Jankuloski v. Commissioner of Social Security
Filing
13
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 9 Commissioner's Motion for Judgment on the Pleadings; and dismissing the Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/2/15. (JMC)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
KAROLINA JANKULOSKI,
Plaintiff,
14-CV-6312
-v-
DECISION AND
ORDER
CAROLYN W. COLVIN,
Commissioner OF Social Security,
Defendant.
Karolina Jankuloski (“plaintiff”) brings this action under
Title II of the Social Security Act (“the Act”), claiming that the
Commissioner of Social Security (“Commissioner” or “defendant”)
improperly denied her applications for supplemental security income
(“SSI”) and disability insurance benefits (“DBI”).
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,
plaintiff’s motion is denied and, defendant’s motion is granted.
PROCEDURAL HISTORY
On January 21, 2011, plaintiff filed applications for DIB and
SSI alleging disability as of June 4, 2010 due to complex regional
pain
syndrome
(“CRPS”),
disorder (“PTSD”),
fibromyalgia,
obsessive
compulsive
post
traumatic
disorder
stress
(“OCD”),
and
trigeminal neuralgia. Administrative Transcript (“T.”) 122-133,
155. Following a initial denial of that application on October 19,
2011, plaintiff testified at a hearing, which was held at her
request on October 18, 2012 before administrative law judge ("ALJ")
Stanley Chin. T. 12-32.
An unfavorable decision was issued on
November 20, 2012, and a request for review was denied by the
Appeals Council on April 7, 2014. T. 1-4, 42-60.
Considering the case de novo and applying the five-step
analysis
contained
in
the
Social
Security
Administration’s
regulations (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ made the
following
findings:
(1)
plaintiff
met
the
insured
status
requirements of the Act through December 31, 2015; (2) she had not
engage in substantial gainful activity since June 4, 2010, the date
of the onset of her alleged disability; (3) her obesity, spinal
impairments, fibromyalgia/CRPS, lower extremity impairments, face
impairment, major depressive disorder, anxiety disorder, PTSD, OCD,
herpes, and migraines were severe impairments; (4) her impairments,
singly or combined, did not meet or medically equal the severity of
any impairments listed in 20 CFR Part 404, Subpart P, Appendix 1;
and (5) plaintiff had the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a),
with the following limitations: a cane in her right dominant hand
to stand and walk; no climbing ladders, ropes, or scaffolds;
occasionally climb ramps or stairs, balance, stoop, kneel, crouch,
or crawl; no exposure to moving machinery and unprotected heights;
work limited to simple, routine, and repetitive tasks performed in
2
a work environment free of fast paced production requirements
involving simple, routine decisions and changes; isolation from the
public with occasional supervision and interaction with coworkers.
T. 47-50.
With respect to finding number four, the ALJ found that
plaintiff’s physical and mental impairments did not meet or equal
the criteria for any impairment listed in Appendix I to Subpart P,
Regulations No. 4, specifically Listings 1.00 (musculoskeletal
system),
12.04
disorders).
(affective
T. 48.
disorders),
and
12.08
(personality
The ALJ further found that plaintiff’s mental
impairments did not meet the “paragraph B” criteria, as she had no
marked limitations or any repeated episodes of decompensation of an
extended duration, or “paragraph C” criteria.
T. 48-49.
DISCUSSION
I.
General Legal Principles
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
3
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
When
determining whether
the
Commissioner’s
findings
are
supported by substantial evidence, the Court's task is “‘to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir.1999), quoting Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir.1983) (per curiam).
scope
of
the
Court’s
review
to
Section 405(g) limits the
two
inquiries:
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. See Green–Younger v.
Barnhart, 335 F.3d 99, 105–106 (2d Cir.2003).
II.
Relevant Medical Evidence
Plaintiff was assessed in June 2010 by Dr. Lisa Hauk at the
Lifetime Health Medical Group for persistent left-side facial pain.
T. 281-284.
Dr. Hauk noted that plaintiff had suffered a facial
injury about a year earlier. T. 281.
