Pavia v. Colvin
Filing
14
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/4/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHEN SAMUEL PAVIA,
No. 6:14-cv-06379(MAT)
DECISION AND ORDER
Plaintiff,
-vsCAROLYN W. COLVN, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Represented by counsel, Stephen Samuel Pavia(“Plaintiff”)
brings this action pursuant to Titles II and XVI of the Social
Security
Act,
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying his
application
for
Disability
Insurance
Benefits
(“DIB”)
and
Supplemental Security Income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). For the reasons
discussed below, the Commissioner’s decision is affirmed.
II.
Procedural Status
Plaintiff protectively filed applications for DIB and SSI on
July 12, 2011, alleging disability since April 1, 2007, based on
high blood
pressure,
emphysema,
chronic
obstructive
pulmonary
disease, asthma, obesity, diabetes, hypoglycemia, and difficulty
breathing. T.92-93, 167-74, 181, 187.1 After the applications
1
Numbers preceded by “T.” refer to pages from the administrative transcript,
submitted by Defendant as a separately bound exhibit.
initially were denied, Plaintiff requested a hearing, which was
held on November 29, 2012, before administrative law judge Brian
Kane (“the ALJ”). T.26-79. At the hearing, Plaintiff’s attorney
amended the onset date to January 16, 2010. T.11, 52-53, 163.
Plaintiff testified, as did impartial vocational expert Timothy
Janikowski, Ph.D. (“the VE”). On February 13, 2013, the ALJ issued
a decision finding Plaintiff not disabled. T.8-21. The Appeals
Council denied Plaintiff’s request for review on May 14, 2014,
making the ALJ’s decision the final decision of the Commissioner.
T.1-5. Plaintiff timely commenced this action.
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rule of Civil Procedure. The Court adopts and incorporates by
reference
herein
the
undisputed
and
comprehensive
factual
recitations contained in the parties’ briefs. The record evidence
will be discussed in further detail as necessary to the resolution
of the parties’ contentions.
III. Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Social Security Act (“the
Act”), the district court is limited to determining whether the
Commissioner’s
findings
were
supported
by
substantial
record
evidence and whether the Commissioner employed the proper legal
-2-
standards. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.
2003). The district court must accept the Commissioner’s findings
of fact, provided that such findings are supported by “substantial
evidence” in the record. See 42 U.S.C. § 405(g) (the Commissioner’s
findings “as to any fact, if supported by substantial evidence,
shall
be
conclusive”).
The
reviewing
court
nevertheless
must
scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
review
for
substantial
evidence
Commissioner’s conclusions of law.”
does
not
apply
to
the
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
IV.
The ALJ’s Decision
The ALJ followed the well-established five-step sequential
evaluation
promulgated
by
the
Commissioner
for
adjudicating
disability claims. Initially, the ALJ found that Plaintiff meets
the insured status requirements of the Act through December 31,
2010. T.13. At step one, the ALJ found that Plaintiff has not
engaged in substantial gainful activity since January 16, 2010, the
amended onset date.
At
step
two,
the
ALJ
determined
that
Plaintiff
has
the
following “severe combination of impairments: diabetes mellitus
type II and chronic obstructive pulmonary disease.” T.13. The ALJ
-3-
found that Plaintiff’s other alleged impairments, including obesity
and a history of drug addiction, are “medically determined” but do
not cause more than minimal limitations in his ability to perform
basic work activities. T.14. With regard to Plaintiff’s obesity,
the ALJ noted that when consultative physician Dr. Sandra Boehlert
examined him in October 2011, he was 5'5"-tall and weighed 255
pounds; despite Dr. Boehlert’s diagnosis of morbid obesity, she
found no physical limitations. Subsequently, at a November 2012
appointment
with
his
primary
care
physician,
Dr.
Hristo
N.
Colakovski, Plaintiff’s weight was down to 199 pounds. T.14.
With regard to Plaintiff’s drug addiction, the ALJ noted that
a November 2009 treatment record from Strong Memorial Hospital
indicates
that
Plaintiff
has
been
abstinent
from
heroin
and
receiving methadone treatment for about two years. His methadone
dosages had been reduced from 45 mg to 6 mg as of August 2012. The
ALJ stated that there was “insufficient evidence” to corroborate
Plaintiff’s testimony that his methadone usage had added to his
health problems. T.14.
