Feliciano v. Colvin
DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 14 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 8/17/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Plaintiff Ashley Feliciano(“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
application for disability insurance benefits (“DIB”).
before the Court are the parties’ competing motions for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
For the reasons set forth below, plaintiff’s motion is
denied and defendant’s motion is granted.
November 23, 2011, alleging disability due to back and neck pain,
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
traumatic stress disorder (“PTSD”).
requested a hearing before an administrative law judge (“ALJ”),
which occurred on December 4, 2012, before ALJ William Manico.
T. 34-64, 70-85.
On December 26, 2012, ALJ Manico issued a
decision in which he found plaintiff not disabled as defined in the
The Appeals Council denied plaintiff’s request for
Plaintiff commenced an action in this Court
seeking review of ALJ Manico’s decision, which was resolved when
plaintiff and the Commissioner stipulated to remand the matter for
On remand, a second hearing was held before ALJ Connor O’Brien
on December 9, 2015.
ALJ O’Brien issued a decision on
March 15, 2016 in which she found plaintiff not disabled as defined
in the Act.
The Appeals Council did not assume
jurisdiction within 60 days, rendering ALJ O’Brien’s decision the
final determination of the Commissioner.
commenced the instant action.
The ALJ’s Decision
Initially, the ALJ found that Plaintiff met the insured status
requirements of the Act through September 30, 2016.
step one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged
in substantial gainful activity since September 1, 2011, the
alleged onset date.
At step two, the ALJ found that plaintiff
had the severe impairments of fibromyalgia, cervical and lumbar
degenerative disc disease, carpal tunnel syndrome, obesity, heart
murmur, interstitial cystitis, anxiety disorder, depression, and
opioid and alcohol dependence.
At step three, the ALJ found
impairments that met or medically equaled a listed impairment. Id.
Before proceeding to step four, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to perform light
work as defined in 20 CFR 404.1567(b) with the following additional
limitations: can lift and/or carry a maximum of 10 pounds; can sit
for six hours, stand for four hours, and walk for two hours;
requires a sit/stand option that allows her to change position
every hour for up to five minutes without leaving the workstation;
can occasionally stoop, crouch, climb, kneel, crawl, and balance on
narrow, slippery, or moving surfaces; can tolerate occasional
exposure to extreme heat, extreme cold, wetness, humidity, and
airborne irritants; can frequently, but not constantly, finger and
handle; can perform simple work and occasionally make work-related
decisions; can adjust to occasional changes in work setting; can
occasionally interact with the public, but cannot perform teamwork;
can work to meet daily goals, but cannot maintain an hourly,
machine-drive, assembly line production rate; and requires up to
three additional, short, less-than-five-minute unscheduled breaks
beyond normal scheduled breaks.
At step four, the ALJ
found that plaintiff was unable to perform any past relevant work.
plaintiff’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that
plaintiff can perform.
Accordingly, the ALJ found that
plaintiff was not disabled.
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).
Here, plaintiff makes the following arguments in favor of her
motion for judgment on the pleadings: 1) the ALJ violated the
treating physician rule; and 2) the ALJ used the incorrect legal
standard in assessing plaintiff’s credibility.
For the reasons
discussed below, the Court finds these arguments without merit.
The ALJ did not Violate the Treating Physician Rule
controlling weight to a treating physician’s opinion when that
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
§ 404.1527(c)(2); see also Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003). An ALJ may give less than controlling weight to
a treating physician's opinion if it does not meet this standard,
must “comprehensively set forth [his or her] reasons for the
weight assigned to a treating physician’s opinion.” Halloran v.
§ 404.1527(c)(2) (“We will always give good reasons in our notice
claimant's] treating source's opinion.”).
The ALJ is required to
frequency of examination; the nature and extent of the treatment
relationship; the relevant evidence, particularly medical signs and
laboratory findings, supporting the opinion; the consistency of the
opinion with the record as a whole; and whether the physician is a
specialist in the area covering the particular medical issues” in
determining how much weight to afford a treating physician’s
opinion. Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(quotation marks, alterations, and citations omitted); see also 20
C.F.R. §§ 404.1527(c)(1)-(6). In this case, plaintiff alleges that
the ALJ failed to properly apply the treating physician rule to the
opinions of M. Elizabeth Michaels, M.D. (“Dr. Michaels”), and
Donovan Holder, M.D. (“Dr. Holder”).
The ALJ Properly Afforded Little Weight to Dr.
