Pratts v. Colvin
Filing
14
-CLERK TO FOLLOW UP-DECISION AND ORDER denying 8 Motion for Judgment on the Pleadings; granting 10 Motion for Judgment on the Pleadings. Defendants motion for judgment on the pleadings [#10] is granted and Plaintiffs motion [#8] for judgment on the pleadings is denied. The Clerk of the Court is directed to close this action. Signed by Hon. Charles J. Siragusa on 7/14/15. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JENNIE PRATTS,
Plaintiff
DECISION AND ORDER
-vs14-CV-6176 CJS
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
________________________________________
APPEARANCES
For the Plaintiff:
Howard D. Olinsky, Esq.
Olinsky Law Group
One Park Place
300 South State Street, Suite 420
Syracuse, New York 13202
For the Defendant:
Lauren Myers, Esq.
Special Assistant U.S. Attorney
Office of the United States Attorney
for the Western District of New York
c/o Social Security Administration
Office of General Counsel
26 Federal Plaza
New York, New York 10278
Kathryn L. Smith, A.U.S.A.
Office of the United States Attorney
for the Western District of New York
100 State Street, Room 620
Rochester, New York 14614
INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of Jennie Pratts (“Plaintiff”) for Social Security Disability
1
Insurance (“SSDI”) benefits. Presently before the Court are the parties’ cross-motions for
judgment on the pleadings. (Docket Nos. [#8] & [#10]). Plaintiff’s application is denied
and Defendant’s application is granted.
VOCATIONAL HISTORY
At the time of the hearing Plaintiff, who was 55 years of age, had graduated from
high school, completed two years of college (149) and worked at various jobs, including
that of Account Manager with the Red Cross, Assistant Manager with CVS Pharmacy,
Outside Sales Consultant for Sally Beauty Supply, Secretary at the University of
Rochester, Customer Relations Manager at an auto dealership, and Claims
Representative for Safeco Insurance. The ALJ found, and Plaintiff does not dispute, that
Plaintiff acquired certain transferable skills from those jobs. (31, 34). Plaintiff’s last
employment ended on February 12, 2011, when she was terminated from her job with
the Red Cross for reasons unrelated to her impairments. (15-18).
PROCEDURAL HISTORY
On September 26, 2011 Plaintiff applied for SSDI benefits (121), claiming to be
disabled due to “problems in both knees and legs,” “arthritis of knees,” “arthritis of legs”
and “arthritis of shoulders.” (148). At that time, Plaintiff described her condition as
follows:
Due to my arthritis in my knees and legs, it is very difficult and painful for
me to walk, climb up and go down stairs. They get swollen every day and
feel as though my knees will break and give way at times. I cannot stand in
one position for any length of time or sit down too long without my knees,
and legs and feet feeling tired, stiff, achy and sometimes numb. When I
get up from sitting, I first have to wait a few seconds and position myself
first before walking. I also have slight arthritis on my shoulders and cannot
2
lean/sleep on them because of the painful/rotator’s cuff.
(156). Later, Plaintiff expanded her claim to include carpal tunnel syndrome and low
back pain. Plaintiff claimed that she became unable to work on February 14, 2011. (148).
On October 26, 2011, Plaintiff completed a questionnaire for the Commissioner,
describing her activities of daily living. Plaintiff indicated that she spent her days caring
for her infant granddaughter, including feeding the baby and changing diapers, shopping,
watching television, reading, doing “light” household chores, talking on the telephone,
emailing and visiting with friends in her home. (162, 165, 167). Plaintiff indicated that
she had “no problem” caring for herself, except that she had difficulty blow drying,
straightening and curling her hair “in a timely fashion.” (162). Plaintiff indicated that she
cooked “quick” family meals on certain days, and that her husband helped with cooking
on other days. (163). Plaintiff reported that she could do “some cleaning, some laundry,”
and ironing occasionally, but needed help with “lifting, carrying, bending down, pushing,
pulling, going up and down stairs.” (164). Plaintiff indicated that she was in “constant
pain,” for which she took ibuprofen every four hours. (170). Plaintiff further indicated that
she had asthma attacks due to “allergies,” mostly in the Spring. (172).
On November 14, 2011, the Commissioner denied Plaintiff’s application, finding,
in pertinent part, that Plaintiff’s medical conditions did not prevent her from performing
her prior work as a “customer sales representative.” (67). Plaintiff appealed that
determination and requested a hearing before an Administrative Law Judge (“ALJ”).
On April 16, 2013, Plaintiff appeared at her hearing before an ALJ, accompanied
by her husband. (9-43). After the ALJ advised Plaintiff of her right to retain an attorney
3
and postpone the hearing, Plaintiff elected to proceed unrepresented. Regarding her
activities of daily living, Plaintiff testified that she has a license and is able to drive.
