Butts v. Astrue, No. 1:2011cv06769 - Document 15 (S.D.N.Y. 2012)

Court Description: OPINION re: 13 CROSS MOTION for Judgment on the Pleadings. filed by Michael J. Astrue. Based on the facts and conclusions set forth above, Butts' Rule 12(c) motion for judgment on the pleadings is denied, the Commissioner's motion for judgment on the pleadings is granted and the denial of Butts' application for disability benefits is affirmed. (Signed by Judge Robert W. Sweet on 9/5/2012) (jfe)

Download PDF
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---x CELESTE BUTTS, Plaintiff, 11 Civ. 6769 against- OPINION MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. ----- X A P PEA RAN C E S: USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATEFI-LE-'D-:-1~/-v~~-~-- Attorney for Plaintiff INSLER & HERMANN, LLP 80 Grasslands Road Elmsford, NY 10523 By: Gabriel Jacob Hermann, Esq. Lewis B. Insler, Esq. Attorney for Defendant PREET BHARARA UNITED STATES ATTORNEY, SOUTHERN DISTRICT OF NEW YORK One St. Andrew's aza New York, NY 10007 By: Susan D. Baird, Esq. Sweet, D.J. Plaintiff Celeste Butts ("Butts") has filed a motion pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings to review and r@verse the decision of Defendant Michael J. Astrue, the Commissioner of Social Security (the "Commissioner") denying Butts disability benefits. The Commissioner has opposed Butts' motion and has filed his own cross-motion for judgment on the pleadings. On the facts and conclusions set forth below, Butts' motion is denied, the Commissioner's cross-motion is granted and the denial of Butts' application for disability benefits is affirmed. Prior Proceedings Butts filed an application with the Social Security Administration for disability benefits on March 18, 2007 (Tr. 116 18).1 Her application was denied on May 30, 2007 (Tr. 77), and Butts requested a hearing by an Administrative Law Judge (\\ALJ") (Tr. 82 84). On September 8, 2009, a hearing was held before ALJ Paul Heyman (Tr. 23-73), and, on September 30, 2009, the ALJ issued a decision finding Butts to be not disabled (Tr. 1 "Tr." Refers to the transcript of the administrative record filed by the Commissioner. 1 14-22). Butts l request The Appeals Counsel deni September 10 1 2010 (Tr. 10-12). Council set asi On May 2, 2011, its earlier act a copy of the tape (Tr. 7 8). review on Appeals so that Butts could receive On July 25, 2011, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Buttsl request for review (Tr. 1 3). After the Appeals Council upheld the ALJ's decision, Butts commenced this action 271 2011. l filing complaint on September On May 8, 2012, Butts filed her Rule 12(c) mot judgment on the pleadings. After the parties consented to two extensions, the Commissioner filed his opposition and cross motion for judgment on the pleadings on August 14. The two ly submitted on August 27. motions were marked The Facts Butts was born on July 15, 1963 high school equivalency her 18, 2006 injury was 42 years old. oma (Tr. 30, 152). gave rise to At the time s litigation, Butts Prior to her injury, Butts had worked for 17 years as a school safety Schools (Tr. 139). (Tr. 116) and has a in the New York City Public In this position, Butts was required to walk 2 for six hours a day, stand for six hours a day, sit for one half hour per day, climb for two hours per day, handle and grab or grasp big objects for six hours a day, among other duties (Tr. 149). She was also required to lift 100 pounds or more and restrain students of varying heights and weights (Tr. 149). Butts states that she was stationed in a known high-risk, hostile environment where chronic problems occurred on a daily basis (Tr. 149). On May 18, 2006, Butts suf red neck, back and right shoulder (Tr. 148) on the job by a student (Tr. 30 31). uries to her head, ter she was attacked On the day of the incident, Butts was treated at Weiler Hospital in the Bronx (Tr. 179). The medical records note that Butts "[complained of] headache to the parietal area of scalp [status post) fell and hit head on floor during a struggle [with] 12 [year old] disorderly child in afternoon today at 12:15" computerized tomography ("CT") scan (Tr. 185). (Tr. 179). A the head was unremarkable Following the attack, Butts stated that she could not exert herself any way, could not sit, stand or walk for reasonable periods of time, could not lift carry or climb, and suffered from chronic pain that prevented her from sleeping (Tr. 148) . 