Domm v. Astrue
Filing
9
-CLERK TO FOLLOW UP- DECISION and ORDER granting 6 Commissioner's Motion for Judgment on the Pleadings; denying 7 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 8/29/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JANICE ELIZABETH DOMM,
DECISION
and ORDER
Plaintiff,
vs.
12-CV-6640T
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________
INTRODUCTION
Plaintiff, Janice Elizabeth Domm ("Domm" 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
application
for
Disability
Insurance
Benefits
("DIB").
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 June 6, 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 June 7, 2013, Plaintiff cross-moved
for summary judgment.
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 5, 2010, Plaintiff filed an application for
DIB under Title II, § 216(I) and § 223 of the Social Security
Act, alleging a disability since January 4, 2009 arising from
arthritis in the knees, lower back pain, bursitis, breathing
problems, diabetes, carpel tunnel in the right hand, coronary
artery
disease,
pain.
T. 161.
T. 52-56.
circulation
problems,
tiredness
and
chronic
Plaintiff's claim was denied on April 30, 2010.
At Plaintiff's request, an administrative hearing
was conducted on August 19, 2011 before an Administrative Law
Judge ("ALJ"). T. 25-49.
represented
by
Domm testified at the hearing and was
counsel.
In
addition,
a
vocational
expert
testified.
On September 15, 2011, the ALJ issued a Decision finding
that Domm was not disabled at any time from the alleged onset
date
through
September
request
27,
for
the
date
2012,
review,
the
last
insured.
Appeals
making
the
Council
ALJ's
decision of the Commissioner. (Tr. 1-4)
action on November 26, 2012.
BACKGROUND
2
(Tr.
12-21)
denied
Decision
On
Plaintiff's
the
final
Plaintiff filed this
Plaintiff
is
a
58
year
old
two years of college education.
high
school
(Tr. 162)
graduate
with
She worked as a
front office supervisor and secretary in a nursing home from
June, 1981 until January 4, 2009 when she was laid off. T. 1623, 182, 285.
Domm's work at the nursing home including typing,
billing, answering phones and general office work. T. 163.
She
indicated that she needed technical knowledge working a copier,
printer, postage machine, fax machine, and computer.
T. 183.
The position also required writing skills to write letters,
process billing, create office procedures and filing insurance
forms. T. 163, 189. This position did not require lifting and
Domm
stated
that
the
most
she
would
position is less than 10 pounds. T. 164.
have
to
lift
in
the
Domm supervised four
other employees spending almost half her time in a supervisory
role. T. 164, 183.
Plaintiff's
daily
routine
includes
getting
herself
dressed, eating breakfast, going out for a walk, cleaning the
kitchen, vacuuming, dusting, emptying dishwasher, doing laundry
and some computer work to pay bills, "surf the internet" and
play games. T. 174.
Domm also gardens and paints. T. 176.
She
is able to feed and take care of her dog, walking her twice a
day. T. 174.
Donm points out that she can no longer walk for
more than 10 minutes without resting and that she must split up
her chores to avoid pain in her knees, back and hips and she
3
gets short of breath.
T. 178. She also indicated that she can
no longer lift items as heavy as 25 pounds. T. 174.
Domm
drives a car and goes to the mall on a daily basis for walks.
She meets friends for lunch or dinner. T. 178.
Plaintiff wears
knee braces when she stands for long periods of time to prevent
swelling and wears a hand splint at night. T. 179.
A. Medical History
Plaintiff has a history of hypertension, hyperlipidemia,
and coronary artery disease. T. 216. Domm was treated at Unity
Cardiology Group for right coronary artery stenosis with the
placement of stents in February, 2008. T.204-207. Plaintiff
continued to experience shortness of breath in September, 2008
and
was
given
a
repeat
cardiac
catheterization.
Plaintiff was prescribed Plavix and Zocor.
December,
2008,
Dr.
Gerald
Ryan,
T.
204.
