Gibeault v. Colvin
Filing
11
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 5 Plaintiff's Motion for Judgment on the Pleadings; granting 8 Commissioner's Motion for Judgment on the Pleadings; dismissing the Complaint in its entirety without prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/20/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Marcie Leana Gibeault,
Plaintiff,
-v-
15-CV-6305
ORDER
Carolyn W. Colvin,
Commissioner of Social Security,
Defendant.
I. Introduction
Represented by counsel, Marcie Leana Gibeault (“plaintiff”)
brings this action pursuant to Title II of the Social Security Act
(“The Act”) seeking review of a final decision of the Commissioner
of Social Security (“the Commissioner”) denying her application for
Disability Insurance Benefits(“DIB”). 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
request is granted.
II. Procedural History
The record reveals that on September 29, 2010, plaintiff
protectively filed an application for DIB, alleging disability
beginning September 29, 2010. After this application was denied,
plaintiff requested a hearing, which was held before administrative
law
judge
Susan
Wakshul
(“the
ALJ”)
on
July
12,
2013,
with
plaintiff appearing represented by counsel. The ALJ issued an
unfavorable decision on December 12, 2013. The Appeals Council
denied review of that decision. This timely action followed.
III. Summary of the Evidence
A. Plaintiff’s Reports
Plaintiff, who was 28 years old on the alleged onset date of
September 29, 2010, ended her career in the banking industry’s
retail
service
depression,
tingling.
on
September
anxiety,
29,
2010
fibromyalgia,
Plaintiff’s
previous
due
neck
to
bulging
pain,
occupations
and
included
discs,
extremity
customer
service positions at cell phone companies.
Upon applying for DIB, plaintiff wrote on November 16, 2011
that she could carry up to 15 pounds, sit 30 minutes, stand
20 minutes, climb three flights of stairs, and walk up to one-half
mile. She felt pain when she reached above, or squatted. She
reported weak hands, and difficulty with opening jars. Plaintiff
reported
that
her
pain
kept
her
isolated
and
fearful,
and
interfered with her focus. She last sought treatment mid-April
2013, and was looking for a new psychotherapist.
The ALJ conducted a hearing on July 12, 2013. Plaintiff
reported
that
20-30 minutes,
she
and
was
able
generally
to
sit
walk
for
one
one-half
hour,
to
one
stand
for
mile.
She
reported that she could painfully lift a gallon of milk, and hold
-2-
a coffee cup for a short time. Plaintiff also reported fatigue,
anxiety, and concentration and memory problems.
B. Treating Sources
The record contains treatment records from several sources. In
May 2010, Dr. Deborah Pierce began treating plaintiff, roughly four
months prior to plaintiff’s alleged onset date of September 29,
2010. Dr. Pierce saw plaintiff for in-person treatment over twenty
times,
referred
plaintiff
to
specialists,
and
received
those
specialists’ findings. Dr. Pierce diagnosed plaintiff with obesity,
fibromyalgia, and depression.
Dr. Pierce’s treatment notes focused largely on plaintiff’s
subjective reports, and did not note significant findings from
physical examinations. On May 21, 2013, Dr. Pierce reported that
plaintiff’s fibromyalgia had improved. Plaintiff reported that
massage treatments and medication adjustments were helping her to
gradually increase activity and experience “more good days than
bad.” (T. 503).1
In a medical source statement six weeks later,
dated July 2, 2013, Dr. Pierce opined that plaintiff’s physical
capabilities were quite limited. Dr. Pierce opined that plaintiff
was limited to only occasional reaching, handling, fingering,
feeling, pushing, and pulling. Dr. Pierce further opined that
plaintiff could occasionally lift up to 10 pounds, climb ramps and
stairs, and balance and stoop. However, Dr. Pierce opined that
1
“T” refers to the Transcript of Administrative Proceedings.
-3-
plaintiff was to never climb ladders or scaffolds, and never kneel,
crouch, or crawl.
C. Consulting Sources
Dr. Sandra Boehlert examined plaintiff on January 13, 2012,
through
Industrial
Medicine
Associates,
P.C..
Dr.
Boehlert
concluded plaintiff suffered from fibromyalgia and chronic fatigue.
