Berno v. Commissioner of Social Security
Filing
21
OPINION AND ORDER: Plaintiff's 13 MOTION for Order Reversing the Decision of the Commissioner is DENIED and Defendant's 17 MOTION for Order Affirming the Decision of the Commissioner is GRANTED. Signed by Judge John M. Conroy on 3/12/2019. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Steve B.,
Plaintiff,
v.
Civil Action No. 2:18–cv–89–jmc
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 13, 17)
Plaintiff Steve B. 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 denying his application for Disability Insurance Benefits (DIB).
Pending before the Court are Plaintiff’s motion to reverse the Commissioner’s decision
(Doc. 13), and the Commissioner’s motion to affirm the same (Doc. 17). For the
reasons stated below, Plaintiff’s motion is DENIED, the Commissioner’s motion is
GRANTED, and the Commissioner’s decision is AFFIRMED.
Background
Plaintiff was 49 years old on his alleged disability onset date of November 26,
2014. He graduated from high school and also has a GED. (AR 38.) His work history
includes jobs as a sandblaster, a dishwasher/cheesemaker, a landscaper, a laborer, a
correctional officer, and a machine operator. (AR 58, 217, 234.) He is single and lives
by himself in an apartment in Barre. (AR 38.)
Plaintiff suffers from multiple physical and mental impairments, including
degenerative disc disease of the cervical and lumbar spines, cervical radiculitis
(inflammation) with referred pain and dysesthesia1 to the shoulders and upper
extremities, depressive disorder, generalized anxiety disorder, and difficulty focusing
and concentrating. He had a good work history until the end of 2014, when he was
injured on the job while lifting heavy stove parts over his head. (AR 39–40, 339, 842.)
The injury exacerbated Plaintiff’s already existing upper bilateral extremity and neck
issues, resulting in debilitating back, neck, shoulder, and arm pain; and causing him
to stop working on November 26, 2014. On December 2, 2014, Plaintiff underwent a
cervical discectomy and fusion surgery2 (AR 40, 425), which provided some relief but
did not fully relieve his symptoms (AR 41). Since the surgery, he still has pain in his
back, shoulders, and arms; and he suffers from persistent migraine headaches. (Id.;
AR 60, 62.) He is unable to stay in one position for an extended period, and walking
even just short distances bothers him. (AR 49.)
In an effort to relieve his symptoms, Plaintiff has tried physical therapy and
steroid injections, but neither has provided much relief. He has, on the other hand,
benefitted from medication and marijuana. (AR 45–46, 735.) An October 2016
Dysesthesia is defined as experiencing abnormal sensations in the absence of stimulation.
Stedman’s Medical Dictionary 272280 (28th ed. 2006) (Westlaw).
1
A discectomy is the surgical excision (cutting out) of all or part of an intervertebral disk (a
disk of cartilage between two adjacent vertebrae). D, J.E. Schmidt, M.D., Attorneys’ Dictionary of
Medicine (Matthew Bender 2018). To prevent the vertebrae from collapsing and rubbing together,
fusion surgery––which involves the insertion of a spacer bone graft to fill the open disc space and to
create a spinal fusion between the two vertebrae––is often performed along with a cervical discectomy.
Mayfield Clinic, Anterior Cervical Discectomy & Fusion, https://mayfieldclinic.com/pe-acdf.htm (updated
Nov. 2018).
2
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medical report states that he was smoking marijuana eight times per day (four-to-five
grams total) at the time. (AR 891; see also AR 46, 735.) Plaintiff testified at the
administrative hearing that he no longer treated with any doctors for his back pain
and related issues because they had been unable to relieve his symptoms. (AR 47.)
Despite his impairments, Plaintiff is able to clean his apartment and prepare
his own simple meals. (AR 55, 228.) He is also able to travel independently by
walking, driving (with some difficulty), and using public transportation. (AR 229.)
Medical records document that, among other activities, he played volleyball, swam,
and kayaked during the relevant period. (AR 549, 662.) Plaintiff is limited, however,
in his ability to use eating or writing utensils, and to reach above his head or behind
his back; and he requires the help of his sister with food shopping. (AR 229;
AR 55–57.)
