Lucius v. Commissioner of Social Security
Filing
12
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 9 Defendant's Motion for Judgment on the Pleadings and affirming Commissioner's decision denying benefits. Plaintiff's complaint is dismissed with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 3/31/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROSHELL ROJEAN LUCIUS,
Plaintiff,
DECISION and ORDER
No. 6:12-CV-6531(MAT)
-vsCAROLYN COLVIN, Commissioner of
Social Security,
Defendant.
I.
Introduction
Roshell Rojean Lucius (“Plaintiff” or “Lucius”), proceeding
pro se, brings this action pursuant to Title 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
Supplemental
Security
Income
(“SSI”)
and
Disability Insurance Benefits (“DIB”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently
before
the
Court
is
Defendant’s
motion
for
judgment
on
the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.
II.
Procedural History
On October 12, 2009, Plaintiff applied for benefits, alleging
disability beginning April 1, 2008, due to fibromyalgia, carpal
tunnel syndrome, arthritis, foot pain and bone disease in her legs.
T.200-08, 209-12, 244.1 These applications were denied. T.99, 100,
118-33.3 Plaintiff appeared with counsel, Ida Comerford, Esq., and
testified on October 14, 2010, before Administrative Law Judge
Michael Devlin (“the ALJ”). T.77-98. On January 14, 2011, the ALJ
issued a decision finding Plaintiff not disabled. T.21-37. The
Appeals Council denied Plaintiff’s request for review on August 21,
2012,
making
the
ALJ’s
decision
the
final
decision
of
the
Commissioner. T.1-6. Plaintiff then commenced this lawsuit.
III. Summary of the Administrative Record
A.
Plaintiff’s Medical History
Below, the Court summarizes the medical history pertinent to
the severe impairments found by the ALJ: bilateral carpal tunnel
syndrome, degenerative disc disease, degenerative joint disease,
obesity,
and
fibromyalgia.
T.27.2
With
regard
to
treatment
providers and notes not included in the summary below, the Court
refers to,
and
incorporates
herein,
Defendant’s
comprehensive
summary of the relevant medical evidence of record set forth in her
Memorandum of Law.
1
Numerals preceded by “T.” refer to pages from the transcript of the
administrative record, submitted by Defendant as a separately bound exhibit in
connection with her motion for judgment on the pleadings.
2
Plaintiff apparently underwent hammer toe surgery on October 23, 2008, Ex.
B1F, but she did not provide any records from her podiatrist. The ALJ determined
that there was no evidence to support a finding that she had a medically
determinable foot problem that had lasted at least 12 months. T.27.
-2-
Throughout
the
time-period
relevant
to
her
benefits
applications, Plaintiff has complained of back pain as well as
diffuse muscle pain and joint pain, in varying degrees of severity.
Magnetic
resonance
imaging
(MRI)
in
May
2008
showed
mild
degenerative changes in her back; prominent degenerative changes
with multilevel spinal stenosis and neural foraminal narrowing; and
showed reversal of the normal cervical lordosis, which could have
been secondary to several factors (arthritic change, muscle strain,
or spasm). Plaintiff had a small herniated disc making minimal
impression on the ventral margin of the thecal sac at L5-S1 without
significant
stenosis.
MRIs
of
the
cervical
spine
revealed
degenerative changes throughout the cervical spine, with moderate
to severe spinal stenosis at C3-C4.
Plaintiffs doctors have diagnosed her with fibromyalgia, for
which she takes Lyrica. Plaintiff, who is 5'1 1/2" tall, weighed
247 pounds in June 2008; and weighed 270 pounds in March 2010. Her
doctors have told her that her obesity increases the pain she
experiences from these impairments.
In
November
2008,
Plaintiff
began
reporting
symptoms
consistent with carpal tunnel syndrome (e.g., hand numbness, worse
in the morning; and difficulty holding things). Plaintiff was
treated with wrist braces for four weeks. An electromyography (EMG)
showed carpal tunnel syndrome (“CTS”), and Plaintiff had surgery in
March 2009. On April 8, 2009, it was noted that Plaintiff was
-3-
“doing
well”
post-surgery
for
her
CTS.
T.321.
In
May
2009,
Plaintiff reported that she was doing well on increased medication.
T.323. She had seen an orthopedist, who had recommended aqua
therapy for her pain and joint problems. On July 8, 2009, Plaintiff
had an appointment at her health center and again complained of
generalized pain for the past three to four years. T.325. According
to Plaintiff, nothing relieved her pain. T.325.
She returned to the Strong Pain Clinic on July 15, 2009, and
reported experiencing pain that was 8 to 10 on a scale of 1 to 10,
with 10 being the most severe. T.431. Plaintiff also had not been
sleeping well. Plaintiff was to undergo more water-based physical
therapy. T.432.
