Johnson v. Astrue
-CLERK TO FOLLOW UP-DECISION AND ORDER denying 9 Motion for Judgment on the Pleadings; granting 12 Motion for Judgment on the Pleadings. The Court determines that the ALJs decision is supported by substantial evidence in the Record and the Cour t affirms the judgment of the Commissioner of Social Security. 42 U.S.C. § 405(g). Therefore, Plaintiffs motion for judgment on the pleadings, ECF No. 9, is denied, and the Commissioners cross-motion for judgment on the pleadings, ECF No. 12, is granted. The Clerk shall enter judgment for the Commissioner of Social Security and close this case.Signed by Hon. Charles J. Siragusa on 4/9/14. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting Commissioner of
Christopher M. Mesh, Esq.
Connors & Ferris, LLP
3445 Winton Place
Rochester, NY 14623
Mary C. Kane, A.U.S.A.
United States Attorney’s Office
138 Delaware Avenue
Buffalo, NY 14202
Siragusa, J. Plaintiff Denise Johnson brings this action pursuant to the Social
Security Act, (codified in relevant parts at 42 U.S.C. ' 401 et. seq. and 42 U.S.C. ' 1381
et. seq.) claiming that Defendant Commissioner of Social Security (ACommissioner@)
improperly denied her application for benefits under Title II and Title XVI of the Act.
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is substituted, Michael J. Astrue as
the defendant in this suit.
Specifically, Plaintiff alleges that the decision of an Administrative Law Judge (AALJ@)
denying her benefits was erroneous and not supported by the substantial evidence
contained in the record, or was contrary to law. She seeks a reversal of that decision and
a remand only for calculation of benefits. The Commissioner cross-moves for judgment
on the pleadings, seeking affirmation of his determination. For the reasons stated below,
Plaintiff’s motion is denied, and the Commissioner’s motion is granted.
Procedural History and Factual Background
Plaintiff was born in 1959. R. 173. She earned a General Educational Development (GED®)2 diploma in 1977, did not attend special education classes, and has not
completed any type of specialized job training, trade, or vocational school. R. 191.
By application dated May 10, 2010, Plaintiff filed for Disability benefits under Title
II. Previously, on April 23, 2010, she filed an application under Title XVI for Supplemental
Security Income benefits. R. 66. For both applications, she listed the date on which her
disability started as December 1, 2009. The applications were initially denied on July 14,
2010, and Plaintiff pursued a hearing before an ALJ, which hearing was held on July 28,
2011. Plaintiff appeared in Rochester, New York, and the ALJ was connected to her via
video conference from Baltimore, Maryland. At the hearing a Vocational Expert (“VE”)
also testified via a telephone connection.
On August 10, 2010, the ALJ issued a decision denying Plaintiff’s applications,
finding at the fourth sequential step that she was not disabled, and that she was able to
See What is the GED test? at GED Testing Services, available at http://ged.com (last checked Apr. 2,
perform two of her past jobs: pharmaceutical package inspector, and camera inspector.
Plaintiff appealed, but on April 25, 2013, the Appeals Council denied her review, making
the ALJ’s decision the Commissioner’s final decision.
The ALJ’s Findings
The ALJ determined that Plaintiff met the coverage requirements under the Act
through March 31, 2010, and that she had not engaged in any gainful employment since
December 1, 2009. R. 68. He determined she suffered from the following severe combination of impairments: degenerative disc disease, lumbar radiculitis3 and pain disorder
and that those impairments imposed more than a minimal limitation on Plaintiff’s ability to
perform basic work activities and were expected to last more than twelve continuous
months. Id. He also determined that despite those severe impairments, Plaintiff did not
meet the requirements of Listing 1.04 because she did not have evidence of nerve root
compression, or spinal arachnoiditis,4 or lumbar spinal stenosis5 resulting in pseudoclaudication.6 R. 4.
