Ridgeway v. Astrue
Filing
11
-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 9/25/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
KIMMY EVET RIDGEWAY,
DECISION
and ORDER
Plaintiff,
12-CV-6548T
-vs-
CAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
________________________________________
INTRODUCTION
Plaintiff,
Kimmy
Evet
Ridgeway
("Ridgeway"
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
Disability
("Commissioner")
denying
her
application
for
Insurance Benefits ("DIB") for the period of time from
November 1, 2004 through January 21, 2009. 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 April 26, 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 May 2, 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 January 21, 2009, Plaintiff filed an application for DIB
under Title II, § 216(i) and § 223 of the Social Security Act,
alleging a disability since November 1, 2004 arising from morbid
obesity, arthritis, knee and back problems and high blood pressure.
T.203.1 Plaintiff's claim was denied on April 27, 2009.
Plaintiff's
request,
an
administrative
hearing
was
T.81-85. At
conducted
on
September 13, 2010 before an Administrative Law Judge ("ALJ"). T.1744.
Ridgeway
counsel.
testified
at
the
hearing
and
was
represented
by
In addition, a vocational expert testified.
On October 15, 2010, the ALJ issued a Decision finding that
Ridgeway was disabled beginning on January 21, 2009 but not from the
1
Citations to “T.__” refer to pages from the administrative transcript.
2
alleged onset date of November 1, 2004. T.52-67. On August 10, 2012,
the Appeals Council denied Plaintiff's request for review, making the
ALJ's
Decision
the
final
decision
of
the
Commissioner.
T.1-3.
Plaintiff filed this action on October 11, 2012.
BACKGROUND
Plaintiff
is
a
50
year
old
high
school
graduate
with
an
associate’s degree in. T.21, 290. She worked as a home health care
aide from 1997 through October 31, 2004 at which time, Ridgeway
claims, her employer let her go because she could no longer perform
the necessary work. T.21, 22, 204.
Ridgeway was diagnosed with morbid obesity and hypertension and
represented that she needed help with household chores because of
knee and feet problems as well as a lack of endurance. T.217. In her
disability application, she claimed she attended church services four
times each week and attended computer classes twice a week. T.219.
She noted that she could walk about 20 feet before needing to rest.
T.220.
Prior to working as a home health aide, Ridgeway worked as a tax
preparer in 1989 and cared for her grandson from September 2002 to
2003. T.225. As part of her responsibilities, she would lift a car
seat and the child, which weighed approximately 25 pounds. T.229.
3
A. Medical History During the Relevant Period
Plaintiff was treated on June 15, 2004, by Dr. Gregory Denysenko
at Wilson Medical Center for a sinus infection with antibiotics. At
this
appointment,
Plaintiff
was
also
advised
to
control
her
hypertension. T.316. Ridgeway was first treated by her primary care
physician, Dr. Farokh Foroozesh on March 29, 2005, for "increasing
abdominal girth" which she was experiencing since December.
T.317.
Dr. Foroozesh noted that Plaintiff's weight was over 350 pounds.
scheduled
Plaintiff
for
ultrasounds
and
noted
that
she
He
had
uncontrolled hypertension. T.317. In a document dated May 6, 2005,
Dr. Foroozesh indicated that Plaintiff was "not able to work at this
time." T.465.
On June 13, 2005, Dr. Foroozesh noted that Ridgeway did not go
for her prescribed abdominal CT but that she reported she felt much
better. T.319. She was prescribed medication to control hypertension
and advised to lose weight. T.319.
Plaintiff was treated on December 7, 2005, by Dr.
Foroozesh for
obesity, hypertension and elevated bilirubin. T.315. Dr. Foroozesh
noted that Plaintiff's hypertension was "nicely controlled" and that
Plaintiff
was
trying
to
lose
weight
with
diet
and
recommended a follow up visit in four months. T.315.
exercise.
He
On May 1, 2006,
Dr. Foroozesh found that her hypertension was controlled but that her
weight prevented her from being able to walk more than half a block
4
without resting. Plaintiff used Lift Line to travel to appointments.
T.323.
On January 17, 2007, Ridgeway was treated by Dr. Foroozesh for
earaches that had been occurring for months. He also noted that she
suffered from obesity and hypertension.
According to Dr. Foroozesh,
Plaintiff’s hypertension was controlled. T.325.
