Coulter v. Social Security Administration, Commissioner
Filing
18
OPINION AND ORDER: The Court DENIES Plaintiff's 14 Motion to Reverse Decision of Commissioner and GRANTS Defendant's 17 Motion for Order Affirming Decision of Commissioner. Signed by Judge John M. Conroy on 5/4/2012. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Scott R. Coulter,
Plaintiff,
v.
Civil Action No. 2:11-CV-173
Michael J. Astrue,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 14, 17)
Plaintiff Scott Coulter brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the Commissioner
of Social Security (“Commissioner”) denying his application for disability insurance
benefits for a closed period of disability from October 1, 2008 through August 31, 2009.
He has already been adjudged disabled as of September 1, 2009. Pending before the
Court are Coulter’s motion to reverse the Commissioner’s decision (Doc. 14), and the
Commissioner’s motion to affirm the same (Doc. 17). For the reasons stated below, the
Court DENIES Coulter’s motion and GRANTS the Commissioner’s motion.
Background
Coulter was fifty-four years old on his alleged disability onset date of
October 1, 2008. He has a high school education, and worked as a carpenter. He also has
experience working as a hair stylist at his parents’ and then his own salon. (AR 473.) He
is married, and has three adult sons and five grandchildren. (AR 164, 329, 473.)
On January 7, 2000, Coulter was involved in a serious motor vehicle accident,
resulting in numerous injuries, including a head injury, an open fracture to his left arm,
fractured ribs and vertebrae, a deep cut over his left eye, a ruptured Achilles tendon in his
left leg, a meniscal tear, a severed ligament in his left leg, and multiple abrasions and soft
tissue contusions. (AR 474.) Following the accident, Coulter underwent over a dozen
surgeries and procedures, some of which were unsuccessful and had to be re-done. (AR
166, 474.) Despite his injuries from the accident, Coulter returned to work in
approximately April 2001 and worked “more or less continuously” until October 2008,
when he experienced exacerbation of his symptoms. (Doc. 15 at 2.) Since the accident,
Coulter has suffered from left shoulder problems; low back pain; leg, knee, and hip pain;
decreased hand strength; hypothyroidism; coronary artery disease; hypertension; sleep
apnea; occasional migraine headaches; and hypercholesterolemia. Additionally, he has
suffered from depression, fatigue, and lack of motivation. (AR 475.)
On November 19, 2009, Coulter filed an application for disability insurance
benefits. Therein, he claims that, beginning on October 1, 2008, the following illnesses,
injuries, or conditions limited his ability to work:
Orthopedic injuries, left shoulder pain/left achillies [sic] tendon pain, knee
pain, both knees/poor mobility, right shoulder pain/limited motion, left
hand weakness, lower back pain/extends down left leg, hip pain, left ankle
pain and weakness, heart condition, hypothyroidism/depression/anxiety/
gout[,] . . . . Had several surgeries to fix multiple injuries from sever[e]
auto accident. The injuries have not healed well and conditions are
worsening. Orthopedic injuries prevent work and concentration issues from
depression. Heart condition getting worse. Need to take [medication] for
anxiety. Auto accident injured legs and back[.]
(AR 147.) Coulter further alleges that his heart condition caused shortness of breath; and
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that he had a thyroid condition which caused fatigue. (Id.) He explains that these
conditions resulted in him being unable to lift, carry, stand, use tools, or climb steps;
being anxious and worried; and having “significant anger and rage” towards the person
who caused the accident. (Id.) Coulter’s application was granted, but with a disability
onset date of September 1, 2009 instead of October 1, 2008, as claimed. (AR 77-79, 8983.) This decision was affirmed on reconsideration, and Coulter timely requested an
administrative hearing to contest the disability onset date. (AR 101.)
A hearing was conducted on October 14, 2010 by Administrative Law Judge
(“ALJ”) Edward Hoban. (AR 52-76.) Coulter appeared and testified, and was
represented by an attorney. Vocational expert (“VE”) Christine Spalding also testified at
the hearing. On January 27, 2011, the ALJ issued a decision finding that Coulter was not
entitled to an earlier onset date of disability and was not under a disability, as defined in
the Social Security Act, from October 1, 2008 through August 31, 2009. (AR 19.)
