Burgess v. Colvin

Filing 14

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 9 Commissioner's Motion for Judgment on the Pleadings; denying 12 Plaintiff's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. Signed by Hon. Michael A. Telesca on 5/9/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
PAULA A. BURGESS,
DECISION AND ORDER
No. 13-CV-6177(MAT)

Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION

Plaintiff, Paula A. Burgess (“Plaintiff” or “Burgess”), brings
this action pursuant to 42 U.S.C. § 405(g) of the Social Security
Act,

claiming

that

the

Commissioner

of

Social

Security

(“Commissioner” or “Defendant”) improperly denied her application
for Supplemental Security Income (“SSI”).
Currently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.

For the reasons set forth below, the

Court grants the Commissioner’s motion, denies the Plaintiff’s
cross-motion, and dismisses the Complaint.
PROCEDURAL HISTORY
On September 15, 2009, Plaintiff filed an application for SSI,
alleging disability as of February 1, 2009 due to bone dysfunction
in her neck, back and shoulders, high blood pressure, thyroid
problems and asthma.

Administrative Transcript [T.] 183.

December 16, 2009, the application was denied.

On

T. 71, 72-77, 82-

87.

At

Plaintiff’s

request,

an

administrative

hearing

was

conducted before administrative law judge (“ALJ”) John P. Costello,
at which Plaintiff, who appeared with a representative, testified
as did a vocational expert (“VE”).

T. 26-70, 88-90.

On August 8,

2011, the ALJ issued a decision finding that Plaintiff was not
disabled during the relevant period.

T.

16-22.

The Appeals Councils denied Plaintiff’s request for review,
making the ALJ’s Decision the final decision of the Commissioner.
T. 1-4.

This action followed.
FACTUAL BACKGROUND

Plaintiff’s Physical Health History
Prior to the protective filing date of September 15, 2009,
Plaintiff was treated in 2008 at Orthopedic Associates of Rochester
(“OAR”) for right shoulder discomfort and was diagnosed with AC
joint athrosis and mild impingement syndrome.
ibuprofen and physical therapy (“PT”).

She was prescribed

T. 221-222.

On September 5, 2008, Plaintiff was seen at East Ridge Family
Medicine (“ERFM”) for swollen ankles.

T. 234.

She was diagnosed

with peripheral edemea and prescribed Lasix. T. 234-235. Later in
September, Plaintiff returned to ERFM and reported that she had
attended PT and had taken ibuprofen, which made her shoulder feel
better.

T. 223-224.

Upon examination, Plaintiff’s shoulder had

excellent range of motion and only mild discomfort with internal
rotation.

Plaintiff’s rotator cuff strength was full and equal,

-2-

her impingement sign was negative, and she was advised to continue
PT and perform home exercises after PT ended.

T. 223.

In July 2009, Plaintiff returned to ERFM and complained of
increasing pain in her right shoulder, neck and back.

T. 229.

Upon physical examination, Plaintiff’s lower back, right shoulder
and trapezius were tender to palpation.

Diana Herrmann, M.D.

reported that Plaintiff was disabled from her regular duties and
was totally disabled since January 2009.

Plaintiff was prescribed

Flexeril, ibuprofen, given a weight restriction for lifting, and
referred to an orthopedist.

T. 229.

On September 9, 2009, Plaintiff returned to ERFM to have a
form for County Social Services completed. Dr. Herrmann noted that
Plaintiff failed to follow-up with an orthopedist and had stopped
PT.

Plaintiff was again referred to an orthopedist.
In

November

2009,

after

the

protective

T. 227-228.

filing

date

of

September 15, 2009, Sandra Boehlert, M.D. performed a consultative
examination of Plaintiff.

T. 248-251.

Dr. Boehlert noted that

Plaintiff did not use an assistive device, had a normal gait and
stance, she could walk heel to toe, could fully squat, was able to
rise from a chair without a problem, could get on and off the exam
table, and could change for the exam without assistance.

T. 249.

Dr. Boehlert also noted that Plaintiff’s cervical spine showed full
flexion and extension bilaterally, and that she had no scoliosis,
kyphosis, or abnormality in her thoracic spine. Plaintiff’s lumbar
spine showed limited flexion, full extension, and full rotary

-3-

movement.

Her straight leg raises were negative bilaterally, she

had full range of motion in her shoulders, elbows, forearms, and
wrists bilaterally.

Dr. Boehlert noted that Plaintiff had full

range of motion in her hips, knees, and ankles bilaterally, and
full

strength

in

her

upper

and

lower

extremities.

T.

250.

Dr. Boehlert reported that Plaintiff’s x-rays of her lumbosacral
spine showed degenerative changes at L5-S1, normal sacroiliac
joints, and no fracture dislocation.
that

Plaintiff

had

“moderate

T. 252.

limitations

Dr. Boehlert opined
to

heavy

exertional

activity during episodes of athralgias[,]” but that she had no
chronic daily long-term limitations.

T. 251.

In December 2009, Plaintiff was seen by Christine Hamblin, RPA
at OAR complaining of increased pain and limited movement in her
right shoulder.

T. 285.

Hamblin noted that Plaintiff’s active

shoulder range of motion was approximately 50% due to pain and her
passive range of motion was near full with discomfort.