Plaintiff also stated that in order to lose weight prior to knee surgery in June 2012, she
was able to use an elliptical exercise machine and participate in the Zumba exercise
program, though in a “low impact” manner. (24). Plaintiff indicated, however, that she
eventually quit Zumba because of knee pain. (24). Plaintiff further acknowledged that
after she stopped working, she provided daytime childcare for her granddaughter, “four
or five hours a day,” for many months while her daughter worked. (14). On this point,
Plaintiff testified that she provided such child care from January 2012 to April 2012 (1415), but she previously told others, including the Commissioner, that she was providing
such care as early as October 2011. (162). The only other person to testify at the
hearing was the Vocational Expert (“VE”).
At the close of the hearing, the ALJ kept the record open to allow Plaintiff to
submit additional exhibits, which she did. (48). The Court will briefly summarize Plaintiff’s
medical records below.
On October 27, 2008, Plaintiff informed Aitezaz Ahmed, M.D. (“Ahmed”) that she
had experienced pain in her knees “for the past two years,” and “occasional” pain in her
shoulders and feet, but no joint swelling or prolonged joint stiffness in the mornings.
(214). Upon examination, Ahmed reported normal neurologic responses, tenderness in
the right hand, left wrist and both feet, and crepitus, tenderness and varus deformity in
both knees. (216). Ahmed observed no rashes. (216). Ahmed reported that Plaintiff had
a positive ANA Test and “arthralgias,” but doubted that she had lupus or rheumatoid
arthritis. (217). Ahmed noted that osteoarthritis was contributing to Plaintiff’s pain, and
4
recommended that she pursue physical therapy. (217). Ahmed further advised Plaintiff
to have additional lab testing and x-rays. (217, 219).
On June 12, 2009, Plaintiff visited her primary care physician, Stefenie King, M.D.
(“King”). (239-241). King reported that Plaintiff was complaining of allergy symptoms, but
was “otherwise doing well.” (239). King observed “no bone/joint pain or swelling,” but
noted that Plaintiff took ibuprofen, “3 tabs daily for joint pain.” (240).
On June 18, 2009, Ahmed saw Plaintiff for a follow-up appointment, and noted
that she had not followed his recommendation to have additional blood tests, x-rays or
physical therapy.(219). Plaintiff reported that she still had pain in her “knees and feet”
that was worse with activity, and for which ibuprofen provided “partial relief.” (219). Upon
examination, Ahmed observed tenderness in the right hand and both feet, and
tenderness, crepitus and varus deformity of both knees. (219). Ahmed gave Plaintiff
injections of Depo Medrol and lidocaine in her knees. (218).
On June 16, 2010, King noted that Plaintiff was complaining of a sinusitis and
nasal allergy symptoms. (234). King observed “no bone/joint pain or swelling. No
weakness.” (235).
On September 29, 2010, King reported that Plaintiff was complaining of pain in
her knees, and that an orthopedic specialist, Robert Little, M.D. (“Little”), had given
Plaintiff cortisone shots in the knees, which “didn’t help much.” (230). King stated,
though, that Plaintiff was able to exercise using her pool and elliptical machine, which did
“not bother her knees.” (230). Plaintiff reportedly told King that her allergies and eczema
were bothering her. (230). Under the section of her office notes entitled
“Musculoskeletal,” King indicated, apparently based on Plaintiff’s statements: “Positive
5
for back pain, bone and joint symptoms and myalgias.” (231). However, King stated that
her own physical examination revealed “normal musculature. No skeletal tenderness or
joint deformity.” (232).
On November 2, 2011, Karl Eurenius, M.D. (“Eurenius”), a non-treating,
consultative specialist in internal medicine retained by the Commissioner, examined
Plaintiff. (251-257). Eurenius noted that Plaintiff was complaining of arthritis in her
knees, toes and shoulders, as well as allergies and eczema. (251). Plaintiff reportedly
told Eurenius that she had been experiencing knee pain for ten years, “particularly with
walking, standing on her toes, and going up or down stairs.” (251). Plaintiff stated that
she felt shoulder pain when she tried to sleep on her right side or perform “heavy lifting”
with her right arm. (251). Plaintiff indicated that she used “lotions” to treat her eczema.
(251). Eurenius reported Plaintiff’s activities of daily living as follows:
She cooks twice a week, but her husband helps her. She does light
cleaning. She does laundry once a week, but no heavy lifting. She does
shopping once a week, but no heavy lifting, and she does light child care
two to three times a week. She watches TV, listens to the radio, reads and
shops.