Dr. Michaels, a psychiatrist, completed a medical source
statement on December 19, 2012 in which she opined that plaintiff’s
abilities to abide by occupational rules/regulations and be aware
of normal hazards and make necessary adjustments to avoid those
hazards were good; her abilities to comprehend and carry out simple
instructions, remember work instructions, respond appropriately to
independently on a job, exercise appropriate judgment, concentrate
and attend to a task over an eight-hour period, make simple workrelated
customary work pressures in a work setting including production
requirements and demands were fair; and her abilities to remember
detailed instructions and complete a normal workday on a sustained
basis were poor. T. 565-67.
Dr. Michaels further opined that
plaintiff’s condition was likely to deteriorate if she were placed
under stress, that her condition was likely to produce good days
and bad days, that she would likely be absent from work for more
than four days per month due to her impairments, and that she was
able to work for only two hours per day.
explaining that: (1) it was issued after Dr. Michaels had met with
plaintiff only two times; (2) the form completed by Dr. Michaels
provided for only four categories of functioning with overly broad
definitions; (3) Dr. Michaels merely checked off boxes and provided
little narrative to explain how she had reached her conclusions;
(4) Dr. Michaels offered no explanation for her opinion that
plaintiff could work for only two hours per day and would be absent
for more than four days per month, and plaintiff’s treatment
records do not support such a conclusion; and (5) plaintiff’s
activities “establish greater capacity than opined.”
Plaintiff contends that the ALJ erred in affording little
weight to Dr. Michaels’ opinion.
In particular, plaintiff argues
that (1) the ALJ should not have taken into account the fact that
Dr. Michaels had seen her only twice; (2) the ALJ should not have
credited the opinion of consultative examining psychologist Kevin
Duffy, Psy.D. (“Dr. Duffy”), because Dr. Duffy met with plaintiff
only once; (3) the ALJ should not have considered the use of a form
less persuasive; and (4) the ALJ failed to cite the specific
activities of plaintiff’s that were inconsistent with Dr. Michaels’
These arguments are without merit.
plaintiff at the time she provided her opinion, the applicable
regulations expressly instruct the ALJ to consider “[the] [l]ength
of the treatment relationship and the frequency of examination” and
determining how much weight to afford a treating physician’s
20 C.F.R. §404.1527(c)(2)(i).
It was therefore
not error for the ALJ to note and take into consideration the fact
rendering her opinion.
Contrary to plaintiff’s argument, the ALJ
plaintiff’s previous records from her treatment at Wayne Behavioral
Health, discussing those records in detail and explaining that the
Accordingly, the ALJ did not err in taking into
relationship with plaintiff in determining the weight to afford her
Dr. Duffy’s opinion.
“It is well settled that an ALJ is entitled
to rely upon the opinions of consultative examiners, and such
written reports can constitute substantial evidence.”
Astrue, 2012 WL 3096428, at *6 (W.D.N.Y. July 30, 2012), aff’d, 729
F.3d 172 (2d Cir. 2013). By definition, a consultative examiner is
not a treating physician and will see the claimant only on a
discrete, limited basis.
An ALJ is nonetheless permitted to
consider the opinion of a consultative examiner in light of the
record as a whole and give it an appropriate amount of weight.
Here, the ALJ gave Dr. Duffy’s opinion some weight because of its
consistency with the record and because of Dr. Duffy’s expertise.
Plaintiff has cited no authority to support the proposition that
this was improper.
With respect to the form used by Dr. Michaels, while it is
true that the use of a form or questionnaire does not necessarily
support rejecting a treating physician’s opinion, the ALJ was
clearly entitled to take into account the inherent flaws in the
form itself. Specifically, the ALJ noted that the form in question
went from “good,” defined as “limited but satisfactory,” to “fair”,
unsatisfactory performance at unpredictable times,” neither of
The ALJ also properly took into account the fact that,
despite being there being a space for a written comment on each
question on the form, Dr. Michaels provided very little narrative
or explanation for how she reached her opinion.
flaws in the form completed by Dr. Michaels did not relieve the ALJ
of her obligation to consider the substance of the opinion, the ALJ
Dr. Michaels’ assessment. See Hoffman v. Comm’r of Soc. Sec., 2014
WL 6610059, at *3 (N.D.N.Y. Nov. 20, 2014) (noting that “the better
an explanation a source provides for an opinion, the more weight
[the Commissioner] will give that opinion” and that “[f]orm reports
in which a physician’s obligation is only to check a box or fill in
a blank are weak evidence”) (internal quotations omitted).