3 After the Weiler Hospital visit, Butts received medical treatment from an orthopedic surgeon, Dr. Michael Palmeri. In a report dated June 22, 2006, Dr. Palmeri concluded that Butts had a post-concussive syndrome, cervical and lumbar strain with radiculopathy and left shoulder impingement syndrome (Tr. 192). In a report dated one week later, June 29, 2006, Dr. Palmeri notes that Butts has complained of injuries to her neck, left shoulder and back following a work-related incident and that she is suffering from headaches (Tr. 191). Dr. Palmeri assessed a thoracolumbar sprain, but deep tendon reflexes and motor function were intact (Tr. 192). The report notes that Butts has an antalgic (pain-based) gait pattern with restricted range of motion of the cervical spine and spinal tenderness and spasm (Tr. 191). Dr. Palmeri's report stated: "My impression is that Ms. Butts suffers from a cervical and lumbar strain with radiculopathy and left shoulder impingement syndrome. I request authorization for an MRI examination of the cervical spine, thoracic spine, lumbar spine and left shoulder. authorization for physical therapy. course of Naprosyn and Skelaxin. disabled. I also request She should continue a She is temporarily totally She should follow up in the next two to three weeks for a repeat evaluation." (Tr. 191). 4 In addition to Dr. Palmeri, Butts also came under the care of Dr. John Vlattas, a spec rehabilitation. ist physical medicine and In a letter dated July 7, 2006, Dr. Vlattas described Butts as "a pleasant and cooperative female who appears somewhat uncomfortable and move[s] slowly during the examination" (Tr. 188). Dr. Vlattas found tenderness and spasm between the shoulder blades and various positive findings in the lower back and left shoulder, concluding that her May 18, 2006 injury resulted in: (1) concussion with postconcussion syndrome; (2) cervical sprain/strain, myofascial pain, bilateral cervical radiculopathy; (3) thoracic sprain/strain; (4) lumbosacral sprain/strain, right lumbosacral radiculopathYi (5) consider cervical lumbar disk herniation; and (6) left shoulder rotator cuff pain (Tr. 188). Based on these findings, Dr. Vlattas requested MRI studies, physical therapy, medication and possible trigger point and intraspinal injection, depending on the outcome of the MRIs (Tr. 188-89). In this July 7, 2006 report, Dr. Vlattas described Butts as "markedly, parti capable sedentary-type work" (Tr. 189). ly disabled, Butts continued to see Dr. Vlattas, visiting him on 23 occasions between July 2006 and April 2009. On August 8, 2006, Butts again visited Dr. Palmeri, who reported that Butts had restricted range of motion of the 5 cervical, thoracic lumbar spine (Tr. 490 91). Dr. Palmeri so reported weakness upon resistance in the left shoulder (Tr. 490). Deep tendon reflexes were intact, and Butts could heel­ walk without significant difficulty (Tr. 490). Dr. Palmeri continued his assessments of cervical and lumbar strain with radiculopathy, and left shoulder impingement syndrome, but dropped the assessment of post-concussive syndrome (Tr. 490) When seen on August II, 2006, Dr. Vlattas assessed Butts as "temporarily, totally disabled for her employment, overall, markedly, partially disabled" (Tr. 452). An MRI of Butts' cervical spine on August 17, 2006 indicated a disc herniation at the C6-C7 with compression upon the cord and mild cranial extension of 298, 496 97). Also sent was disc herniation (Tr. sc degenerative change at the C4-C5 level with ventral marginal osteophyte formation and broad based disc bulge, which abutted the ventral cord (Tr. 298). An MRI of the thoracic spine showed no evidence of disc herniation or compression (Tr. 296, 503-04). An MRI of the lumbar spine the following day showed broad, left-sided disc herniation at the L4 5 level with the disc material narrowing the left side neural foramina and abutting the existing Ie nerve root (Tr. 295). L4 Also present were degenerative changes at the L5-S1 disc level associated with a central annular tear and 6 cent subligamentous disc herniation and straightening of the lumbar lordosis consistent with muscular spasm (Tr. 295). An August 221 2006 MRI of the left shoulder on the same date was unremarkable, showing no evidence of a rotator cuff tear or acute injury (Tr. 294 1 505-06). When seen on September 15, 2006, Dr. Vlattas evaluated Butts as "markedly, partially disabled l capable type work" (Tr. 242). sedentary- On September 20 1 2006, Dr. Palmeri noted restrictions of ranges of motion l shoulder weakness upon resistance, but intact deep tendon reflexes (Tr. 484). State of New York Workers I On a Compensation Board form, Dr. Palmeri stated that Butts was totally disabled from her regular work duties (Tr. 485). On October 171 2006, Dr. Palmeri assessed "worsening left shoulder impingement syndrome," cervical and lumbar strain with possible radiculopathy and herniated nucleus pulposi (Tr. 483). A report from Dr. Vlattas dated November 14, 2006 notes that Butts was involved in a motor vehicle accident on November 11 2006 (Tr. 239). On November 14, 2006 f Dr. Palmeri stated that Buttsl cervical and thoracolumbar strain with radicu10pathy and Ie shoulder impingement had "worsened after a recent motor vehicle accident" on November 1f 2006 (Tr. 482). 