On
June
Plaintiff's
15,
2007,
condition
Dr.
Foroozesh's
remained
the
medical
same.
notes
T.327.
He
show
that
encouraged
Ridgeway to see a dietician to reduce her weight. T.327.
In December of 2007, Dr. Foroozesh indicated that Plaintiff was
limited in walking, standing, lifting, carrying, pushing and pulling.
T.469-470. He noted Plaintiff was able to use public transportation
and that she had limited range of motion due to obesity. T.469. Also
in December, 2007, Dr. Foroozesh completed a New York State Temporary
Disability
form
which
indicated
that
Plaintiff
was
"moderately
limited" in walking, standing, lifting, carrying, pushing, pulling or
climbing stairs. T.477. He saw no evidence of any limitation for
sitting,
seeing,
evidence
at
all
hearing,
of
speaking
limitations
in
or
using
mental
her
hands
functioning.
nor
T.477.
any
He
specifically found that Plaintiff was "able to do light work." T.478.
Plaintiff was treated by a dermatologist, Dr. Dennis Bender, on
May 22, 2008, for evaluation of hyperpigmentation and dryness of her
5
hands as well as shortening of the hair on the left side of her head.
T.314. Dr. Bender noted that Plaintiff had not recently seen her
primary
care
provider.
He
referred
her
to
see
her
primary
care
physician and recommended Lac-Hydrin cream for her hands and wrists.
T.314.
Ridgeway presented to Strong Memorial Hospital, Strong Health
Center with complaints of hypertension on September 2, 2008. T.267.
Plaintiff explained that she had a history of hypertension for the
last 5 to 8 years but she needed to transfer from Wilson Health
Center because she had difficulty with transportation.
The treating
physician noted that hypertension was poorly controlled possibly from
noncompliance with medications and diet. T.267. Plaintiff was advised
to lose weight, maintain a low sodium diet and take her medications
regularly.
Upon follow up two weeks later, the Strong Health records
showed that Plaintiff's hypertension was higher than her first visit.
T. 265. She
failed to fill the prescription for Norvasc that was
given to her at the last visit. Again, Plaintiff was advised of the
importance
to
lose
weight,
take
the
prescription
medication
and
maintain a low sodium diet. T.265. She was also advised to see a
dietician to help her lose weight.
On October 2, 2008, Plaintiff was again seen at Strong Health
for follow up care of hypertension. T.263. Plaintiff stated that she
forgot to take her medication.
She was to be taking Triamterene and
6
Amlodipine for blood pressure. The medical records again report that
Plaintiff's
hypertension
was
"very
poorly
controlled
from
noncompliance with medications." T.263 Plaintiff was instructed to
take Norvasc daily and to decrease the Aldactone to half a tablet
daily. Moreover, Dr. Azalea Noronha warned Plaintiff that if she did
not take her medications, she would ask Plaintiff to get another
physician. T.263.
Two
weeks
later,
Dr.
Noronha
reported
that
Plaintiff's
hypertension was well controlled and she completed a form to have
Plaintiff obtain New York State Office of Vocational and Educational
Services or Individuals with Disabilities VESID training. T.262.
On October 15, 2008, Dr. Noronha completed a New York State
Office of Temporary Disability form indicating that Plaintiff was
very limited in her ability to walk, stand, sit, lift, carry, push,
pull,
bend
and
use
her
hands.
T.473.
However,
Plaintiff
had
no
limitations in her ability to understand, remember and carry out
instructions as well as maintain attention, concentration or make
simple decisions. Dr. Noronha assessed that Plaintiff was unable to
walk or stand for long periods of time or lift. T.474.
One month later on November 19, 2008, Dr. Noronha reported that
Plaintiff's hypertension was not optimally controlled as Plaintiff
was not compliant with her medications. T.261. Similarly, in January
of 2009, Dr. Noronha noted that Plaintiff's noncompliance was causing
7
poor control of hypertension.
She again emphasized to Ridgeway the
need to take her medications daily. T.260.
After
months
of
missed
appointments
with
VESID,
Plaintiff's
request to reopen her case was granted. T.299. On October 14, 2008,
VESID records noted that Plaintiff had a history of obesity and
hypertension. T.284. In addition, the report noted that Plaintiff was
physically
limited
in
her
ability
to
walk
long
distances,
stand
prolonged periods of time and do any prolonged lifting. T.285.