At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals the severity of a listed impairment. The ALJ specifically
considered Listing 3.00 (Respiratory System) and Listing 9.00
(Endocrine Disorders). T.14. Based on Plaintiff’s impairments and
resulting limitations, the ALJ found that he has the residual
-4-
functional capacity (“RFC”) to perform less than the full range of
“light” work. T.15. Specifically, Plaintiff can walk, stand, and
sit for up to 4 hours each in an 8-hour day; lift, carry, and push
up to 20 pounds
at a time; but must avoid concentrated exposure to
pulmonary irritants. T.15; see also T.15-19.
At step four, the ALJ determined that Plaintiff has past work,
but not past relevant work, as a waiter, a short order cook, a cook
helper, and a telephone solicitor. T.19-20. The VE testified that
a person with Plaintiff’s RFC could perform his past work as a
waiter and a telephone solicitor.
At step five, the ALJ found that Plaintiff is a younger
individual with at least a high school education. T.20. Plaintiff
does not have the RFC to perform the full range of “light” work,
making
reliance
on
the
Medical-Vocational
Rule
202.21
inappropriate. The ALJ relied on the VE’s testimony that a person
with Plaintiff’s vocational profile and RFC could perform the
requirements of such representative occupations as bench assembler
(DOT #706684042, SVP 2, light), of which there are 900 positions in
the Finger Lakes region and 345,000 nationally. T.20. Accordingly,
the ALJ entered a finding of “not disabled.” T.21.
IV.
Discussion
A.
Failure to Properly Evaluate
(Plaintiff’s First Claim)
Plaintiff’s
Neuropathy
Plaintiff claims that the ALJ erred at step two by ignoring
his
bilateral
ulnar
neuropathy,
-5-
which
Plaintiff
argues
is
a
“severe” impairment because it causes “more than a minimal effect
on [his]ability to work[,]” Dkt #8-1 at 11. Plaintiff alleges that
this is shown by “ample objective medical evidence in the record”
such as a positive Tinel’s sign at the right elbow, T.571, and mild
atrophy of the interossei and abductor digiti quinti on the right,
Id. The Commissioner argues that, based on Plaintiff’s own account
of his daily activities, including playing the guitar, painting,
and drawing, his alleged bilateral ulnar neuropathy is not a
“severe” impairment. The Commissioner argues that, alternatively,
any error in failing to find the neuropathy to be severe at step
two was harmless.
As
the
Commissioner
notes,
the
ALJ
did
recognize
that
Plaintiff complained of some numbness in his hands and fingers to
Dr. Colakovski and neurologist Shirley J. Cirello, who diagnosed
him with “diabetic neuropathy.”
For instance, Plaintiff reported
to Dr. Cirillo on July 18, 2012, that he had tingling in the third
and fourth
fingers
of
both
his
hands.
T.569-73.
On
physical
examination, Dr. Cirillo found that Plaintiff was neurologically
intact, had full muscle strength, reflexes, range of motion, and
normal
gait.
T.571-72.
Indeed,
his
examination
was
largely
unremarkable. T.570-72. Plaintiff reported having smoked cigarettes
for 30-to-40 years and presently was smoking 2 packs of cigarettes
per day. T.570. Dr. Cirillo diagnosed him with poorly controlled
diabetes, and opined that he was at a high risk for diabetic
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neuropathy and ulnar neuropathy due to his noncompliance with
treatment recommendations, i.e., his failure to take the prescribed
dosage of Metformin and his refusal to cease smoking. T.572.
Dr. Cirillo explained to Plaintiff that his condition would not
improve
unless
he
improved
his
diabetes
control.
T.572.
The
diagnosis of bilateral ulnar neuropathy localized to the elbows was
confirmed by Dr. I-Hweii A. Chen on November 6, 2012, based on a
motor nerve conduction study. T.661. At that time, Plaintiff
complained
of
mild
intermittent
numbness
in
his
hands
and
diminished pinprick at the dorsal ulnar cutaneous nerve territory.
T.661.
However,
substantial
evidence
supports
a
finding
that
Plaintiff’s bilateral ulnar neuropathy is not “severe” insofar as
it does not significantly limit his ability to perform work-related
activities. At his appointment with Dr. Ciriloo, Plaintiff denied
dropping items and explained that he could still play the guitar
and
open
jars,
although
he
had
lost
some
dexterity.
T.569.
Similarly, he told Dr. Chen that the symptoms “fluctuate” and
currently were “mild,” and Dr. Chen found that Plaintiff had normal
sensation in his hands and full strength in both hands. T.661.