T. 259-260. By
Plaintiff's
cardiologist,
indicated that now that the right side has been corrected, it
was time to address the left side of her heart. T.262.
Plaintiff was treated in January, 2009 with left heart
catheterization, coronary angiography and primary stenting of
the
mid-left
indicate
the
circumflex.
procedures
successful. T. 216.
T.
216-217.
had
no
The
medical
complications
records
and
were
Dr. Ryan commented in July, 2009, that a
review of plaintiff's x-rays showed some scarring and decreased
4
pulmonary function in her lungs.
However, the lungs were clear
and she has coarse breath sounds. T. 264.
He advised Plaintiff
be cautious with dust and exposure to allergens. T. 264.
By
February, 2010, Dr. Ryan observed that Plaintiff's treadmill
exercise test in the office was normal although she did have
some shortness of breath. T. 270.
about
permanent
disability
who
Plaintiff asked Dr. Ryan
advised
her
Dr. Lewish says about her knees." T. 270.
examined
plaintiff
treadmill test.
regular
and
Plaintiff
February
8,
2011
"see
what
Dr. Ryan again
with
a
follow
up
He noted that plaintiff's heart rhythm was
her
was
on
to
respiratory
taking
effort
Nadolol
for
was
normal.
treatment
of
T.
high
271.
blood
pressure, Spironolactone and Furosemide for fluid retention,
Lantus for control of diabetes, aspirin and vitamins. T. 271.
Dr.
Ryan
advised
Plaintiff
to
continue
with
the
same
medications and he would see her in one year. T. 271.
Plaintiff was initially diagnosed with osteoarthritis of
her left knee by Dr. Gregory Lewish of Westside Orthopaedic
Group in 2000. T. 226-27.
He found no surgical intervention
was warranted but he recommended physical therapy and to take
Advil for pain.
Dr. Lewish examined Domm for left knee pain in
2003
in
and
again
2005.
T.
223-227.
His
recommendations
remained the same as in 2000: strengthening exercises and over
the counter pain medication.
On March 18, 2010, Plaintiff was
5
examined by Dr. Lewish for evaluation of ongoing left knee
pain.
left
Dr. Lewish noted that Plaintiff had a history of an open
patellar
realignment
procedure
in
1980
and
experiencing pain in the knee since 1998. T. 219.
had
been
Dr. Lewish
observed that plaintiff walked with a satisfactory gait and
stood
with
good
posture.
There
was
no
edema,
deformity
or
evidence of trauma. T. 219. The left knee was tender along the
medial joint line region and the range of motion included five
degrees to 126 degrees of flexion. T. 219.
of
the
knee
and
Dr.
Lewish
concluded
X-rays were taken
that
Plaintiff
had
"moderately severe left knee osteoarthritis primarily involving
the
medial
and
considered
it
Plaintiff
how
a
patellofemoral
"fairly
the
common
symptoms
compartments."
problem"
could
be
well
and
T.
220.
He
explained
controlled
to
with
conservative medical management with strengthening exercises
and wearing a knee sleeve. T. 220.
He noted that the knee
arthritis was "not severe enough to warrant consideration of
knee replacement surgery" and he specifically did not impose
any restrictions or limitations. T. 220.
On March 31, 2010, Plaintiff was examined by Dr. Sandra
Boehlert as an independent medical examination. T. 232-236.
Dr. Boehlert noted that Plaintiff had a history of coronary
artery disease that was first diagnosed in 2008.
stents
placed
and
catherizations.
6
Although
She had
Domm
had
nitroglycerin available to her, she reported that she has not
needed to use it.
as
hypertension
She took Plavix and Bayer every day as well
pills,
an
ACE
inhibitor
and
a
water
pill.
Plaintiff also has had arthritis in her knees for which she
does
leg
strengthening
exercises.
Plaintiff
reported
to
Dr. Boehlert that she had to rest every 20 minutes when walking
long distances and cannot stand more than 20 minutes before
needing to rest.