On June 16, 2015, Plaintiff protectively filed his application for disability
insurance benefits. (AR 189.) Therein, he alleges that, starting on November 26,
2014, he has been unable to work due to neck, lower back, and shoulder impairments;
and leg and ankle pain. (AR 208.) Plaintiff’s application was denied initially and upon
reconsideration, and he timely requested an administrative hearing. The hearing was
conducted on February 24, 2017 by Administrative Law Judge (ALJ) Matthew Levin.
(AR 35–68.) Plaintiff appeared and testified, and was represented by an attorney. A
vocational expert (VE) also testified at the hearing. (AR 64–67.) On April 18, 2017,
the ALJ issued a decision finding that Plaintiff was not disabled under the Social
Security Act at any time from his alleged onset date through the date of the decision.
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(AR 20–29.) Thereafter, the Appeals Council denied Plaintiff’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner. (AR 1–6.)
Having exhausted his administrative remedies, Plaintiff filed the Complaint in this
action on May 29, 2018. (Doc. 1.)
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 that 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 his or her
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), which means 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(a)(1),
416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the
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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 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 Levin first determined that Plaintiff
had not engaged in substantial gainful activity since his alleged onset date of
November 26, 2014. (AR 22.) At step two, the ALJ found that Plaintiff had the
following severe impairments: degenerative disc disease of the cervical and lumbar
spine, depression, anxiety, and cannabis abuse. (Id.) At step three, the ALJ found
that none of Plaintiff’s impairments, alone or in combination, met or medically equaled
a listed impairment. (AR 23–24.) Next, the ALJ determined that Plaintiff had the
RFC to perform medium work, as defined in 20 C.F.R. § 404.1567(b), except as follows:
“[Plaintiff] is unable to climb ladders, ropes[,] or scaffolds. He is limited to occasional
crawling. [He] retains the mental capacity to perform simple, 1–3[-]step tasks, and is
able to maintain attention and concentration for 2-hour increments in an 8-hour
workday and 40-hour workweek.” (AR 24.)
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Given this RFC, based on testimony from the VE, the ALJ found that Plaintiff
was able to perform his past relevant work as a sandblaster, as it is actually and
generally performed. (AR 28.) The ALJ concluded that Plaintiff had not been under a
disability from his alleged disability onset date of November 26, 2014 through the date
of the decision. (Id.)
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 considering the Commissioner’s disability decision, the court “review[s] 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). The court’s factual review of
the Commissioner’s decision is thus limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
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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 factfinder.”). “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); Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind
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
Plaintiff asserts that the ALJ’s RFC determination is not supported by
substantial evidence because: (1) the ALJ afforded too much weight to the September
2015 opinions of nonexamining agency consultant Dr. Carl Runge; (2) the ALJ failed to
acknowledge objective evidence of Plaintiff’s incomplete cervical fusion; and (3) the
ALJ mischaracterized the opinions of Dr. Ryan Jewell, Dr. Ellen Gaughan, and
Dr. Philip Davignon, who provided opinions for Plaintiff’s workers’ compensation (WC)
case. (Doc. 13 at 4–12.) Moreover, Plaintiff claims substantial evidence does not
support the ALJ’s step-four finding that Plaintiff can do his past relevant work as a
sandblaster. (Id. at 12–15.) The Commissioner counters that the ALJ’s decision is
supported by substantial evidence and free of legal error. The Court finds in favor of
the Commissioner for the reasons discussed below.
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I.
ALJ’s Analysis of the Opinions of Agency Consultant Dr. Runge and
Consideration of Plaintiff’s Incomplete Fusion
On September 17, 2015, after reviewing the relevant evidence, agency
consultant Dr. Runge completed a Physical RFC Assessment of Plaintiff and opined
that, despite his cervical, thoracic, lumbar, and shoulder pain, Plaintiff was capable of
medium work, except he could not climb ladders, ropes, or scaffolds, and he could only
occasionally crawl. (AR 87.) Acknowledging that this opinion was made by a “nonexamining and non-treating expert source[],” the ALJ gave it “great evidentiary
weight” because it was “consistent with the evidence of record, including evidence
received at the hearing level.” (AR 28.) Plaintiff argues that the ALJ erred in this
analysis because Dr. Runge’s opinion “did not mention the evidence of [Plaintiff’s]
incomplete [cervical] fusion.” (Doc. 13 at 6; see AR 630.) Moreover, Plaintiff argues
that evidence submitted after Dr. Runge made his opinion, which the ALJ ignored,
confirmed that Plaintiff’s December 2014 cervical spine surgery resulted in an
incomplete fusion.
