Sizer v. Astrue
Filing
11
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 Commissioner's Motion for Judgment on the Pleadings; denying 9 Plaintiff's Motion for Judgment on the Pleadings; and dismissing Plaintiff's complaint with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/3/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
TIMOTHY SIZER,
DECISION
Plaintiff,
and ORDER
vs.
12-CV-6667T
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
INTRODUCTION
Plaintiff, Timothy Sizer ("Sizer" 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
his
application
for
Disability
Insurance Benefits ("DIB") and Supplemental Security Income ("SSI").
Plaintiff alleges that the decision of the Administrative Law Judge
("ALJ") is not supported by substantial evidence in the record and is
contrary to applicable legal standards.
On July 10, 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 August 5, 2013 Plaintiff cross-moved for summary judgment seeking
to reverse the Commissioner's decision judgment.
For the reasons set
forth below, this Court finds that there is substantial evidence in
the record 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 November 23, 2009, Plaintiff filed an application for DIB and
SSI under Title II, § 216(i) and § 223 of the Social Security Act,
alleging a disability since October 18, 2008 arising from a left hip
injury. T. 194, 213.
2010.
Plaintiff's claim was denied on January 19,
T. 131-133. At Plaintiff's request, an administrative hearing
was conducted on May 26, 2011 before an Administrative Law Judge
("ALJ") at which Sizer testified and was represented by counsel.
T. 94-115.
On June 10, 2011, the ALJ issued a Decision finding that Sizer
was not disabled within the meaning of the Social Security Act (“the
Act”). T. 120-27. On October 24, 2012, the Appeals Council denied
Plaintiff's request for review, making the ALJ's Decision the final
decision of the Commissioner. T. 1-3.
This action followed.
BACKGROUND
Plaintiff is a 48 year old high school graduate who had worked
doing janitorial and cleaning work for a maintenance company off and
on from 1982 through December 31, 2006. T. 194-196.
Plaintiff did
general cleaning work including lifting and carrying old furniture
and garbage which required him to lift 50 pounds or more frequently.
T. 196.
2
In his application, Sizer claimed that he could not walk, sit or
stand for a long period of time. T. 207.
He was able to prepare hot
meals for himself on a daily basis as well as do simple chores around
the house such as wash the dishes. T. 208-09.
Sizer claimed that he
could only walk one block before needing to rest and uses a cane for
longer distances. T. 212.
A. Medical History
X-rays taken of the left hip on January 15, 2007 showed "severe
degenerative
osteoarthritis
with
subchondral
formation and loss of joint space." T. 293.
sclerosis
and
cyst
X-rays taken of the hip
on May 14, 2008 showed severe degenerative osteoarthritis with loss
of joint space superiorly. T. 274.
On December 11, 2008, Plaintiff was treated at the Strong Health
Clinic for left hip pain. T. 237. X-rays from July, 2008 demonstrated
arthritic changes in the left hip including subchondral sclerosis and
subchondral cysts in both the femoral and acetabular side. T. 237.
Plaintiff
was
diagnosed
with
"moderate
to
advanced
left
hip
arthritis" and treated with conservative management including antiinflammatories, and physical therapy. T. 237-38. Plaintiff was told
that at some point in the future he would need surgery to include
total joint arthroplasty. T. 238.
On
March
31,
2009,
Dr.
Walter
Beecher,
a
family
medicine
practitioner of Woodward Health Center began treating Plaintiff for
3
left
hip
pain
which
Plaintiff
claimed
Examination showed Plaintiff’s left hip
was
worsening.
T.
272.
was tender laterally and
painful at flexion and external rotation. T. 272. Plaintiff was told
to continue taking Ibuprofen and Flexeril three times a day and was
referred for physical therapy. T. 272.
Dr. Beecher examined Plaintiff on October 22, 2009 for worsening
left hip pain. T. 268. Sizer complained of steady ache, poor sleep
and some instability with falls. He also claimed that Advil was not
helping much. T. 268.
Dr. Beecher advised Plaintiff to continue
Ibuprofen and Flexeril three times a day and referred Plaintiff for
more physical therapy. He also provided the written excuse requested
by Plaintiff from the Department of Social Services ("DSS") work
program. T. 268.
