Pasicznyk v. Colvin
DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/28/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
instituted this action pursuant to Title II of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner”)1 denying her
application for Disability Insurance Benefits (“DIB”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
On April 25, 2013, Plaintiff filed an application for DIB,
alleging an onset date of May 2, 2001.
(T.333-37), and a date last
insured of December 31, 2005 (T.355).2 Plaintiff alleged disability
Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted, therefore, for Acting
Commissioner Carolyn W. Colvin as Defendant in this suit. No further action need
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).
Citations to “T.” in parentheses refer to pages from the transcript of the
certified administrative record.
based upon, inter alia, a work-related right knee injury, with
degenerative changes and osteoarthritis; left knee degenerative
meniscectomy in June 2004, and osteoarthritis; chronic back pain,
herniation, and continued disc space narrowing in April 2013; and
asthma. (T.367-76, 410-13). Plaintiff’s application was denied
initially on August 5, 2013, and she timely requested a hearing on
August 9, 2013. (T.259-84). Administrative law judge Connor O’Brien
(“the ALJ”) conducted a hearing on March 11, 2015, in Rochester,
New York. Plaintiff appeared with her attorney and testified, as
did an impartial vocational expert (“the VE”). (T.191-249). On
July 14, 2015, the ALJ issued an unfavorable decision. (T.174-90).
The Appeals Council denied Plaintiff’s request for review on
September 15, 2016, making the ALJ’s decision the final decision of
the Commissioner. Plaintiff then timely commenced this action.
Plaintiff and Defendant have cross-moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The Court will discuss the record evidence further
below, as necessary to the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
THE ALJ’S DECISION
established by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520, 416.920.
The ALJ first found that Plaintiff last met the insured status
requirements of the Act on December 31, 2005, and did not engage in
substantial gainful activity during the period from her alleged
onset date of May 2, 2001, through her date last insured or
Plaintiff had the following “severe” impairments: degenerative disc
bilateral degenerative joint disease of the knees.
At step three, the ALJ determined that through the date last
insured, Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. The
ALJ gave particular consideration to Listings 1.02, 1.04, and 3.03,
in connection with Plaintiff’s bilateral knee degenerative joint
The ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R.
§ 404.1567(a) except that she could occasionally lift and/or carry
up to 10 pounds, frequently lift and/or carry less than 10 pounds;
could climb a rope, ladder or scaffold; required a sit stand option
that allows her to change position every 50 minutes, for up to
5 minutes in duration without leaving the workstation; could
surfaces, and climb stairs; could not bend from the waist to the
floor, and could not kneel or crawl; when standing, she could not
work below waist; and she could tolerate up to occasional exposure
to extreme cold, extreme heat, wetness, humidity and air borne
At step four, the ALJ determined that Plaintiff had past
relevant work as a data entry clerk (Dictionary of Occupational
Titles (“DOT”) #203.582-054) sedentary, semi-skilled, SVP 4); data
examination clerk (DOT #209.387-022), sedentary, semi-skilled, SVP
3); and office clerk (DOT #209.562-010) light, semi-skilled, SVP
3). In comparing Plaintiff’s RFC with the physical and mental
demands, the ALJ determined that she was able to perform the
performed, through the date last insured.
The ALJ made an alternative step-finding that, considering
Plaintiff’s age (a younger individual age 18-44), education, work
significant numbers in the national economy that she could have
performed through the date last insured. Specifically, the ALJ
relied on the VE’s testimony to conclude that Plaintiff would have
been able to perform the requirements of representative occupations
such as order clerk (DOT #209.567-014), sedentary, unskilled (SVP
2)), with approximately 19,574 jobs nationally); and table worker
approximately 13,738 jobs nationally. Accordingly, the ALJ found
that Plaintiff was not under a disability as defined in the Act
from the onset date through the date last insured.
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The 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). “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) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Failure to Develop the Record by Obtaining a Treating Source
Plaintiff contends that the RFC is not based on substantial
evidence because the ALJ’s “arbitrary findings are unexplained” and
unsupported by a medical expert opinion. (Pl’s Mem. at 19-21). In
the decision, the ALJ noted that “[a]s for opinion evidence that
existed during the period at issue, or directly relates to the
claimant’s functioning at that time, there is none.” (T.183).
