Giambrone v. Colvin
Filing
16
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 13 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 11/24/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLENE M. GIAMBRIONE,
Plaintiff,
-vs-
No. 6:15-CV-06023 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Charlene M. Giambrione (“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
her 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
May
2012
and
February
2013,
respectively, plaintiff (d/o/b October 21, 1953) applied for DIB
and
SSI,
1
alleging
disability
as
of
August
1,
20111
due
to
Plaintiff’s alleged onset date was later amended to February
4, 2012.
arthritis, spinal degeneration, high cholesterol, and sleep apnea.
After her application was denied, plaintiff requested a hearing,
which was held before administrative law judge Hortensia Haaversen
(“the ALJ”) on June 18, 2013. The ALJ issued an unfavorable
decision on August 2, 2013. The Appeals Council denied review of
that decision and this timely action followed.
III. 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 disability insured requirements of the
Social Security Act through December 31, 2016. At step one, the ALJ
determined that plaintiff had not engaged in substantial gainful
activity since August 1, 2011, the original alleged onset date. At
step two, the ALJ found that plaintiff suffered from the following
severe impairments: bulging lumbar disc, with recent history of
fractured coccyx/osteoarthritis of the right hip and bilateral
knee; sleep apnea; and asthma. The ALJ found that plaintiff’s
“medically determinable mental impairment of depression [did] not
cause more than minimal limitation in her ability to perform basic
mental work activities and [was] therefore non-severe.” T. 13. 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.
2
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and
416.967(c)
except
that:
she
could
lift
and
carry
50
pounds
occasionally and 25 pounds frequently; she could stand or walk for
about six hours in an eight-hour workday; she could sit for at
least six hours in an eight-hour workday; and she must avoid dust,
irritants, or tobacco which may exacerbate her asthma. After
consulting with a vocational expert (“VE”), the ALJ found that
plaintiff could perform her past relevant work as a property
manager, customer service clerk, and rental agent. Accordingly, she
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.
Treating Physician’s Opinion
Plaintiff contends that the ALJ erred in declining to give
controlling weight to the opinion of her treating physician,
3
Dr. Kathleen Hayden. The ALJ gave that opinion little weight,
finding that it was “not consistent with the evidence [in the
record] including Dr. Hayden’s own medical treatment records.”
T. 19. For the reasons discussed below, the Court finds that the
ALJ properly evaluated and weighed Dr. Hayden’s opinion.
The treating physician rule provides that an ALJ must give
controlling weight to a treating physician's opinion if that
opinion is well-supported by medically acceptable clinical and
diagnostic techniques and not inconsistent with other substantial
evidence in the record. See Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004); 20 C.F.R. § 416.927(c)(2). However, “[w]hen other
substantial evidence in the record conflicts with the treating
physician's
opinion
.
.
.
that
opinion
will
not
be
deemed
controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.” Snell v.
Apfel,
177
F.3d
128,
133
(2d
Cir.
1999)
(citing
20
C.F.R.
§ 404.1527(d)(4)).
In coming to his decision not to afford controlling weight to
Dr. Hayden’s opinion, the ALJ reviewed the substantial record
evidence, which included treatment notes from Dr. Hayden, as well
as notes from additional treating sources Drs. John Klibanoff,
M. Gordon Whitbeck, and Calvin Chiang, and consulting physician
Dr. Donna Miller. Dr. Hayden’s treatment notes, which spanned the
time period from January 2012 through May 2013, indicate that
4
plaintiff complained of pain in her back and right knee. Physical
examinations throughout this time period, however, showed very
little
objective
evidence
substantiating
these
complaints.
Dr. Hayden repeatedly noted MRI findings indicating only mid
degenerative changes in the lumbar spine. Physical examinations,
where they were noted, demonstrated essentially normal findings.
For example, on May 17, 2012, a back examination revealed that
plaintiff was “minimally tender to palpation in the SI joint area
diffusely.” T. 330. On August 12, 2012, plaintiff’s musculoskeletal
examination and neurological examination revealed normal bilateral
strength in the lower extremities and normal bilateral reflexes. On
December
12,
tenderness
in
2012,
Dr.
Hayden
her
L3-L5
noted
right
that
paraspinal
plaintiff
area,
but
reported
that her
reflexes were normal bilaterally, and her motor strength was
“difficult to assess” due to plaintiff reporting pain with movement
of her leg. T. 309. Dr. Hayden recommended conservative treatment,
consisting mainly of weight loss and physical therapy.
Records of treatment from other physicians also revealed mild
objective findings. In April 2012, Dr. Klibanoff examined plaintiff
and, largely based on her subjective complaints, recommended a pain
injection for her right knee and a formal spinal evaluation with
Dr. Whitbeck. Dr. Whitbeck examined plaintiff later that month, and
noted that although plaintiff walked with an antalgic gait, she
performed a heel-toe walk with “good strength,” “was able to flex
5
at the waist almost to the level of the ankles with just some mild
difficulty,” and noted full strength in the lower extremities and
normal reflexes. Plaintiff reported pain to palpation at the
lumbosacral
junction
and
“mild
sciatic
notch
tenderness
bilaterally,” as well as uncomfortable range of motion in the right
knee, but Dr. Whitbeck stated that “if she were to resume work,
there [were]
no
specific
limitations.”
