of the Commissioner of Social
Security
("Commissioner")
denying
her
applications
for
Disability
Insurance Benefits ("DIB") and Supplemental Security Income Benefits
(“SSI”). Plaintiff alleges that the decision of the Administrative
Law Judge ("ALJ") is not supported by substantial evidence in the
record and is contrary to applicable legal standards.
On July 24,
2013, the Commissioner moved for judgment on the pleadings pursuant
to 42 U.S.C. § 405 (g) on the grounds that the findings of the
Commissioner are supported by substantial evidence.
On July 27,
2013, Plaintiff cross-moved for summary judgment seeking to reverse
the Commissioner's decision.
For the reasons set forth below, this Court finds that there is
substantial
evidence
to
support
the
Commissioner's
decision.
Therefore, the Commissioner's motion for judgment on the pleadings is
granted and the Plaintiff's motion is denied.
PROCEDURAL HISTORY
On February 25, 2009, Plaintiff filed an application for DIB and
SSI under Title II, § 216(i) and § 223 of the Social Security Act,
alleging a disability since March 20, 2007 arising from abdominal
problems,
shoulder
and
Plaintiff's
claim
was
Plaintiff's
request,
back
pain
denied
on
an
and
May
headaches.
14,
administrative
T.
2009.
hearing
T.
was
159-193.
83-88.
At
conducted
on
July 14, 2010 before an Administrative Law Judge ("ALJ") at which
Youngman
testified
and
was
represented
by
counsel.
A
vocational
expert also testified. T. 46-81.
On August 27, 2010, the ALJ issued a Decision finding that
Youngman was not disabled. T. 19-35. On June 9, 2011, Plaintiff filed
a subsequent application for SSI which was granted by decision after
a
hearing
on
November
29,
2012
granting
benefits
as
of
the
application date of June 9, 2011. On July 25, 2012, the Appeals
Council
denied
Plaintiff's
request
for
review
of
her
first
application, making the ALJ's Decision the final decision of the
Commissioner. T. 1-3.
denial
of
the
first
This action followed seeking review of the
application
and
March 20, 2007 until June 9, 2011.
2
awarding
Plaintiff
DIB
from
BACKGROUND
Plaintiff is a 48 year old high school graduate. T. 180, 192.
She worked most recently as a stocker at a dollar store until 2005.
T. 185. Youngman worked in assembly at a box factory, a cashier at a
grocery store and as a custodian in a
school after working for
seven
owning
years
from
1993
through
bar/restaurant. T. 185, 205.
2000
and
operating
a
As owner/manager of the bar/restaurant,
Plaintiff cooked, cleaned, waitressed, tended bar, did books and
payroll. T. 206.
At the time of the hearing, Youngman spent a typical day taking
her medications, washing dishes and running the dishwasher, doing
laundry,
watching
television
and
going
to
medical
appointments.
T. 195, 197. Youngman was able to cook dinner for her son at times
and shopped for groceries twice a week. T. 195, 198.
A. Medical History
Plaintiff began treatment for a “sharp stabbing” pain in her
stomach in March, 2007. T. 202. She also had pain in her back and
experienced
frequent
headaches.
T.
202.
At
the
time
of
her
application for disability, Youngman was taking Flexoril, Vicodin,
Gabapentin, and Tylenol for pain. T. 203.
In 2004 Plaintiff was treated for pain along her rib cage and
shoulders.
T.
272.
Youngman
February, 2005 for knee pain.
presented
to
the
emergency
room
in
She was given Motrin, Flexeril and
3
Viocodin.
T.
271,
273.
Upon
follow
up
with
her
primary
care
physician, Dr. Arif Choudhury of Wayne Medical Group, no numbness or
tingling
was
noted.
She
was
diagnosed
with
lumbar
strain
and
continued on medications. T. 273.
In March, 2007, Youngman underwent exploratory laparotomy for
abdominal
pain
and
vomiting.
T.
453.
She
had
presented
to
the
emergency room with complaints of nausea, vomiting and abdominal
pain. T. 917. A CT scan showed a very large stomach and a duodenum
with
a
possible
herniation.
T.
917.
The
laparotomy
showed
no
herniation but there was a mass in the head of the pancreas as well
as a mass in the body of the pancreas. T. 917. Her family indicated
that Plaintiff was a heavy drinker and had difficulty with nausea,
vomiting and abdominal pain for many months to years prior to this
episode. T. 917.
The appendix was removed and gastrojejunostomy
performed. T. 453.
In September, 2007, Plaintiff had some pain in the upper abdomen
with occasional nausea. T. 453. Plaintiff had an endoscopy performed
in
November,
2007
which
found
possible
gastritis,
and
possible
marginal ulcer. T. 446. She was prescribed Nexium. An MMRI of the
abdomen conducted in December, 2007 showed a normal scan with some
fat containing umbilical hernia. T. 469.
An endoscopy conducted on January 21, 2008 showed no evidence of
a marginal ulcer but she was diagnosed with gastritis and prescribed
Nexium. T. 477. Medical notes from Dr. Dana Miller of January 21,
4
2008,
note
that
Plaintiff's
pain
was
related
to
gastritis
and
marginal ulcerations. Dr. Miller advised Plaintiff to stop smoking
and drinking. T. 486. Although Plaintiff claimed she only drank one
to two times a week, Dr. Miller noted that Plaintiff smelled of
alcohol. T. 486. Plaintiff was treated in March, 2008 for pelvic pain
of unknown origin. T. 267. Youngman was referred to the pain clinic
and advised to watch her food habits. T. 267-68.