On August 10, 2009, Plaintiff reported that she had been
experiencing shoulder pain for a month, about 4 to 6 on a scale of
1 to 10. T.327. On examination, Plaintiff complained of pain on
rotation and palpation of the subacromial bursa, but had full
supraspinatus and infraspinatus strength. Plaintiff was referred
for corticosteroid injections T.328. On August 21, 2009, Plaintiff
received a right shoulder injection. T.355.
An August 22, 2009 x-ray of Plaintiff’s right knee showed mild
to moderate changes, more so in the patellofemoral compartment.
T.347. An MRI of the right knee showed complex degenerative tear of
the posterior horn and body of the medial meniscus; intrasubstance
degeneration
of
the
lateral
meniscus;
-4-
severe tricompartmental
osteoarthritis with small to moderate effusion; and a pericruciate
ganglion cyst. T.348.
Plaintiff underwent left CTS release surgery in August 2009.
T.449.
On September 10, 2009, Plaintiff reported that her right
shoulder pain had improved after the steroid injection, but now the
pain had returned. T.353. On examination, Plaintiff had right
shoulder
impingement
syndrome
at
70
degrees
abduction,
with
tenderness over the biceps tendon. T.353. On September 22, 2009,
Plaintiff was seen at University Pain Management Center. It was
noted that Plaintiff had previously missed multiple clinic visits.
T.343. The Lyrica prescribed for her fibromyalgia was working
fairly well, but did not relieve her body pain completely. T.343.
Plaintiff was tender to palpation in the low back and bilateral
scapular area. T.343. Plaintiff was to continue Lyrica, but opiates
were not indicated. T.343. Plaintiff was officially discharged from
the clinic for multiple cancellations and no-shows. T.343.
A September 25, 2009 x-ray of the right shoulder showed mild
arthritic changes. T.314. On September 28, 2009, Plaintiff saw
Dr. Bridgette Wiefling, who noted that Plaintiff had not followed
up with orthopedics for her knee pain, which was holding up her
being seen by physical and occupational therapists. Plaintiff
reported that she was sleeping “ok” using amitriptiline. She
reported that her low back and knee pain limited her activities,
-5-
and at its worse, was a 10 out of 10 in intensity. On examination,
Plaintiff had crepitus (crackling) in the right knee, along with an
increase in pain with flexion. There was positive joint line
tenderness, but no edema. Dr. Wiefling again referred Plaintiff to
orthopedics. T.311-12.
An
October
29,
2009
x-ray
of
the
right
knee
showed
degenerative joint disease with mild interval progression since
2008. There was predominantly small to moderate tricompartmental
spur formation but no visible substantial joint effusion or opaque
intra-articular body. T.313.
Drs.
Kenneth
DeHaven
and
Christopher
English
of
Strong
Hospital examined Plaintiff’s right knee on October 29, 2009. Based
on their clinical findings, and review of her October x-ray and
August 2009 MRI results, they determined that that Plaintiff’s pain
was likely due to degenerative changes within the right knee,
including osteoarthritis, as well as significant medial meniscus
tear. Dr. DeHaven informed Plaintiff that she needed to lower her
body weight to reduce the forces through her joint. Plaintiff was
referred to sports medicine to evaluate her for a right knee
arthroplasty, and was told to obtain standing knee x-rays to
evaluate the joint spaces. Plaintiff was to continue with her home
physical therapy and work on reducing her weight. T.341-42.
On December 4, 2009, Dr. Warren Hammert of Strong Hospital saw
Plaintiff for follow-up of her bilateral CTS releases. Plaintiff
-6-
complained of mild numbness in all fingers and of pain along the
volar side of her left wrist. On examination, Plaintiff had full
wrist
range
of
motion
and
full
finger
range
of
motion.
Her
sensation was intact to light touch and she had good capillary
refill. On the right hand side, Plaintiff had a negative carpal
tunnel compression test and a negative Tinel’s sign at the wrist
and elbow. Plaintiff stated that she had a positive Phalen’s
maneuver in the ring and small fingers, but Dr. Hammert was unable
to
detect
any
subluxing
of
the
ulnar
nerve
over
the
medial
epicondyle. Plaintiff had full range of motion of the wrist and
fingers. Dr. Hammert advised Plaintiff to splint her right wrist
and elbow, both in extension, while sleeping. He also suggested
strengthening and range of motion exercises bilaterally. T.340.
That
same
day,
Plaintiff
was
evaluated
by
the
hand
rehabilitation department and reported pain, at its worse, of 6 out
of 10 in intensity. Plaintiff was to undergo rehabilitation and
wear removable wrist splints. T.336, 338.
On December 8, 2009, Nurse Practitioner Sophie Dickinson
(“Nurse Dickinson”) of Jordan Health noted that Plaintiff had joint
pain and decreased range of motion in the right knee without
erythema or effusion. The rest of the physical examination was
normal. T.349.
At the request of the Commissioner, Plaintiff underwent a
consultative orthopedic examination by Dr. Sandra Boehlert, on
-7-
December 16, 2009. See T.411-13. Plaintiff reported to Dr. Boehlert
that all her CTS symptoms had resolved after undergoing surgery in
2009,
but
had
recently
recurred.