Plaintiff reported engaging in activities, on a daily basis, that
require fine motor control of his hands
(e.g., drawing, painting,
and playing the guitar). T.19 (citing T.206-07). Plaintiff noted
that, as a result of his illness, he had been able to spend more
-7-
time doing these leisure activities than when he was working. Id.
The Court recognizes that a claimant’s burden at step two is,
according to the Second Circuit, “de minimis.” Here, however,
Plaintiff’s own statements regarding his daily
activities and
symptoms preclude a finding that he has met this burden.
B.
RFC Unsupported by Substantial Evidence (Plaintiff’s
Second Claim)
Plaintiff contends that the ALJ’s RFC assessment was not
supported
by
substantial
evidence
because
the
ALJ
improperly
rejected portions of the opinion issued by Plaintiff’s primary care
physician, Dr. Colakovski, and because the opinion evidence on
which the ALJ relied does not support the RFC determination. See
Dkt #8-1 at 17-20, 14-16.
The Commissioner generally “recognizes a ‘treating physician’
rule of deference to the views of the physician who has engaged in
the primary treatment of the claimant[.]” Green-Younger, 335 F.3d
at 106.
However, “[w]hile the opinions of a treating physician
deserve special respect, they need not be given controlling weight
where they are contradicted by other substantial evidence in the
record[.]” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)
(internal and other citations omitted). Rather, it is up to the
Commissioner
to
resolve
“[g]enuine
conflicts
in
the
medical
evidence[.]” Id. (citation omitted). In Veino, the Second Circuit
held that it was within the province of the ALJ to credit portions
of a treating physician’s report while declining to accept other
-8-
portions of the same report, where the record contained conflicting
opinions on the same medical condition. Veino, 312 F.3d at 588.
Here, the ALJ gave “significant weight to Dr. Colakovski’s
assessments of [Plaintiff]’s ability to sit, stand, walk, lift,
push, and pull in an eight-hour workday because of his treating
relationship with the claimant and the consistency of this opinion
with the overall treating record.” T.18. However, Plaintiff argues,
the
ALJ
improperly
failed
to
incorporate
into
the
RFC
Dr. Colakovski’s opinion that Plaintiff could engage in “pushing,
pulling, bending” for 1 to 2 hours in an 8-hour workday and had the
“ability to lift/carry”
for 1 to 2 hours in an 8-hour workday.
T.456, 464. According to Plaintiff, the ALJ’s RFC determination is
incompatible with Dr. Colakovski’s opinion. However, the Court
cannot discern any material inconsistencies. The form completed by
Dr. Colakovski did not mention the amount of weight to be pushed,
pulled, lifted, or carried, but instead asked that the ability to
perform these activities be expressed in terms of duration. Thus,
the
ALJ’s
determination
regarding
the
amount
of
weight
that
Plaintiff could lift and carry was not inconsistent with, or
contrary to, Dr. Colakovski’s opinion about the duration of time
Plaintiff could perform these activities. Plaintiff also argues
that the ALJ failed to quantify the frequency with which Plaintiff
could push, pull, and bend. However, this is of no moment. The SSA
rulings indicate that an ability to bend at least occasionally is
-9-
required for both light and sedentary work. See SSR 83–14, 1983 WL
31254, at *4 (S.S.A. 1983) (“[T]he frequent lifting or carrying of
objects weighing up to 10 pounds (which is required for the full
range of light2 work) implies that the worker is able to do
occasional bending of the stooping type; i.e., for no more than
one-third of the workday to bend the body downward and forward by
bending the spine at the waist.”). However, there is no indication
by any of the doctors who examined Plaintiff that he had any
restrictions in his ability to bend his spine at the waist, such as
restricted
forward
flexion
in
her
back.
Indeed,
consultative
physician Dr. Harbinder Toor opined that Plaintiff could lift or
carry up to 50 pounds occasionally, and up to 25 pounds frequently,
and had no limitations in his ability to walk, stand, sit, push,
pull, bend, or use his hands. T.457-60. Consultative physician
Dr. Boehlert examined Plaintiff and found that had no functional
limitations at all. See T.445. The ALJ here gave Plaintiff the
benefit of the doubt in limiting him to a category narrower than
the full range of light work.
2
“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. . . .” 20 C.F.R. §§ 404.1567(b),
416.967(b).