Plaintiff’s argument that the ALJ did not specifically discuss
her activities of daily living is simply incorrect.
explained that plaintiff had “nearly normal activities of daily
living,” including cooking daily, cleaning her house, and doing
and that she was able to live with a roommate, travel to
North Carolina, help her pregnant daughter, and assist her son with
T. 580, 584-85.
These activities are inconsistent
with Dr. Michaels’ assessment that plaintiff was capable of working
for only two hours per day.
An ALJ is permitted to take into
account conflicts between a claimant’s testimony and a treating
See Roma v. Astrue, 468 F. App’x 16, 19
(2d Cir. 2012) (ALJ properly declined to accord controlling weight
to treating physician’s opinion where it “conflicted with [the
plaintiff’s] own testimony that he could perform a reasonably broad
range of light, non-stressful activities at or near his home,
performing the activities of daily living while his wife worked
In sum, and for the reasons set forth above, plaintiff has not
Dr. Michaels’ opinion.
The Court therefore rejects plaintiff’s
argument that the ALJ violated the treating physician rule in
assessing Dr. Michaels’ medical source statement.
Dr. Holder’s Opinion
Dr. Holder, a pain specialist, completed a medical source
statement on December 6, 2012, and reaffirmed that statement in
T. 532-34. Dr. Holder opined that plaintiff could
occasionally climb, balance, stoop, crouch, kneel, crawl, climb
stairs, reach, push, and pull.
He further opined that she
could stand for a total of four hours during an eight hour day,
walk for a total of one hour during an eight hour day, and sit for
a total of six hours during an eight hour day.
Dr. Holder, plaintiff could lift and carry ten pounds at one time,
and could lift and carry ten pounds for up to six hours per day.
Dr. Holder opined that plaintiff was required a sit/stand
option, that she was likely to have good days and bad days, and
that she would likely be absent from work about three days per
month as a result of her impairments.
Dr. Holder indicated
that plaintiff’s symptoms would frequently be severe enough to
interfere with the attention and concentration needed to perform
even simple work tasks and plaintiff should not engage in prolonged
standing or repetitive bending or twisting.
In assessing plaintiff’s RFC, the ALJ afforded some weight to
Dr. Holder’s opinion.
Indeed, the ALJ’s RFC finding incorporates
Dr. Holder’s stated limitations on lifting, walking, sitting,
standing, the necessity for a sit/stand option, and limitations in
See T. 580.
To the extent she did not afford
controlling weight to Dr. Holder’s opinion, the ALJ explained that
it was not fully consistent with the other evidence of record,
including plaintiff’s reported activities of daily living, the
opinion of consultative examiner Dr. Elizama Montalvo, the opinion
of state agency source Dr. Mary Payne, and plaintiff’s treatment
In particular, the ALJ noted that plaintiff’s
treatment records offered no support for Dr. Holder’s opinion that
she would need to be absent from work for three days per month.
The ALJ properly afforded some weight to Dr. Holder’s opinion.
As the ALJ discussed, Dr. Holder’s opinion was inconsistent, in
consistently showed that plaintiff had a full range of motion, full
strength, and no abnormalities in her extremities.
plaintiff’s primary care physician, Dr. Eddy Laroche, consistently
and over the course of many years assessed plaintiff with normal
physical examinations. See, e.g., T. 475, 478, 480, 952, 957, 960,
971, 975, 979, 983.
Plaintiff argues that the ALJ should not have considered Drs.
Montalvo and Payne’s opinions in determining that Dr. Holder’s
rejecting a treating physician’s opinion where they are part of
other substantial evidence that is inconsistent with the treating
Williams v. Colvin, No. 14-CV-947S, 2017 WL
3404759, at *7 (W.D.N.Y. Aug. 9, 2017) (quotation omitted); see
also Diaz v. Shalala, 59 F.3d 307, 313 n. 5 (2d Cir. 1995) (“the
opinions of nonexamining sources[may] override treating sources’
opinions provided they are supported by evidence in the record”).
The ALJ was permitted to consider the opinions of Drs. Montalvo and
Plaintiff’s argument that the ALJ should not have considered
her activities of daily living in assessing Dr. Holder’s opinion
fares no better here than it did with respect to Dr. Michaels’
As discussed above, inconsistencies between a claimant’s
activities of daily living and a treating physician’s opinion are
a valid consideration for the ALJ.
The ALJ’s decision to afford some weight to Dr. Holder’s
opinion was proper and based on the appropriate legal standard.