Images done in May, 2008, showed no obstruction in the digestive
tract. T. 557. Dr. Stephen Ettinghausen, a surgeon from Rochester
General
Hospital,
first
examined
Plaintiff
on
July
18,
2008
for
abdominal pain and vomiting. T. 376. CT scans in August, 2008 also
showed no evidence of obstruction nor inflammatory changes. Plaintiff
had a follow up examination in September, 2008 for epigastric pain.
T. 265. She was diagnosed with diffuse gastritis, was advised to
limit
acid
producing
foods
and
prescribed
neurontin.
T.
265.
In
October, 2008, Plaintiff was seen by Dr. Effinghausen and had bowel
resection surgery on October 21, 2008 to prevent bile reflux. T. 266.
The surgery went as planned with a normal post-operative course.
T. 360. She was diagnosed with “alkaline gastritis” and “possible
duodenal
obstruction.”
T.
362.
In
November,
2008,
Plaintiff
was
treated for restless leg syndrome and assistance with cessation of
smoking. T. 264. Youngman reported to have a sharp pain in the right
upper back of the thoracic area since she had surgery. T. 264. She
was taking Percocet prescribed by Dr. Ettinghausen which was helping
with easing the pain. T. 264. In the medical notes of November 6,
5
2008, Plaintiff reported to Dr. Ettinghausen that she felt the best
she has in a long time and spoke of returning to work. T. 373. She
weighed 149 pounds and was taking Protonix and Percocet for postoperative pain. T. 373. In a post-surgical follow-up appointment,
Dr. Ettinghausen noted that Plaintiff was doing “very well” and no
longer had the abdominal pain that she had preoperatively. T. 370.
However, he noted that Plaintiff still had a focal area of tenderness
in her abdominal wall that could still be detected. He directed an
abdominal CT scan over the area of tenderness. T. 370.
In January, 2009, Dr. Choudhury's medical notes indicate that
Plaintiff complained of headaches and that she did not sleep due to
gastritis
pain.
T.
257.
Dr.
Choudhury
increased
the
Ambien
prescription to assist with sleeping. T. 257. Also in January, 2009,
Plaintiff
was
treated
at
Wayne
Medical
Group
for
restless
leg
syndrome and her left ankle pain. An x-ray was taken of the ankle
which
showed
no
breakage
nor
any
other
degenerative
changes
or
evidence of acute trauma or destructive lesions. T. 263, 316. On
January 12, 2009, Plaintiff was treated with
physical rehabilitation
for mid-thoracic pain and low cervical area pain. T. 693. Youngman
was treated with manual therapy to decrease sensitivity followed with
a graded approach to exercise, education in an attempt to resolve
pain
and
promote
good
posture.
T.
693.
Plaintiff
contined
with
therapy through May, 2009 with some success. T. 693-713, 751-777. Her
therapist noted that Plaintiff gained “good functional” range
motion of “bilateral UE, C-T-L spine without pain.” T. 777.
6
of
In
February,
2009,
Plaintiff
called
Dr.
Choudhury's
office
complaining of severe headaches. She was taking Nicopraflex for back
pain with the residual benefit of better headache control. But when
she returned to Vicodin, it was not as effective in controlling the
headache pain. T. 260. Dr. Choudhury advised Plaintiff to lose weight
and quit smoking. He also referred her to a pain clinic. T. 260. On
March 30, 2009, Dr. Choudhury treated Plaintiff for ongoing pain of
her right side and for pain in her back. T. 255. He prescribed
nicotine
patches
to
help
her
quit
smoking
and
continued
her
medication regiment. T. 255.
Dr.
Ajai
Nemani
of
Interventional
Pain
Management
treated
Youngman from February through May 2009 for left sided abdominal pain
and right sided shoulder blade pain since her surgery in October,
2008. T. 330-40. A CT scan of Youngman's abdomen was negative. The
pain emanated from an area where a tube was placed after her bypass
surgery in March, 2007. T. 338. Plaintiff was taking Vicodin, Ambien,
Ropinirole,
Gabapentin, Rantidine and Prevacid at this time. The
medical records indicate that Plaintiff was not working, smoked and
took recreational drugs. T. 339. Dr. Namani observed that Plaintiff's
range of motion of the knees was normal but flexion and extension of
the back was painful. T. 339. Dr. Nemani treated the abdominal pain
with a trigger point injection at the site of the drain incision.
T. 340. A week later, Youngman returned to Dr. Nemani for treatment
of ankle pain. T. 336. She was able to transfer and walk about the
room and appeared in “no acute distress.” T. 337. Dr. Nemani opined
7
that the ankle symptoms were resolving and no further treatment was
necessary but he would proceed with injections for abdominal pain.
T. 337. After two nerve blocks, Youngman reported that the first
did not work but the second helped relieve pain temporarily in that
region. T. 330. Dr. Nemani ordered x-rays for thoracic and lumbar
spine and recommended physical therapy for the pain. T.331 The x-rays
were “normal studies” except showing “mild osteophyte formation at
L3-L4.” T. 334. Dr. Nemani recommended physical therapy to treat
Youngman's pain. T. 335.
Plaintiff was treated by a gastroenterologist, Dr. Craig Weise,
on April 10, 2009 for her continued abdominal pain. T. 341-344.
Dr. Weise noted Youngman's history of gastric bypass surgery, as well
as appendectomy and cholecystectomy. T. 341. Dr. Weise noted that
Plaintiff walked with a normal gait and range of motion and had no
significant abnormalities with her abdomen. T. 343.
He counseled
Plaintiff on the possibility of her pain being neuropathic. T. 343.