The examination revealed no
abnormalities, and Dr. Hauk referred plaintiff to a neurologist.
T. 282. On December 22, 2010, plaintiff reported that the pain was
worsening and had spread throughout her body. T. 288.
A physical
examination
Boyer-Reid
conducted
by
nurse
practitioner
Susan
revealed no abnormalities apart from obesity, but it was noted that
4
plaintiff was not capable of employment due to “major mental health
and chronic pain issues.” T. 291.
In 2008 and 2011 plaintiff was treated at the University of
Rochester Medical Center’s (“URMC”) Department of Orthopaedics for
left foot pain, and she was diagnosed with left regional pain
syndrome of the lower extremity. T. 212-214.
examination,
Dr.
Judith
Baumhauer
noted
that
During the 2011
plaintiff
had
hypersensitivity to light touch in the left lower extremity, but
was able to actively move her foot in each direction with palpable
pulses and plantigrade foot alignment. T. 214, 329.
On October 25, 2010, plaintiff was examined for the Monroe
County Department of Social Services (“DSS”) by Dr. Harbinder Toor.
T. 227-230.
Dr. Toor noted that plaintiff had: mild, atypical
discomfort and slight tingling and numbness in the left side of her
face and light discomfort and mild to moderate pain with tenderness
and slight swelling in her left foot with a left-side limp;
difficulty heel-to-toe walking due to left foot pain; 50% full
squat; slight restriction of movement of left ankle, planar flexion
20 degrees, and dorsiflexion ten degrees. T. 228. Dr. Toor further
noted plaintiff’s history of pain and possible reflex sympathetic
dystrophy in the left lower leg and foot, atypical facial pain with
tingling and numbness on the left side, OCD, and genital herpes.
T. 228. Dr. Toor opined that plaintiff had the following functional
limitations: could stand and walk for two to four hours in a work
5
day; lift or carry 20 pounds occasionally and 10 pounds frequently;
and climb
stairs
two to
four
hours in
a
work
day.
T.
229.
Plaintiff had a six-month working restriction limited to 20 hours
weekly due to left foot pain and left-side facial pain, and she was
limited from lifting over 20 ponds and standing or walking for a
long time. T. 229.
X-ray imaging of plaintiff’s left hip, taken on January 5,
2011,
revealed
configuration,
minimal
grossly
degenerative
maintained
changes,
right
and
normal
left
hips,
bone
and
unremarkable findings. T. 299. Spinal x-ray imaging performed on
February
12,
2011
revealed
no
spinal
cord
abnormalities,
compression, or significant canal stenosis, but did show multilevel
degenerative
changes
with
the
most
severe
neural
foraminal
narrowing on the right at C4-5. T. 267-268. Plaintiff’s brain MRI,
also taken on February 12, 2011, revealed no evidence of acute
infarction,
collection
mass
or
lesion,
evidence
of
hydrocephalus,
abnormal
extra-axial
intracranial
hemorrhage.
The
MRI
revealed additional nonspecific findings common to diabetes and
hypertension and mild sinus disease. T. 270, 312-315.
Neurologist Olga Selioutski evaluated plaintiff’s
diffuse pain on January 31, 2011. T. 321-324.
facial and
Following an
examination, which was generally normal, Dr. Selioutski concluded
that
plaintiff’s
symptoms
were
6
not
typical
for
trigeminal
neuralgia, but she suggested a trial of the nerve pain medication
Tegretol, to which plaintiff was resistant. T. 324.
Following an evaluation by the Center for Pain Management at
Rochester General Hospital (“RGH”) in April 2011, plaintiff was
assessed
with
psychological
chronic
overlay
to
multisite
her
pain
description
bordered on hypochondriasis. T. 333.
with
of
a
her
significant
pain,
which
Treatment notes reveal that
plaintiff complained about a large mass in her groin, yet despite
having seen three surgeons for opinions regarding that area, no
palpable mass was found upon examination. T. 333.
It was also
noted that although plaintiff complained about RSD, there were “no
signs or symptoms at the present time that would corroborate that
diagnosis.” T. 333. Plaintiff also complained of “a mass lesion in
her head that” she believed was “malignant, even though the records
from Dr. Pettee impl[ied] otherwise.” T. 333.