The ALJ found that Plaintiff had the residual functional capacity to lift and carry at
the sedentary exertional level, and the capacity to stand and walk at the light exertional
“1. Inflammation of the intradural portion of a spinal nerve root prior to its entrance into the intervertebral
foramen. 2. Inflammation of the portion of a spinal nerve root between the intervertebral foramen and the
nerve plexus.” The American Heritage® Medical Dictionary Copyright © 2007, 2004 by Houghton Mifflin
Company. Published by Houghton Mifflin Company.
“Arachnoiditis describes a pain disorder caused by the inflammation of the arachnoid, one of the membranes that surround and protect the nerves of the spinal cord.” National Institute of Neurological Disorders
and Stroke, Arachnoiditis, available at http://www.ninds.nih.gov/ (last checked Apr. 2, 2014).
“Spinal stenosis is a narrowing of the open spaces within your spine, which can put pressure on your
spinal cord and the nerves that travel through the spine.” Mayo Clinic, Diseases and Conditions, Spinal
stenosis, available at http://www.mayoclinic.org/ (last checked Apr. 2, 2014).
“Pseudoclaudication is a result of narrowing of the lumbar spinal canal (lumbar spinal stenosis). This puts
pressure on the spinal nerve roots, which control movement and sensation in the lower limbs.” Id. at “What
is the difference between claudication and pseudoclaudication?”
level. He also found that she must be allowed the option to alternate between sitting and
standing positions at will throughout the workday and is precluded from repetitive bending
or twisting and limited to no more than occasional pushing and pulling or overhead
reaching with her upper extremities. R. 69. In assessing Plaintiff’s credibility, the ALJ
concluded that “Plaintiff's statements concerning the intensity, persistence and limiting
effects of her symptoms are not credible to the extent that they are inconsistent with [the
ALJ’s] residual functional assessment.” He further concluded that Plaintiffs treating physicians, Dr. Clifford Everett and Dr. Clifford J. Ameduri, both found that she was “limited to
essentially the sedentary exertional category.” R. 70.
After hearing testimony from the VE, the ALJ determined that plaintiff was capable
of performing her past relevant work as a pharmaceutical packaging inspector as actually
performed and as a camera inspector, also as actually and normally performed.
Jurisdiction and Scope of Review
Title 42 U.S.C. ' 405(g) grants jurisdiction to district courts to hear claims based on
the denial of Social Security benefits. Additionally, 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 Asuch 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). Section 405(g) thus limits the Court's scope of review to determining
whether or not the Commissioner's findings were supported by substantial evidence. See,
Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (finding that the reviewing court
does not try a benefits case de novo). The Court is also authorized to review the legal
standards employed by the Commissioner in evaluating the plaintiff's claim.
Plaintiff’s Claims of Error
Plaintiff claims that the ALJ’s decision to deny benefits was not based upon substantial evidence and that the ALJ committed errors of law. As to the latter, Plaintiff
contends that the ALJ erred by allowing telephonic testimony from the VE, by failing to
adhere to the treating physician rule, by failing to properly assess her credibility, by failing
to fully develop the record, and by failing to properly apply the medical-vocational guidelines. Finally, Plaintiff maintains that, since the ALJ stopped at step four in the sequential
analysis and failed to go forward and meet his burden at step five, this Court should reverse the ALJ’s decision and remand the case for the calculation of benefits. The Court
will address each of these contentions, below.
Telephonic Testimony from the VE
Plaintiff argues that the ALJ’s determination to allow the VE to testify by telephone
was in clear violation of HALLEX I-2-5-30 and Ainsworth v. Astrue, No. 09-cv-286-sm,
2010 U.S. Dist. LEXIS 60686 (D.N.H. Jun. 17, 2010). 7 HALLEX refers to the Social
Security Administration’s Hearings, Appeals, and Litigation Law Manual, which is available at http://www.ssa.gov/OP_Home/hallex/hallex.html (last checked Apr. 1, 2014). The
relevant portion of that manual provides as follows: “The preferred method for obtaining
ME or VE opinion is through in-person testimony or testimony taken via telephone or
Plaintiff's counsel’s citation to this case as “09 CV 286 (U.S. Dist. Lexis 60686)” did not permit the Court to
easily find the case. Pl.’s Mem. of Law at 2, Feb. 24, 2014, ECF No. 9. Counsel’s citation lacked the year
decision in the jurisdiction issued that decision. After extensive search, the Court determines that counsel's
intent was to cite to the case listed above.