He
continued
Plaintiff
on
Prevacid
and
recommended
discussing
neuropathic pain with the pain specialist as well as conducting an
Esophagogastroduodenoscopy
(“EGD”)
to
examine
the
lining
of
the
esophagus and first part of small intestine. T. 344. The EGD found
two small polyps and internal hemorrhoids but otherwise the endoscopy
was “normal”. T. 347, 352, 1063.
Dr. Sandra Boehlert conducted an independent medical examination
of Plaintiff on April 29, 2009. T. 354-358.
8
She noted that Plaintiff
complained of pain in the right side of her stomach, right shoulder
and right back which began after an appendectomy and gastric bypass
surgery in 2007. T. 354. Plaintiff did not lose weight after the
surgeries and had a subsequent surgery to drain her bowel in 2008
that did not bring
her relief from pain. T. 354. Youngman told
Dr. Boehlert that she walked a quarter of a mile daily. T. 354.
Youngman claimed that she
had intermittent dizziness and chronic
headaches. T. 354. Dr. Boehlert inquired whether Youngman's primary
doctor
knew
that
she
was
on
Cyclobenzaprine,
Gabapentin
and
Amitriptylilne at the same time which could cause dizziness as a side
effect. In addition to these medications, Plaintiff was also taking
Ropinirole,
Ranitidine,
Prevacid,
Lovaza,
Ambien,
Hydrocodone,
Acetaminophen and Nicotine patch. T. 355. Plaintiff also noted that
she
was
forgetful
and
had
memory
loss.
T.
355.
Youngman
told
Dr. Boehlert that she smoked half a pack of cigarettes each day but
took no street drugs and drank little alcohol. T. 355. She could
cook, clean, do laundry, and shop as long as she has a cart to hold
onto. T. 355.
She cooked six or seven days of the week, cleaned six
times a week and was able to shower and dress herself. T. 355.
Plaintiff visited her aunt or grandmother's house down the road and
socialized with friends. She weighed 209 pounds at five feet tall.
T.
356.
abdominal
Dr.
Boehlert
pain,
diagnosed
chronic
Plaintiff
headaches,
with
dizziness
chronic
and
severe
unsteadiness
possibly caused by medications, right shoulder pain and low back
pain. T. 357. Dr. Boehlert found Plaintiff to have “moderate to
9
marked limitation to repetitive twisting, bending, and heavy lifting
due to abdominal pain and market abdominal surgeries.” T. 358.
A Physical Residual Functional Capacity Assessment was prepared
on May 12, 2009 by S. Putcha. T. 715-720. Plaintiff was found to be
able to occasionally lift or carry 10 pounds, could frequently lift
or carry less than 10 pounds, could stand or walk at least two hours
of an 8 hour day, could sit about 6 hours in an 8 hour day, and had
unlimited ability to push or pull. T. 716. Plaintiff was described as
a 43 year old woman who had abdominal surgery for gastric bypass and
Roux-en Y procedure which relieved alkaline gastritis and nausea.
T. 716. Plaintiff still had abdominal pain and dizziness. She has no
musculoskeletal issues. T. 716. No other limitations were noted in
the report. T. 716-718.
Plaintiff was treated in the emergency room on May 13, 2009 for
a swollen ankle. T. 1074-1078.
After fracture and sprain were ruled
out, she was diagnosed with edema, prescribed Naproyn and advised to
keep her ankle elevated and iced. T. 1078.
On August 38, 2009, Dr. Ettinghausen examined Plaintiff with
regard to abdominal pain. He noted that an endoscopy in June showed a
small bowel ulcer but an April 2009 endoscopy was negative. T. 375.
Her CT scan of July, 2009 showed several midline incisional hernias
containing fat. Dr. Ettinghausen successfully repaired the hernias on
September 23, 2009. T. 375, 784.
10
Plaintiff presented to the emergency room in June, 2009 for
chest pain. T. 873. She was discharged and directed to follow up with
her own physician. T. 867.
Plaintiff
Ontario
was
Neurology
treated
for
Associated
headaches
beginning
by
Dr.
in
Gene
April,
Tolomeo
2009
of
through
September, 2009. T. 860-862. Dr. Tolomeo's neurological examination
was
“normal”
headaches.
T.
and
862.
opined
He
that
also
Plaintiff
considered
suffered
that
from
Plaintiff
tension
was
having
rebound headaches from extensive use of Tylenol. He ordered an MRI to
rule
out
intracranial
mass
pseudotumor
and
started
her
on
Amitriptline. T. 862. In June, 2009, Dr. Tolomeo examined Plaintiff
and noted that she still takes excessive amounts of Tylenol. He again
concluded that her headaches are tension related compounded with
rebound
pain
from
excessive
Tylenol
use.
T.
861.
Plaintiff
also
suffered from insomnia and depression for which Dr. Tolomeo suggested
she obtain a stronger antidepressant.
He increased Neurontin dosage
to help her sleep. T. 861. In September, 2009, Dr. Tolomeo's medical
notes indicate that Plaintiff was improved. She was taking Topamax
which decreased the headaches to the point where she rarely gets
headaches and the medicine. T. 860.
Plaintiff
also
presented
to
the
emergency
room
in
2009
for
bronchitis and left ankle pain. T. 904, 912. Both of these visits
resulted in finding no acute injury.
11
Dr. Ajai Nemani of Pain Interventions treated Plaintiff from
June, 2009 through February, 2010 for mid-back and ankle pain. T.
