Ortiz v. Colvin
Filing
17
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 14 Motion for Judgment on the Pleadings; granting 15 Motion for Judgment on the Pleadings; and the complaint is dismissed in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/31/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
LUZELEINA ORTIZ,
DECISION AND ORDER
No. 13-CV-6463(MAT)
Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION
Plaintiff, Luzeleina Oritz (“Plaintiff” or “Ortiz”), brings
this action under Titles II and XVI 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”) and 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, I grant
the Commissioner’s motion, deny the Plaintiff’s cross-motion, and
dismiss the Complaint.
PROCEDURAL HISTORY
On February 15, 2011, Plaintiff filed applications for DIB and
SSI, alleging disability as of May 10, 2010, which were denied.
Administrative Transcript [T.] 143-144, 85-99.
A hearing was held
on May 22, 2012 before administrative law judge (“ALJ”) John P.
Costello, at which Plaintiff, Plaintiff’s friend Henry Baggling
(“Baggling”), and a vocational expert (“VE”) testified.
T. 39-75.
On August 9, 2012, the ALJ issued a decision finding that Plaintiff
was not disabled during the relevant period.
T. 13-25.
On July 3, 2013, the Appeals Councils denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.
T. 1-6.
This action followed.
FACTUAL BACKGROUND
Relevant Medical Evidence
Plaintiff’s Physical Health History
Following a December 4, 2007 motor vehicle accident, Plaintiff
was seen at the Rochester Brain and Spine Center (“RBSC”) for back
pain.
T. 376-377.
An MRI of Plaintiff’s lumbosacral spine showed
a herniated lumbar disc.
T. 377.
She was initially treated with
steroid injections, and later underwent a surgical right discectomy
and foraminatomy.
was
treated
on
T. 377-379.
a
continued
chiropractic treatments.
Following her surgery, Plaintiff
basis
at
RBSC
and
also
received
T. 345-353, 357-366.
In October 2010, Plaintiff met with Roger Ng, M.D. at RBSC,
who
assessed intervertebral disc displacement lumbar without
myelopthay.
T. 353.
Upon examination, Dr. Ng reported that
Plaintiff’s gait was normal, her neck and spinal regions were
within
normal
limits
to
inspection
and
palpation,
but
that
Plaintiff exhibited tenderness to palpation in the lumbar spine and
sacroiliac joint.
T. 351-352.
Plaintiff’s motor strength was
-2-
intact, her muscle tone was normal, her range of motion was
physiologic and full, heel toe walking was normal, her straight leg
raises produced low back pain, and her trunk rotation was positive
bilaterally.
T. 352.
Dr. Ng noted that Plaintiff’s Patrick test
was positive bilaterally, her sensation was grossly intact to light
touch, her reflexes were 2+ and symmetric, her cranial nerves were
intact and she had no coordination deficits.
T. 352.
In December 2010 and January 2011, Plaintiff was seen at Unity
Spine Center (“USC”), complaining of continued sharp pain in her
lower back to hip that radiated into her right leg.
T. 664, 667.
Treatment notes show that Plaintiff’s lumbar mobility was decreased
and her sensory and motor strength in the right lower extremity
were
slightly
decreased
due
to
pain.
T.
668.
An
MRI
of
Plaintiff’s lumbar spine from January 2011 showed stable postoperative findings and no recurrent herniation. T. 603. Plaintiff
returned to USC in February 2011, at which time she reported that
sitting, standing or walking for long durations aggravated her back
pain.
T. 670.
Treatment notes show that Plaintiff had no motor
weakness, her gait was slow with a slight limp, and her right lower
extremity at L2 was decreased.
In
October
2011,
T. 670.
Plaintiff was
seen
at
Neurology, complaining of continued back pain.
Unity
Rehab
and
Plaintiff’s supine
straight leg raises were negative, she had no motor weakness, and
her sensation was decreased at L2 in the right lower extremity.
-3-
Plaintiff was diagnosed with right leg and bilateral foot pain.
T. 1122.
Also in October 2011, Plaintiff saw Dr. Ng complaining of back
pain
and
right
foot
pain.
T.
1034-1035.
Dr.
Ng
assessed
intervertebral disc displacement and degeneration lumbar without
myelopthy.
T. 1034-1035.
Plaintiff’s Mental Health History
In 2010, Plaintiff was treated at Huther-Doyle for chemical
dependency.