Plaintiff was
ultimately discharged from the Center for Pain Management after
failing to appear for appointments in August and November 2011.
T. 431.
Plaintiff
was
treated
at
the
URMC
Allergy/Immunology/Rheumatology Clinic by Dr. Coca on May 17, 2011
for a pain evaluation. T. 240.
Plaintiff reported chronic pain in
her foot and face and severe pain in her hip. T. 240.
Although
plaintiff stated that her facial pain precluded her from much
talking, Dr. Coca noted that it “was clearly not a problem” during
7
their encounter. T. 240.
Plaintiff had a variety of psychiatric
problems and recently started taking Cymbalta. T. 240.
examination revealed
Dr. Coca’s
no abnormalities apart from plaintiff report
of wide-spread pain, and it was noted that plaintiff’s psychiatric
illness were likely contributing to her pain perception. T. 240241.
Dr. Coca further noted that plaintiff was not sleeping or
exercising. T. 241.
On June 18, 2010, Dr. Allen Pettee at Greater Rochester
Neurological Associates treated plaintiff for atypical facial pain.
T. 253.
He opined that while the pain could be RSD-related,
plaintiff did not have the other autonomic nervous system findings
to suggest RSD as a complication of her localized cheek injury from
the prior year. T. 253.
In a treatment note from November 18,
2010, Dr. Allen Pettee also concluded that although plaintiff’s
atypical facial pain did not include the “classical shock-like pain
to establish a diagnosis of trigeminal neuraglia,[the pain could]
still be trigeminal in origin.” T. 250.
Plaintiff agreed to try
the medication Gabapentin for pain. T. 250. A head MRI showed only
incidental right IAC contrast enhancement and entirely normal left
trigeminal pathways. T. 250. On December 22, 2010, Dr. Pettee
evaluated plaintiff for left-side facial pain, diffuse head and
neck pain, and increasing left hip, groin, and thigh pain. T. 247249.
Dr. Pettee’s examination revealed diffuse giveaway weakness
in the left hip flexion, knee flexion and extension and hip
8
abduction and adduction, no left foot drop, reported diffuse left
thigh pain with leg and hip manipulation, moderate left lateral hip
point tenderness with minimal pain on the right, and mild inguinal
tenderness. T. 248.
Noting that EMG testing of the left leg was
benign, Dr. Pettee recommended x-ray studies of the left hip and an
MRI for suspected lumbar spine disease. T. 249.
He noted that none
of her thigh pain, inguinal hip pain, or left facial pain was
specifically RSD-related, but that it could be due to fibromyalgia.
T. 249.
Plaintiff did not begin taking Gabapentin due to her fear
of the side effects. 248.
Dr. Pettee’s examination on June 7, 2011 revealed increased
right
upper
arm
pain,
diffuse
trigger
points
and
tenderness
consistent with her fibromyalgia history, and several paresthesias
along the right scapular border medially and superiorly. T. 244.
The results of EMG studies were normal. T. 246.
Dr. Pettee opined
that plaintiff “most likely” had isolated referred pain from
cervical radiculopathy superimposed on a complicated history of
multifactorial pain consistent with her fibromyalgia-related pain.
T.
246.
He
suspected
“an
element
of
a
somatoform
complicating her fibromyalgia related pain.” T. 246.
disorder
Dr. Pettee
recommended cervical spine MRI, advising a formal pain management
referral and pain medication if the MRI did not reveal severe
disease. T. 246.
9
In June and August 2011, Dr. Kenneth Veenema, a orthopedist
who treated plaintiff in 2009 for chronic groin pain, reevaluated
plaintiff concerning multiple pain complaints. T. 344-350.
After
several treatment sessions, Dr. Veenema concluded the following: “I
certainly
do
examination,
not
see
imaging,
anything
and
based
guided
on
the
results
injections
to
of
my
support
musculoskeletal etiology of her chronic left groin pain.” T. 344.