Dr. Boehlert observed plaintiff’s comment that “both massage and
TENS [transcutaneous electrical nerve stimulation] felt good only
during the treatment and then the next day it felt like she was hit
by a car.” T. 407.
Plaintiff’s electrodiagnostic studies were normal, and she
exhibited full neck motion ranges. Dr. Boehlert observed that
plaintiff performed a full squat, and moved on and off the exam
table unassisted. Dr. Boehlert opined that plaintiff “ha[d] mild
limitation to exertional activity, bending or twisting of the neck,
reaching
overhead
repetitively,
and
repetitive
pushing
and
pulling.” T. 410. Dr. Boehlert opined plaintiff’s “[l]umbar spine
shows flexion limited to 70 degrees,” and her “[h]and and finger
dexterity [was] intact. Grip strength 5/5 bilaterally.” T. 409. The
ALJ gave great weight to Dr. Boehlert’s opinion.
Other
consultative
sources
noted
similar
grip
strength
opinions. On October 3, 2010, Dr. Andrew McGarry opined that
-4-
plaintiff was positive for Tinel’s sign.1 On October 12, 2010,
Dr. Emma Ciafaloni administered plaintiff electrodiagnostic testing
and noted 5/5 motor strength, normal muscle bulk in the hands,
positive Phalen's sign,2 and positive Tinel's sign in the wrists.
On February 8, 2012, Dr. L. Weaver noted plaintiff’s lumbar spine
flexion was limited to 70 degrees, and that hand and finger
dexterity were intact with 5/5 bilateral grip strength. Dr. Weaver
opined that plaintiff “retain[ed] the ability to perform light
work.” T. 436. On December 28, 2012, Dr. Luciana Curia detected
3-4/5 motor strength in plaintiff’s left upper extremity. Finally,
on May 19, 2013, Dr. Huayong Hu assessed plaintiff’s right hand
grip strength at 4/5, and all other major muscle groups at 5/5.
IV. Scope of Review
When considering a claimant’s challenge to the Commission’s
decision 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
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
1
Tinel's sign is a way to detect irritated nerves. It is performed by
lightly tapping over the nerve to elicit a sensation of tingling in the
distribution of the nerve.
2
Phalen’s sign, or Phalen’s maneuver, is a diagnostic test for carpal
tunnel syndrome. The maneuver can moderately increase the pressure in the
carpal tunnel by compressing the median nerve.
-5-
evidence” in the record. See 42 U.S.C. §405(g) (the Commissioner’s
findings “as to fact, if supported by substantial evidence, shall
be conclusive”). The reviewing court 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 does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
V. 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 Act
through December 31, 2015. T. 15. At step one, the ALJ determined
that plaintiff had not engaged in substantial gainful activity
since her alleged onset date, September 29, 2010. At step two, the
ALJ found that plaintiff had the following severe impairments:
obesity, fibromyalgia, degenerative disc disease, depression, and
anxiety.
At step three, the ALJ found that plaintiff’s impairments did
not meet or medically equal any of the listed impairments. See
20 C.F.R. Part 404, Subpart P, Appendix 1. Before proceeding to
step four, the ALJ determined that plaintiff retained the RFC to
-6-
perform
sedentary
repetitive
work
pushing
or
with
the
pulling
following
with
the
limitations:
upper
no
extremities,
occasionally climb ramps or stairs and never climb ladders, ramps,
and scaffolds; occasionally stoop, crouch, crawl, kneel, and reach
overhead;
and
frequently
handle
and
finger.
The
ALJ
limited
plaintiff to simple, routine, repetitive tasks that are low stress
and
limited
plaintiff’s
social
interaction
to
superficial
interaction with others.
At step four, the ALJ found that plaintiff did not retain an
RFC to perform any past relevant work in the banking industry. The
ALJ determined, at step five, that considering plaintiff’s age,
education,
work
experience,
and
RFC,
other
jobs
existed
in
significant numbers in the national economy that plaintiff could
perform. In making her RFC findings, the ALJ conducted a thorough
review of the medical evidence, which included treatment notes from
various providers as well as consultative examinations. The ALJ
also reviewed plaintiff’s testimony and her own reports of her
symptoms and activities of daily living (“ADLs”). The ALJ found
that
plaintiff’s
medically
determinable
impairments
could
reasonably be expected to cause the alleged symptoms, but that her
statements
regarding
the
intensity,
persistence,
and
limiting
effects of the symptoms were not credible to the extent that they
were inconsistent with the ALJ’s RFC assessment. Based on the
above, the ALJ concluded that plaintiff was not disabled during the
relevant time frame.