Nonetheless, the ALJ affirmed that, “under a liberal application of the . . . MedicalVocational Guidelines,” Coulter was disabled as of September 1, 2009, given that he
turned fifty-five years old on December 10, 2009. (Id.; see AR 78.) A few months later,
the Decision Review Board notified Coulter that it was affirming the ALJ’s decision,
rendering it the final decision of the Commissioner. (AR 1-5.) Having exhausted his
administrative remedies, Coulter filed the Complaint in this action on June 29, 2011.
(Doc. 1.)
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ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
The claimant is presumptively disabled if the impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (“RFC”), meaning “the most [the claimant] can
still do despite [his or her mental and physical] limitations,” based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545,
416.920(e), 416.945. The fourth step requires the ALJ to consider whether the claimant’s
RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§
404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the
claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant
bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d at
383; and at step five, there is a “limited burden shift to the Commissioner” to “show that
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there is work in the national economy that the claimant can do,” Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step
five is limited, and the Commissioner “need not provide additional evidence of the
claimant’s [RFC]”).
Employing this sequential analysis, ALJ Hoban first determined that Coulter had
not engaged in substantial gainful activity during the period from his alleged onset date of
October 1, 2008 through August 31, 2009. (AR 14.) At step two, the ALJ found that
Coulter had the severe impairments of left shoulder rotator cuff repair and an affective
disorder. (Id.) Conversely, the ALJ found that Coulter’s back, leg, knee, and hip pain;
decreased hand strength; thyroiditis; mild cardiac ischemia; hypertension; status postperianal cyst removal; and alcohol abuse were not severe impairments. (AR 15.) At step
three, the ALJ found that none of Coulter’s impairments, alone or in combination, met or
medically equaled a listed impairment. (AR 16.) Next, the ALJ determined that Coulter
had the RFC to perform “light work,” as defined in 20 C.F.R. § 404.1567(b), “with only
occasional use of the left upper extremity for all activity and a restriction to simple and
repetitive tasks.” (Id.) Given this RFC, the ALJ found that Coulter was unable to
perform his past relevant work, “as it [required a] medium[-]to[-]heavy” exertion level.
(AR 18.) Finally, based on testimony from the VE, the ALJ determined that there were
other jobs existing in significant numbers in the national economy that Coulter could
have performed during the relevant period, including gate guard, furniture rental clerk,
and cashier. (AR 18-19.) The ALJ concluded that Coulter had not been under a
disability from October 1, 2008 through August 31, 2009. (AR 19.)
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Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). A person will be found disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In reviewing a Commissioner’s disability decision, the court limits its inquiry to a
“review [of] the administrative record de novo to determine whether there is substantial
evidence supporting the . . . decision and whether the Commissioner applied the correct
legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). A court’s factual
review of the Commissioner’s decision is limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the fact[-]finder.”). “Substantial evidence” is more
than a mere scintilla; it means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
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Poupore, 566 F.3d at 305. In its deliberations, the court should consider that the Social
Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
Coulter raises three issues in his motion: 1) the ALJ’s RFC determination; 2) the
ALJ’s alleged misstatement regarding Coulter’s use of medication; and 3) the ALJ’s stepfive finding that Coulter was able to perform “other work” existing in significant
numbers in the national economy during the relevant period. As explained below, the
Court finds in favor of the Commissioner on each of these issues.
I.
RFC Determination
Coulter first argues that the ALJ’s determination that he could perform “light
work” from October 1, 2008 through September 1, 2009 (“the relevant period”) is not
supported by the medical evidence. Specifically, Coulter asserts that he could not
perform “light work” during the relevant period because he “was reporting constant pain
and limited motion in his left shoulder” and “was recovering from shoulder surgery.”
(Doc. 15 at 3.) In response, the Commissioner asserts that substantial evidence supports
the ALJ’s RFC determination.