T. 285.

She noted that Plaintiff’s apprehension test and relocation tests
were mildly positive, her drop arm test was negative, and her
rotator cuff strength was full with pain on testing.

Hamblin

administered a steroid injection and told Plaintiff to return in
five weeks.

T. 283-284.

On January 12, 2010, Hamblin saw Plaintiff again, at which
time Plaintiff reported that her shoulder felt 80% better after the
December injection.

T. 283.

Upon examination, Hamblin reported

that Plaintiff’s range of motion had significantly improved and was

-4-

nearly 100% in all directions. Hamblin reported that Plaintiff was
doing “excellent,” and recommended that Plaintiff do strength
exercises and return on an as-needed basis.

T. 284.

On March 5, 2010, Plaintiff saw Dr. Herrmann for a follow-up
from 2009.

T. 359.

Dr. Herrmann noted that Plaintiff reported

that she broke up with her boyfriend, moved to an apartment with
her teenage son, and she was caring for her ailing mother in
hospice.

T. 359.

Plaintiff

Upon examination, Dr. Herrmann reported that

appeared

tired,

that

she

had

a

wheeze

on

lung

examination, and that Plaintiff was back to smoking again. T. 359,
360.
In April 2010, Plaintiff met with RPA Christina Hatfield at
OAR

for

recurring

right

shoulder

pain.

T.

281-282.

Upon

examination, Hatfield reported that Plaintiff’s cervical spine was
non-tender and exhibited pain-free range of motion.

T. 282.

Plaintiff’s right shoulder retained full active forward elevation
and abduction with mild impingement and was able to reach behind
her back and rotate below the T12 level.

Hatfield noted that

Plaintiff’s rotator cuff strength was intact and that Plaintiff was
minimally tender to palpation over the AC joint. Hatfield assessed
rotator cuff tendonitis, administered a cortisone injection, and
recommended follow-up on an as needed basis.

T. 282.

On May 26, 2010, Plaintiff saw Dr. Herrmann stating that she
was “miserable” and complaining of problems with her peripheral
edema.

T. 350.

Upon examination, Dr. Herrmann reported that

-5-

Plaintiff had a trace of edema around her lateral malleolus, but
that

she

was

“not

impressed

with

any

degree

of

edema.”

Dr. Herrmann advised Plaintiff to limit her salt intake and elevate
her legs in hot weather.
continued to smoke.

Dr. Herrmann also noted that Plaintiff

T. 351.

In August 2010, Plaintiff saw RPA Hamblin again complaining of
right

shoulder

pain

and

limited

movement.

Hamblin

examined

Plaintiff and noted that Plaintiff “overall appeare[d] to be in no
acute distress[,]” her C-spine was supple and pain-free with range
of motion, her right shoulder elevation was painful, her internal
rotation was limited, and Plaintiff had a “strongly positive”
impingement sign.

Hamblin noted that Plaintiff was tender along

the coracoid ligament, her drop arm test was negative, her rotator
cuff strength appeared intact, and no gross neurovascular deficits
were present.

Plaintiff was given a steroid injection, instructed

to rest her shoulder in a sling and perform exercises, and to
return in four weeks.

T. 280.

In September 2010, Plaintiff saw Hamblin reporting that her
pain and range of motion had significantly improved since her
steroid injection and she denied any weakness.

Hamblin assessed

that Plaintiff’s shoulders had normal and equal range of motion,
impingement signs were negative, her rotator cuff strength was
full, and she had no gross neurovascular deficits.
declined

referral

to

physical

therapy

and

was

instructed

continue home exercise, as well as icing and elevation.

-6-

Plaintiff
to

T. 278.

Plaintiff returned to Hamblin in October 2010 and her findings
were generally unchanged since Plaintiff’s last visit.

Hamblin

noted that Plaintiff was doing “excellent,” advised her to continue
with her strengthening exercises and to avoid heavy lifting,
pushing, and pulling.
In

January

complaining

of

T. 276.

2011,
constant

Plaintiff

returned

back

for

pain

the

to

Dr.

past

Herrmann

three

weeks.

Dr. Herrmann noted that Plaintiff exhibited tenderness to low back
palpation

and

had

pain

that

radiated

from

her

mid-back.

Plaintiff’s strength and sensation in her lower extremities was
reported as “good.”

Dr. Herrmann noted that Plaintiff was unable

to work and that she was totally disabled.

T. 343.

On March 23, 2011, Plaintiff saw Clifford Everett, M.D. of
Strong Memorial Hospital’s orthopedics departments complaining of
neck and low back pain.

Plaintiff reported that her pain had

started after an auto accident in 2007, that her activities were
limited, and that medication gave her little relief.
Diagnostic

imaging

of

degenerative changes.

Plaintiff’s

T. 271.

cervical

T. 269, 271.

spine

showed

Dr. Everett noted that Plaintiff’s

gait was normal, she could heel to toe walk, her straight leg tests
were negative, her sensory and reflex exams were normal, and her
strength was full.

T. 270-271.

On March 30, 2011, Plaintiff underwent a lumbar spine MRI that
showed severe degenerative disease at L5-S1 with disc bulge,

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intravertebral space and bilateral neuroforminal narrowing, and
mild spinal stenosis.