T.
336-343.
Substance
abuse
counselor
Brenda
Brightful (“Brightful”) diagnosed alcohol and cannabis dependence
and assessed a Global Assessment Functioning (“GAF”) score of 55.
T. 342.
Notes from Plaintiff’s discharge summary report dated
September 16, 2010 show that Plaintiff had completed all treatment,
her goals were met, no additional treatment was necessary, and her
GAF score was assessed at 75. T. 336-337.
While attending counseling at Huther-Doyle, Plaintiff was also
treated
at
St.
Mary’s
Mental
Health
Clinic
for
depression.
Plaintiff’s mental status examinations showed depressed mood, but
were otherwise generally unremarkable.
T. 400-461.
While there,
Plaintiff attended group therapy when she was able to find child
care.
In November 2010 Plaintiff was assessed a GAF score of 65.
T. 402. Treatment notes from 2011 show that Plaintiff continued to
complain of depressed mood and financial stressors, but that she
was expressing herself well in therapy and reported feeling relief
-4-
by attending these sessions. T. 703-734. In April 2011, Plaintiff
was assessed a GAF score of 50.
T. 731.
In January 2012, treatment notes show that Plaintiff continued
to be actively engaged in group therapy, her mood was euthymic, and
she was assessed a GAF score of 55.
T. 1038-1040.
Consultative Examinations/Opinions
In March 2010, Plaintiff underwent a consultative examination
with Adele Jones, Ph.D. who assessed that Plaintiff could follow
and
understand
simple
directions,
perform
simple
tasks
independently, maintain attention and concentration, maintain a
regular
schedule,
learn
new
task,
perform
complex
tasks
independently, make appropriate decisions, and relate adequately
with others.
Dr. Jones diagnosed post-traumatic stress disorder,
depressive disorder, and alcohol, cocaine, and cannibis dependence.
T. 1022.
Dr. Jones recommended continued psychiatric and drug
addiction treatment.
Also
in
March
T. 1023.
2010,
Plaintiff
underwent
a
consultative
examination by George Alexis Sirontenko, D.O. who diagnosed morbid
obesity,
history
of
depression,
musculoskeletal
ligamentous
degenerative back pain. T. 1032. He assessed moderate limitations
for kneeling, squatting, bending, and climbing stairs, inclines and
ladders on a repetitive basis.
He also assessed that Plaintiff
needed to avoid lifting objects over her head on a repetitive
basis.
T. 1032.
-5-
In April 2010, V. Reddy, Ph.D. completed a mental residual
functional capacity assessment in which he opined that Plaintiff
could
follow,
understand,
and
perform
simple
instructions,
directions, and tasks, maintain attention, concentration and a
regular
work
schedule,
make
appropriate
decisions,
relate
adequately with others, but had difficulty dealing with stress.
Dr. Reddy opined that Plaintiff “appears capable of performing the
basic functional requirements of unskilled work.”
T. 1026.
Also in April 2010, Marvin Blase, M.D. completed a mental
residual functional capacity assessment form and reported that he
was
in
agreement
with
Dr.
Reddy’s
assessment
“additional documentation was needed.”
In
February
2011,
Plaintiff
and
that
no
T. 1028-1029.
underwent
a
consultative
examination with Christine Ransom, Ph.D. who opined that Plaintiff
could follow and understand simple directions and instructions,
perform
simple
tasks
independently,
maintain
attention
and
concentration for simple tasks, maintain a simple regular schedule,
and learn simple new tasks.
She opined further that Plaintiff had
moderate difficulty performing complex tasks, relating adequately
with others and appropriately dealing with stress due to major
depressive
disorder.
Dr.
Ransom
diagnosed
major
depressive
disorder, alcohol and marijuana dependence, and back pain.
She
recommended that Plaintiff continue mental health treatment and
drug and alcohol rehabilitation.
T. 470-471.
-6-
Also in February 2011, Plaintiff underwent a consultative
examination with orthopedist Sandra Boehlert, M.D. who diagnosed
lumbar radiculopathy and a psychology disorder.
T. 477-478.
Dr. Boehlert assessed moderate limitations for heavy lifting,
bending, twisting, ambulating, “or staying in one position for too
long.”
T. 478.
On February 23, 2011, Edward Kamin, Ph.D. reviewed the medical
evidence in the file and completed a psychiatric review technique
form.