As stated above, the ALJ determined that Coulter was able to perform “light work
. . . with only occasional use of the left upper extremity for all activity and a restriction to
simple and repetitive tasks.” (AR 16.) According to the regulations, “light work”
involves:
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lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted in a
particular light job may be very little, a job is in this category when it
requires a good deal of walking or standing--the primary difference
between sedentary and most light jobs. A job is also in this category when
it involves sitting most of the time but with some pushing and pulling of
arm-hand or leg-foot controls, which require greater exertion than in
sedentary work . . . .
. . . [T]he full range of light work requires standing or walking, off and on,
for a total of approximately 6 hours of an 8-hour workday. Sitting may
occur intermittently during the remaining time. . . .
SSR 83-10, 1983 WL 31251, at *5-6 (1983). The ALJ based his determination that
Coulter was able to perform “light work” during the relevant period on Coulter’s
“activities of daily life” and “the objective medical evidence of record.” (AR 17.) The
ALJ was entitled to consider these factors in determining Coulter’s RFC, see 20 C.F.R. §
404.1529(c)(2)-(3)(i), and substantial evidence supports the ALJ’s findings, as discussed
below.
With respect to daily activities, the record demonstrates that, during the relevant
period, Coulter raised chickens, hunted (“a little bit”) (AR 74), drove, shopped for
groceries, prepared meals, and washed dishes. (AR 73-74, 134, 137.) He had no
problems with personal care activities (AR 135); he used a riding lawn mower (AR 136);
and he did limited gardening (AR 137). The ALJ’s consideration of these activities was
appropriate, as the Second Circuit has held that, although “a claimant need not be an
invalid to be found disabled,” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998), it is
proper for an ALJ to consider a claimant’s daily activities in determining whether the
claimant is disabled. See, e.g., Calabrese v. Astrue, 358 F. App’x 274, 278 (2d Cir. 2009)
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(“in assessing the credibility of a claimant’s statements, an ALJ must consider . . . the
claimant’s daily activities”); SSR 96-7p,1996 WL 374186, at *5-6 (July 2, 1996); 20
C.F.R. § 404.1529(c)(3)(i).
Moreover, Coulter reported in a November 2009 Function Report that, although he
had decreased strength in his left hand, he could lift twenty pounds. (AR 139.) At the
administrative hearing, he testified that he could lift twenty pounds with his right arm, but
it would be a struggle to lift that amount of weight with his left arm. (AR 67-68.) The
VE testified that there were jobs Coulter could do, even assuming his ability to lift twenty
pounds applied only to his right arm and not to his left. (AR 67.) Coulter also testified
that, while he could walk for only approximately one-hundred feet (AR 60), he could
stand “for a while” (id.) and could alternate standing and sitting for “a few hours” in each
position (AR 65). This testimony and evidence supports the ALJ’s RFC determination.
The ALJ also correctly noted that the objective medical evidence supports an RFC
to do “light work,” with restrictions. For example, prior to having surgery on his left
shoulder in February 2009, treating orthopedist Dr. Matthew Nofziger of Taconic
Orthopaedics advised Coulter that his limitations immediately following the surgery
would be as follows: “passive motion for the [first] 6 weeks, active motion without
weight for the [second] 6 weeks, [and] addition of weights at 3 months.” (AR 457.)
After having the surgery (AR 417-18), medical records from Dr. Nofziger indicate that,
although Coulter was wearing a sling full-time, he was “quite comfortable” and “taking
no pain medications after using . . . morphine for the first 4 days [after surgery].” (AR
460.) The note further states that Coulter was “overall . . . doing quite well.” (Id.)