T. 272-273.

In April 2011, Plaintiff returned to Dr. Everett complaining
of back and neck pain. She reported that pain medications afforded
little relief and restricted her activities.

T. 267.

Dr. Everett

advised Plaintiff that there was no surgical option or injection
for her condition and recommended pain management.
273.

T. 268, 272-

Dr. Everett opined that Plaintiff was limited from prolonged

sitting and standing and that she needed to change positions
hourly.

He assessed that Plaintiff could lift up to 20 lbs

occasionally and 10 lbs frequently.

T. 268.

Also in April 2011, Plaintiff saw Dr. Herrmann again, who
noted that Plaintiff did not take her thyroid medication and failed
to use her inhaler, as directed.

T. 336.

On May 17, 2011,

Dr. Herrmann completed disability paperwork for Plaintiff, and
noted that Plaintiff had been referred to a pain clinic but had
failed to show up.

T. 334-335.

Dr. Herrmann completed a medical assessment form that same
day.

She assessed that Plaintiff could lift or carry no more than

2 lbs, stand/walk 30 minutes at a time for 1 hour in a workday, and
sit 30 minutes at a time for a cumulative total of 4 hours in a
workday

because

of

degenerative

disc

disease.

T.

264-265.

Dr. Herrmann indicated that Plaintiff could occasionally climb and
balance and could never perform other postural activities. T. 256.
Dr. Herrmann also indicated that reaching and pushing/pulling were

-8-

affected by Plaintiff’s right shoulder rotator cuff tendonitis.
T. 265. Dr. Herrmann also opined that Plaintiff could not climb to
heights and could not tolerate environmental irritants such as
dust, fumes, and humidity.

T. 266.

Dr. Herrmann also indicated

that Plaintiff had restrictions with respect to heights, machinery,
temperature extremes, chemicals, dust, fumes and humidity. T. 256.
On May 25, 2011, Dr. Herrmann completed a form for Plaintiff to get
a handicapped parking permit, at which time she indicated that
Plaintiff had low back pain and degenerative disc disease and that
Plaintiff could not walk 200 feet without stopping.

T. 211.

In June 2011, Plaintiff saw Hamblin, who conducted a physical
examination of Plaintiff and instructed her to avoid lifting,
pushing, and pulling heavy items.

T. 325.

Also in June

2011,

Dr. John E. Klibanoff of OAR completed a medical assessment form,
in which he indicated that Plaintiff could occasionally lift 5 lbs
and could lift an unknown amount once every four hours, she could
never climb, was able to frequently balance, and could occasionally
kneel, crawl, crouch, and stoop.

T. 322.

Dr. Klibanoff assessed

that Plaintiff had no limitations with respect to her ability to
sit, stand, and walk.

T. 321-322.

Dr. Klibanoff also assessed

that, due to Plaintiff’s shoulder tendonitis and limited shoulder
movement, Plaintiff’s abilities to reach, handle, push, and pull
were affected, and that she had no environmental limitations.
T. 323.

-9-

Plaintiff’s Mental Health History
Prior to the protective filing date of September 15, 2009,
Plaintiff received mental health treatment for depression since
2000.

T. 291.

After

the

protective

filing

date,

Plaintiff

was

seen

periodically at the Behavioral Health Network for depression and
stress-related issues. T. 292-317, 318-320. Plaintiff was treated
with counseling sessions and medication, although she sometimes
missed appointments and did not use her prescribed medications.
T. 294, 312, 352.
On May 26, 2011, Plaintiff’s therapist Tammie Raucci, MSW,
completed a mental limitation form.

T. 289-291.

Raucci assessed

that Plaintiff had moderate limitations in most areas of mental
functioning, except for moderately severe limitations in responding
to supervision and work pressures, meeting attendance, quality and
production standards, and mild limitations in memory, orientation,
hallucinations.

She also noted that Plaintiff had no delusions,

illogical associations of ideas, autistic or regressive behaviors.
T. 289-291.
disorder.

Raucci diagnosed Plaintiff with major depressive

T. 293.

Hearing Testimony
Plaintiff’s Testimony
Plaintiff, who was born in 1962, previously worked as a gas
station attendant, a waitress, a secretary, and a cashier at Rite
Aid.

T. 31-38.
-10-

Plaintiff testified that she receives welfare from social
services, Medicaid, and food stamps.

T. 31.

According to her, she

is unable to work due to her health problems, including a sore
lower back, arthritis in her right shoulder and neck, pain in her
left rotator cuff, asthma, and depression.

T. 38-50.

Plaintiff testified that the heaviest weight she can lift is
her 7 lb grandson.

T. 41.

She also testified that she can sit for

about 20 minutes and then needs to stand, but can only do so for
about 25 minutes.

T. 42.

Plaintiff testified that she takes

various medications for her back pain, the strongest of which is
Oxycodone.

T. 43.

With respect to her right shoulder issues, she testified that
she gets cortisone injections, which help “immensely.” T. 45. She
testified that she can reach overhead “as long as [she] doesn’t
have to keep doing it.”

T. 46.

Plaintiff testified that she takes Advair and Dunalen for her
asthma.

T. 48.

With respect to her neck, Plaintiff testified that she has
arthritis and that she has never had surgery for the problem.

She

takes “pain pills,” muscle relaxers and administers hot compresses.
T. 50.

