Crosby v. Colvin

Filing 18

DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 15 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 7/18/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEFFREY CROSBY,
16-cv-6300 (MAT)

Plaintiff,

DECISION AND
ORDER
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

I.

Introduction
Plaintiff Jeffrey Crosby (“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

(“defendant”

application
(“DIB”).

for

social

or

“the

security

Commissioner”)
disability

denying

his

insurance benefits

Presently before the Court are the parties’ competing

motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
plaintiff’s motion is denied and defendant’s motion is granted.
II.

Procedural History
On December 4, 2012, plaintiff filed an application for DIB,

alleging

disability

as

of

August

31,

2012.

Administrative

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social
Security on January 23, 2017. The Clerk of the Court is instructed to amend the
caption of this case pursuant to Federal Rule of Civil Procedure 25(d) to reflect
the substitution of Acting Commissioner Berryhill as the defendant in this
matter.

Transcript (“T.”) 109-10. Following the denial of his application,
a hearing was held at plaintiff’s request on August 20, 2014,
before administrative law judge ("ALJ") Connor O’Brien, at which
testimony was given by plaintiff and a vocational expert. T. 37-74.
The ALJ issued a decision dated November 26, 2014, in which she
determined that plaintiff was not disabled as defined in the Act.
T. 17-33. The ALJ’s decision became the final determination of the
Commission on March 15, 2016, when the Appeals Council denied
plaintiff’s request for review.

T. 1-5.

Plaintiff subsequently

filed the instant action.
III. The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2017.
one

of

the

five-step

sequential

evaluation,

T. 22.
see

20

At step
C.F.R.

§§ 404.1520, 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since August 31, 2012, the
alleged onset date.

Id.

At step two, the ALJ found that plaintiff

suffered from the severe impairments of degenerative disc disease
of the lumbar spine, Schatzki’s ring, depressive disorder, and
anxiety disorder.

Id. 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. T. 2325.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
2

RFC to “perform light work as defined in 20 CFR 404.1567(b)” with
the following limitations: sitting for a total of four hours in an
eight-hour workday; standing for a total of four hours in an eighthour workday; never climbing ropes, ladders, or scaffolds; never
balancing on narrow, slippery, or moving surfaces; never bending to
the floor; occasionally crouching, climbing stairs, kneeling, and
crawling; performing only unskilled work; requiring a sit/stand
option that allows for a position change every 45 minutes for up to
five minutes without leaving the workstation; not maintaining an
hourly,

machine-driven,

assembly

line

production

rate;

and

requiring up to three short, unscheduled, less than five-minute
breaks in addition to the regularly scheduled breaks.

T. 25.

At

step four, the ALJ found that plaintiff was unable to perform any
past relevant work.

T. 31.

At step five, the ALJ concluded that,

considering plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that plaintiff can perform.

T. 32.

Accordingly, the ALJ

found plaintiff 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. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
3

mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

The ALJ Properly Accounted for Plaintiff’s Right Shoulder
Tendinopathy

Plaintiff contends that the Commissioner’s decision was not
supported by substantial evidence because the ALJ failed to account
for his impairment of right shoulder tendinopathy in her RFC
determination.

In support of this contention, plaintiff argues

that (1) the ALJ should have included limitations based on this
impairment in her RFC determination and (2) additional evidence
submitted to the Appeals Council compelled the conclusion that the
impairment was severe.

These arguments are unavailing.

The medical evidence of record shows that plaintiff first
complained of right shoulder pain in March 2014, a little over a
year and a half after his alleged disability onset date.

T.

347.

On March 20, 2014, plaintiff was seen by Dr. Jennifer Kessler and
reported a two week history of right shoulder pain.
Dr.

Kessler

assessed

plaintiff

with

shoulder

T. 443.

tendonitis

and

instructed him to avoid lifting weights “for at least a few weeks”
and to use ice and tylenol for pain relief.

Id.

Dr. Kessler

informed plaintiff that his tendonitis would resolve on its own
with “time and rest.”

Id.