An Independent Medical Examination of Sizer was conducted on
January
6,
2010
by
Dr.
Sandra
Boehlert.
T.
241-244.
Plaintiff
complained of left hip pain that throbbed with sitting, lying or
standing too long. T. 241. He also reported shooting pain in this
groin.
T.
241.
Plaintiff
was
Albuterol for asthma. T. 241.
taking
Ibuprofen
for
hip
pain
and
Plaintiff reported that he was able to
cook, clean, do laundry and shop as necessary. T. 241. He cooked six
days a week, shopped twice a month and showered, bathed and dressed
himself daily. T. 241.
Dr. Boehlert observed full flexion, extension, lateral flexion
and rotary movement in the cervical and lumbar
4
spine.
T.
243.
Plaintiff did have decreased range of motion in the left hip with
interior
rotation
limited
to
20
degrees,
exterior
rotation
to
20 degrees but full flexion and extension. T. 243. Abduction was also
limited to 20 degrees and there was marked pain. The right hip had
full range of motion. T. 243. Although he appeared to be in no acute
distress and had a normal gait, Sizer was not able to walk on his
heels and toes without severe left hip pain. T. 242. He squatted only
one third of the way down with left hip pain. T. 242. He needed no
assistive devices and was able to get on and off the exam table
without assistance. T. 242.
Dr. Boehlert diagnosed Plaintiff with "severe left hip pain,
possible acute sprain" and "chronic musculoskeletal disease." T. 243.
Dr. Boehlert concluded that Plaintiff had acute limitations which
were moderate to marked to heavy exertion in a standing position.
T. 243.
A Residual Functional Capacity Assessment Form was completed on
January 15, 2010 by D. O'Connor. T. 245-250. Plaintiff was assessed
to be able to lift occasionally 20 pounds, frequently lift 10 pounds
and stand or walk a total of about six hours in an eight hour work
day. T. 246. Plaintiff was assessed to be able to sit for a total of
about six hours in an eight hour workday and have unlimited ability
to
push
or
pull.
diagnosed
with
arthritic
changes
T.
246.
moderate
in
the
The
to
report
advanced
right
5
hip
noted
left
and
that
hip
that
Plaintiff
arthritis,
he
was
was
mild
treated
conservatively with medication and physical therapy. T. 246. There
were
no
postural,
environmental
Dr.
manipulative,
limitations
Boehlert’s
finding
found.
that
visual,
T.
communicative
247-248.
Plaintiff's
claims
O’Connor
of
pain
nor
noted
were
not
completely credible pointing out that he was only taking Motrin and
Vicodin as needed and was not using a cane to ambulate despite his
claim that he needed one. T. 249.
Plaintiff had an appointment with Dr. Beecher on February 16,
2010 to review paperwork. T. 320. Dr. Beecher provided Plaintiff with
a prescription for more physical therapy and completed a DSS form.
T. 320. Plaintiff was continued on Ibuprofen and Flexeril. T. 320.
Dr. Beecher examined Plaintiff on May 18, 2010 for hip therapy.
T. 264.
Plaintiff was taking Ibuprofen and Flexeril three times a
day and was prescribed Vicodin to take as needed for severe pain.
T.
264.
Dr.
Beecher
referred
Plaintiff
to
an
orthopedist
for
evaluation and injection therapy. T. 264.
Plaintiff was examined by Dr. Beecher on July 15, 2010 for left
hip pain. T. 260. The medical notes indicate that Plaintiff requested
a
doctor's
excuse
for
DSS
from
a
work
requirement.
T.
260.
Dr. Beecher advised Plaintiff to continue with Ibuprofen, Flexeril
and Vicodin as needed for pain and he gave him an excuse note from
doing maintenance work. T. 260.
6
Dr. Beecher saw Plaintiff on September 28, 2010 and again on
December 21, 2010 for his left hip pain. T. 256. Sizer was advised to
continue
with
current
medications
and
again
referred
to
an
orthopedist. T. 254, 256. Dr. Beecher noted that a trial injection by
the orthopedist in the groin area was not successful in easing the
pain. T. 254.
On February 1, 2011, Plaintiff was treated by Dr. Beecher for
continued
complaints
of
left
hip
pain.
T.
252.