In September 2011, Dr. Toor performed another consultative
examination, noting, among other things, plaintiff’s diffuse pain
complaints, fibromyalgia, RSD, and mental health history. T. 351.
Plaintiff was experiencing moderate pain, presenting with a normal
gait and stance and a left-side limp. T. 352.
She declined to
squat, walk heel to toe, or lie down on the examination table, and
she had difficultly changing and getting out of her chair. T. 352.
Plaintiff had tenderness in the left-side cheek, multiple joints
and her extremities and left-side neck pain. T. 353.
Plaintiff’s
musculoskeletal examination revealed reduced range of motion in her
cervical and lumber spine, shoulders, left hip, left knee and left
ankle
and
many
trigger
points
for
fibromyalgia.
T.
353-354.
Dr. Toor opined that plaintiff had moderate limitation standing,
walking, and sitting for a long time; moderate to severe limitation
bending or lifting;
moderate limitation pushing, pulling, and
reaching; mild limitation grasping and holding; pain interfering
with balance, chewing hard food and daily routine. T. 355.
10
When plaintiff returned to Dr. Pettee in January 2012 for an
evaluation of recent right foot pain and numbness, his examination
revealed
exquisite
tenderness
throughout
the
right
without a more distinct focal tenderness. T. 425.
normal,
and
there
was
no
definitive
lower
leg
EMG testing was
evidence
of
peripheral
neuropathy or nerve entrapment contributing to her right foot pain.
T. 426.
Dr. Pettee opined that plaintiff’s pain and numbness were
consistent
with
her
systemic
syndrome,
not
an
orthopaedic
diagnosis, but he noted that some of plaintiff’s specialists were
questioning her fibromyalgia diagnosis. T. 426-427.
In July 2012,
Dr. Pettee completed a physical assessment form for the Monroe
County Department of Human Services in which he opined that, due to
her pain, plaintiff was unable to participate in any activities,
except treatment and rehabilitation, for 12 months. T. 433.
He
further opined that she was able to walk, stand, sit, pushing,
pull, bend, lift and carry for one to two hours, and see, hear and
speak for two to four hours in an eight-hour work day. T. 434.
With respect to plaintiff’s mental health, plaintiff was
treated by therapist Saundra Weatherup for anxiety and OCD-related
thoughts and behaviors. T. 335.
In a December 30, 2010 report,
Ms. Weatherup noted that plaintiff presented with an anxious to
tearful, vindictive, paranoid and angry manner. T. 335. Plaintiff’s
depressive cognition was “very evident” with perception in normal
limits and fair insight and judgment, but her though processes
11
indicated an inability to concentrate and focus due to depression,
constant preservative thinking and compulsive behaviors. T. 336.
Ms.
Weatherup
diagnosed
plaintiff
with
depressive
disorder
complicated by PTSD that may have begun as a child, around the
death of her sister. T. 336. Plaintiff’s inability to repress those
psychological features and arising physiological health problems
played a primary role in her perception that she could not maintain
employment or perform daily functions. T. 336.
Plaintiff was
noncompliant with her treatment plan by refusing to engage in any
medication management. T. 336.
Ms. Weatherup’s September 16, 2011
report was similar to her December 2010 report, and she concluded
that it was “quite questionable whether [plaintiff was] willing to
engage in the necessary therapy to address her diagnosed problems.”
T. 365.
Ms. Weatherup diagnosed plaintiff with recurrent and
moderate major depressive disorder, PTSD, and OCD. T. 366.
In an
attached form, Ms. Weatherup noted that plaintiff’s response to
treatment had been poor. T. 367.
Plaintiff refused to consider
medication management, she did not engage in consistent treatment
or appointments, and there was a question of manipulation in her
failure to comply with treatment. T. 367.
Ms. Weatherup further
noted that plaintiff “act[ed] intruded by internalized thoughts,
and her attitude [could] be hostile, angry, tearful, manipulative,
or cooperative. T. 368.