He
concluded
that
Plaintiff’s
medically
determinable
impairments of depressive disorder and polysubstance abuse disorder
did not meet the criteria for Listings 12.04 and 12.09.
495.
Dr.
Kamin
determined
that
Plaintiff
could
T. 490,
understand,
remember and follow simple directions and sustain and maintain an
adequate pace.
T. 503.
Dr. Kamin assessed that Plaintiff could
relate and respond in a low contact setting, adapt to change and
use appropriate judgment to make simple decisions.
T. 503.
In March 2011, S. Putcha, M.D. reviewed Plaintiff’s medical
record and assessed that Plaintiff could occasionally lift and
carry ten pounds, could frequently lift and carry less than ten
pounds, could stand and/or walk at least two hours in an eight hour
workday, sit for about six hours in an eight hour workday, and was
occasionally limited in performing postural activities.
T. 510-
511.
In June 2011, Allen Hochberg, Ph.D. reviewed the medical
evidence in the record and completed a psychiatric review technique
-7-
form.
T. 735-752.
He concluded that the Plaintiff’s impairments
did not meet Listing 12.04 and 12.09.
T. 738, 743.
Dr. Hochberg
assessed that Plaintiff was mildly limited in performing activities
of daily living and social functioning, and moderately limited in
maintaining
concentration,
persistence
or
pace.
T.
745.
Dr. Hochberg reported that Plaintiff could understand, execute and
remember simple instructions and work-like procedures, maintain
attention and concentration for at least two-hour intervals, make
simple work-related decisions, maintain a normal workday/week and
consistent pace, and might have difficulty working closely with
others and adapting to changes in a routine work setting.
T. 751.
The Hearing Testimony
Plaintiff, who was born in 1969, attended school through the
tenth grade and had previously worked as a nursing home assistant,
housekeeper/home
complex.
health-aide,
T. 43-46.
and
a
cleaner
for
an
apartment
She testified that she was fired from her most
recent job with a nursing home in 2008 “[b]ecause of the comments
or the talking back [she] used to do.”
T. 46-47.
Plaintiff
testified that she lived with her three children, ages 3, 18 and
20.
T. 43.
She testified further that she was 5 feet 9 inches
tall and weighed 309 pounds.
T. 47.
According to Plaintiff, her
most serious health problem was her constant low back pain, which
she described as a ten out of ten on a pain scale.
T. 49.
She testified that she needed help caring for her two older
children, both of whom had ADHD.
-8-
T. 58-60.
She also testified
that she had a driver’s license, drove to appointments and the
grocery store, fixed TV dinners, washed a few dishes and did small
loads of laundry.
T. 61.
She testified that she can use a broom
to sweep the floor for instances where “[her] baby spilled or
something.”
T. 61.
Baggling, Plaintiff’ friend of ten years, testified that he
lived with Plaintiff and saw her daily when he got home from work.
T. 63-64.
Baggling testified that Plaintiff had problems with her
lower back and legs and could not sleep at night.
T. 64-65.
Baggling drove Plaintiff to most of the places she needed to go and
helped her grocery shop.
He testified further that Plaintiff’s
mood had been sad or depressed for about three and one half to four
years.
Braggling also testified that he gave Plaintiff “reefers”
to help her sleep, which she smoked maybe two or three times a
month.
T. 64-65, 68.
VE Julie Andrews also testified at the hearing. The ALJ asked
the VE to consider an individual having the same age, education and
work experience as Plaintiff who could perform sedentary work and
simple tasks allowing her to change positions every 40 minutes and
requiring only occasional contact with co-workers and the general
public. The VE testified that such an individual could not perform
Plaintiff’s past work but could perform the jobs of label pinker
and brake linings coder, both of which existed in significant
numbers in the national economy.
-9-
T. 71-72.
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)).
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).
Under Rule 12(c), judgment on the pleadings may be granted
where the material facts are undisputed and where judgment on the
-10-
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.
