Wieme -v- Commissioner of Social Security
Filing
16
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 13 Commissioner's Motion for Judgment on the Pleadings; denying 14 Plaintiff's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/19/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
KAREN M. WIEME,
DECISION AND ORDER
No. 13-CV-6214(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION
Plaintiff, Karen M. Wieme (“Plaintiff” or “Wieme”), brings
this action under Title II of the Social Security Act (“the Act”),
claiming that the Commissioner of Social Security (“Commissioner”
or “Defendant”) improperly denied her application for Disability
Insurance Benefits (“DIB”).
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, I grant
the Commissioner’s motion, deny the Plaintiff’s cross-motion, and
dismiss the Complaint.
PROCEDURAL HISTORY
On August 9, 2010, Plaintiff filed an application for DIB,
alleging disability as of December 16, 2009, which was denied.
Administrative Transcript [T.] 60-64, 118-124.
A hearing was held
on December 20, 2011, via videoconference, before administrative
law judge (“ALJ”) Edgardo Rodriguez-Quilichini, at which Plaintiff,
who was represented by counsel, testified.
T. 9-59.
experts and a vocational expert also testified.
53-58.
Two medical
T. 32-35, 37-43,
On January 5, 2012, the ALJ issued a decision finding that
Plaintiff was not disabled during the relevant period.
T. 12-28.
On March 4, 2013, the Appeals Councils denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.
T. 1-7.
This action followed.
FACTUAL BACKGROUND
Plaintiff, who was age 34 at the time of the alleged onset
date, has
a
captionist.
bachelor’s degree
T.
43,
118,
and
142.
specialized training
She
previously
worked
as a
as
a
captionist, a customer service associate, and a human resources
associate.
T. 43-44, 146, 165-172.
Plaintiff claims that she is disabled due to fibromyalgia,
chronic fatigue syndrome (“CFS”), irritable bowel syndrome (“IBS”),
polycystic ovarian syndrome (“PCOS”), and depression and anxiety.
T. 145.
Medical Evidence Before the Period at Issue
Prior
to
December
16,
2009,
Plaintiff
was
treated
for
depression and anxiety, malaise and fatigue, back pain, upper
respiratory infections, allergic rhinitis, a sprain in her thoracic
region, left wrist pain and hand parasthesias, PCOS, obesity,
hyperlipidemia, GERD, and otitis media.
-2-
T. 206-219, 230, 280-310.
Relevant Medical Evidence from December 16, 2009 to January 5, 2012
On December 18, 2009, Plaintiff went to Unity Family Medicine
(“Unity”)
complaining
of
upper
respiratory
problems,
and
was
diagnosed with acute shortness of breath, worsening malaise and
other fatigue, and acute abdominal pain.
T. 248-250.
In January 2009, Plaintiff returned to Unity and was seen by
Stefanie King, M.D., who assessed malaise and fatigue.
T. 253.
Dr. King reported that Plaintiff would likely need to be on shortterm disability due to her chronic absences and took Plaintiff out
of work for a week.
Plaintiff’s medications at that time were
listed as Vitamin D, Celexa, Xyrtec, Flonase, oral contraceptives
and Metformin.
T. 253.
Later in January, Plaintiff returned to
Unity complaining of continued low energy and fatigue. T. 254-255.
Letitia Devoesick, D.O. assessed poorly controlled malaise and
fatigue, and reported that Plaintiff would continue to be out of
work for an additional month.
T. 255.
Plaintiff again returned to
Unity in January and February complaining of the same continued
symptoms, and reporting recurrent depression and anxiety.
significant
changes
in
Plaintiff’s
health
were
No
reported,
Dr. Devoesick continued Plaintiff out of work until the middle of
March, and increased Plaintiff’s dosage of Celexa.
257, 259, 355, 322-323, 324, 259.
T. 319-321,
In March 2010, Plaintiff saw
Dr. Devoesick, complaining that she felt no improvement, that some
of her symptoms had worsened, and that she experienced increased
depression and anxiety. T. 260-261. Dr. Devoesick assessed poorly
-3-
controlled malaise and fatigue, noted that Plaintiff would continue
to be out of work until June 1, and replaced Plaintiff’s Celexa
medication with Cymbalta.
