Hampton v. Colvin

Filing 16

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 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 2/3/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DANIEL HAMPTON, JR.,
Plaintiff,
-vs-

No. 6:14-CV-06663 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Daniel Hampton, Jr. (“plaintiff”)

brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
his applications 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). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the Commissioner’s
motion is granted.
II.

Procedural History
The record reveals that in September 2011, plaintiff (d/o/b

September 22, 1985) applied for DIB and SSI, alleging disability as
of February 11, 2011. After his applications were denied, plaintiff
requested a hearing, which was held before administrative law judge
John P. Costello (“the ALJ”) on March 5, 2013. The ALJ issued an

unfavorable decision on April 22, 2013. The Appeals Council denied
review of that decision and this timely action followed.
III. Summary of the Relevant Evidence
A. Testimony
At his hearing in March 2013, plaintiff testified that he last
worked the month before, as a forklift operator for a wine company.
In that position, at which he worked for four months, plaintiff was
required to lift as many as 100 cases of wine (approximately
25 pounds each) in a single shift. T. 43-44. Plaintiff testified
that he injured his back on the job and that a physician from
Urgent Care released him to go back to work; however, at that
point, he was no longer needed for the position. At the time of his
hearing, he had applied for unemployment.
At a previous full-time job as a forklift operator, which
plaintiff held for about five months in 2011, he was required to
lift 100 to 150 pounds at a time. He testified that he suffered a
neck injury on the job, and that a doctor at the Clifton Health
emergency department “told [him] to ice [it] and basically don’t
use it for a few days.” T. 47. He left that job to work for the
wine company, which offered him better pay for similar work.
Prior to his 2011 job, plaintiff worked for about three months
for his cousin, assisting with home inspections. T. 49. This job
fluctuated between part-time and full-time, depending on demand. He
also had prior work experience as a heavy machine operator and pipe

2

layer, both of which jobs he left voluntarily; and as a stocker,
which job required him to regularly lift and carry 15 to 20 pounds.
Plaintiff testified that he suffered from pain in his mid and
lower

back,

which

often

radiated

to

his

upper

and

lower

extremities. At the time of his hearing, he was not taking any
medication for pain; however, he testified that he “just received
[his] insurance not too long ago,” and had an upcoming doctor’s
appointment. T. 58. He testified that his pain level at the hearing
was 8/10 in his back, and he was “on a thin line of bearing with
it.” T. 61. In his neck, he testified that he had 4/10 pain.
According to plaintiff, he had been diagnosed with bipolar disorder
but was not currently treating, with medication or counseling, for
that condition. He testified that while at work, he felt paranoid
and preferred to deal with people only once in a while.
In

terms

testified

that

of
he

his

own

could

functional

“barely”

lift

capabilities,
a

gallon

of

plaintiff
milk;

he

experienced sharp pain “up towards [his] neck” when he sat for too
long a time, and he could sit for no longer than a half hour as a
result; standing did not pose a problem and “[a]ctually sometimes
it help[ed]”; and he could walk for no more than three or four
blocks at a time. T. 66.
B. Medical Record
Medical records from the relevant time frame indicate that
plaintiff treated intermittently at Thompson Memorial Hospital

3

(“Thompson”), Canandaigua, New York, complaining on most occasions
of neck and back pain. There is no indication from any of these
records that plaintiff’s pain or injuries ever kept him out of work
for more than a week’s time.
An October 2009 lumbar spine MRI showed mild disc dessication
at L2-3 and mild disc bulging at L4-5, with no evidence of a disc
herniation. In June 2010, plaintiff complained of lumbar pain and
it was noted that he had a history of degenerative disc disease at
L2-3 and L4-5. At that time, Dr. Gordon Whitbeck recommended facet
joint injections for pain and noted that plaintiff was “currently
working in his regular capacity and no statement regarding his
degree of disability [was] pertinent.” T. 287. In July 2010,
plaintiff suffered a clavicle fracture after being “thrown to the
ground [by] a heavy man.” T. 403. He was advised to apply ice
intermittently and was prescribed pain medication with no refills.
In October 2010, plaintiff complained of back pain associated with
lifting heavy drywall. He was diagnosed with lower back pain and
instructed not to work for two days.
In January 2011, plaintiff treated at Thompson and complained
of an injury to his left hip and ankle. He was advised to ice the
area intermittently and “walk and bear weight as tolerated.”
T. 377. On February 5, 2011, plaintiff complained of an injury to
the left leg. Physical examination revealed tenderness in the left
calf; plaintiff was advised to apply ice intermittently and elevate