-7-
VI. Discussion
A. Weight Given to Medical Opinions
Plaintiff contends that the ALJ failed to properly weigh the
medical opinions. In her decision, the ALJ gave “little” weight to
the opinions of treating physician Dr. Pierce. The ALJ gave “great”
weight to the opinions of Drs. Blackwell, Boehlert, and Ransom.
Plaintiff specifically contends that the ALJ erred in failing to
give controlling weight to Dr. Pierce’s opinion that plaintiff’s
physical capacity limited her to only “occasional” handling and
fingering. Plaintiff argues that the ALJ’s RFC assessment should
not have included “frequent” handling and fingering. However, for
the reasons that follow, the Court finds that the ALJ’s decision
was supported by substantial evidence.
The ALJ rejected the portion of Dr. Pierce’s opinion which
found significant handling and fingering restrictions, because
“there [was] nothing in the treating notes of record to support her
limitations,” and because Dr. Pierce’s limiting assertions were
undermined when plaintiff “reported improvement in symptoms because
of massage and medication change.”1 T. 21.
1
The ALJ limited plaintiff to occasional stooping, crouching, and
crawling, rejecting Dr. Pierce’s complete ban on those activities. T. 17, 537.
The ALJ’s decision is fully supported by a January 2012 cervical spine x-ray,
which found that “the height of the vertebral bodies and intervertebral disc
spaces is relatively well-maintained. The pedicles are intact. There is
straightening.” T. 411. Plaintiff does not raise this specific contention on
appeal.
-8-
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. § 404.1527(c)(2). The Court agrees with
the ALJ, however, that Dr. Pierce’s assessment of plaintiff’s
handling and fingering limitations was not supported by substantial
record evidence. Indeed, the Court notes that these limitations do
not appear to be consistent with the remainder of Dr. Pierce’s
functional assessment, which noted a diagnosis of fibromyalgia but
did not note any explicit hand and grip diagnoses. Dr. Pierce’s
treatment records mainly reported routine physical examination
diagnostics, such as height and weight. Dr. Pierce’s opinion did
not cite any medical or clinical findings in support of her
handling
and
fingering
restriction.
In
fact,
the
only
notes
Dr. Pierce made about plaintiff’s hand and grip strength where
general notes concerning whether her fibromyalgia had improved or
worsened from her previous visit.
The ALJ was within her discretion to accept certain portions
of Dr. Pierce’s opinion, but reject those that were not supported
by her own treatment notes or other substantial record evidence.
See Pavia v. Colvin, 2015 WL 4644537, at *4 (W.D.N.Y. Aug. 4, 2015)
(noting that it is “within the province of the ALJ to credit
portions of a treating physician's report while declining to accept
-9-
other portions of the same report”) (citing Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002)).
The ALJ was entitled to rely on the consulting opinion of
Dr. Boehlert, who administered an in-person examination in January
of 2012. T. 407-410. Plaintiff argues that in Ligon v. Astrue, the
district court correctively deferred to the plaintiff’s treating
physician’s opinion over the opinion of consultative physicians,
submitting that the record evinced that “[e]very single medical
source who examined [plaintiff] confirmed the serious and prolonged
impairment. . . .” Ligon v. Astrue, 2012 U.S. Dist. LEXIS 171341,
*45 (E.D.N.Y. Dec. 3, 2012). Unlike Ligon’s medical record, the
medical record here contains other opinions inconsistent with the
treating physician’s. Dr. Boehlert’s report contained diagnoses
substantially
summarized
supported
above.