Plaintiff developed low back pain and hip
pain in the past year but was not taking any pain medications.
T. 232.
Although Plaintiff had carpal tunnel syndrome in her
right hand, she reported that she wears a brace at night and
has no daytime limitations. T. 232.
Plaintiff also reported
that she took Lasix for fluid build-up in her legs and that she
had fatigue.
Plaintiff had diabetes since 2007 for which she
was taking oral medications.
Dr. Boehlert diagnosed Plaintiff
with a history of osteoarthritis, lower back pain, a history of
hip
bursitis,
coronary
artery
disease,
carpal
tunnel
and
dependent edema and found her prognosis to be "fair". T. 235.
She specifically found that plaintiff had "no limitations noted
on today's exam." T. 235.
A lumbrosacral spine x-ray taken of plaintiff on April 5,
2010 showed degenerative spondylosis at L1-L2 through L3-L4 but
no compression fracture. T. 237.
7
On May 17, 2011, Plaintiff had an abdominal ultrasound
performed to evaluate cirrhosis. T. 312.
Plaintiff
had
echotexture
no
of
hepatomegaly
liver
There
infiltration.
the
was
but
mildly
which
no
The images found that
may
increased
be
intrahepatic
due
to
biliary
diffuse
fatty
ductal
dilation noted. T. 312.
Plaintiff was treated by Dr. Robert Blackburn of Hilton
Health Care as her primary care provider since January 1981.
He manages her diabetes medications as well as day to day
medical concerns.
On January 10, 2010, Dr. Blackburn noted
that Plaintiff's A1C level was up even though there was an
increase in Glyburide.
He noted that Plaintiff was not looking
for a new job and he suggested other medical secretarial work
that
he
thought
she
could
manage.
T.
297.
He
increased
Glyburide amount and discussed possibility to taking Lantus
instead for her diabetes.
In February, Plaintiff complained of pain in her buttocks
and hips while walking. T. 298.
Dr. Blackburn noted that the
left knee lacked a few degrees of extension and the right knee
was almost intact for extension. T. 298.
She was tender over
the greater trochanters and non-tender in the gluteal areas.
He
diagnosed
bursitis
with
continued
knees and diabetes. T. 298.
8
osteoarthritis
of
the
In
April,
2010,
with
her
diabetes
running
too
high,
Dr. Blackburn prescribed Lantus.
In addition, he prescribed
Advair
T.
300.
as
it
Dr.
to
help
Blackburn
controlling
with
wheezing.
increased
plaintiff's
Lantus
blood
sugar
By
was
levels
May,
2010,
effective
and
in
stopped
Glyburide. T. 301.
In June, 2010, Plaintiff presented disability forms and
physical capacity forms to Dr. Blackburn to complete.
During
this examination, Plaintiff complained that she is sleeping too
much, sleeping 8 hours at night and another four hours during
the day. T. 304. She reported that she falls asleep at the
computer with her hand on the mouse and wakes up an hour later
with her hand still on the mouse. She avoids driving when she
feels sleepy. Dr. Blackburn observed that plaintiff's lungs
were
clear,
her
heart
peripheral edema. T. 304.
sounds
regular
and
there
was
no
She no longer was taking Plavix but
takes aspirin. Plaintiff's blood pressure was controlled and
her A1C level was improving since she started Lantus. T. 304.
Dr. Blackburn referred plaintiff for a sleep study. T. 304.
In July, 2010, Plaintiff was diagnosed with cirrhosis of a
mild to moderate degree after esophageal varices were found.
T. 306. Plaintiff was prescribed Nadolol.
Also that month,
plaintiff tripped and fell, causing pain in her back which she
was treating with Flexeril. T. 306.
9
By
November,
plaintiff
had
sensitivity
2010,
the
diabetes
requiring
medical
with
further
records
rapidly
indicate
declining
adjustment
of
that
insulin
medications.