7 In a letter dated February 28, 2007, Dr. Vlattas confirmed that Butts "had an aggravation of her injuries due to a motor vehicle accident on 11/01/2006." (Tr. 231). In response to this aggravated injury, Dr. Vlattas prescribed resumption of Butts' physical therapy, and he continued to assess Butts as partially disabled from her job (Tr. 231). On March 14, 2007, Dr. Barry M. Katzman, an orthopedic surgeon, performed an independent orthopedic examination of Butts (Tr. 194). Dr. Katzman's examination revealed full range of motion of her cervical and lumbar spine, no tenderness and the Spurling's maneuver was negative (Tr. 195). There was full strength in the arms, and reflexes were symmetrical (Tr. 195). Sensation to light touch was normal, and there was full strength in the legs (Tr. 195). Butts' left shoulder showed full range of motion, and there was no tenderness over the rotator cuff, biceps or acromioclavicular joint (Tr. 196). With respect to Butts' ability to work, Dr. Katzman stated: "The claimant was not working at the time of this examination, and from an orthopedic standpoint, she could return to work." (Tr. 196). Butts states that the validity of Dr. Katzman's findings is limited because he was asked to examine Butts only with respect to a head injury. 8 On May 41 2007 1 Dr. William Lathan performed a consultative internal medicine medical examination (Tr. 202-05) Butts stated that she could perform all act care and daily I (Tr. 202). ties of personal Dr. Lathan stated that Butts was not in distress l that her gait was normal and that she had a normal stance (Tr. 203). showed full Examination of cervical spine of motion l and the thoracic spine showed no abnormalities (Tr. 203-04). The lumbar 75 degrees at which time Butts compl There was I showed flexion to of pain (Tr. 204). extension l lateral f movement of lumbar spinel but of the shoul I elbows l forearms and rotat was full range of mot wrists (Tr. 204). was also full range of motion of the hipsl knees and ankles l and muscle st x-ray of curve I was normal in the arms and legs (Tr. 204). lumbosacral spine showed a straightened but no bony or disc pathology (Tr. 204 respect to Buttsl employment restrict I 1 206). An ic Wi Dr. Lathan placed a moderate for bending (Tr. 204). Butts contends Dr. Lathan/s studYI which was ordered by the Commissioner l is notable for its dissimil ty from all the treating source examinations. In February cont I April and June 2007, Dr. Vlattas to describe Butts as "markedly partially (Tr. 231 1 2271 225). sabled ll During a visit on August 171 2007 1 Dr. 9 Vlattas evaluated Butts and continued to describe her as "markedly partially disabled, capable sedentary work" (Tr. 222). Dr. Vlattas recommended Tyl as needed for pain (Tr. 222). Dr. Vlattas made a similar recommendation of Tylenol for pain on September 28, 2007 (Tr. 219). On November 2, 2007, Dr. Vlattas administered trigger point inject to the shoulder girdle that, following (Tr. 216). Dr. Vlattas the injections, Butts apply ice, then moist heat and that she continue physical therapy (Tr. 216). On 11, 2007, Dr. Vlattas noted that Butts reported "some improvement with trigger point inject only temporarily" (Tr. 213). her monthly visits to Dr. Palmeri ended in November 2006, Butts returned to see Dr. Palmeri on June 3, 2008. At that t she complained of mid and lower back pain with radiation into the left leg and shoulder pain with weakness. An examination found tenderness at the shoulder region with decrea muscle spasm and similar findings requested authorizat range of motion, as well as ss and significant loss the lower back. motion plus As a result, Dr. Palmeri for lumbar epidural inject and indicated that he was still awaiting authorization for Ie shoulder arthroscopic (Tr. 411). 