Lazzara v. Colvin
Filing
13
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 10 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 10/26/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TONY RUSSEL LAZZARA,
Plaintiff,
-vs-
No. 6:13-CV-06325 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Tony Russel Lazzara (“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 December 2011, plaintiff (d/o/b
October 19, 1960) applied for DIB and SSI, alleging disability as
of December 2011. After his application was denied, plaintiff
requested a hearing, which was held before administrative law judge
Hortensia Haaverson (“the ALJ”) on October 16, 2013. The ALJ issued
an unfavorable decision on February 14, 2014. The Appeals Council
denied review of that decision and this timely action followed.
III. Summary of the Record
The medical record consists of relatively sparse treatment
notes
and
one
consulting
orthopedic
examination,
which
was
performed on April 12, 2012 by Dr. Najam Zafar Sheikh. At that
exam, plaintiff reported cramping and numbness in both hands “since
1991.” T. 254. In 2006, plaintiff had suffered an injury in which
a nail went through his left eye, rendering him blind in that eye
and later requiring surgery. On physical examination, Dr. Sheikh
found that plaintiff was limited in range of motion (“ROM”) of the
upper and lower extremities as well as in his thoracic and lumbar
spine. He had full grip strength bilaterally and was “able to zip,
unzip, button, and unbutton.” T. 256. His left eye was blind and
his right eye demonstrated 20/50 vision, with “some peripheral
vision.” T. 255. Plaintiff was five feet, eleven inches tall and
weighed 224 pounds. Dr. Sheikh opined that plaintiff had “moderate
to severe limitation in ability to perform activities such as
sitting,
standing,
lifting,
[and]
carrying,”
and
moderate
limitations in fine motor activity. T. 257.
Plaintiff began treatment with Dr. Sarah Bolduc in March 2013,
over a year after filing his disability applications. He indicated
that he “[had] not seen an MD since 1999.” T. 279. On March 19,
2
2013, Dr. Bolduc diagnosed plaintiff with acute orthopnea1 and
distal paresthesia, described as “pins and needles in his bilateral
hands and feet.” T. 279. He had a normal gait and no leg or arm
weakness. Dr. Bolduc recorded, without explanation, that she was
“unable” to complete a full physical examination. T. 282. On
April 3, 2013, Dr. Bolduc saw plaintiff for a follow-up to an
echocardiogram, the results of which were within normal limits. No
abnormal
results
were
recorded
upon
physical
examination.
Dr. Bolduc noted that plaintiff’s diabetes, dislipidemia (high
blood pressure), nicotine abuse, and obesity were under “suboptimal control.” T. 277. She set a weight loss goal of one to two
pounds per week. She did not prescribe medication for plaintiff’s
diabetes, but indicated that it should be controlled with diet and
exercise.
She
prescribed
amitriptyline
for
tingling
in
the
extremities.
At an annual preventive visit in July 2013, plaintiff’s
physical exam was essentially unremarkable. He reported ceasing
taking amitriptyline because it made him feel “foggy.” T. 270.
Instead, he took his mother’s Tylenol. Plaintiff exhibited a
“[n]ormal range of motion, muscle strength, and stability in all
extremities with no pain on inspection.” T. 267. Plaintiff reported
intermittent cocaine abuse, with a last use of April 2013. He
1
Orthopnea or orthopnoea is shortness of breath (dyspnea) that occurs when
lying flat, causing the person to have to sleep propped up in bed or sitting in
a chair.
3
declined chemical dependency treatment. On October 31, 2013, in
response
to
the
ALJ’s
request
for
clarification,
Dr.
Bolduc
responded that she had no further information regarding plaintiff’s
substance abuse.
IV.
The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2012.
At step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since December 20, 2011,
the alleged onset date. At step two, the ALJ found that plaintiff
suffered from the following severe impairments: diabetes mellitus,
obesity, status post penetrating left eye injury, and loss of
visual acuity. At step three, the ALJ found that plaintiff did not
have an impairment or combination of impairments that met or
medically equaled the severity of any listed impairment.
Before proceeding to step four, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to perform less
than
the
full
range
of
light
work
as
defined
in
20
C.F.R.
§§ 404.1567(b) and 416.967(b) in that he retained the capacity to
lift and carry 20 pounds occasionally and 10 pounds frequently; he
could stand or walk for six hours in an eight-hour workday, with no
limitations in sitting; he was limited to jobs requiring only
monocular
vision;
he
should
avoid
4
hazards
such
as
operating
dangerous machinery or working around heights; he should avoid
climbing ladders, ropes, and scaffolds; and he should not drive at
night.
