Kelly v. Social Security
Filing
18
ORDER denying 9 Plaintiff's Motion for Summary Judgment; granting 16 Government's Motion for Judgment on the Pleadings. Plaintiffs complaint is dismissed with prejudice. The Clerk of Court is directed to close this case.. Signed by Hon. Michael A. Telesca on 12/16/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
NEAL OWEN KELLY, JR.,
Plaintiff,
6:18-cv-06431-MAT
DECISION AND ORDER
-vANDREW SAUL,
Commissioner of Social Security,
Defendant.
____________________________________
INTRODUCTION
Neal Owen Kelly, Jr. (“Plaintiff”), represented by counsel,
brings this action under Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner
of
Social
Security
(“the
Commissioner”
or
“Defendant”), denying his applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).
No. 1.
Docket
The Court has jurisdiction over the matter pursuant to
42 U.S.C. § 405(g).
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.
Nos. 9, 16.1
See Docket
For the reasons set forth below, Plaintiff’s motion
is denied, and Defendant’s motion is granted.
1
Plaintiff styles his motion a “Motion for Summary Judgment.” See Docket
No. 9. However, the Court considers dispositive motions in Social Security cases
pursuant to Fed. R. Civ. P. 12(c), for judgment on the pleadings.
PROCEDURAL BACKGROUND
On August 15, 2014, Plaintiff protectively filed applications
for DIB and SSI, alleging disability as of November 18, 2013, due
to manic depression, degenerative disc disease, spinal stenosis,
intervertebral
syndrome,
lumbar
disc
and “unspecified
disorder
with
arthropathy
at
myelopathy,
lumbago
unspecified
sites.”
Administrative Transcript (“T.”) 17, 119-20, 129-30, 139-40.
claims were initially denied on September 30, 2014.
158.
The
T. 17, 143-
At Plaintiff’s request, hearings were conducted on November
16, 2016, and July 18, 2017, by administrative law judge (“ALJ”)
Elizabeth W. Koennecke.
T. 17, 46-56, 62-99.
An impartial
vocational expert testified at the supplemental hearing.
ALJ issued an unfavorable decision on August 24, 2017.
Id.
The
T. 14-36.
Plaintiff appealed the decision to the Appeals Council, which
denied his request for review on April 27, 2018, making the ALJ’s
decision the Commissioner’s final determination.
T. 1-4.
This
action followed.
THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a).
initially
found
that
Plaintiff
meets
the
requirements of the Act through December 31, 2019.
-2-
The ALJ
insured
status
T. 20.
At step
one of the sequential evaluation, the ALJ found that Plaintiff
performed significant work activity after the alleged onset date,
but the record did not clearly establish that Plaintiff had engaged
in substantial gainful activity for more than a brief period in the
summer of 2014.
At
step
Id.
two,
the
ALJ
impairment” was “severe.”
Plaintiff’s
medically
determined
Id.
that
Plaintiff’s
“back
The ALJ also determined that
determinable
impairments
of
headaches/migraines, obesity, and any mental impairment, did not
cause significant work-related functional limitations and thus were
non-severe.
T. 21-23.
At step three, the ALJ found that Plaintiff’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
T. 23.
The ALJ specifically considered
Listings 1.02 (major dysfunction of a joint); 1.04 (disorders of
the spine); 14.09 (inflammatory arthritis); 1.00 (musculoskeletal
impairments);
11.00
(neurological
(impairments of the immune system).
disorders);
and
14.00
T. 23-24.
Before proceeding to step four, the ALJ found that Plaintiff
retained
the
residual
functional
capacity
(“RFC”)
to
perform
sedentary work, as defined in 20 C.F.R. § 404.1567(a) and 20 C.F.R.
§ 416.967(a), except that he “requires the ability to alternate
-3-
positions every hour or to perform the job standing or sitting
while remaining on task.”
T. 24.
At step four, the ALJ concluded that Plaintiff was unable to
perform any past relevant work.
T. 32.
At step five, the ALJ found that, considering Plaintiff’s age,
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that Plaintiff could
perform, including the representative occupations of ticket taker,
document preparer, and assembler.