Turning her head makes the pain worse.

T. 50.

Plaintiff also testified that she suffers from depression and
has received treatment at Rochester Mental Health for years.

She

testified that she finds therapy sessions helpful and that she
takes medications for her depressive condition that help her cope.

-11-

T. 52.

Plaintiff testified that she has problems sleeping, takes

sleeping pills, and naps during the day.

T. 52-53.

According to

her, she has gained about 25 lbs in the past three months as a
result of her depression, which has caused her ankles and feet to
swell.

T. 54.

Plaintiff testified that on an average day she wakes up, has
breakfast, and watches television.

T. 57.

She testified that she

has a driver’s license and a car and sometimes drives to the
grocery store, her daughter’s house or her brother’s house when her
son lets her have the car.

T. 58.

The VE’s Testimony
A VE testified that Plaintiff was a younger individual with a
high school education. T. 65.
an

individual

of

Plaintiff’s

The ALJ set forth a hypothetical of
age,

education,

and

past

work

experience who could perform light work, was limited to simple,
repetitive

tasks,

occasional

overhead

reaching,

had

to

avoid

concentrated or excessive exposure to respiratory irritants and
other environmental extremes.

T. 65-66.

The VE testified that

such a person could not perform Plaintiff’s past work.
The ALJ then asked the VE to considered the same hypothetical
as the first except that he added that the person would be off task
25% of the time due to impaired concentration.
that such a person could not work.

The VE testified

T. 67.

The ALJ then posed a third hypothetical identical to the first
but that the individual was able to perform sedentary work.
-12-

T. 67-

68.

The VE testified that there were jobs in significant numbers

in the national economy that such a person could perform, including
general assembler and addresser.

T. 51.

DISCUSSION
I. Jurisdiction and Scope of Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405 (g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g)(2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)); see also Metropolitan Stevedore Co. v.
Rambo, 521 U.S. 121, 149 (1997).
Section 405 (g) limits the scope of the Court’s review to two
inquiries: determining whether the Commissioner’s findings were
supported by substantial evidence in the record as a whole, and
whether the Commissioner’s conclusions are based upon an erroneous
-13-

legal standard. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d
Cir. 2003); see also Mongeur, 722 F.2d at 1038 (finding a reviewing
court does not try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings 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, 642
(2d Cir. 1988).

A party’s motion will be dismissed if, after a

review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).
II.

The Commissioner’s Decision Denying Plaintiff Benefits is
Supported by Substantial Evidence in the Record
The Social Security Administration has promulgated a five-step

sequential analysis that the ALJ must adhere to for evaluating
disability claims.

20 C.F.R. § 404.1520.

Pursuant to this

inquiry:
First, the Commissioner considers whether the
claimant is currently engaged in substantial
gainful
activity.
If
he
is
not,
the
Commissioner considers whether the claimant
has a “severe impairment” which significantly
limits his ability to do basic work activity.
If the claimant has such an impairment, the
Commissioner considers whether, based solely
on medical evidence, the claimant has an
impairment which is listed in Appendix 1,
Part 404, Subpart P. If the claimant does not
have a listed impairment, the Commissioner
inquires whether, despite the claimant's
impairment, he has the residual functional
-14-

capacity to perform his past work. If he is
unable
to
perform
his
past work,
the
Commissioner determines whether there is other
work which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 466-67 (2d Cir. 1982).
The

ALJ

in

this

case

used

this

sequential

procedure

to

determine Plaintiff’s eligibility for disability benefits. The ALJ
first found that Plaintiff did not engage in substantial gainful
activity since September 15, 2009.

T. 18.

At step two, the ALJ

found that Plaintiff had the severe impairments of cervical and
lumbar pain, right shoulder tendonitis, depression, peripheral
edema, obesity, and asthma.

T. 18-19.

At step three, the ALJ

found that Plaintiff did not have an impairment or combination of
impairments
Impairments.

that

meets

T. 19.

or

medically

equals

one

the

Listed

The ALJ then found that Plaintiff retained

the residual functional capacity (“RFC”) to perform sedentary work,
except

that

she

is

limited

to

simple,

repetitive

tasks

and

occasional overhead reaching and must avoid concentrated exposure
to respiratory irritants.

T. 20-21.

Next, the ALJ found that

Plaintiff is unable to perform any past relevant work but that
considering Plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform.

T. 21-22.

Therefore, the ALJ

concluded that Plaintiff was not disabled under the Act.

T. 22.

The Commissioner argues that the ALJ’s decision is supported
by substantial evidence and correct as a matter of law.
No. 9-1.

Dkt.

Plaintiff counters, arguing that: (1) the Commissioner
-15-

erred in omitting a discussion of Listing 1.04 at Step 3 of the
sequential evaluation; (2) the Commissioner’s determination that
Plaintiff is not disabled is against the weight of the substantial
evidence,

and

violates

the

treating

physician

rule;

(3)

the

Commissioner improperly assessed Plaintiff’s credibility and her
complaints of pain and other symptoms; (4) the vocational expert
was not properly qualified; and (5) the SCO guidelines do not
support the demands of the ALJ’s proposed occupations.

Dkt.

No. 12-1 at Points A-E.
A.