1101. He treated her with facet joint injections for back pain.
T. 1100.
Plaintiff began treatment at Westfall Cardiology in June, 2009,
for edema and shortness of breath. T. 1109. Nurse Practitioner Ellen
Bartle advised Plaintiff to get serious about quitting smoking and
adhere to a sodium restricted diet. T. 1111.
A stress test and ECG
test results showed a normal pattern of perfusion in all regions. The
post stress left ventricular function was normal. T. 1117.
In August, 2009, Plaintiff was treated for urinary retention.
T. 1462. A cystoscopy was performed which showed
squamous metaplasia. T. 1464.
Dr.
Choudhury
discussed
the
hematuria and
After treatment for a yeast infection,
likelihood
of
incomplete
emptying
secondary to medications and the need to quit smoking. T. 1468.
On
March
3,
2010,
Plaintiff
was
treated
by
Dr.
Gregory
Finkbeiner of Greater Rochester Orthopaedics for left ankle pain and
swelling as well as right knee discomfort. T. 1128. Dr. Finkbeiner
diagnosed Plaintiff with posterior tibial tendonitis and referred
Plaintiff to physical therapy. T. 1129. The knee was opined to have
mild medial joint line tenderness. T. 1129. In April, 2010, Plaintiff
was again examined by Dr. Finkbeiner who noted that physical therapy
has been of limited benefit. T. 1136. He ordered an MRI scan which
showed no effusion or fracture but that Plaintiff had a posteromedial
12
osteochondral lesion of the talus to be treated with a cortisone
injection. T. 1133.
Physical therapy notes from March, 2010 indicate that Plaintiff
had gait deviations, edema and limited range of motion and strength
at
the
left
ankle.
T.
1326.
She
was
treated
with
stretching,
strengthening, and gait training and her prognosis was good. T. 1326.
Plaintiff
energy
levels
prescribed
began
expressing
beginning
Effexor
and
in
by
concerns
February,
March,
of
depression
2009.
2010,
was
T.
and
1167.
showing
lower
She
was
signs
of
improvement. T. 1172.
Dr.
Tolomeo
examined
Plaintiff
in
February,
2010
for
a
neurologic consultation for left foot pain. T. 1421. He found that
Youngman did not have electrodiagnostic evidence of tarsal tunnel
syndrome or a sensory neuropathy. He suggested that Plaintiff would
benefit from weight loss, muscle relaxants
and physical therapy.
T. 1421.
An upper GI series conducted in May, 2010 had normal findings.
T. 1245. Plaintiff had a normal course and caliber esophagus and
stomach.
T.
1245.
In
June,
Plaintiff
was
evaluated
at
a
sleep
disorder center for multiple sleep issues such as suspected apnea,
awakenings, restless leg syndrome, loud snoring and sleep walking.
T. 1334. The nocturnal polysomnogram performed in July, 2010 showed
“at least mild obstructive sleep apnea” but the severity could have
13
been underestimated due to a reduced amount of REM sleep seen. T. 1541.
On July 6, 2010, Dr. Choudhury and his colleague Dr. Michael
Wittek, completed a Physical Residual Functional Capacity form for
Plaintiff. T. 1338-1339. Dr. Choudhury opined that Plaintiff could
sit at one time for a total of one hour in an 8 hour workday. She
could stand only 30 minutes at one time and up to two hours total
during an 8 hour workday. Plaintiff could occasionally lift or carry
up to 25 pounds but never more than 25 pounds. T. 1338. Plaintiff was
not limited in grasping, pushing, pulling, or fine manipulations.
T. 1338.
Plaintiff could occasionally bend, squat, crawl, climb, and
reach. She had moderate limitation with unprotected heights, mild
limitation to being around moving machinery but no limitations for
driving automotive equipment, exposure to dust, fumes nor exposure to
changes in temperature or humidity. T. 1338.
that
Plaintiff's
medications
could
Dr. Choudhury noted
interfere
with
work
tasks
requiring sustained concentration and she would need to miss work
three
days
a
month
for
pain
symptoms.
T.
1339.
He
opined
that
Plaintiff could work three to four hours a day before pain prevented
her from performance of even simple tasks. T. 1339.
Plaintiff was treated at
June,
2010
Plaintiff
for
used
depression.
marijuana
Wayne Behavioral Health Network in
Their
three
to
alcohol daily. T. 1344.
14
treatment
eight
notes
times
a
indicate
week
and
that
drank
In July, 2010, Plaintiff was again treated with injections for
pain in the abdomen and ankle. T. 1362. At a follow up appointment in
September, Plaintiff reported that the injections did not work to
alleviate the pain. T. 1365.
aspirating. T. 1365.
Plaintiff was now having difficulty
Dr. Nemani refused to prescribe opiates because
of Plaintiff's recreational drug use. T. 1366, 1375.
Youngman went to the emergency room in September, 2010 with
numbness in the right arm.
She was examined for possible stroke and
an MRI performed. The MRI revealed degenerative change with mild to
moderate
foraminal
stenosis
and
moderate
to
marked
spinal
stenosis. T. 1390. A stroke was ruled out. T. 1390.
canal
Youngman was
operated on in October, 2010 for a deviated nasal septum and removal
of a benign left vocal cord lesion. T. 1386-88, 1406.
Medical
indicate
notes
that
from
Westfall
Plaintiff
had
a
Cardiology
moderate
in
degree
November,
of
2010
COPD
from
longstanding history of smoking and sleep apnea. T. 1406. She also
had degenerative joint disease in her back and knee and dropped
bladder,
restless
leg
syndrome
and
depression.
She
was
not
hypertensive and suggested no longer taking Lasix and potassium and
to have her other doctors simplify her medications.