10 Butts testified that Dr. Palmeri performed surgery on her shoulder on August I, 2008 that the pain is worse physic (Tr. 36-37). Butts stated ter the surgery and that some have recommended surgery on her back (Tr. 38) Post- done physical therapy (Tr. 40) and takes surgery, Butts Vicodin on an as-needed basis to control her pain (Tr. 44). Butts has stated that the Vicodin makes her groggy and ti and she takes three pills per day (Tr. 45). During a sit on August 8, 2008, Dr. Vlattas noted , following the surgerYI Buttsl Ie shoulder was healing, Dr. Vlattas l impressions were but showing weakness (Tr. 542). (1) cervical sprain/strain with cervical disk herniation l syndrome, and bilateral cervical myofasical (2) thoracic sprain/strainj culopathYi (3) L4-L5 andL5 Sl disk herniations l bilateral lumbar radiculopathYI lumbar facet pain and bilateral sacroiliac join painj and (4) left shoulder rotator cuff sprain l status post left shoulder arthroscopy 8/01/2008 with postoperative 1 limited motion and weakness (Tr. 543). Vlattas again described Butts as "temporarily tot Dr. ly disabl (Tr. 543). On September 23 and limited range 1 2008 1 Dr. Vlattas not tenderness motion and weakness of the left shoulder 11 (Tr. 539). motion He also reported tenderness and limited range of the cervical thorac sacroiliac joints (Tr. 539). and lumbar spine, with tender Dr. Vlattas continued to describe Butts as temporarily totally disabled for purposes of her prior employment (Tr. 540-41). A November 111 2008 examination yielded the same finding (Tr. 537). Electromyography and nerve conduction studies were conducted on December 26 1 2008 36, 581 87). (Tr. 530­ Dr. Vlattas evaluated the studies as showing left L5 radiculopathy (Tr. 530). His report discussed the need for further lumbar injections and the possibility of orthopedic surgery (Tr. 530-31). Dr. Vlattas continued to see Butts in January, March and April 2009 1 and continued the same impressions l describing Butts as totally disabled for purposes of her prior employment, and overall, markedly partially disabled (Tr. 529 1 525, 523). In the March 3 1 2009 examination l Dr. Vlattas requested lumbar epidural injections and Vicodin as needed for pain (Tr. 524-25). of Butts' condition Dr. Vlattas provided a similar description a note detailing the April 14, 2009 examination (Tr. 522-23). In a questionnaire provided by Butts' counsel dated April 14, 2009 1 Dr. Vlattas found Butts to suffer from pain that was sharp, moderate to severe and frequent 12 (as opposed to constant or occasional) and that this pain interfered with Butts' attention and concentration (Tr. 570-71). According to her testimony, Butts was involved in a car accident on June 3, 2009 (Tr. 33). On June 9, 2009, Butts returned to Dr. Palmeri for a follow-up evaluation (Tr. 513-14, 518). Butts reported that she had been involved in the June 9 motor vehicle accident, and, on physical examination, Butts exhibited an antalgic gait (Tr. 513). Evaluation of the cervical spine showed a moderate restriction of range of motion with moderate spasms in the left trapezius, and a positive Spurling's sign (Tr. 513). Butts' deep tendon reflexes were intact, and evaluation of the left shoulder revealed healed wounds (Tr. 513). Dr. Palmeri's impression was that Butts suffered from a continued cervical and thoracolumbar strain with radiculopathy and continued pain her left shoulder after the left shoulder injury and that these injuries were exacerbated by the June 3, 2009 car accident (Tr. 514). Dr. Palmeri recommended that Butts remain out of work for three to four weeks, and his opinion stated that Butts was "temporarily totally disabled" (Tr. 514). When Dr. Vlattas saw Butts on June 16, 2009, Butts reported the car accident (Tr. 507). Dr. Vlattas noted a right trunk shift with paraspinal spasm and 13 tenderness, and he reported that straight leg raising was positive on the right and Ie Because of (Tr. 507). injuries sust did not return to work (Tr. 32, 43) Department Workers' Compensation ned in May 2006, Butts A City of New York Law sion form indicates that Butts received partial temporary workers' compensation benefits for the period May 19, 2006 through January 8, 2007 (Tr. 115) Butts has stated that the pain in her lower back and neck worsened as a result Butts has the June 2009 car accident (Tr. 35) so stated that she gets headaches regularly, as often as three to four times per week (Tr. 61). Butts testified that she never received treatment for her headaches, but that took Vicodin prescribed by Dr. Palmeri her back and neck pain to relieve her headache symptoms (Tr. 63). Butts testified that she continued driving after her June 2009 car accident and drove her son to school, which is about a half hour away (Tr. 50). She also drove 25 to 30 minutes to the supermarket (Tr. 46) and drove to medical appointments