Listing 1.04(C)

At Step 3 of the sequential analysis, the ALJ considered
whether Plaintiff had an impairment or combination of impairments
that

met

or

equaled

Listing

1.00

for

disorders

of

the

musculoskeletal system.

T. 19.

Plaintiff argues that the ALJ

erred, however, in also failing to consider whether her back
impairment met or medically equaled Listing 1.04(C) (“Disorders of
the Spine”).

Dkt. No. 12-1 at Point A.

“The Social Security regulations list certain impairments, any
of which is sufficient, at step three, to create an irrebuttable
presumption of disability.”

DeChirico v. Callahan, 134 F.3d 1177,

1180 (2d Cir. 1998) (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)).
“The regulations also provide for a finding of such a disability per
se if an individual has an impairment that is ‘equal to’ a listed
impairment.”

Id. (citing 20 C.F.R. 404.1520(d) (“If you have an

impairment(s) which . . . is listed in appendix 1 or is equal to a
-16-

listed impairment(s), we will find you disabled without considering
your age, education, and work experience.”)).
Individuals suffering a disorder of the spine are disabled per
se if they meet the criteria specified in the regulations.

The

listing plaintiff claims the ALJ should have considered is Listing
1.04(C), which provides that:
Disorders of the spine (e.g., herniated
nucleus pulposus, spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture),
resulting in compromise of a nerve root
(including the cauda equina) or the spinal
cord.
With: C. Lumbar spinal stenosis
resulting in pseudoclaudication, established
by
findings
on
appropriate
medically
acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting
in inability to ambulate effectively, as
defined in 1.00B2b.
20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.04.
Listing 1.00B2b provides as follows:
The inability to ambulate effectively means an
extreme limitation of the ability to walk;
i.e., an impairment(s) that interferes very
seriously with the individual's ability to
independently initiate, sustain, or complete
activities. Ineffective ambulation is defined
generally
as
having
insufficient
lower
extremity functioning to permit independent
ambulation without the use of a hand-held
assistive
device(s)
that
limits
the
functioning of both upper extremities.
Plaintiff points out that her lumbar spine MRI from March 2011
showed severe disc degenerative disease with intervertebral space
narrowing and bilateral neuroforaminal narrowing, along with spinal

-17-

canal stenosis.

Dkt. No. 12-1 at 14-15 (citing T. 272-273).

Plaintiff also notes that x-rays of her lumbosacral spine from
November 2009 show degenerative changes at L5-S1.

T. 252.

Even

assuming arguendo that Plaintiff can establish the first element by
showing

degenerative

disc

disease

with

spinal

canal

stenosis

resulting in the compromise of a nerve root, Plaintiff’s back
impairment does not meet all the specified medical criteria of
Listing 1.04(C), which include an inability to ambulate effectively.
To qualify for benefits at step three, claimants must show that
their impairments “meet all of the specified medical criteria” for
the particular listing.
(1990).

Sullivan v. Zebley, 493 U.S. 521, 530

Here, there is no objective medical evidence in the record

showing an “extreme limitation of the ability to walk,” as defined
in the Regulations.

Rather, treatment notes overall show that

Plaintiff had a normal gait (see e.g., T. 357, 349, 270) and could
walk normally heel to toe (T. 270).

Further, consultative examiner

Dr. Boehlert noted that Plaintiff did not use any assistive devices,
had a normal gait and stance, could walk heel to toe, could rise
from a chair without difficulty, and could get on and off the exam
table and change without assistance. T. 249. Dr. Boehlert assessed
that Plaintiff had no chronic daily-term limitations.

T. 251.

Moreover, Plaintiff herself testified at her hearing with respect
to her mobility/ability to ambulate, specifically stating that she
is able to make herself breakfast, is able to wash dishes standing

-18-

up for about 4 or 5 minutes at a time, that she drives, and that
several times a week she drives herself to the grocery store, her
brother’s house, and her daughter’s house.

T. 58-59.

Accordingly, any error in the ALJ’s failure to consider whether
Plaintiff’s back impairment met or equaled Listing 1.04(C) is
harmless because no view of the evidence would support a finding
that Plaintiff’s back impairment met all the specified medical
criteria of Listing 1.04(C).
B.

The ALJ’s RFC Determination

The ALJ determined that Plaintiff had the ability to perform
sedentary work, except that she was limited to simple, repetitive
tasks, occasional overhead reaching and must avoid concentrated
exposure to respiratory irritants.

T. 20.

Plaintiff claims that

the ALJ’s RFC determination is flawed insofar as it is unsupported
by and inconsistent with the evidence in the record and is violative
of the treating physician rule.
Initially,

the

opinion

Dkt. No. 12-1 at 15.
of

a

consultative

examiner

may

constitute substantial evidence in support of an ALJ’s decision.
See Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995);

Mongeur v.

Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (citations omitted).
The examination findings from consultative examiner Dr. Boehlert
substantially support the ALJ’s physical RFC finding.

T. 21.

Upon examination, Dr. Boehlert noted that Plaintiff appeared
to be in no acute distress, her gait was normal, she could walk on

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her heels and toes without difficulty, squat fully, her stance was
normal, she used no assistive devices, needed no help changing for
exam or getting on and off the exam table, and that she was able to
rise from the chair without difficulty. T. 249. Dr. Boehlert noted
further

that

Plaintiff’s

cervical

spine

showed

full

flexion,

extension, lateral flexion bilaterally, and full rotary movement
bilaterally. No scoliosis, kyphosis, or abnormality in her thoracic
spine was reported.