(252). Eurenius performed a physical examination and stated that due to knee pain,
Plaintiff had difficulty standing on her toes and squatting, but that otherwise her “general
appearance, gait and station” were essentially normal. (252). Eurenius further stated
that Plaintiff had evidence of “healed” eczema rashes on her hands and lower legs. (252253). As for his musculoskeletal examination, Eurenius stated that Plaintiff had some
pain and tenderness in her lower back with certain movements, and some pain in her
right shoulder “with full elevation,” but had full hand grip strength and intact hand and
6
finger dexterity. (253-254). With regard to Plaintiff’s knees, Eurenius stated: “Both knees
appear chronically swollen without signs of acute inflammation. There is mild tenderness
on either side of the patella in each knee. There are no other signs of contractures,
ankylosis, or thickening.” (254). Eurenius’ medical source statement was as follows:
In my opinion she is limited in recurring lifting or carrying with her right
shoulder and with her right arm due to arthritis of the right shoulder with
pain. She is also limited in walking more than 100 yards, climbing or
descending more than four or five stairs due to chronic arthritis with pain in
the knees.
(254).
On November 8, 2011, David Paniccia, RPA (“Paniccia”), who is a Physician’s
Assistant to Dr. Little, reported that Plaintiff was complaining of “increasing pain” in her
knees during the previous “6-8 months,” resulting from “weightbearing and walking.”
(266). Paniccia examined Plaintiff and reported that “both knees show a varus
[bowlegged] position,” and that Plaintiff was “tender along the medial compartments of
both knees.” (267). However, Plaintiff had a “slow steady gait” and was able to get on
and off the exam table without difficulty. (267). X-rays of Plaintiff’s knees showed
“severe medial compartments joint space narrowing bilaterally” and “mild osteophyte
formations with mild to moderate patellofemoral degenerative changes.” (267).
Paniccia’s impression was “bilateral knee [degenerative joint disease].” (267). Paniccia
provided Plaintiff with cortisone injections in the knees, and indicated that knee
replacement surgery might be advisable if the injections did not help. (267).
On November 16, 2011, following an office visit, King reported that Plaintiff was
“doing well overall,” trying to lose weight and “trying to exercise (Zumba).” (258). Plaintiff
7
indicated that she had just gotten “steroid injections” in her knees a few days earlier, and
requested that King prescribe further physical therapy, because previous physical
therapy had been “helpful for her bilateral shoulder, elbow, ankle and toe pain.” (258).
King’s physical examination of Plaintiff was “positive for back pain and joint pain,” but
“negative for joint swelling, muscle weakness and neck pain.” (259). Under the heading
“musculoskeletal,” King further stated: “Normal range of motion, muscle strength, and
stability in all extremities with no pain on inspection.” (260).
On December 14, 2011, Plaintiff reportedly told Paniccia that the cortisone
injections had only helped her knees for a few days, and that she was continuing to have
pain with “weightbearing and walking.” (270). Paniccia again reported that Plaintiff’s
knees were “tender along the medial compartments,” with no instability. (271). Paniccia
opined that conservative treatment for Plaintiff’s “severe” knee arthritis had failed, and
that she should therefore speak to Dr. Little about knee replacement surgery. (271, 279).
In June 2012, Plaintiff had surgery to replace her left knee joint. (297).
On October 31, 2012, King signed Plaintiff’s application for a “handicap parking
permit,” and checked boxes on the form indicating that Plaintiff had a “permanent
disability,” namely “severe [degenerative joint disorder],” and was “unable to walk 200 ft.
without stopping,” and that she was “severely limited in ability to walk due to an arthritic,
neurological or orthopedic condition.” (283).
On March 15, 2013, King examined Plaintiff for complaints of “low back pain,
hands falling asleep.” (284). King’s impression, in pertinent part, was “acute carpal
8
tunnel syndrome” and “acute lumbago,” i.e., low back pain.1 (284). For the carpal tunnel
syndrome, King recommended an initial “trial of exercises and bracing,” to see if the
condition would improve. (284). King indicated that if such conservative treatment failed,
Plaintiff should see a hand surgeon, Jeffrey Fink, M.D. (“Fink”). (284). For the lumbago,
King recommended physical therapy and “core strengthening exercises.” (284).
On March 29, 2013, King provided Plaintiff with a doctor’s note, indicating that
Plaintiff should be excused from jury duty during the next eighteen months, since she
was “unable to sit or stand for longer than 15 minutes without having to change position.”
(282).