Plaintiff contends that by taking into account the lack of medical
specifically pointed out a gap in the record yet failed to make any
effort to request medical expert opinion evidence to fill the gap.
Defendant counters that the alleged “gap” in the record is illusory
because the record contains her complete medical history, and
Plaintiff’s counsel represented at the hearing that the record
contained all of the evidence relevant to her claim. (T.195).
“Because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record.” Perez v. Chater, 77 F.3d 41, 47
(2d Cir. 1996) (citing Echevarria v. Secretary of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982)). “Whether dealing with a
pro se claimant or one represented by counsel, the ALJ must
‘develop [the claimant’s] complete medical history.’” Lopez v.
Comm’r of Soc. Sec., 622 F. App’x 59, 60 (2d Cir. 2015) (summary
(describing duty to develop record)). “[T]he agency is required
affirmatively to seek out additional evidence only where there are
‘obvious gaps’ in the administrative record.” Eusepi v. Colvin, 595
F. App’x 7, 9 (2d Cir. 2014) (summary order) (quoting Rosa v.
Callahan, 168 F.3d 72, 79 & n. 5 (2d Cir. 1999)). That is not this
case, however. Plaintiff does not contend that the ALJ lacked her
complete medical history.
Moreover, the Commissioner’s regulations provided that where,
as here, a claimant has legal representation, the attorney is
Commissioner’s] attention everything that shows that the claimant
is disabled[.]” 20 C.F.R. § 404.1740(b)(1) (eff. until Apr. 20,
2015); see also Turby v. Barnhart, 54 F. App’x 118, 122–23 (3d Cir.
“[a]lthough the ALJ has the duty to develop the record, such a duty
does not permit a claimant, through counsel, to rest on the
record—indeed, to exhort the ALJ that the case is ready for
exhaustive investigation.” Maes v. Astrue, 522 F.3d 1093, 1097
(10th Cir. 2008) (citation omitted).
confirmed that the record contained “all of the medical evidence,
both favorable and unfavorable,
relevant to the claim.” (T.195).
Plaintiff’s attorney explained that he had tried to get an “opinion
from [Plaintiff’s] current primary, through her [sic] Dr. Kowalski,
Di Angelo3 . . . is no longer practicing,” and therefore he
“couldn’t get a retrospective opinion there.” (T.196). Plaintiff’s
Dr. Timothy Clader, who had treated her for several years prior to
opinions[.]” (Id.). It is unclear to the Court what specifically
Plaintiffs believes that the ALJ should have done at this point
with regard to obtaining opinions from Drs. D’Angelo and Clader.
Nor does Plaintiff indicate other development of the record should
have been conducted or what helpful evidence such development would
Drs. D’Angelo’s and Clader’s treatment notes covering the
relevant period contradict Plaintiff’s claim of total disability
and are not inconsistent with the ALJ’s RFC assessment. Plaintiff
complained to Dr. D’Angelo of back pain and left knee pain in
Prior to May 2, 2001, the alleged onset date and the date on which she
stopped working as a waitress, and through December 21, 2005, the date last
insured, Plaintiff was treated by primary care physician Dr. Carmen A. D’Angelo.
visits dating back to 1989, well before the alleged onset date of
May 2, 2001. (T.675-93). In March 1998, Dr. D’Angelo noted that
Plaintiff had a long history of chronic back pain. (T.675). In
August 2000, approximately 9 months before she stopped working,
Dr. D’Angelo diagnosed Plaintiff with lumbar strain and advised not
to perform heavy lifting or straining but was not taken out of
On May 14, 2001, about two weeks after her onset date,
Orthopaedics, explaining that on April 16th, she
“noticed the onset of right knee” pain while working as a waitress
attributed it to “multiple episodes of twisting and turning that
she does during the normal course of her day at work.” (Id.).
Plaintiff told Dr. Clader that she had no history of knee problems.
tenderness and one equivocally positive sign, but otherwise normal
findings including normal stability. X-rays during the visit were
normal. Dr. Clader recommended a magnetic resonance imaging (MRI)
study to evaluate for medial meniscus tear versus synovitis.