VESID
report
dated
December
29,
2008,
noted
that
Plaintiff
A
had
significant medical issues which impact her mobility. VESID agreed
that Plaintiff could work part time and agreed with Plaintiff that
she apply for SSI and SSDI benefits. T.288. VESID recommended that
Plaintiff
receive
Independent
Living
intensive
to
services
assist
with
from
Regional
applying
for
Center
for
benefits
and
maintaining contact with Social Security to complete the requirements
of an application. T.288.
In addition, VESID referred Plaintiff for
a comprehensive psychological evaluation to assess whether she has a
learning disability and also assess her vocational interests. T.290.
A
VESID
Intellectual
Personality
Evaluation
was
prepared
by
Dr. Michael Baer on January 19, 2009. T.280-283. Dr. Baer noted that
Plaintiff presented with obesity, arthritis causing her to use a
cane, a cyst on one foot, ankle problems, arthritis in the knees and
high blood pressure. T.280.
He noted that although Plaintiff was
8
obese, she appeared neat, had appropriate eye contact, normal speech
and
movement
and
a
positive
attitude
with
elevated
mood.
T.280.
Moreover, her thought content and memory appeared to be appropriate.
T.280. A Wechsler Intelligence Test revealed that Plaintiff was below
average in her IQ level, scoring in the 27th percentile for verbal
IQ, 14th percentile for Performance IQ and 19th percentile for Full
Scale IQ. T.281. He noted that Ridgeway's cognitive strengths were
word knowledge and verbal concept formation but non-verbal reasoning
and sequencing were cognitive weaknesses. T.281. In the Wide Range
Achievement
Test,
Plaintiff
scored
strongly
in
math
as
well
as
spelling and sentence comprehension but scored poorly in reading.
T.282. Dr. Baer noted that she had visual and motor problems that may
explain her poor reading comprehension skills. T.282. He found her to
be a "normal acting woman with no major psychological or personality
disorders." T.283. He concluded that Plaintiff would work best in
areas where she can work with and for people. T.283.
Strong Health medical records dated January 7, 2009 indicate
that
Plaintiff
weighed
384
pounds
and
had
hypertension from noncompliance. T.349-350.
poor
control
her
Dr. Noronha emphasized
the need to take medications and reduce her weight. T.350.
9
of
B. Medical History after the Relevant Period
Dr. Noronha completed a form for the Monroe County Department of
Human
Services,
Physical
Assessment
for
Determination
of
Employability on behalf of Ridgeway on February 23, 2009, in which
she limited Ridgeway to being very limited in her ability to walk,
stand and push, pull or bend. T.479-483. Specifically, Dr. Noronha
indicated that Plaintiff could not walk or stand for more than one to
two hours and only lift or carry 10 pounds occasionally. T.481.
However, there were no limitations for Plaintiff's ability to sit,
see, hear, speak or use her hands. T. 481. Dr. Noronha concluded that
Plaintiff could work 20 hours per week with reasonable accommodations
of no prolonged standing, walking or lifting. T.482-83.
On February 24, 2009, Dr. Sarah Warner treated Plaintiff for
dysfunctional
uterine
bleeding
and
endometrial
thickening
since
September 2, 2008. T.375, 381-86, 450-60. Dr. Warner did not limit
Plaintiff's activities and specifically indicated that Plaintiff had
no work or activity restrictions. T.379.
A November 2009 biopsy of
endometrium tissue showed neither hyperplasia nor malignancy. T.464.
Plaintiff was examined by Dr. Harbinder Toor, an independent
medical
examiner,
on
March
17,
2009.
T.387-390.
Dr.
Toor
noted
Plaintiff's lifelong history of obesity as well as her more recent
history of pain in the back and knees causing her to have difficulty
standing,
walking,
sitting,
bending
10
and
lifting.
T.387.
Ridgeway
reported that she was cooking three times per week and doing cleaning
as needed. She would shop once a week and was able to dress herself.
T.388. Plaintiff weighed 378 pounds at the examination. Plaintiff's
cervical
spine
showed
full
flexion,
extension,
lateral
flexion
bilaterally and full rotary movement. Although Plaintiff had painful
movements of the knees, the movements were normal and full. There was
no evidence of subluxations, contractures, ankylosis or thickening.
