Johnson v. Commissioner of Social Security, No. 1:2011cv06975 - Document 19 (S.D.N.Y. 2013)
Court Description: OPINION: The Commissioner's decision was supported by substantial evidence. Consequently, the Commissioner's motion is granted, the Plaintiff's cross-motion is denied, and the complaint is dismissed. It is so ordered. (Signed by Judge Robert W. Sweet on 4/4/2013) (cd)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------x OTTAVIO MARIO JOHNSON, Plaintiff, -against- 11 Civ. 6975 OPINION MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. -------------------------------------x A P PEA RAN C E S: Attorney for Plaintiff HAROLD SKOVRONSKY, ESQ. 1810 Avenue N Brooklyn, NY 11230 Attorney for Defendant PRHEET BHARARA U.S. Attorney for the Southern District of New York 86 Chambers Street, 3 rd Floor New York, NY 10007 By: Leslie A. Ramirez-Fisher, Esq. £4 Sweet, D.J. The defendant, Michael J. Astrue, Commissioner of Social Security ("Commissioner" or "Defendant") has moved pursuant to Fed. R. Civ. P. 12(c) ("12 (c)") for judgment on pleadings dismissing the complaint of the plaintiff, Ottavio Mario Johnson ("Johnson" or "Plaintiff"), seeking to reverse the decision of the Commissioner that Johnson was not disabled within the meaning of the Social Security Act, 42 U.S.C. et seq. (the "Act"). 402, § The Plaintiff has cross-moved for judgment on the pleadings pursuant to 12(c). Based on the conclusions set forth below, the Commissioner's motion is granted, the Plaintiff's cross-motion is denied, and the complaint is dismissed. Prior Proceedings On December 7, 2009, Plaintiff filed an application for monthly disability insurance benefit payments. Transcript of the Administrative Record ("Tr.") 121-22. On March 11, 2010, the Social Security Administration ("SSA") denied the application. Tr. 61-62, 65-72. Plaintiff then requested a hearing by an administrative law judge ("ALJ"). Tr. 73. The 1 & ; hearing was held on February 22, 2011. Tr. 23-60. ALJ Roberto Lebron, before whom Plaintiff and his attorney appeared, considered the case de novo, and on April 18, 2011, issued a decision finding that Plaintiff was not disabled. Tr. 9-19. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on September 23, 2011. Tr. 1-6, 7-8. On October 5, 2011, Plaintiff commenced this action to vacate the Commissioner's decision. The instant motion to dismiss was marked fully submitted on December 5, 2012. The Administrative Record The administrative record is described in the Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings ("Def. Mem."), and that description is not challenged by the "Statement of Facts" contained Plaintiff's Memorandum of Law in Opposition to the Defendant's Motion for Judgment on the Pleadings and in Support of Plaintiff's Cross Motion for Judgment on the Pleadings ("Pl. Mem."). 2 Plaintiff's statement of facts relies upon his testimony before the ALJ, and is as follows: The plaintiff was born November 24, 1969 and has a college education. He had been employed primarily as a New York City police officer and, for brief periods, as a security guard and a maintenance worker. The plaintiff has not worked since December 2009 due to a disability resulting from the after effects of injuries sustained in a motor vehicle accident that occurred in 2004. The plaintiff underwent cervical spine surgery and fusion in 2007. He had 2 years of physical therapy thereafter. He also had surgeries bunionectomies-of both feet. Despite the medical interventions, the plaintiff continues to suffer from neck and back pain. 'I am tossing and turning every night. I can't recall when I have gotten more than four hours of sleep straight. That's why my previous doctor has prescribed me Ambien.' He takes Percocet for pain. He cannot perform household chores, and he enlists the aid of friends for this purpose. The plaintiff estimates that he can stand 30-45 minutes at a time, and a total of 2 hours in an B-hour period. He can sit a maximum a half-hour at one time, and a total of not more than 3 hours out of B. He can walk no more than 45 minutes within B hours. Pl. Mem. at 1-2 (citations omitted). Plaintiff also relies upon the testimony of Gerald Greenberg, M.D. vocational expert Peter Manzi ("Dr. Greenberg") and ("Manzi"), as