T. 33-34.
The ALJ accordingly
found that Plaintiff was not disabled as defined in the Act.
T. 35-36.
SCOPE OF REVIEW
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). 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”).
as
a
“Substantial evidence means ‘such relevant evidence
reasonable
conclusion.’”
mind
might
accept
as
adequate
to
support
a
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
-4-
(quotation
omitted).
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).
review
for
substantial
“The deferential standard of
evidence
does
Commissioner’s conclusions of law.”
not
apply
to
the
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
DISCUSSION
Plaintiff contends that remand is warranted because the ALJ
committed
reversible
error
by
substituting
her
own
opinion
regarding Plaintiff’s RFC for that of competent medical opinion.
See Docket No. 9-1 at 5. Plaintiff argues that the record contains
only one assessment of Plaintiff’s physical abilities following his
lumbar fusion
surgery
in October
2015.
This
assessment
was
completed by James Coleman, M.D., Plaintiff’s treating physician,
and the ALJ gave this opinion only little weight.
Id. at 6-7.
Accordingly, Plaintiff concludes that the ALJ “formulate[d] a
residual functional capacity without the benefit of any medical
source opinion.”
“When
Id. at 8.
assessing
a
disability
claim,
an
ALJ
has
the
responsibility of determining a claimant’s RFC based on all of the
relevant
medical
Commissioner,
No.
and
other
evidence
1:18-cv-00265-MAT,
-5-
of
2019
record.”
WL
Mack
1994279,
at
v.
*4
(W.D.N.Y. May 6, 2019) (citations omitted); see also Snell v.
Apfel,
177
F.3d
128,
133
(2d
Cir.
1999)
(the
ultimate
responsibility to determine a claimant’s RFC rests solely with the
ALJ). “[T]he ALJ is required to articulate the reasons for the RFC
determination,
which
‘must
include
a
narrative
discussion
describing how the evidence supports each conclusion.’”
Quinto v.
Berryhill, No. 3:17-cv-00024(JCH), 2017 WL 6017931, at *5 (D. Conn.
Dec. 1, 2017) (quoting SSR 96-8p, at *7)).
An RFC finding need not correspond to any particular medical
opinion; rather, the ALJ must weigh and synthesize all evidence
available to render an RFC finding that is consistent with the
record as a whole.
Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.
2013); see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)
(“the ALJ’s RFC finding need not track any one medical opinion”).
However,
“[b]ecause
an
RFC
determination
is
a
medical
determination, an ALJ who makes an RFC determination in the absence
of supporting expert medical opinion has improperly substituted his
own opinion for that of a physician, and has committed legal
error.”
(E.D.N.Y.
Hilsdorf v. Commissioner, 724 F. Supp. 2d 330, 347
2010).
Accordingly,
“[a]n
ALJ
is
prohibited
from
‘playing doctor’ in the sense that ‘an ALJ may not substitute his
own judgment for competent medical opinion. . . .
This rule is
most often employed in the context of the RFC determination when
the claimant argues either that the RFC is not supported by
-6-
substantial evidence or that the ALJ has erred by failing to
develop the record with a medical opinion on the RFC.”
Quinto,
2017 WL 6017931, at *12 (citations omitted).
Here, the ALJ assessed an RFC limiting Plaintiff to performing
sedentary work, with the additional limitation that Plaintiff have
the ability to alternate positions every hour, or to work standing
or sitting while remaining on task.
regulations,
sedentary
work
T. 24.
“involves
Pursuant to the
lifting
no
more
than
10 pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.
Although a sedentary
job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties.
Jobs
are
sedentary
if
walking
and
standing
occasionally and other sedentary criteria are met.”
are
required
See 20 C.F.R.
§§ 404.1567(a), 416.967(a).
Plaintiff contends that, given the ALJ’s consideration and
weighing of the opinion evidence offered in connection with his
claim, the ALJ substituted her own judgment for that of competent
medical opinion evidence.
A review of the ALJ’s very detailed
written determination reveals that this is not the case.