T. 261.
Plaintiff returned to Dr. Devoesick in April, May, and midJune, complaining of the same symptoms, and no significant changes
were
reported
in
Plaintiff’s
health.
At
her
April
visit,
Dr. Devoesick prescribed Diflunisal at bedtime for Plaintiff’s
aches and pains
T. 263, 265-267.
At her June visit, Plaintiff
reported that she could not currently return to work because of her
ongoing
symptoms.
T.
“fibromyalgia/chronic
268.
fatigue
Dr.
Devoesick
syndrome”
and
also
assessed
discounted
Plaintiff’s Cymbalta medication and prescribed Savella.
On
June
Emergency
27,
2010
Department
Plaintiff
for
nausea
fatigue for the past three days.
that
she
Treatment
cause),
had
notes
discontinued
reflect
[p]robable
an
presented
and
to
vomiting,
T. 220-229.
Savella
and
impression
[m]edication
Unity
Hospital
dizziness,
and
Plaintiff reported
restarted
of
[s]ide
T. 269.
Cymbalta.
“dizziness
[e]ffect,
(unknown
[g]eneral
[w]eakness.” T. 224. Plaintiff was discharged in improved, stable
condition and advised to follow-up with her primary care physician.
T. 224.
Plaintiff followed-up with Dr. Devoesick on June 30, 2010,
complaining
of
continued
nausea,
pain,
fatigue,
previous night, and ongoing depression and anxiety.
a
fever
the
T. 271-273.
Plaintiff reported that she was still out of work due to ongoing
-4-
muscle and joint pain and fatigue, and that she was limited in her
activities
which
caused
her
symptoms
to
flare
up.
T.
271.
Dr. Devoesick assessed a possible “viral illness on top of med side
effect . . . as well as recurrent symptoms of fibromyalgia and
chronic fatigue.”
T. 271.
She prescribed Vicodin for short-term
pain relief of Plaintiff’s musculoskeletal symptoms, and Zofran for
nausea.
T. 272.
Dr. Devoesick noted that Plaintiff continued to
be unable to work.
T. 272.
On November 1, 2010, Plaintiff returned to Dr. Devoesick,
complaining
numbness
of
and
continued
pain,
and
fatigue
upper
and
pain,
respiratory
intermittent
issues.
T.
hand
357.
Dr. Devoesick opined that Plaintiff was disabled from work due to
significant
fatigue
fibromyalgia.
and
musculoskeletal
pain
related
to
She recommended fluid, rest, and elevation for
Plaintiff’s upper respiratory symptoms.
T. 359.
Consultative Examinations
On
November
consultative
T.
2010,
examination
385-388.
Plaintiff
11,
Upon
at
Harbinder
the
Toor,
request
physical examination,
of
Dr.
M.D.
the
performed
a
Commissioner.
Toor
noted
that
appeared in no acute distress, her gait and stance were
normal, she could walk on heels and toes without difficulty, could
squat fully, needed no help changing for the exam or getting on and
off
the
exam
difficulty,
table,
and
did
was
able
not
to
use
rise
assistive
from
a
chair
devices.
without
T.
386.
Plaintiff’s musculoskeletal examination revealed seven mild trigger
-5-
points but was otherwise unremarkable, and Plaintiff had full range
of motion of her spine and extremities and
non-tender joints.
T. 387.
Dr. Toor diagnosed Plaintiff with a history of fibromyalgia
with
minimal
trigger
points,
histories
of
CFS,
IBS,
PCOS,
depression and anxiety, heartburn/acid reflux, panic attacks and
high cholesterol.
and
chronic
routine.
T. 388.
fatigue
Dr. Toor opined that Plaintiff’s pain
could
interfere
with
her
daily
physical
He noted “[n]o other medical limitations suggested by
today’s evaluation.”
T. 388.
Also on November 11, 2010, Christine Ransom, Ph.D. performed
a consultative evaluation at the request of the Commissioner.
T. 389-392. Upon examination, Dr. Ransom reported that Plaintiff’s
thought processes were coherent and goal-directed, her affect was
moderately dysphoric and tense, her sensorium was clear, and she
was oriented to person, place and time.