well as a variety of medical evidence including (i) MR1s taken in 2005, and operative report in 2007, (ii) an EMG (iii) an operative report of 200B, 3 hi (iv) a questionnaire by physician Dilip Subhedar, M.D. Subhedar"), (\\Dr. (v) a 2010 report and 2011 letter from Dr. Subhedari and (vi) the report of Leena Philip, M.D. (\\Dr. Philip"). See Reply Memorandum of Law in Further Support of Defendant's Motion for Judgment on the Pleadings and Cross-Motion opposition to Plaintiff's Judgment on the Pleadings ("Def. Reply") at 3 5. The Standard of Review A reviewing court may set aside the Commissioner's decision only if it is based upon legal error or findings that are not supported by substantial evidence. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial evidence" is defined as being \\'more than a mere s ntilla'lI and as quantum of evidence which \\\a reasonable mind might accept as adequate to support a conclusion.'" es, 402 U. S. 389, 401 (1971) ---- N.L.R.B., 305 U.S. 197, 229 chardson v. (quoting Consolo Edison Co. v. (1938)). If is substantial evidence on the record to support the Commissioner's factual findings, they are conclusive and must be affirmed. 42 U.S.C. § 405(g) i _B_u_s_h_v_._ _~_a, 94 F.3d 40, 45 v. Cha t e r , 77 F. 3 d 41, 46 (2 d C i r. 1996). 4 (2d Cir. 1996) i Perez Standard of Disability In order to establish a di of the lity within the meaning , a claimant must demonstrate the inability to engage in any substantial gainful activity by reason of any medical determinable physical or mental impairment which can be expect to re t in death or which has lasted or can be expected to a continuous period of not less than 12 months. U.S.C. § 423 (d) (1) (A). the Under the 42 is not sufficient that imant establish the mere presence of a disease or impairment. Rather, he must show that the disease or impairment caused functional limitat that preclude him from engaging in any substanti 623 F.2d 212, 215-16 (2d Supp. 50, 53 activity. r. 1980) i Rivera v. Coleman v. Shal s, a, 895 F. (S.D.N.Y. 1995). Congress has established the type of necessary to prove the stence of a disabling impairment by defining a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." § 42 U.S.C. 423(d) (3). The statute further provides that an individual will be determined to have a disability "only if his physical or 5 , , mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, ion, and work experience, engage in any other kind of substantial gainful work which exists ln the national economy." 42 U.S.C. § 423 (d) (2) (A). To determine disability, the Commissioner uses a f step sequential evaluation process. finding of disability or non di sequential analysis, cl further. 20 C.F.R. § 20 C.F.R. § 404.1520. If a lity can be made at any point Commissioner will not the 404.1520(a); Williams v. 1, 204 F.3d 48, 48-49 (2d Cir. 1999). At step one, the Commiss considers whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. 404.1520(b). If the § claimant is not engaged in substantial gainful activity, the analysis moves to step two where the Commissioner considers whether the claimant has a "severe" impairment or combination of impairments that significantly limit his physical or mental ability to do basic work activities. 20 C.F.R. 404.1521; Bowen v. ------------------ , §§ 404.1520(c), 482 U.S. 137 (1987). If a severe impairment or combination of impairments is present, at step three the Commissioner considers whether the cl 's impairment meets or s the criteria in Appendix 1 to 20 C.F.R. Part 404, P. See 20 C.F.R. 6 § 404.1520(d). If the claimant does not have a listed impairment, the Commissioner will make a finding regarding the claimant/s residual functional capacity, i.e., what a claimant can do despite his impairments and related symptoms. §§ 404.1520(e), 404.1545. 20 C.F.R. The Commissioner then uses the residual functional capacity finding at the fourth and fifth steps of the sequential evaluation. Id. At the fourth step, the Commissioner determines whether the claimant has the residual functional capacity to perform his past relevant work. 20 C.F.R. § 404.1520(f). The claimant bears the burden of proving that he cannot return to his former type of work. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). See If the claimant is unable to perform any work he has done in the past, the Commissioner considers his residual functional capacity along with his age, education, and past work experience to determine if he can do other substantial gainful activity in the national economy. 20 C.F.R. § 404.1520(g). If a claimant can do other work, the claim will be denied. Id. There Was Substantial Evidence To Support The Decision Of The ALJ The ALJ determined that the Plaintiff could perform sedentary work despite his impairments. 7 Plaintiff alleged that he was disabled due to spinal disease and bilateral foot pain, but despite efforts to contact aintiff's treating sources, see Tr. 33, 151-52 1 166-671 202 1 338 441 the medical records before the ALJ contained evidence of only a single doctorls sit during the alleged period of disabilitYI see Tr. 321-26. April 2009 "progress note[] II This did not reflect a disabling medical condition l but rather merely recorded a complaint of fatigue and a request for an anti-nausea medication a fishing trip. See id. at 321. On February 9 1 2010 1 the consultative examiner l Dr. llipi reported that Plaintiff had some decreased flexion of the cervical spinel a positive straight leg raising sign l and some difficulty standing on his toes. Tr. 329. examination findings were otherwise benign. flex 70 degrees in the lumbar spine. inical Plaintiff could Tr. 329. He had full motion of the joints of his legs and arms l with five ranges out five muscle strength l signs of muscle atrophy. e and non-tender joints l and no Tr. 329-30. Gait and stance were normal. Tr. 329. Plaintiff/s hand and finger dexterity was intact. Tr. 329. Neurologically, reflexes were physiologic and equal 329. I and there were no motor or sensory deficits noted. Tr. Dr. Phillip assessed only that Plaintiff had a "moderate limitation bending l lifting l carrying 8 I pushing and pulling ll due to neck and low back pain. Tr. 329. Her opinion is consistent with the ability to perform sedentary work, which is performed primarily while seated and generally requires the ability to sit for about SlX hours and stand and/or walk for so involves li about two hours, and ing small items such as ledgers, docket files or small tools, weighing no more than ten pounds. 20 C.F.R. The ALJ § 404.1567(a) i Social Security Ruling 83 10. so relied on the medical expert opinion of Dr. Greenberg, who reviewed the medical records and opined that in an eight-hour work day, Plaintiff would be able to sit about six hours, stand and/or walk about two hours and li to ten pounds. Tr. 45-46. In support of his opinion, Dr. Greenberg explained that the report of limited motion cervical spine would not preclude sedentary work. tion, Dr. Greenberg found no support that he had undergone any procedure requi his feet. to be placed a bunionectomy. Tr. 47. Tr. 47. the Tr. 46. In Plaintiff's claim surgical hardware Plaintiff had undergone only According to Dr. Greenberg, at most, aintiff would be off his after such a procedure. up for a maximum of several months Tr. 48. ALJ relied on the medical opinions of Dr. Phillip and Dr. Greenberg because they were well-supported by the 9 minimal medical examination findings reported in the record. See Tr. 17i 20 C.F.R. § 404.1527(c) (the more consistent an opinion is with the overall record, the more weight it will be given) . The ALJ rejected the medical opinion of Dr. Subhedar stating that Plaintiff could not perform even sedentary work because that opinion was not well-supported by the objective findings in the record, and furthermore was contradicted by other medical expert opinions. Tr. 17i 20 C.F.R. § 404.1527(c) Under 20 C.F.R. § 404.1527(c), the medical opinion of a treating physician is not entitled to controlling weight unless it is both well-supported by the clinical and laboratory diagnostic techniques, and is not inconsistent with other substantial evidence in the record. Dr. Subhedar did not report any objective clinical or laboratory findings that supported his opinion, Tr. 345-47, and further, as observed by Dr. Greenberg, Dr. Subhedar's restrictive assessment was not justified by the objective findings that were reported in the record, see Tr. 44 48. The ALJ also exercised reasonable discretion in determining that Plaintiff was not a credible witness because Plaintiff's subjective symptoms were not corroborated by the 10 objective findings or other evidence in the record. 