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Approximately one month later, although Coulter reported some pain and cramping, he
was still not taking any pain medications and was still noted to be doing “overall . . .
quite well despite his setback.” (AR 462.) In June 2009, Coulter again reported pain and
limited function in his shoulder, but Dr. Nofziger again stated that he was doing “quite
well” overall. (AR 451, 464.) A repeat MRI was performed, and found “[n]o cuff tear or
problem, SLAP repair appear[ed] intact[,] [s]ubtle posterior labral abnormality, non[]pathologic.” (AR 451.) Dr. Nofziger advised Coulter to work on physical therapy
exercises at home, take over-the-counter anti-inflammatory medications or Vicodin as
needed, and “see [the Doctor] back in the future as needed.” (AR 452.) Coulter does not
appear to have sought further medical treatment for his shoulder pain until approximately
seven months later, in January 2010, when he had an office visit with another provider at
Taconic Orthopaedics, Robbin Hunt,1 complaining of pain and weakness in his shoulder,
especially when moving it above shoulder level; as well as hip, back, and knee pain. (AR
467.) Hunt’s treatment notes report that Coulter had had “no recent injections or other
treatments.” (Id.) Physical examination revealed no significant abnormalities, and Hunt
(like Dr. Nofziger before her) recommended physical therapy and over-the-counter antiinflammatory medications, and suggested that Coulter be seen in consultation by a pain
management group for potential injections to relieve his back pain. (AR 468.)
Although this objective medical evidence documents Coulter’s pain and decreased
mobility of his left shoulder, it does not support the claim that Coulter was as severely
1
It is unclear from the record what Hunt’s professional status at Taconic Orthopaedics was,
although it appears she was not a physician or a registered nurse. (Compare, e.g., AR 464 (referring to
“Robbin Hunt”) with AR 452 (referring to “Matthew Nofziger, M.D.” and “Diane Chaloux, R.N.”).)
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limited in his overall ability to function as he claims to have been during the relevant
period. The ALJ was entitled to evaluate the credibility of Coulter’s complaints of pain,
and further to disbelieve such complaints, in light of medical evidence like this. See
Aponte v. Sec’y of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984);
Rutherford v. Schweiker, 685 F.2d 60, 63 (2d Cir. 1982). The ALJ was also entitled to
consider Coulter’s gap in treatment during the relevant period, as well as his failure to
engage in physical therapy and other treatment options recommended by medical
providers, when weighing the credibility of Coulter’s complaints of pain. See Arnone v.
Bowen, 882 F.2d at 39 (holding that the Commissioner properly attributed significance to
claimant’s failure to seek medical attention during the insured period, and that such
failure “seriously undermine[s] [claimant’s] contention that he was continuously disabled
during that time”); Russell v. Barnhart, 111 F. App’x 26 (1st Cir. 2004) (holding that
claimant’s “failure to follow prescribed medical treatment contradicts subjective
complaints of disabling conditions and supports an ALJ’s decision to deny benefits”)
(citation omitted); SSR 96-7p, 1996 WL 374186, at *7 (providing that “a longitudinal
medical record demonstrating an individual’s attempts to seek medical treatment for pain
or other symptoms and to follow that treatment once it is prescribed lends support to an
individual’s allegations of intense and persistent pain or other symptoms for the purposes
of judging the credibility of the individual’s statements”). Moreover, the ALJ’s RFC
determination included a specific limitation for “only occasional use of the left upper
extremity for all activity,” accounting for Coulter’s reported shoulder pain and limited
mobility.
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Also supportive of the ALJ’s RFC determination, in a January 2010 vocational
rehabilitation report, it was noted that Coulter stated that, although he could not do the
level of construction work that he had done in the past, he was still able to do “light finish
jobs.” (AR 156.) The report concluded that Coulter’s condition had “significantly
deteriorated” such that he could no longer continue to work in the construction field
“except in a very limited capacity.” (Id.) Therefore, the report allowed for the possibility
of Coulter performing some job in the construction field, and implied that he would be
able to do other, non-construction (i.e., less physically taxing) jobs. The agency
consultant opinions support this conclusion, allowing for the possibility of Coulter
performing “light work” with “limited reaching,” as noted by the ALJ. (AR 17 (citing
AR 171-78, 498).)
The Court concludes that, although the record demonstrates that Coulter was
limited in the activities he could perform during the relevant period, it does not support
the level of limitation alleged by Coulter. Rather, the record – including Coulter’s daily
activities, the objective medical evidence, and the medical opinion evidence – supports
the ALJ’s conclusion that Coulter retained the ability to perform light work with
restrictions on his upper left extremity.