Although it is true that Plaintiff did not have a complete fusion of his bone graft
at the time that Dr. Runge formulated his September 2015 opinion (see AR 630),
Dr. Runge accurately noted that the medical records from that period nonetheless
“consistently [showed no] significant neurological deficit” (AR 87; see AR 597, 600,
603). Moreover, as the ALJ noted in his decision (AR 25–26), later medical records
similarly indicate that, despite the incomplete fusion, Plaintiff’s symptoms either
remained the same or improved after the surgery. For example, a November 2015
treatment note states that a neurological examination was “nonfocal” (normal) with
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cranial nerves “grossly intact,” and that a musculoskeletal examination showed “[g]ood
strength[,] 5/5 in both upper and lower extremities.” (AR 799.) And a December 2015
treatment note includes cervical spine CT results indicating that, although Plaintiff’s
bone graft material was “incompletely incorporated,” there was “no lucency
[(darkness)] around the fixation screws to suggest abnormal motion.” (AR 711.) The
note further states that Plaintiff was neurologically stable, appeared comfortable,
moved around the room “with comfort and ease,” and was able to “mov[e] all four
extremities without difficulty.” (Id.) In the same month, another treatment note
states that, despite being “bothered” by neck pain, Plaintiff reported he could “live
with the pain but would like some means of palliating it if possible,” inquiring about
medical marijuana. (AR 721.) The medical provider recommended against surgery
because Plaintiff was “functioning reasonably well and his symptoms [we]re
nonprogressive.” (AR 722.) In January 2016, another treatment provider noted that,
despite the incomplete fusion, Plaintiff obtained “very good” pain relief by using
marijuana and he therefore did not require opioids. (AR 735.) Treatment notes from
August through October 2016 similarly state that Plaintiff had normal coordination,
range of motion, and motor strength. (See, e.g., AR 782, 887–88, 893.) And finally, in
a January 2017 treatment note, yet another treating provider recorded that Plaintiff
had a normal gait, symmetric reflexes, and intact motor strength. (AR 897.)
As also noted by the ALJ in his decision (AR 26–27), physical therapy notes
from after the December 2014 surgery record that, despite the incomplete fusion,
Plaintiff’s symptoms improved. For example, Plaintiff reported at a March 2015
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physical therapy appointment that his neck and shoulders were “feeling well today”
and that he had “no new complaints.” (AR 464.) The note from that appointment
further stated that, although Plaintiff had decreased cervical and shoulder range of
motion, he was “making gradual gains” and his rehabilitation potential was “good.”
(Id.) An April 2015 physical therapy note indicates that Plaintiff felt “pretty good” and
was “just a little sore.” (AR 478.) Another note from the same month states that
Plaintiff was “[t]olerating progression well” and “[s]eeing improvement in
posture/patterns and positioning.” (AR 497.) A June 2015 physical therapy note
records that Plaintiff stated “his neck and shoulders [we]re feeling good” and he had
“no new complaints.” (AR 535.) Records of other physical therapy appointments from
around that period and later document that Plaintiff was doing “[n]ot too bad” (AR
497), “fairly well” (AR 442, 470, 506, 524, 645), “pretty good” (AR 635, 637, 662), “well”
(AR 448, 456, 483, 491, 514, 677), “really good” (AR 631), and “great” (AR 633). In
August 2015, Plaintiff was noted to be “making steady gains,” and his strength was
“improving.” (AR 633; see also AR 450, 452.) Other physical therapy notes similarly
indicate that Plaintiff was making “steady progress” or “gradual gains” with his
strength and mobility. (AR 444, 456, 462, 468, 474, 506, 512, 652, 668.)