As
explained below, the ALJ considered all of the evidence in the
record, including
medical
opinion
evidence,
objective
medical
evidence, and Plaintiff’s own subjective reports of pain, and
explained how this evidence informed the assessed RFC.
-7-
The ALJ’s
consideration of all the evidence as a whole was proper.
See
Matta, 508 F. App’x at 56 (“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 of the evidence
available to make an RFC finding that was consistent with the
record as a whole.”).
With regard to the opinion evidence offered in connection with
Plaintiff’s
claim,
the
ALJ
clearly
explained
in
the
written
determination how the opinions offered by Gilbert Jenouri, M.D.,
the consultative
examiner,
Dr.
Gregorie,
Plaintiff’s
treating
neurosurgeon, and James Coleman, M.D., Plaintiff’s primary care
provider, informed the RFC.
T. 28-32.
For example, the ALJ gave
the opinion offered by Dr. Jenouri “great weight.”
T. 28.
The ALJ
explained how the various limitations assessed by Dr. Jenouri
informed the RFC:
As for the opinion evidence, the established residual
functional capacity is generally supported by the medical
opinion of consultative examiner, Gilbert Jenouri, M.D.
Based on pre-operative examination in September 2014, Dr.
Jenouri determined that the claimant has stable prognosis
with mild limitations in lifting, carrying, standing,
walking, and sitting for long periods with additional
limitations in bending and climbing stairs. Dr. Jenouri
did
not
otherwise
identify
any manipulative
or
environmental limitations or restrictions.
While the Administrative Law Judge does not adopt all of
the limitations identified by Dr. Jenouri with respect to
the postural limitations, Dr. Jenouri’s opinion is
accorded great weight because it is generally supported
by the objective medical evidence that indicates that the
claimant is precluded from performing very heavy, heavy,
medium, and light work activity due to his back
-8-
impairment, but otherwise retains the maximum residual
functional capacity to perform a range of sedentary work
activity. . . . The Administrative Law Judge notes that
the mild limitations in prolonged sitting identified by
Dr. Jenouri are reflected in the residual functional
capacity for the ability to alternate positions every
hour or to perform the job standing or sitting while
remaining on task. However, greater exertional and nonexertional limitations are not supported by the preoperative and post-operative clinical and laboratory
findings from various medical sources.
T. 28.
Likewise, the ALJ explained her consideration of the opinions
offered by Plaintiff’s treating neurosurgeon, Dr. Gregorie.
See
T. 29 (Dr. Gregorie’s opinion that Plaintiff could not work for any
meaningful length of time at his construction job was afforded
“some
weight”
in
determining
the
maximum
residual
functional
capacity, because “the finding that the claimant is unable to
return
to
work
is
an
issue
reserved
to
the
Commissioner
in
determining the claims for Social Security benefits,” and “the
claimant’s work activity involving construction equipment involves
greater physical demands than are contemplated by the residual
functional capacity.”).
The ALJ also explained why portions of Dr. Coleman’s opinions
regarding Plaintiff’s exertional limitations were not supported by
the record and therefore were not included in the RFC.
T. 29-32.
Because Dr. Coleman was a treating source, the ALJ was obligated to
consider the following factors in assessing his opinions: “the
length
of
the
treatment
relationship
-9-
and
the
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.”
Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (quotations,
alterations,
and
citations
§§ 404.1527(c)(1)-(6).
omitted);
see
also
20
C.F.R.
“The regulations also specify that the
Commissioner ‘will always give good reasons in [her] notice of
determination or decision for the weight [she] give[s] [claimant’s]
treating source’s opinion.’” Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)) (alterations in
original).
It is clear to the Court that the ALJ considered the abovementioned factors in weighing the opinions offered by Dr. Coleman,
and gave good reasons for declining to give them controlling
weight.
For example, the ALJ discussed Dr. Coleman’s examinations
of Plaintiff, including that Dr. Coleman did not identify any
significant positive objective clinical findings in May 2014,
August
2014,
August
2016,
and
October
2016,
to
support
the
limitations he identified. T. 30; see also Cichocki v. Astrue, 534
F. App’x 71, 75 (2d Cir. 2013) (“Because Dr. Gupta’s medical source
statement conflicted with his own treatment notes, the ALJ was not
required to afford his opinion controlling weight.”). The ALJ also
-10-
considered Dr. Coleman’s relationship with Plaintiff, including his
treatment of Plaintiff’s back impairment.
