Wilson v. Colvin
DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Defendant's Motion for Judgment on the Pleadings. Signed by Hon. Michael A. Telesca on 6/30/17. (AFB)-CLERK TO FOLLOW UP- The Clerk of Court is directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Represented by counsel, Joyce Wilson (“Plaintiff”) instituted
this action pursuant to Title II of the Social Security Act (“the
Commissioner of Social Security (“the Commissioner”)1 denying her
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
Plaintiff filed for DIB on March 7, 2013, alleging disability
beginning on September 16, 2004, due to a back injury and high
blood pressure. (T.31, 129, 131, 152). Following the denial of the
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
conducted by administrative law judge Connor O’Brien (“the ALJ”).
impartial vocational expert Julie A. Andrews (“the VE”). (T.27-70).
On February 24, 2015, the ALJ issued a decision finding Plaintiff
not disabled during the period beginning September 16, 2004, the
alleged onset date, and ending December 31, 2006, the date last
insured. (T.12-26). The Appeals Council denied Plaintiff’s request
for review, rendering the ALJ’s decision the final decision of the
Commissioner. (T.1-4). This timely action followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
follow, the Commissioner’s decision is affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation procedure
established by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520.
Numerals preceded by “T.” in parentheses refer to pages from
the certified administrative transcript in this matter.
At step one, the ALJ found that Plaintiff last met the insured
status requirements of the Act on December 31, 2006, and that she
has not engaged in substantial gainful activity (“SGA”) during the
relevant period, given the absence of earnings records for this
following “severe” impairments: degenerative disc disease in the
lumbar spine, with herniation and hip pain; and obesity. The ALJ
found that Plaintiff’s high blood pressure and hypercholesterolemia
were not “severe” impairments because the high blood pressure was
controlled with medication, and only conservative treatment (e.g.,
hypercholesterolemia. The ALJ declined to find Plaintiff’s alleged
loss of bladder control to be a “severe” impairment because it has
not been diagnosed by any treating sources, and she did not seek
treatment for it. Finally, the ALJ determined that Plaintiff’s
headaches were not “severe” because Plaintiff noted improvement of
At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R.
consideration to Listing 1.04, but determined that the record did
not contain evidence of the requisite nerve root compression,
spinal arachnoiditis, or lumbar spinal stenosis; nor did it contain
Plaintiff has displayed some difficulty rising out of her chair and
a stiff gait, but she has retained functioning in her legs and is
able to ambulate independently without an assistive device.
Prior to proceeding to step four, the ALJ assessed Plaintiff
has having the residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. § 404.1567(b), with certain
limitations. Specifically, Plaintiff is limited to lifting up to 15
pounds occasionally and 10 pounds frequently; she requires a
sit/stand option that allows her to change position every 60
minutes for up to 5 minutes at a time, without leaving the work
station; she cannot work overhead; she cannot bend or stoop to the
floor; and she can occasionally crouch, balance on narrow, slippery
or moving surfaces, climb, kneel, and crawl.
At step four, the ALJ discussed Plaintiff’s past relevant work
(“PRW”) as a nurse assistant (DOT #355.674-014), which the VE
classified as medium, semi-skilled work (SVP 4). Plaintiff also had
PRW as a psychiatric aide (DOT #355.377-014), which is medium,
semi-skilled work (SVP 4). Within the last 15 years, Plaintiff
performed them at the SGA level, and for a long enough period for
her to learn the skills associated with each job. Because both
Plaintiff’s RFC, the ALJ concluded that Plaintiff is unable to
perform her PRW.
individual age 18-49,” according to the Regulations. She had only
a limited education, having left school in the 9th grade and failed
to obtain an equivalency diploma. The ALJ relied on the VE’s
testimony to find that Plaintiff could perform representative
unskilled (SVP 2), 108,649 jobs in the national economy) and small
product assembly I (DOT #706.684-022, light, unskilled (SVP 2),
368,669 jobs in the national economy). Accordingly, the ALJ entered
a finding of not disabled.
SCOPE OF REVIEW
A decision that a claimant is not disabled must be affirmed if
it is supported by substantial evidence, and if the ALJ applied the
Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct
legal standards is grounds for reversal. Id. Therefore, this Court
first reviews whether the applicable legal standards were correctly
applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
Failure to Discuss Certain Medical Records
Plaintiff contends that the ALJ “failed to mention, weigh, or
explain the medical opinion evidence” of orthopedic surgeon Dr.