video teleconference at a hearing.” Here, Plaintiff relates that the testimony from the VE
was taken by telephone. The ALJ’s decision to allow the VE to testify by telephone is in
compliance with that rule. With regard to the case cited, the district court concluded:
Here, whether the practice of accepting expert testimony by telephone is or
is not authorized by the governing regulations, remand is required. The
circumstances presented in this case, viewed as a whole, counsel strongly
in favor of remanding the matter so: (1) the ALJ can obtain the required
expert medical testimony in an appropriate manner; (2) a complete record
of that testimony can be prepared for use on appeal; and (3) the bases of
those critical expert medical opinions will be discernible.
Ainsworth, 2010 U.S. Dist. LEXIS 60686 at 12–13. Plaintiff’s cited case does not support
her conclusion that the ALJ erred by allowing the VE to testify by telephone. Plaintiff also
cites to the Code of Federal Regulations, which at the time of this hearing, mentioned only
“in person” or “video teleconferencing” as means by which a person could appear at a
hearing. The rule has subsequently been amended to include appearance by telephone
(effective June 20, 2013). 20 C.F.R. § 404.950 (May 21, 2013). A full discussion of the
change is contained in the Federal Register. 78 F.R. 29624 (May 21, 2013). The Court is
not convinced that the ALJ’s decision here to allow the VE to testify by telephone compromised Plaintiff’s rights. The change in the appearance rules was aimed at parties to
the case, not an expert witness like the VE. See 72 F.R. 61218 (Oct. 29, 2007) (“Our
proposed rule also differs from the current rule by providing that the ALJ may direct the
individual who requested the hearing to appear at the hearing by telephone under extraordinary circumstances where appearing in person is not possible and video teleconference is not available. For example, an ALJ may direct an individual who is incarcerated
to appear at the hearing by telephone if the facility in which the individual is incarcerated
will not allow a hearing to be held at the facility and the facility does not have video tel6
econference technology. The proposed rule also provides that, if the individual who requested the hearing objects to any other person appearing by telephone, the ALJ could
overrule the objection.”). In this case, Plaintiff appeared by video teleconference, so the
ALJ could both see and hear her and was better able to assess her testimony.
The VE’s testimony was factual and based on records, thus his appearance by
telephone only was not a significant disadvantage to the hearing process. With regard to
the occasions when the VE asked for a repetition of counsel’s question, and stated, “I did
not hear that,” the Court is unpersuaded that these facts indicated the VE was having
difficulty hearing the proceedings. In the first instance, counsel’s question was complex in
the VE asked for repetition of it. In the second instance, the Court interprets the VE’s
comment “I did not hear that,” to mean that the VE contended that Plaintiff did not testify
as counsel had represented to him. Consequently, the Court finds that the ALJ’s decision
to permit the VE to testify via telephone did not compromise Plaintiff’s rights. See Hepp v.
Astrue, 511 F.3d 798, 805 (8th Cir. 2008) (“we do not believe that, in a non-adversarial
proceeding, an in-person cross-examination would significantly increase the accuracy of
determining a witness’s credibility over that of a telephone cross-examination.”).