T. 390-391.
noted
concentration
that
Plaintiff’s
attention
and
Dr. Ransom
and
her
immediate and recent memory were moderately impaired, apparently by
depression
and
anxiety.
T.
391.
Dr.
Ransom
assessed
that
Plaintiff’s intellectual functioning appeared to be average, her
general fund of information was appropriate to experience, and her
insight and judgment were good.
T. 391.
Dr. Ransom diagnosed major depressive disorder, generalized
anxiety disorder, and panic disorder with agoraphobia.
T. 392.
Dr. Ransom opined that Plaintiff could follow and understand simple
-6-
directions, perform simple tasks independently, maintain attention
and concentration for simple tasks, maintain a simple, regular
schedule, and learn simple new tasks.
T. 391-392.
Dr. Ransom
opined that Plaintiff would have moderate difficulty performing
complex tasks, relating adequately with others, and appropriately
dealing with stress.
T. 392.
On December 2, 2010, M. Apacible, M.D. reviewed Plaintiff’s
file and completed a psychiatric review technique and residual
functional
capacity
assessment,
in
which
he
determined
that
Plaintiff “retains the ability to perform work with simple tasks.”
T. 400-417.
The Expert Hearing Testimony
During
the
December
20,
2011
hearing,
medical
expert
Dr. German E. Malaret reviewed the evidence of record and testified
with
regard
to
Plaintiff’s
physical
impairments.
T.
37-38.
Dr. Malaret testified that the record showed a “questionable”
diagnosis of fibromyalgia, explaining that there was “was very
little supportive evidence for this.” T. 37-38. He also testified
that the record showed diagnoses of CFS and obesity.
T. 37-38.
Dr. Malaret opined that Plaintiff was limited to lifting and
carrying approximately 10 lbs frequently and 20 lbs occasionally
and that her ability to walk would depend on her fatigue level.
He
also opined that she was limited in her ability to repetitively
move or use her legs or upper extremities, that she was possibly
able to perform crouching, crawling, bending or stopping, she could
-7-
not climb ladders or scaffolds, her concentration and attention
would be limited due to fatigue and that she did not have any
limitations in sitting or standing.
T. 38-40.
Medical expert Dr. June Mary Jimenez, Psy.D. testified with
regard to Plaintiff’s mental impairments.
T. 40-43.
Dr. Jimenez
determined that Plaintiff would have difficulty doing jobs which
required complex and detailed tasks, but that she could do simple
work tasks, maintain attention and concentration for at least a two
hour window, and she should avoid doing jobs that required direct
contact with the public.
T. 42.
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.’”
-8-
Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
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
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
-9-
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
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
found that:
Plaintiff did not engage in substantial gainful
activity since December 16, 2009;
that Plaintiff had the severe
impairments of fatigue syndrome and depressive disorder and the
non-severe impairments of PCOS and GI condition, but that Plaintiff
did not have an impairment or combination of impairments that met
or medically equaled the severity of one of the Listed Impairments;
that Plaintiff had the residual functional capacity (“RFC”) to
perform less than the full range of light work; that Plaintiff was
unable to perform her past relevant work; and that, considering
Plaintiff’s age, education, work experience and residual functional
capacity, there were jobs that exist in significant numbers in the
national economy that Plaintiff can perform. T. 12-27. Therefore,
the ALJ concluded that Plaintiff was not disabled during the
relevant period.
T. 28.
-10-
III. Analysis of Plaintiff’s Arguments
A.
The ALJ Properly Weighed the Opinions of Record and
the RFC is Supported by Substantial Evidence
Plaintiff argues that the ALJ improperly disregarded the
opinion and findings of her treating physician, Dr. Devoesick, and
improperly substituted his own lay opinion for professional medical
opinion.
Dkt. No. 14-1 at 20.
As Plaintiff points out, Dr. Devoesick’s treatment notes
consistently reflect a diagnosis of fibromyalgia. T. 418-447. The
opinion of a treating physician on the nature or severity of a
claimant’s impairments is binding if it is supported by medical
evidence and not contradicted by substantial evidence in the
record.