Elias M. Nicolas, who opined that Plaintiff “must avoid repetitive
work[.]” (Pl’s Mem. at 17 (quoting T.400)). As an initial matter,
the Court notes that Dr. Nicolas made this statement during 2001,
which was well before the disability onset date of September 16,
treating source for purposes of applying the treating physician’s
presumption of deference if the physician only treated the claimant
before the relevant period. See Monette v. Astrue, 269 F. App’x
109, 112–13 (2d Cir. 2008) (unpublished opn.) (“Monette argues that
the ALJ was required to give controlling weight to Dr. Huckell’s
retrospective opinion under the treating physician rule described
in 20 C.F.R. § 404.1527(d). This argument is unavailing because Dr.
physician during the period in contention.”) (citing Arnone v.
Bowen, 882 F.2d 34, 41 (2d Cir. 1989) (finding that where the
claimant’s claim depended on showing continuous disability from
1977–1980, a doctor who treated him several times in 1974 and 1975,
and once in 1987, was not a “treating physician” within the meaning
omitted); internal citation omitted).
Nicolas’s statement, which, when read in context, is not supportive
of Plaintiff’s assertion that she is totally disabled. On November
27, 2001, Dr. Nicolas indicated that Plaintiff can
[o]nly lift 5 to 10 pounds and must avoid repetitive
work, bending, stooping and squatting but is able to work
in a sedentary position with these restrictions if she is
given the ability to stretch and move around as
T.400. It is clear that Dr. Nicolas did not mean that Plaintiff was
required to avoid all types of repetitive work, but rather was
precluded from work involving repetitive bending, stooping and
squatting. The ALJ’s RFC assessment is not inconsistent with Dr.
Nicolas’s statement since the ALJ included a limitation of no
bending or stooping, and only occasional3 crouching.
Finally, Plaintiff argues that the ALJ failed to consider
independent medical examiner and orthopedic surgeon Dr. Eugene J.
SSR 83-10 defines “occasionally” as “occurring from very little up to
one-third of the time[,]” i.e., “no more than about 2 hours of an 8-hour
workday.” Titles II & XVI: Determining Capability to Do Other Work-the
Med.-Vocational Rules of Appendix 2, SSR 83-10, 1983 WL 31251, at *5 (S.S.A.
Coyle’s notation of “severe straight leg raise” on November 3,
2002. (T.347). As was the case with Dr. Nicolas, Dr. Coyle’s
statement regarding Plaintiff’s condition was made prior to the
relevant period, and Dr. Coyle is not considered a treating source
Furthermore, positive straight leg raising test results, standing
involves the lower back; rather, the claimant must also have nerve
root compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss. See 20 C.F.R. Pt. 404, Subpt. P., Appx. 1,
§ 1.04(A). The ALJ specifically considered this Listing and found
no evidence of the requisite nerve root compression, a finding that
Plaintiff does not contest on appeal.
Plaintiff also faults the ALJ for failing to mention that
independent medical examiner and orthopedic surgeon Dr. Richard
Byrne “noted ‘numbness, tingling weakness and loss of bladder
control.’” (Pl’s Mem. at 17 (quoting T.290 [sic])). The quotation
actually appears on T.291, under the heading “Current Complaints,”
and reads as follows: “She reports numbness, tingling and weakness
in her lower back. She notes some loss of control of bladder, but
not bowel.” (T.291). Contrary to Plaintiff’s intimation, Dr. Byrne
did not diagnose loss of bladder control; rather, he was simply
recording Plaintiff’s subjective complaints. Moreover, Plaintiff
never sought treatment for the alleged loss of bladder control,
which suggests that the condition was not as severe or debilitating
as she alleges. See Navan v. Astrue, 303 F. App’x 18, 20 (2d Cir.
2008) (unpublished opn.) (“[T]he ALJ appropriately relied on the
near absence of any medical records between March 1997 and June
allegedly disabling condition.”) (citing Arnone, 882 F.2d at 39).
In short, it is well settled in this Circuit that an ALJ is
not required to mention or discuss every single piece of evidence
in the record. E.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d
Cir. 1983). “When, as here, the evidence of record permits [the
Court] to glean the rationale of an ALJ’s decision, [the Court]
do[es] not require that he have mentioned every item of testimony
presented to him or have explained why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion
of disability.” Id. (citing Berry v. Schweiker, 675 F.2d 464, 469
(2d Cir. 1982)).
Failure to Properly Evaluate Opinions from Physicians Who
Treated or Examined Plaintiff
Plaintiff next contends that the ALJ did not properly evaluate
the opinions of orthopedists Dr. Terrence M. Daino and Dr. John A.