T. 1406.
At the
time, Plaintiff was taking Abilify, Venlafaxine, Lovaza, sucralfate,
Kapidex, Tramadol, Ropinirole, Ambien, cyclobenzaprine, Topiranate,
Gabapentin,
Effexor,
Lisinopril-Hydrochlorothiazide,
Choride and Furosemide. T. 1406.
15
Potassium
Plaintiff
was
in
physical
therapy
in
2010
for
numbness
and
decreased sensation in the right hand and thumb. There was also
treatment for weakness in the right upper extremity and complaints of
right cervical and scapular pain and tenderness.
In addition, she
had complaints of lumbosacral pain, left knee, foot pain and ankle
pain.
on
a
CT scan was negative and Plaintiff admitted smoking marijuana
daily
basis
along
cigarettes. T. 1501.
with
two
to
two
and
a
half
packs
of
Her condition improved over the course of
treatment. T. 1442-1442.
An MRI of the cervical spine showed mild disc height loss at C56 and C6-7 levels but no stenosis except mild to moderate stenosis at
C5-C6. There was no abnormal signal within the spinal cord to explain
the arm tingling and numbness. T. 1531.
Medical records from September, 2010 indicated that Plaintiff’s
depression was “well controlled” with Effexor. T. 1534.
Plaintiff was experiencing left knee pain beginning in 2010.
T. 1536. She was diagnosed with a right knee meniscal tear which was
treated
with
arthroscopy
with
partial
medial
meniscectomy
on
January 12, 2012. T. 1517.
B. Plaintiff's Hearing Testimony
Plaintiff testified that she last worked at Dollar General Store
in 2005 when she was let go because of lack of work. T. 52. Prior to
16
that, Youngman worked in a school as a janitor and for a box company
stacking pallets. T. 52.
Although Plaintiff had the ability to drive, she did not drive
because
she
had
a
suspended
license
for
failure
to
pay
traffic
tickets. T. 53. She lived with her mother, fiancee, son and another
relative. T. 53. Youngman was able to help with chores such as light
vaccuuming and washing dishes. T. 54.
Youngman
testified
that
she
was
unable
to
work
because
she
needed to lie down and rest many times during the day and she was
physically unable to do things. T. 55. She has restless leg syndrome
that she claimed happened every day whereby she would need to lie
down. T. 55-56. Youngman used medication to control her pain and
symptoms.
For restless leg syndrome, she was taking Ropinirole.
T. 56. She was taking Ambien to sleep, Gabapentin, calcium carbonate,
potassium,
Cyclobenaprine,
Sucralfate
and
another
medication
for
stomach pain and Tramadol. T. 57.
Plaintiff testified that she felt nauseous and vomited bile
three to four times a week for fifteen minutes up to two hours at a
time. T. 58. She also had abdominal pain that could be mild or so
painful
she
needed
to
lie
down.
T.
58.
The
gastritis
also
had
affected her nasal passages and vocal cords. T. 59.
Youngman had pain in her left foot which also swelled. T. 61.
Injection
frequent
treatments
headaches
help
that
the
she
pain.
T.
61.
was treating
17
She
with
also
experienced
Topamax.
T.
62.
Plaintiff testified that her counselor
are
related
to
her
depression
and
believed that the headaches
they
affect
her
ability
to
concentrate. T. 62. She was treating the headaches with Ibuprofen.
T. 64.
Plaintiff began treatment for depression in July 2010. She felt
fatigued,
uninterested
in
doing
things
and
has
frequent
crying
episodes. T. 65.
Youngman testifed that she could stand for up to a half hour at
a time. T. 66. She could walk five houses down the road to her
grandmother's house every day but then needed to rest. T. 66. She
could sit up to two hours at a time and spent most of her time lying
down. T. 67.
Bending over may cause Plaintiff to feel dizzy and she
had difficulty keeping her balance. T. 69. Plaintiff enjoys fishing
as a hobby. T. 70.
C. Vocational Expert Testimony
A
vocational
individual
Plaintiff
with
who
expert
the
could
same
testified
age,
perform
that
education
light
work
with
and
with
a
work
a
hypothetical
experience
sit/stand
of
option
alternatively at will who would never leave the work station, never
climb
a
ladder,
only
occasionally
climb
ramps
or
stairs
and
occasionally stoop, kneel, crawl or crouch, could understand simple
instructions,
make
judgments
on
simple
work
related
decisions,
interact appropriately with supervisors and co-workers in routine
work settings, and respond to usual work situations, changes and
18
routine
work
settings
and
also
avoid
concentrated
use
of
heavy,
moving machinery, could not do Plaintiff's past relevant work. T. 7374. However, such a hypothetical individual could perform work as a
switchboard operator, a plastic molding machine
tender or ticket
seller. T. 74-75.
By changing the type of work the hypothetical individual could
perform
to
sedentary,
the
Vocational
Expert
testified
that
the
individual could no longer perform the work of a plastic molding
machine tender but could perform the work of a telephone survey
worker. T. 76. If this individual were to require being off work for
15 percent of the time, he could not sustain employment. T. 76. If
the
hypothetical
individual
would
need
to
take
unscheduled
work
breaks of thirty minutes each day, it would not affect their ability
to work. T. 77. However, if they were also limited to standing a
total of two hours a day, the expert testified that sedentary jobs
would be viable. T. 78.
hours
a
day,
the
If an individual could only sit for four
expert
testified
that
it
would
require
an
accommodation by the employer but full time employment was still
possible. T. 79.