Plaintiff reported to an urgent care

clinic on April 9, 2014, and noted that his pain had “minimally
improved” since being seen three weeks earlier. Id. Plaintiff had
a full range of motion in his right shoulder, but had significant

4

pain with active and passive abduction past 90 degrees.

T. 348.

He was referred to physical therapy, and instructed to take tylenol
for pain.

T. 347-48.

Plaintiff underwent physical therapy (see

T. 330-37), which improved his pain to 3-4 out of 10 with no deep
shoulder pain.

T. 332.

Plaintiff was seen on June 20, 2014, and

on physical examination had no postural or anatomic abnormalities,
was

non-tender

to

palpitation,

and

had

intact

and

symmetric

strength in his upper extremities. T. 362. Plaintiff showed “some
pain” with right shoulder abduction greater than 90 degrees and
with external rotation of the arm.

T. 362-63.

He was referred to

an orthopedist for possible steroid injections and instructed to
continue conservative measures in the interim (rest, no heavy
lifting/exacerbating movements, tylenol for pain). T. 363. In her
decision, the ALJ reviewed and discussed the evidence of record
regarding plaintiff’s right shoulder tendinopathy and concluded
that it was a non-severe impairment because there was no evidence
to

support

the

conclusion

durational requirement.

that

T. 23.

it

would

meet

the

12-month

The ALJ expressly noted that she

had considered both severe and non-severe impairments in making her
RFC finding.

Id.

An ALJ must “consider all of plaintiff’s impairments, both
severe and non-severe, when reaching an RFC determination.” Jackson
v. Colvin, 2016 WL 1578748, at *4 (W.D.N.Y. Apr. 20, 2016) (citing
20 C.F.R. § 404.1545(a)(2)).

Here, plaintiff contends that the

ALJ’s RFC finding contained no limitations related to his right
5

shoulder tendinopathy.
plaintiff

to light

The Court disagrees.

work,

which

is

The ALJ limited

fully consistent

with his

physician’s recommendation that he avoid heavy lifting. See, e.g.,
Lewis v. Colvin, 548 F. App’x 675, 677 (2d Cir. 2013) (restriction
to light work accounted for physician’s direction to avoid heavy
lifting and carrying).

Plaintiff argues that the ALJ should not

have found that he was capable of jobs requiring occasional or
frequent reaching, handling, and fingering, but has pointed to no
medical evidence of record that would support this conclusion, nor
has the Court found any such evidence in its review.

Accordingly,

plaintiff has failed to establish that the ALJ’s RFC finding was
flawed.

See Sherman v. Comm'r of Soc. Sec., 2015 WL 5838454, at *5

(N.D.N.Y. Oct. 7, 2015) (upholding the Commissioner’s finding of
non-disability where “there is no evidence in the record that
[plaintiff’s] non-severe impairments impose limitations greater
that the residual functional capacity established by the ALJ”).
Plaintiff also argues that the additional evidence submitted
to the Appeals Council compels that conclusion that his right
shoulder tendinopathy was a severe impairment.
plaintiff

points

to

“Ambulatory

Encounter

Dr. Marabel Schneider in September 2014.

Specifically,

Notes”

T. 513-16.

authored

by

In her notes,

Dr. Schneider stated that plaintiff continued to complain of right
shoulder

pain,

which

had

persisted

despite

joint

injections.

T. 514.

Dr. Schneider noted that an MRI had found suprapinatus

tendinopathy and AC joint arthrosis, no tear, which she described
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as “negative for significant findings.”

T. 514-15.

Dr. Schenider

opined that “there may be a depression component to [plaintiff’s
shoulder] pain” and

that it was potentially related to “family

stressors involving daughter’s mental health.”

T. 514.

She

instructed plaintiff to continue using tylenol and to follow up “if
pain persists.”

Id.

Because Dr. Schneider was a resident,

Dr. Nancy S. Clark authored a reviewing note in which she stated
that

she

had

also

seen

plaintiff

and

that

she

agreed

with

Dr. Schneider that his pain was “out of proportion to physician
findings and MRI” and that further investigation was necessary to
“discern[] the cause of the pain.”