T. 309.
On August 5, 2011, Dr. Blackburn completed the Residual
Functional Capacity Questionnaire for plaintiff.
In it, he
listed the diagnoses for plaintiff as coronary artery disease,
non-alcoholic cirrhosis, insulin dependent diabetes mellitus,
cervical
spondylosis,
hyperlipidemia,
lumbar
bilateral
spondylosis,
trochanteric
osteoarthritis of the knees. T. 322.
bursitis
fatigue,
dyspnea
on
and
bilater
He described plaintiff as
having "continuously declining function." T. 322.
included
hypertension,
exertion,
Her symptoms
nausea,
abdominal
bloating, edema, neck and shoulder pain, hip pain, knee pain,
low back pain on ambulation, angina, and fluctuating visual
acuity. T. 322.
and
chronic
in
He considered Plaintiff's pain to be moderate
the
neck
and
shoulders,
moderate
and
intermittent in the low back and moderate and intermittent in
the hips and knees triggered by ambulation. Her medications
were
Humalog
Kwikpen
for
diabetes,
Furosemide
and
Spironolactone for fluid retention, Chantix to help her quit
smoking,
Nadolol
to
treat
hypertension,
cream for a rash, and Lantus for diabetes.
aspirin,
Clobetasol
Dr. Blackburn noted
that Plaintiff's impairments were consistent with her symptoms
10
and limitations. He noted that Plaintiff could only sit for one
hour, walk 50 yards, stand for 10 minutes, sit for 2 hours of
an 8 hour workday, and requires frequent
T. 322.
position changes.
He also limited Plaintiff to carrying no more than
10 pounds and that she should rarely twist, stoop, squat, and
climb
but
that
she
had
no
limitations
in
her
hands.
He
concluded that Plaintiff could not sustain full time or part
time employment at any exertional level as of February 22,
2010. T. 323.
B.
Plaintiff's Hearing Testimony
Plaintiff testified that she graduated from high school
and had completed one year of college. T. 32.
She worked at a
nursing home for 27 years, most recently as a front office
administrative supervisor in her last year of work. T. 33-34.
Domm was laid off in January, 2009 as a result of downsizing.
T. 35, 39. Plaintiff testified that the amount she lifted as
part of her work duties varied.
file
room
lifting.
but
T.
maintenance
36-37.
It could be 25 pounds in the
staff
Plaintiff
could
help
testified
comfortably lift 10 to 15 pounds. T. 43.
her
that
with
she
the
could
She stated that she
could stand for 10 to 15 minutes and walk about 10 minutes
before
she
needed
to
take
a
break.
T.
43.
She
could
sit
45 minutes to an hour before she needed to change positions or
take a break. T. 43. Domm tried to avoid stairs and testified
11
that she could stoop but it would be difficult for her to get
back up. T. 45.
Plaintiff stated that she did not shop for
groceries or cook but she performed some surface cleaning such
as dusting. Tr. 44.
Plaintiff was able to vacuum once or twice
a week but found it difficult. T. 44.
She did laundry and was
able to garden for half hour at a time. Plaintiff also like to
read and shop. T. 44.
C.
Vocational Expert Testimony
A vocational expert testified that Plaintiff's past job
corresponded to the sedentary position of office manager in the
Dictionary of Occupational Titles (DOT). T. 46.
When asked by
the ALJ to consider a hypothetical individual with Plaintiff's
age, education and vocational profile, the vocational expert
testified that such an individual could perform sedentary work,
but would need a sit/stand option, could not climb stairs,
would need to avoid chemicals and fumes and irritants and would
be off task for approximately five percent of the day. T. 47.
The vocational expert also testified that such an individual
could perform Plaintiff's past relevant work as office manager.
T. 47.
DISCUSSION
I. Scope of Review
12
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).