Considering these and other similar medical records, substantial evidence
supports the ALJ’s decision to afford great weight to Dr. Runge’s September 2015
opinion. Furthermore, the ALJ properly considered (AR 23, 25, 27) that Plaintiff was
able to function independently and walk––even long distances––during the relevant
period (AR 55, 228–30). Specifically, Plaintiff told a nurse in July 2015 that he was
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unable to drive due to a prior DUI and therefore walked “many miles . . . to get to
destinations,” including walking 14 miles on that particular day. (AR 602.) In
September 2015, Plaintiff told a treating psychologist that he had no physical
limitations regarding his own personal care; and he was able to cook, shop, run
errands, visit people, and walk for exercise. (AR 673.) In April 2016, Plaintiff told a
treating doctor that he was doing “a lot of walking,” estimating the total to be “a
couple of miles per day,” given that walking was “the only way [he] g[ot] around.”
(AR 874.) And Plaintiff testified at the February 2017 administrative hearing that he
walked up to two miles at a time when he did not have a car during the relevant
period. (AR 48–49.)
The record also reveals that Plaintiff engaged in fairly vigorous physical
activities during the alleged disability period. For example, a May 2015 treatment
note indicates that he was “stacking wood to help a friend out.” (AR 516.) And a June
2015 treatment note states that he “had a good weekend playing volleyball and
swimming.” (AR 549.) A July 2015 treatment note records that he “went kayaking
over the weekend and he feels pretty good today.” (AR 662.) Another July 2015
treatment note states that Plaintiff “help[ed] his friend load trash in a trailer.”
(AR 660.) Plaintiff testified at the February 2017 hearing that, about a month earlier,
he was shoveling snow. (AR 43–44.) Plaintiff’s ability to engage in these activities
during the relevant period supports the ALJ’s decision to afford great weight to
Dr. Runge’s opinion that Plaintiff could do medium work. See Monroe v. Comm’r of
Soc. Sec., 676 F. App’x 5, 8 (2d Cir. 2017) (ALJ decision to disregard treating physician
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opinion was supported by the fact that plaintiff “had engaged in a range of
recreational activities . . . , including snowmobiling trips to Ontario and Quebec,
horseback riding, four-wheeling, and multiple vacation cruises”); Besignano v. Colvin,
No. 12-CV-6123 (DLI), 2014 WL 4065090, at *9, 11 (E.D.N.Y. Aug. 14, 2014) (ALJ
properly gave substantial weight to agency consultant opinions, where they were
supported by plaintiff’s daily activities, including lifting two cases of bottled water,
walking up and down stairs without any struggle or perceived pain, and driving);
Prince v. Astrue, 490 F. App’x 399, 400–01 (2d Cir. 2013) (no ALJ error where evidence
showed plaintiff’s physical impairments did not limit his ability to do basic work
activities, and in fact, plaintiff was able to engage in “robust daily activities”).
The Second Circuit has consistently found that the opinions of agency
consultants like Dr. Runge may override those of treating physicians, when the former
are more consistent with the record evidence than the latter.3 See Diaz v. Shalala,
59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v. Sullivan, 3 F.3d 563, 567–68
(2d Cir. 1993) (“[T]he regulations . . . permit the opinions of nonexamining sources to
override treating sources’ opinions provided they are supported by evidence in the
record.”)); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) (“In appropriate
circumstances, opinions from State agency . . . consultants . . . may be entitled to
greater weight than the opinions of treating or examining sources.”). And this is so,
In accordance with Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.
Reg. 11 (Jan. 18, 2017), the longstanding “treating physician rule” will no longer be in effect for
applications made to the Social Security Administration on or after March 27, 2017. But because
Plaintiff’s DIB application was filed before that date (in June 2015), the revised regulations do not apply
here.
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even in cases like this, where the consultants have not reviewed the entire record, so
long as the consultant opinions are supported by the record and there is no evidence of
a new diagnosis or a worsening of the claimant’s condition after the consultant
opinions were made. See Camille v. Colvin, 652 F. App’x 25, 28 n.4 (2d Cir. 2016) (“No
case or regulation . . . imposes an unqualified rule that a medical opinion is
superseded by additional material in the record.”); Charbonneau v. Astrue, Civil Action
No. 2:11–CV–9, 2012 WL 287561, at *7 (D. Vt. Jan. 31, 2012).