See T. 30 (“Dr. Coleman
indicated that he is not treating the claimant for his back
impairment and does not see him [very] often. Instead, Dr. Coleman
specified
in October
2016
that
his
medical
opinion
is based
primarily on the claimant’s subjective self-reports of symptoms and
functional
limitations[.]”).
Further,
the
ALJ
discussed
the
consistency of Dr. Coleman’s opinions with other opinions in the
record. See, e.g., T. 30 (“few medical sources identified problems
with the claimant’s balance or coordination on physical exam.”);
id. (“None of the medical sources noted any ongoing difficulties
with the claimant’s personal hygiene or grooming to indicate any
chronic difficulty using his upper extremity to care for his own
personal needs.”); T. 31 (“Records from [Plaintiff’s] medical
sources do not reflect chronic complaints of difficulty with
prolonged sitting.”).
The ALJ explained that other limitations
assessed by Dr. Coleman, including limitations for lifting and
carrying no more than 10 pounds, standing/walking no more than two
hours, and changing positions every hour, “which fully account for
observations in the record that the claimant needed to shift
positions due to pain behavior,” were incorporated into the RFC.
See T. 31.
Plaintiff’s argument presupposes that it was inappropriate for
the ALJ to consider Dr. Jenouri’s opinion because it was rendered
-11-
prior to his October 2015 surgery.
He argues that Dr. Coleman’s
opinion is the only assessment in the record that post-dates
Plaintiff’s October 2015 surgery.
instant
case
assessment
the
(Dr.
See Docket No. 9-1 at 6 (“In the
administrative
James
Coleman,
transcript
M.D.
-
contains
Tr.
only
608-609)
one
of
the
Plaintiff’s physical abilities completed by acceptable medical
sources following the Plaintiff’s lumbar fusion surgery that took
place on October 6, 2015.”).
Source
Statement
of
Plaintiff refers to the “Medical
Ability
to
do
Work-Related
Activities
(Physical)” completed by Dr. Coleman on October 28, 2016 (Exhibit
B20F), which the ALJ discussed in the written determination.
T. 608-09; T. 29-31.
See
The written determination also contains a
thorough discussion of the ALJ’s consideration of Dr. Jenouri’s
opinion, including that it was rendered prior to Plaintiff’s
October 2015 surgery.
T. 28.
The ALJ explained that although
Dr. Jenouri “did not have the benefit of examining the claimant
after surgery . . . post-operative records do not reflect greater
chronically positive objective clinical findings to support greater
limitations of functioning.”
Id.; see, e.g., T. 28-29 (“pre-
operative MRI scan of the claimant’s lumbar spine taken in May 2014
revealed borderline
to
mild
stenosis
at
the
L2-L3
level
and
probable nerve root impingement at the L5-S1 level that resolved
with lumbar fusion and discectomy at the L5-S1 level with hardware
placement in October 2015.”); T. 29 (“post-operative laboratory
-12-
findings indicate overall improvement in the claimant’s condition
following his lumbar surgery and a brief recuperative period
without recurrence of stenosis or nerve root impingement.
studies
failure.
reveal
stable
alignment
without
evidence
of
Repeat
hardware
The claimant has not been treated for any post-operative
infection or complication of his procedure.
There are no findings
to suggest that his surgical sites are not well-healed.”); see also
T. 26 (“In April 2016, the claimant reported to his treating
orthopedic surgeon that he ha[d] some sensory alteration in both
legs and lies down, but that he is otherwise fairly asymptomatic
when he is ‘up and about.’
In August 2016, the claimant’s only
complaints to his primary care provider were related to skin
lesions or ring worm.
On repeat occasions, the claimant denied
weakness, poor balance, gait abnormality, and decreased sensation
in his extremities.”) (internal citations omitted).
The ALJ did
not substitute her own judgment for a competent medical opinion;
rather,
she
Plaintiff’s
relied
on
condition
evidence
did
not
in
the
worsen
record
following
showing
his
that
surgery,
including Plaintiff’s own statements to his medical providers.