Development of the Record
Plaintiff also contends that the ALJ fails to fully develop the disability record and,
for that reason, the matter should be remanded. The Court disagrees. Although Plaintiff
correctly sets out the standards that govern the ALJ’s responsibility to fully develop the
record “when the evidence is insufficient to determine disability,” Pl.’s Mem. of Law at 14,
she wholly fails to identify any deficiency in this record in this case. Therefore, Plaintiff
presents no basis for requiring that the case be remanded for further development of the
Assessment of Plaintiff's Credibility
Plaintiff argues that the ALJ “improperly determined that the Plaintiff was not
disabled solely based on his observation at the hearing.” Pl.’s Mem. of Law at 15. The
Second Circuit discussed the Commissioner’s responsibility to make credibility determinations, writing:
It is the role of the Commissioner, not the reviewing court, “to resolve evidentiary conflicts and to appraise the credibility of witnesses,” including with
respect to the severity of a claimant’s symptoms. Carroll v. Sec'y of Health &
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Social Security regulations provide a two-step process for evaluating symptoms such as pain,
fatigue, shortness of breath, weakness, or nervousness. First, the ALJ must
determine whether the medical signs or laboratory findings show that a
claimant has a medically determinable impairment that could reasonably be
expected to produce the claimant's symptoms. If so, the ALJ “must then
evaluate the intensity and persistence of [the claimant’s] symptoms” to
determine the extent to which the symptoms limit the claimant’s capacity for
work. 20 C.F.R. § 416.929(c)(1). The ALJ is required to consider all available evidence, including the claimant’s history, medical signs and laboratory findings, and statements from the claimant, the claimant’s treating or
nontreating source, or other persons about how the symptoms affect the
claimant. Id. Objective medical evidence is useful, but the ALJ will not reject
statements about the intensity and persistence of pain and other symptoms
“solely because the available objective medical evidence does not substantiate [the claimant's] statements.” Id. § 416.929(c)(2). However, if a
claimant’s statements about his or her symptoms are not substantiated by
the objective medical evidence, the ALJ must consider the other evidence
and make a finding on the credibility of the individual's statements. See
SSR 96-7p, 1996 SSR LEXIS 4, 1996 WL 374186, at *4 (July 2, 1996). In
doing so, the ALJ should consider:
(i) [The claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of [the claimant’s]
pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [the claimant] take[s] or ha[s] taken to alleviate [the claimant’s]
pain or other symptoms;
(v) Treatment, other than medication, [the claimant] receive[s] or ha[s]
received for relief of [the claimant's] pain or other symptoms;
(vi) Any measures [the claimant] use[s] or ha[s] used to relieve pain or
other symptoms . . . ; and
(vii) Other factors concerning [the claimant’s] functional limitations and
restrictions due to pain or other symptoms.
20 C.F.R. § 416.929(c)(3). The ALJ's decision “must contain specific reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the [ALJ] gave to the individual’s
statements and the reasons for that weight.” SSR 96-7p, 1996 SSR LEXIS
4, 1996 WL 374186, at *2. While it is “not sufficient for the [ALJ] to make a
single, conclusory statement that” the claimant is not credible or simply to
recite the relevant factors, 1996 SSR LEXIS 4, [WL] at *2, remand is not
required where “the evidence of record permits us to glean the rationale of
an ALJ’s decision,” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.
Cichocki v. Astrue, 534 Fed. Appx. 71, 75–76 (2d Cir. 2013).
Here, the ALJ found that the medically determinable impairments could reasonably
be expected to cause certain of the alleged symptoms she reported. R. 69–70. However,
he went on to describe in detail why he concluded that her reports as to the degree of pain
she experienced were not supported by the credible evidence. Although he noted that
Plaintiff underwent physical therapy and epidural injections without substantial relief,
nevertheless, he accurately observed that “[n]o treating or examining medical source has
opined that the claimant is more limited than determined [by the ALJ].” R. 70. He further
stated that although back surgery was recommended on numerous occasions, she has
consistently declined it. When the ALJ asked her about it the hearing, Plaintiff said she
was afraid to undergo surgery because “I hear too many things about this back surgery.
And the people saying that what you have one, you have got to have this. And I have
never been caught on and I just figure I will just go on out with this pain.” R. 38. The ALJ
further observed that “Dr. Ameduri reported that he did not feel the claimant should go on
narcotic pain medication... [and] also remarked on an examination that he did not think
the claimant was giving ‘maximal volitional effort.’” R. 70. He further remarked that “Dr.