T.389. There was no abnormality shown in x-rays of the lumbosacral
spine.
T.389.
Dr.
Toor
concluded
that
Plaintiff
had
moderate
limitations for standing, walking and sitting for a long time and
moderate
to
severe
limitations
for
bending,
consultative
examination
heavy
lifting
and
squatting. T.390.
An
Residual
independent
Functional
Capacity
Assessment
dated
report
and
Physical
April
22,
2009
by
Dr. Tallet concluded that Plaintiff could occasionally lift or carry
20 pounds, frequently lift or carry 10 pounds, stand or walk about
six hours in an 8 hour work day and sit about 6 hours of an 8 hour
work
day.
pushing
T.413.
and
Ridgeway
pulling.
was
limited
Plaintiff
had
in
lower
morbid
extremities
obesity,
for
arthritis
hypertension and knee and back pain. T.413. Plaintiff had difficulty
standing, walking, bending, lifting and sitting but used no assistive
device to walk. T.413. Dr. Tallet found Plaintiff to be partially
credible because she was able to cook, clean and do laundry. T.415.
11
Dr.
Kavitha
Finnity
conducted
an
independent
psychological
evaluation of Plaintiff on April 10, 2009. T.393-396. Dr. Finnity
found
that
Plaintiff's
attention
and
concentration
were
mildly
impaired but that her recent and remote memory skills were intact.
T.394. Ridgeway's cognitive functioning was estimated to be average.
T.395. She was able to dress, bathe and groom herself as well as
cook, clean, do laundry, shop and manage money. T.395. Ridgeway was
able to follow and understand simple directions and perform simple
tasks,
she
maintains
attention
and
concentration
and
maintain
a
regular schedule. T.395. Overall, the results of the examination were
not consistent with any psychiatric problems. T.395.
Dr. Noronha completed another disability form on August 25, 2009
in which she found Plaintiff to be only moderately limited in her
ability to walk, stand, push, pull, bend and lift or carry. T.486.
Specifically, Dr. Noronha found Plaintiff could do these activities
two to four hours in an 8 hour work day. T. 486.
In January, 2010, Dr. Noronha again completed a disability form
in which she now opined that Plaintiff could lift or carry 10 pounds
occasionally, stand or walk at least two hours in an 8 hour work day,
but
unable
to
stand
for
prolonged
periods
of
time.
T.487-488.
However, Plaintiff was able to sit for 6 hours, and had unlimited
abilities to reach, handle, finger and feel. T.489-490. By July of
12
2010, Dr. Noronha limited Plaintiff to walking and standing one to
two hours. T.495.
On September 10, 2010, Ridgeway was found to be disabled based
on her medical diagnosis of hypertensive cardiovascular disease by
New York State Department of Health Disability Review Team. T.176.
The
certificate
also
noted
that
Plaintiff
suffered
from
obesity
weighing 423 pounds at five feet 10 inches tall and that Plaintiff
also suffered from osteoarthritis of the knees and ankle. T.176. O
n
August 14, 2009, New York State Department of Human Services sent a
Notice of Medical Assistance Disability determining Ridgeway to be
disabled effective April 1, 2005, until April 30, 2010. T.428.
On September 13, 2010, Dr. Noronha completed an Obesity Residual
Functional Capacity Questionnaire regarding Ridgeway. T.433-436. In
this
document,
Dr.
Noronha
noted
that
Plaintiff
suffered
from
obesity, hypertension and back pain. T.433. Dr. Noronha indicated
that Plaintiff's condition did not interfere with Plaintiff's ability
to concentrate or pay attention, and Plaintiff was able to handle
stress.
T.434.
However,
Plaintiff
was
limited
walking and standing one hour at a time.
to
two
blocks
of
She was able to sit more
than two hours but had to walk ten minutes every two hours. T.434435. Plaintiff could lift less than 10 pounds occasionally and could
occasionally twist, stoop and climb stairs.
Dr. Noronha opined that
Plaintiff could never crouch or climb ladders. T.435. Dr. Noronha
13
indicated that the "earliest date" these limitations would apply was
2008. T.436.
B. Plaintiff's Hearing Testimony
Ridgeway testified that she last worked as a home health care
aide until October of 2004, when she was laid off because she did not
have the strength to do the work such as helping a nurse get a
patient in and out of bed and even being able to take the bus to
work. T.22.