The
ALJ
in
20 C.F.R. § 404.1520.
this
case
used
this
sequential
procedure
to
determine Plaintiff’s eligibility for disability benefits. The ALJ
found that:
activity
Plaintiff did not engage in substantial gainful
since
May
10,
2010,
the
alleged
onset
date;
that
Plaintiff has the severe impairments of low back pain caused by a
history of herniated disc at L5-S1, morbid obesity and depression,
but that Plaintiff does not have an impairment or combination of
impairments that met or medically equaled the severity of one of
the Listed Impairments; that Plaintiff has the residual functional
capacity (“RFC”)
to
perform
a
range
of
sedentary
work;
that
Plaintiff is unable to perform her past relevant work; and that,
considering
residual
Plaintiff’s
functional
age,
capacity,
education,
there
are
work
experience
jobs
that
exist
and
in
significant numbers in the national economy that Plaintiff can
-11-
perform, namely label pinker and brake line coater. Therefore, the
ALJ concluded that Plaintiff was not disabled during the relevant
period.
T. 13-25.
III. Analysis of Plaintiff’s Arguments
A.
The ALJ Failed to Reasonably Evaluate the Medical
Evidence at Step 3 and Failed to Develop the Record
Plaintiff argues that remand is warranted on the basis that
the ALJ failed to: (1) evaluate the relevant medical evidence at
Step 3 of his analysis that allegedly supports a finding that
Plaintiff’s impairments meet the requirements of Listing 1.04A; and
(2)
to
consult
a
medical
expert
when
considering
whether
Plaintiff’s impairments medically equaled a Listing impairment.
Pl’s Mem (Dkt. No. 14-1) at 20-21.
1.
Listing 1.04A
To be considered disabled under Listing 1.04A, Plaintiff must
demonstrate evidence of a disorder of the spine that results in the
compromise of a nerve root or the spinal cord that also includes
evidence of nerve root compression characterized by neuro-anatomic
distribution of pain;
limitation of motion of the spine;
motor
loss accompanied by sensory or reflex loss; and, if there is
involvement of the lower back, positive straight-leg raising test
(both sitting and supine). 20 C.F.R. Part 404, Subpart P, Appendix
1.
It is the plaintiff’s burden to “demonstrate that [his]
disability [meets] ‘all of the specified medical criteria’ of a
spinal disorder.”
Otts v. Comm’r of Soc. Sec., 249 F. App’x 887,
-12-
888 (2d Cir. 2007), quoting Sullivan v. Zebley, 493 U.S. 521, 531
(1990). “An impairment that manifests only some of those criteria,
no matter how severely, does not qualify.”
Sullivan, 493 U.S. at
530 (citation omitted).
Here, the ALJ considered Listing 1.04A (disorders of the
spine), but found that Plaintiff’s lumbar spine impairment did not
meet listing-level severity because Plaintiff “has not exhibited
each
of
the
necessary
neurological
deficits[.]”
T.
16.
Specifically, the ALJ explained that “[i]n orthopedic consultative
examinations performed in April 2010 and February 2011, there was
no evidence of muscle atrophy, sensory abnormality, or reflex
deficit motor loss accompanied by sensory or reflex loss.” He went
on to explain that “[c]ontemporaneous progress notes from the
treating
sources
at
Unity
Rehabilitation
and
Neurology
have
consistently noted no evidence of motor weakness or atrophy.”
T. 16.
This finding is supported by substantial evidence.
As Plaintiff points out, treatment notes from Unity Rehab and
Neurology
show
that
mobility/restricted
period.
Plaintiff
range
of
did
motion
experience
during
some
the
diminished
relevant
time
For example, treatment notes from September 16, 2010 and
October 28, 2010 show that Plaintiff’s motor abilities were “4/5
due to pain,” she had a slight limp, and had “decreased lumbar
mobility.”
T. 1077, 1080.
However, these clinical findings were
not consistent throughout the record.
For instance, in June 2010
and October 2011 treatment notes from Unity Rehab and Neurology
-13-
show that Plaintiff had no motor weakness.
Further, as the ALJ
pointed out, these same treatment notes also show that Plaintiff
had either only slightly diminished sensory loss or none at all,
that her balance and gait were intact, and that her deep tendon
reflexes were symmetric.
T. 656, 1122.
Additionally, treatment notes from October 2010 from Dr. Ng
show that Plaintiff’s gait and heel/toe walking were normal, her
spinal regions were grossly within normal limits to inspection and
palpation, her motor strength was intact, her range of motion was
physiologic and full range, her sensation was grossly intact to
light touch, her reflexes were 2+ and symmetric, her cranial nerves
were intact and she had no coordination deficits.