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when possible. He was also advised not to work for three days. An
April 28, 2011 MRI of the left knee was unremarkable. On August 9,
2011, plaintiff reported the “possibility of an injury,” which he
believed resulted from his “lifting, turning, and bending.” T. 364.
He was advised to use warm compresses or soaks three times a day,
and was told not to work for two days. On August 17, 2011, after
plaintiff treated at Thompson complaining of neck pain, he was
advised to ice the strained area and it was noted that he would be
“[o]ff work for 2 days.” T. 361.
In September 2012, plaintiff complained of an injury to his
head and neck, which had occurred while standing under a machine at
work. X-rays of plaintiff’s head and neck were normal. He was
advised to apply ice intermittently and was cleared to return to
work that day, which he did. In January 2013, plaintiff complained
of back pain radiating to his left lower extremity. On physical
examination, plaintiff had a “[n]ormal inspection” of his lower
back, although moderate muscle spasm and tenderness were noted. He
was

diagnosed

with

acute

lumbar

strain,

chronic

lumbar

radiculopathy, and chronic probable herniated disc. He was advised
to return to work in eight days.
Evidence regarding plaintiff’s mental impairments indicates
that plaintiff consistently reported having been diagnosed with
bipolar disorder at the age of ten. The record indicates that in
October, 2010, plaintiff presented to the Thompson ER expressing

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thoughts of suicide. He testified that he had been diagnosed with
bipolar disorder but had not treated for the condition in over ten
years. Plaintiff’s blood alcohol content was 0.51. Plaintiff was
discharged with no prescriptions and advised to seek outpatient
counseling. For the majority of the relevant time frame, however,
plaintiff received no treatment for this condition. A May 18, 2011
treatment note from Clifton Springs Behavioral Health Services
indicated that plaintiff had been seen for treatment, and developed
a treatment plan, but his case was closed due to his treatment
being incomplete. It was noted that plaintiff “did not follow
through with attendance requirements.” T. 312.
C.

Consulting Examinations

In December 2011, Dr. Karl Eurenius performed a consulting
orthopedic examination at the request of the state agency. On
physical

exam,

plaintiff

demonstrated

a

normal

gait;

normal

heel-toe walk except that plaintiff reported pain in his back;
plaintiff reported pain with squat, which was one fourth of normal;
station was normal; plaintiff needed no help changing for the
examination or getting on or off the exam table, and he could rise
from a chair without difficulty. Plaintiff’s cervical spine was
normal. He had a full range of motion (“ROM”) of the shoulders but
stated that elevating his right shoulder caused pain, and otherwise
his upper extremities were normal. Regarding his lumbar spine,
plaintiff was able to flex to approximately 80 degrees with pain

6

and tenderness in the low to mid back; he had full lateral flexion
and

full

rotation,

but

reported

pain;

he

demonstrated

“mild

tenderness” to palpation of the low lumbar region; he had no
scoliosis or kyphosis; and straight leg raise (“SLR”) was to 60
degrees bilaterally, with plaintiff again reporting pain. T. 484.
His lower extremities were normal.
Dr. Eurenius opined that plaintiff had “limitations in sitting
and standing for more than 20 minutes, walking more than two
blocks, climbing or descending more than a flight[] of stairs,
bending, lifting, or carrying more than ten pounds due to chronic
low back pain,” and he would have “some limitations lifting,
carrying, reaching, and handling objects with his right arm due to
right

shoulder

pain.”

Id.

Dr.

Eurenius

ordered

X-Rays

of

plaintiff’s left shoulder and lumbar spine, the results of which
were normal.
In December 2011, Dr. Trica Peterson completed a psychiatric
evaluation at the request of the state agency. Plaintiff reported
that he had been diagnosed with bipolar disorder and had been
hospitalized overnight sometime in 2010 “due to threatening to hurt
himself.” T. 476. He reported that he had been “put on medication”
but he did not follow through with taking the medication and he was
not

currently

in

psychiatric

treatment.

T.

476-77.

Plaintiff

reported symptoms primarily of irritability and anger. He also
reported a history of both alcohol and drug abuse, including

7

marijuana and cocaine. He had two prior arrests, one for disorderly
conduct and one for petit larceny. On mental status examination
(“MSE”), plaintiff’s affect was “[i]rritated, although . . .
cooperative”; attention and concentration were intact although
plaintiff reported work-related difficulty remembering complex
tasks; recent and remote memory were mildly impaired; and cognitive
functioning appeared below average. Insight appeared poor and
judgment was fair.
Dr. Peterson opined that plaintiff was “able to follow and
understand simple directions and instructions, perform simple tasks
independently, maintain attention and concentration, maintain a
regular work schedule, learn new tasks, perform complex tasks with
supervision, make appropriate decisions, [and] relate adequately
with others, although he [could not] appropriately deal with
stress.”