Michael Kuttner noted that the claimant did not exhibit pain behavior commensurate with
her reported pain level . . . .” The ALJ also noted that Plaintiff “engaged in a significant
variety of activities of daily living during the period of her claim for disability, including
attending the computer class 3 to 4 times weekly....” R. 70. However, Plaintiff testified that
she did not finish the computer class because she could not sit, R. 36, elaborating that
sitting in one position for more than about fifteen minutes makes her stiff, R. 26.
In his assessment of Plaintiff's credibility, the ALJ considered her daily activities,
location, duration, frequency, and intensity of her pain, medications she was taking,
possible treatment other than medication to relieve the pain, procedures utilized by
Plaintiff to relieve the pain, and her activities of daily living and social engagements.
Consistent with the ALJ’s conclusion that Plaintiff was exaggerating her pain is a report
dated January 25, 2011, by Michael J. Kuttner, PhD, clinical psychologist. Dr. Kuttner,
related that Plaintiff rated her low back pain as a ten out of ten “with ten equal [to] one's
hands in boiling oil. She rated her pain as 10/10 on interview and exhibited no commensurate pain behavior.” R. 273 (emphasis added).
After reviewing the record, the Court concludes that the ALJ adequately followed
the Commissioner’s rules in determining that Plaintiff's complaints of pain were exaggerated. Evidently, Dr. Kuttner came to the same conclusion upon his examination of
Plaintiff. The Court finds no basis for overturning the ALJ's credibility determination.
Application of the Treating Physician Rule
Plaintiff maintains that as a result of his failure to properly apply the treating physician rule, the ALJ subsequently failed to correctly apply the medical-vocational guidelines and find Plaintiff disabled because she is unable to perform a full range of sedentary
work. Pl.’s Mem. of Law at 17.
The Second Circuit has cautioned that “[a] treating physician’s statement that the
claimant is disabled cannot itself be determinative.” Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999). With regard to the treating physician rule, the Court of Appeals has also stated
SSA regulations advise claimants that “a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s)” will be given
“controlling weight” if the opinion is “well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record.” 20 C.F.R. § 404.1527(d)(2)
(emphasis added). See also Shaw, 221 F.3d at 134; Rosa v. Callahan, 168
F.3d 72, 78-79 (2d Cir. 1999) (“The ALJ cannot arbitrarily substitute his own
judgment for competent medical opinion.”).
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
In support of her position, Plaintiff makes the following argument: “Although the
Judge indicated that he did provide ‘significant weight’ to the opinions of both physicians,
the Residual Functional Capacity (RFC) that the Judge found does not fully incorporate
the treating physicians’ opinions.” Pl.’s Mem. of Law at 11. That sentence, unfortunately,
is the full extent of Plaintiff’s argument in support of her contention that the ALJ failed to
properly apply the treating physician rule. Plaintiff cites to no parts of the record on appeal, which consists of 305 pages, in support of that one-sentence conclusion. Immediately following that one sentence, Plaintiff starts a new argument: “that the VE was forced
to admit that the Plaintiff’s past relevant work was a composite job performing at both the
light and sedentary exertional levels . . . .” Id. In a subsequent sentence, Plaintiff contends
that, “the treating physicians’ opinions were fully supported by the Consultative Examination....” Id. Once again, however, Plaintiff's memorandum provides no citations to the
305 page record. Since Plaintiff is represented by counsel, the Court presumes that if
evidence in support of the memorandum’s conclusory arguments were to be found,
counsel would have cited to it. The Court is not required to comb the record in search of
evidence in support of Plaintiff’s position. See, e.g., Dietrich v. E.I. Du Pont de Nemours &
Co., No. 02-CV-678S, 2004 WL 2202656, *9, n8 (W.D.N.Y. Sept. 28, 2004) ((“[n]ot only
has Plaintiff failed to provide any of his own medical evidence in support of his prima facie
case, but he has also failed to include citations to the medical records Defendant included
as exhibits in its moving papers. It is not this Court’s duty, obligation or function to search
the record for evidence supporting Plaintiff’s case, and this Court declines to do so.”).