At step four, the ALJ found that plaintiff was unable to
perform past relevant work as a machine builder. At step five, the
ALJ
found
that
considering
plaintiff’s
age,
education,
work
experience, and RFC, jobs existed in significant numbers in the
national economy which he could perform. Accordingly, the ALJ
determined that plaintiff was not disabled.
V.
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. Barnhart, 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 Finding
Plaintiff contends that the ALJ failed to develop the record
and therefore had insufficient evidence from which to formulate an
RFC. Plaintiff argues that “[t]he only medical opinion evidence
[from consulting physician Dr. Sheikh] supports limitations greater
than contained in the RFC finding, and the remaining evidence in
5
[p]laintiff’s
[p]laintiff’s
treatment
level
of
notes
are
functioning.”
inadequate
Doc.
8-1
to
at
establish
9.
For
the
following reasons, the Court finds that the ALJ’s RFC finding was
supported by substantial evidence in the record.
1.
Dr. Sheikh’s Opinion
The ALJ assigned “little weight” to Dr. Sheikh’s consulting
opinion, finding that Dr. Sheikh’s opinion that plaintiff had
“moderate to severe” limitations in sitting, standing, lifting, and
carrying” were too vague and that his “physical examination was not
particularly adverse,” such that the restrictive limitations were
inconsistent with the examination. T. 15. The ALJ “assigned a light
RFC with postural, environmental, and visual limitations based on
objective findings of obesity, diabetes, loss of visual acuity and
depth perception, and subjective complaints of pain.” T. 16.
Plaintiff argues that the ALJ’s RFC finding lacks substantial
evidence because it does not track Dr. Sheikh’s opinion. However,
the ALJ was not required to adopt any limitations that were
inconsistent with other substantial evidence of record. See Matta
v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (“Although the ALJ’s
conclusion may not perfectly correspond with any of the opinions of
medical sources cited in his decision, he was entitled to weigh all
of
the
evidence
available
to
make
an
consistent with the record as a whole.”).
6
RFC
finding
that
was
Although Dr. Sheikh assessed “moderate to severe” limitations
in plaintiff’s functioning, severe limitations were not supported
by his examination or the medical record, which indicated largely
unremarkable physical examinations and was notable for a complete
lack of treatment with regard to functions involving sitting,
standing, lifting, or carrying for the time period from 1999
through 2013. Even upon treatment with Dr. Bolduc, plaintiff did
not complain of limitations in sitting, walking, or standing, but
complained
primarily
of
tingling
in
his
extremities.
After
Dr. Bolduc prescribed medication for that condition, plaintiff
ceased it on his own and instead took Tylenol. Considering this
record, the ALJ was within her discretion to adopt Dr. Sheikh’s
opinion only to the extent that it was consistent with other
substantial evidence of record.
2.
ALJ’s Duty to Develop the Record
Plaintiff argues that the ALJ failed to develop the record,
contending specifically that the record lacked treatment records,
the ALJ failed to request a treating physician opinion, and the ALJ
failed to request a consulting eye examination. Although the
medical
record
is
sparse,
there
is
no
indication
that
any
documentation is actually missing from the record. Rather, the
plaintiff himself reported to Dr. Bolduc that, before beginning
treatment with her in March 2013, he had not seen a physician since
7
1999.2 Thus, there is no indication that any attempt to further
develop this record would have been fruitful. See Rosa v. Callahan,
168 F.3d 72, 79 n.5 (2d Cir. 1999) (“[W]here there are no obvious
gaps in the administrative record, and where the ALJ already
possesses
a
complete
medical
history,
the
ALJ
is
under
no
obligation to seek additional information in advance of rejecting
a benefits claim.”) (emphasis added) (internal quotation marks
omitted). Additionally, “[e]ven though the ALJ has an affirmative
obligation to develop the record, it is the plaintiff’s burden to
furnish such medical and other evidence of disability as the
Secretary may require.” Long v. Bowen, 1989 WL 83379, *4 (E.D.N.Y.
July 17, 1989) (internal citations omitted).
