Cripps v. Colvin
Filing
13
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Commissioner's Motion for Judgment on the Pleadings. Clerk to close case. Signed by Hon. Michael A. Telesca on 8/20/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ALAN P. CRIPPS,
No. 6:15-cv-06697(MAT)
DECISION AND ORDER
Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION
Represented by counsel, Alan P. Cripps (“Plaintiff”) brings
this action pursuant to Title II of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
BACKGROUND
I.
Procedural Status
Plaintiff filed an application for DIB on October 2, 2012,
alleging
disability
beginning
January
1,
2012,
due
to
osteochondritis of the left knee with arthritis, spondylolisthesis
in the lower back, left leg numbness, left hip pain, herniated
discs in the cervical spine, left arm numbness, chronic sinus
problems, bilateral carpel tunnel syndrome, and temporomandibular
joint
T.205-15.1
disease.
After
this
application
was
denied,
Plaintiff requested a hearing, which was held on December 16, 2014,
before
administrative
law
judge
John
Costello
(“the
ALJ”).
See T.24-63. Plaintiff testified, as did impartial vocational
expert Carol McManus (“the VE”). In correspondence submitted by his
attorney
on
the
hearing
date,
Plaintiff
amended
his
alleged
disability onset date to August 18, 2012. On February 6, 2015, the
ALJ issued an unfavorable decision. T.12-18. The Appeals Council
denied Plaintiff’s request for review on September 18, 2015, making
the ALJ’s decision the final decision of the Commissioner.
Plaintiff timely commenced this action. The parties have filed
cross-motions
for
judgment
on
the
pleadings
and
supporting
memoranda of law, but neither party has filed a reply brief. For
the
reasons
discussed
below,
the
Commissioner’s
decision
is
affirmed.
II.
Summary of Relevant Evidence
A.
Medical Records
In 2004, Plaintiff underwent an MRI which revealed a left
foraminal disc herniation at C6-7. Electrodiagnostic studies showed
mild to moderate bilateral carpal tunnel syndrome (“CTS”) and mild
to moderate bilateral ulnar neuropathy at the elbow. Physical
therapy was recommended.
1
Citations to “T.” refer to pages from the certified transcript of the
administrative record, submitted by the Commissioner in connection with her
answer to the complaint.
-2-
In November 2011, Plaintiff saw his primary care physician,
Lori
Ferris,
M.D.,
complaining
of
neck
pain
and
headaches.
Dr. Ferris noted that Plaintiff had full extension and rotation in
the neck with
full
motor
strength
in the
upper extremities.
Dr. Ferris recommended over the counter (“OTC”) pain medications.
Plaintiff saw Dr. Ferris in December 2011 and March 2012 for upper
respiratory symptoms. Plaintiff did not seek treatment again from
Dr. Ferris for back and neck pain until August 2012, when he
reported that his knee pain had just started and that his back pain
had only been present for three days. He told Dr. Ferris that
Ibuprofen provided pain relief. On examination, his knee was
tender, but straight leg raising was negative. Plaintiff had full
motor strength in both lower extremities. There was tenderness on
palpation of the lumbar spine. Dr. Ferris again recommended only
Ibuprofen and stated he could perform “activities as tolerated”.
On November 9, 2012, physician’s assistant (“P.A.”) Brian
Dillenbeck
examined
Plaintiff’s
left
knee
and
noted
marked
tenderness to palpation along the medial patellar facet. Plaintiff
received a steroid injection, a prescription for diclofenac, and
home exercises for quadricep strengthening. Imaging of Plaintiff’s
left knee showed subtle degenerative changes of the patellofermoral
joint.
Plaintiff presented to Clifford Everett, M.D., on November 15,
2012, for complaints of neck and right arm numbness, and pain in
his
back
and
left
leg.
Dr.
Everett’s
-3-
impression
was
L4-L5
spondylolisthesis with scoliosis and worsening right leg pain. As
“rule out” diagnoses, Dr. Everett listed L4 radiculopathy and neck
and right hand numbness and pain, and ulnar neuropathy at the hand
versus C7 radiculopathy. Nerve conduction studies performed on
November 21, 2012, showed right-sided ulnar neuropathy at the elbow
with slowing but without cervical radiculopathy. An MRI of the
cervical spine performed on November 26, 2012, showed evidence of
degenerative disc disease. An MRI of the lumbar spine revealed
degenerative disc disease at all lumbar levels. Plaintiff returned
for follow-up with Dr. Everett on December 14, 2012, and was
referred to Dr. Addisu Mesfin for his back and Dr. John Elfar for
his elbow.