Dr. Boehlert reported that Plaintiff’s lumbar

spine showed limited flexion, but full extension, full lateral
flexion

bilaterally,

and

full

rotary

movements

bilaterally.

Dr. Boehlert also reported that Plaintiff had full range of motion
in her shoulders, elbows forearms and writs bilaterally, hips,
knees, and ankles bilaterally. Dr. Boehlert reported that Plaintiff
had full strength in her upper and lower extremities, no evident
subulaxations, contractures, ankylosis or thickening, her joints
were stable and non-tender and there was no redness, heat, swelling
or effusion. T. 250. Dr. Boehlert also assessed that Plaintiff had
no motor or sensory deficits, no muscle atrophy, her hand and finger
dexterity were intact, and her grip strength was full bilaterally.
Dr. Boehlert reported that diagnostic pulmonary testing revealed
mild obstruction.

T. 251.

Dr. Boehlert therefore opined that

Plaintiff had moderate limitation to heavy exertional activity
during episodes of arthralgias, and no chronic daily long-term
limitations.

T. 251.

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Moreover, the ALJ properly applied the treating physician rule
and afforded less than controlling weight to the opinions of
treating

physicians

Klibanoff

and

Plaintiff’s physical limitations.

Herrmann

T. 20-21.

with

respect

to

The Social Security

Regulations provide that “controlling weight” will be giving to a
“treating source’s opinion” regarding the nature and severity of the
Plaintiff’s

impairments.

416.927(d)(2).

See

20

C.F.R.

§§

404.1527(d)(2),

However, where as here, when a treating physician’s

opinion is inconsistent with even her own treatment notes, the ALJ
may properly discount that opinion. See generally Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (Although the treating
physician rule generally requires deference to the medical opinion
of a claimant’s treating physician, the opinion of the treating
physician is not afforded controlling weight where that physician
issued opinions inconsistent with other substantial evidence in the
record).
Here, the ALJ properly afforded “some,” rather than controlling
weight, to treating physician Klibanoff’s opinion that Plaintiff’s
physical functioning was significantly limited, given that his
evaluation of Plaintiff’s limitations was not supported by his own
treatment

notes.

For

instance,

as

the

ALJ

noted,

while

Dr. Klibanoff’s treatment notes from June 2011 show a diagnosis of
right rotator cuff tendinitis, his treatment notes also indicate
that

Plaintiff

was

managing

well,

-21-

overall

appeared

to

be

comfortable, and that she was in no acute distress.
treatment

notes

reflect

that

his

examination

Similarly, his
of

Plaintiff’s

shoulders revealed no evidence of erythema, warmth or swelling, and
that her rotator cuff strength was full.

T. 21, 324-325.

Likewise, the ALJ properly afforded less than controlling
weight to the opinion of treating physician Dr. Herrmann who opined
that Plaintiff had the RFC for less than sedentary work, given that
her

opinion

of

Plaintiff’s

physical

supported by her own treatment notes.
Dr.

Herrmann

orthopedic

opined

condition

that
(T.

Plaintiff
343),

her

limitations
T. 21.
suffered

was

also

not

For example, while
from

treatment

a

disabling

reflected

that

Plaintiff “continues to clean her mom’s house” and that, as of April
2011, she had yet to schedule an appointment at a pain clinic.
T. 21, 336.
With respect to Plaintiff’s mental RFC, the ALJ properly
afforded less than controlling weight to the opinion of Plaintiff’s
therapist, Tammie Raucci, LMSW, given that Raucci was not an
acceptable medical source under the Regulations and because her
opinion that Plaintiff was disabled was inconsistent with the other
evidence in the record that showed an ongoing but not disabling
depression. T. 20. According to SSR 06-3p, 2006 SSR LEXIS 5, “only
‘acceptable medical sources’ can be considered treating sources .
. . whose medical opinions may be entitled to controlling weight.”
SSR 06-3p, 2006 SSR LEXIS 5. “Acceptable medical sources” are

-22-

further defined by regulation as licensed physicians, psychologists,
optometrists,

podiatrists,

and

qualified

speech-language

pathologists. 20 C.F.R. 416.913(a). In contrast, therapists are
defined as “other sources” whose opinions may be considered with
respect to the severity of the claimant’s impairment and ability to
work, but need not be assigned controlling weight. 20 C.F.R.
416.913(d)(1).

The ALJ “has the discretion to determine the

appropriate weight to accord the [other source]'s opinion based on
the all evidence before him.”

Diaz v. Shalala, 59 F.3d 307, 314

(2d Cir. 1995).
Here, as the ALJ noted, although Raucci opined that Plaintiff’s
suffered

from

“moderate”

to

a

major

depressive

“moderately

disorder

severe”

that

resulted

functional

in

limitations,

Plaintiff’s mental health treatment notes overall showed that her
depression

was

not

disabling

and

that

therapy

was

helping.

Additionally, as the ALJ noted, treatment notes from Rochester
Mental

Health

from

March

2011

indicated

that

Plaintiff

was

comfortable on her current dose of medication and that her mood and
sleep patterns were stable.