Application of the Medical-Vocational Guidelines
Plaintiff maintains that based upon her age, physical restrictions and prior work
history that a proper application of the medical-vocational guidelines would result in a
finding of disabled. The Court disagrees and finds that the ALJ was correct in his determination that Plaintiff could perform two of her past jobs identified by the VE, based on
Plaintiff’s own testimony, as a pharmaceutical packaging inspector and camera inspector.
Plaintiff’s contention that these positions were composite jobs, is contradicted by the SSR
82-61. In that regard, SSR 82-61 indicates that “composite jobs have significant elements
of two or more occupations and, as such, have no counterpart in the DOT.” Since the VE
testified that both the pharmaceutical packaging inspector and camera inspector posi12
tions were, in fact, individually listed in the DOT, they are not composite jobs. Moreover,
the Social Security
regulations provide that, if a claimant can return to her past relevant work,
“either as the claimant actually performed it or as generally performed in the
national economy,” then the claimant is not disabled. 20 C.F.R.
§ 404.1560(b)(2). It is the claimant’s burden to show that she is incapable of
performing her “past relevant work,” see, e.g., Bapp v. Bowen, 802 F.2d
601, 604 (2d Cir.1986), which the regulations define as “work that [the
claimant] ha [s] done within the past 15 years, that was substantial gainful
activity, and that lasted long enough for [the claimant] to learn to do it,” 20
C.F.R. § 404.1560(b)(1). The test for actual performance of a claimant’s
past relevant work is “[w]hether the claimant retains the capacity to perform
the particular functional demands and job duties peculiar to an individual job
as ... she actually performed it.” SSR 82–61, 1982 WL 31387, at *1 (1982)
(emphasis added). The test for general performance of a claimant's past
relevant work is “[w]hether the claimant retains the capacity to perform the
functional demands and job duties of the job as ordinarily required by employers throughout the national economy.” Id. at *2 (emphasis added). ALJs
may rely on job descriptions contained in the DOT to define how jobs are “
usually performed in the national economy.” Id.
Martell v. Commissioner of Social Sec., No. 2:12-CV-152, 2013 WL 1429459, *6 (D. Vt.
Mar. 22, 2013); see also Delaney v. Astrue, No. 09-CV-0251-A, 2010 WL 2629801, *4
W.D.N.Y. Jun. 28, 2010) (“Since the plaintiff retained essentially an unlimited RFC, she
retained the RFC to perform her past relevant work as she actually performed it and as it
is generally performed throughout the national economy and, therefore, she was not
disabled.”); Stanton v. Astrue, No. 5:07-CV-0803 (LEK/VEB), 2009 WL 1940539, *9
(N.D.N.Y. Jul. 6, 2009) (“A claimant is not disabled if she can perform her past relevant
work, either as she actually performed it, or as it is generally performed in the national
economy.”). Here the VE testified that Plaintiff could return to her past relevant work as a
pharmaceutical packaging inspector, as performed, or camera inspector, as performed.8
While Plaintiff’s counsel asked the VE the following hypothetical, “So, if an individual is restricted to less
For the foregoing reasons, the Court determines that the ALJ’s decision is supported by substantial evidence in the Record and the Court affirms the judgment of the
Commissioner of Social Security. 42 U.S.C. § 405(g). Therefore, Plaintiff’s motion for
judgment on the pleadings, ECF No. 9, is denied, and the Commissioner’s cross-motion
for judgment on the pleadings, ECF No. 12, is granted. The Clerk shall enter judgment for
the Commissioner of Social Security and close this case.
IT IS SO ORDERED.
DATED: April 9, 2014
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
than occasional pushing and pulling, would that eliminate the positions of quality control inspector or the
camera position” to which the VE responded, “My classification, yes,” R. 51, there is no evidence in the
Record to indicate that Plaintiff was limited to less than occasional pushing and pulling.
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