T.
223.
In
May
2012,
Dr. Whitbeck noted that plaintiff reported tenderness, but noted
full
strength
“without
exception
in
both
lower
extremities.”
T. 225. He recommended physical therapy and a lumbar spine MRI.
Despite that recommendation, in June 2012, Dr. Whitbeck noted
that plaintiff was “no longer engaged in physical therapy and [was]
engaged
in
a
home
exercise
program
inconsitently.”
T.
226.
Dr. Whitbeck noted that spinal MRIs showed only mild degenerative
changes, and opined that her pain following a recent fall “should
subside over time.” T. 226. Dr. Whitbeck once again “placed [no]
specific activity restrictions” and “encouraged her to minimize her
use of narcotics.” Id. In August, Dr. Whitbeck noted that plaintiff
was in no acute distress, and although she walked with an antalgic
gait and complained of intermittent tenderness, she was able to
heel-toe walk “with no difficulty,” had full flexion with her hands
to her knees, extension and lateral bending were performed without
difficulty, strength was full, and reflexes were normal.
6
In August 2012, Dr. Miller completed a consulting internal
medical examination at the request of the state agency. Dr. Miller
noted plaintiff’s complaints of pain and history of sleep apnea. On
physical examination, plaintiff appeared in no acute distress, gait
was normal, she had slight difficulty walking on heels and could
only
squat
“50%
Musculoskeletal
of
normal,”
and
exam
showed
full
stance
was
flexion,
normal.
extension,
T.
255.
lateral
flexion bilaterally, and full rotary movement of the cervical
spine, and no scoliosis, kyphosis, or abnormality in the thoracic
spine. Lumbar spine range of motion was limited, but straight leg
raising was negative bilaterally. With the exception of some
limited range of motion of the knees, her exam was otherwise
normal. Dr. Miller opined that plaintiff had “mild to moderate
limitation to heavy lifting, bending, carrying, kneeling, and
squatting,” and that she should avoid dust, irritants, or tobacco
source secondary to her asthma.
Despite this record of treatment and Dr. Miller’s consulting
examination
findings,
Dr.
Hayden
completed
a
medical
source
statement which assessed plaintiff as being unable to do work even
at the sedentary level. According to Dr. Hayden, plaintiff could
sit for one hour at a time and stand and walk for only 20 minutes
at a time, and sit and stand for two hours and walk for only one
hour total during an eight-hour workday. Dr. Hayden also assessed
significant
limitations
with
reaching,
7
handling,
fingering,
feeling, pushing, and pulling in both hands, and opined that
plaintiff could never climb stairs, ramps, ladders, or scaffolds,
and could never balance, stoop, kneel, crouch, or crawl. In support
of her assessment, Dr. Hayden cited the modest MRI findings noted
above and plaintiff’s diagnosis of osteoarthritis. Dr. Hayden also
opined, however, that plaintiff could perform all of the listed
activities of daily living (such as shopping, traveling without a
companion, walking a block, climbing a few steps at a reasonable
pace using a handrail, and handling and sorting paper files). The
only limitation Dr. Hayden noted in activities of daily living was
that plaintiff could walk, but not at a “reasonable pace.” T. 345.
The Court agrees with the ALJ that Dr. Hayden’s restrictive
functional assessment was not supported by substantial record
evidence. As is apparent from the above discussion, on treatment
from Drs. Hayden, Klibanoff, and Whitbeck, plaintiff’s examination
findings were consistently benign, and there is no indication in
the medical record as to why Dr. Hayden assessed such restrictive
limitations
operation
of
in
plaintiff’s
the
upper
and
sitting,
lower
standing,
extremities.
walking,
Dr.
and
Miller’s
consulting opinion also supported a conclusion that plaintiff had,
at
most,
mild
to
moderate
limitations
in
lifting,
bending,
kneeling, carrying, and squatting. It is apparent from the ALJ’s
decision that she applied the substance of the treating physician
rule, see Atwater v. Astrue, 2013 WL 628072, *2 (2d Cir. 2013), and
8
as the decision was based on substantial record evidence, it will
not be disturbed.
B.