Here, there is no evidence of a new diagnosis or a worsening of Plaintiff’s
condition since Dr. Runge made his opinion in September 2015. Moreover, as
discussed above, Dr. Runge’s opinion is supported by normal neurological findings,
Plaintiff’s frequent and consistent admission to medical providers that he was doing
relatively well and managing his pain, statements of treating medical providers that
Plaintiff was improving, and Plaintiff’s ability to engage in various physical activities
including walking long distances, playing volleyball, and kayaking. Further, despite
Plaintiff’s argument to the contrary, the ALJ was not required to discuss Plaintiff’s
incomplete fusion after his December 2014 surgery because ALJs need not discuss
every piece of medical evidence, especially where––as here––the evidence is medically
insignificant. See Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (“[A]n
ALJ is not required to discuss every piece of evidence submitted[, and] . . . [his] failure
to cite specific evidence does not indicate that such evidence was not considered.”
(internal quotation marks and citation omitted)); Petrie v. Astrue, 412 F. App’x 401,
407 (2d Cir. 2011) (“[W]here the evidence of record permits us to glean the rationale of
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an ALJ’s decision, we do not require that he have mentioned every item of testimony
presented to him or have explained why he considered particular evidence
unpersuasive or insufficient to lead him to a conclusion of disability.” (internal
quotation marks omitted)). Here, as discussed above, the medical evidence reveals
that, since the surgery, Plaintiff has had no significant neurological deficits; normal
coordination, range of motion, and motor strength; and pain relief/management with
non-narcotic medication. Even Plaintiff himself admitted that his symptoms improved
after the surgery, and that he was not seeing any doctors for his back pain. (AR 41.)
See Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112–13 (2d Cir. 2010) (citing
“plaintiff’s own testimony” as substantial evidence to support ALJ’s decision).
II.
ALJ’s Analysis of Opinions of Workers’ Compensation Physicians
Next, Plaintiff argues that the ALJ mischaracterized the opinions of three
physicians who made opinions for his WC case, claiming the ALJ erroneously found
that these physicians opined Plaintiff could return to work within six months of his
surgery. (Doc. 13 at 7–11.) The Court finds no error, as discussed below.
Under the applicable regulations, disability decisions by other governmental
agencies, such as the Workers’ Compensation Board, are “not binding” on the Social
Security Administration (SSA); and SSA adjudicators “will not provide any analysis in
[their] determination or decision about a decision made by any other governmental
agency . . . about whether [claimants] are disabled, blind, employable, or entitled to
any benefits.” 20 C.F.R. §§ 404.1504, 416.904; see also 20 C.F.R. §§ 404.1520b(c),
416.920b(c) (SSA considers evidence of disability findings by other agencies
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“inherently neither valuable nor persuasive,” and therefore “will not provide any
analysis about how [it] considered such evidence in [its] determination or decision.”).
Findings of disability for WC purposes are of particularly limited utility for disability
purposes under the Social Security Act, given that those findings are geared to the
claimant’s prior employment and allow findings of partial disability, whereas the
Social Security Act uses its own definition of disability, under which there is no partial
disability, see 42 U.S.C. § 423(d)(1); 20 C.F.R. § 404.1505. DeJesus v. Chater, 899
F. Supp. 1171, 1177 (S.D.N.Y. 1995) (citing Stephens v. Heckler, 766 F.2d 284, 285
(7th Cir. 1985) (“A person with a partial disability for purposes of [WC] is ‘not disabled’
under the Social Security Act, and even a person entitled to collect substantial
damages because he cannot find any employment may be deemed ‘not disabled.’”)).
Nonetheless, ALJs “will consider all of the supporting evidence underlying the other
governmental agency[’s] . . . decision” that is part of the record in the claim, 20 C.F.R.
§§ 404.1504, 416.904, as the ALJ in this case considered the opinions of WC physicians
Dr. Jewell, Dr. Gaughan, and Dr. Davignon.
A.