and physical therapy (Tr. 41). Butts also testified that she went to church once per month (Tr. 135) and went to South Carolina to visit family, though she was not the driver on the trip (Tr. 42). Butts also visits the cas 14 twice every six months (Tr. 134). Although Butts is able to clean the house for five hours, she takes breaks at half-hour intervals (Tr. 51-52). Butts' daughter helps her with the laundry (Tr. 52), and her son helps with taking out the garbage (Tr. 52). According to her testimony, Butts is able to sit through two hour-long television shows while sitting with a pillow (Tr. 56), and she can sit through dinner with her son (Tr. 57). Butts also stated that she could follow written and spoken instructions and had no problems getting along with bosses, teachers, police or other people in authority (Tr. 136). Raymond Cestar ("Cestar"), a vocational expert, testified at Butts' hearing (Tr. 59-61, 113). Cestar testified that Butts' past job was characterized as a security guard, which was light work (Tr. 60). The ALJ asked Cestar about a hypothetical younger person who could perform sedentary work that did not require exposure to heights or use of dangerous machinery (Tr. 65). Cestar stated that such an individual could not perform the job of security guard, but could perform the sedentary jobs of surveillance system monitor, clerical worker or small parts assembler (Tr. 65-66). According to Cestar's testimony, there were 1,000 surveillance system monitory jobs locally and 25,000 such jobs nationally; 1,600 unskilled clerical worker jobs locally and 26,000 nationally; 1,200 15 unskilled small parts assembler jobs locally and 100,000 jobs nationally (Tr. 65). Cester also testified that the surveillance systems monitor jobs permitted an individual to sit and stand at will (Tr. 65). Cester also identified two light jobs a hypothetical younger person could perform that did not require exposure to heights or use of dangerous machinery and that permitted a sit/stand option (Tr. 66). These jobs included parking lot cashier and ticket seller/cashier (Tr. 66-67). There were 2,200 parking lot cashier jobs locally and 35,000 such jobs nationally, and 2,700 ticket seller/cashier jobs locally and 144,000 jobs nationally (Tr. 66-67). The Applicable Standard The Social Security Act provides that the "findings of the Commissioner of Social Security as to any fact, by substantial evidence, shall be conclusive[.]" 405(g) i if supported 42 U.S.C. § see Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 Cir. 1996). (1971) i Perez v. Chater, 77 F.3d 41, 46 (2d Thus, if a court finds that there is substantial evidence supporting the Commissioner's determination, the Commissioner's decision must be upheld, even if there is also substantial evidence for a plaintiff's position. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) 16 i Alston v. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982) i see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1988) (Commissioner's decision affirmed where substantial evidence supported both sides) . Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson t 402 U.S. at 401 (quoting Consolo Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206 t 83 L.Ed. 126 (1938) Barnhart t 362 F.3d 28 t 31 (2d Cir. 2004). i Halloran v. The substantial evidence test applies not only to findings on basic evidentiary facts t but also to inferences and conclusions drawn from such facts. See of Health & Human Servs. t 62 F. v. Sect Supp. 2d 1104 t 1106 (S.D.N.Y. 1999) F. Supp. 421, 423 (S.D.N.Y. 1977). z v. Califano t 431 i The rule that the Commissionert s findings of fact, as well as the inferences and conclusions to be drawn from those findings t are conclusive applies even those instances where a reviewing courtts independent analysis of the evidence may differ from the Commissionerts analysis. Rutherford v. Schwe 62 63 (2d Cir. 1982) 1207 t 75 L.Ed.2d 447 (1983). f t 685 F.2d 60 t cert. denied t 459 U.S. 1212t 103 S.Ct. In shortt the reviewing court is 17 not to decide the case. Halloran, 362 F.3d at 31; Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). In order to establish disability under the Act, a claimant has the burden of establishing: (1) that she was unable to engage in substantial gainful activity by reason of a physical or mental impairment that could have been expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment was demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory techniques. 42 U.S.C. § 423(d)(1)(A)i Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). More particularly, the Act provides: An individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 423(d) (2) (A). 