Plaintiff
claimed
that
she
experienced numbness bilaterally when engaging in daily activities,
including while holding things. According to Plaintiff, she used a
“Wii game” joystick “a lot” and had pain and tinging with using the
joystick. Plaintiff also alleged nighttime tingling that was worse
on the right side. She sometimes used a sling, which helped.
Plaintiff claimed that her surgeon advised she may need a second
surgery for her right hand. In addition, Plaintiff complained of
knee pain, greater in the right than left, for the previous three
years when bending and twisting; and low back pain for the previous
two years.
Plaintiff reported to Dr. Boehlert that she lived with her
fiancé, who did all the cleaning, laundry, and shopping. Plaintiff
could cook, but could not stand for a long time. She was able to
take care of children occasionally during the week. She could
shower, bathe, and dress regularly, and she watched television,
listened to the radio, and read. She walked 10 to 15 minutes twice
a
day
to
the
library
and
back
for
therapy.
Dr.
Boehlert’s
examination findings and prescribed limitations are discussed in
detail below in the section of this Decision and Order addressing
the ALJ’s residual functional capacity assessment.
-8-
Plaintiff saw Dr. Hammert in follow-up for her CTS releases on
January 15, 2010. T.456. Plaintiff reported that her tingling and
numbness had resolved. Her examination was normal. Plaintiff was to
use anti-inflammatory medications as needed and participate in
activities as tolerated.
In an assessment for employability dated March 12, 2010,
Nurse Dickinson stated that Plaintiff had low back pain and right
knee pain as a result of a meniscus tear. See T.490. According to
Nurse Dickinson, Plaintiff was “very limited” in walking, standing,
sitting, lifting and carrying, pushing, pulling, and bending, and
climbing stairs. Nurse Dickinson stated that there was no evidence
of limitations in seeing, hearing, speaking, using her hands, or
mental functioning. In Nurse Dickinson’s opinion, Plaintiff was
unable to work because she could not stand for long periods of time
and had bending limitations. Nurse Dickinson recommended that
Plaintiff attend physical therapy. T.491.
Plaintiff saw Nurse Dickinson just a few days later, on
March
22,
undergoing
2010,
knee
and
reported
surgery
and
that
had
she
limited
was
doing
pain.
See
well
after
T.440-42.
Plaintiff ambulated independently without difficulty and her knee,
which displayed minimal swelling, appeared to be doing well.
Plaintiff denied fatigue. Plaintiff returned to Nurse Dickinson on
April 15, 2010, see T.442-43, and denied any fatigue or new motor
or sensory loss, and also denied experiencing any pain in the
-9-
previous week. T.443. On examination, Plaintiff complained of left
hip pain with range of motion, but could ambulate and change
positions without difficulty.
Dr. Hammert saw Plaintiff on April 23, 2010 on follow-up for
her CTS release. See T.454. Plaintiff was overall doing “very well”
though she reported some tingling and numbness in her hands, and
some triggering in her right thumb. An examination was normal,
except for the right-side triggering. The tingling and numbness was
likely a result of her using crutches after her knee surgery.
Dr.
Hammert
treated
Plaintiff’s
right
thumb
with
a
steroid
injection.
Plaintiff saw Dr. Hammert on June 3, 2010, T.451, and reported
that she experienced no pain and her only symptom was a clicking in
her left thumb. On examination, Plaintiff had full finger flexion
and extension of her fingers, and could oppose her thumb to her
small finger. She had good capillary refill and sensation was
intact
to
light
touch.
Dr.
Hammert
did
not
find
any
active
triggering with flexion of the thumb, an improvement over the
previous appointment. Dr. Hammert advised Plaintiff to watch her
symptoms for another three to four months.
On
June
7,
2010,
Plaintiff
saw
Dr.
Baker
Mitchell
at
University Pain, after having been previously discharged from the
clinic for multiple no-shows. T.469-70. Plaintiff reported that she
took Lyrica and Tramadol for pain, but complained that these
-10-
medications
provided
no
relief
and
made
her
very
tired.
She
reported receiving multiple injections by other doctors for her
shoulder,
right
thumb,
knee,
and
ankles,
with
some
benefit.
Plaintiff had been advised to do aqua therapy, but did not remember
ever doing it. Plaintiff admitted that she was able to perform all
of her activities of daily living, albeit slowly. She reported
taking care of her 16-month-old grandson. On examination, Plaintiff
could easily and independently stand from her seated position. She
had normal gait with upright posture, and was able to easily walk
about the room. Plaintiff had some difficulty walking on her toes
and ankles, secondary to discomfort in her feet. Plaintiff had full
lumbar range
palpation
of
over
motion,
bilateral
although
shoulders
she did
and
have
much
of
tenderness to
the
muscular
structure of the back. Plaintiff complained of pain on hip range of
motion on the right. Reflexes were 1+ bilaterally, toes were
downgoing,
and
lower
extremity
strength
was
full.