T. 352-353.
Likewise, Dr. Sirotenko consultatively examined Plaintiff in
the spring of 2010 and reported that Plaintiff’s gait was normal,
she could walk on heels and toes, and needed no assistance rising
from a chair.
T. 1032.
Dr. Boehlert consultatively examined
Plaintiff in February 2011 and reported that Plaintiff’s gait was
normal
and
she
could
walk
on
heels/toes
without
difficulty.
Dr. Boehlert reported further that Plaintiff’s strength was full in
the upper and lower extremities with no muscle atrophy or sensory
abnormality and her reflexes were present and equal.
T. 477-478.
Based upon all the medical evidence in the record, including
Plaintiff’s treatment notes and the consultative opinions from
Drs. Sirotenko and Boehlert, the Court finds that the ALJ correctly
-14-
determined that Plaintiff does not meet all of the requirements
under Listing 1.04A.
2.
Duty to Develop the Record at Step 3
It is well settled that the ALJ has an affirmative duty to
develop the medical record and seek out further information where
the evidence is inconsistent or contradictory, or where evidentiary
gaps exist.
See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
In addition, an ALJ “may . . . ask for and consider opinions
from medical experts on the nature and severity of [a claimant’s]
impairment(s)
requirements
§§
and
of
on
any
whether
[her]
impairment”
404.1527(f)(2)(iii),
in
impairment(s)
the
416.927(f)(iii).
Listings.
equals
the
20
Further,
C.F.R.
the
Social
Security Administration’s own internal operating guide, the Manual
on
the
Social
Security
Administration
Hearings,
Appeals,
and
Litigation Law (“HALLEX”) section I-2-5-34, which Plaintiff draws
the Court’s attention to, provides that “an ALJ may need to obtain
medical expert testimony: (1) when the ALJ is determining whether
a
claimant’s
impairment(s)
meets
a
listed
impairment(s);
or
(2) when the medical evidence is conflicting or confusing; or
(3) when the ALJ desires expert medical opinion regarding the onset
of an impairment.
See HALLEX § I-2-5-34(A) (Sept.
28, 2005)
(http://www.ssa.gov/OP_Home/hallex/I-02/I-2-5-34.html)
(last
visited July 24, 2014).
The Court’s review of the ALJ’s decision in this case in light
of the record as a whole supports the conclusion that the ALJ did
-15-
not abuse his discretion by failing to consult a medical expert or
to re-contact any of Plaintiff’s treating physicians to determine
whether
Plaintiff’s
Listings.
impairments
met
or
medically
equaled
the
As discussed above, the ALJ thoroughly addressed the
well-developed medical evidence, including Plaintiff’s records from
her treating physicians and the opinion evidence from Dr. Ransom,
in assessing equivalence with Listing criteria at step three of his
sequential evaluation.
No obvious evidentiary gaps have been
identified, and Plaintiff has otherwise failed to identify any
information
to
suggest
that
additional
expert
testimony
or
additional information from any of Plaintiff’s treating physicians
might have led the ALJ to reach a different conclusion.
Indeed,
where, as here, there are no obvious gaps, and the record presents
“a complete medical history,” the ALJ is under no duty to seek
additional information before rejecting a claim.
Id. at 79, n. 5
(citing Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).
Accordingly, the Court finds no basis for remand on account of
the ALJ’s failure to develop the record with respect to his Step 3
determination.
B.
The ALJ’s RFC Determination is Supported by Substantial
Evidence
Plaintiff
argues
that
the
ALJ’s
RFC
determination
that
Plaintiff is able to perform a range of sedentary work is flawed
because: (1) the ALJ relied on the absence of evidence, rather than
properly developing the record as to Plaintiff’s limitations with
-16-
RFC assessments from Plaintiff’s treating physicians; (2) that the
RFC is unsupported by medical evidence; (3) that the RFC lacks
specificity
for
a
VE
to
determine
the
extent
in
which
the
occupation base for sedentary work is eroded.
1.
The ALJ Inappropriately Relied on the Absence of Evidence
As an initial matter, an ALJ may “rely not only on what the
record says,
but
also on
what
it
does
not
say.”
Dumas v.
Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (citing, inter alia,
Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) (per curiam)).
As the ALJ noted here, no treating physician offered a specific RFC
assessment. Tr. 22. Because Plaintiff bears the burden of proving
her RFC, the ALJ could reasonably rely on the lack of evidence that
Plaintiff was unable to perform a range of sedentary work. See
20
C.F.R.