The ALJ articulated good, appropriate reasons for the weight
afforded, and no violation of the treating physician rule occurred.
The ALJ Properly Assessed Plaintiff’s Credibility
Plaintiff’s final argument is that the ALJ failed to give good
reasons for her assessment of plaintiff’s credibility.
“It is the function of the [Commissioner], not [the Court],
to resolve evidentiary conflicts and to appraise the credibility of
the witnesses, including the claimant.
The ALJ has discretion to
independent judgment ... [which he must do] in light of medical
findings and other evidence regarding the true extent of the
20 F. Supp. 3d 377, 390 (W.D.N.Y. 2014) (internal quotations and
In this case, the ALJ found plaintiff not credible because:
(1) her self-reported activities of daily living were inconsistent
with her claims; (2) she had significant lapses in treatment for
assistance in quitting smoking despite being told that she could
not receive surgery unless and until she quit; (4) she has not been
compliant in taking medications she claimed were helpful.
The Court finds no error in the ALJ’s assessment of plaintiff’s
“An ALJ is entitled to take a plaintiff’s activities of daily
Pennock v. Comm’r of Soc. Sec., 2016 WL 1128126, at *5 (N.D.N.Y.
Feb. 23, 2016), report and recommendation adopted, 2016 WL 1122065
(N.D.N.Y. Mar. 22, 2016). Contrary to plaintiff’s argument, “[t]he
issue is not whether [plaintiff’s] limited ability to undertake
normal daily activities demonstrates her ability to work.
the issue is whether the ALJ properly discounted [plaintiff’s]
inconsistent with other evidence.”
Morris v. Comm’r of Soc. Sec.,
2014 WL 1451996, at *8 (N.D.N.Y. Apr. 14, 2014). Here, plaintiff’s
claims about the nature and severity of her symptoms was plainly
subsequently help care her newborn grandchild.
plaintiff’s claims about her ability to sit for extended periods of
time are plainly called into question by the fact that she rode in
a car to North Carolina.
Moreover, plaintiff’s own physicians
example, plaintiff testified that she could stand for only five to
ten minutes before she would need to sit down (see T. 616), while
Dr. Holder opined that she could stand continuously for four hours
Similarly, plaintiff claimed she could sit for only ten
minutes before she would have to stand (T. 619), while Dr. Holder
opined that she could sit continuously for six hours (T. 533).
assessing plaintiff’s credibility.
Regarding plaintiff’s lapses in treatment, “[a]n ALJ can make
failure to follow a treatment regimen if the applicant does not
have a good reason for the lapse, but the ALJ first must ascertain
the applicant’s reason for noncompliance.”
Mashaw v. Colvin, 2014
WL 3956643, at *11 (N.D.N.Y. Aug. 13, 2014).
Here, the ALJ asked
plaintiff why she had stopped seeking treatment, and plaintiff
claimed it was because she did not have a ride.
T. 614, 624-25.
However, and as the ALJ noted, plaintiff apparently never reported
to any of her health care providers that she was having difficulty
finding a ride to her appointments.
Accordingly, the ALJ did not
find that plaintiff had a good reason for the lapses in her
treatment, a determination which the Court finds was appropriate.
Turning to the issue of plaintiff’s smoking, plaintiff argues
that the ALJ should have taken into account the nature of nicotine
However, the ALJ did not fault plaintiff for having continued to
smoke, but for having actively refused help in quitting, including
declining medication and failing to comply with a mental health
referral, despite having been informed by her physicians that she
needed to quit in order to obtain surgery.
While an ALJ
may not base a credibility determination solely on a failure to
quit smoking (see Goff v. Astrue, 993 F. Supp. 2d 114, 128
consideration (see Valdez v. Colvin, 232 F. Supp. 3d 543, 557
(S.D.N.Y. 2017); cf. Monette v. Colvin, 654 F. App'x 516, 519
testimony based in part on his failure to stop smoking marijuana in
order to permit more effective treatment of his impairments with
Similarly, the ALJ did not err in considering
plaintiff’s failure to take her medications in assessing her
See, e.g., Nicholson v. Colvin, 2015 WL 1643272, at
particularly because she had continued counsel from her treatment
providers to maintain the medication regimen.”).
For the foregoing reasons, the Court finds that the ALJ
properly assessed plaintiff’s credibility and provided good reasons
for her assessment.
Accordingly, the Court will not disturb the
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 9) is denied and the Commissioner’s motion
(Doc. 14) is granted.
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
August 17, 2017
Rochester, New York.
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