Sizer
wanted
an
updated excuse from work assignment as he felt he could not work.
T. 252. He was advised to stop Flexeril but continue Ibuprofen and
Vicodin for pain. T. 252.
A Physical Assessment for Determination of Employability for
Monroe
County
Department
of
Human
Services
was
completed
on
February 10, 2011 by Dr. Beecher who indicated that Sizer was unable
to work for six months for severe hip arthritis. T. 284. He limited
Plaintiff to be able to walk, stand, sit, push, pull, bend and lift
or carry only one to two hours in an eight hour workday. T. 286.
Dr.
Beecher
completed
a
Physical
Impairment
and
Residual
Functional Capacity Questionnaire regarding Plaintiff on April 26,
2011 in which he noted that Plaintiff's prognosis was "poor" because
he would likely need a total hip replacement. T. 288. He reported
that Plaintiff was in severe constant pain in the left hip to groin.
T. 288.
Dr. Beecher opined that the impairments were reasonably
consistent with the symptoms and functional limitations described in
7
this document. T. 289. Dr. Beecher opined that Plaintiff's pain was
severe
enough
to
constantly
interfere
with
his
attention
concentration needed to perform even simple work tasks.
and
T. 289.
However, Dr. Beecher noted that Plaintiff was capable of low stress
or high stress jobs as stress was not an issue as much as physical
impairment. T. 289. He estimated that Plaintiff could walk less than
one block and could only sit for 15 or 20 minutes at a time and stand
for 5 to 10 minutes. T. 289-290. Plaintiff could sit at least 6 hours
in an 8 hour work day and stand or walk less than 2 hours. T. 290.
Plaintiff would need to walk around every 20 minutes for about five
minutes at a time in an 8 hour workday. T. 290. Sizer would need a
job that permits shifting positions at will and take unscheduled
breaks for approximately five minutes. T. 290. Dr. Beecher noted that
Plaintiff could occasionally lift less than 10 pounds but never more
than 10 pounds. T. 291. Sizer could frequently look down, turn his
head, look up or hold head still. He should rarely twist or climb
stairs but never stoop, crouch/squat, and climb ladders. T. 291.
Dr.
Beecher
opined
that
Plaintiff
should
avoid
all
exposure
to
extreme cold, wetness, humidity and hazards but had no restriction to
extreme heat, noise and fumes or odors. T. 292.
The medical records indicate that Dr. Beecher met with Plaintiff
on
April
26,
2011
to
complete
the
Residual
Physical
Capacity
Assessment form together. T. 302. During this visit, the examination
8
showed that Plaintiff had limited painful flexion at 60 degrees and
was mildly tender laterally. T. 302.
Soon
after
this
Residual
Functional
Capacity
Assessment
was
completed, on May 18, 2011 Plaintiff's attorney contacted Dr. Beecher
by letter pointing out that there was an inconsistency between this
form in which Dr.
six
hours
and
Beecher indicated that Sizer could sit up to
earlier
records,
and
another
to
Monroe
County
Department of Social Services in which he indicated that Sizer could
sit for only 1 to 2 hours and another medical note from March 31,
2009 in which he indicated that Sizer could only sit for 30 minutes
at a time. T. 294. The attorney specified to Dr. Beecher that Sizer
cannot demonstrate that he is disabled if the record shows that he
can sit for six hours and asks that Dr. Beecher to clarify the issue
by explaining that Sizer has good days and bad days and that some
days he may be able sit for longer periods of time than others and
that Sizer's condition only improved slightly in the past two years.
T. 294.
On September 1, 2011, Plaintiff was examined by Dr. Beecher.
T. 91. Sizer had been treated with land and water based physical
therapy without lasting improvement. T. 91. Sizer reported that he
wanted to go back to an orthopedist regarding surgery. Dr. Beecher
continued Plaintiff on Ibuprofen, Vicodin and added Elavil to help
with sleep, depression and chronic pain. T. 91. Similarly, at his
9
October 4, 2011 appointment with Dr. Beecher, Plaintiff was continued
on his medications and physical therapy.
Dr.