On August 16, 2013, the ALJ issued his Decision, denying Plaintiff’s application
for SSDI benefits. (48-58). In that regard the ALJ applied the familiar five-step sequential
analysis for disability claims, which is set forth later in this Decision and Order. At step
one of the analysis, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since February 14, 2011. (50). At step two, the ALJ found that Plaintiff has the
following severe impairments: “allergic asthma; back disorder; bilateral degenerative joint
disease; osteoarthritis; carpal tunnel syndrome; and obesity.” (50). At step three of the
analysis, the ALJ found that none of Plaintiff’s impairments met or equaled a listed
impairment. (51). Prior to reaching step four of the analysis, the ALJ made the following
residual functional capacity (“RFC”) finding:
[C]laimant has the residual functional capacity to perform sedentary work . .
. except she would only occasionally be able to operate foot controls. She
1
According to the Encyclopaedia Brittanica, “Lumbago is considered by health professionals to be
an antiquated term that designates nothing more than lower back pain caused by any of a number of
underlying conditions.” http://www.britannica.com/science/lumbago
9
would only occasionally be able to climb ramps and stairs, never climb
ladders, ropes or scaffolds, and only occasionally stoop. She would never
be able to work around unprotected heights. She would only occasionally
be able to work around atmospheric conditions, such as dust, fumes and
gases. She would require a hand held assistive device [cane] when
ambulating on uneven terrain and distances over 100 feet. She would
never be able to kneel, crouch, or crawl. She would require a sit/stand
option to change positions every 15 minutes. She would only frequently be
able to finger and handle.
(51). At step four of the sequential analysis, the ALJ found, based on the testimony of
the VE, that Plaintiff would not be able to perform any of her past relevant work. (55-56).
However, at step five of the analysis, the ALJ found, again based on the VE’s testimony,
that Plaintiff can perform other work, including the following jobs: “appointment clerk,”
DOT 237.367-010, “information clerk,” DOT 237.367-022, and “clerk typist,” DOT
203.362-010. (57-58). In making this determination, the ALJ indicated that he had
considered the pertinent regulations, including the regulations for weighing medical
evidence and regulations for evaluating a claimant’s credibility. (51).
On August 26, 2013, Plaintiff requested review by the Appeals Council. In
connection with the appeal, approximately eight months after the hearing, in December
2013, Plaintiff submitted new evidence from Dr. King. (Exhibit 11F). Specifically, on
December 10, 2013, King had filled out a form disability report for the Monroe County
Department of Human Services. (297-298). King listed Plaintiff’s medical conditions as
bilateral knee pain [bilateral] with joint replacement surgeries,2 “low back pain,” “carpal
tunnel syndrome” for which she was being treated by another doctor, and
2
On November 12, 2013, Plaintiff had surgery to replace her right knee joint. (297).
10
“depression/anxiety.” (297).3 King offered no explanation for the diagnosis of
“depression/anxiety.” (297). In any event, with regard to physical limitations, King
indicated that Plaintiff was “very limited” with regard to walking, standing, lifting, carrying,
pushing, pulling, bending, using hands, and climbing stairs, and was “moderately limited”
with regard to sitting. (297). With regard to “mental functioning,” King indicated that
Plaintiff had no limitations, except a moderate limitation in being able to function in a
work setting at a consistent pace. (297). Notably, King’s statement does not indicate the
expected duration of Plaintiff’s impairments, other than to say that they were expected to
last more than ninety days. In that regard, King issued this report only one month after
Plaintiff’s second knee replacement surgery (right knee) and included the statement, “It
would be difficult for [patient] to work at this time given her current disabilities.” (298).
Moreover, King checked a box indicating that Plaintiff’s restrictions were “expected to last
longer than 90 days,” but did not check the box indicating that Plaintiff had “a severe
impairment(s) which has lasted, or is expected to last at least 12 months.” (298).
On February 24, 2014, the Appeals Council denied Plaintiff’s request for review.
(1-5). In that regard, the Appeals Council acknowledged receiving King’s report, but
nevertheless indicated that it found “no reason under our rules to review the [ALJ’s]
decision.” (1, 4-5).
On April 14, 2014, Plaintiff, now represented by counsel, commenced this action.
On October 14, 2014, Plaintiff filed her motion [#8] for judgment on the pleadings, raising
essentially the following arguments: 1) the ALJ’s RFC finding is not supported by
3
Apparently with regard to the alleged “depression/anxiety,” King indicated that she was
recommending that Plaintiff go to “English Road Psychotherapy” for “therapy.” (298).
11
substantial evidence, since he (a) failed to consider Plaintiff’s shoulder arthritis in
formulating the RFC, (b) failed to factor Plaintiff’s back pain into the RFC, (c) failed to
properly account for Plaintiff’s carpal tunnel syndrome in the RFC, and (d) failed to factor
Plaintiff’s non-severe eczema into the RFC; 2) the ALJ failed to consider and weight the
opinion of “Dr. Kosty”; 3) the ALJ’s credibility determination is not supported by
substantial evidence; and 4) the ALJ’s step-five determination is unsupported by
substantial evidence, since it is based on flawed RFC and credibility findings.