DISCUSSION
I. Scope of Review
Title 42 U.S.C. §405(g) directs the Court to accept the findings
of fact made by the Commissioner, provided that such findings are
supported
by
substantial
evidence
19
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).
limited
to
determining
The Court's scope of review is
whether
the
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. Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.
1983).
Judgment on the pleadings pursuant to Rule 12(c) may be granted
where the material facts are undisputed and where judgment on the
merits
is
possible
merely
by
considering
the
contents
of
the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d
Cir. 1988).
If, after reviewing the record, the Court is convinced
that the plaintiff has not set forth a plausible claim for relief,
judgment on the pleadings may be appropriate. see generally Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
II. The Commissioner's
Evidence in the Record
Determination
is
Supported
by
Substantial
The ALJ found that Plaintiff was not disabled within the meaning
of the Social Security Act.
Social
Security
In doing so, the ALJ adhered to the
Administration's
five
step
evaluating disability benefits. (Tr. 12-18)
sequential
analysis
The five step analysis
requires the ALJ to consider the following: 1) whether the claimant
is performing substantial gainful activity; 2) if not, whether the
20
claimant has a severe impairment which significantly limits his or
her
physical
or
mental
ability
to
do
basic
work
activities;
3)
whether the claimant suffers a severe impairment that has lasted or
is expected to last for a continuous
period of at least twelve
months, and her impairment(s) meets or medically equals a listed
impairment contained in Appendix 1, Subpart P, Regulation No. 4, if
so, the claimant is presumed disabled;
4) if not, the ALJ next
considers whether the impairment prevents the claimant from doing
past relevant work given his or her residual functional capacity; 5)
if the claimant's impairments prevent his or her from doing past
relevant work, whether other work exists in significant numbers in
the
national
functional
economy
capacity
that
and
accommodates
vocational
the
factors,
claimants
the
claimant
residual
is
not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)(v).
Under step one of the process, the ALJ found that the Plaintiff
had not engaged in substantial gainful activity at any time during
the period from her alleged onset date of March 20, 2007. T. 24.
The
ALJ next found that the Plaintiff suffered from the following severe
impairments: neuropathic abdominal pain and gastritis, degenerative
disc
disease,
headaches,
degenerative
chronic
joint
obstructive
disease
pulmonary
of
the
disease,
left
ankle,
sleep
apnea,
restless leg syndrome, obesity, hypertension, high cholesterol and
depressive
disorder.
T.
24.
At
step
3,
the
ALJ
found
that
Plaintiff's impairments did not meet or medically equal the listed
21
impairments in Appendix 1, Subpart P. T. 18.
Further, the ALJ found
that Plaintiff had the residual functional capacity to perform the
full range of sedentary work except that Plaintiff would require the
option to sit or stand alternatively at will which would be performed
at the work station and would not require the claimant to be off
task, that she could never climb ladders, ropes or scaffolds, only
occasionally climb ramps or stairs, only occasionally stoop, kneel,
crouch and crawl and should avoid concentrated use of heavy moving
machinery. He also found that Plaintiff would be able to understand,
remember and carry out simple instructions, make judgments on simple
work-related decisions, interact appropriately with supervisors and
co-workers
in
a
routine
work
setting
and
respond
to
usual
situations and changes in a routine work setting. T. 26.
work
The ALJ
next determined that Plaintiff was not able to perform her past
relevant work. T. 33. Finally, the ALJ determined that considering
Plaintiff's
residual
age,
education,
functional
past
capacity,
relevant
there
were
work
jobs
experience
that
existed
and
in
significant numbers in the national economy that the claimant could
perform. T. 34-35.
Plaintiff argues that the ALJ erred by: 1)failing to properly
evaluate
the
medical
residual
functional
evidence
capacity;
in
2)
establishing
failing
to
the
Plaintiff's
properly
evaluate
Plaintiff's credibility; and 3) relied on invalid vocational expert
testimony.
I find that there is substantial evidence in the record
22
to support the ALJ conclusion that the Plaintiff was not disabled
within the meaning of the Social Security Act.
A.
Substantial Evidence in the Record
Evaluation of the Medical Evidence
Supports
the
ALJ's
Plaintiff first contends that the ALJ failed to properly apply
the treating physician rule. Specifically, she argues that the ALJ
failed
to
accord
controlling
weight
to
Plaintiff's
treating
physician, Dr. Choudhury, in his functional capacity assessment.
Pursuant to the treating physician rule, the medical opinion of
the physician engaged in the primary treatment of a claimant is given
“controlling weight” if it is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in the case record. 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2). An ALJ may decline to give controlling
weight to a treating physician’s opinion based on, inter alia, “(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;
and (iv) whether the opinion is from a specialist.” Shaw v. Chater,
221 F.3d 126, 134 (2d Cir. 2000); Clark v. Commissioner of Social
Security,
§
143
F.3d
404.1527(d)).
115,
The
118
Second
(2d
Cir.
Circuit
1998)
requires
(citing
that
20
the
C.F.R.
ALJ's
consideration of the treating source evidence be explicit in the
record. Burgin v. Astrue, 2009 WL 3227599 (2d Cir. October 8, 2009).
Here,
the
ALJ
properly
considered
23
the
weight
to
be
given
the
conflicting medical opinions and articulated good reasons for not
giving Dr. Choudhury's opinion controlling weight.
The ALJ gave little weight to Dr. Choudhury's opinion as to
Plaintiff's capacity. T. 32. Dr. Choudhury opined that Plaintiff
could sit for one hour at a time or four hours total in an eight hour
workday, could stand and walk one half hour at a time or two hours
total in an eight hour workday, that pain and medications would
interfere
with
tasks
requiring
sustained
concentration
and
that
exacerbations of pain would make it impossible to function in a work
setting requiring her to miss work three days per month. T. 1339. The
ALJ concluded that the objective findings in the medical evidence do
not support limitations to such a degree.