The
Court's scope of review is limited to determining 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 Decision to Deny Benefits is Supported
by Substantial Evidence in the Record
13
The ALJ found that Plaintiff was not disabled within the
meaning of the Social Security Act.
adhered
to
the
Social
Security
In doing so, the ALJ
Administration's
five
step
sequential analysis evaluating disability benefits. (Tr. 12-18)
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)
listed
impairment
contained
meets
in
or
medically
Appendix
1,
equals
Subpart
a
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 economy that
accommodates
the
claimants
residual
functional
capacity
and
vocational factors, the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(I)-(v)and 416.920(a)(4)(I)-(v).
Under step one of the process, the ALJ found that the
Plaintiff had not engaged in substantial gainful activity at
14
any time during the period from her alleged onset date of
January
4,
Plaintiff
coronary
2009.
(Tr.
suffered
artery
13)
from
The
the
disease,
ALJ
next
following
diabetes
osteoarthritis of the knees.
found
severe
the
impairments:
mellitus,
(Tr. 14)
that
obesity
and
At step 3, The ALJ
found that Plaintiff's impairments did not meet or medically
equal the listed impairments in Appendix 1, Subpart P. (Tr. 15)
Further,
the
ALJ
found
that
Plaintiff
had
the
residual
functional capacity to perform a full range of sedentary work
except that plaintiff is restricted to work requiring no stair
climbing, no exposure to chemicals, fumes and irritants and
allows for a sit/stand option.
Additionally, plaintiff must be
able to be off-task for five percent of the day in order to
stabilize her sugar levels. T. 15.
Finally, the ALJ determined
that considering Plaintiff's age, education, and past relevant
work
experience,
Plaintiff
was
able
to
perform
her
past
relevant work as an office manager. (Tr. 21).
Plaintiff argues that the ALJ erred by failing to properly
evaluate
the
medical
evidence,
Plaintiff's
functional
limitations and her credibility as well as failing to apply the
Treating Physician Rule. Based on the entire record, including
the medical evidence, 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.
15
A.
The ALJ Properly Evaluated the Medical Record
Plaintiff first contends that the ALJ failed to properly
apply the treating physician rule.
She argues that the ALJ
decision to give Dr. Blackburn's opinion "probative weight" and
giving
the
opinions
of
Drs.
Ryan,
Ketarie
and
Boehlert
"significant weight" was erroneous. Moreover, she points out
that
the
ALJ
did
not
provide
good
reasons
for
rejecting
Dr. Blackburn's opinions as to functional capabilities.
While it is the role of the ALJ to balance and ultimately
consider the weight to be given conflicting medical opinions,
she must nevertheless either give controlling weight to the
determinations
of
treating
physicians
or
provide
a
good
explanation for failing to do so. Balsamo v. Chater, 142 F.3d
75 (2d Cir. 1998).
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
opinion’s
in
support
of
the
opinion;
16
(iii)
the
consistency with the record as a whole; and (iv) whether the
opinion is from a specialist.” Clark v. Commissioner of Social
Security, 143 F.3d 115, 118 (2d Cir. 1998) (citing 20 C.F.R.
§ 404.1527(d)).
This
Court
finds
that
there
was
no
violation
of
the
treating physician rule. Here, the ALJ specifically analyzed
the objective medical evidence in the record as well as against
the record of Plaintiff's functionality as
Dr.
Blackburn's
found
that
conclusion
Plaintiff's
as
to
a whole against
Plaintiff's
impairments
are
not
abilities
as
and
severe
as
Dr. Blackburn opines. T. 20. The ALJ considered the treatment
notes of Dr. Blackburn, her other treating physicians as well
as her activities of daily living, and noted that their notes
did
not
support
Dr.
Blackburn's
opinion
of
Plaintiff's
limitations of functionality.
The opinion of Dr. Blackburn was not only inconsistent
with that of the independent medical examiner, Dr. Boehlert,
but also with Plaintiff's other treating physician specialists.
Plaintiff's orthopedist who has treated Plaintiff since 2000
for
knee
pain,
did
not
impose
any
limitations.