Nonexamining WC Consultant Dr. Jewell
In February 2015, Dr. Ryan Jewell, a neurosurgeon, performed a medical
records review for Plaintiff’s WC case, and opined that Plaintiff could be released to
light duty work three months following his surgery and to full manual labor within
four to six months of the surgery, “assuming he is neurologically intact and that the xray indicates maturity of his cervical fusion.” (AR 845.) The ALJ considered this
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opinion, stating that he “accorded weight” to it but noting that “the doctor had no
treating relationship with [Plaintiff].” (AR 26.)
Plaintiff asserts that the ALJ erred in failing to provide “any specifics” as to the
weight he gave to this opinion, and in failing to acknowledge that Dr. Jewell’s opinion
was predicated on Plaintiff being neurologically intact and having a mature fusion.
(Doc. 13 at 8.) As discussed above, however, even though the evidence indicates that
Plaintiff did not have a complete fusion, his symptoms were improved and he was able
to function relatively well after surgery. Moreover, the ALJ accurately stated that
Dr. Jewell was not a “treating physician,” and thus the ALJ was not required to afford
controlling weight to Dr. Jewell’s opinion.4 See Monette v. Astrue, 269 F. App’x 109,
112 (2d Cir. 2008) (ALJ not required to give controlling weight to doctor’s opinion
where doctor “was not a treating physician during the period in contention”). The ALJ
certainly could have provided a more in depth analysis of Dr. Jewell’s opinion, and he
could have stated with more clarity how much weight he afforded to it. But failure to
provide specific weight to a medical opinion does not constitute per se remandable
error; and the Second Circuit has held that, where an ALJ fails to provide a specific
weight to an opinion, remand may not be necessary if the ALJ’s rational can be
inferred from his decision. See Camille, 652 F. App’x at 28; Brault, 683 F.3d at 448;
see also Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (“When . . . the
Under the “treating physician rule,” the opinion of a claimant’s treating physician as to the
nature and severity of an impairment “is given ‘controlling weight’ so long as it ‘is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
(alteration in original) (quoting 20 C.F.R. § 404.1527(d)(2)).
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evidence of record permits us to glean the rationale of an ALJ’s decision, we do not
require that he have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or insufficient to lead
him to a conclusion of disability.”).
Clearly, the ALJ gave some weight to Dr. Jewell’s opinion, given that both the
ALJ and Dr. Jewell found Plaintiff capable of working during the relevant period, but
the ALJ partially discounted the opinion because Dr. Jewell did not have a treating
relationship with Plaintiff. In sum, the ALJ committed no error.
B.
Examining WC Consultant Dr. Gaughan
In April 2015, neurologist and neuropsychiatrist Dr. Ellen Gaughan conducted
an Independent Neurological Medical Examination of Plaintiff for Plaintiff’s WC case.
(AR 847–59.) Like Dr. Jewell, Dr. Gaughan concluded that Plaintiff could gradually
return to work, reaching full duty in four months, “[a]ssuming that his fusion is intact
and [his] treating surgeon agrees.” (AR 855.) The ALJ accorded “great weight” to this
opinion, “in light of the doctor’s expertise and impartiality.” (AR 26.)
Plaintiff again argues that the ALJ erred in failing to acknowledge that
Dr. Gaughan’s opinion was predicated on Plaintiff’s fusion being intact and his
treating surgeon’s concurrence. (Doc. 13 at 9–10.) But again, this argument presumes
that a non-intact fusion would significantly limit Plaintiff’s ability to function, and the
record does not support that presumption. Rather, as discussed above, the record
reveals that, since his surgery, Plaintiff has had no significant neurological deficits;
normal coordination, range of motion, and motor strength; and pain relief with non-
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narcotic medication. See supra. Notably, there is no treating source opinion or
treatment note stating that Plaintiff was significantly limited due to his incomplete
fusion following surgery. See Diaz, 59 F.3d at 315 (“[I]t was proper for the ALJ to rely
on the absence of findings by any physician concerning plaintiff’s alleged inability to
sit for prolonged periods in deciding that she could resume her work as a sewing
machine operator.”). To the contrary, Plaintiff’s treating nurse, Sharon Morgan,
recorded in July 2015––approximately seven months after the surgery––that Plaintiff
continued to “recover well” from the surgery (AR 629), and “move[d] around the room
with comfort and ease, with a steady gait and station, moving all four extremities
without difficulty” (AR 628). And Plaintiff’s treating surgeon, Dr. Scott Lollis, stated
in December 2015––approximately one year after the surgery and eight months after
Dr. Gaughan opined that Plaintiff could gradually return to work, assuming his fusion
was intact and his treating surgeon agreed––that Plaintiff was “functioning
reasonably well” and his symptoms were “nonprogressive.” (AR 722.) About a month
later, in January 2016, treating pain management specialist Dr. Janice Gellis noted
that Plaintiff was not interested in using opioids because he had “very good pain
relief” with marijuana. (AR 735.)