A
mental
examination was normal. Dr. Mitchell assessed diffuse myofascial
pain,
obesity,
psychoaffective
multiple
disorder
joint
arthralgias,
modulating
her
and
pain
an
underlying
perceptions.
Dr. Mitchell opined that Plaintiff should decrease her Lyrica
dosage and undergo aquatic therapy.
Plaintiff attended multiple aquatic therapy sessions in June,
July, August, and September 2010. T.484-87. Plaintiff tolerated the
sessions well and reported that it was helping her. Tr. 484-87. On
-11-
August 31, 2010, she reported to her physical therapist that she
walked
“a
lot.”
T.486.
Physical
therapy
was
terminated
on
September 7, 2010, because Plaintiff’s progress had plateaued and
she was independent. T.488.
When Dr. Hammert saw Plaintiff on August 10, 2010, Plaintiff
reported
intermittent
triggering.
See
T.449.
On
examination,
Plaintiff could flex all fingers and oppose her thumb to her small
finger. She had some tenderness to palpation over the first dorsal
compartment and a positive Finkelstein maneuver on the left side.
On the right thumb, Plaintiff had no active triggering, but did
have mild tenderness in the A1 pulley region. Dr. Hammert advised
her to see a physical therapist for a splint and receive steroid
injections if symptoms continued.
On July 22, 2010; July, 30, 2010; and August 27, 2010,
Plaintiff saw Dr. Basler and reviewed coping strategies for dealing
emotionally with her physical pain. T.462, 463, 464.
Plaintiff saw Nurse Pennella-Vaughan at University Pain Clinic
on September 2, 2010, and rated her pain over the previous week as
8 out of 10 on a scale of 1 to 10 in intensity. T.467. Plaintiff
had been working on losing weight, and had lost eight pounds.
Plaintiff acknowledged that she continued to manage self-care and
household
tasks,
and
provided
childcare
for
her
19-month-old
grandson. Although she had to stop frequently due to pain, she did
“most” activities. Hot showers and baths helped with her pain.
-12-
Despite recommendations from her June 2010 visit with Dr. Mitchell,
Plaintiff had not seen her primary care provider so she had never
decreased her dosage of Lyrica. Plaintiff complained that her sleep
was fitful because her grandson was at her home until midnight. She
admitted
that
behavioral
therapy
was
helpful.
Plaintiff
also
alleged that she wanted to come off “almost all medicine” since she
did not receive relief, but, as Nurse Pennella-Vaughan noted,
Plaintiff’s medication dosage and frequency reports varied. T.468.
On examination, Plaintiff had 4+/5 strength in all extremities,
crepitus and tenderness in the left knee, and tenderness at the
trapezius, but otherwise had a normal examination. Plaintiff was
again instructed to decrease her Lyrica dosage and continue aquatic
therapy.
B.
Evidence Submitted to the Appeals Council After The ALJ’s
Decision
Records from Dr. Wiefling, Plaintiff’s primary care physician,
were submitted for the years dated 2009 to 2011. Dr. Wiefling
diagnosed Plaintiff with chronic pain, hyperlipidemia, subacromial
bursitis,
knee pain,
fibromyalgia,
obesity,
and
hypertension.
Plaintiff underwent surgery to repair a meniscus tear in the right
knee in March 2010. T.492. Plaintiff had been referred to bariatric
surgery and was awaiting approval.
C. Testimonial and Vocational Evidence
Plaintiff, who was 33-years-old on her alleged onset date and
37-years-old on the date of the ALJ’s decision, had training as a
-13-
certified nurse’s aid. She had last worked as a home health aide,
which required her to lift up to 300 pounds. T.49. At the time of
the hearing, Plaintiff received a stipend from the Department of
Social Services for watching her grandson. She had earned $11,886
in 2009 from self-employment, which included taking care of her
grandson. She was paid $466.20 in January 2010, $1412.40 in April
2010, $466.20 in May 2010, $488.40 in June and July 2010, and
$462.00 in August 2010 for this same activity. T.300-09. Plaintiff
testified that her boyfriend helped take care of her grandson by
cooking the child’s meals and changing his diapers, and that her
boyfriend also did everything around the house, other than cooking.
T.83. She could prepare very light meals. T.84-85. Plaintiff
testified that her feet hurt all the time, and that she used a cane
to ambulate, and that her medication caused excessive somnolence.
T.91.
A vocational expert did not testify at the hearing.
IV.
Eligibility Standards for DIB and SSI
In order to be entitled to DIB and eligible for SSI payments,
a claimant must demonstrate that she is unable to engage in any
substantial
gainful
activity
due
to
a
medically
determinable
physical or mental impairment, or combination of impairments, which
has lasted, or can be expected to last, for a continuous period of
at least 12 months. 42 U.S.C. §§ 423(d)(l)(A), 1382c(a)(3)(A). A
disabling
physical
or
mental
impairment
-14-
is
defined
as
“an
impairment
that
results
from
anatomical,
physiological,
or
psychological abnormalities which are demonstrable by medically
acceptable
clinical
and
laboratory
diagnostic
techniques.”