§
404.1545(a)(3)
(the
claimant
is
responsible
for
providing the evidence used in the residual functional capacity
determination);
Moreover,
evidence
in
see also Dumas, 712 F.2d at 1553.
the
the
ALJ’s
record
extensive
pertaining
discussion
to
of
the
Plaintiff’s
medical
physical
impairments reveals that substantial evidence existed to support
his findings. For example, the ALJ discussed Dr. Ng’s October 2011
examination of Plaintiff, at which time Dr. Ng noted that Plaintiff
appeared well, she walked with a normal gait, her sensation was
grossly intact to light touch and she exhibited normal, full muscle
strength.
T. 20.
-17-
The ALJ also discussed the findings made by consultative
examiner Dr. Sirotenko, who reported that Plaintiff was in no acute
distress at her examination, she had a normal gait/station and she
could walk on her heels and toes, and that her lower extremity
strength was only slightly diminished.
Dr. Sirotenko noted that
Plaintiff had “no features of lower extremity radiculopathy” and
assessed that Plaintiff had moderate limitations for kneeling,
squatting, bending, climbing stairs, inclines or ladders on a
repetitive basis and lumbar spine forward flexion, extension and
rotation, and recommended that Plaintiff avoid lifting objects
overhead on a repetitive basis.
T. 19, 1020-1033.
The ALJ also considered the findings made by consultative
examiner Dr. Boehlert, who reported that Plaintiff’s gait was
normal at her examination, that she used no assistive device,
needed no help changing for the exam or getting on or off the exam
table, and that Plaintiff’s strength was full, and she had no
muscle atrophy or sensory or reflex abnormality.
T. 20, 472-475.
Notably, Dr. Boehlert opined in her medical source statement that
Plaintiff was moderately limited with respect to lifting, heavy
bending, twisting, heavy ambulating, or staying in one position for
too long.
Id.
This evidence, as well as the ALJ’s lengthy discussion of
Plaintiff’s overall medical history and her related treatments,
indicated that despite Plaintiff’s back condition, she retained
-18-
some functional use of her back and extremities.
Additionally,
Plaintiff testified at the hearing that she could lift about
10 pounds, sit or stand for about 35 to 40 minutes, and could walk
for about 20 minutes.
She also testified that she has a driver’s
license and drives to medical appointments or the grocery store,
she can cook microwave dinners, can wash a few dishes, and can do
small loads of laundry.
In
sum,
the
T. 18.
physical
findings,
as
well
as
Plaintiff’s
testimony, demonstrated that Plaintiff’s back condition did not
prevent her from the exertional requirements of sedentary work,
with certain additional limitations.
Where there are no deficiencies in the record, an ALJ is not
under an affirmative obligation to develop the administrative
record.
See Perez, 77 F.3d at 47.
As demonstrated here, the
record contained no obvious gaps and the ALJ was able to make a
disability determination based on the available evidence. For this
reason, this Court finds that the ALJ had no duty to further
develop the record.
2.
The RFC is Unsupported by Medical Evidence
In assessing a claimant’s RFC, the ALJ must consider all of
the relevant medical and other evidence in the case record to
assess
the
sensory,
claimant’s
and
other
ability
to
meet
requirements
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the
of
physical,
work.
20
mental,
C.F.R.
§ 404.1545(a)(3)-(4);
see also SSR 96-8p, SSR LEXIS 5, 1996 WL
374184 (S.S.A. July 2, 1996).
In this case, after considering the entire record, the ALJ
concluded that although Plaintiff had some mental and physical
limitations,
the
evidence
did
not
support
the
presence
of
limitations that would preclude Plaintiff from performing sedentary
work with additional limitations, including:
she must change
positions
limited
briefly
every
40
minutes;
she
is
to
the
performance of simple tasks; and she can have only occasional
contact with co-workers and with the general public.
T. 17-18.
Sedentary work is work that involves, over the course of a typical
eight hour work day, the occasional lifting of up to 10 pounds,
more frequent lifting and occasional carrying of lighter items, and
very limited amounts of standing and/or walking, up to a maximum of
two hours in an eight hour workday.
Here,
as
the
ALJ
explained,
20 C.F.R. 416.967(a).
his
RFC
determination
was
supported by “the limited abnormal physical and mental status
examination
findings[,]
[and]
findings
and
conclusions
of
consultative examiners like Drs. Sirotenko, Boehlert, and Ransom[,]
and by and state agency reviewing consultants such as Drs. Kamin,
Hochberg and Putcha.”