On January 14, 2015, Defendant filed her cross-motion [#10] for judgment on the
pleadings.
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the Commissioner
of Social security as to any fact, if supported by substantial evidence, shall be
conclusive.” The issue to be determined by this Court is whether the Commissioner’s
conclusions “are supported by substantial evidence in the record as a whole or are based
on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
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.” Id.
For purposes of the Social Security Act, disability is the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.
The SSA has promulgated administrative regulations for determining when a
claimant meets this definition. First, the SSA considers whether the claimant is
currently engaged in substantial gainful employment. If not, then the SSA
12
considers whether the claimant has a “severe impairment” that significantly limits
the “ability to do basic work activities. If the claimant does suffer such an
impairment, then the SSA determines whether this impairment is one of those
listed in Appendix 1 of the regulations. If the claimant’s impairment is one of those
listed, the SSA will presume the claimant to be disabled. If the impairment is not
so listed, then the SSA must determine whether the claimant possesses the
“residual functional capacity” to perform his or her past relevant work. Finally, if
the claimant is unable to perform his or her past relevant work, then the burden
shifts to the SSA to prove that the claimant is capable of performing “any other
work.”
Schaal, 134 F.3d at 501 (Citations omitted).
Under the regulations, a treating physician’s opinion is entitled to controlling
weight, provided that it is well-supported in the record:
If we find that a treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record, we will give it controlling
weight.
20 C.F.R. § 416.927(c)(2); 20 C.F.R. § 404.1527(c)(2). However, “[w]hen other
substantial evidence in the record conflicts with the treating physician's opinion . . . 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.” Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999)(citing 20 C.F.R. § 404.1527(c)(4), formerly designated as 20 C.F.R. §
404.1527(d)(4)). Nevertheless,
[a]n ALJ who refuses to accord controlling weight to the medical opinion of
a treating physician must consider various ‘factors’ to determine how much
weight to give to the opinion. 20 C.F.R. § 404.1527[(c)](2). Among those
factors are: (i) the frequency of examination and the length, nature and
extent of the treatment relationship; (ii) the evidence in support of the
treating physician's opinion; (iii) the consistency of the opinion with the
record as a whole; (iv) whether the opinion is from a specialist; and (v)
other factors brought to the Social Security Administration's attention that
tend to support or contradict the opinion. Id. The regulations also specify
that the Commissioner ‘will always give good reasons in [her] notice of
13
determination or decision for the weight [she] give[s] [claimant's] treating
source's opinion.’ Id.; accord 20 C.F.R. § 416.927[(c)](2); see also Schaal,
134 F.3d at 503-504 (stating that the Commissioner must provide a
claimant with “good reasons” for the lack of weight attributed to a treating
physician's opinion).
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). An ALJ, though, is not required to
explicitly discuss each such factor, as long as his “reasoning and adherence to the
regulation are clear.” Atwater v. Astrue, 512 Fed. Appx. 67, 70, 2013 WL 628072 at *2
(2d Cir. Feb. 21, 2013) (“Atwater challenges the ALJ's failure to review explicitly each
factor provided in 20 C.F.R. § 404.1527(c). We require no such slavish recitation of each
and every factor where the ALJ's reasoning and adherence to the regulation are clear.”)
(citation omitted).
Administrative Law Judges are required to evaluate a claimant’s credibility
according to the factors set forth in the Commissioner’s regulations, which state, in
relevant part:
In determining whether you are disabled, we consider all your symptoms,
including pain, and the extent to which your symptoms can reasonably be
accepted as consistent with the objective medical evidence and other
evidence. By objective medical evidence, we mean medical signs and
laboratory findings as defined in § 404.1528 (b) and (c). By other evidence,
we mean the kinds of evidence described in §§ 404.1512(b)(2) through (8)
and 404.1513(b)(1), (4), and (5), and (d). These include statements or
reports from you, your treating or nontreating source, and others about your
medical history, diagnosis, prescribed treatment, daily activities, efforts to
work, and any other evidence showing how your impairment(s) and any
related symptoms affect your ability to work. We will consider all of your
statements about your symptoms, such as pain, and any description you,
your treating source or nontreating source, or other persons may provide
about how the symptoms affect your activities of daily living and your ability
to work.