T.

480.

According

to

Dr.

Peterson,

plaintiff’s

“difficulties appear[ed] to be caused by his psychiatric symptoms
and personality issues.” Id. In January 2012, reviewing agency
psychologist Dr. T. Inman-Dundon concluded that plaintiff had no
restrictions

of

activities

of

daily

living

(“ADLs”);

mild

difficulties in maintaining concentration, persistence, or pace;
moderate difficulties in social functioning; and no prior episodes
of decompensation.

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IV.

The ALJ’s Decision
The ALJ followed the well-established five-step sequential

evaluation

promulgated

by

the

Commissioner

for

adjudicating

disability claims. See 20 C.F.R. § 404.1520. Initially, the ALJ
found that plaintiff met the insured status requirements of the
Social Security Act through June 30, 2014. At step one, the ALJ
determined that plaintiff had not engaged in substantial gainful
activity since February 11, 2011, the alleged onset date. At step
two, the ALJ found that plaintiff suffered from degenerative disc
disease of the lumbar spine and bipolar disorder, both of which
were severe. At step three, the ALJ found that plaintiff did not
have an impairment or combination of impairments that met or
medically equaled a listed impairment. Regarding his mental health
impairments,

the

ALJ

determined

that

plaintiff

had

mild

restrictions in ADLS, moderate difficulties in social functioning,
and moderate difficulties in concentration, persistence, or pace.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b)
and 416.967(b), except that plaintiff could only frequently reach;
plaintiff should work primarily alone (with respect to working in
coordination with others) with only occasional supervision; and
plaintiff was limited to performing simple tasks.

9

After finding that plaintiff could not perform any past
relevant work, the ALJ found that considering plaintiff’s age,
education, work experience, and RFC, there were jobs existing in
significant numbers in the national economy which plaintiff could
perform. Accordingly, he found that plaintiff was not disabled.
IV.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

RFC

Plaintiff contends that the ALJ’s physical RFC finding was
unsupported by substantial evidence. Specifically, plaintiff argues
that because the ALJ gave Dr. Eurenius’s consulting opinion little
weight,

his

RFC

finding

was

therefore

based

on

a

bare

interpretation of the medical findings. After reviewing the record
and the ALJ’s decision, the Court concludes that the ALJ’s RFC
finding was based on substantial evidence.
Dr.

Eurenius’s

opinion

was

the

only

formal

functional

assessment present in the record. As noted above, Dr. Eurenius

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opined that plaintiff had “limitations in sitting and standing for
more than 20 minutes, walking more than two blocks, climbing or
descending more than a flight[] of stairs, bending, lifting, or
carrying more than ten pounds due to chronic low back pain,” and he
would have “some limitations lifting, carrying, reaching, and
handling objects with his right arm due to right shoulder pain.”
Id. This was based on Dr. Eurenius’s one-time physical examination,
in which plaintiff complained of pain and demonstrated certain
limitations in range of motion. X-rays ordered by Dr. Eurenius in
connection with the examination, the results of which did not come
back until about a week after his exam, were normal.
Although Dr. Eurenius was the only medical source to provide
a formal assessment regarding plaintiff’s functional limitations,
the record contains many treatment notes from Thompson, where
plaintiff regularly treated. These notes indicate that functional
limitations associated with his episodic complaints resulted in, at
most, an inability to perform his work-related activities for a
period of seven days. Most often, plaintiff was instructed not to
work for periods of one to three days. Notably, according to the
medical records and plaintiff’s own testimony, plaintiff’s work
involved operating heavy machinery, lifting, and carrying.
By his own testimony, during the relevant time frame and up
until about a month before his hearing, plaintiff performed work
requiring him to lift from ten to fifteen pounds. Previously,

11

plaintiff had performed work requiring him to lift up to 100 to
150

pounds.

However,

at

the

time

of

his

hearing,

plaintiff

testified that he was “barely” able to lift a gallon of milk. The
medical record in this case does not establish any support for such
a dramatic shift in plaintiff’s capabilities from the time he was
let go from his job one month prior to the hearing, to the time of
the hearing. Also significantly, plaintiff testified that his
separation from all of his previous jobs was either voluntary or
due to disciplinary issues; i.e., he did not cease working due to
a medical condition. Plaintiff also testified that, contrary to
Dr. Eurenius’s opinion that he could only walk two blocks, he could
actually walk three to four blocks.
The ALJ’s RFC finding limited plaintiff to light work, which
requires

lifting

no

more

than

20

pounds.