Dr. Gaughan’s opinion that Plaintiff gradually would be able to return to work
after his surgery is consistent with the record as a whole. It is also consistent with the
opinion of agency consultant Dr. Runge, discussed above, to which the ALJ afforded
great weight. Therefore, Plaintiff has shown no error in the ALJ’s decision to afford
great weight to Dr. Gaughan’s opinion.
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C.
Examining WC Consultant Dr. Davignon
Plaintiff also argues that the ALJ erred in his analysis of the opinions of
another examining medical consultant for Plaintiff’s WC case, Dr. Philip Davignon.
(Doc. 13 at 10–11.) In October 2015, Dr. Davignon conducted an Independent Medical
Evaluation of Plaintiff, finding among other things that Plaintiff had “diminished
[sensation] to pinprick” in all digits and from the knees to the feet on both sides;
reduced range of motion in the shoulders and cervical spine; 5/5 motor strength in the
upper and lower extremities and all muscle groups; active range of motion of both
elbows, wrists, and digits; and symmetric reflexes and arm/forearm circumferences.
(AR 864–65.) Noting that Plaintiff did not seem to have improved since his December
2014 surgery but did not require additional surgery, and referring to tables and charts
used in WC cases, Dr. Davignon opined that Plaintiff had a 28% “whole person
impairment.” (AR 865.) Approximately two months later, after reviewing additional
medical records including a cervical spine radiology report showing Plaintiff’s
incomplete fusion following surgery, Dr. Davignon stated in a follow-up letter to
Plaintiff’s counsel that Plaintiff did “not appear to be symptomatic” at a July 2015
follow-up appointment with Nurse Morgan and opined that Plaintiff had a “sedentary
work capacity.” (AR 867.) The ALJ gave “some weight” to these opinions, noting that
“the doctor did not assess [Plaintiff’s] RFC.” (AR 26.)
Plaintiff claims the ALJ erred in his analysis of these opinions principally
because his description of Dr. Davignon’s report and follow-up letter was “false” and
“not accurate.” (Doc. 13 at 10.) It is true that, in describing Dr. Davignon’s report and
19
subsequent letter, the ALJ noted only certain findings contained therein, leaving out
some findings. But the ALJ was required neither to describe nor to accept every
finding contained in the report and letter, especially considering that Dr. Davignon
was not a treating physician but rather an examining consultant providing a report for
the purpose of Plaintiff’s WC case. Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir.
2013) (“An ALJ need not recite every piece of evidence that contributed to [his or her]
decision, so long as the record permits [the court] to glean the rationale of [the]
decision” (internal quotation marks omitted)); Pellam v. Astrue, 508 F. App’x 87, 89
(2d Cir. 2013) (“There is no requirement that the agency accept the opinion of a
consultative examiner concerning a claimant’s limitations.”); 20 C.F.R. §
404.1527(c)(1)5 (“Generally, we give more weight to the medical opinion of a source
who has examined you than to the medical opinion of a medical source who has not
examined you.”). Moreover, contrary to Plaintiff’s contention, the ALJ’s statements
that (1) Dr. Davignon’s report revealed “normal functioning except for some pinprick
sensation deficits in all digits,” and (2) Dr. Davignon’s letter stated Plaintiff “did not
appear to be symptomatic and . . . would eventually be able to return to work” (AR 26),
are mainly correct (see AR 864–65, 867). The ALJ’s failure to discuss the few other
abnormal findings contained in Dr. Davignon’s report amounts to harmless error at
most. See Berry v. Schweiker, 675 F.2d 464, 466 (2d Cir. 1982) (“Although the
reasoning of the [Commissioner] with respect to one issue might have been more
20 C.F.R. § 404.1527 has been revised effective March 27, 2017. See Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). But, as noted earlier
regarding the treating physician rule, because Plaintiff’s DIB application was filed before that date, the
revised regulations do not apply here.
