Sterling v. Social Security Administration, Commissioner

Filing 9

DECISION ON CROSS-MOTIONS: denying 4 MOTION for Order Reversing the Commissioner's Decision and granting 7 Motion for Order Affirming Decision of Commissioner. Signed by District Judge J. Garvan Murtha on 08/29/2012. (wjf)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
BUNNY L. STERLING,

:
:
Plaintiff,
:
:
v.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,
:
:
Defendant.
:
:
___________________________________:

No. 1:11-cv-269-jgm

DECISION ON CROSS-MOTIONS TO EITHER REVERSE OR
AFFIRM THE COMMISSIONER’S DECISION
(Docs. 4, 7)
Plaintiff Bunny L. Sterling, through her attorney, has moved
to reverse the Commissioner’s decision denying her Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act, and the Commissioner has cross-moved for an order affirming
the decision.

(Docs. 4, 7.)

The Commissioner’s Motion is

granted, Sterling’s Motion is denied, and the decision is
affirmed for the reasons that follow.
I.

BACKGROUND
A.

Factual and Procedural History

Ms. Sterling’s November 6, 2009 application for Disability
Insurance Benefits alleged a disability for back and shoulder
disorders beginning February 11, 2009.

(Tr. 16, 145-46.)

Ms.

Sterling claims she suffers from a lumbar disc disorder,
bilateral shoulder and hand arthropathy, reactive airway disease,

and, as a result of her pain, depression and sleep disturbance.
(Tr. 31-67.)

She takes Vicodin and Methocarbam daily for her

pain and muscle spasms.

Her application was initially denied

December 23, 2009, and again denied upon reconsideration on April
2, 2010.

(Tr. 76-78, 79-81, 16.)

Following a March 17, 2011

administrative hearing at which Sterling testified by video (Tr.
31-67), Administrative Law Judge Paul Martin issued an
unfavorable decision on April 8, 2011 finding Sterling capable of
performing a range of sedentary work and not disabled under the
Medical-Vocational Guidelines.

(Tr. 13-30.)

On September 2,

2011, the Appeals Council denied Sterling’s request for review of
the ALJ’s decision, and Ms. Sterling filed this motion for review
under 42 U.S.C. § 405(g) on November 7, 2011.
In February 2009, Sterling, who is currently 38 years old,
was treated at Central Vermont Medical Center for injuries to her
right shoulder, wrist, and neck, caused by a fall.
An x-ray revealed no fractures.

(Tr. at 281.)

(Tr. 304-10.)

Following an

evaluation of her injuries a few days later at Concentra Medical
Center, she was diagnosed with cervical, right shoulder, and
wrist strain.

(Tr. 224.)

Sterling was prescribed Flerexil and

Vicodin, instructed to use a wrist splint, pursue physical
therapy, and ice her injuries.

Id.

Following several therapy sessions, Sterling reported to
Concentra that her symptoms were improving.

2

(Tr. 220-22.)

While

she continued to have difficulties with her shoulder and wrist,
her neck and range of motion had improved.

(Tr. 220.)

Following

the exam, Sterling was cleared for work that did not involve
lifting over ten pounds or reaching over shoulder level, and the
use of her right arm was limited.

(Tr. 222.)

Treated at

Concentra a week later, Sterling reported “some improvement” from
therapy, but complained of difficulties with her shoulder, wrist
and neck.

(Tr. 217-19.)

the same limitations.

She was cleared for work again, with

(Tr. 219.)

A March 2009 MRI revealed some abnormalities with her right
shoulder, and a wrist x-ray revealed soft tissue swelling.
282-83.)

(Tr.

Meeting with Dr. Stuart Williams at Fletcher-Allen

Healthcare that same month, Sterling reported that physical
therapy increased her shoulder pain.

(Tr. 324-25.)

Dr. Williams

recommended Sterling remain off work and discontinue therapy
until her planned meeting with Dr. John Lawlis, an orthopaedic
surgeon.

Id.

Later that March, Dr. Lawlis examined Sterling,

reviewed her MRI, and advised her to return to therapy and “work
aggressively at range of motion and strength.”

(Tr. 317.)

Dr.

Lawlis administered a steroid injection so Sterling could
tolerate the pain due to physical therapy.
Sterling from working for six weeks.

Id.

He restricted

(Tr. 316.)

Treated twice at Fletcher-Allen in April 2009, Sterling
continued to complain of considerable shoulder pain.

3

(Tr. 326-

27.)