Beecher
examined
Plaintiff
T. 89.
on
November
18,
2011
for
worsening left hip and groin pain. T. 82. Sizer reported that water
therapy and other physical therapy sessions were not helpful and
wanted stronger pain relief. T. 82. Dr. Beecher noted that Plaintiff
walked
with
continued
a
limp
Vicodin,
and
obvious
Ibuprofen
discomfort.
and
T.
Amitriptyline
82.
for
Dr.
Beecher
pain
and
recommended seeing an orthopedist for surgery consideration. T. 82.
Images taken on December 8, 2011 indicate that Plaintiff had marked
osteoarthritis in the left hip. T. 81.
Plaintiff received physical therapy from January, 2012 through
July, 2012. T. 14. In a form completed for therapy, Sizer indicated
that he was having moderate difficult doing his usual work or house
work, lifting objects, performing light activities around the house
and rolling over in bed. T. 20. He self reported that he had "quite a
bit of difficulty" getting into or out of bed, putting on shoes,
squatting,
walking
hopping. T. 20.
two
blocks,
going
up
or
down
ten
stairs,
or
Finally, he reported "extreme difficulty or unable
to perform" usual recreational or sporting hobbies, heavy activities
around the house, walking 2 blocks, walking a mile, standing or
sitting for one hour, and running. T. 20.
Plaintiff
was
referred
to
Dr.
Christopher
Orthopaedist, for left hip resurfacing. T. 47.
10
Drinkwater,
an
The images show that
Sizer had "advanced arthritic change" in the left hip and "moderateadvanced arthritic change" in the right hip and he reported extreme
pain in his left hip, groin area with walking and activities of daily
living.
T.
38,
47.
Plaintiff
had
active
left
hip
flexion
to
60 degrees with pain. He also had pain with log roll maneuvers,
external
rotation,
and
internal
rotation
to
10
degrees
before
experiencing pain in the groin. T. 47. Dr. Drinkwater performed left
hip resurfacing on April 11, 2012. T. 33. Severe degenerative changes
were noted during the procedure. T. 33.
On May 7, 2012, Plaintiff had images taken of the deep venous
system of the left lower extremity at high resolution. T. 27. These
images showed no evidence of deep venous thrombosis. T. 27.
Plaintiff was treated on May 3, 2012 by Dr. Beecher for a follow
up on the left hip. T. 66. Dr. Beecher noted that the resurfacing
surgery went well but Plaintiff was still in pain, using Motrin and
Vicodin as needed for the pain. T. 66. Plaintiff was in "no acute
distress sitting" but "rises with mild distress" and walks with a
cane. T. 66.
Dr. Beecher completed a Physical Residual Functional Capacity
Questionaire for Sizer on June 20, 2012.
In this form, Dr. Beecher
noted that he had been Plaintiff's primary care physician since 2010.
T.
7.
He
considered
Sizer
to
have
a
"fair"
prognosis
for
his
condition of osteoarthritis of the left hip. T. 7. He noted that
Sizer had persistent pain in the left hip and back as well as in the
11
groin and radicular pain in the left leg. T. 7. Plaintiff was unable
to squat with the left hip and had a mild antalgic gait. T. 7.
Plaintiff
was
taking
Motrin
and
Vicodin
for
the
pain.
He
had
completed physical therapy and was scheduled for water therapy. His
condition is "likely permanent." T. 7.
Plaintiff
experienced
pain
frequently
Dr. Beecher opined that
and
based
on
Plaintiff's
"declaration of ongoing pain," Sizer was incapable of even low stress
jobs. T. 8.
In an 8 hour working day, Dr. Beecher thought Plaintiff
could stand or walk less than 2 hours and sit at least 6 hours. T. 9.
He further noted that Plaintiff would need periods of walking around
during an 8 hour day every 15 minutes and walk 2 to 3 minutes at a
time. T. 9. Sizer would need a job that permits shifting positions at
will from sitting to standing or walking and need unscheduled breaks.
T. 9. Sizer did not need any assistive device to walk and did not
need his legs elevated. T. 9. He could only rarely lift less than 10
pounds. T. 9.
Sizer could frequently look up or down, turn his head,
and hold his head still. T. 10.
Dr. Beecher noted that Plaintiff
should never stoop, crouch, squat or climb ladders and rarely twist
and climb stairs. T. 10.