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008);
20 C.F.R. § 404.1527(c)(2) (noting that treating physicians offer
a
“unique
perspective
to
the
medical
otherwise be obtained from the record).
evidence”
that
cannot
In order to override the
opinion of the treating physician, an ALJ must explicitly consider,
inter alia: (1) the frequency, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the
opinion; (3) the consistency of the opinion with the remaining
medical evidence; and (4) whether the physician is a specialist.
Burgess, 537 F.3d at 129.
The
Court
finds
that
the
ALJ
did
not
err
in
rejecting
Dr. Devoesick’s diagnostic assessment of fibromyalgia.
According
to the American College of Rheumatology, which the ALJ accurately
referenced in his opinion, there are two criteria for the diagnosis
-11-
of fibromyalgia: widespread pain lasting at least three months and
at least 11 positive tender points out of a total possible of 18.
T. 15; see also http://www.nfra.net/Diagnost.htm (last visited
5/15/14).
The clinical evidence in the record, as the ALJ noted,
did not support such a diagnosis.
Specifically, Dr. Devoesick’s
“diagnostic impression” of fibromyalgia was unsupported by specific
clinical findings.
T. 21.
For example, on July 15, 2010 and
August 9, 2010, Dr. Devoesick reported that Plaintiff had ongoing
chronic fatigue and fibromyalgia, but did so without elaboration or
further
explanation
and
“multiple tender points.”
simply
reported
that
T. 21, 274-275, 277-278.
Plaintiff
had
Additionally,
as noted by the ALJ, while Dr. Devoesick made a “diagnostic
impression” of fibromyalgia, she never referred Plaintiff to a
rheumatologist at any point.
T. 21.
Further, a diagnosis of fibromyalgia was inconsistent with the
physical examination findings from consultative examiner Dr. Toor,
who assessed that Plaintiff had only seven mild trigger points
(rather than 11), had full range of motion of her spine and
extremities, and that her joints were non-tender.
T. 15.
Further
still, as the ALJ pointed out, the record overall failed to show
significant clinical findings related to Plaintiff’s generalized
musculoskeletal pain and fatigue.
T. 22.
The ALJ noted that with
respect to Plaintiff’s extremities and musculoskeletal system, exam
findings were consistently either mild or normal. T. 22, 266, 272,
429.
-12-
Accordingly, because Dr. Devoesick’s opinion was not supported
by specific clinical findings and was also inconsistent with the
other
evidence
in
the
record,
the
ALJ
properly
discounted
Dr. Devoesick’s “diagnostic impression” of fibromyalgia.
Plaintiff also argues that the ALJ erred in his RFC assessment
by according the opinions of the non-examining and consultative
examiners more weight than that of Dr. Devoesick.
In assessing
Plaintiff’s RFC, the ALJ afforded “great weight” to the opinions of
medical experts Malaret and Jimenez and consultative examiners Toor
and Ransom, “some” weight to State Agency medical consultant
Apacible, and “little” weight to the disability opinion of treating
physician Dr. Devoesick.
T. 24-25.
Dr. Devoesick opined, at
various instances throughout the record, that Plaintiff was unable
to work due to her ongoing pain symptoms and fatigue.
T. 24-25,
341, 359, 423, 426, 434, 437, 440.
As an initial matter, an opinion by a treating physician that
a claimant is “disabled” or “unable to work” has no special
significance
because
it
is
not
§§ 404.1527(e)(1); 416.927(e)(1).
a
medical
opinion.
20
C.F.R.
As the ALJ correctly noted here
(T. 25-6), these determinations are legal conclusions that are
“reserved to the Commissioner.”
Id.
Thus, the ALJ did not err as
a matter of law in discounting the disability opinion of treating
Dr. Devoesick.
Moreover, to the extent Dr. Devoesick’s disability opinion was
unsupported by clinical evidence and was also inconsistent with
-13-
other substantial evidence in the record, the ALJ committed no
error in affording her disability opinion “little weight.”
20 C.F.R. § 404.1527(c)(2).
See
Specifically, Drs. Malaret, Jimenez,
Toor, Ransom nor Apacible determined that Plaintiff’s impairments
–- physical and/or mental -- precluded her from performing all
work.