At the time of the hearing, she was living with her
mother and brother but also staying with her daughter at times to
provide child care help. T.28. Plaintiff was providing day care for
her grandson approximately 10 times in May, 2010 and once in July.
T.22. She was still providing care for her grandson who was 4 years
old at the time of the hearing. T.28.
Ridgeway testified that she fell in 1992 and again in 2001
causing pain in her knees and back as well as in her feet. T.23, 25.
Ridgeway claimed to have a problem in a joint in her right hand for
the past five years. T.26. She also testified that her diabetic
condition
causes
her
to
not
think
as
well.
T.23-24.
Plaintiff
acknowledged that her doctor recommended bariatric surgery to reduce
her
weight
but
she
did
not
want
to
do
it
because
of
potential
complications. T.24. She also testified that cysts that she had on
her ovary cause her some pain if she moved the wrong way. T.24.
14
Ridgeway claims that she cannot walk more than three minutes
without holding onto something for support. T.26. With support, she
believed she could walk five minutes. T.26. She claimed to be able to
lift about five pounds and needs to move around when sitting or her
feet cramp up ad feel stiff. T.26.
fairly
easily
and
can
do
more
Plaintiff can climb four steps
with
two
rails.
T.35.
Ridgeway
testified that she has a chair with wheels at home to scoot around
the kitchen and has difficulty getting up out of any chair requiring
some support. T.35.
Ridgeway denied receiving mental health counseling or therapy
but finds she has trouble with memory. T.27. Although she is able to
follow a story on television, she occasionally cannot remember words
when having a conversation. T.27.
On a typical day, Ridgeway wakes up early and does paperwork.
T.29. She may do the dishes, and guide her grandson to help clean up.
T.29. She attends church three times a week for more than three hours
each time. T.29, 34. While her daughter mostly does the cooking,
Ridgeway sometimes cooks but needs to do so sitting down. T.30.
Ridgeway shops but tries to choose a store that has a mobile cart for
her to ride. T.30.
Ridgeway often uses a cane for support when she
leaves the house. T.33. Although she has a driver's license, Ridgeway
had not driven a car in two years at the time of her hearing, opting
instead to use a medical motor service. T.36.
15
C.
Vocational Expert Testimony
A vocational expert ("VE") identified Plaintiff's past work as
home health aide as a medium level work. The VE was presented with a
hypothetical individual with limitations that required no more than
lifting and carrying 20 pounds occasionally and 10 pounds frequently;
the option to sit or stand six of eight hours of a work day; no more
than occasionally climb, balance, stoop, kneel, crouch and crawl; and
is limited to performing unskilled work. T.38. The VE testified that
such an individual could not perform Plaintiff's past work. T.39.
However, an individual with limitations and vocational factors with
Plaintiff's age, education and past work history could, in the VE's
estimation,
perform
light
work
such
as
mail
clerk
and
cafeteria
attendant or sedentary work such as an account clerk, order clerk,
clerical worker, and photocopy machine operator. T.39-40. If the VE
were to assume that Ridgeway's testimony was credible and supported
by the medical evidence regarding all of her impairments, the VE
concluded that there would not be any jobs that she could perform.
T.41. Moreover, the VE testified that there is no job that would
permit
sitting
and
standing
throughout
the
day
at
will.
T.
43.
Finally, the VE clarified that a person in need of an assistive
device would not likely be able to perform light work. T. 43.
16
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
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
whether
The Court's scope of review is
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).
17
I.
The Commissioner's Determination of the Onset Date is Supported
by Substantial Evidence in the Record
The ALJ found that Plaintiff was disabled within the meaning of
the Social Security Act as of January 21, 2009.
In doing so, the ALJ
adhered to the Social Security Administration's five step sequential
analysis
evaluating
disability
benefits.
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
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 his 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).
18
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 November 1, 2004. T.55.
The ALJ next found that the Plaintiff suffered from the following
severe impairments: affective disorder, morbid obesity, hypertension
with edema and arthritis. T.55.
At step 3, The ALJ found that
Plaintiff's impairments did not meet or medically equal the listed
impairments in Appendix 1, Subpart P. T.56.