12
During
a
June
8,
2011
examination
at
Penfield
OB-GYN,
plaintiff denied depression or suicidal thoughts. T. 272. On
September 1, 2011, Dr. Margery Baittle, Ph.D. examined plaintiff at
the request of the Commissioner. T. 357-360. Dr. Baittle noted that
plaintiff completed three years of college and had received help
with reading and comprehension in her regular education program.
T. 357.
Plaintiff had no history of psychiatric hospitalizations,
and she was currently being treated with biweekly therapy and daily
doses of Cymbalta. T. 357.
Plaintiff reported poor sleep, pain-
related irritability, and OCD difficulties, and she complained of
PTSD, but did not describe having symptoms of the disorder. T. 358.
Dr. Baittle observed that plaintiff “forgets a lot of things” and
has trouble learning, planning, and organizing. T. 358. Plaintiff
was cooperative and quite tense, but she made adequate eye contact
most of the time. T. 358.
Her dress was casual and her hair
disheveled, and her thought processes were confused, sometimes
irrelevant and very circumstantial. T. 358.
Plaintiff presented
with a depressed affect, clear sensorium, good orientation, intact
attention and concentration, intact recent and remote memory, and
average cognitive functioning with poor insight and poor judgment
at times. T. 359.
Plaintiff did many things around the house,
including cleaning, laundry, money management, and driving her 18year-old daughter, with whom she lived. T. 359.
with
friends
and
had
good
family
13
She socialized
relationships.
T.
358.
Dr. Baittle opined that plaintiff could follow and understand
directions and maintain a regular schedule, but she had trouble
with attention and concentration, learning new things, making
appropriate decisions, relating to others and responding to stress.
T. 359.
Dr. Baittle diagnosed plaintiff with OCD and concluded
that plaintiff’s
psychiatric
problems
that
“may significantly
interfere with her ability for function on a daily basis.” T. 359.
Psychologist
Dr.
E.
Kamin
prepared
a
psychiatric
review
technique form, dated October 17, 2011, following a review of the
record.
T.
372-388.
Dr.
Kamin
found
that,
in
assessing
plaintiff’s mental impairments against the “B” criteria of Listings
12.04 and 12.06, she had no marked limitations in any area or
mental activity, related to a normal work day. T. 382, 386-387.
Dr. Kamin opined that, based on the information received from
plaintiff’s treating source, she was “able to sustain simple work
activities. T. 388.
III. Non-Medical Evidence
Plaintiff testified that she was 5 feet and 2 inches tall and
weighed about 190 pounds. T. 17.
Her daily activities included
making quick and easy meals, cleaning her home “a little at a
time,” bathing slowly due to her pain, watching TV, and sleeping,
among other things. T. 18-20. Plaintiff attended art classes at the
Mental Health Coalition “as much as” she could, sometimes one or
two
days
a
week
depending
on
14
her
pain
and
availability
of
transportation. T. 20. She occasionally socialized with friends.
T.
28-29.
Plaintiff
felt
that
her
OCD, depression,
prevented her from being able to work full time. T. 20.
and pain
Her OCD
tendencies, such as counting how many times she squeezed the
sponge,
lack
of
motivation,
and
fatigue
prevented
her
from
completing chores. T. 25. She took Cymbalta and received treatment
from her psychiatrist and her therapist three times a month. T. 20.
Plaintiff testified that she felt pain “[a]ll over,” and her
physical condition and mental health had improved very little with
conservative therapy. T. 20. Standing, sitting, or lying down for
any length of time caused plaintiff to become stiff and sore.
T. 25.
There was no indication at the time of the hearing that
plaintiff was taking pain medication. T. 21.
prescribed
by
her
psychiatrist,
Dr.
Cymbalta, which was
Wolhtmann,
was
depressant intended “to help with the pain.” T. 23.
an
anti-
Plaintiff
testified that her pain worsened after she was diagnosed with RSD
in 2008, and she began experiencing a burning sensation on her skin
on her hands, back, and head. T. 27, 28.
She further testified
that she was recently diagnosed with carpal tunnel syndrome. T. 28.