The ALJ thoroughly evaluated the objective medical evidence.
He
took note that Plaintiff's frequent visits to the emergency room for
gastric
pain
admission
Plaintiff's
and
consistently
ended
conservative
treatment
by
in
treatment
specialists
discharge
of
such
without
medications.
as
a
hospital
T.
28.
gastrointestinal
specialist only found two benign polyps. The ALJ considered that
Plaintiff underwent surgery for loop gastrojejunostomy to a Roux-en-Y
gastrojejunostomy to resolve bile reflux gastritis but noted that
this is a common condition following gastric surgery and that the
medical notes indicate it resolved the vomiting issue Plaintiff was
experiencing. T. 28.
point injections.
Plaintiff was treated for pain with trigger
The ALJ also specifically noted that endoscopy
24
procedures in 2009 were negative and the abdominal pain considered
“neuropathic.” T. 29.
With regard to Plaintiff's back pain, the ALJ considered that
Plaintiff was diagnosed with lumbar strain and treated conservatively
with
muscle
relaxants,
anti-inflammatory
and
pain
medications
in
2009. T. 29. X-rays showed mild osteophyte formation at L3-L4 but
were otherwise normal. T. 29. The ALJ also gave a detailed analysis
of the objective medical findings regarding Plaintiff's left ankle
pain. X-rays showed minimal degenerative change and a small plantar
osteophyte but no acute abnormalities. T. 29. Plaintiff had a full
range of motion of the ankle and foot with only some tenderness. She
was able to fully bear weight and to ambulate with mild difficulty.
T. 29.
The ankle was treated with anti-inflammatory medication, ice
and elevation. T. 29. In 2010, the ALJ pointed out that a podiatrist
diagnosed possible tendonitis in the ankle, suggested the use of an
ankle brace, and referred Plaintiff to physical therapy. T. 30. An
MRI in 2010 showed posttraumatic changes of the medial malleolus,
intact tendons and ligaments, and mild degenerative changes. T. 30.
She was treated with cortisone injections.
The
ALJ
also
addressed
the
objective
evidence
concerning
Plaintiff's headaches. A neurological examination was normal and an
MRI ruled out any intracranial mass. T. 30. The ALJ also pointed out
that the neurologist diagnosed Plaintiff with tension headaches with
25
a rebound component from overuse of Tylenol. T. 30. By the end of
2009, Plaintiff was doing better with a new medication.
The
ALJ
considered
Plaintiff's
treatment
for
cardiac
disease
noting that the cardiac testing showed no abnormalities. Finally, the
ALJ considered Plaintiff's depression.
He noted there was little
evidence other than an initial diagnosis of a depressive disorder.
T. 31. He acknowledged that Plaintiff claimed to be unmotivated and
withdrawing from family and friends yet this was inconsistent with
her social drinking and recreational drug use, daily visits with
family and examination records that show her concentration and memory
were intact. T. 31.
The ALJ gave some weight to the opinion of Dr. Putcha, the State
agency
physician.
T.
33.
Dr.
Putcha
found
that
Plaintiff
could
occasionally lift and/or carry ten pounds, frequently lift or carry
less than ten pounds, stand or walk for a total of two hours in a
workday, sit for six hours in a workday and perform unlimited pushing
and
pulling.
T.
716.
The
ALJ
concluded
that
these
limitations
support a finding that Plaintiff could perform a range of sedentary
work and were consistent with the objective medical evidence.
Similarly, the consultative examination by Dr. Boehlert supports
this
finding.
Dr.
Boehlert
found
that
Plaintiff
had
moderate
to
marked limitation in repetitive twisting, bending and heavy lifting.
R. 358. She based her finding on her examination of Plaintiff which
showed
Plaintiff
walked
with
a
normal
26
gait,
used
no
assistive
devices, needed not assistance changing for the examination, had full
flexion and extension of the cervical and lumbar spines, had full
range of motion in the shoulders, elbows, forearms, wrists, hips,
knees, and ankles. T. 357.
The ALJ specifically found that the medical evidence as a whole
documents physical impairments which would reduce Plaintiff's stamina
but that it does not document limitations to the degree opined by
Dr. Choudhury. Therefore, the ALJ properly accorded little weight to
Dr. Choudhury's finding of Plaintiff's limitations because it was not
consistent with the medical evidence. T. 32.
Conversely, Dr. Boehlert and Dr. Putcha's reports are consistent
with the objective medical record as well as Plaintiff's activities
of daily living. T. 21. Plaintiff indicated that she shopped, cooked,
dressed and bathed himself, and socialized with friends. T. 267.
She
was also able to climb stairs.
I find substantial evidence for the ALJ to find that the opinion
of Dr. Choudhury regarding Plaintiff's residual functional capacity
was not consistent with the record as a whole. Therefore, this Court
finds that the ALJ did not violate the treating physician rule in
giving greater weight to the findings of Dr. Boehlert and Dr. Putcha.
B.
The ALJ's Credibility Assessment is Supported by Substantial
Evidence
In determining Plaintiff's residual functional capacity, the ALJ
considered Plaintiff's statements about her subjective complaints of
27
pain and functional limitations and found that they were not entirely
credible. The ALJ determined that Plaintiff’s testimony of symptoms
at “such a level of severity is not supported by treatment evidence
and is therefore not fully credible.” T. 32. Plaintiff argues that
the ALJ’s credibility determination is unsupported by substantial
evidence.