Like
by
Dr.
the
other
Weaver,
Dr.
consultative
Boehlert
sources,
noted
that
plaintiff’s lumbar spine showed flexion limited to 70 degrees. And
consistent with Drs. Ciafaloni, Weaver, and Hu, Dr. Boehlert
assessed plaintiff’s upper extremity strength at 5/5.1 See, e.g.,
Younes v. Colvin, 2015 WL 1524417, *5 (N.D.N.Y. Apr. 2, 2015)
(“Consultative opinions can be afforded even greater weight than
treating-source opinions when there is good reason to reject
treating source opinion, and substantial evidence supports them”)
1
Regarding plaintiff’s grip strength, the Court recently upheld an
ALJ’s finding that a plaintiff with 4/5 grip strength was able to perform the
full range of light work, a more exertive residual functional capacity level
than the ALJ’s sedentary RFC assessment here. See Cole v. Colvin, 2015 U.S.
Dist. LEXIS 38610, *27 (W.D.N.Y. Mar. 25, 2015).
-10-
(citing SSR 96-6p). Plaintiff’s March 2011 laboratory results also
noted unremarkable findings of musculoskeletal and neurological
testing. For all of these reasons, the Court concludes that the ALJ
properly applied the treating physician rule to Dr. Boehlert’s
opinion.
B. Credibility
Plaintiff contends that the ALJ erred in determining that she
was
“not
entirely
credible.”
T.
at
18.
The
ALJ
considered
plaintiff’s assertions regarding her symptoms and limitations, and
her
discussion
of
plaintiff’s
testimony
is
accompanied
by
a
thorough review of medical evidence. The ALJ’s discussion indicates
that the ALJ used the proper credibility assessment standard,
especially in light of her explicit citation to 20 C.F.R. 404.1529
and SSRs 96-4p and 96-7p. See Britt v. Astrue, 486 F. App’x 161,
164 (2d
Cir.
2012)
(concluding
an
ALJ’s explicit
mention
of
20 C.F.R. 404.1529 and SSR 96-7p sufficiently evinced that the ALJ
used
the
proper
legal
standard
in
assessing
the
plaintiff’s
credibility); see also Judelsohn v. Astrue, 2012 WL 2401587, *6
(W.D.N.Y. Jun. 25, 2012). The Court finds no error in the ALJ’s
discussion
of
plaintiff’s
reports,
nor
with
her
finding
of
conflicts between plaintiff’s testimony and the medical record. The
ALJ’s conclusion that plaintiff’s reports were not credible because
they were inconsistent with substantial record evidence was thus
based on a proper application of the law and is supported by
substantial record evidence.
-11-
C. Failure to Consider Obesity
Plaintiff contends that the ALJ failed to properly consider
the effects of her obesity on her overall functional limitations.
The ALJ found plaintiff’s obesity to be a severe impairment but did
not specifically address the effects of plaintiff’s obesity. To the
extent that plaintiff’s symptoms or limitations were related to
obesity,
the
ALJ
adequately
considered
the
condition
in
her
finding. See Thompson v. Astrue, 2013 WL 265239, *3 (W.D.N.Y.
Jan. 23, 2013) (the ALJ has no duty to consider obesity as an
impairment of contributing factor where the record is “devoid of
any suggestion that her weight negatively impacted her ability to
work.”).
Although
the
record
mentions
plaintiff’s
obesity
diagnosis, the treatment records and Dr. Pierce’s treating opinion
does not indicate that obesity significantly affects plaintiff’s
working capabilities. Nonetheless, the ALJ’s decision considered
plaintiff’s
complete
medical
record
and
ultimately
restricted
plaintiff to sedentary work. The Court thus concludes that the ALJ
did not err in her obesity assessment. See Drake v. Astrue, 443 F.
App’x 653, 657 (2d Cir. 2011) (“[T]he ALJ implicitly factored
[plaintiff]’s obesity into his RFC determination by relying on
medical reports that repeatedly noted [] obesity and provided an
overall assessment of her work-related limitations.”).
-12-
VII. Conclusion
For the foregoing reasons, the Commissioner’s cross-motion for
judgment on the pleadings is granted, and plaintiff’s motion is
denied. The ALJ’s finding that plaintiff was not disabled is
supported by substantial evidence in the record and is thus a
correct application of the law. Consequently, the Complaint is
dismissed in its entirety without prejudice. The Clerk of the Court
is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
June 20, 2016
Rochester, New York
-13-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?