During the hearing, the ALJ posed a hypothetical to the VE,
requesting an opinion whether an individual of plaintiff's age,
education, and experience who could perform work with the following
limitations: lift up to 10 pounds occasionally; stand and walk for
at least two hours and sit for up to six hours in an eight-hour
15
workday; use a cane with the right hand to stand and walk; no
climbing ladders, ropes or scaffolds; occasionally climb ramps and
stairs; occasionally balance, stoop, kneel, crouch, and crawl;
avoid all moving machinery and exposure to unprotected heights;
make
simple,
changes;
work-related
work
supervision
in
and
decisions
with
routine
isolation
from
the
public
interaction
with
coworkers.
work
with
T.
place
occasional
30.
The
VE
responded that plaintiff could perform the sedentary, unskilled
jobs of a mailroom clerk, of which there 25,042 jobs nationally and
3,358 jobs locally, and a document preparer, of which there are
33,000 jobs nationally and 2,300 jobs locally. T. 31.
The ALJ posed a second hypothetical with one additional
limitation that such an individual would be off task 20 percent of
the time. T. 31.
The VE opined that no jobs would be available for
such an individual. T. 31.
IV.
The Commissioner’s Decision Denying Benefits is Supported by
Substantial Evidence.
Here, the ALJ determined that plaintiff had the RFC to perform
sedentary work with the following limitations:
no climbing of
ladders, ropes, or scaffolds; occasionally climb ramps or stairs,
balance, stoop, kneel, crouch, or crawl; no exposure to moving
machinery and unprotected heights; simple, routine, and repetitive
tasks performed in a work environment free of fast paced production
requirements
isolation
involving
from
the
simple,
public
routine decisions
with
16
occasional
and
changes;
supervision
and
interaction with coworkers; and use of a cane to stand and walk.
T. 49.
“It is well-settled that ‘the RFC assessment must include a
narrative discussion describing how the evidence supports each
conclusion,
findings)
citing
and
specific
nonmedical
observations).’”
Hogan
medical
evidence
v.
Astrue,
facts
(e.g.,
laboratory
(e.g.,
daily
activities,
491
F.Supp.2d
347,
354
(W.D.N.Y.2007), quoting Social Security Ruling 96-8p, 1996 WL
374184, at *7 (S.S.A.1996), citing Balsamo v. Chater, 142 F.3d 75,
80-81 (2d Cir.1998). In this case, after setting forth plaintiff’s
RFC, the ALJ summarized most of the medical evidence in the record,
including treatment notes from plaintiff’s medical providers from
2010 to 2012.
treatment
T.50-54 The ALJ detailed plaintiff’s extensive
history,
including
the
assessments
of
her
several
treating sources, Dr. Baumhauer, the Center for Pain Management,
and Dr. Pettee among them.
evidence to
which
he
The ALJ discussed how the medical
referred
and
relied upon
supported his
conclusion that plaintiff could perform sedentary work with the
above limitations.
The Court concludes the ALJ's RFC finding is supported by the
medical evidence contained in the record, including diagnostic
imaging, the many reports and opinions from her treating providers
and consultative examiners, plaintiff’s own testimony, and the VE’s
17
opinion.
The ALJ's decision is therefore supported by substantial
evidence in the record.
Plaintiff specifically asserts that the ALJ’s decision is
flawed because he failed to afford controlling weight to the
opinion of Dr. Pettee in accordance with the treating physician
rule. Plaintiff’s memorandum of law, p. 23-27. Defendant responds
that the ALJ properly discounted Dr. Pettee’s opinion because it
was
not
supported
by
the
medical
evidence
in
the
record.
Defendant’s memorandum of law, p. 18-28 .
The medical opinion of a claimant’s treating physician or
psychiatrist will be given “controlling” weight if that opinion “is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial
§
evidence
404.1527(c)(2);
see
in
also
[the]
case
record.”
Green-Younger,
335
20
F.3d
C.F.R.
at
106.
Medically acceptable clinical and laboratory diagnostic techniques
include consideration of “‘a patient’s report of complaints, or
history, [a]s an essential diagnostic tool.’” Id., 335 F.3d at 107,
quoting Flanery v. Chater, 112 F.3d 346, 350 (8th Cir.1997).