Further, the ALJ found
that prior to January 21, 2009, Plaintiff had the residual functional
capacity
to
perform
unskilled
sedentary
work
but
that
she
could
occasionally climb, balance, stoop, kneel, crouch an crawl. T.57.
The ALJ next determined that Plaintiff was not able to perform her
past relevant work as a home health aide. T.64. Finally, the ALJ
determined that considering Plaintiff's age, education, past relevant
work experience and residual functional capacity, there were jobs
that existed in significant numbers in the national economy that the
claimant could have performed prior to January 21, 2009. T.65.
ALJ
determined
that
beginning
January
21,
2009,
The
considering
Plaintiff's age, education, work experience and residual functional
capacity, there were no jobs that exist in significant numbers in the
national economy that she could perform. T.66.
Plaintiff argues that the ALJ erred by: 1) finding Plaintiff
capable of performing unskilled sedentary work prior to January 21,
19
2009, an arbitrary date; 2) failed to properly evaluate Plaintiff's
credibility; and 3) relied on invalid vocational expert testimony.
I
find that there is substantial evidence in the record to support the
ALJ conclusion that the Plaintiff was not disabled within the meaning
of the Social Security Act prior to January 21, 2009.
Substantial Evidence in the Record Supports the ALJ's Determination
of January 21, 2009 as the Onset Date.
Plaintiff argues that the
ALJ erred by setting the disability
onset date of January 21, 2009.
First, she claims that the ALJ
failed to provide a "function by function" assessment of Plaintiff's
residual functional capacity ("RFC"). Further, she argues that there
is
not
substantial
evidence
in
the
record
to
support
the
ALJ
determination that she could perform sedentary work. Social Security
Ruling ("SSR") 96-8p provides that "the [ALJ's] RFS assessment must
first
identify
restrictions
and
the
assess
individual's
his
or
her
functional
limitations
work-related
abilities
or
on
a
function-by-function basis."
In assessing a claimant's RFC, the ALJ must consider all of
the relevant medical and other evidence in the case record to assess
the claimant's ability to meet the physical, mental, sensory and
other requirements of work. 20 C.F.R. § 404.1545(a)(3)-(4).
It is
within the province of the ALJ to weigh conflicting evidence in the
record and credit that which is more persuasive and consistent with
20
the record as a whole. See, e.g., Veno v Barnhart, 312 F. 3d 578, 588
(2d Cir. 2002) ("Genuine conflicts in the medical evidence are for
the Commissioner to resolve.") (citing Richardson v. Perales, 402
U.S. 389, 399 (1971)); Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.
1998)
("It
is
for
the
SSA,
and
not
this
court,
to
weigh
the
conflicting evidence in the record.")
Here,
the
ALJ
concluded
that
although
Plaintiff
had
some
limitations, the evidence did not support the presence of limitations
that would preclude Plaintiff from performing a range of sedentary
work prior to January 21, 2009. The ALJ reached this conclusion from
a
review
of
all
of
the
relevant
medical
evidence
as
well
as
evaluating Plaintiff's subjective complaints.
The
ALJ
cited
to
the
regulations
that
define
the
exertional
requirements involved in sedentary work in his RFC determination.
T.57.
Sedentary work involves lifting no more than ten pounds and
involves limited walking or standing. 20 C.F.R. § 404.1567(a).
The ALJ properly considered the treatment notes which showed that
from 2005 through 2009, Plaintiff denied any chest pain, headaches,
or difficulty breathing. Her lung, heart and liver examinations were
normal,
she
had
no
or
minimal
edema
and
she
was
neurologically
intact. T. 59-60 Moreover, in December, 2007, Plaintiff's primary
treating physician, Dr. Foroozesh opined that Plaintiff was only
moderately limited in her ability to walk, stand, lift, carry, push,
21
pull, bend and climb stairs. T.60, 469, 477. He explained that he
thought
Plaintiff
could
perform
light
work.
T.478.
The
ALJ
also
points to other medical opinions from 2007 and 2008 which support
Plaintiff's ability to perform work at the sedentary exertion level.
T.62
The ALJ also considered that the evidence of Plaintiff's daily
activities did not demonstrate a significant reduction in Plaintiff's
functioning. Plaintiff was not taking her health issues seriously.