Similarly,
Dr. Ryan, Plaintiff's cardiologist, did not place limitations
on Plaintiff.
treated.
prescription
Plaintiff's diabetes is under control and being
The
ALJ
pain
noted
that
medications,
17
Plaintiff
she
was
did
able
not
to
take
perform
household
chores,
go
on
daily
walks
and
even
her
treating
physicians recommended that she increase her level of exercise.
T. 19.
The ALJ properly considered the weight to be given the
conflicting medical opinions and articulated good reasons for
not giving controlling weight to Dr. Blackburn's opinion.
I
find substantial evidence for the ALJ to find that the opinion
of
Dr.
Blackburn
capacity
was
not
regarding
consistent
Plaintiff's
with
the
residual
record
functional
as
a
whole.
Therefore, this Court finds that the ALJ did not violate the
treating physician rule in giving the opinion of Dr. Blackburn
probative weight.
B.
There is Substantial Evidence in the Record to Support the
ALJ's Determination of Plaintiff's Residual Functional Capacity
Next, plaintiff argues that the ALJ erred by resting the
residual functional capacity ("RFC") finding on the exertional
level
of
sedentary
work
rather
than
indicating
specific functional abilities and limitations.
plaintiff's
She contends
that the regulations require that the ALJ RFC assessment must
include
a
function
by
function
analysis
of
the
claimant's
functional limitations or restrictions and an assessment of the
claimant's work related abilities on a function by function
basis.
18
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
§ 404.1545(a)(3)-(4).
requirements
of
work.
20
C.F.R.
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 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. (Tr. 18)
Sedentary work involves
lifting no more than ten pounds and involves limited walking or
standing.
20
conclusion
evidence
C.F.R.
from
as
a
well
§
404.1567(a).
review
as
of
all
evaluating
The
of
the
ALJ
reached
relevant
Plaintiff's
this
medical
subjective
complaints.
The ALJ properly considered Dr. Blackburn's August 5, 2011
assessment
on
Plaintiff's
functioning.
19
T.
18,
20.
The
ALJ
accorded probative weight to Dr. Blackburn's opinion but found
it was not entirely consistent with the record as a whole.
The
ALJ noted that the independent examiner and Dr. Lewish both
provided less restrictive opinions of Plaintiff's functioning.
Dr.
Boehlert
Plaintiff
found
to
discomfort.
no
limitations
minimize
activities
220,
The
T.
235.
ALJ
and
that
Dr.
Lewish
advised
aggravated
her
considered
that
also
knee
the
evidence of Plaintiff's daily activities did not demonstrate a
significant reduction in Plaintiff's functioning. T. 20.
I find that there is substantial evidence in the record to
support the ALJ finding of Plaintiff's RFC. Dr. Blackburn's
treatment
notes
alternatives
specifically
with
note
Plaintiff
and
returning to work. T. 285, 297.
that
the
he
discussed
possibility
of
job
her
He went so far as to discuss
with Plaintiff medical secretarial work that he believed that
she could do. T. 297.
Moreover, Plaintiff's other treating
physicians, Dr. Lewish and Dr. Ryan, did not render the same
opinion
Instead,
regarding
Dr.
Plaintiff's
Lewish
disability
specifically
did
as
Dr.
not
Blackburn.
impose
any
restrictions or limitations on Plaintiff and considered her
knee pain a "fairly common problem." T. 220.
C.
The
ALJ's
Credibility
Substantial Evidence
Assessment
20
is
Supported
by
In determining Plaintiff's residual functional capacity,
the ALJ considered Plaintiff's statements about her subjective
complaints of pain and functional limitations and found that
they
were
not
entirely
credible.
The
ALJ
determined
that
Plaintiff’s medically determinable impairments could reasonably
be expected to cause Plaintiff’s symptoms, but that Plaintiff’s
statements regarding the “intensity, persistence and limiting
effects of those symptoms are not credible to the extent that
they were inconsistent with the RFC. T.17. 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
Astrue,
No.