42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). DIB are unavailable unless the
claimant was disabled at a time when she met the insured status
requirements
of
42
U.S.C.
§
423(c),
20
C.F.R.
§§
404.130,
404.315(a). SSI payments may not be issued unless a claimant meets
income and resource limitations. 42 U.S.C. §§ 1382a, 1382b.
The
five-step
sequential
evaluation
for
adjudicating
disability claims is set forth in 20 C.F.R. §§ 404.1520 and
416.920. The claimant bears the burden of proof at steps one
through four, at which point there is a limited burden-shift to the
Commissioner
to
demonstrate
that
there
is
other
work
in
the
national economy that the claimant can perform. Curry v. Apfel, 209
F.3d 117, 122-23 (2d Cir. 2000); Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982).
V.
The ALJ’s Decision
At
step
babysitting
one,
showed
the
that
ALJ
she
concluded
was
not
that
while
entirely
Plaintiff’s
precluded
from
performing basic work activities, it did not rise to the level of
substantial gainful activity. T.26-27. At step two, the ALJ found
that Plaintiff has the following severe impairments: bilateral CTS,
degenerative disc disease, degenerative joint disease, obesity, and
fibromyalgia. T.27. After determining that none of her impairments,
-15-
alone or in combination, satisfied the criteria of the Listings,
the ALJ found that she retained the RFC for sedentary work. In
other words, Plaintiff could occasionally lift and/or carry up to
10 pounds; frequently lift and/or carry less than 10 pounds; stand
and/or walk two hours in an eight-hour workday; and sit about six
hours in an eight-hour work day. See 20 C.F.R. §§ 404.1567(a),
416.967(a); Social Security Ruling (“SSR”) 83-10. Plaintiff also
could push and/or pull up to 10 pounds; occasionally climb ramps
and/or stairs, balance, stoop, kneel, crouch, and crawl; and less
than
occasionally
climb
ladders,
ropes,
and
scaffolds.
T.29.
Finally, Plaintiff frequently could handle and finger objects with
both hands. T.29. [credibility]
The ALJ found that Plaintiff was unable to perform her past
relevant work as a certified nurse’s assistant, because this job
required more than sedentary exertion. T.32. Plaintiff was a
“younger individual” on her alleged disability onset date; had a
limited education; and was able to communicate in English. Id.
Considering her age, education, work experience, and RFC, the ALJ
found that there were jobs that exist in significant numbers in the
national economy that she can perform. Id. The ALJ further found
that Plaintiff’s additional limitations had little to no effect on
the occupational bases of unskilled, sedentary work, since most
sedentary jobs do not require more than occasional climbing of
ramps or stairs, for instance. Therefore, the ALJ found, Plaintiff
-16-
had not been under a disability from April 1, 2008, through
January 14, 2011, the date of the decision. T.33.
VI.
Defendant’s Rule 12(c) Motion for Judgment on the Pleadings
A.
General Legal Principles
Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”) provides
that “[a]fter the pleadings are closed . . . a party may move for
judgment on the pleadings.” The standard applied to a Rule 12(c)
motion is the same as that applied to a Rule 12(b)(6) motion. Bank
of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir.
2010). To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter . . . to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). The court must
accept all well-pleaded factual allegations in the complaint as
true and draw all reasonable inferences in favor of the non-moving
party. Id. at 679; see also Miller v. Wolpoff & Abramson, L.L.P.,
321 F.3d 292, 300 (2d Cir. 2003).
B.
Unopposed Rule 12(c) Motions
“‘Where . . . the pleadings are themselves sufficient to
withstand dismissal, a failure to respond to a [Rule] 12(c) motion
cannot
constitute
“default”
justifying
dismissal
of
the
complaint.’” McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000)
(quoting Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir. 1983)).
Although the non-moving party’s failure to respond “may allow the
-17-
district court to accept the moving party’s factual assertions as
true, the moving party must still establish that the undisputed
facts entitle [her] to a judgment as a matter of law.” Vermont
Teddy Bear Co., Inc. v. 1–800 Beargram Co., 373 F.3d 241, 246 (2d
Cir.
2004)
(holding,
(internal
in the
citations
context of
and
quotation
an unopposed
marks
motion
for
omitted;
summary
judgment, that courts must review the record and determine whether
the moving party has established its entitlement to judgment as a
matter of law); see also Martell v. Astrue, 09 CIV. 1701 NRB, 2010
WL 4159383, at *2 n. 4 (S.D.N.Y. Oct. 20, 2010) (noting similarity
between unopposed motion for summary judgment and unopposed motion
for judgment on the pleadings in Social Security context, where
there is a full record of the underlying administrative decision).
Accordingly, the Court has reviewed the record and tested the legal
sufficiency of Plaintiff’s benefits claim.