***
14
In evaluating the intensity and persistence of your symptoms, including
pain, we will consider all of the available evidence, including your medical
history, the medical signs and laboratory findings and statements about
how your symptoms affect you. (Section 404.1527 explains how we
consider opinions of your treating source and other medical opinions on the
existence and severity of your symptoms, such as pain.) We will then
determine the extent to which your alleged functional limitations and
restrictions due to pain or other symptoms can reasonably be accepted as
consistent with the medical signs and laboratory findings and other
evidence to decide how your symptoms affect your ability to work.
20 C.F.R. § 404.1529(a); 20 C.F.R. § 416.929(a). The regulation further states, in
relevant part:
Factors relevant to your symptoms, such as pain, which we will consider
include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you
take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief
of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due
to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3). However, while an ALJ is
required to consider these factors, he is not required to explicitly discuss each one. See,
Pellam v. Astrue, 508 Fed.Appx. 87, 91, 2013 WL 309998 at *3 (2d Cir. Jan. 28, 2013)
(“The ALJ did not apply an incorrect legal standard when judging the credibility of
Pellam's testimony. Although the ALJ did not explicitly discuss all of the relevant factors,
Pellam has failed to point to any authority requiring him to do so. In any event, the ALJ
15
cited the applicable regulation, 20 C.F.R. § 404.1529, explicitly mentioned some of the
regulatory factors (such as Pellam's limited use of pain medication), and stated that he
considered all of the evidence required by § 404.1529.”). If it appears that the ALJ
considered the proper factors, his credibility determination will be upheld if it is supported
by substantial evidence in the record. Id.
DISCUSSION
The RFC Determination Takes Into Account Plaintiff’s Shoulder Arthritis
Plaintiff maintains that the ALJ’s RFC determination ignores her shoulder arthritis,
stating, “the RFC only reflects the disease in Plaintiff’s knees and fails to reflect its
presence in Plaintiff’s right shoulder.”4 However, Defendant contends that the ALJ
considered such condition when he limited Plaintiff to less than a full range of sedentary
work.
The Court agrees with Defendant, since it is evident that the ALJ credited
Plaintiff’s complaints of shoulder pain and Dr. Eurenius’s opinion that Plaintiff was limited
in her ability to lift and carry due to such condition. For example, the ALJ expressly
indicated that Plaintiff’s complaints of pain in her shoulders were credible to an extent,
and that they, along with her complaints of knee pain and foot pain, resulted in her being
“greatly limited.” (52) (“The claimant has some credible exertional, postural, and
environmental limitations due to pain in her knees, shoulders and feet. Accordingly, I
have limited her greatly in these areas.”). Moreover, the ALJ referenced Eurenius’s
opinion that Plaintiff “is limited in recurrent lifting or carrying with her right shoulder and
4
Docket No. [#8-1] at p. 10.
16
with her right arm due to arthritis of the right shoulder with pain”(53), and stated that he
was giving “great weight” to such opinion, and “adopting” it in making the RFC
determination. (55) (“[H]is opinion is adopted in the residual functional capacity
determined herein.”). Further, the ALJ limited Plaintiff to less than a full range of
sedentary work, the lowest exertional category, involving “lifting no more than 10 pounds
at a time” and only “occasionally lifting or carrying articles like docket files, ledgers, and
small tools.” 20 C.F.R. § 404.1567(a). Accordingly, Plaintiff’s contention that the ALJ’s
RFC determination “fails to reflect” her shoulder impairment lacks merit.
The RFC Determination Takes Into Account Plaintiff’s Back Pain
Plaintiff next contends that the ALJ failed to account for her back impairment
when formulating the RFC, even though he included it as a severe impairment. (Docket
No. [#8-1] at p. 12) (“[T]he ALJ recognized Plaintiff’s back pain as a severe impairment
[but] refused to recognize its impact on Plaintiff’s ability to work.”). More specifically,
Plaintiff maintains that the RFC should have included some type of “bending or other
limitations related to Plaintiff’s back pain.”5 However, Defendant maintains that the RFC
adequately addressed Plaintiff’s physical complaints, and that additional restrictions were
not warranted in light of the relatively mild nature of Plaintiff’s back ailment.
The Court agrees with Defendant that the ALJ intended his selection of the
sedentary exertion level to accommodate Plaintiff’s back ailment, even though it was
primarily selected based upon Plaintiff’s other conditions, such as her knees and
shoulder, which the ALJ felt were more severe in terms of their effects. More specifically,
5
Docket No. [#8-1] at p. 12.