Here, the medical record contains little evidence of physical
impairments affecting plaintiff’s ability to perform full-time
work. Dr. Bolduc’s treatment records, as noted above, reveal
relatively unremarkable physical impairments and medical conditions
which could be addressed through diet and exercise. Plaintiff’s
ophthalmologist
indicated
that
his
right-eye
vision
could
be
corrected with glasses. Additionally, to the extent that Dr. Sheikh
found moderate limitations in plaintiff’s functioning, that finding
2
Although plaintiff made a passing reference to a neurologist in his
testimony, plaintiff was represented at the hearing and his counsel did not
request that the record be left open for any additional medical evidence to be
submitted. Additionally, plaintiff reported to Dr. Bolduc in April 2013 that he
had seen a neurologist about a month before “and told that everything was ok.”
T. 274. Thus, there is no indication that any further medical documentation
exists which would have been likely to affect the ALJ’s decision.
8
was consistent with the ALJ’s finding that plaintiff could perform
less than the range of light work.3 As the Commissioner points out,
this Court has found “moderate” limitations in sitting, standing,
and walking to be consistent with a finding that a claimant can
perform light work. See Harrington v. Colvin, 2015 WL 790756, *14
(W.D.N.Y. Feb. 25, 2015); Carroll v. Colvin, 2014 WL 2945797, *4
(W.D.N.Y. June 30, 2014) (“[C]ourts have upheld an ALJ’s decision
that the claimant could perform light or sedentary work even when
there is evidence that the claimant had moderate difficulties in
prolonged sitting or standing.”). Under these circumstances, the
ALJ was not required to request a treating physician’s opinion. See
Tankisi v. Comm’r of Soc. Sec., 521 F. App'x, 33 33–34 (2d Cir.
2013) (holding that it was not per se error for ALJ to make
disability
determination
without
seeking
opinion
of
treating
physician, where record was otherwise complete); see also
Walker v. Astrue, 2010 WL 2629832, *7 (W.D.N.Y. June 11, 2010)
(“‘[W]here the medical evidence shows relatively little physical
impairment, an ALJ permissibly can render a common sense judgment
about functional capacity even without a physician's assessment.’”)
(quoting Manso–Pizarro v. Sec’y of Health and Human Servs., 76 F.3d
15, 17 (1st Cir. 1996)).
3
For this reason, the Court finds plaintiff’s argument, that the ALJ
relied solely on her own lay interpretation of the medical records, unpersuasive.
See Matta, 508 F. App’x at 56 (noting that ALJ’s RFC determination is not
required to “perfectly correspond” with any one medical opinion).
9
Plaintiff also argues that the ALJ should have obtained a
consulting vision examination. However, the record was sufficient
to support the ALJ’s conclusion that plaintiff’s visual impairment
consisted of left eye blindness and lack of depth perception. At a
vision examination in January 2012, plaintiff’s ophthalmologist
“explained to [plaintiff] that he [was] not legally blind.” T. 252
(emphasis in original). She prescribed glasses to correct his
vision. Additionally, although plaintiff’s eye injury and surgery
took place in 2006, he was able to work for 5 years beyond that,
until December 2011, despite his eye condition. Therefore, the ALJ
was under no duty to more fully develop the record with respect to
plaintiff’s eye impairment. See Serianni v. Astrue, 2010 WL 786305,
*5 (N.D.N.Y. Mar. 1, 2010) (“An ALJ is not obligated to send a
litigant for a consultative examination if the facts do not warrant
or suggest the need for such an examination.”); see also Haskins v.
Comm’r, 2008 WL 5113781, *7 n.5 (N.D.N.Y. Sept. 11, 2008) (finding
no
duty
evidence
to
did
order
not
consultative
support
intelligence
work-related
evaluation
functional
where
limitations
resulting from a possible mental impairment).
3.
Contrary
to
Function-By-Function Assessment
plaintiff’s
arguments,
the
ALJ’s
discussion
indicates that she considered the full medical record when coming
to her RFC determination. Because the Court can glean the ALJ’s
reasoning from her decision, the lack of a specific function-by-
10
function analysis constituted harmless error. See Henry v. Colvin,
2015 WL 8074299, *7 (W.D.N.Y. Dec. 4, 2015) (finding that “ALJ's
failure
to
provide
a
function-by-function
analysis
of
the
claimant’s functional limitations constituted harmless error where
an extensive medical history supported the RFC and the claimant’s
treating physicians declined to provide a functional assessment
detailing his limitations”); Goodale v. Astrue, 32 F. Supp. 3d 345,
357
(N.D.N.Y.