Furthermore, the Court is mindful of the fact that Plaintiff
is proceeding pro se. Thus, it has construed her papers “liberally”
and
interpreted
them
to
raise
“the
strongest
arguments
they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)
(citation omitted); see also, e.g., Lynn v. Commissioner of Soc.
Sec.,
NO. 11-CV-917 CBA, 2013 WL 1334030, at *10 (E.D.N.Y.
Mar. 30, 2013) (applying Burgos in context of unopposed motion for
judgment on the pleadings in a Social Security appeal).
-18-
VI.
Discussion
A.
Standard
Decision
Under
the
of
Review
Social
Applicable
Security
Act,
to
the
the Commissioner’s
“findings
of
the
Commissioner as to any fact, if supported by substantial evidence,
shall
be
conclusive.”
42
U.S.C.
§
405(g).
In
reviewing
the
Commissioner’s decision, a court will set aside the “decision only
where
it
is
based
upon
legal
error
or
is
not
supported
by
substantial evidence.” Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.
1998).
Substantial
evidence
has
been
defined
“more
than
a
scintilla[,]” that is, “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). In reviewing the ALJ’s decision
in light of the record, the district court does not “substitute its
own judgment for that of the [Commissioner], even if it might
justifiably have reached a different result upon a de novo review.”
Jones v. Sullivan, 949 F.2d 57 (2d Cir. 1991).
B.
The RFC Assessment Is Supported By Substantial Evidence
And Is Not Legally Erroneous.
1.
General Legal Principles
The ALJ must consider the totality of the relevant medical and
other evidence to assess a claimant’s RFC, that is, her ability to
meet the physical, mental, sensory, and other requirements of work.
20 C.F.R. §§ 404.1545(a)(3)-(4), 416.945(a)(3)-(4); SSR 96–8P, 1996
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WL 374184 (S.S.A. July 2, 1996). All of the claimant’s impairments,
including those that are non-severe, factor into the analysis.
20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). When evaluating a
claimant’s assertions of pain and other symptoms, the ALJ first
determines whether there is an underlying medically determinable
physical or mental impairment that could reasonably be expected to
produce the pain or other symptoms. Only “acceptable medical
sources” as defined by the Social Security regulations can provide
evidence
to
establish
a
medically
determinable
impairment.
20 C.F.R. §§ 404.1513(a), 416.913(a).
Given the presence of a medically determinable impairment, the
ALJ then considers the extent to which the claimant’s symptoms are
consistent with the objective medical evidence and other evidence.
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); 20 C.F.R.
§§ 404.1529(a), 416.929(a); SSR 96–4P, 1996 WL 374187 (S.S.A.
July 2, 1996). In making this determination, the ALJ considers all
of the evidence in case record, including statements or reports
from the claimant and her treating or nontreating sources about the
claimant’s medical history, diagnosis, prescribed treatment, daily
activities, and efforts to work, and any other evidence showing how
the claimant’s impairments and any related symptoms affect her
ability to work. 20 C.F.R. §§ 404.1529(a), 416.929(a). Although the
ALJ is required to take the claimant’s reports of pain and other
limitations into account, such statements alone are insufficient to
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establish disability. See id.; Marcus v. Califano, 615 F.2d 23, 27
(2d Cir. 1979) (“The ALJ has discretion to evaluate the credibility
of a claimant and to arrive at an independent judgment, in light of
medical findings and other evidence, regarding the true extent of
the pain alleged by the claimant.”).
2.
Plaintiff’s Alleged
Listing-Level
Mental
Impairment
Is
Not
Although Plaintiff apparently did not assert depression as a
basis
for
finding
disability,
the
ALJ
analyzed
whether
her
depressive symptoms met or medically equaled a listed impairment,
presumably because there were treating notes indicating a diagnosis
of depression. For instance, on January 2, 2009, Plaintiff saw
Dr.
Stephen
Basler
on
a
referral
from
Strong
Pain
Center,
complaining of a variety of depressive symptoms since 2002. T.435.
She had not had any previous psychiatric treatment. Although her
affect was flat, depressed, and dysphoric, it increased and became
appropriate to content as Plaintiff became more engaged in the
evaluation.
T.435.
Dr.
Basler’s
diagnosis
was
pain
disorder
associated with both psychological factors and a general medical
condition, as well as a single major depressive episode of moderate
severity; he recommended she undergo therapy. T.436. The ALJ noted
that Plaintiff did not follow through with her mental health
providers’ treatment recommendations, however. T.28.