T. 20, 289-291, 326-332.

Accordingly, the Court finds that the ALJ properly weighed the
opinion evidence in the record and that his RFC assessment that
Plaintiff retained the ability to perform sedentary work with
certain limitations is supported by substantial evidence.

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C.

The ALJ’s Credibility Assessment

Plaintiff argues that, in determining her RFC, the ALJ failed
to

apply

the

appropriate

legal

standards

for

assessing

her

credibility. Dkt. No. 12-1 at Point C. When assessing a claimant’s
credibility, an ALJ may not simply state in a conclusory manner that
he finds the claimant to be not credible.

Rather, the ALJ's

decision must contain specific reasons for his finding that are
supported by evidence in the record.
4, 1996 WL 374186, *4 (S.S.A.).

See SSR 96-7P, 1996 SSR LEXIS

The decision must explain to the

individual and a reviewing court the weight given to the testimony
and the reasons for the determination.

See id.

Here, the ALJ found that “[Plaintiff's] medically determinable
impairments could not reasonably be expected to cause all of the
alleged symptoms.

The [Plaintiff’s] statements concerning the

intensity, persistence and limiting effects of these symptoms are
not fully credible, to the extent that they are inconsistent with
the . . . residual

functional capacity assessment.”

T. 20.

Plaintiff argues that the ALJ failed to take into consideration
and/or address her statements from October 6, 2009 that “she has
been in pain for several years” and that she reported to her
healthcare providers throughout the record that she was continuously
in pain.

Dkt. No. 12-1 at 20.

In this case, the ALJ’s decision contained specific reasons
supported by the evidence for discounting Plaintiff's credibility,

-24-

and he correctly evaluated Plaintiff’s statements in making his RFC
determination.

Tr. 20; see also SSR 96-3p, 2006 SSR LEXIS 5 and

96-7p, 1996 SSR LEXIS 4.
Specifically, Plaintiff complained of disabling orthopedic
problems.

However, Plaintiff testified that she was able to lift

her 7-pound grandchild, that she walked to the grocery store several
times per week, and often drove her car, including driving to
Virginia

on

one

occasion.

Additionally,

the

ALJ

noted

that

Plaintiff’s disabling orthopedic problems were inconsistent with her
statements to Dr. Herrmann that she “continued to clean her mom’s
house.”

T. 21, 336.

The ALJ also noted that Plaintiff testified

at the administrative hearing in June 2011 that her back pain is her
worst health problem.

However, he pointed out that just two months

earlier in April 2011, Dr. Herrmann reported that the basis of
Plaintiff’s disability was a mental health condition, rather than
a physical condition.

T. 21, 336.

With respect to Plaintiff’s complaints of respiratory problems,
the ALJ pointed out that Plaintiff continued to smoke.

T. 21.

With respect to Plaintiff’s complaints of depression, the ALJ
noted that Plaintiff reported to her mental health providers that
she was “comfortable” on her current dose of medication, that she
experienced a decrease in hallucinations, that her sleep pattern was
stable, and that she was “feeling

-25-

better.”

T. 20, 327-331.

Additionally, the ALJ noted that therapy sessions seemed to be
helping Plaintiff.
Accordingly,

T. 20, 289-291.
the

Court

finds

that

the

ALJ’s

credibility

assessment was proper and his conclusion that Plaintiff’s subjective
complaints and symptoms were not credible to the extent she claimed
is supported by substantial evidence in the record.
D.

The ALJ’s Step-Five Analysis

1.

The VE’s Qualifications

Plaintiff

claims

that

the

VE

who

testified

at

her

administrative hearing was not properly qualified “because no
support for [his] qualifications . . . lie within the record” and
thus “the opinion of the [VE] cannot be established as reliable.”
Dkt. No. 12-1 at 21.

This argument is belied by the record.

A review of the record reflects that a letter dated May 5, 2011
was sent to a “Peter A. Manzi” requesting him to appear and give
testimony as a vocational expert at Plaintiff’s administrative
hearing on June 13, 2011.

T. 124.

However, as Plaintiff correctly

points out, a “Dr. Mantu” appeared at Plaintiff’s administrative
hearing. T. 28. Despite Dr. Mantu’s appearance at the hearing, the
ALJ states in his decision that Peter A. Manzi testified at the
hearing.

T. 16.

Indeed, Plaintiff is correct in pointing out that there is a
discrepancy in the names in the record.

Further, it is not clear

to the Court whether “Dr. Mantu” appeared at the administrative

-26-

hearing in place of “Peter A. Manzi” or if there is simply a typo
in the transcript proceedings with respect to Manzi’s name.

In any

event, the individual referred to as “Dr. Mantu” testified at the
hearing, under oath, that his statement of qualifications was in the
file and was accurate.

T. 63-64.

Moreover, Plaintiff’s attorney

was expressly asked by the ALJ if she had any objections to the
qualifications of Dr. Mantu to serve as the vocational expert and
she responded that she did not.

T. 64.

Further still, Plaintiff’s

attorney was afforded –- and took advantage of –- the opportunity
to cross-examine the VE at the hearing.

T. 68-70.

At no point

during the hearing, including during cross-examination of the VE,
did Plaintiff or her attorney challenge or otherwise voice a concern
over the VE’s qualifications.