Specifically,
T. 23.
with
respect
to
Plaintiff’s
physical
impairments, the evidence showed that Plaintiff had a history of
back pain that dated back to a 2007 motor vehicle accident, and
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included a May 8, 2008 surgical procedure and post-operative
diagnosis of a herniated lumbar disc. T. 16, 19, 376-379, 781-787,
803-868.
Treatment notes from 2010 from Unity Rehabilitation and
Neurology Spine Center reflected normal findings, including no
kyphosis
or
scoliosis
of
the
spine,
no
paravertebral
spasm,
negative straight leg raises, no sensory loss or weakness, and that
Plaintiff’s gait were intact and her deep tendon reflexes were
symmetric.
revealed
T. 21-22.
either
Treatment notes from Dr. Ng in October 2010
mild
or
Bacloflen for one week.
lumbar injection.
stable
findings,
and
he
prescribed
In January 2011, Dr. Ng administered a
In January 2011, Plaintiff’s MRI results showed
post-operative
T. 601-603.
normal
findings
with
no
recurrent
herniation.
Although Plaintiff continued to complain of back pain
when she visited the Spine Center in October 2011, she was assessed
as stable on her current medications, her supine straight leg
raises were negative, she had no motor weakness, and her sensory
was decreased only at L2 in the right lower extremity.
T. 1122.
Further, Plaintiff’s treatment notes from 2011 show that Plaintiff
walked with a normal gait, her heel/toe walking was normal, and her
sensation was grossly intact to light touch.
T. 1035, 1036.
The ALJ’s physical RFC was also supported by the consultative
opinions of Drs. Sirotenko and Boehlert, and State Agency Reviewing
consultant Dr. Pucha.
Specifically, Dr. Sirotenko consultatively
examined Plaintiff and assessed that she had moderate limitations
-21-
for kneeling, squatting, bending and climbing stairs, inclines and
ladders
on
a
repetitive
supportive devices.
basis,
T. 1033.
and
needed
no
assistive
or
Similarly, Dr. Boehlert examined
Plaintiff in February 2011 and assessed that Plaintiff had moderate
limitations for heavy lifting, bending, twisting, ambulating and
staying in one position for too long.
T. 478.
On March 1, 2011,
State agency medical consultant Dr. Putcha reviewed Plaintiff’s
file and opined that Plaintiff could perform a range of sedentary
work, given that she was independent in ambulation.
514.
T. 23, 509-
The opinion of consultative physicians and State agency
consultants can constitute substantial evidence where, as here,
they are consistent with the other evidence in the record.
generally
Diaz
(opinions
of
v.
Shalala,
consultative
59
F.3d
and
constitute substantial evidence);
307,
State
315
Agency
(2d
Cir.
physicians
See
1995)
can
Mongeur v. Heckler, 722 F.2d
10033, 1039 (2d Cir. 1983) (same).
With respect to Plaintiff’s mental impairments, the evidence
showed that Plaintiff had a history of depression and substance
abuse.
However, as the ALJ pointed out, Plaintiff’s mental status
examinations showed only limited abnormalities, that she received
conservative treatments, and for which she had never received inpatient psychiatric or emergency room care.
T. 21, 23, 1037-1057.
Specifically, in March 2010, Dr. Jones reported generally mild or
normal findings, and assessed that Plaintiff could follow and
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understand simple directions, perform simple tasks independently,
maintain attention and concentration, maintain a regular schedule,
learn
new
tasks,
perform
complex
tasks
independently,
make
appropriate decisions, and relate adequately with others. T. 1022.
Session notes from Huther-Doyle and St. Mary’s Mental Health
reflected
continued
improvement
treatment and counseling.
in
Plaintiff’s
symptoms
with
Treatment records from St. Mary’s show
that Plaintiff’s mental status examination findings were overall
“unremarkable” with varying reports of depressed mood and affect,
and that she actively engaged in group therapy sessions.
461.
T. 399-
Notably, she was assessed GAF scores ranging from 55-75 in
2010, and a score of 55 in 2012.
679-734.
T. 333-337, 401-402, 1037-1057,
A GAF score of 51-60 represents moderate limitations,
while a GAF score of 70-75 represents slight limitations.