Dr. Clader noted that Plaintiff “quit her job as a waitress
partially because of her concerns of its effect on her overall
mobility and health but partially because she felt that she had
‘done it enough.’” (T.926) (emphasis supplied). Reviewing the MRI
results on June 7, 2001 (T.927, 932-33), Dr. Clader found that
Plaintiff had some underlying degenerative disease, but no evidence
of meniscal pathology; he recommended “conservative modalities”
compression, and “use of oral nonsteroidals.” (T.927).
On June 20, 2001, Plaintiff reported ongoing symptoms to
Dr. Clader; on examination, she was “unchanged from previously.”
(T.927). Dr. Clader diagnosed “a fairly marked synovitic flare” for
which he administered an injection and advised Plaintiff to return
On July 19, 2001,
Dr. D’Angelo noted that Plaintiff’s pain
was going to be managed on medication without physical therapy.
(T.665). Plaintiff reported that she felt “good at this point in
time, she just wanted to make sure she was doing the correct things
before going to California this week on vacation.” (Id.).
Plaintiff did not return to Dr. Clader until January 31, 2002.
(T.927). She reported having been “completely asymptomatic” until
a few weeks previously. On examination, Plaintiff had moderate
chondroitin, and follow up as need.
On May 1, 2002, Plaintiff saw Dr. D’Angelo due to right knee
pain. (T.664). Dr. D’Angelo recommended a right knee brace, aquatic
exercise therapy, Bextra anti-inflammatory medication, and a
glucosamine-chondroitin supplement. On May 2, 2002, Dr. D’Angelo
completed a Workers’ Compensation form stating that Plaintiff had
a right knee strain but was not disabled from regular duties or
work. (T.808). Dr. D’Angelo indicated that Plaintiff could work and
did not specify any work limitations. (Id.). At a visit with
Dr. D’Angelo on June 11, 2002, Plaintiff reported that her knee was
improving with physical therapy. Dr. D’Angelo completed another
Workers’ Compensation form stating that Plaintiff was not disabled
from regular duties. (T.804).
Plaintiff returned to Dr. Clader on August 29, 2002, about
8 months following her last appointment with him. (T.928). Dr.
Clader noted that Plaintiff had done fairly well with respect to
her right knee. Dr. Clader commented that Plaintiff had a very
objective findings were minimal. Dr. Clader observed that it was
difficulty to rate Plaintiff’s Workers’ Compensation schedule loss
because she had no measurable atrophy or range of motion deficits.
(T.928). Nonetheless, he concluded that it seemed reasonable to
assess a 2.5 percent schedule loss of use. (Id.).
On September 17, 2002, Dr. D’Angelo noted that Plaintiff’s
Worker’s Compensation case based on her right knee synovitis was
closed, except for ongoing medication. (T.780). On October 31 and
November 12, 2002, Plaintiff saw Dr. D’Angelo for synovitis flares;
she was an injection on October 31, but refused one on November 12.
(T.662). The physician’s assistant stressed the importance of light
periodic synovitis flares. (T.658-61). However, through November
Plaintiff was not disabled from regular work duties due to her
right knee synovitis. (T.776-77, 785-90, 792).
On May 21, 2004, Dr. D’Angelo completed another Worker’s
Compensation form again stating that Plaintiff was not disabled
from regular duties or work. (T.770).
disabled from regular duties. (T.760, 763-64). There are no further
Worker’s Compensation forms from D’Angelo in the record. Through
her December 31, 2005 date last insured, Plaintiff continued visits
miscellaneous conditions such as an upper respiratory infection and
asthmatic bronchitis. (T.655-57, 667, 757-58). Plaintiff’s knee
pain was managed with Mobic (meloxicam), a non-steroidal antiinflammatory.
treating physicians, Dr. Clader and Dr. D’Angelo, would have
provided a more restrictive RFC assessment than that formulated by
the ALJ. Given both doctors’ clinical findings and treatment notes,
and Dr. D’Angelo’s Worker’s Compensation reports, this was highly
restrictive RFC assessment, it would have been inconsistent with
their relatively benign clinical findings and assessments, and the
ALJ certainly would have considered this inconsistency in assigning
weight to their opinions.