Therefore, this Court finds no error

in the ALJ relying on the VE’s opinion as an expert.
2.

The VE’s Testimony

In this case, the ALJ asked the VE to consider an individual
of Plaintiff’s age, education, and past work experience who could
perform sedentary work, was limited to simple, repetitive tasks,
occasional overhead reaching, had to avoid concentrated or excessive
exposure to respiratory irritants and other environmental extremes.
T. 65-66.

The VE testified that there were jobs in significant

numbers in the national economy that such a person could perform,
including general assembler and addresser.

-27-

T. 51.

According to the Dictionary of Occupational Titles (“DOT”),the
addresser job requires “frequent[][]” reaching and the assembler job
requires “constant[][]” reaching.

The former frequency is defined

as “exist[ing] from 1/3 to 2/3 of the time” and the latter frequency
is defined as “exist[ing] 2/3 of the time or more.”
010; DOT 734.687-018.

DOT 209.587-

A DOT companion publication and a Social

Security policy statement define “reaching” as “[e]xtending hand(s)
and arm(s) in any direction.”

U.S. Dep’t of Labor, Selected

Characteristics of Occupations Defined in the Revised Dictionary of
Occupational Titles App. C (1993) (“SCO”);
LEXIS 20, 1985 WL 56857, at *7;

SSR 85-15, 1985 SSR

see also SSR 00-4p, 2000 SSR LEXIS

8, 2000 WL 1898704, at *2 (ALJ must resolve any “apparent unresolved
conflict”

between

VE

testimony

and

DOT,

which

includes

its

“companion publication” the SCO).
Plaintiff

argues

that

the

reaching

requirements

of

the

addresser and assembler jobs identified by the VE (which require
frequent and constant reaching, respectively) are inconsistent with
the ALJ’s RFC finding that Plaintiff was limited to “occasional
overhead reaching.”

Dkt. No. 12-1 at 21-22.

As an initial matter, the ALJ fulfilled his “affirmative
responsibility to ask about any possible conflict between [the VE]
evidence and information provided in the DOT,” SSR 00-4P, 2000 SSR
LEXIS 8, 2000 WL 1898704 at *4, by eliciting the VE’s affirmation
on two occasions that his testimony was consistent with the DOT (see

-28-

T. 67, 68).

In any event, Plaintiff’s argument fails because the

ALJ did not preclude Plaintiff from performing reaching altogether
or from reaching altogether in any one direction (including upward).
Rather, he determined that Plaintiff could perform sedentary work
except that she was limited to, among other things, occasional
overhead reaching.

T. 20.

Viewed in the context of the evidence

as a whole, see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198
(9th Cir. 2007), the ALJ most reasonably intended to preclude
Plaintiff from doing jobs that regularly required reaching items or
performing

maneuvers

above

her

head,

not

from

ever

reaching

(including reaching in any upward direction).
The ALJ’s RFC determination, moreover, took into account
Plaintiff’s shoulder impairment and the functional limitations
stemming therefrom (as discussed above). Further, Plaintiff herself
testified during the hearing that she is able to reach overhead so
long as she is not required to do so repetitively.

T. 46.

Moreover, no medical source opined that Plaintiff was restricted
from reaching altogether.
Further,

the

Court

notes

that,

according

to

the

DOT

descriptions, neither of the jobs the ALJ found that Plaintiff could
perform appear to be “overhead work.”

Rather, the assembler job

requires a person to “[i]nsert[] paper label in back of celluloid
or metal advertising buttons and force[] shaped stickpin under rim.”
The “work-field” category for this job is listed as “folding-

-29-

fitting.”

DOT 734.687-018.

Likewise, the addresser job requires

a person to “[a]ddress[][] by hand or typewriter, envelopes, cards,
advertising literature, packages, and similar items for mailing.
May sort mail.”

The “work-field” category for this job is listed

as “verbal recording-record keeping.”

DOT 209.587-010.

The DOT

descriptions for other jobs, by contrast, often indicate that they
require or expressly include overhead reaching.

See, e.g., DOT

520.686-022, 1991 WL 674044 (describing flour-blender-helper job as
requiring “turn[ing] hand screws or moves levers to adjust gate
openings of overhead storage bins to release specified amounts of
flour

into

blender

hopper”);

DOT

381.687-018,

1991

WL

673258

(describing industrial-cleaner job as requiring “[c]lean[ing] lint,
dust,

oil,

and

conveyors”);

grease
DOT

from

machines,

553.686-018,

1991

overhead
WL

pipes,

675263

and

(describing

curing-press-operator job as requiring “[l]ift[ing] tires from
inflating unit at end of cooling cycle and load[ing] them onto
overhead conveyor”).
Thus, interpreting the ALJ’s findings in the manner most
consistent with the medical evidence, no conflict existed among the
ALJ’s

RFC,

the

VE’s

testimony,

the

DOT,

and

the

companion

publication the SCO.
The

Court

therefore

finds

that

the

ALJ’s

step

five

determination was proper as a matter of law and is supported by
substantial evidence.

-30-

CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings is
granted, the Plaintiff’s cross-motion is denied, and the Complaint
is dismissed in its entirety with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

May 9, 2014
Rochester, New York

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