Dr. Daino opined that Plaintiff was “totally disabled” due to
limitations in her ability to sit, stand, and walk. The ALJ gave
this opinion “little weight” because he treated Plaintiff in 2001,
well before the start of the relevant disability period. Dr. Daino
presumption of deference, since he “was not a treating physician
during the period in contention.” Monette, 269 F. App’x at 112–13
(citing Arnone, 882 F.2d at 41).
Nevertheless, the ALJ referenced the appropriate regulatory
factors to be used when deciding to give a treating physician’s
opinion less than controlling weight, such as (1) the length,
nature and extent of the treatment relationship; (2) the evidence
in support of the treating physician’s opinion; (3) consistency of
the opinion with the entirety of the record; (4) whether the
treating physician is a specialist; and (5) other factors that are
brought to the attention of the Social Security Administration that
tend to support or contradict the opinion. See 20 C.F.R. §§
404.1527(d)(2)(i)–(ii) & (d)(3)–(6). The ALJ noted that Dr. Daino’s
“conclusory statements [were] not supported by a function by
function analysis,” and Dr. Daino himself admitted that he was “not
a back surgeon,” and therefore he “referred [Plaintiff] to another
doctor for further treatment.” (Id.). Dr. Daino’s opinion “the
determination of disability [which] is ultimately reserved for the
Commissioner” was, as the ALJ noted, not entitled to any weight.
See Snell v. Apfel, 177 F.3d 128, 133–34 (2d Cir. 1999) (“The final
Commissioner. Reserving the ultimate issue of disability to the
Commissioner relieves the Social Security Administration of having
to credit a doctor’s finding of disability. . . .”) (internal
With regard to Dr. Orsini, the ALJ noted that he examined
Plaintiff on one occasion, in November of 2004. Dr. Orsini was not
entitled to the treating physician’s presumption of deference for
two reasons. First, he “was not a treating physician during the
period in contention.” Monette, 269 F. App’x at 112–13 (citing
Arnone, 882 F.2d at 41). Second, he does not count as a “treating
relationship with Plaintiff. See 20 C.F.R. § 404.1502 (eff. until
Mar. 26, 2017) (“Treating source means your own physician . . . who
provides you, or has provided you, with medical treatment or
relationship with you. . . .”); Petrie v. Astrue, 412 F. App’x 401,
physician has only examined a claimant once or twice, “his or her
medical opinion is not entitled to the extra weight of that of a
The ALJ properly considered the appropriate
acceptable medical sources such as Dr. Orsini, which are the same
as those applied to treating physicians. As the ALJ noted, the
accuracy of Dr. Orsini’s opinion was compromised by Plaintiff’s
examination. Dr. Orsini himself recognized the limitations caused
by the fact that “a lot of symptom magnification” was evidence on
Plaintiff’s part. (T.313). He did not believe he could discern the
“the true pathology” of Plaintiff’s alleged back pain as shown by
the fact that he requested authorization of objective medical tests
to locate the “proper area for treatment.” (T.313).
In sum, the ALJ’s evaluation of Dr. Daino’s and Dr. Orsini’s
opinions reflects a correct application of the relevant legal
principles, supported by substantial evidence in the record.
III. RFC Not Supported by Substantial Evidence
Plaintiff argues that the ALJ’s RFC assessment was based on a
layperson’s interpretation of raw medical data and misstatements of
fact. Plaintiff faults the ALJ for not drafting the RFC assessment
to align perfectly with the opinions of Drs. Orsini and Daino. As
the Court has already found, however, the ALJ did not err in
declining to give controlling, or even significant weight, to the
opinions of Drs. Orsini and Daino. Furthermore, the fact that an
RFC assessment does not correspond exactly to a medical expert’s
opinion in the record does not mean that the RFC assessment is
“just made up,” Pl’s Mem. at 19. See Matta v. Astrue, 508 F. App’x
53, 56 (2d Cir. 2013) (unpublished opn.) (“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
consistent with the record as a whole.”) (citing Richardson v.
Perales, 402 U.S. 389, 399 (1971) (“We therefore are presented with
the not uncommon situation of conflicting medical evidence. The
trier of fact has the duty to resolve that conflict.”)).
Plaintiff also suggests that the ALJ relied on “the only MRI
in the case” that might have been from a different patient. (Pl’s
unfounded. The MRI that had Plaintiff’s name on it, but not
Plaintiff’s correct birthdate, was taken in 2003. However, the
ALJ’s decision reflects a reference to a different MRI, taken in
2001. (See T.19, referring to Exhibit 3F, p. 7, or T.207)). The ALJ
also noted that “[p]rior MRI results from [Plaintiff]’s worker’s
compensation case in 2001 note chronic low back pain, degenerative
changes at L4-5 and disc protrusion.” (T.19, referring to T.207)).