*12
(W.D.N.Y.
5:09-CV-00909,
July
2012
2,
2012)
WL
2010
(citing
Nelson
3522304,
at
v.
*6
(N.D.N.Y. Aug. 12, 2010), report and recommendation adopted,
21
2010
WL
3522302
(N.D.N.Y.
Sept.
1,
2010);
other
citations
omitted)). 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 here, the ALJ measured Plaintiff's credibility by
evaluating all of the required factors bearing on Plaintiff’s
credibility prior to deciding Plaintiff’s RFC.
She discussed
Plaintiff's
intensity
daily
activities,
frequency
and
of
Plaintiff's symptoms, the effectiveness of medication 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 although Plaintiff complained of pain
affecting her hips, knees, back and shoulder, her treatment has
been
conservative
exercise. T. 19.
with
over
the
counter
medication
and
There is no inability to effectively ambulate
nor does she rely on ambulatory aids in order to carry out her
daily activities. The ALJ pointed out that Plaintiff actively
sought
employment
considered
the
after
medical
she
was
records
laid
off.
concerning
The
ALJ
diabetes.
also
The
records showed that the condition was treated conservatively
22
with medication and that she worked for two years after her
diagnosis
despite
any
limiting
effects.
Finally,
the
ALJ
considered Plaintiff's heart condition.
The medical records
indicate
received
that
the
treatment
Plaintiff
adequately
controlled her condition and she suffered no additional chest
pain or hospitalization. Plaintiff remains active and is able
to perform various activities without significant limitations.
The ALJ did not discount Plaintiff's complaints entirely.
Rather, in assessing Plaintiff's residual functional capacity,
the ALJ determined that Plaintiff was unable to perform more
than sedentary work.
Accordingly, Plaintiff's argument that
the ALJ failed to properly assess her subjective complaints is
rejected.
D.
There is Substantial Evidence in the Record to Support the
ALJ Finding that Plaintiff Could Perform Her Past Relevant Work
as an Office Manager or Secretary
Lastly, Plaintiff argues that the ALJ erred when she found
Plaintiff
capable
of
performing
office manager or secretary.
her
past
relevant
work
as
At step 4, Plaintiff had the
burden to show that she was unable to perform her past relevant
work as she had performed in her specific job and as it is
generally
performed
in
the
national
economy.
42
U.S.C.
§ 423(d)(2)(A); 20 C.F.R. §§ 404.1520(f), 404.1560(b); SSR 8261, 1982 WL 31387.
Substantial evidence supports the ALJ's
finding that Plaintiff, who retained the RFC to perform a range
23
of sedentary work, could perform her past relevant work as an
office manager. T.21.
The
that
vocational
a
expert
hypothetical
corresponded
to
testified
individual
the
ALJ's
RFC
at
Plaintiff's
with
hearing
limitations
assessment
could
that
perform
Plaintiff's past relevant work as an office manager. T. 46-47.
The
vocational
perform
expert
sedentary
throughout
the
work
day,
considered
but
have
that
the
an
individual
also
ability
who
could
needed
to
to
off-task
be
sit/stand
for
5 percent of the day to stabilize sugar levels, could not climb
stairs and needed to avoid chemicals and fumes and concluded
that she could perform Plaintiff's past relevant work.
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 her
past relevant work. 20 C.F.R.
§404.1560(b)(2).
Moreover,
there is no evidence in Plaintiff's own testimony regarding her
abilities and of her job responsibilities that would preclude
her from performing this or similar positions. She testified
that she was able to lift 10 pounds, could use a computer and
was able to sit and stand as part of this position. I find
substantial evidence supports the finding that Plaintiff could
perform
her
past
relevant
work
secretary.
24
as
an
office
manager
or
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
on
the
pleadings
(Dkt.
No. 6). Plaintiff's motion for judgment on the pleadings is
denied (Dkt. No. 7), 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:
August 29, 2013
Rochester, New York
25
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