B. Plaintiff's Hearing Testimony
Plaintiff
testified
that
he
last
worked
doing
assembly,
maintenance and janitorial work in temporary assignments. T. 103.
On a typical day, Plaintiff might go to physical therapy which
he does twice a week. T. 103. He does his own grocery shopping,
12
cleaning his room and taking care of personal care. T. 104. Sizer
goes shopping with someone to help with transportation and lifting
anything more than 10 pounds. T. 105.
Plaintiff testified that he can't work because of his left hip,
groin and leg pain. T. 107. Plaintiff testified that he was injured
while
working
backfired.
for
Rochester
Aluminum
and
Bronze
when
a
machine
Sizer had his back to the machine, was startled, jumped
in the air and came down in a split. T. 107. His left hip hurt him
ever since. T. 107. He was taking motrin, Ibuprofen, Vicodin and
sometimes Flexeril at the time of the hearing. T. 106. He
took
Vicodin to help him sleep and after therapy. T. 106.
Sizer testified that he has had difficulty going up or down
stairs
for
the
four
years
up
to
and
including
the
time
of
the
hearing. T. 102. He lived in a one story house with a friend and
relies on family members to drive him when he needs to go somewhere.
T. 102. He testified that he was not able to drive a car because his
leg
could
not
sit
in
the
required
position.
T.
108.
Plaintiff
testified that he is not able to sit or stand for more than 15 to
20 minutes at a time before he needs to move around. T. 105.
C. Vocational Expert Testimony
A vocational expert testified at the hearing. He noted that
Plaintiff's past jobs required medium strength but unskilled work.
T. 111. The ALJ posed a hypothetical in which an individual was
13
limited to light work with the following additional limitations:
requires a sit/stand option to alternate between sitting and standing
positions
at
least
every
30
minutes;
occasionally
use
ramps
and
climbing stairs but never climbing ladders, ropes or scaffolds; only
occasional
balancing,
stooping,
kneeling,
crouching
and
crawling;
should avoid concentrated exposure to extreme cold, heat, wetness and
humidity; avoid concentrated exposure to fumes, odors, dust, gases,
and poor ventilation; and avoid hazards including moving machinery
and unprotected heights. T. 111-112. The Vocational Expert opined
that
given
the
same
education
and
background
as
Plaintiff,
this
individual could not do Plaintiff's past work. T. 112. However, the
Vocational
Expert
did
note
other
light
skilled
jobs
that
this
individual could do such as a mail clerk, stock checker apparel, and
ticket seller. T. 112.
When the ALJ reduced the hypothetical to sedentary work with the
same additional limitations, the Vocational Expert concluded that
such an individual could perform the jobs of ticket taker or checker,
surveillance-system monitor, and call-out operator. T. 113.
When the ALJ added any one of the additional limitations of
limited to sitting for two hours and standing and walking for two
hours in an eight hour day, or would be off task more than 20 percent
of the day due to concentration issues, or would require unscheduled
breaks,
or
would
be
absent
more
14
than
three
times
a
month,
the
Vocational Expert testified that none of the jobs would be available
to such an individual. T. 114.
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
pleadings.
(2d
Cir.
possible
Sellers
1988).
merely
v.
M.C.
If,
after
by
considering
Floor
Crafters,
reviewing
the
the
contents
of
the
639
Inc.,
842
F.2d
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).
15
II. The
Commissioner's
Determination
of
Plaintiff's
Functional Capacity is Supported by Substantial Evidence
Residual
The ALJ found that Plaintiff was not disabled within the meaning
of the Social Security Act.
Social
Security
In doing so, the ALJ adhered to the
Administration's
five
step
evaluating disability benefits. (Tr. 12-18)
sequential
analysis
The five step analysis
requires the ALJ to consider the following: 1) whether the claimant
is performing substantial gainful activity; 2) if not, whether the
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).
16
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 his alleged onset date of November 23, 2009. T. 122.
The ALJ next found that the Plaintiff suffered from the following
severe impairments: degenerative joint disease of the left hip and
asthma.
T.
122.
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. 18.