An associated proposition is the “good reasons” rule, which
provides that the Commissioner “‘will always give good reasons in
its notice of determination or decision for the weight it gives
[plaintiffs's] treating source's opinion.’”
Clark v. Commissioner
of Social Sec., 143 F.3d 115, 118 (2d Cir.1998), quoting 20 C.F.R.
18
§§ 404.15279(d)(2) and 416.927(d)(2).
“Those good reasons must be
‘supported
case
by
the
evidence
in
the
record,
and
must
be
sufficiently specific.’” Blakely v. Commissioner of Social Sec.,
581 F.3d 399, 406 (6th Cir.2009), quoting Social Security Ruling
96-2p, 1996 WL 374188, at *5 (S.S.A.1996).
Insomuch as the “good
reasons”
each
rule
exists
to
“ensur[e]
that
denied
claimant
receives fair process” (Rogers v. Commissioner of Social Sec., 486
F.3d 234, 243 [6th Cir.2007]), an ALJ’s “‘failure to follow the
procedural requirement of identifying the reasons for discounting
the
opinions
and
for
explaining
precisely
how
those
reasons
affected the weight’ given ‘denotes a lack of substantial evidence,
even where the conclusion of the ALJ may be justified based upon
the record.’” Blakely, 581 F.3d at 407, quoting Rogers, 486 F.3d at
243.
Here, the ALJ stated that little weight would be accorded to
Dr. Pettee’s opinion that plaintiff was significantly limited from
almost
all
work-related
functioning.
T.
53-54.
Contrary
to
plaintiff’s contention, however, the ALJ went on to provide good
reasons for giving little weight to Dr. Pettee’s opinion.
T. 54.
The ALJ wrote:
The significant nature of [Dr. Pettee’s] limitations are
not substantiated by the [plaintiff’s] medical evidence
of record including little interest in appropriate
treatment for her pains and problems as directed by
medical personnel over more than a two-year period,
mostly non-revealing diagnostic findings, and records
from other specialists noting Waddell signs.
T. 54.
19
It is clear from the forgoing that the ALJ made specific
findings with respect to the weight given to Dr. Pettee’s opinion.
After considering and discussing the records of more than ten
medical
providers,
the
ALJ
properly
discounted
Dr.
Pettee’s
opinions because they relied heavily on plaintiff’s self-reporting,
which was considered less than reliable by the ALJ for the clear
and convincing reasons discussed below.
“An ALJ may reject a
treating physician's opinion if it is based to a large extent on a
claimant's self-reports that have been properly discounted as
incredible.”
(9th
Cir.2008)
Tommasetti
v.
(quotation
Astrue,
marks
533
omitted).
F.3d
Dr.
1035,
1041
Pettee,
a
neurologist, made no definitive findings to establish RSD or
trigeminal neuraglia. His x-ray, EMG, and needle studies showed no
abnormalities,
and his
physical
examinations
revealed
varying
degrees of tenderness and weakness of plaintiff’s lower left
extremities and facial pain, which he opined “could” be due to
fibromyalgia. T. 249, 253, 250.
Dr. Pettee’s opinion concerning
plaintiff’s fibromyalgia and his severe limitations were based on
plaintiff’s reported pain, but were not sufficiently supported by
the doctor’s own treatment notes and the record as a whole.
As
such, his opinion regarding plaintiff’s impairments do not meet the
standards provided under the Act and do not support a finding that
the doctor’s opinions were entitled to controlling weight. See
Green-Younger v. Barnhart, 335 F.3d at 106.
20
The ALJ also afforded little weight to the opinion of nurse
practitioner Boyer-Reid, whom he noted was “not an acceptable
medical source” or a “mental health professional.”
weight
to
Ms.
Weatherup’s
opinion,
noting
He gave some
that
the
treating
therapist did not opine whether plaintiff was able to work and her
notes raised the question of plaintiff’s manipulation influencing
the therapist’s opinion. T. 54.
As a related matter, plaintiff
contends that the ALJ also improperly assessed her credibility.