17
the ALJ’s RFC analysis is primarily focused on a detailed discussion of Plaintiff’s pain in
her “knees, shoulders and feet.” (52-53). The ALJ went on to state that Plaintiff had
“some credible exertional and postural limitations due to back pain,” but that “further
limitations [beyond those contained in his RFC finding were not] warranted,” since his
RFC determination, limiting Plaintiff to less than a full range of sedentary work, was
already sufficient to take into account any limitations caused by her back pain. (54). In
that regard, the ALJ stated that it was “questionable” whether Plaintiff’s back disorder
“caused more than minimal functional limitations.” (51). The Court finds that the RFC
determination on this point is supported by substantial evidence.
The RFC Determination As To Carpal Tunnel Syndrom Is Supported
By Substantial Evidence
Similar to her prior two arguments, Plaintiff next maintains that the ALJ failed to
account for her carpal tunnel syndrom when he made his RFC determination. On this
point, Plaintiff notes, for example, that her carpal tunnel syndrome was significant, since,
for example, Dr. Ahmed twice ordered x-rays of her wrists, and Dr. King “referred [her] to
Dr. Fink, a hand surgeon.”6 Consequently, Plaintiff argues, “the ALJ’s finding of [her]
ability to frequently finger and handle is an error and does not properly reflect the
medical evidence.”7 However, Defendant responds that the ALJ discussed Plaintiff’s
carpal tunnel syndrome, and that his RFC determination on this point is supported by
substantial evidence.
The Court again agrees with Defendant that the ALJ’s RFC determination is
6
Docket No. [#8-1] at p. 13.
7
Docket No. [#8-1] at p. 13.
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supported by substantial evidence. At the outset, the fact that Dr. Ahmed twice ordered
x-rays of Plaintiff’s hands is not really evidence of how serious the condition was, since
Plaintiff apparently failed to follow through and obtain the x-rays either time.(219) (“She
did not go for blood tests and x-rays as previously recommended. She did not go for
physical therapy as previously advised.”). Moreover, Dr. King indicated that Plaintiff
should go and see the hand surgeon, Dr. Fink, only if conservative attempts to treat her
carpal tunnel syndrome failed (284), and there is no indication that it did. Indeed, King’s
office notes provide no follow-up information and, therefore, little or no support for her
opinion, set forth in her post-hearing, December 2013 report, that Plaintiff was “very
limited” in her ability to use her hands. (297).8 Nevertheless, the ALJ credited Plaintiff’s
complaints about her carpal tunnel syndrome to an extent. (54) (“The claimant has some
credible manipulative limitations due to pain in her hands.”). However, the ALJ observed
that Plaintiff’s doctors said very little about carpal tunnel syndrome, while Eurenius, who
is apparently the only doctor to perform objective testing on this point, found that Plaintiff
had intact hand and finger dexterity and full grip strength. (54). Consequently, the ALJ
determined that his RFC finding, which in order to give Plaintiff the benefit of the doubt
(51) included a limitation on fingering and handling, accurately addressed Plaintiff’s
carpal tunnel syndrome, without the need for any “additional limitations.” (54). The Court
finds that such determination was supported by substantial evidence.
8
King’s December 2013 report appears to indicate that Plaintiff was seeing a “Dr. Khishchenko”
for her carpal tunnel syndrome, but there are no records from such a doctor and Plaintiff has not raised
that point.
19
Plaintiff’s Argument Regarding Eczema Rashes Lacks Merit
Plaintiff next contends that the ALJ’s RFC determination was erroneous, since it
didn’t “even mention” rashes on Plaintiff’s hands and face.9 However, the Court
disagrees, since there is no indication from anyone that Plaintiff’s eczema had any effect
on her ability to work. For example, Dr. King’s report from December 2013, which was
expressly intended to list “all medical conditions” preventing Plaintiff from working, does
not even mention eczema in the body of the report (297-298), though an attached list of
medications notes that Plaintiff uses a “topical ointment” for eczema. Nevertheless, the
ALJ mentioned Plaintiff’s eczema, but observed that according to Eurenius the condition
was “in control.” (52). The ALJ’s RFC determination is supported by substantial
evidence, and Plaintiff’s argument on this point lacks merit.
The ALJ Was Not Required to Discuss the Report by Analyst K. Kosty
Plaintiff further contends that the ALJ erred by failing to “evaluate every medical
opinion he receives,” as required by 20 C.F.R. § 416.927(c), since he “failed to evaluate
or even acknowledge the opinion of Dr. Kosty.”10 However, the Court can quickly dispose
of this objection, since as Defendant correctly points out, “K. Kosty,” who completed a
residual functional capacity assessment for the commissioner, is a disability analyst, not
a doctor. (159, 226). In that regard, ALJs are not required to assign weight to the opinion
of a disability analyst. See, Bush v. Colvin, No. 5:13–CV–994 (MAD/ATB), 2015 WL
224764 at *11, n.15 (N.D.N.Y. Jan. 15, 2015) (“Opinions of a disability analyst, who has
9
Docket No. [#8-1] at p. 14.