2012)
(“[A]n
ALJ's
failure
to
provide
a
function-by-function analysis . . . constitute[s] harmless error,
provided that
the
absence
of
the
analysis
did
not frustrate
meaningful review of the ALJ's overall RFC assessment.”); Drennen
v. Astrue, 2012 WL 42496, *5 (W.D.N.Y. Jan. 9, 2012) (“Although he
did not specifically conduct the analysis, the ALJ went into
explicit
detail
as
it
pertained
to
the
plaintiff's
medical
history.”).
B.
Credibility
Plaintiff
contends
that
the
ALJ
erroneously
assessed
plaintiff’s credibility. Plaintiff testified that he was unable to
work due to left eye blindness, “severe floaters” in his right eye,
and arthritis.4 As to his work history, plaintiff testified that
most of his jobs in the last 15 years had lasted for about six
4
Notably, Dr. Bolduc did not note a diagnosis of arthritis, although she
did treat plaintiff for tingling in the extremities as discussed above. Plaintiff
also testified that he took medication for arthritis, but Dr. Bolduc’s treatment
notes do not reflect that.
11
months, and that he obtained those jobs through temp agencies. See
T. 31. The ALJ found:
The claimant’s allegations lack credibility for the
following reasons: (1) [His] eye surgery was in 2006.
Yet, he was able to work for another five years before
alleging disability. (2) There is no precipitating event
in December 2011, to lead the claimant to believe that he
became disabled at that particular time. (3) Though the
complaint complains of arthritis in his statements . . .,
objective findings are not particularly adverse. (4) The
claimant takes only his mother’s Tylenol for pain. (5)
Prior to establishing care with a physician in March
2013, the claimant had not seen a doctor since 1999. (6)
Contrary to his allegation, the claimant is not legally
blind. (7) The claimant is not on any medication for
diabetes, and the treating source recommends only diet
and weight loss to control diabetes. (8) The claimant
makes inconsistent statements concerning his substance
abuse, and these lessen his credibility. (9) Despite his
alleged legal blindness, the claimant is still able to
drive a car, read, walk and use public transportation,
cook and do cores [sic], and do volunteer work.
T. 16 (internal citations omitted).
Under well-established precedent, “[i]t is the function of the
[ALJ] . . . to resolve evidentiary conflicts and to appraise the
credibility of witnesses, including the claimant.” Carroll v. Sec’y
of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Here,
the ALJ included detailed reasoning as to why she deemed plaintiff
not fully credible. The ALJ’s discussion, which incorporates her
review
of
the
testimony
and
references
relevant
authorities
including 20 C.F.R. §§ 404.1529, 416.929 and SSRs 96-4p and 96-7p,
indicates
that
she
used
the
proper
standard
in
assessing
credibility. See Britt v. Astrue, 486 F. App’x 161, 164 (2d Cir.
2012) (finding
explicit
mention
12
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).
Accordingly,
her
credibility determination will not be disturbed.5
VI.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 8) is denied and the Commissioner’s motion
(Doc. 10) 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
_____________________________
Honorable Michael A. Telesca
United States District Judge
Dated:
October 26, 2016
Rochester, New York.
5
The Court notes plaintiff’s arguments that the credibility
determination was “inaccurate and unsupported.” Doc. 8-1 at 25. However, based
on a review of the record, the Court finds that the ALJ’s credibility
determination was supported by substantial evidence. Specifically, plaintiff’s
gaps in treatment, conservative treatment, and activities of daily living belied
his testimony as to an inability to perform work on a full-time basis. See 20
C.F.R. §§ 404.1529, 416.929 (describing factors relevant to credibility
determination); Taylor v. Colvin, 2016 WL 1049000, *8 (N.D.N.Y. Mar. 11, 2016)
(ALJ properly considered gaps in treatment where credibility determination was
not based “on that one factor alone”); Rivera v. Colvin, 2015 WL 6142860, *6
(W.D.N.Y. Oct. 19, 2015) (“ALJ was entitled to consider evidence that plaintiff
pursued a conservative treatment as one factor in determining credibility”)
(citing Netter v. Astrue, 272 F. App’x 54, 56 (2d Cir. 2014)); Crowley v.
Barnhart, 220 F. Supp. 2d 176, 180 (W.D.N.Y. 2002) (ALJ properly considered
activities of daily living as one factor in credibility determination).
13
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