-10-
Plaintiff further argues that the ALJ improperly gave “little
weight” to Dr. Colakovski’s opinion that Plaintiff is able to
participate
Dr.
in
Colakovsi
activities
also
for
only
15
hours
indicated
that
Plaintiff
per
week.
was
T.18.
“unable
to
participate in activities except treatment or rehabilitiation” for
“3
to
6
months”.
T.419,
462.
The
ALJ
determined
that
Dr.
Colakovski’s conclusion was “inconsistent with his examination
findings, his functional limitations assessment and the overall
treating
record.”
T.18.
The
reasons
given
by
the
ALJ
for
discounting this portion of Dr. Colakovski’s opinion are supported
by the record. As the Commissioner points out, Dr. Colakovi’s
functional
assessment
reports
reflect
unremarkable
clinical
findings, e.g., he noted that Plaintiff’s general appearance, gait,
heel and toe walking, and squatting ability are all normal, as are
his skin,
lymph
nodes,
head
and face,
neck,
heart,
abdomen,
musculoskeletal, neurological, extremities, and hands. T.455-56.
The only abnormalities noted are under “eyes” (wears corrective
lenses),
ear/nose/throat
(“cerumen
impaction”,
i.e.,
earwax
buildup, in right ear), and respiratory (“[decreased] air entry”).
T.455-56.
Dr.
Colakovski’s
clinical
findings
during
examinations had been largely unremarkable. E.g., T.561.
previous
Perhaps
most significantly, Plaintiff’s own reports of his activities of
daily living contradict Dr. Colakovski’s highly restrictive RFC
assessment. As the ALJ observed, Plaintiff stated that he cooked
-11-
twice daily, vacuumed, washed dishes, did laundry, walked to the
store, walked his dog several times a day, drove a car, went
shopping for groceries alone, and socialized with others three to
four times per week. See T.202-07. His hobbies included drawing,
painting, and playing guitar, and he stated that he had been able
to do these activities more than before his illness. T.207. In
fact, he testified that he sometimes performed at “open mic”
nights.
T.67-68.
He
did
not
have
any
side
effects
from
his
medications. T.76. He reported being able to follow spoken and
written instructions, and had no difficulty remembering things.
T.209-10. The ALJ noted that Plaintiff told consultative physician
Dr. Boehlert that he lived on the third floor and used the stairs
regularly; he informed neurologist Dr. Cirillo that he exercised
4 times a week, including lifting weights and walking. T.19 (citing
Ex. 8F at 1, 18F at 2).
The ALJ also pointed out that Plaintiff
admitted to his therapist at the methadone-maintenance clinic that
he was “lazy” and “somewhat comfortable with his life”, that he was
“not willing to work as self reported”, was “not interested in the
job club program at DSS” because he was “trying to drag out the
process from having to do a [Work Experience Program] assignment”
since “the benefits he is getting from DSS is [sic] more lucrative
than the benefits of getting and trying to keep a job.” T.435
(cited at T.19). In July 2011, Plaintiff said that he did not
obtain disability benefits, he would get a job. T.19 (citing Ex. 7F
-12-
at 7). In May 2012, Plaintiff stated that he would not look for a
job until he actually needed to get one. Id. (citing Ex. 17F at
30). In short, the record reflects not an inability to work on
Plaintiff’s part, but rather an unwillingness to do so.
As a final point, Plaintiff’s argument that the ALJ did not
specify the level of “pulmonary irritants” he must avoid is without
merit. The ALJ stated that Plaintiff “must avoid concentrated
exposure” to pulmonary irritants. Plaintiff has cited no authority
for
the
proposition
that
this
statement
is
not
sufficiently
specific. In any event, if there were error, it is harmless because
the need to avoid “concentrated” exposure to respiratory irritants
has only a minimal impact on his ability to perform the range of
light work given in the ALJ’s RFC determination. See SSR 85–15,
1985 WL 56857, at *8 (“Where a person has a medical restriction to
avoid excessive amounts of noise, dust, etc., the impact on the
broad world of work would be minimal because most job environments
do not involve great noise, amounts of dust, etc.”) (emphasis
supplied).
“Further,
any
assertion
that
the
need
to
avoid
respiratory irritants significantly impacts [P]laintiff’s ability
to work is undermined by [his] continued cigarette use.” Rafferty
v. Colvin, No. 3:12-CV-1554(DNH), 2014 WL 1875339, at *11 (N.D.N.Y.
May 9, 2014).