20 C.F.R. § 404.1529. As not Tr. 16-17; ,Dr. Phillip reported some positive findings including a diminished range of motion in the cervical spine and a pos ive straight leg raise, but motor strength, sensation and reflexes were intact. 329-30. Tr. 17i see Tr. aintiff had a normal gait and stance, could flex 70 degrees in the lumbar spine, and had no abnormalit upper or lower extremity joints. of his Tr. 329 30. Because Plaintiff's symptoms were not well-documented by the objective findings in the record, the ALJ considered other non-medical factors such as Plaintiff's ly activit the effects of medication and the treatment he rece 17i 20 C.F.R. § 404.1529(c). s, . See Tr. ALJ observed that Plaintiff's testimony of disabling pain and limitations was inconsistent with the conservative care he received he allegedly became disabled. Tr. 17. January 2009, when The ALJ observed that the more intense treatment that Plaintiff received took place well before the 17. leged onset the claimed disability. Tr. The record did not document any adverse side effects from. medication, nor was there evidence of hospitalization or legedly disabling medi emergency room treatment for an condition. Tr. 17. Plaintiff could care for his personal 11 needs, and lift his son, whom he estimated weighed about twenty pounds. Tr. 40, 42 43. The ALJ had the discretion to evaluate Plaintiff's credibility and arrive at an independent judgment regarding the true extent of the alleged pain in light of medical findings and other evidence. 1984). Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. Further, the ALJ1s credibility determination is due deference because he heard the testimony and observed the demeanor the witnesses. See Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n. 6 (S.D.N.Y. 1995). In view of the minimal abnormal objective findings reported in the record and the infrequent care that Plaintiff received since the of the claimed disability, Plaintiff/s testimony about leged onset ALJ reasonably concluded that sabling pain and limitation was not credible. Because Plaintiff could no longer perform his past relevant work as a police there was any other work age, education, work for a § ficer, the ALJ considered whether aintiff could perform in light of his and residual functional capacity 1 range of sedentary work. 404.1520(g). Tr. 18 19; 20 C.F.R. The ALJ found that Plaintiff was 39 years of age, a "younger" individual within the meaning of the 12 regulations. Tr. 18i 20 C.F.R. § 404.1563. He further found that Plaintiff had a college education and was able to speak English. Tr. 18; 20 C.F.R. § 404.1564. though a iff had work past skilled work as a police officer, transferability skills was not at issue. Tr. 18. Plaintiff's age, education and work experience, along with ability to perform a full range of sedentary work, corresponds to Medical-Vocational Guidelines ("Grids") Rule 201.28, which directs a finding of not disabled. 20 C.F.R. Part 404, Subpart P, Appendix 1. The Grids "take [ 1 into account the claimant's residual functional capacity in conjunction with work experience." (S.D.N.Y. 1996). claimant's age, education and zorilla v. Chater, 915 F. Supp. 662, 667 Based on considerations, the Grids indicate whether the claimant can engage in any substantial gainful work existing in the national economy. See Roma v. Astrue, 468 Fed. Appx. 16, 20 21 (2d Cir. 2012) The ALJ properly relied on the Grids to satisfy the Commissioner's uation. burden at the fifth step of the sequential v. Bowen, 802 F.2d 601, 604 (2d Cir.1986). See Accordingly, the ALJ properly found that Plaintiff was not disabled. Under the Commissioner's regulations, if the Appeals Council received new and material evidence, it may remand the case back to the ALJ further consideration if the evi 13 ision is against the weight of the shows that the ALJ's evidence. 1996). 20 C.F.R. § 404.970; Perez, 77 F.3d at 44 (2d Cir. Plaintiff provided some additional evidence from Dr. Subhedar to the Appeals Council, but consistent with the record before the ALJ, the medical findings do not substantiate the restrictive assessments he provided. Specifically, Dr. Subhedar reported that Plaintiff had a normal gait and was neurologically intact. 