18 For a person to be found of the Social establish claimant sabled wi the meaning ty Act, it is not sufficient t she mere presence of a disease or impairment. the burden of The ion to show that the disease or impairment has caused functional limitations that preclude her from engaging in any substantial gainful activity and thus that she is entitled to benefits. 1033 t Servs. 1037 (2d Cir. 1983) t 705 F.2d 638, 642 Mongeur v. Heckler 1 v. Sec' i t 722 F.2d of Health & Human (2d Cir. 1983). Butts' Rule 12(c) Motion Is Denied, The Commissioner's Motion Is Granted And The Denial Of Butts' Application For Disability Benefits Is Affirmed According to Butts, the ALJ's illustrates his predispos ion to deny the c is of the record im, and proper analysis of the evidence would lead to a finding that Butts is disabl decis In contrast, Commissioner contends that the that Butts was not disabled is supported by substantial evidence and should firmed. Because the Commissioner's findings are supported by substantial evidence and because Butts has f led to demonstrate bias or error in the ALJts analysis of the evidence present pI ,Butts' motion for judgment on the is denied t and the Commissioner's motion for judgment on the pleadings is granted. 19 The points motions dispute raised in the parties' cross judgment on the pleadings concern two issues: the ALJ's analysis of Butts' "residual functional capacity" (RFC) , and the ALJ's use of the vocational expert/s testimony. According to Butts, the ALJ engaged in an improper evaluation of Butts' RFC because he misinterpreted the evidence presented and failed to afford controlling weight to the medical opinions of Butts' treating physicians. Additional ,Butts contends that the ALJ misinterpreted the testimony the vocational expert, Cestar, offered at the hearing. Notwithstanding Butts' contentions, the ALJ's finding that Butts is not disabled was supported by substanti evidence, and the Commissioner's decision to deny disability benef s is affirmed. A. Substantial Evidence Supports The ALJ's Findings Concerning Butts' RFC In evaluating whether a claimant is disabled, a five step sequential evaluation process is employed. 404.1520(a) (1). See 20 C.F.R. These five steps ask that the ALJ consider: a claimant's work activity, if anYi (1) (2) the medical severity a claimant's impairment, finding a claimant to be not disabled if the claimant does not have a severe medically determinable 20 § physical or mental impairment, or combination of impairments, that meets the duration requirement of twelve months; (3) the medical severity of a claimant's impairment, finding a claimant to be disabled if the claimant has an impairment that meets or equals one of the impairments on a specified listing and meets the duration requirement of twelve months; (4) a claimant's RFC and past relevant work to determine if a claimant can perform her previous occupation; and (5) a claimant's RFC and age, education and work ence to determine if a cIa work. make an adjustment to See 20 C.F.R. can § 404.1520 (a) (4) (i v) . with re to the RFC analysis, the Second Circuit has held that an ALJ must specify the basis for a finding as to residual functional ity. White v. Sec' Servs. , 910 F.2d 64, 65 (2d Cir. 1990) . th RFC is & Human fined as "the most [a claimant] can still do despite [his or limitations." ALJ cons 20 C.F.R. § 404.1545(a). In a claimant's physical abilit other impairments and total limiting ef cts. ing RFC, an , mental abilities, See id. Since the ALJ found that Butts met her burden of establishing that she could not do her past relevant work, burden shifted to the Commiss to show the existence of other jobs in the national economy Butts was capable of performing. 21 See Berry v. Schweiker, 675 F. 2d 464, 467 (2d C . 1982) ("The claimant bears the initial burden of showing that his impairment prevents him from returning to his prior type of employment. meets that burden, burden shi If he s to the Secretary to prove the existence of alternative substanti gainful work which exists in the national economy and which claimant could perform . . "). Here, the ALJ concluded that: After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b). She can sit for six to eight hours an eight hour day, stand/walk six hours in an eight hour day, except she needs a sit/stand option, and lift and carry ten pounds frequently and twenty pounds occasionally. (Tr. 19). The applicable regulation def light work: Light work involves 