-13-
C.
Erroneous Credibility Determination
Plaintiff argues that the ALJ failed to apply the appropriate
legal standard when he found that Plaintiff’s allegations were “not
entirely credible.” T.15. In particular, Plaintiff asserts, the ALJ
improperly considered his daily activities as detracting from his
complaints of disabling limitations, and erroneously took testimony
from the VE before hearing Plaintiff’s testimony regarding his
limitations.
As the Commissioner argues, the ALJ was not required to
accept,
without
question,
Plaintiff’s
subjective
complaints.
Rather, “[i]t is the function of the [Commissioner], not [the
reviewing courts], to resolve evidentiary conflicts and to appraise
the credibility of witnesses, including the claimant.” Aponte v.
Secretary, Dept. of Health and Human Servs. of U.S., 728 F.2d 588,
591 (2d Cir. 1984) (quotation omitted). If the Commissioner’s
findings are supported by substantial evidence, the reviewing court
“must uphold the ALJ’s decision to discount a claimant’s subjective
complaints. . . .” Id. (internal and other citations omitted). The
ALJ is entitled to consider “the claimant’s demeanor, and other
indicia
of
credibility”
in
determining
the
weight
to
give
subjective complaints. Pasciarello v. Heckler, 621 F. Supp. 1032,
1036 (S.D.N.Y. 1985) (cited in Tejada v. Apfel, 167 F.3d 770, 776
(2d Cir. 1999)).
-14-
Although
Plaintiff
characterizes
his
activities
of daily
living as “minimal”, the ALJ reasonably found that Plaintiff
engaged in more than a bare minimum of activities on a daily or
regular basis, as discussed above. See T.19, 67, 71, 203-07, 443.
Plaintiff’s own statements to the effect that he did not want to
work but would get a job if his benefits applications were denied,
further undermine the credibility of his complaints of disabling
impairments. Even if there were substantial evidence to support
Plaintiff’s view of the record, that would not require reversal,
because there is clearly substantial record support for the ALJ’s
determination that Plaintiff is “not entirely credible.” See Brault
v. Social Sec. Admin., Com’r, 683 F.3d 443, 448 (2d Cir. 2012)
(“The substantial evidence standard means once an ALJ finds facts,
we can reject those facts ‘only if a reasonable factfinder would
have to conclude otherwise.’”) (quotation and citation omitted).
Plaintiff’s challenge to the format of the hearing is without
merit. There is no indication that the ALJ prejudged Plaintiff’s
claims simply based on the fact that the ALJ heard testimony from
the VE prior to Plaintiff testifying at the hearing. As the
Commissioner argues, it is clear that the ALJ had reviewed the
medical
record
and
had
narrowed
the
range
of
likely
RFC
determinations, but had not made up his mind prior to hearing
Plaintiff
testify.
Rather,
the
ALJ
presented
four
different
hypotheticals to the VE, and Plaintiff’s attorney presented three
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additional hypotheticals for the VE’s consideration. See T.37-51.
If the ALJ had predetermined the outcome, he would not have needed
to spend time listening to the VE testify regarding multiple
hypotheticals.
D.
Step Five Determination
Unsupported by Substantial Evidence
Plaintiff
determination,
evidence to
contends
the
support
VE’s
the
that
due
testimony
ALJ’s
to
errors
cannot
finding
in
provide
that
the
RFC
substantial
Plaintiff
is
not
disabled. Plaintiff’s claim of error at step five depends upon the
finding of error at earlier steps in the sequential evaluation.
However, as discussed above, the Court has found that the ALJ’s RFC
assessment is supported by substantial evidence. At the hearing,
one of the hypothetical individuals that the ALJ presented to the
VE included all of the limitations contained in the ultimate RFC
determination. The VE testified that such an individual could
perform representative jobs, such as that of a bench assembler, and
that such jobs existed in significant numbers in the national
economy. The ALJ relied on the VE’s testimony to conclude that
Plaintiff could perform work that existed in significant numbers in
the national economy and therefore is not disabled.
VI.
Conclusion
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s determination was not erroneous as a matter of law
-16-
and
was
supported
by
substantial
evidence.
Accordingly,
the
Commissioner’s determination is affirmed. Defendant’s Motion for
Judgment on the Pleadings is granted, and Plaintiff’s Motion for
Judgment on the Pleadings is denied. The Clerk of the Court is
directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
August 4, 2015
Rochester, New York.
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