Plaintiff has not identified any specific evidence indicating that
his
condition
worsened
following
his
October
2015
surgery.
Accordingly, the ALJ’s reliance on Dr. Jenouri’s opinion was
proper.
-13-
Plaintiff cites to various cases where the Court determined
that the ALJ’s RFC was based on his or her own interpretation of
the medical record.
See Docket No. 9-1 at 8-10.
by Plaintiff are inapposite.
The cases cited
The Court is cognizant that an ALJ
may not assess a plaintiff’s RFC without the benefit of any medical
opinion evidence.
However, in this case, the ALJ did not assess
the RFC in a vacuum; rather, she determined Plaintiff’s RFC by
weighing all of the evidence in the record, including opinions
offered
by
three
different
medical
sources
-
Drs.
Jenouri,
Gregorie, and Coleman - and provided a detailed explanation as to
how the limitations offered by these sources were or were not
incorporated into the RFC.
Plaintiff requests that the Court remand this case for further
consideration
of
Dr.
Coleman’s
opinions
and/or
for
development of the record.
See Docket No. 9-1 at 10.
above,
considered
further
the
ALJ
thoroughly
Dr.
Coleman’s
As noted
opinions,
offering over two pages of explanation as to why she declined to
give them controlling weight.
See T. 29-32.
Accordingly, the
Court does not believe that further consideration of these opinions
would be appropriate or helpful in this instance.
To the extent Plaintiff argues that the ALJ erred by not
further developing the record, the Court finds that remand on this
basis is not warranted.
are
perceived
The Court is cognizant that where there
deficiencies
in
the
-14-
record,
the
ALJ
has
an
affirmative obligation to develop it.
See Rosa, 186 F.3d at 79;
see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1998) (“Because
a hearing on disability benefits is a non-adversarial proceeding,
the ALJ generally has an affirmative obligation to develop the
administrative record.”).
However,
“where there are no obvious
gaps in the administrative record, and where the ALJ already
possesses
a ‘complete
medical history,’
the
ALJ is
under no
obligation to seek additional information in advance of rejecting
a benefits claim.”
F.3d at 48).
medical
Rosa, 168 F.3d at 79 n.5 (quoting Perez, 77
Here, the record contains over two hundred pages of
records
(see
T.
417-640),
including
opinion
offered by both consultative and treating sources.
evidence
Remand for
further development of the record is not required in this instance.
See Tankisi v. Commissioner, 847 F. Supp. 2d 513, 518 (W.D.N.Y.
2012) (further development of the record was not necessary, as the
plaintiff’s medical records were complete, and the plaintiff was
examined by both medical and psychological experts), aff’d, 521 F.
App’x 29 (2d Cir. 2013).
In sum, Plaintiff’s contention that the ALJ assessed an RFC
without the benefit of opinion evidence is belied by the record.
The ALJ explained, by citing to specific evidence in the record,
how she assessed Plaintiff’s RFC.
The ALJ’s reliance on this
evidence, including Dr. Jenouri’s opinion, was proper in this
instance.
See Graham v. Colvin, No. 13-CV-940S, 2014 WL 5465460,
-15-
at *3 (W.D.N.Y. Oct. 28, 2014) (“the opinions of consultative
physicians and State agency consultants can constitute substantial
evidence where . . . they are consistent with the other evidence in
the record.”); see also Brogdon v. Berryhill, No. 17-CV-7078(BCM),
2019 WL 1510459, at *10 (S.D.N.Y. Mar. 22, 2019) (“If the opinion
of a treating physician is either absent or deemed not controlling,
the opinions of consultative examiners and state agency reviewers
may
provide
substantial
determination.”).
evidence
to
support
an
ALJ’s
RFC
Accordingly, remand is not required on this
basis.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 9) is denied, and the Commissioner’s
motion for judgment on the pleadings (Docket No. 16) is granted.
Plaintiff’s complaint is dismissed with prejudice.
The Clerk of
Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
December 16, 2019
Rochester, New York
-16-
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