In May 2009, she complained of worsened shoulder pain to

Dr. Lawlis.

(Tr. 315-16.)

Although Sterling requested surgery,

Dr. Lawlis indicated shoulder surgery was premature, administered
a second steroid injection and encouraged further physical
therapy.

Id.

In June 2009, Sterling told Dr. Lawlis neither therapy nor
steroid injections had been helpful and was anxious for surgical
intervention.

(Tr. at 314.)

Dr. Lawlis agreed to proceed with

surgery, which took place July 28, 2009.

(Tr. at 242-45.)

Following surgery, Sterling met regularly with Drs. Lawlis
and Williams and she reported her shoulder felt “more
comfortable” and that she was “pleased with her progress.”
at 312, 332.)

(Tr.

In November 2009, she reported steady improvement

and did not appear to need pain medication.

(Tr. 311.)

When she

told Dr. Lawlis that Dr. Williams recommended she never return to
work, Dr. Lawlis encouraged aggressive physical therapy, and
noted that while she could not use her right upper extremity at
all, he would defer, regarding other restrictions, to her primary
care physician.

(Tr. 311.)

A few days later, Dr. Williams noted

Sterling was there “primarily to talk about her ongoing work
disability,” and that she reported “quite a bit of discomfort and
dysfunction of [the] right shoulder, particularly when she tries
to raise [her arm] above 90 degrees.”

(Tr. 333.)

She also

complained of reduced sensation in her arm after surgery, back

4

pain, and hand numbness.

Id.

Dr. Williams concluded Sterling

was “disabled from working due to bilateral shoulder atropathy
and inability to lift regularly over 5 pounds.”

Id.

In late December 2009, Sterling told Dr. Williams she had
re-injured her shoulder while putting on a boot.

(Tr. 364.)

She

was instructed to postpone therapy until she could tolerate a
range of motion with less discomfort and to maintain a “gentle
range of motion.”

Id.

In January 2010, Sterling was treated for the re-injury by a
nurse at Associates of Orthopaedic Surgery, and reported it
occurred while lifting something out of the car on Christmas eve.
(Tr. 368.)

She received a steroid injection and was scheduled to

see Dr. Lawlis.

Id.

In February, she told Dr. Lawlis she had

been progressing with the shoulder until she re-injured it while
putting on a boot.

Id.

Dr. Lawlis noted the discrepancy between

this report and what she had reported in January.

Id.

He

suspected a possible tendon tear and ordered an MRI, which showed
some abnormalities.

(Tr. 367, 370.)

His report notes that while

Sterling reported her primary care physician had given her
permanent disability from employment, he was “not certain of the
reasons for that.”

(Tr. 367.)

In March 2010, Sterling met with Lawlis regarding her MRI
results.

(Tr. 365.)

She reported significant functional

shoulder limitations and asked for surgical intervention.

5

Id.

Sterling was “not at all interested” in pursuing physical therapy
and wanted surgery, which Lawlis did not recommend as a first
choice, but did not find unreasonable.

(Tr. 365.)

The second

surgery was not approved by Workman’s Compensation, and Sterling
did not proceed with it.

(Tr. 399.)

Also in March 2010, Dr. Leslie Abramson, a state agency
physician, reviewed Sterling’s records and concluded she retained
the capacity to perform light work, but could only occasionally
push, pull or reach in any direction with her right upper
extremity.

(Tr. 372-79.)

obesity in his assessment.

Dr. Abramson considered Sterling’s
(Tr. 374.)

In August 2010, Sterling received a steroid injection at
Central Vermont Hospital to address her low back and bilateral
leg pain, and reported this significantly reduced her pain for a
period of three weeks.

(Tr. 416-17, 386, 410.)

In December 2010, Sterling met with Dr. Williams regarding
her shoulder and back issues, and to complete her social security
disability paperwork.

(Tr. 410.)

Sterling complained of

significant functional limitations, id., and Dr. Williams
concluded she could lift up to ten pounds occasionally, could
stand or walk between thirty minutes to an hour, and sit up to
one hour in an eight-hour work day.

(Tr. 404-05.)

Dr. Williams

stated Sterling had limited ability to push or pull with her

6

extremities, and that she had significant postural, manipulative,
and environmental restrictions.

(Tr. 405-07.)

In January 2011, Sterling received a second epidural steroid
injection which she reported provided no pain relief.
413-14.)

(Tr. 411,

A back exam five days later revealed tenderness and

Sterling reported feeling uncomfortable in straight-leg testing,
although strength and sensation in her legs was normal.