Plaintiff’s memorandum of law, p. 29-30.
the
ALJ
properly
considered
the
Defendant responds that
credibility
of
plaintiff’s
subjective complaints under the regulatory framework. Defendant’s
memorandum of law, p. 28.
It is well settled that to establish disability, there must be
an
underlying
physical
or
mental
impairment
demonstrated
by
clinical and laboratory diagnostic techniques that could reasonably
be expected to produce the symptoms alleged.
See 20 C.F.R.
§
F.2d
416.929(b);
Gallagher
v.
Schweiker,
697
82,
84
(2d Cir.1983). When a such an impairment exists, objective medical
evidence, if available, must be considered in determining whether
disability
plaintiff’s
exists.
symptoms
See
20
suggest
C.F.R.
an
§
416.929
even
greater
(c)(2).
Where
restriction
of
function than can be demonstrated by the medical evidence, the ALJ
may consider factors such as her daily activities, the location,
duration, frequency and intensity of pain, any aggravating factors,
21
the
type,
dosage,
effectiveness,
and
adverse
side-effects
of
medication, and any treatment or other measures used for pain
relief.
See 20 C.F.R. § 416.929(c)(3); Social Security Ruling
(“SSR 96–7p”), 1996 WL 374186, at *7.
It is well within the ALJ’s
discretion to evaluate the credibility of plaintiff's testimony and
assess, in light of the medical findings and other evidence, the
true extent of her symptoms. See Mimms v. Heckler, 750 F.2d 180,
186 (2d Cir. 1984); Gernavage v. Shalala, 882 F.Supp. 1413, 1419
(S.D.N.Y. 1995).
Although objective evidence may not always be present for a
disease that eludes the measurement of pain, such as fibromyalgia,
the ALJ raised and discussed numerous credibility issues in his
decision.
See
Green-Younger
v.
Barnhart,
335
F.3d
at
108.
Plaintiff testified that she was prescribed the use of a cane, but
none of her medical records mention the use of a cane, and the
consultative physical examiner noted that she was not using any
assistive devices. Plaintiff consistently failed to engage in
treatment, keep treatment appointments, follow up with certain
specialists, or take prescribed medications.
The record also
reveals plaintiff’s “numerous inconsistent reports such as having
a tumor” and difficulty talking, her significant Waddell’s signs,
and her unsubstantiated reports of certain diagnoses and frequency
of mental health treatment. In addition, plaintiff’s treating
22
therapist questioned her honesty and noted the possibility of
plaintiff’s manipulation for benefits. T. 51-54.
All
the
concerns
noted
by
the
ALJ
in
his
decision
are
supported by the medical evidence and treatment notes contained in
the record.
Reports from the Center for Pain Management, from
which plaintiff was later discharged for noncompliance, reveal that
although Dr. Baumhauer recommended that plaintiff visit a pain
doctor concerning foot pain for RSD treatment, plaintiff never did
so. T. 330.
improve
Plaintiff reported that physical therapy was not
her
therapist,
pain,
but
injections,
she
a
did
pain
not
followed
clinic,
or a
up
with
surgeon.
a
pain
T.
330.
Plaintiff eventually tried Gabapentin for her facial pain by taking
half of the prescribed dose for two nights only. T. 330.
Based on the foregoing, it is clear that the ALJ considered
the appropriate factors in assessing plaintiff’s credibility, and,
therefore,
his
credibility
determination
is
supported
by
substantial evidence in the record.
The
ALJ
also
properly
assessed
plaintiff’s
RFC,
which
accurately reflects her limitations as they are set forth and
supported in the medical evidence contained in the record.
CONCLUSION
For the foregoing reasons the plaintiff’s motion for judgment
on the pleadings is denied, and defendant's cross-motion for
judgment on the pleadings is granted.
23
The complaint is dismissed
in
its
entirety
with
prejudice.
The
ALJ’s
decision
denying
plaintiff’s claims for SSI and DIB is supported by the substantial
evidence in the record.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: July 2, 2015
Rochester, New York
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?