10
Docket No. [#8-1] at pp. 16-18.
20
no medical training, are not entitled to evaluation as medical opinions.”) (quoting Zongos
v. Colvin, No. 12–CV–1007, 2014 WL 788791, at *11 n. 21 (N.D.N.Y. Feb. 25, 2014);
see also, Miller v. Astrue, No. 3:07–CV–1093 (LEK/VEB), 2009 WL 2568571 at *10
(N.D.N.Y. Aug. 19, 2009)(“The Court notes that the form Plaintiff refers to was completed
by the Social Security disability analyst. Therefore the ALJ was not required to assign
weight to the opinion, nor should the ALJ prefer such an opinion over Plaintiff's treating
physician.”). Plaintiff’s argument on this point therefore lacks merit.
Plaintiff Has Not Shown How the ALJ’s Credibility Finding is Erroneous
Next, Plaintiff maintains that the ALJ’s credibility determination is unsupported by
substantial evidence, because he “erred in considering the required factors.” (Docket No.
[#8-1] at p. 18). Plaintiff’s somewhat cursory argument on this point seems to contend
that the ALJ failed to explicitly discuss each of the factors set forth in 20 C.F.R. §
404.1529(c)(3). Defendant responds that, “Plaintiff does not identify any particular errors
with the credibility analysis.” (Docket No. [#10-1] at p. 16).
Social Security Ruling 96-7p indicates that an ALJ’s credibility determination “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 adjudicator gave to the individual's statements and
the reasons for that weight.” 1996 WL 374186 at *2 (Jul. 2, 1996). However, as already
stated above, although an ALJ is required to consider all of the required credibility
factors, he is not required to explicitly discuss each one. See, Cichocki v. Astrue, 534
Fed.Appx. 71, 76 (2d Cir. Sep. 5, 2013) (“While the ALJ did not discuss all seven factors
21
listed in 20 C.F.R. § 416.929(c)(3), he provided specific reasons for his credibility
determination[.]”). Accordingly, to the extent that Plaintiff’s argument is based on the
ALJ’s failure to explicitly discuss each factor under 20 C.F.R. § 404.1529(c)(3), it lacks
merit.
Although Plaintiff has not identified any other error on this point, the Court has
reviewed the ALJ’s credibility determination and finds that it is supported by substantial
evidence. In that regard, the ALJ expressly stated that he had considered all of Plaintiff’s
symptoms as required by, inter alia, 20 CFR 404.1529 and SSR 96-7p. (51). Further, the
ALJ listed various reasons why he questioned Plaintiff’s statements about the severity of
her symptoms, such as the fact that she “was not entirely forthcoming [about] her parttime work as a childcare provider for her grandchild,” and that she seemed to believe that
she was disabled because she could not presently “earn the same amount as in her past
work.” (55). Additionally, the ALJ noted that Plaintiff was non-compliant with her doctor’s
treatment recommendations at times, and that she was able to engage in exercise and
other activities of daily living. (53, 54).
Plaintiff Has Not Shown That the ALJ Erred at Step Five
Lastly, Plaintiff contends that the ALJ’s finding at Step Five of the Sequential
Analysis was flawed, because it was based on an erroneous RFC determination and an
erroneous credibility determination. Essentially, Plaintiff argues that the VE’s testimony
concerning Plaintiff’s ability to perform other jobs was flawed because it was based on an
incorrect RFC. (Docket No. [#8-1] at p. 18) (“[The VE’s] testimony cannot provide
substantial evidence to support the ALJ’s decision because it was based upon an
incomplete and unsupported hypothetical question.”). Defendant responds that the ALJ’s
22
finding at Step Five is supported by substantial evidence.
The Court finds that Plaintiff’s contention on this point lacks merit since, for the
most part, it is based on the same arguments, concerning the ALJ’s RFC and credibility
findings, that the Court has already discussed and rejected. Plaintiff makes an additional
argument, regarding transferability of skills, but it is too vague to require reversal. In that
regard, Plaintiff asserts that “the transferability analysis is flawed, due to the ALJ’s failure
to consider the limitations of all of Plaintiff’s severe impairments and [to] evaluate all the
medical opinions provided in the record,” but does not identify any particular “limitations”
or “medical opinions” that the ALJ failed to consider or evaluate, apart from those already
discussed. Accordingly, this argument also lacks merit.
CONCLUSION
Defendant’s motion for judgment on the pleadings [#10] is granted and Plaintiff’s
motion [#8] for judgment on the pleadings is denied. The Clerk of the Court is directed to
close this action.
So Ordered.
Dated: Rochester, New York
July 14, 2015
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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