(Tr.

411.).
B.

ALJ Decision

At step one of the five-step sequential evaluation process
for determining disability under 20 C.F.R. 404.1520(a), the ALJ
determined Sterling had not engaged in substantial gainful
activity between the onset of her disability on February 11, 2009
and through the “date last insured” on March 31, 2010.1

(Tr.

18.)
At step two, the ALJ found Sterling’s right shoulder injury,
low back injury, and obesity were severe impairments under 20
C.F.R. 404.1520(c), while her clotting disorder, and her anxiety
and panic disorder were not.

(Tr. 18-19.)

1

The ALJ noted that under the insured status requirements
of sections 216(I) and 223 of the Social Security Act, 42 U.S.C.
§§ 416, 423, Sterling’s earnings record shows she had acquired
sufficient quarters of coverage to remain insured through March
31, 2010, referred to thereafter as “date last insured,” and had
to establish disability on or before that date to be entitled to
disability benefits. (Tr. 16.)
7

At step three, the ALJ concluded that through the date last
insured, Sterling’s impairments, alone or in combination, did not
meet or medically equal one of the listed impairments in 20
C.F.R. Part 404, Subpart P, App. 1.

(Tr. 20-21.)

The ALJ noted

the records of Sterling’s shoulder and back impairments did not
evidence an inability to perform fine and gross movements, or
abnormal motor, sensory or reflex function.

(Tr. 21.)

The ALJ

also concluded Sterling’s asthma symptoms did not amount to an
impairment, and that “there is no evidence that the claimant’s
obesity has caused additional limitation such that her
combination of impairments” meets or equals a listed impairment.
Id.
Before proceeding to step four, the ALJ determined Sterling
had the residual functional capacity to perform sedentary work
after considering “all symptoms,” opinion evidence, and assessing
Sterling’s credibility in light of the objective medical
evidence.

The ALJ found that while Sterling testified that

despite treatment and steroid injections, she continued to
experience pain and could only sit for one hour and walk for ten
minutes, her statements concerning the intensity, persistence,
and limiting effects of her symptoms were not credible, to the
extent they were inconsistent with her assessed residual
functional capacity.

8

The ALJ noted Dr. Lawlis, examining her shoulder injury,
described “‘a dramatic amount of pain behavior and guarding’ that
was not consistent with her physical examination.”

(Tr. 23.)

When distracted, Sterling had full motion of her shoulder.

Id.

Following surgery and therapy, Sterling reported improvement
until her re-injury.

Id.

In follow-up treatment, Sterling told

Dr. Lawlis she had been given permanent disability from
employment by her primary care physician, but Dr. Lawlis noted he
was “not certain of the reasons for that.”

Id.

The other

medical records, and Sterling’s wide ranging activities of daily
living, were objective medical evidence supporting the residual
functional capacity.

(Tr. 24.)

At step four, the ALJ determined that through the date she
was last insured, Sterling was unable to perform her past
relevant work as a concrete truck driver, home health aide, bus
driver or school bus driver, because the past work required a
medium level of exertion and thus exceeded her residual
functional capacity.

(Tr. 24.)

Proceeding to step five, the ALJ concluded that given
Sterling’s age, education, work experience and residual
functional capacity, there were jobs in significant numbers in
the national economy which she could have performed.
25.)

9

(Tr. 24-

Considering the testimony of a vocational expert, the ALJ
determined the extent to which Sterling’s limitations eroded the
unskilled sedentary occupational base, and concluded Sterling
could work as a telephone quotation clerk, call-out operator, and
alarm monitor.

(Tr. 25-26.)

The ALJ concluded, therefore, that

Sterling was not under a disability between February 11, 2009 and
March 31, 2010.
II.

ANALYSIS
Ms. Sterling moves to reverse the decision of the

Commissioner on four grounds.

(Doc. 4.)

First, she claims the

ALJ did not properly consider the combined effects of her
impairments, including the effects of her bilateral hand
arthropathy, obesity, and depression, on her severe shoulder and
back disorders.

Second, she claims the ALJ improperly rejected

the opinion of her treating physician.

Third, she claims the ALJ

improperly found her testimony was not credible.

Finally, she

claims the ALJ improperly found she was capable of performing
work existing in significant numbers in the national economy.

As

a whole, she claims, there was substantial evidence she was
disabled.

Id.