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“The
‘mere
presence
of
a
disease
or
impairment,
or
establishing that a person has been diagnosed or treated for a
disease or
impairment’
is
not,
itself,
sufficient to
deem a
condition severe. McConnell v. Astrue, No. 6:03-CV-0521, 2008 WL
833968, at *2 (N.D.N.Y. Mar. 27, 2008) (quoting Coleman v. Shalala,
895 F. Supp. 50, 53 (S.D.N.Y. 1995)). Although the ALJ did not find
“depression” to be among Plaintiff’s “severe” impairments, he
nevertheless evaluated, presumably against Listing 12.04 (Affective
Disorders), to determine whether it met or medically equaled a
listed mental impairment. The ALJ determined, after reviewing the
record,
that
Plaintiff
did
not
meet
or
medically
equal
the
“Paragraph A” criteria. The ALJ found it significant that her only
persistent symptom was a depressed mood. Thus, even assuming the
presence of her other alleged symptoms, Plaintiff only had two of
the
“Paragraph
anhedonia
and
A”
criteria
sleep
for
depressive
disturbance,
see
20
syndrome,
C.F.R.
namely,
Part
404,
Subpart P, App. 1, §§ 12.04(1)(A)(a), (c). At least four of the
Paragraph A criteria are required to be present, however, for a
depressive syndrome to qualify. See id., §§ 12.04(1). Since the
Paragraph A criteria were not fulfilled, the ALJ was not required
to examine the Paragraph B criteria. See id. (“The required level
of
severity
for
these
[affective]
disorders
is met
when the
requirements in both A and B are satisfied. . . .”). Nonetheless,
the ALJ analyzed the Paragraph B criteria in relation to the record
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and reasonably found that Plaintiff does not have a medically
determinable
mental
impairment
that
caused
more
than
minimal
limitations in her ability to perform work-related activities.
T.28.
3.
The
The RFC Assessment
Evidence.
opinion
of
a
Is
consultative
Supported
By
Substantial
examiner
may
constitute
substantial evidence in support of an ALJ’s decision. See Diaz v.
Shalala, 59 F.3d 307, 315 (2d Cir. 1995);
Monquer v. Heckler, 722
F.2d 1033, 1039 (2d Cir. 1983) (citations omitted). Examination
findings from consultative examiner Dr. Boehlert, to whose opinion
the ALJ accorded some weight, substantially supported his RFC
finding.
T.31-32.
In
fact,
as
discussed
further
below,
Dr. Boehlert’s opinion as to Plaintiff’s limitations was less
restrictive than the ALJ’s.
Upon examination, Dr. Boehlert noted that Plaintiff had a
normal
gait
and
could
walk
on
her
heels
and
toes
without
difficulty. Squatting was limited to 50%, due to Plaintiff’s back
and knee pain. Plaintiff used no assistive devices and needed no
help changing her clothes or getting on and off the examination
table. She could rise from a chair without difficulty. Dr. Boehlert
observed that Plaintiff’s hand and finger dexterity were intact,
and she had full grip strength in both hands. Tinel’s sign was
positive in the left wrist only. There was no loss of sensation or
reflexes. Plaintiff had no loss of motion of her lumbar or thoracic
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spines, and straight-leg raising test was negative. Full range of
motion was evident in Plaintiff’s hips and ankles, although she had
limited flexion of both knees to 130 degrees due to adipose tissue
atrophy. Dr. Boehlert observed trigger points in Plaintiff’s chest
wall bilaterally; and in her shoulders, elbows, forearms, wrists,
and digits bilaterally.
Dr. Boehlert opined that Plaintiff had “mild” limitation in
her ability to perform repetitive fine motor activity with both
hands and “mild” limitation in her ability to perform repetitive
exertion
with
both
hands.
Dr.
Boehlert
imposed
no
sitting
restrictions on Plaintiff and only “mild” limitations on heavy
exertion in
evidence
a
more
standing
favorably
position.
to
The ALJ
Plaintiff
viewed
and
the
medical
assigned
greater
restrictions on lifting. Thus, the ALJ’s RFC assessment in fact
contemplated
greater
restrictions
than
those
found
by
the
consultative physician.
The Court notes that the ALJ gave “little weight” to the state
agency disability analyst’s assessment on the basis that it is “an
adjudicatory document and does not constitute opinion evidence
within
the
ultimately
meaning
favored
of
the
regulations.”
Plaintiff’s
position
T.32.
because
Again,
the
this
analyst
assigned no postural limitations, whereas the ALJ did find that
Plaintiff had some limitations in this regard. Thus, Plaintiff has
not demonstrated that she was prejudiced by the weight afforded to
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Dr. Boehlert’s or the disability analyst’s opinions. See Shinseki
v. Sanders, 556 U.S. 396, 129 S. Ct. 1696, 1706 (2009) (burden of
showing harmful error “falls on the party attacking the agency’s
determination”) (citation omitted)).
4.
The ALJ Did Not Err In Weighing Opinion Evidence
From A Treating Source Who Is Not An Acceptable
Medical Source.
A potential argument to be made by Plaintiff is that the ALJ
failed
to
accord
sufficient
weight
to
treating
source
Nurse
Dickinson’s March 2010 restrictive opinion, T.490-91, in assessing
Plaintiff’s RFC. Nurse Dickinson stated that Plaintiff is “very
limited” in walking, standing, sitting, lifting, carrying, pushing,
pulling and climbing; had no evidence of any mental limitations;
and had no evidence that she was limited in using her hands. Id.