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 may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods time. 22 20 C.F.R. § 404.1567(b). Butts contends that nothing the record supports the RFC found by the ALJ. Butts criticizes the ALJ for giving controlling weight to the opinion of Dr. Lathan, notwithstanding the fact that Butts' two main treating physicians - Dr. Vlattas and Dr. Palmeri - repeatedly made findings of tenderness and spasm supporting Butts' complaints of pain. Butts contends that Dr. Lathan's opinion cannot be bolstered with Dr. Katzman's opinion, as Dr. Katzman based his findings only upon examination of Butts' head injuries. According to Butts, the trip to South Carolina cannot be used as evidence of her functional capacity, as that trip was only made possible by Butts' use of medication. Additionally, Butts states that the ALJ erred in analogizing Butts' daily activity level to the ability to sustain an RFC, as the ability to participate in routine activities does not rebut statements of pain or impairment unless there is proof that the claimant is engaged in those activities for sustained periods of time comparable to those required to hold a job. See Polidoro v. Apfel, No. 98 Civ. 2071, 1999 WL 203350, at *8 (S.D.N.Y. Apr. 12, 1999) (citing Carroll, 705 F.2d at 643). Notwithstanding Butts' contentions, substanti evidence, in the form of both medical opinions as well as 23 descriptions of Butts l dailyactivities l supports the ALJ/s finding that Butts has the RFC to perform light work that allowed for a sit/stand option. However, before delving into the medical evidence, Butts' contention regarding the ALJ's alleged inappropriate weighting of this evidence must first be addressed. Butts contends that the ALJ erred in not giving the opinions of Butts' treating physicians the controlling weight to which they were entitled. If a treating source opinion is both "well supported" and "not inconsistent with the other substantial evidence," then the opinion should be given "controlling weight." 20 C.F.R. § 404.1527(c) (2). A claimant's subjective evidence of pain is entitled to great weight where it is supported by objective medical evidence. 15 F. Supp. 2d 215,219 (N.D.N.Y. 1998) Melchior v. Apfel, (citing Simmons v. U.S. R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir. 1992». According to Butts, the MRIs in this case contain significant positive objective findings. Butts also notes that complaints of pain are noted in virtually all of the office from her testimony at the hearing. sits and are clear According to Butts, Dr. Vlattas' opinion regarding Butts' inability to focus and concentrate is entitled to "controlling weight," yet the ALJ did not afford this opinion the degree of deference to which it is 24 entitled, instead inappropriately relying on Dr. Lathan's May 4, 2007 examination. The regulations governing how the Social Security Administration weighs medical opinions state: Generally, we [the Social Security Administration] give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence your case record, we will give it controlling weight. 20 C.F.R. § 404.1527(c)(2). Although Butts faults the ALJ for giving controlling weight to the opinions of Dr. Lathan and Dr. Vlattas, neither Dr. Vlattas nor Dr. Palmeri indicated that Butts was precluded from working. Dr. Palmeri assessed Butts as "temporarily totally disabled," (Tr. 191, 514), and Dr. Vlattas considered Butts to be, in some reports, "partially disabled," (Tr. 225, 231, 452, 523, 525), while in other reports Dr. Vlattas 25 considered Butts to be "parti sedentary type work" disabled, capable of (Tr. 189, 222, 242). As such, the opinions Butts' treating sources do not suggest Butts to be unable to work. Butts has fail to highlight any aspect of these opinions stating that Butts cannot perform the light work the ALJ determined she could perform. Additionally, Dr. Vlattas and Dr. Palmeri rendered their opinions in connection with Butts' claim compensation benefits. workers' While a physician may render an opinion regarding an individual's disabili in context of a workers' compensation benefits claim, that opinion is not necessarily relevant for purposes of determining disability under the Social Security Act. 293,299-301 n.8 See Gray v. Chater, 903 F. Supp. (N.D.N.Y. 1995) ("The issue disability for purposes of workers' compensation is different from disabil for purposes and SSI benefits."). issue of Social Security disability benefits Unlike opinions of Dr. Vlattas and Dr. Palmeri which were rendered for workers' compensation purposes, Dr. Lathan's opinion was requested by the Commissioner for purposes of determining Butts' disabled status. Thus, the ALJ's decision to give Dr. Lathants opinion greater weight is reasonable. 