Plaintiff consulted with specialist Dr. Mesfin on January 22,
2013, for his neck and back pain. Plaintiff stated that his back
pain had been present for 22 years but had worsened over the past
year.
He
was
not
attending
physical
therapy
due
to
lack
of
finances. About a decade previously, he had declined surgery on his
lumbar spine. On examination, Plaintiff had full strength in both
the upper and lower extremities. Dr. Mesfin diagnosed Plaintiff
with degenerative scoliosis (lumbar region) and spondylolisthesis
(grade 1) of L5-Sl, and recommended conservative treatment.
On March 7, 2013, Plaintiff underwent a right cubital tunnel
release. A June 6, 2013 nerve conduction study of Plaintiff’s right
arm
was
normal,
and
Dr.
John
Orsini
found
that
Plaintiff’s
previously observed focal slowing of the ulnar nerve had resolved.
-4-
On June 18, 2013, Dr. Elfar stated that Plaintiff was doing well
post-surgery and that he should follow up as needed.
Plaintiff
presented to Dr.
Ferris
on
May
23,
2013,
for
completion of a form requested by the Department of Social Services
(“DSS”). He informed Dr. Ferris that he was also applying for
Social Security disability. T.924. Dr. Ferris completed the DSS
form and prescribed a trial of nortripyline at bedtime. Id.
At follow-up appointments with Dr. Mesfin in July and August
2013, Plaintiff was referred to physical therapy for his cervical
and lumbar pain. A CT scan of the lumbar spine showed isthmic
spondylolisthesis.
chronic
A
nerve
polyradiculopathy.
conduction
Dr.
Mesfin
study
showed
referred
bilateral
Plaintiff
to
Dr. Everett for lumbar spine injections, which were administered on
August 15 and 20, 2013.
Plaintiff returned to Dr. Mesfin on September 24, 2013,
reporting that physical therapy and epidural injections had not
helped. On examination, Plaintiff was in no distress and had full
strength in his lower extremities and intact sensation to light
touch at L1-S1.Dr. Mesfin suggested that Plaintiff delay possible
surgery until spring of 2014. Plaintiff declined prescriptions for
pain medication, and that he took ibuprofen at night. Dr. Mesfin
encouraged Plaintiff to continue aerobic exercise and walk at least
a mile per day.
In
October
2013,
Plaintiff
saw
Dr.
Elfar
in
follow-up
regarding his cubital release surgery. Plaintiff reported continued
-5-
elbow pain, but less numbness in his fingers. On examination,
Plaintiff had good range of motion in his elbow, which was pain
free. Dr. Elfar did not recommend further surgery.
On
February
reporting
21,
worsening
2014,
neck
Plaintiff
pain
and
returned
requesting
to
Dr.
Ferris
medication.
On
examination, Plaintiff appeared comfortable but had decreased range
of motion and tenderness in his cervical spine. He had full
strength
in
tenderness
his
or
cyclobenzaprine
upper
spasms.
and
extremities
and
Dr.
prescribed
Ferris
recommended
no
physical
paraspinal
muscle
meloxicam
therapy.
and
Plaintiff
declined physical therapy because his symptoms had worsened with
physical therapy in the past.
On February 25, 2014, Plaintiff reported that Mobic and
Flexeril had improved his neck pain, though he still had right arm
pain. He had limited range of motion in his right shoulder, but
nearly full extension and flexion in his right elbow. Dr. Ferris
assessed likely shoulder tendonitis and referred Plaintiff to
physical therapy. Plaintiff was advised to limit lifting, pushing
and pulling.
On March 7, 2014, Plaintiff followed up with Dr. Everett and
reported that the cyclobenzaprine prescribed by Dr. Ferris had been
helpful. Plaintiff’s reflexes were normal in his upper extremities
and Hoffman’s test was negative. Plaintiff had neck pain with
extension and rotation. Dr. Everret prescribed diclofenac and
-6-
suggested that he continue Flexeril at night. Dr. Everett referred
Plaintiff to physical therapy.