T. 515.

Contrary to plaintiff’s argument, nothing in Dr. Schneider’s
or Dr. Clark’s notes suggests that plaintiff’s tendinopathy is a
severe impairment. Neither doctor opined that plaintiff’s pain was
expected to continue for more than 12 months; to the contrary, the
instruction that plaintiff follow up only if his pain persisted
necessarily

implies

an

expectation

that

it

would

resolve.

Moreover, Drs. Schneider and Clark were clear that the pain claimed
by plaintiff was unsupported by clinical findings or the results of
his MRI, Dr. Schneider opined that it likely had a psychological
component, and Dr. Clark indicated that additional investigation
was required to uncover the root causes.
contention

that

“his

impairment

was

Accordingly, plaintiff’s
not

amendable

[sic]

to

treatment” (Docket No. 9-1 at 14) is simply unsupported by the

7

record.

The Appeals Council thus did not err in declining to

review the ALJ’s decision.
B.

The ALJ Did Not Err in Finding that Plaintiff Required a
Sit/Stand Option without Leaving his Workstation

Plaintiff’s final argument is that the ALJ erred in finding
him capable of sitting for four hours, standing for four hours, and
walking for four hours so long as he had the ability to change
positions

every

45

minutes

without

leaving

his

workstation.

Plaintiff contends that “this specific formulation is not supported
by any medical evidence.”

Docket No. 9-1 at 14.

While the “ALJ cannot arbitrarily substitute his own judgment
for a competent medical opinion,” Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999), “the ALJ’s RFC finding need not track any one
medical opinion.” Id.; see also O'Neil v. Colvin, 2014 WL 5500662,
*6 (W.D.N.Y. Oct. 30, 2014)(“Although [an] ALJ’s conclusion may not
perfectly correspond with any of the opinions of medical sources
cited in his decision, he [is] entitled to weigh all of the
evidence available to make an RFC finding that [is] consistent with
the record as a whole.”)(citing Matta v. Astrue, 508 F. App’x 53,
56 (2d Cir. 2013)).
Here,

although

no

medical

source

opined

precisely

that

plaintiff needed to change positions every 45 minutes, the ALJ’s
RFC finding is supported by substantial evidence.

Chiropractor

Kris Kinsley opined that plaintiff needed to change positions from
sitting to standing to walking “frequently,” which he defined as

8

“every 20 minutes.”

T. 237.

The ALJ gave “some weight” to DC

Kinsley’s opinion, noting that it was only “partially consistent”
with the medical evidence of record and that it was contradicted in
some respects by plaintiff’s own testimony.

T. 28-29.

Indeed,

plaintiff testified that he maintained the same position for up to
30 minutes.

See T. 45, 51, 56.

Moreover, consultative examiner

Dr. Elizama Montalvo opined that plaintiff had only a “moderate
limitation” in walking and standing and found no limitations in
sitting.

T. 260-62.

The ALJ was permitted to base her RFC

determination on a combination of the more-restrictive opinion of
DC Kinsely and the less-restrictive opinion of Dr. Montalvo.

See

Blaisdell v. Comm'r of Soc. Sec., 2016 WL 5415778, at *3 (N.D.N.Y.
Sept. 28, 2016) (upholding ALJ’s determination that plaintiff
required a sit/stand option that allowed him to change position
every

40

minutes

without

leaving

his

workstation

where

one

physician opined that he required an option to shift positions at
will and another physician opined that he had no limitations in his
ability to sit, stand, or walk). Accordingly, the Court finds that
remand is not warranted.
For the reasons set forth above, and upon its review of the
record in its entirety, this Court finds that the record contains
substantial evidence to support the ALJ’s determination.
result, the Court upholds the Commissioner’s final decision.

9

As a

CONCLUSION
For the foregoing reasons, defendant’s motion for judgment on
the pleadings (Docket No. 15) is granted, and plaintiff's motion
for judgment on the pleadings (Docket No. 9) is denied.
complaint is dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
July 18, 2017

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The