362. Tr. 361. plaintiff had normal ranges of motion. Tr. Further, Plaintiff reported "71% relief" of symptoms with a steroid injection in his lower Tr. 365. Accordingly, Plaintiff's submission to the Appeals Council did not show that the ALJ's decision was against the weight of the record, and therefore did not warrant further cons ion. The ALJ properly relied on medical testimony of Dr. Greenberg that Plaintiff was able to sit for about six hours and stand and/or walk two workday, and lift up to ten pounds. of an eight-hour Tr. 45-46. An ALJ may ask and consider opinions from medical experts on ty § a claimant's impairments. 404.1527(e) (2) (iii). to re 20 C.F.R. Further, the regulations on the medical expert's opinion over that source, provided the former is supported by the Commiss of Social Security, No. 03 Civ. 4963 14 nature and t an ALJ a treating v. (SHS) , 2005 WL Schisler v. 1036336, at *15 (S.D.N.Y. May 3, 2005) r. 1994) and livan, 3 F.3d, 563, 568-69 (2d Shalala, 59 F.3d 307, 313 (2d Cir. 1995)) omitted). Diaz v. (quotation marks In this instance, Dr. Greenberg explained that the cervical spine would report of limited range of motion not preclude Plaintiff from performing sedentary work. 48. that the medical record In addition, Dr. Greenberg did not support Plaintiff's claim which surgical hardware had Tr. 44 undergoing a procedure in inserted into his feet. Rather, Plaintiff had undergone bilateral bunionectomy. According to Dr. Greenberg, Id. Id. iff would have been off of his feet no more than several months after the procedure. Id. Though Plaintiff questions relevance of this testimony, see Pl. Mem. at 9, it is indeed evant because Dr. Greenberg's testimony references the that plaintiff had made unsubstantiated claims about having surgical hardware pI in his feet. In addit opinions of Dr. t I the ALJ's acceptance of the and Dr. Greenberg was reasonable because those opinions were consistent with the overall medical record showing minimal medical examination findings and treatment during the pe 404.1527(c) (" under review. See 20 C.F.R. § more consistent an opinion is wi 15 record as a whole, the more weight we will give to that opinion") . Specifically, the medical record before the ALJ showed that from January 31, 2009, the date on which Plaintiff claimed that he became disabled, through April 18, 2011, the date on which the ALJ issued the hearing decision (and thus the close of the period under review), Plaintiff had been seen by a doctor on just one occasion. Tr. 321-23. Moreover, the progress note for that solitary visit did not reveal a disabling condition, as no clinical examination findings were even reported. rd. Upon requesting review of the ALJ's decision, Plaintiff submitted medical records to the Appeals Council which show that he did seek other treatment from Dr. Subhedar during the relevant period. Tr. 361-63. Although the ALJ did not have an opportunity to consider this evidence because it was submitted after he rendered the decision, upon judicial review, the Court does consider such evidence in determining whether substantial evidence supports the ALJ's decision. Perez, 77 F.3d 41, 45 (2d Cir. 1996). The evidence submitted to the Appeals Council supports the ALJ's decision to rely on the medical opinions of Dr. Philip and Dr. Greenberg. These records show that Plaintiff saw Dr. Subhedar on October 26, 2010, (nearly two years after he claimed 16 back pain. Accordingly, he became disabled} for a complaint they substantiate the fact that Plaintiff sought minimal disability. treatment during the alleged period cl Further, the cal examination findings reported at this visit reflect that Plaintiff had a normal gait, his lumbar spine was normal in terms of motion and tenderness, and neurological findings were intact. Tr. 362. On March 30, 2011, Dr. Subhedar provided an injection of lidocaine solution o the L5 Sl area, from which aintiff reported 70% relief his pain. Tr. 365. Accordingly, these records are consistent with the overall record in reflecting minimal treatment Plaintiff obtained reI f findings, and also show that s symptoms when