T.60. She was not being seen regularly by physicians, was treated
conservatively
and
Plaintiff
was
not
properly
following
medical
directions. T.60. The records during these years are riddled with
examples of noncompliance by Plaintiff of her medical directions
either because she thought the doctors discontinued the medication,
or
she
lost
the
medications
or
she
simply
did
not
fill
the
prescriptions. T.60, 263, 265, 319. Moreover, Plaintiff did not keep
appointments and even did not return messages from her doctors about
missed appointments. T.60.
The
ALJ
also
pointed
out
that
records
from
2008
show
that
Plaintiff was actively seeking employment through VESID, was active
in her church, completed the courses for her associate’s degree and
was helping to care for her grandson. T.60.
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
22
pain and functional limitations and found that they were not entirely
credible insofar as they pertain to the period prior to January 21,
2009.
The
ALJ
impairments
determined
could
that
reasonably
Plaintiff’s
be
expected
medically
to
cause
determinable
Plaintiff’s
symptoms, but that Plaintiff’s statements regarding the “intensity,
persistence and limiting effects of those symptoms are not credible
prior to January 21, 2009, to the extent that they were inconsistent
with the residual functional capacity assessment." T.59. 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, has
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),
(N.D.N.Y.
report
Sept.
1,
and
recommendation
2010);
other
23
adopted,
citations
2010
WL
omitted)).
3522302
Instead,
SSR 96-7p 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
credibility
of
prior
the
ALJ
the
required
to
measured
deciding
Plaintiff's
factors
bearing
Plaintiff’s
RFC.
credibility
on
She
by
Plaintiff’s
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 her judgment. Gernavage v.
Shalala, 882 F.Supp. 1413, 1419, n.6 (S.D.N.Y. 1995).
The ALJ noted that despite complaints of disabling limitations,
Plaintiff did household chores, attended college level courses as
well as computer courses and cared for her young grandson. T.60-62.
Moreover, she did not take her health care seriously as she failed
repeatedly to take the prescribed medications. The ALJ also noted
that Plaintiff did not keep appointments and had poor follow-up and
did
not
see
a
dietician
as
directed
by
her
doctor
on
several
occasions. T.60, 262, 264, 267, 318.
The
ALJ
did
not
discount
Plaintiff's
complaints
entirely.
Rather, in assessing Plaintiff's residual functional capacity, the
ALJ determined that Plaintiff could only occasionally climb, balance,
24
stoop, kneel, crouch and crawl, and perform unskilled sedentary work.
T.57.
Accordingly,
Plaintiff's
argument
that
the
ALJ
failed
to
properly assess her subjective complaints is rejected.
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 Prior to January 21, 2009
Lastly, Plaintiff argues that the ALJ erred when she relied on the
VE in determining that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform. T.6667.
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 argues that because the VE did not have any experience
placing disabled individuals in jobs, he was not qualified to testify
as to the number of jobs available in the economy.
The VE was
properly established as a vocational expert. He had 30 years of
experience
experience.
in
his
field
including
Social
Security
Administration
Moreover, no objection was raised at the hearing as to
25
the VE's qualifications.
Therefore, this Court finds no error in the
ALJ relying on the VE's opinion as an expert.
Plaintiff also objects that the hypothetical posed to the VE was
incomplete and that it was marred by the ALJ’s errors in regard to
assessing Plaintiff's credibility and weighing the medical evidence.
A VE’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
VE
testified
individual
with
at
Plaintiff's
limitations
that
hearing
that
corresponded
a
to
hypothetical
the
ALJ's
RFC
assessment could perform the jobs of account clerk, order clerk,
clerical
worker
and
photo
copy
machine
operator.
T.65.
The
VE
considered an individual who could not lift more than 20 pounds
occasionally and 10 pounds frequently, needed an option to sit or
stand six of eight hours of a work day and could only occasionally
climb, balance, stoop, kneel, crouch and crawl.
Because there is
substantial evidence in the record to support the ALJ’s assessment of
Plaintiff’s
RFC,
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
§404.1560(b)(2).
26
national
economy.
20
C.F.R.
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 is affirmed. For the
reasons stated above, the Court grants Commissioner's
motion for
judgment
motion
on
the
pleadings
(Dkt.
No.
7).
Plaintiff's
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: September 25, 2013
Rochester, New York
27
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