An ALJ is not required to accept the opinion of a treating
physician where the treating physician issued opinions that are not
consistent
with
the
opinions
of
other
medical
experts.
See
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see also
Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“When other
substantial evidence in the record conflicts with the treating
physician’s opinion, however, that opinion will not be deemed
controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.”);
Diaz v.
Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (“[T]he opinions of
nonexamining sources [can] override treating sources’ opinions
provided they are supported by evidence in the record.”); Garrison
v. Comm’r of Soc. Sec., No. 08-CV-1005, 2010 U.S. Dist. LEXIS
70411, 2010 WL 2776978, *4 (N.D.N.Y. June 7, 2010) (“[i]t is well
settled that an ALJ is entitled to rely upon the opinions of both
examining and non-examining State agency medical consultants, since
such consultants are deemed to be qualified experts in the field of
social security disability” (citing 20 C.F.R. §§ 404.1512(b)(6),
404.1513(c),
404.1527(f)(2),
416.912(b)(6),
416.927(f)(2)) (other citation omitted).
-14-
416.913(c),
and
Here, medical expert and internist Dr. Malaret reviewed the
evidence in the record and determined that while Plaintiff’s
fatigue was present and imposed “some limitations,” it was not
disabling.
T. 25.
Dr. Malaret opined that Plaintiff could lift,
carry, push and or pull 20 lbs occasionally and 10 lbs frequently,
and that she
would
fatigue.
also
He
have
difficulty
opined that
walking
Plaintiff
depending
would
on
her
have postural
limitations, particularly when stooping and bending, and could
never lift ladders or scaffolds.
The ALJ credited Dr. Malaret’s
opinion, except for his testimony that Plaintiff was limited in
walking, because this particular limitation was not supported by
the record evidence which overall showed no significant abnormal
extremity or musculosketal findings.
T. 25, 249, 252, 257, 259,
266, 272, 312, 423, 426, 429, 434, 437, 440.
Dr.
Malaret’s
opinion
was
consistent
As the ALJ explained,
with
the
opinion
of
consultative examiner Dr. Toor, who opined that while Plaintiff’s
chronic pain and fatigue could interfere with her daily physical
routine, it did not result in any other medical limitation.
388.
T. 26,
Dr. Toor’s opinion was based on his physical examination of
Plaintiff, which showed that Plaintiff’s gait and stance were
normal, she had seven mild trigger points, she had full strength
and range of motion in her extremities, no motor or sensory
deficits, and no muscle atrophy.
T. 22, 386-388.
With respect to Plaintiff’s mental limitations, Dr. June
Jimenez, clinical psychologist and medical expert, reviewed the
-15-
evidence in the record and assessed that Plaintiff had a depressed
mood and that she was limited to simple, routine, repetitive tasks
and
must
not
Dr.
Jimenez’s
interact
opinion
with
was
the
public.
consistent
with
T.
the
25,
40-43.
opinion
of
consultative psychological examiner Dr. Ransom, who opined that
Plaintiff
can
instructions,
follow
and
perform
understand
simple
tasks
simple
directions
independently,
and
maintain
attention and concentration for simple tasks, maintain a simple
regular schedule and learn simple new tasks.
T. 25, 389-392.
Dr. Ransom’s opinion was based on her examination of Plaintiff,
which showed that Plaintiff’s attention and concentration were only
moderately impaired, her intellectual functioning was average, and
she
was
cooperative
and
socially
appropriate.
T.
390-391.
Additionally, the opinion of Dr. Ransom, as the ALJ noted, was
adopted by consulting specialist Dr. Apacible, who opined that
Plaintiff “retain[ed] the ability to perform work with simple
tasks.”
T. 26, 416.
Accordingly, the Court finds that the ALJ properly weighed the
opinions
disability
in
the
record,
opinion,
and
including
his
RFC
the
treating
assessment
is
physician’s
supported
by
substantial evidence.
B.
The ALJ Properly Considered Plaintiff’s Impairments in
Combination and Assessed the Record as a Whole
Plaintiff argues that the ALJ failed to consider all of her
impairments in combination pursuant to 20 C.F.R. § 404.1523, and
-16-
also failed to consider her obesity.