Severity of Mental Health Impairments
Plaintiff argues that the ALJ erred when she decided that
plaintiff’s medically determinable mental impairment of depression
was
nonsevere
because
it
did
not
cause
more
than
a
minimal
limitation on plaintiff’s ability to perform work activities. In so
finding, the ALJ reviewed evidence from Genesee Mental Health
Center (“GMHC”), which demonstrated that plaintiff treated with
licensed master social worker Tiria Wyjad from September 2012
through May 2013. Those treatment notes reveal that plaintiff was
diagnosed with depression, and upon initial evaluation (but not on
any later date) she reported that she was suicidal. Throughout the
treatment notes, no functional limitations are noted, and her
mental status examinations were consistently unremarkable with the
exception of a depressed or anxious mood. The treatment notes
mainly contain narratives of sessions in which plaintiff discussed
ongoing problems in her life, including legal troubles associated
with a criminal case against her stemming from her prior job, and
concern over her boyfriend’s recent health problems.
There are no functional assessments in the record that reflect
any
limitations
resulting
from
mental
impairments.
Although
plaintiff argues that she treated with Dr. Hayden for depression,
the record does not support that contention. Dr. Hayden’s treatment
9
notes reflect a diagnosis of depression, and occasionally note that
plaintiff’s mood was depressed, sad, or anxious, but do not reflect
that Dr. Hayden was a treating provider for purposes of mental
impairments. Dr. Hayden’s treating source opinion, discussed above,
assessed no mental limitations, and noted that plaintiff was
capable of performing nearly all activities of daily living. None
of the records from GMHC or Dr. Hayden indicate that plaintiff was
unable to perform any work activities as a result of her mental
impairments.
The Court concludes that substantial evidence supports the
ALJ’s
determination
that
plaintiff’s
mental
impairment
was
nonsevere. Significantly, it is apparent from the ALJ’s opinion
that she considered plaintiff’s overall mental functioning when
determining plaintiff’s RFC, as mandated by the regulations. See
20 C.F.R. §§ 404.1520a, 416.920a; see generally 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 12.00C. After evaluating plaintiff’s
functioning in the four domains of activities of daily living;
social
functioning;
concentration,
persistence,
or
pace;
and
episodes of decompensation; the ALJ concluded that plaintiff’s
mental impairments had no more than a minimal impact on her ability
to perform work activities, and for that reason did not include
mental restrictions in the RFC finding. This assessment followed
the appropriate legal principles. See Agudo-Martinez v. Barnhart,
413 F. Supp. 2d 199, 211 (W.D.N.Y. 2006) (finding that ALJ’s
10
conclusion that plaintiff’s mental impairment was nonsevere was
supported by substantial evidence); cf. Parker-Grose v. Astrue, 462
F. App’x 16, 18 (2d Cir. 2012) (noting that remand is necessary
where the ALJ fails to properly account for mental limitations in
the overall RFC assessment, and where substantial evidence supports
finding
that
limitations
resulting
from
mental
impairments
existed).
C.
Credibility
Plaintiff contends that the ALJ erroneously assessed her
credibility. Much of plaintiff’s argument focuses on the ALJ’s
consideration of plaintiff’s amended alleged onset date. Initially,
plaintiff alleged an onset date of August 1, 2011, but later, upon
advice of counsel, amended her alleged onset date to February 4,
2012, which was the date of her last employment. Although the Court
agrees that it would have been improper if this had been the ALJ’s
sole consideration in assessing plaintiff’s credibility, a reading
of
the
ALJ’s
decision
reveals
that
the
ALJ
considered
the
appropriate factors in determining plaintiff’s overall credibility.
See 20 C.F.R. §§ 404.1529, 416.929; SSR 96-4p, SSR 96-7p; see also
Scitney v. Colvin, 41 F. Supp. 3d 289, 305 (W.D.N.Y. 2014) (“An ALJ
need not
explicitly
list
all
the
credibility
factors
in
his
decision so long as it ‘set[s] forth sufficient reasoning and was
supported by evidence of the record.’”). More specifically, in
addition to the issue of plaintiff amending her onset date, the ALJ
11
considered the circumstances of plaintiff’s termination from her
prior job, which included a criminal conviction and an order of
restitution; evidence that plaintiff had not made any effort to pay
said restitution; plaintiff’s complaints were out of proportion to
the relatively mild objective findings in the record; treatment
notes were mostly dated after the plaintiff’s application date;
physical
examinations
did
not
worsen
although
plaintiff’s
complaints of pain did; plaintiff was able to perform many basic
activities of daily living; and no more than conservative treatment
was recommended to treat plaintiff’s conditions.
The ALJ’s discussion, which incorporates his review of the
testimony, indicates that the ALJ used the proper standard in
assessing credibility, especially in light of the fact that the ALJ
cited relevant authorities in that regard. 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);
Judelsohn v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y. June 25, 2012)
(“Failure to expressly consider every factor set forth in the
regulations is not grounds for remand where the reasons for the
ALJ's determination of credibility are sufficiently specific to
conclude that he considered the entire evidentiary record.”). Thus,
the Court finds no error in the ALJ’s credibility determination.
12
VI.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 8) is denied and the Commissioner’s crossmotion (Doc. 13) 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:
November 24, 2015
Rochester, New York.
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