he eventually did seek treatment. Plaintiff has challenged the ALJ's finding not adopting the medical opinion of Dr. Subhedar, contending Dr. Subhedar's opinion restricting Plaintiff to less than sedentary work was supported by clinical examination findings of "muscle spasm, numbness and weakness," reported by Dr. Subhedar on October 26, 2011. See Subhedar did not in findings. Tr. 361. . Mem. at 4, 8-9. However, Dr. t report any such clinical The "findings" referred to by were subjective complaints that Plaintiff himself Dr. Subhedar in relating his medical history at 17 ion iff to October 26, 2011, exam. Tr. 361. Upon examination of Plaintiff on that occasion, Dr. Subhedar reported that Plaintiff's dorsal and lumbar ine was normal for tenderness, spasm and range of motion. Tr. 362. In addition, neurological examination was normal as far as sensory or motor ficits and reflexes. Tr. 362. Further, Dr. Subhedar's opinion is inconsistent with the minimal objective findings reported elsewhere in the record, the overall minimal treatment Plaintiff sought during the period of alleged disability, and the medical opinions of Dr. Philip and Dr. Greenberg. Accordingly, the ALJ properly declined to adopt Dr. Subhedar's opinion. See Quinones v. Barnhart, No. 05 Civ. 579 (PKC) , 2006 WL 2136245, at *7 (S.D.N.Y. Aug. I, 2006) (upholding denial of benefits where ALJ properly found that medical opinions were not supported by the medical evidence and were inconsistent with the entirety record) i see the so Gonzalez v. Chater, No. 93 Civ. 7200 (BSJ) , --------- 1996 WL 442798, at *5-6 (S.D.N.Y. Aug. 6, 1996) (opinion treating source is not binding if it is contradicted by substantial evidence, such as the report of a consultat physician) . 18 a Because Plaintiff's symptoms were not well-documented by the objective findings in the record, other non medical factors such as PI ALJ considered iff's daily activities, the effects of medication and the treatment he received. 17; 20 C.F.R. § 404.1529{c). Tr. The ALJ observed that Plaintiff's testimony regarding disabling pain and limitations was inconsistent with the conservative care he received since January 2009, when he allegedly became disabled. treatment received by ALJ observed that the more Plaintiff took place well be claimed disability. Id. Tr. 17. The leged onset of the The did not document any adverse side effects from , nor was there evidence of hospitalization or emergency room treatment for an alleged disabling medical condition. Id. The ALJ had the discretion to evaluate Plaintiff's credibility and arrive at an independent judgment regarding the true extent of the alleged pain in light of medical findings and Moreover, the ALJ's evidence. Mimms, 750 F.2d at 186. lity determination is due deference because he heard the testimony and observed the demeanor of the witnesses. -=-=-=-=-=-=-----"'--'- , 882 F. Supp. at 1419 n. 6. PIa iff's ecture that the ALJ may have been "unduly influenced by an unfounded assumption of malingering" because he noted iff lacked incentive to return to work 19 because he was receiving a police department disability pension l . Mem. at 9 1 is belied by the substance of the ALJ's decision, which ects due consideration light of the obj in the record. aintiff/s symptoms in ive findings and other nom-medical findings Thus, the ALJ/s cons lack of motivation stemming from ion of a perceived aintiff/s monthly $5 / 500.00 police pension, even if improper, was not a determinat factor and does not constitute error. See Gonzalez, 1996 WL 442798 at * 7 (rejecting the pI iff/s contention that ALJ based his ermination to deny benefits solely on perceived lack motivation based on receipt of pol pension l where the ALJ based his finding regarding residual functional capacity upon several medi opinions in the record reliance on perceived of mot l concluding that any ion, even if improper, was not determinative and therefore did not constitute error) . 20 Conclusion Commissioner's decision was supported by substantial evidence. Consequently, the Commissioner's motion is granted, the Plaintiff's cross-motion is deni complaint is dismissed. It is so ordered. New Yort-L NY April [2013 'f U.S.D.J. 21 I and the
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