Relatedly, Plaintiff argues
that the ALJ failed to consider and analyze all of the evidence in
the
record,
namely
Dr. Polechuk.
the
evidence
from
treating
psychologist
Dkt. No. 14-1 at 23-24.
“The combined effect of a claimant’s impairments must be
considered in determining disability” and “the [Commissioner] must
evaluate their combined impact on a claimant’s ability to work,
regardless of whether every impairment is severe.”
Dixon v.
Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995) (citations omitted);
20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically
determinable impairments of which we are aware, including your
medically determinable impairments that are not ‘severe’ . . . .”).
Here, the record reflects that the ALJ engaged in a thorough
discussion of Plaintiff’s identified impairments and the combined
effect that they have on her ability to work.
T. 18-26.
The RFC
finding –- that Plaintiff could perform less than a full range of
work –- takes into account the physical limitations imposed on
Plaintiff by her musculoskeltal pain and fatigue, as well as the
mental limitations imposed on her by her depression and anxiety.
T.
18-26.
Additionally,
there
is
no
merit
to
Plaintiff’s
contention that the ALJ erred in failing to consider her obesity.
As an initial matter, the Court notes that Plaintiff did not allege
disability
on
account
of her
obesity.
Nonetheless,
the
ALJ
elicited testimony from Plaintiff at the administrative hearing
-17-
with respect to her weight. T. 53.
Plaintiff’s
RFC,
the
ALJ
Further, in arriving at
specifically
addressed
Plaintiff’s
complaints of her “increased appetite” and her “weight gain.”
T. 19.
Likewise, the Court finds no merit to Plaintiff’s argument
that the ALJ erred in failing to consider and analyze all of the
evidence
in
the
record,
psychologist Dr. Poleschuk.
namely
the
evidence
from
treating
A review of the record reflects that
the outpatient mental health treatment notes from Ellen Poleschuk,
Ph.D., covering the period November 11, 2008 to October 25, 2011
(T. 448-488), were submitted to the Appeals Council after the ALJ
issued its decision.
T. 2-7.
The Appeals Council reviewed this
evidence and found that “this information does not provide a basis
for changing the [ALJ’s] decision.”
T. 2.
The Appeals Council
specifically explained that “[w]e considered whether the [ALJ]’s
actions, findings, or conclusions is contrary to the weight of the
evidence of record.
We found this information does not provide a
basis for changing the [ALJ] decision.”
Id.
Moreover, even if the ALJ had had this evidence before him at
the time he issued his decision, there is no possibility that the
outcome of Plaintiff’s proceeding would have been different given
that this evidence is not particularly favorable to her.
For
example, the mental health treatment notes from Dr. Poleschuck show
overall
that
Plaintiff’s
mood
-18-
and
function
were
good,
her
intelligence was average, her judgment was intact and her insight
was
fair.
T.
448-452.
Dr.
Poleschuk’s
notes
also
belie
Plaintiff’s contention that her physical and/or mental impairments
prevent her from working to the extent Dr. Poleschuk noted on
February 23, 2011 that Plaintiff reported that “her life is busy
and full and is not interested in finding employment at this time.”
T. 457.
C.
The ALJ Properly Assessed Plaintiff’s Credibility
Plaintiff maintains that the ALJ erred in discounting her
complaints of disabling pain and related symptoms.
In accordance
with the applicable regulations and agency ruling, the ALJ clearly
considered Plaintiff’s subjective complaints and explained why he
found her statements to be not fully credible.
See T. 19-26; 20
C.F.R. §§ 404.1545(a)(3); 416.945(a)(3); 404.1529(c); 416.929(c)
SSR 96-8p, 1996 SSR LEXIS 5. The ALJ thoroughly considered the
objective medical evidence and the factors set out in 20 C.F.R.
§§ 404.1529(c) and 416.929(c), including Plaintiff’s treatment,
medication, inconsistent statements, and her daily activities.