Because it is “‘doubtful that a medical
source statement from any of these providers would have altered the
ALJ’s assessment of Plaintiff’s RFC[,]’” “‘[r]emand is not required
based on the ALJ's failure to request a medical source statement
from one of Plaintiff’s treating physicians.’”
Castle v. Colvin,
No. 1:15-CV-00113(MAT), 2017 WL 3939362, at *3 (W.D.N.Y. Sept. 8,
2017) (quoting Hogan v. Colvin, No. 12-CV-1093, 2015 WL 667906, at
*6 (W.D.N.Y. Feb. 17, 2015)); see also Reices-Colon v. Astrue, 523
supplementation argument is similarly baseless. She identifies no
specific record that was missing, much less explains how it would
have affected her case.”).
RFC Unsupported by Substantial Evidence
It is beyond debate that “[a] ‘period of disability’ can only
commence . . .
while an applicant is ‘fully insured.’”
Bowen, 882 F.2d 34, 38 (2d Cir. 1989) (quoting Sprow v. Bowen, 865
disability, unless she became disabled before December 31, 2005,
the date last insured, she cannot be awarded benefits under the
Act. See id. (“Arnone cannot obtain disability insurance benefits
unless he is eligible for a ‘period of disability.’ He cannot be
entitled to a ‘period of disability’ unless his back problem
rendered him disabled beginning no later than March 1977 and
continuing at least until January 1980.”) (collecting cases). Here,
Plaintiff has not sustained her burden of proving that she was
under a disability as defined in the Act prior to December 31,
In support of her substantial evidence argument, Plaintiff
relies on Worker’s Compensation forms completed by Dr. D’Angelo
beginning on October 21, 2006, indicating that Plaintiff was
disabled from regular duties and could not do any type of work.
(T.702-08, 755). However, the significant shift in Dr. D’Angelo’s
opinion regarding Plaintiff’s functional limitations is directly
attributable to Plaintiff’s unfortunate re-injury of her knee in
September 2006, at her home. Thus, comprehensive view of the record
shows that the Worker’s Compensation forms by Dr. D’Angelo that
post-date December 31, 2005, are not retrospective in nature. And,
as discussed in the foregoing section, the Worker’s Compensation
forms completed by Dr. D’Angelo during the relevant period, prior
to December 31, 20905, directly contradict Plaintiff’s claim of
totally disabling limitations. Thus, these later forms submitted by
Contrary to Plaintiff’s contention, the opinion of independent
medical examiner Dr. Richard J. DellaPorta
is not inconsistent
with the ALJ’s RFC assessment. As Defendant points out, even as
late as October 25, 2007, Dr. Della Porta opined that Plaintiff’s
“right knee would preclude her from doing work which required
standing/walking for more than 2 hours at one time and there should
be no repetitive kneeling, squatting or climbing. (T.483). This
specific function-by-function evaluation by Dr. DellaPorta supports
the ALJ’s RFC assessment that Plaintiff could perform a range of
additional limitations, including restrictions (no kneeling or
climbing, and only occasional squatting) that are the same as, or
assessment is not required to “perfectly correspond with any of the
opinions of medical sources cited in his decision[;]” rather, the
ALJ is “entitled to weigh all of the evidence available to make an
RFC finding that [is] consistent with the record as a whole.” Matta
Erroneous Credibility Analysis
Plaintiff claims that the credibility assessment was flawed
because “[t]he ALJ . . . failed to follow the two-step process for
evaluating [her] allegations.” (Pl’s Mem. at 27). As Plaintiff
notes, the ALJ employs a two-step process in considering the
severity of the claimant’s subjective symptomatology by first
asking whether the claimant has a medically determinable impairment
that could reasonably be expected to cause her alleged symptoms,
and if so, the extent to which those symptoms credibly limit the
claimant’s ability to function in a work setting. See 20 C.F.R.
§ 404.1529; SSR 96-7p, 1996 WL 374186 (S.S.A. July 2, 1996).
Here, the ALJ specifically referenced this two-step process
Plaintiff’s allegations on the disabling severity of her symptoms
were not supported by the evidence in the record as a whole.