In considering the parties’ motions, this Court must afford
substantial deference to the Commissioner’s decision, and limits
its inquiry to a “review [of] the administrative record de novo
to determine whether there is substantial evidence supporting the

10

Commissioner’s decision and whether the Commissioner applied the
correct legal standard.”
(2d Cir. 2002).

Machadio v. Apfel, 276 F.3d 103, 108

A reviewing court will “reverse an

administrative determination only when it does not rest on
adequate findings sustained by evidence having ‘rational
probative force.’” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.
1988) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 230
(1938)).
A.

The ALJ Properly Considered the Combined
Effect of Sterling’s Impairments

The ALJ properly considered the combined effect of
Sterling’s impairments, including her obesity, in determining
residual functional capacity, as required by 20 C.F.R. §
404.1523.

The ALJ’s decision reviews the medical evidence in

detail, and expressly addressed the evidence of Sterling’s
alleged shoulder, back and hip pain, as well as her obesity and
anxiety/panic disorder.

(Tr. 18-19, 23-24.)

In finding several

of these impairments severe, the ALJ noted that Sterling “stands
5'3" tall and weighs 216 pounds,” and that “Bariatric surgery has
been recommended.”

(Tr. 19-20.)

The ALJ also expressly stated

“there is no evidence” Sterling’s “obesity has caused additional
limitations such that her combination of impairments meets or
equals the severity” of a listed impairment.

(Tr. 21.)

The ALJ

also expressly concluded that her anxiety/panic disorder was not
severe, noting evidence the disorder did not require treatment
11

and that her physician had found it only minimally limited her
functioning and mental work activities.

(Tr. 19.)

The ALJ’s discussion and consideration of Sterling’s
impairments is legally sufficient.

See Sevene v. Astrue, 2:10-

cv-302-jmc, 2011 WL 4708793, at *4 (D. Vt. Sept. 15, 2011)
(“Where . . . the ALJ’s decision identifies each of the
claimant’s impairments, the decision is ‘not vulnerable to . . .
reversal’” for failure to consider “all of the claimed
impairments in combination.”)
B.

The ALJ Properly Considered the Opinion of
Sterling’s Treating Physician

The ALJ properly discounted the reliability of a treating
physician’s opinion because it was based on Sterling’s subjective
complaints and was unsupported by medical evidence.

A treating

physician’s opinions are given controlling weight if they are
well supported by medical findings and are not inconsistent with
other substantial evidence.

Rosa v. Callahan, 168 F.3d 72, 78-79

(2d Cir. 1999); SSR 96-2p; 20 C.F.R. § 404.1527(d)(2).

However,

an ALJ may discredit a treating physician’s opinion if it is
based mainly on a claimant’s subjective complaints.

Mastro v.

Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (according less weight
to treating physician’s opinion that was based largely on selfreported subjective complaints and not supported by clinical
evidence); Rodriguez Pagan v. Sec’y of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987) (declining to accord physician’s
12

opinion controlling weight because it relied excessively on
subjective complaints rather than objective medical findings).
Here, Dr. Williams, Sterling’s treating physician, met with
her in December 2010 and was given forms to complete.

Sterling

reported she had significant limitations, including “constant low
back pain” aggravated by walking, bending, and repetitive
movement; she could not stay in a position for more than 20-30
minutes and pain prevented her from lifting “more than 5 pounds
or so;” and she could not raise her arms above shoulder level.
(Tr. 410.)

Dr. Williams completed the forms assessing her

functional capacity and indicated she could occasionally lift up
to ten pounds, could walk or stand between 30 and 60 minutes, and
sit up to one hour in a workday.

(Tr. 404-05.)

A review of the record indicates the ALJ properly discounted
the reliability of Dr. Williams’ opinion because it was based on
subjective complaints and unsupported by medical evidence.

(Tr.

24 (finding “Williams’ assessment persuasive” but “not find[ing]
objective medical evidence to support the degree of restriction”
and stating that “Williams notes in Exhibit 13 that he based his
opinion upon the claimant’s subjective reports”); see also Ex.
13F (Tr. 404-07) (showing Dr. Williams’ responses refer to
“patient’s reports”).)

In addition to the fact that Dr. Williams

cited only “patient’s reports” in support of his assessment, the

13

ALJ noted that the degree of limitation outlined in Dr. Williams’
opinion was unsupported by the record.

(Tr. 24.)

This Court holds there is substantial evidence the ALJ
appropriately discounted Dr. Williams’ opinion because it was
unsupported by objective medical evidence.
C.