T. 19-26.
Despite the ALJ’s thorough discussion of Plaintiff’s testimony
and her testimony, Plaintiff argues that the ALJ’s credibility
assessment is flawed to the extent that the ALJ mischaracterized
her statements in her Function Report and her testimony.
maintains
She
that, contrary to the ALJ’s findings, there was no
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“material
difference
statements.”
in
her
testimony
Dkt. No. 14-1 at 24.
and
[her]
written
There is no merit to this
argument.
A review of the record reflects that Plaintiff completed a
Function Report in which she claimed that her impairments limited
her ability to work.
T.
154-159.
However, as the ALJ pointed
out, although Plaintiff claimed in said Function Report that she
had difficulties in grooming, taking care of her daughter and pets,
in doing most household chores, and preparing meals, she also
acknowledged being capable of driving her car, traveling alone and
doing shopping.
Additionally, she acknowledged being capable of
paying and handling her own funds, and reported going, on a regular
basis, to her doctor’s office, stores, and friends and families’
houses.
T. 19, 155-158.
In addition to the Function Report, Plaintiff also testified
at
her
hearing
limitations.
symptoms
of
with
respect
to
her
impairments
and
related
As the ALJ accurately noted, Plaintiff reported
fatigue
with
any
form
of
exertion,
experiencing
dizziness, increased appetite, pain in her hips and extremities,
weight gain, concentration difficulties, depression, anxiety, panic
attacks, and altered sleeping patterns.
She also complained of
IBS. However, the ALJ noted that Plaintiff also testified that she
is able to take her daughter to the bus stop, use the computer, and
do scrapbooking.
With respect to her complaints of IBS, the ALJ
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pointed out that the Plaintiff also testified at the hearing that
she hardly goes to the restroom because she spends most of the day
sleeping. Additionally, the ALJ pointed out that, contrary to what
she indicated in the Function Report, Plaintiff testified at the
hearing that her husband does the shopping and that she never goes
with him.
T. 19, 50-53.
The ALJ also noted that, while only one
observation “among many” he was relying on in reaching a conclusion
regarding the credibility of Plaintiff’s allegations, Plaintiff was
able to participate in the hearing proceedings closely and fully
without being distracted and was able to respond to questions in an
appropriate manner.
T. 19.
As such, it was reasonable for the ALJ to discredit the
Plaintiff’s subjective complaints of disabling pain and related
symptoms that prevented her from performing any type of work.
See
Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010) (finding that when
an ALJ assesses a Social Security claimant’s credibility, “the ALJ
was required to consider all of the evidence of record, including
[the claimant’s] testimony and other statements with respect to his
daily activities”) (citing 20 C.F.R. §§ 404.1529, 404.1545(a)(3)).
Furthermore,
the
Court
is
unpersuaded
by
Plaintiff’s
contention that although she managed to perform certain daily
activities, she did so “in spite of her fatigue and pain” and that
these activities caused “pain and malaise afterwards.”
Dkt.
No. 14-1 at 24. “[D]isability requires more than mere inability to
-21-
work without pain. To be disabling, pain must be so severe, by
itself or in conjunction with other impairments, as to preclude any
substantial gainful employment.”
Prince v. Astrue, 12-727-cv, 490
Fed. Appx. 399, 2013 U.S. App. LEXIS 211, at *3 (2d Cir. Jan. 4,
2013) (quoting Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir.
1983)).
Plaintiff also argues that the ALJ erred by “fail[ing] to give
Ms. Wieme the credibility she was due for someone with a good work
history.”
Dkt. No. 14-1 at 24-25.
Indeed, “a good work history
may be deemed probative of credibility[.]”
F.3d 496, 502 (2d Cir. 1998).
Schaal v. Apfel, 134
Work history, however, is “just one
of many factors” that an ALJ considers in assessing credibility.
Schaal, 134 F.3d at 502.
Notwithstanding Plaintiff’s “excellent
work background” –- which the ALJ acknowledged (T. 23) –- the ALJ
discounted Plaintiff’s credibility in reasonable reliance on her
own inconsistent statements, coupled with the absence of any
medical evidence in the record showing an inability to perform all
types of work.
Accordingly,
the
Court
finds
that
the
ALJ’s
credibility
assessment is correct as a matter of law and is supported by
substantial evidence in the record.
-22-
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 19, 2014
Rochester, New York
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