II.
ALJ’s Statement about Coulter’s Use of Pain Medications
Coulter next argues that the ALJ wrongly stated that Coulter “‘did not regularly
use pain medications when recovering from surgery.’” (Doc. 15 at 3 (citing AR 19).) In
fact, asserts Coulter, he used morphine for the first four days after his February 2009
shoulder surgery and continued on hydrocodone as needed thereafter. (Id.) Noteworthy,
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Coulter fails to cite to any particular portion of the record in support of his claim. (See
id.)
The Court finds that the ALJ’s statement regarding Coulter’s use of pain
medication was not incorrect, and even if it was, any error was harmless. See Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (applying harmless error standard in social
security context). In January 2009, Dr. Nofziger stated in a treatment note that Coulter
was taking “no medications.” (AR 453.) As discussed above, the same Doctor stated in
March 2009, three weeks out from a shoulder surgery, that Coulter was “taking no pain
medications after using . . . morphine for the first 4 days [after the surgery].” (AR 460.)
In April 2009, Dr. Nofziger again noted that Coulter was taking “[n]o regular pain
medications.” (AR 462.) This evidence supports the ALJ’s statement that Coulter “did
not regularly use pain medications when recovering from surgery.” (AR 19.)
To the extent that Coulter’s limited and short-lived use of morphine for the first
four days after surgery may conflict with the ALJ’s statement regarding Coulter’s use of
pain medication, the error was harmless, as substantial evidence demonstrates that
Coulter did not “regularly use pain medications” during the relevant period. It was
proper for the ALJ to consider this fact in determining Coulter’s claim, as the regulations
provide that, in assessing a claimant’s credibility, ALJs “will consider . . . [t]he type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms.” 20
C.F.R. § 404.1529(c) (3)(iv); see Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)
(holding that, in evaluating plaintiff’s credibility regarding the severity of his pain, the
ALJ properly considered “whether [plaintiff] took pain medication”) (citations omitted);
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Laderson v. Astrue, No. 10 CV 7797 RPP, 2011 WL 6083189, at *9 (S.D.N.Y. Dec. 6,
2011) (“In assessing the credibility of the statements, the ALJ properly considered
Plaintiff’s testimony at the hearing that she was not on pain medication other than overthe-counter analgesics”).
III.
Ability to Perform “Other Work”
Finally, Coulter argues that the medical evidence does not support the ALJ’s
finding that he would have been able to perform the jobs of gate guard, furniture rental
clerk, and cashier during the relevant period. (Doc. 15 at 4.) In finding that Coulter
could perform these jobs, the ALJ relied on the VE’s testimony that the jobs existed in
significant numbers in the national economy; and that, given a hypothetical individual
with Coulter’s RFC, he would be able to perform them. See 20 C.F.R. § 404.1560(c).
Specifically, the VE testified that a “[r]ight[-]handed[-]dominant person who could only
occasionally use the non-dominant left arm for all activities, pushing, pulling, reaching,
handling, grasping, and gripping[;] and would be limited to occasional postural
activities,” could perform the jobs of gate guard, furniture rental clerk, and cashier. (AR
62.) Because, as explained above, this description of Coulter’s limitations, and in turn
the ALJ’s RFC determination, was supported by substantial evidence, it was proper for
the ALJ to rely on this testimony from the VE. See Mancuso v. Astrue, 361 F. App’x
176, 179 (2d Cir. 2010) (“The Commissioner may rely on a [VE’s] testimony . . . so long
as the hypothetical is based on substantial evidence.”); Otts v. Comm’r of Soc. Sec., 249
F. App’x 887, 890 (2d Cir. 2007). Thus, the ALJ did not err in his step-five finding
regarding Coulter’s ability to perform “other work.”
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Conclusion
For these reasons, the Court DENIES Coulter’s motion (Doc. 14), GRANTS the
Commissioner’s motion (Doc. 17), and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 4th day of May, 2012.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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