The ALJ Properly Evaluated Sterling’s Credibility

The ALJ also properly discounted Sterling’s credibility in
light of the medical evidence and Sterling’s activity level.
“Objective medical evidence ‘is a useful indicator’” to assist in
assessing “‘the intensity and persistence of’ an individual’s
symptoms” and their effects on ability to function.

SSR 96-7p;

see also 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).

Objective

medical findings “tend to lend credibility to an individual’s
allegations about pain or other symptoms and their functional
effects,” and an adjudicator “must consider [objective medical
evidence] in evaluating the individual’s statements.”

Id.

Allegations regarding intensity and persistence of pain,
however, “may not be disregarded solely because they are not
substantiated by objective medical evidence,” although the
absence of such evidence “is one factor” to be considered “in the
context of all the evidence.”

Id.

When statements about the

intensity, persistence, or functionally limiting effects of pain
or other symptoms are not substantiated by objective medical

14

evidence, the ALJ must make a credibility finding based on the
entire record.
Here, the ALJ ruled that while Sterling was “honest in her
presentation,” the overall “objective medical evidence fails to
support a further reduction in her work capacity beyond the
residual functional capacity” of which the ALJ concluded she was
capable.

(Tr. 22.)

Relying on the medical records, Sterling’s

activity level, and Dr. Abramson’s findings, the ALJ concluded
Sterling could work, although with limitations.

(Tr. 22-24.)

The ALJ relied on more than just Sterling’s reported daily
activities, which included preparing her son for school, light
housework, laundry, simple meal preparation with assistance, food
and clothing shopping and spending time with friends.

(Tr. 24.)

He expressly considered Dr. Abramson’s opinion (although he
reasoned that additional evidence suggested Sterling was more
limited than Dr. Abramson believed), and Dr. Williams’ opinion
(which he discounted because no evidence supported Sterling’s
subjective reports or warranted the degree of restriction to
Sterling’s ability to handle, finger objects, sit, stand or
walk).

Id.

There is sufficient medical evidence in the record

supporting the ALJ’s credibility determination.
D.

The ALJ Properly Found There Was Other Work
Sterling Could Perform

The ALJ properly relied on a vocational expert’s testimony
that there were jobs existing in significant numbers in the
15

national economy that Sterling could perform, based on her
residual functional capacity to perform sedentary work, with
additional specific limitations.2

Sterling argues (1) the ALJ

improperly relied on Medical/Vocational Guidelines (“GRIDS”) when
she was affected by non-exertional limitations that should have
precluded their use, and (2) the expert testified that the
limitations identified in Dr. Williams’ opinion would have
precluded employment and therefore Sterling should have been
found disabled.

Both arguments are without merit.

First, the ALJ expressly recognized that when a claimant
can meet all the demands of a level of exertion, the GRIDS direct
a conclusion.

(Tr. 25.)

However, given Sterling’s significant

non-exertional limitations, the ALJ noted that where “a claimant
cannot perform substantially all of the exertional demands of
work at a given level of exertion and/or has nonexertional
limitations, the medical-vocational rules are used as a framework
for decisionmaking,” and noted that Sterling’s abilities were
“impeded by additional limitations.”

Id.

(emphasis added).

The

ALJ engaged a vocation expert “to determine the extent to which
these limitations erode the unskilled sedentary occupational
base.”

Id.

The ALJ properly relied on the expert’s

identification of telephone quotation clerk, call-out operator

2

Those additional limitations are outlined on page 6 of
the ALJ’s decision. (Tr. 21.)
16

and alarm monitor occupations, and Sterling does not argue that
these occupations are inconsistent with the RFC determination.
Second, as explained above, the ALJ properly declined to
adopt Dr. William’s conclusions regarding the degree of
Sterling’s limitations.

Therefore Sterling’s argument that she

should be found disabled based on Dr. William’s assessment fails.
The ALJ, therefore, properly concluded that Sterling could have
performed jobs that existed in significant numbers in the
national economy.
III. CONCLUSION
For these reasons, Plaintiff’s Motion for Order Reversing
the Commissioner’s Decision (Doc. 4) is DENIED.

The Defendant’s

Motion for Order Affirming the Commissioner’s Decision (Doc. 7)
is GRANTED.

The Commissioner’s determination that Sterling is

not entitled to Social Security disability insurance benefits is
hereby AFFIRMED.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 29th
day of August, 2012.
/s/ J. Garvan Murtha
Hon. J. Garvan Murtha
United States District Judge

17