(T.181). Plaintiff contends that the ALJ “failed to indicate how
Plaintiff’s contentions are not substantiated by the objective
medical evidence” and asserts “[i]t is unclear from the ALJ’s brief
summary of the treatment evidence as to how Plaintiff’s allegations
are inconsistent with the objective evidence.” (Pl’s Mem. at 2728). Plaintiff then refers to diagnostic imaging results that preand post-date the date last insured and argues that “the diagnostic
imaging evidence supports Plaintiff’s allegations of limitations
relating to her bilateral knee impairments prior to the date last
insured and continuing forward despite surgical intervention.” (Id.
at 28). This argument is unfounded because it relies heavily on
evidence that not only post-dates Plaintiff’s date last insured,
but also post-dates her re-injury of her right knee in September
2006, and subsequent worsening of her condition. Indeed, the 2001
MRI and 2002 x-rays, cited by Plaintiff, did not reveal severe
compartments,” “minimal mucoid degeneration of the posterior horn
of the medial meniscus” with “no evidence of a meniscal tear,” a
“small joint effusion,” and a “small popliteal cyst.” (T.736-37
(emphases supplied). The 2002 x-ray cited by Plaintiff was taken of
the left, not the right knee. (T.900). Moreover, it showed only
“minimal medial joint compartment narrowing” and an “otherwise
normal knee.” (T.900 (emphases supplied). There was “no evidence of
joint effusion or degenerative change.” (Id. (emphasis supplied).
Even if the objective imaging results from the relevant period
showed severe degenerative changes or injuries, which they do not,
a diagnosis without a finding as to the severity of functional
limitations as a result of that diagnosis does not compel a finding
of disability. See Prince v. Astrue, 514 F. App’x 18, 20 (2d Cir.
(unpublished opn.) (citations omitted). The evidence of
record, including the treatment notes discussed in the foregoing
limitations during the relevant time period, do not support a
finding of disability. In physical therapy in 2002 and 2004, as the
ALJ noted, Plaintiff admitted that she could climb stairs, and
generally reported that the only time she had any pain was with
deep squatting. (T.182 (citing T.506, 508-09, 512, 659, 664)). At
the hearing, Plaintiff testified to her limitations during the
relevant time period, and her testimony is not inconsistent with
the ALJ’s RFC assessment. For instance, Plaintiff testified that
she had trouble bending at the waist and reaching forward due to
back pain, and this caused her back to go out “probably . . . maybe
four times” between 2001 to 2005. (T.210-13). When that happened
she needed to use a walker or crutches. (Id.). She was able to
drive he children to school every day, she did housekeeping which
included cleaning, light vacuuming, and laundry. She was able to
carry a full laundry basket up the stairs, but had to place the
basket on the stairs a few steps ahead of her due to her balance
issues. (T.217-18). When grocery shopping, she would use the cart
for more balance and would sometimes sit down to rest on the patio
furniture on display at Wegman’s. (T.218). She was able to cook
meals and do a little baking. (T.220-21). The most she could lift
at once was about 15 pounds, but it would be about 5 pounds if she
had to do it three times a day. (T.221-22). Even after the date
last insured, on October 25, 2007, Dr. DellaPorta wrote that
Plaintiff did “housework including cooking, dishes, vacuuming,
laundry, driving, [and] shopping” and did “yard work including
weeding and trimming the bushes.” (T.483). At that time, she told
Dr. Della Porta that she had “intermittent discomfort in her right
knee precipitated by going down the stairs,” and her ability to
stand/walk was “limited to a little more than 2 hours.” (Id.).
worsened significantly by the time of the administrative hearing,
that was nearly a decade after her date last insured. The relevant
issue is whether Plaintiff’s condition during the relevant period
was so severely disabling as to preclude any substantial gainful
employment. Plaintiff’s contemporaneous statements to her treatment
limitations during the relevant period are inconsistent with a
conclusion that she was unable to perform a limited range of
sedentary work, as determined by the ALJ.
Commissioner’s decision is not legally erroneous and is supported
by substantial evidence. Accordingly, the Commissioner’s decision
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 Court is directed to close this case.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
September 28, 2017
Rochester, New York.
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