See
Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed.,
Text
Revision,
American
Psychiatric
Association
2000)
(“DSM-IV-TR”).
The ALJ’s mental RFC was also supported by the opinions of
psychological consultative examiner Dr. Ransom and State Agency
psychologists Dr. Kamin and Dr. Hochberg. Specifically, Dr. Ransom
performed a consultative examination of Plaintiff in February 2011
and reported that she exhibited a moderately dysphoric affect, her
attention, concentration, and her immediate memory were moderately
impaired.
Dr. Ransom opined that Plaintiff would have moderate
-23-
difficulty
others,
performing
and
complex
appropriately
tasks,
dealing
relating
with
adequately
stress.
with
Likewise,
Drs. Kamin and Hochberg placed Plaintiff’s mental health functional
limitations within the moderate range.
Both opined that Plaintiff
could follow simple instructions and relate and respond to others
in a low contact work setting.
Accordingly, the Court finds that the ALJ’s RFC was supported
by substantial evidence in the record.
3.
The Hypothetical Posed to the VE was Based on an RFC that
Adequately Described Plaintiff’s Limitations which
Supported the ALJ’s Finding of No Disability
Plaintiff asserts that “[t]he RFC crafted by the ALJ is
unclear.
The ALJ found Plaintiff ‘must change positions briefly
every 40 minutes,’ but neglected to include specific details to
properly
inform
the
analysis
of
the
vocational
expert.”
Specifically, Plaintiff points out that the ALJ failed to indicate
whether Plaintiff must switch between sitting and standing or
between sitting and walking, and failed to adequately define
‘briefly.’
Pl’s Mem at 28-29.
For the opinion of a VE to constitute substantial evidence,
the hypothetical questions posed to the VE must include all of the
claimant’s limitations that are supported by medical evidence in
the record.
See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir.
1981) (a “vocational expert’s testimony is only useful if it
addresses whether the particular claimant, with his limitations and
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capabilities, can realistically perform a particular job”);
see
also Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (“A
hypothetical question posed to a vocational expert must reflect all
of a claimant’s impairments . . . .”) (internal citations and
quotation marks omitted).
Here, Plaintiff testified that she could stand for “about 35,
40 minutes” before she had to sit down and could sit for “[a]bout
the same amount” of time before she needed to stand.
Additionally,
consultative
examiner
Dr.
Boehlert
T. 52-53.
opined
that
Plaintiff had “moderate limitation to . . . staying in one position
for too long due to her back post-op.”
T. 478.
These physical
limitations were incorporated into the RFC assessment, as the ALJ
determined that “[Plaintiff] must change positions briefly every
40 minutes.”
T. 18.
At Plaintiff’s hearing, the ALJ explicitly asked the VE to
consider an individual having the same age, education, and work
experience as Plaintiff who has an RFC to perform the full range of
sedentary work with the following limitations: limited to simple
tasks, change positions briefly every 40 minutes, should have only
occasional contact with coworkers and the general public. T. 71-72.
The
VE
testified
that
such
an
individual
could
perform
occupations of brake linings coder and label pinker.
the
T. 72.
Because the hypothetical question posed to the VE was based on an
RFC that accurately described Plaintiff's limitations, the VE’s
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testimony provides substantial evidence to support the ALJ’s finding
of no disability.
With respect to Plaintiff’s particular argument that the ALJ’s
RFC
determination
Plaintiff’s
need
was
to
not
specific
alternate
as
positions
to
the
between
frequency
of
sitting
and
standing, as required by SSR 96-9p, the Court finds this argument
meritless.
While the ALJ did not explicitly state that Plaintiff
must change positions between sitting and standing, the Court finds
that no greater specificity was required given that he determined
that Plaintiff must “change positions briefly every 40 minutes.”
T. 18.
As discussed above, this particular finding was supported
by Plaintiff’s own statements that she needed to change positions
between
sitting
and
standing
(and
vice
versa)
every
35
to
40 minutes, and on Dr. Boehlert’s assessment that Plaintiff would
have “moderate limitation” in staying in one position “for too
long,” which is consistent with ALJ’s finding that Plaintiff must
“change positions briefly” which allowed for a degree of flexibility
to alternate positions.
Therefore, the Court finds that the ALJ’s conclusion at Step 5
was supported by substantial evidence.
-26-
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:
July 31, 2014
Rochester, New York
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