Further, the ALJ found that Plaintiff
had the residual functional capacity to perform the sedentary work as
defined in 20 C.F.R. § 416.967(a) except that he required a sit/stand
option,
allowing
standing
position
Plaintiff
to
every
minutes;
30
alternate
between
occasional
a
use
sitting
of
ramps
and
and
climbing stairs, but never climbing ladders, ropes or scaffolds;
occasional
avoiding
humidity,
should
balancing,
concentrated
fumes,
avoid
exposure
odors,
hazards
heights. T. 122.
stooping,
kneeling,
to
extreme
dusts,
gases,
including
moving
and
crouching,
cold,
poor
machinery
crawling;
heat,
wetness,
ventilation;
and
and
unprotected
The ALJ next determined that Plaintiff was not
able to perform his past relevant work. T. 125. 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 perform. T. 125.
17
Plaintiff argues that the ALJ erred by: 1) failing to properly
establish the Plaintiff's residual functional capacity; 2) failing to
apply
the
relevant
legal
standards
in
evaluating
Plaintiff's
credibility; and 3)failing to establish that there are jobs in the
economy
that
Plaintiff
could
perform.
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.
A.
There is Substantial Evidence in the Record to Support the ALJ's
Determination of Plaintiff's Residual Functional Capacity
Plaintiff argues that the ALJ erred in his determination of
Plaintiff's
residual
functional
capacity
("RFC")
by
improperly
evaluating the medical evidence. Specifically, he points out that the
ALJ
improperly
gave
Dr.
Beecher's
opinion
"little
weight"
and
substituted his own judgment for that of the treating physician and
consultative examiner.
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 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
18
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 with some additional limitations. (Tr. 122)
Sedentary work
involves lifting no more than ten pounds and involves limited walking
or standing. 20 C.F.R. § 404.1567(a).
The ALJ added the additional
limitations that Plaintiff required a sit/stand option allowing him
to alternate between sitting and standing position every 30 minutes,
occasional
ladders,
use
ropes
of
or
ramps
and
climbing
scaffolds,
stairs
occasional
but
never
balancing,
climbing
stooping,
kneeling, crouching, crawling and should avoid concentrated exposure
to extreme cold, heat, wetness, humidity, fumes, odors, dusts, gases
and poor ventilation as well as hazards such as moving machinery and
unprotected heights. T. 122. The ALJ reached this conclusion from a
review of all of the relevant medical evidence as well as evaluating
Plaintiff's subjective complaints.
Here, the ALJ properly considered the weight to be given the
medical opinions of Dr. Beecher and Dr. Boehlert and articulated good
reasons for not giving Dr. Beecher's opinion controlling weight.
The
ALJ gave Dr. Boehlert's opinion great weight as it was consistent
with the medical record and Plaintiff's activities of daily living.
19
Dr.
Boehlert
diagnosed
Plaintiff
with
severe
hip
pain,
chronic
musculoskeletal disease and asthma with limitations to heavy exertion
in a standing position. T. 243-44.
Plaintiff's treatment for osteoarthritis of the left hip had
been conservative. Plaintiff was treated with physical therapy and
pain medications as needed. Moreover, Plaintiff's activities of daily
living support the RFC. Plaintiff testified that he could lift a
gallon of milk, cook, clean, do laundry, shop, socialize with friends
and go to physical therapy twice a week. T. 104-105, 241-42.
Conversely, the ALJ gave little weight to the two RFC forms
completed by Dr. Beecher.
The two opinions, although prepared only
two months apart, were inconsistent with each other with regard to
Plaintiff's ability to walk, stand, sit, lift and carry.
In the
February 22, 2011 opinion, Dr. Beecher found that Plaintiff could
only walk, sit, stand, lift and carry for one to two hours per day.
T.
286.
Yet,
in
the
opinion
dated
April
26,
2011,
Dr.
Beecher
concluded that Plaintiff could sit for at least six hours in an
8-hour workday. T. 290. Even with the attorney letter attempting to
reconcile these two opinions, the ALJ properly concluded that the
opinions remained inconsistent with each other and with the medical
evidence
in
the
record.
T.
124.
In
a
third
RFC
assessment
by
Dr. Beecher dated June 20, 2012 which was submitted to the Appeals
Council with the request for review of the ALJ decision, Dr. Beecher
again opined that Plaintiff could
20
sit for 6 hours in an 8-hour
workday, consistent with his April, 2011 opinion. T. 9.