In May 2014, Plaintiff reported continued neck pain and
occasional right arm symptoms. He reported that physical therapy
provided minimal relief. Dr. Mesfin noted that Plaintiff was in no
distress and had full strength in his upper extremities and intact
sensation at C5 and T1. Spurling’s and Romberg’s tests were both
negative. Dr. Mesfin opined that surgery was unwarranted, and
referred Plaintiff to Dr. Ferrero for consideration of trigger
point injections.
On June 23, 2014, Plaintiff was evaluated by Dr. Ferrero, who
advised Plaintiff to undergo consistent physical therapy prior to
consideration of trigger point injections.
In September 2014, Dr. Mesfin referred Plaintiff for physical
therapy for his lumbar spine complaints. Plaintiff was in no
distress and had full strength in his lower extremities and intact
sensation in his lumbosacral spine.
B.
Consultative Physician’s Report
On December 20, 2012, at the Commissioner’s request, Plaintiff
underwent a consultative physical examination by Karl Eurenius,
M.D. T.606-11. Plaintiff reported that his only medication was
Motrin. On examination, Plaintiff had normal gait, full grip
strength and muscle strength with no atrophy, normal muscle tone,
and
normal
sensation
and
reflexes.
Dr.
Eurenius
opined
that
Plaintiff had “mild” limitations in bending, lifting, carrying,
-7-
prolonged standing, walking, and activities requiring frequent
movement of the head due to left knee, neck and back pain.
T.608-09.
C.
Plaintiff’s Testimony
Plaintiff was 56 years-old on the alleged onset date. He has
a college education and some master’s level coursework, along with
past relevant work as a truck driver, user support analyst section
leader, and telephone solicitor. Plaintiff testified that he lives
with his father. He attends to his personal grooming daily and
cooks daily. He goes shopping on his own and unloads groceries, but
“would avoid lifting a 30-40 pound bag of dog food.” He also
testified that he can clean, mop, and vacuum. He uses a computer
daily to browse the Internet or play computer games. He has a
driver’s license and is able to drive to his appointments. He
testified that he can only drive for about 30 minutes before neck
pain bothers him. Standing aggravates his back pain but he can
stand or sit for one-hour increments before needing to change his
position. He also testified he can sit at the computer, using a
mouse, for two to three hours before needing to stop due to pain.
Plaintiff states he uses muscle relaxers as needed for his pain.
Following cubital release surgery, his elbow pain has improved.
E.
The VE’s Testimony
The VE indicated that Plaintiff’s past work as a semi-truck
driver was classified as “medium” work while his past jobs as a
user support analyst section leader and as a telephone solicitor
-8-
were “sedentary” work. The ALJ presented the VE with a hypothetical
individual of Plaintiff’s age, and having his education and work
experience, who could perform light exertional work, but who was
limited to only frequent reaching, handling, and fingering. The VE
testified such an individual could perform Plaintiff’s past work as
a user support analyst section leader and as a telephone solicitor.
T.58.
F.
The ALJ’s Decision
The
ALJ
evaluation
followed
process
the Commissioner’s
for
determining
five-step
whether
an
sequential
individual
is
disabled. See 20 C.F.R. §§ 404.1520(a) and 416.920(a). At step one,
he found that Plaintiff had not engaged in substantial gainful
activity since his August 18, 2012 alleged disability onset date.
At
step
two,
impairments:
he
found
Plaintiff
spondylolisthesis;
had
lumbar
the
following
scoliosis;
severe
shoulder
tendonitis; and cubital tunnel syndrome. T.14. 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.
T.15. The ALJ proceeded to assess Plaintiff’s residual functional
capacity (“RFC”) and determined that he can perform “light” work,2
2
“Light” work involves lifting no more than 20 pounds at a time, with
frequent lifting or carrying of up to 10 pounds. 20 C.F.R. § 404.1567(b). A job
is considered “light” when it requires a good deal of walking or standing (i.e.,
about six hours in an eight-hour workday), or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. 20 C.F.R.
§ 404.1567(b); Social Security Ruling (SSR) 83-10 (also providing that a claimant
who is found able to do light work will be able to do sedentary work, absent
other limitations).