“The
assessment
of
a
claimant’s
ability
to
work
will
often
depend on the credibility of her statements concerning the intensity,
persistence and limiting effects of her symptoms.”
Otero v. Colvin,
12-CV-4757, 2013 WL 1148769, at *7 (E.D.N.Y. Mar. 19, 2013). Thus, it
is not logical to decide a claimant’s RFC prior to assessing her
credibility. Id. This Court, as well as others in this Circuit, have
found it improper for an ALJ to find a plaintiff’s statements not
fully credible simply “because those statements are inconsistent with
the ALJ’s own RFC finding.” Ubiles v. Astrue, No. 11-CV-6340T (MAT),
2012 WL 2572772, at *12 (W.D.N.Y. July 2, 2012) (citing Nelson v.
Astrue, No. 5:09-CV-00909, 2012 WL 2010 3522304, at *6 (N.D.N.Y. Aug.
12,
2010),
report
and
recommendation
adopted,
2010
WL
3522302
(N.D.N.Y. Sept. 1, 2010); other citations omitted)). Instead, SSR 967p
requires
that
“[i]n
determining
the
credibility
of
the
individual’s statements, the adjudicator must consider the entire
case record.” SSR 96-7p, 1996 WL 374186, at *4 (S.S.A. July 2, 1996);
20 C.F.R. §§ 404.1529, 416.929.
However
evaluating
here,
all
of
the
ALJ
measured
the
required
28
Plaintiff's
factors
bearing
credibility
on
by
Plaintiff’s
credibility
prior
to
deciding
Plaintiff’s
RFC.
He
discussed
Plaintiff's daily activities, frequency and intensity of Plaintiff's
symptoms, Plaintiff's compliance with physician directions and the
treatment
of
Plaintiff's
symptoms.
The
ALJ
determines
issues
of
credibility and great deference is given his judgment. Gernavage v.
Shalala, 882 F.Supp. 1413, 1419, n.6 (S.D.N.Y. 1995).
The ALJ first noted that the totality of the objective medical
evidence
did
not
corroborate
Plaintiff’s
complaints
of
pain
and
functional limitations. Also, the ALJ considered Plaintiff’s alcohol
and marijuana use.
Despite claims of disabling stomach pain, and
repeated
by
Plaintiff
directions
continued
physicians
to
drink
to
refrain
throughout
the
from
alcohol
period
at
use,
issue
undermining her overall credibility. T. 32. The ALJ also took account
that
despite
complaints
of
disabling
limitations,
Plaintiff
did
household chores and walked to social visits on a daily basis.
The
ALJ
did
not
discount
Plaintiff's
complaints
entirely.
Rather, in assessing Plaintiff's residual functional capacity, the
ALJ determined that Plaintiff would require sedentary work with a
sit/stand option alternatively at will and that she would never be
able
to
climb
ladders,
ropes,
or
scaffolds,
only
could
only
occasionally
climb, balance, stoop, kneel, crouch and crawl, and
avoid
moving
heavy
argument
that
the
machinery.
ALJ
failed
T.
to
complaints is rejected.
29
26.
Accordingly,
properly
assess
her
Plaintiff's
subjective
C. There is Substantial Evidence in the Record to Support the ALJ
Finding that Plaintiff Could Perform Jobs which Exist in Significant
Numbers in the National Economy.
Lastly, Plaintiff argues that the ALJ erred when he relied on
the
vocational
expert
in
determining
that
there
were
jobs
that
existed in significant numbers in the national economy that Plaintiff
could perform. T. 33-34.
At step five, the burden is on the Commissioner to prove that
“there
is
other
gainful
work
in
the
national
economy
which
the
claimant could perform.” Balsamo v. Chater, 142 F.3d 75 (2d Cir.
1998). The ALJ properly may rely on an outside expert, but there must
be “substantial record evidence to support the assumption upon which
the vocational expert based his opinion.” Dumas v. Schweiker, 712
F.2d 1545, 1554 (2d Cir. 1983).
Plaintiff objects that the hypothetical posed to the vocational
expert was incomplete because it was based on an erroneous RFC due to
the ALJ's errors with regard to assessing Plaintiff's credibility and
the
proper
weighing
of
medical
evidence.
A
vocational
expert’s
opinion in response to an incomplete hypothetical question cannot
provide substantial evidence to support a denial of disability. See
DeLeon v. Secretary of Health and Human Servs., 734 F.2d. 930, 936
(2d Cir. 1984).
The vocational expert testified at Plaintiff's hearing that a
hypothetical individual with limitations that corresponded to the
ALJ's RFC assessment could perform the jobs of switchboard operator,
a plastic molding machine tender, ticket seller or telephone survey
30
worker. T. 74-76.
Because there is substantial evidence in the
record to support the RFC assessment of the ALJ, the ALJ is entitled
to rely on the vocational expert's testimony that Plaintiff could
perform other jobs that exist in significant numbers in the national
economy. 20 C.F.R. §404.1560(b)(2).
CONCLUSION
After careful review of the entire record, and for the reasons
stated, this Court finds that the Commissioner's denial of DIB was
based on substantial evidence and was not erroneous as a matter of
law. Accordingly, the Commissioner's decision denying the Plaintiff’s
first application for DIB covering the period from March 20, 2007
until June 9, 2011 is affirmed. For the reasons stated above, the
Court grants Commissioner's motion for judgment on the pleadings
(Dkt. No. 11). Plaintiff's motion for judgment on the pleadings is
denied (Dkt. No. 12), 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:
October 18, 2013
Rochester, New York
31
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