The Social Security Regulations provide that “controlling weight”
will be giving to a “treating source’s opinion” regarding the
nature and severity of the plaintiff’s impairments. See 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2). SSR 06-3p states that controlling
weight may be given to “acceptable medical sources” only. As the
ALJ correctly noted, Nurse Dickinson, as a nurse practitioner, is
not an “acceptable medical source”, and her opinion need not be
given
controlling
weight.
See
20
C.F.R.
§§
404.1513(d)(1),
416.913(d)(1); Mongeur v. Heckler, 722 F.2d at 1039.
In
addition,
as
the
ALJ
explained,
Nurse
Dickinson’s
restrictive opinion was undermined by Plaintiff’s self-reported
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ability to babysit. T.31. Nurse Dickinson’s opinion also was
somewhat inconsistent with her own treatment notes: In December
2009, she found that, apart from decreased range of motion in the
right knee, Plaintiff’s physical examination was normal. T.349.
Three months later, in March 2010, Nurse Dickinson found that
Plaintiff
was
doing
well
after
knee
surgery
could
ambulate
independently without assistance. T.441. Only 10 days prior to that
treatment note, Nurse Dickinson had issued her medical source
statement indicating that Plaintiff was very limited in her ability
to ambulate. Then, in an April 2010 treatment note, Nurse Dickinson
observed that Plaintiff denied experiencing any pain, and could
ambulate and change positions without difficulty. T.454. When a
medical provider’s opinion is inconsistent with even her own
treatment notes, the ALJ may properly discount that opinion.
See
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (Although the
treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician, the opinion of the
treating physician is not afforded controlling weight where that
physician
issued opinions
inconsistent
with
other
substantial
evidence in the record, such as the opinions of other medical
experts).
5.
The Assessment Of Plaintiff’s Credibility Is Not
Erroneous Or Unsupported By Substantial Evidence.
Another area where Plaintiff could level a challenge is the
ALJ’s assessment of her credibility. However, the Court agrees with
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Defendant that the ALJ did not commit legal error in declining to
fully accept her subjective complaints of pain and her description
of her own limitations, and that the credibility assessment is
supported
by
applicable
substantial
regulations
evidence.
and
agency
In
accordance
ruling,
the
with
ALJ
the
clearly
considered Plaintiff’s subjective complaints and explained why he
found her statements to be not fully credible. See T.29-31; 20
C.F.R. §§ 404.1545(a)(3); 416.945(a)(3); 404.1529(c); 416.929(c)
SSR 96-8p. The ALJ properly considered the objective medical
evidence and the factors set out in 20 C.F.R. §§ 404.1529(c) and
416.929(c),
including
Plaintiff’s
inconsistent
statements,
and
example,
as
discussed
above,
daily
the
treatment,
activities.
ALJ
noted
medication,
T.57-58.
that
For
Plaintiff’s
allegations of disabling symptoms were at odds with, e.g., Nurse
Dickinson’s treatment notes and Dr. Boehlert’s consultative medical
examination. T.29-31. While Plaintiff testified that her boyfriend
did
everything,
Plaintiff
initially
reported
on
a
benefits
application form that she did the household shopping. T.236, 244,
255. She claimed that she needed her boyfriend’s help in taking
care of her grandson, but reported to her treating physicians that
she took care of others, including her teenage daughter and sick
stepmother. T.434. Plaintiff admitted to Dr. Mitchell that she was
able to perform all of her activities of daily living, including
taking care of her grandson, T.470, and told Nurse Pennella-Vaughan
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that, with interruptions, she could do most activities, including
self-care and household tasks, and caring for her grandson. T.467.
In addition, although Plaintiff reported at various times that
her pain was 6 to 8 out of 10 in intensity, she was discharged from
the pain clinic due to multiple no-shows and cancellations, and she
waited
to
undergo
Pennella-Vaughan
orthopedic
found
that
follow-up.
Plaintiff
T.31,
gave
311.
varying
Nurse
reports
regarding her medication dosage and how frequently she took her
medication, and even asked to be weaned off of her medication.
T.31, 468. Despite her hand complaints and CTS, Plaintiff reported
to Dr. Boehlert that she used a Wii game stick “a lot.” T.411. She
also reported to her physical therapists that did “a lot” of
walking. T.486.
“If the [Commissioner]’s findings are supported by substantial
evidence, the court must uphold the ALJ’s decision to discount a
claimant’s subjective complaints of pain.” Aponte v. Secretary,
Dep’t Health and Human Serv., 728 F.2d 588, 591 (2d Cir. 1984)
(internal and other citations omitted). After reviewing the record
as a whole, the Court cannot find that substantial evidence is
lacking and therefore it must uphold the ALJ’s adverse credibility
assessment.
VII. Conclusion
For
the
reasons
discussed
above,
Defendant’s
motion
for
judgment on the pleadings is granted, and the Commissioner’s
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decision denying benefits is affirmed. Plaintiff’s complaint is
dismissed with prejudice. The Clerk of the Court is requested to
close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
March 31, 2014
Rochester, New York
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