Finally, the
ALJ points out that Dr. Beecher is a family practitioner and not an
orthopedic specialist. T. 124.
Given the inconsistencies of Dr. Beecher's opinions as well as
the consistency of Dr. Boehlert's opinion with the objective medical
evidence and activities of daily living, I find substantial evidence
in the record to support the ALJ finding of Plaintiff's residual
functional capacity.
B.
The ALJ's Credibility Assessment is Supported by Substantial
Evidence
In determining Plaintiff's residual functional capacity, the ALJ
considered Plaintiff's statements about his 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. 124.
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
21
is not logical to decide a claimant’s RFC prior to assessing her
credibility. Id. This Court, as well as others in this Circuit, have
found it improper for an ALJ to find a Plaintiff’s statements not
fully credible simply “because those statements are inconsistent with
the ALJ’s own RFC finding.” Ubiles v. Astrue, No. 11-CV-6340T (MAT),
2012 WL 2572772, at *12 (W.D.N.Y. July 2, 2012) (citing Nelson v.
Astrue, No. 5:09-CV-00909, 2012 WL 2010 3522304, at *6 (N.D.N.Y.
Aug. 12, 2010), report and recommendation adopted, 2010 WL 3522302
(N.D.N.Y. Sept. 1, 2010); other citations omitted)). Instead, SSR 967p
requires
that
“[i]n
determining
the
credibility
of
the
individual’s statements, the adjudicator must consider the entire
case record.” SSR 96-7p, 1996 WL 374186, at *4 (S.S.A. July 2, 1996);
20 C.F.R. §§ 404.1529, 416.929.
However
evaluating
here,
all
credibility
of
prior
the
ALJ
the
required
to
measured
deciding
Plaintiff's
factors
bearing
Plaintiff’s
credibility
on
RFC.
by
Plaintiff’s
She
discussed
Plaintiff's daily activities, frequency and intensity 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 his left hip and groin, his treatment was conservative with
medication and physical therapy exercise. T. 123. Plaintiff remains
22
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 and indeed imposed a more restrictive RFC than that
suggested by Dr. Boehlert. For example, the ALJ found that Plaintiff
required a sit/stand option based on his testimony and Dr. Beecher's
opinion. Accordingly, Plaintiff's argument that the ALJ failed to
properly assess his subjective complaints is rejected.
C.
There is Substantial Evidence in the Record to Support the
Finding that there are Jobs in Significant Numbers in the Economy
that Plaintiff Can Perform
Lastly, Plaintiff argues that the ALJ erred when she relied on
the
Vocational
Expert
in
determining
that
there
were
jobs
that
existed in significant numbers in the national economy that Plaintiff
could perform. T. 125-126.
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).
23
Plaintiff objects that the hypothetical posed to the Vocational
Expert was based on an erroneous RFC due to the ALJ's errors with
regard to assessing Plaintiff's credibility and the proper weighing
of medical evidence. A Vocational Expert’s opinion in response to an
incomplete hypothetical question cannot provide substantial evidence
to support a denial of disability. See DeLeon v. Secretary of Health
and Human Servs., 734 F.2d. 930, 936 (2d Cir. 1984).
The vocational expert testified at Plaintiff's hearing that a
hypothetical individual with limitations that corresponded to the
ALJ's RFC assessment could perform the jobs of ticket taker/checker,
surveillance
system
monitor
and
call-out
operator.
T.
113.
The
vocational expert considered an individual of Plaintiff's age and
education who could perform sedentary work but that also needed to
sit/stand alternatively throughout the day at least every 30 minutes;
only occasionally use ramps and climb stairs and never climb ladders
ropes or scaffolds; only occasionally balance, stoop, kneel, crouch
and crawl and avoid concentrated exposure to extreme cold, heat,
wetness, humidity, fumes, odors, dust, gases and poor ventilation,
concluded
that
he
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 other jobs
that exist in significant numbers in the national economy. 20 C.F.R.
§404.1560(b)(2).
24
CONCLUSION
After careful review of the entire record, and for the reasons
stated, this Court finds that the Commissioner's denial of DIB and
SSI 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. 7). Plaintiff's motion for
judgment on the pleadings is denied (Dkt. No. 9), 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: Rochester, New York
December 3, 2013
25
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