Jankuloski v. Commissioner of Social Security
-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
CAROLYN W. COLVIN,
Commissioner OF Social Security,
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.
On January 21, 2011, plaintiff filed applications for DIB and
SSI alleging disability as of June 4, 2010 due to complex regional
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
regulations (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ made the
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
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.
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
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.
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).
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.
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).
Section 405(g) limits 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).
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.
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.
revealed no abnormalities apart from obesity, but it was noted that
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.
During the 2011
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.
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
day; lift or carry 20 pounds occasionally and 10 pounds frequently;
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,
unremarkable findings. T. 299. Spinal x-ray imaging performed on
compression, or significant canal stenosis, but did show multilevel
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
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.
examination, which was generally normal, Dr. Selioutski concluded
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
bordered on hypochondriasis. T. 333.
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.
ultimately discharged from the Center for Pain Management after
failing to appear for appointments in August and November 2011.
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.
plaintiff stated that her facial pain precluded her from much
talking, Dr. Coca noted that it “was clearly not a problem” during
their encounter. T. 240.
Plaintiff had a variety of psychiatric
problems and recently started taking Cymbalta. T. 240.
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.
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
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.
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
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.
complicating her fibromyalgia related pain.” T. 246.
recommended cervical spine MRI, advising a formal pain management
referral and pain medication if the MRI did not reveal severe
disease. T. 246.
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.
several treatment sessions, Dr. Veenema concluded the following: “I
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.
musculoskeletal examination revealed reduced range of motion in her
cervical and lumber spine, shoulders, left hip, left knee and left
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.
When plaintiff returned to Dr. Pettee in January 2012 for an
evaluation of recent right foot pain and numbness, his examination
without a more distinct focal tenderness. T. 425.
EMG testing was
neuropathy or nerve entrapment contributing to her right foot pain.
Dr. Pettee opined that plaintiff’s pain and numbness were
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.
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
indicated an inability to concentrate and focus due to depression,
constant preservative thinking and compulsive behaviors. T. 336.
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.
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.”
Ms. Weatherup diagnosed plaintiff with recurrent and
moderate major depressive disorder, PTSD, and OCD. T. 366.
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.
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.
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.
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.
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.
Dr. Baittle diagnosed plaintiff with OCD and concluded
interfere with her ability for function on a daily basis.” T. 359.
technique form, dated October 17, 2011, following a review of the
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
transportation. T. 20. She occasionally socialized with friends.
prevented her from being able to work full time. T. 20.
tendencies, such as counting how many times she squeezed the
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.
There was no indication at the time of the hearing that
plaintiff was taking pain medication. T. 21.
Cymbalta, which was
depressant intended “to help with the pain.” T. 23.
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
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;
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.
The Commissioner’s Decision Denying Benefits is Supported by
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
interaction with coworkers; and use of a cane to stand and walk.
“It is well-settled that ‘the RFC assessment must include a
narrative discussion describing how the evidence supports each
(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.
T.50-54 The ALJ detailed plaintiff’s extensive
treating sources, Dr. Baumhauer, the Center for Pain Management,
and Dr. Pettee among them.
The ALJ discussed how the medical
conclusion that plaintiff could perform sedentary work with the
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
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
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
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.
§§ 404.15279(d)(2) and 416.927(d)(2).
“Those good reasons 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
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
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
Here, the ALJ stated that little weight would be accorded to
Dr. Pettee’s opinion that plaintiff was significantly limited from
plaintiff’s contention, however, the ALJ went on to provide good
reasons for giving little weight to Dr. Pettee’s opinion.
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.
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
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
neurologist, made no definitive findings to establish RSD or
trigeminal neuraglia. His x-ray, EMG, and needle studies showed no
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.
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.
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.”
He gave some
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.
Defendant responds that
subjective complaints under the regulatory framework. Defendant’s
memorandum of law, p. 28.
It is well settled that to establish disability, there must be
clinical and laboratory diagnostic techniques that could reasonably
be expected to produce the symptoms alleged.
See 20 C.F.R.
(2d Cir.1983). When a such an impairment exists, objective medical
evidence, if available, must be considered in determining whether
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,
medication, and any treatment or other measures used for pain
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
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
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
therapist questioned her honesty and noted the possibility of
plaintiff’s manipulation for benefits. T. 51-54.
supported by the medical evidence and treatment notes contained in
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.
Plaintiff reported that physical therapy was not
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,
substantial evidence in the record.
accurately reflects her limitations as they are set forth and
supported in the medical evidence contained in the record.
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.
The complaint is dismissed
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
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