5
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clearly articulated, we find that his decision was supported by substantial evidence
and we accordingly affirm.”); Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)
(“Remand is unnecessary . . . [w]here application of the correct legal standard could
lead to only one conclusion.” (second alteration in original) (internal quotation marks
omitted)).
The ALJ’s description of Dr. Davignon’s report and opinions, taken as a whole,
are largely accurate. Most significantly, the ALJ correctly stated that Dr. Davignon
found that Plaintiff had a 28% whole person impairment and would eventually be able
to return to work. (AR 26; see AR 865, 867.) These findings support the ALJ’s decision
that Plaintiff was not disabled during the relevant period. The ALJ’s ultimate RFC
determination––that Plaintiff could do medium work with some restrictions––differs
from Dr. Davignon’s opinion that Plaintiff could do only sedentary work; but the ALJ
was entitled, indeed required, to consider the whole record, not just the opinion of one
examining consultant, in making his RFC determination. See Trepanier v. Comm’r of
Soc. Sec., No. 17-3684-cv, 2018 WL 5919906, at *4 (2d Cir. Nov. 13, 2018) (“Even
where the ALJ’s determination does not perfectly correspond with any of the opinions
of medical sources cited in his decision, . . . the ALJ was entitled to weigh all of the
evidence available to make a [RFC] finding that was consistent with the record as a
whole.” (citing Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)); see also 20 C.F.R.
§ 404.1545(a)(1) (ALJ must assess claimant’s RFC “based on all the relevant evidence
in [the] case record”).
21
Appropriately giving great weight to the medical opinions of Dr. Runge and
Dr. Gaughan, and considering the entire record as a whole, including in particular
treatment notes from Plaintiff’s medical providers and Plaintiff’s robust activities, the
ALJ determined that Plaintiff had a medium work RFC (with some restrictions). As
discussed above, the ALJ committed no legal error in his evaluation of the medical
opinions, and his RFC determination is supported by substantial evidence. These
grounds are thus not a basis for remand. See Selian v. Astrue, 708 F.3d 409, 417
(2d Cir. 2013) (“If there is substantial evidence to support the determination, it must
be upheld.”); Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (holding
that, although “reasonable minds [might] disagree as to whether [the claimant] is
disabled,” if the ALJ considered the relevant factors and “simply reached a conclusion,
supported by substantial evidence, with which [the claimant] does not agree,” there is
no cause to remand); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (limiting
court’s review to “determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct legal standard”
(internal quotation marks omitted)).
III.
ALJ’s Determination that Plaintiff Could Return to His Past Relevant
Work as a Sandblaster
Finally, Plaintiff contends the ALJ erred in determining at step four of the
sequential analysis that Plaintiff could return to his past relevant work as a
sandblaster. (Doc. 13 at 12–15.) This contention relies on Plaintiff’s claims that the
ALJ “fail[ed] to properly assess the [medical] opinion evidence and objective medical
evidence,” and “wrongly concluded that the Plaintiff had the RFC for ‘medium’ work.”
22
(Id. at 13.) Because, as explained above, the Court has found the opposite on both
claims, i.e., that the ALJ did not err in his analysis of the medical opinions and that
the ALJ’s RFC determination is supported by substantial evidence, the argument fails.
Conclusion
For these reasons, the Court DENIES Plaintiff’s motion (Doc. 13), GRANTS the
Commissioner’s motion (Doc. 17), and AFFIRMS the decision of the Commissioner.
The Clerk shall enter judgment on behalf of the Commissioner.
Dated at Burlington, in the District of Vermont, this 12th day of March 2019.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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