Thus, it is clear that the ALJ did not consider the 2003 MRI that
Plaintiff contends might have been from a different individual’s
IV. Erroneous Credibility Assessment
Plaintiff contends that the ALJ made “misstatements of fact
[that] can hardly all be named” in assessing the credibility of
Plaintiff’s subjective complaints. (Pl’s Mem. at 21; see also id.
at 22-25). This claim is unfounded.
Plaintiff faults the ALJ for noting that she was “denied
further testing.” Contrary to Plaintiff’s contention, this not a
false statement. Plaintiff herself stated to primary care physician
Dr. Arthur Pellitieri on January 14, 2005—prior to the relevant
disability period—that “[workers] compensation [was] not approving
any new studies pending hearing.” (T.308). Dr. Pellitieri
previously requested a neurology consultation with EMG/NCV with no
request[ed] approval [from] compensation carrier for neurology
consultation with EMG/NCV studies to rule out lumbar radiculopathy
as well as followup MRI per orthopedic recommendations.” (T.308).
Moreover, the ALJ did not use this fact
to draw an adverse
inference against Plaintiff; the notation was made in the context
of the recitation of Plaintiff’s medical history.
Likewise, Plaintiff complains that the ALJ improperly noted
that she “did not seek or request the degree of care that her
allegations would suggest. [She] never scheduled treatment at a
pain center, and discontinued physical therapy (Ex. 1F, p. 12
interested in pain center evaluation”)]; Ex. 5F [(T.444, Plaintiff
“reports minimal improvement [with physical therapy] though able to
perform ex’s [exercises] [without] noticeable difficulty”]; Ex. 6F
[physical therapy records from 4/1/09 to 4/2/09]). [Plaintiff] has
also declined epidural injections recommended by Dr. Daino (Ex. 4F,
p. 76 [T.291)]).” (T.21).
Again, these are not false statements in the ALJ’s decision.
Plaintiff did decline the epidural injections recommended by Dr.
Daino in January of 2002, and Dr. Daino referred her to orthopedic
surgeon Paul Maurer, M.D., because Plaintiff was interested in a
informed by Dr. Maurer that she was not a surgical candidate.
(T.211). On April 3, 2002, Dr. Daino recommended that she “could be
reevaluated by the Pain Center for the epidural injections, but .
. . she adamantly refused.” (Id.). At that point, Dr. Daino
informed her that “her options for work are to be retrained through
VESID but she also stated that she was really not interested in
pursuing that at this time.” (Id.). Also, on September 19, 2003,
Dr. Pellitieri noted that Plaintiff “[s]till refuses to consider
injections or chiropractic treatment.” (T.350). Plaintiff was “not
willing to accept anything other than meds and is asking for
increased pain meds.” (Id.).
“The [Commissioner] is entitled to rely not only on what the
record says, but also on what it does not say.”
Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (citations
omitted). The Court recognizes that a claimant’s lack of treatment,
on its own, is not sufficient to find non-disability. However, the
Commissioner’s discrediting of a claimant’s allegations. It was
allegations of debilitating pain were undermined by her failure to
follow up on the multiple—relatively conservative—treatment options
offered to her such as chiropractic treatment, physical therapy,
3:16-CV-245(MPS), 2017 WL 923903, at *5 (D. Conn. Mar. 8, 2017)
credibility determination. She noted that the [claimant]’s account
of her symptoms and limitations was not credible in light of the
permitted to under SSR 96-7p.4 The ALJ considered the clinical
evidence and treatment notes that stated that the [claimant] has
failed to follow treatment recommendations, as she is allowed to do
in assessing credibility.”) (citing Navan, 303 F. App’x at 21).
Commissioner’s decision is supported by substantial evidence and is
not the product of legal error. Therefore, the Court affirms the
Commissioner’s decision denying benefits, grants Defendant’s motion
for judgment on the pleadings, and denies Plaintiff’s motion for
“[T]he individual’s statements may be less credible if the level or
frequency of treatment is inconsistent with the level of complaints, or if the
medical reports or records show that the individual is not following the
treatment as prescribed and there are no good reasons for this failure.” Titles
II & XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility
of an Individual’s Statements, SSR 96-7P, 1996 WL 374186, at *7 (S.S.A. July 2,
1996), superseded by Titles II & XVI: Evaluation of Symptoms in Disability
Claims, SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016).
judgment on the pleadings. The Clerk of Court is directed to close
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
June 30, 2017
Rochester, New York.
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