See

20

C.F.R.

§§ 404.1567(b), 416.967(b). He also limited plaintiff’s reaching,
in consideration of his allegations of a shoulder impairment, to
only occasionally. This physical RFC finding was consistent with
substantial evidence in the record. Plaintiff’s own testimony
regarding his work activities, as well as his treatment notes from
Thompson, constitute substantial evidence supporting a finding that
he was able to perform at least the requirements of light work.
See, e.g., Napierala v. Astrue, 2009 WL 4892319, *8 (W.D.N.Y.
Dec. 11, 2009) (holding that plaintiff’s own reports of daily and
work activities constitute substantial evidence supporting the

12

ALJ’s RFC finding); Jaskiewicz v. Comm'r of Soc. Sec., 2010 WL
5138477, *6 (N.D.N.Y. Dec. 10, 2010) (“The medical evidence and
plaintiff’s

own

testimony

.

.

.

support

the

ALJ’s

RFC

determination. Accordingly, [plaintiff]'s contention that the ALJ
created his own medical opinion inconsistent with the record is
rejected.”).
B.

Credibility

Plaintiff contends that the ALJ erroneously assessed his
credibility.
testimony

In

and

his

decision,

actually

the

credited

ALJ

many

considered
of

plaintiff’s

plaintiff’s

reports

regarding his abilities to perform work activities. However, the
ALJ determined that plaintiff’s more restrictive reports of his
functional limitations – such as being almost unable to lift a
gallon of milk at the time of his hearing despite having performed
work a month prior which required lifting 25-pound cases of wine –
were inconsistent with the medical evidence in the record. This
evidence, as noted above, included many treatment notes indicating
that plaintiff was generally able to perform the physical demands
of his prior jobs, and was restricted from work only in episodic
circumstances in which he was advised he could return to work
within short order. Plaintiff testimony was thus only partially
consistent with the substantial evidence of record, and the ALJ
accordingly

credited

those

portions

consistent.

13

of

testimony

which

were

Plaintiff also argues that the ALJ inappropriately interpreted
plaintiff’s lack of treatment as a sign of less severe symptoms,
when

plaintiff

testified

that

he

had

had

trouble

obtaining

insurance and had just procured Medicaid coverage prior to the
hearing. However, a review of the ALJ’s decision does not indicate
that the ALJ overemphasized plaintiff’s lack of treatment in
considering plaintiff’s impairments. Moreover, as the Commissioner
points out, with regard to plaintiff’s mental health treatment,
there is no indication in the record, and plaintiff has not
suggested, that the reason plaintiff failed to appear for several
mental

health

appointments

was

actually

because

he

lacked

insurance. Under these circumstances, where the ALJ’s reasoning for
arriving at his credibility determination is clear and there is
substantial evidence in the record to support it, any error in
failing to consider plaintiff’s insurance status was harmless. See,
e.g., Kittelson v. Astrue, 362 F. App'x 553, 558 (7th Cir. 2010)
(holding that although the ALJ erred “by not considering the impact
of Kittelson's lack of health insurance, . . . this error was
harmless because [the ALJ] also based his assessment on the absence
of evidence of serious functional limitations due to depression or
episodes of decompensation”).
Here, the ALJ's conclusion that plaintiff's self-reports and
complaints were partially incredible because they were inconsistent
with substantial record evidence, and inconsistent with each other,

14

was based on a proper application of the law and is supported by
the record. The ALJ appropriately followed the two-step credibility
analysis, citing the relevant authorities in that regard. T. 22
(citing 20 C.F.R. §§ 404.1529, 416.929; SSRs 96-4p, 96-7p); see
Britt v. Astrue, 486 F. App'x 161, 164 (2d Cir. 2012) (finding
explicit mention of 20 C.F.R. § 404.1529 and SSR 96-7p as evidence
that the ALJ used the proper legal standard in assessing the
claimant's

credibility).

His

credibility

determination

will

therefore not be disturbed.
VI.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Doc. 10) is denied and the Commissioner’s motion
(Doc. 12) is granted. The ALJ’s finding that plaintiff was not
disabled is supported by substantial evidence in the record, and
accordingly, the Complaint is dismissed in its entirety with
prejudice.

The Clerk of the Court is directed to close this case.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

February 3, 2016
Rochester, New York.

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