-9-
which requires only frequent reaching, handling, and fingering.
T.15. At step four, the ALJ relied on the VE’s testimony to find
that Plaintiff was able to perform his past relevant work as a user
support analyst section leader and telephone solicitor. T.17. The
ALJ therefore entered a finding of not disabled.
STANDARD OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a 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). “Substantial evidence” is evidence that amounts to “more
than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 401
(1971), and it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Id.; see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982). “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) (citation omitted).
-10-
DISCUSSION
Plaintiff’s sole contention on appeal relates to the ALJ’s
failure to explicitly address primary care physician Dr. Ferris’
statement from the May 23, 2013 office visit at which Plaintiff
presented
a
form
for
her
to
complete
for
the
DSS
regarding
Plaintiff’s ability to work. Under the “SUBJECTIVE” portion of the
office note, Dr. Ferris stated, “[Plaintiff] feels unable to
perform a job. He is not able to stand or walk for long periods of
time. Walking up and down stairs [is] very difficult. Neck pain
limits his ability to sit at a desk for long periods of time. . .
.” T.924. Dr. Ferris had no “OBJECTIVE” findings that day because
an “[e]xam was not done.” Id. Under “ASSESSMENT,” Dr. Ferris
stated, “chronic musculoskeletal symptoms causing permanent partial
disability from employment.” Id. It bears emphasizing that all of
Dr.
Ferris’
statements
regarding
Plaintiff’s
limitations
and
complaints appear under the “SUBJECTIVE” portion of the treatment
note. In other words, what Plaintiff construes as Dr. Ferris’
expert opinion regarding his functional limitations is actually a
summary of Plaintiff’s subjective statements. See, e.g., Polynice
v. Colvin, No. 13–4477–cv, 576 F. App’x 28, 31 (2d Cir. Aug. 20,
2014) (summary order) (finding that the ALJ did not improperly deny
controlling weight to any treating physician’s medical opinion
where “[m]uch of what [the claimant] label[ed] ‘medical opinion’
was no more than a doctor’s recording of [the claimant]’s own
reports of pain”).
-11-
Therefore,
Plaintiff’s
suggestion
that
the
ALJ
ignored
specific opinions from Dr. Ferris regarding his ability to stand,
walk, and sit for extended periods of time does not accurately
characterize the record.
labels
as
medical
Rather, almost all of what Plaintiff
opinion
is
Dr.
Ferris’
recording
of
his
subjective complaints, as evidenced by the fact those statements
appear under the “SUBJECTIVE” heading of the office note. Cf.
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (ALJ did not
err in declining to afford controlling weight to treating physician
opinion where “the two key findings made by [the treating source],”
i.e., “the relatively uninformative response to a multiple-choice
question about [the claimant]’s ability to sit” and “the conclusory
finding that [the claimant] was unable to perform her previous job
duties” “did not ‘address the question of whether [she] could do
the job if given several breaks or allowed to change position
often’”). The only portion of Dr. Ferris’ note that arguably
constitutes an opinion by a treating source on the “nature and
severity
of
[Plaintiff’s]
impairment(s),”
20
C.F.R.
§ 404.1527(c)(2), is Dr. Ferris’ statement that Plaintiff has
“chronic
musculoskeletal
symptoms
causing
permanent
partial
disability from employment.” Not only is this statement conclusory
and unsupported by specific findings, it goes to an issued reserved
to the Commissioner. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (stating that the “ultimate finding of whether a claimant is
disabled and cannot work [is] ‘reserved to the Commissioner’”)
-12-
(quoting 20
C.F.R.
§
404.1527(e)(1)).
Such opinions
on
the
ultimate issue of disability, even if issued by a treating source,
are not entitled to special consideration by an ALJ. See Newbury v.
Astrue, 321 F. App’x 16, 17 (2d Cir. 2009) (“To be sure, [the
treating source]’s conclusions that [the claimant] was ‘disabled’
and lacked ‘residual functional capacity’ are not entitled to
controlling weight.”) (citing 20 C.F.R. § 404.1527(e)). In sum,
Plaintiff has not established that the ALJ committed legal error.
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s determination was not erroneous as a matter of law
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 20, 2016
Rochester, New York.
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