26 "Genuine conflicts in the medical eVl Commissioner to resolve." (2d Cir. 2002) Veino v. Barnhart, 312 F.3d 578, 588 see also 20 C.F.R. § 416.946(c) i are for the (assessment of RFC is a responsibility of the ALJ, who is trier of Butts has led to identify any portion of the ). s of Dr. Vlattas and Palmeri suggesting Butts to be unable to perform the light work ALJ described in emphasizes regulations concerning the primacy of treating s opinion. Although Butts source opinions, the fact that the opinions of Dr. Vlattas and Dr. Palmeri were rendered in the context of a workers' compensation claim provide a reasonable basis for the ALJ to weigh more heavi the opinions of Dr. Lathan and Dr. Katzman to determine Butts' sabled status. contention that Accordingly, Butts' ALJ erred in fail weight to the medi to give controll opinions of Dr. Vlattas and Dr. Pal is without merit. Consideration of the evidence reveals that substant concerning Butts' RFC. fered at the hearing evidence supported s substantial evi ALJ's finding takes the form of both medical opinions as well as descriptions of Butts' life act ties. The report a consultative physician may constitute substantial evidence to support the ALJ's decision. See ------~"--- , 722 F.2d at 1039. Here, substanti 27 evidence supporting the ALJ's ermination regarding Butts' RFC is presented in opinions from Dr. Lathan and Dr. Katzman. Dr. Lathan's examination revealed that Butts' gait was normal, that diff walked on heels and toes without ty, that she performed a full squat and that she had a normal stance (Tr. 203). help changing Butts required no assist device or the examination, she could climb onto and off the examination table and was able to rise from a chair without fficult (Tr. 203). Dr. Lathan noted a limitation in Butts lumbar spine flexion, but Butts had full ranges of motion in her cervical spine, her thoracic spine was normal and there was full range of mot of the shoulders, elbows, forearms, wrists, hips, knees and ankles (Tr. 203 04). Muscle strength was normal in the arms and legs, joints were stable and non-tender, and a neurologic examination showed that deep tendon reflexes were physiologic and equal in the arms and legs (Tr. 204). Dr. Lathan considered Butts' condition "stable" and noted only t "[t]here is a moderate rest ction for bending" (Tr. 204). Similarly, Dr. Katzman found full ranges of motion in Butts' cervical lumbar spine and left shoulder (Tr. 195-96). Dr. Katzman reported Butts' reflexes and sensation to be normal, as was the straight leg sing test (Tr. 195). 28 Dr. Katzman so reviewed notes from Dr. Palmeri and Dr. Vlattas (Tr. 196), and he assessed that "from an orthopedic standpoint, could return to work. II (Tr. 196). [Butts] Although Butts contends that Dr. Katzman's opinion is entitled to little weight because its scope was limited to findings concerning the head, Dr. Katzman's report is comprehensive, addressing Butts' cervical spine, lumbar spine and left shoulder, as well as the notes of her treating physicians (Tr. 195-96). Katzman's opinion is exists in the form Furthermore, even if Dr. sregarded, substantial evidence still Dr. Lathan's report. With respect to the medical opinions fered by Dr. Palmeri and Dr. Vlattas, it must be noted that neither Dr. Vlattas nor Dr. Palmeri indicated that Butts was precluded from working. disabled," Dr. Palmeri assessed Butts as "temporarily totally (Tr. 191, 514), and Dr. Vlattas considered Butts to be, in some reports, "partially disabled," (Tr. 225, 231, 452, 523, 525), while in other reports Dr. Vlattas considered Butts to be "partially disabled, capable of sedentary-type work" 189, 222, 242). (Tr. As noted above, Butts has highlighted no aspect these medical reports that is specifically contrary to the ALJ's findings with respect to Butts' RFC light work. Accordingly, the medical evidence offered in this case provides 29 substantial support for the Commissioner's decision to deny disability benefits. In addition to the medical reports, other evidence presented at benefits. hearing supports the denial of disability Butts reported that had travel to South Carolina (Tr. 42), went to the casino twice six months (Tr. 134) and drove her son to school on a daily basis (a hour drive) (Tr. 50). Butts also said that, with breaks, for five hours (Tr. 51), t can clean the own cooking (Tr. 52-53) and that (Tr. 135). f she does her goes to church one a month Although Butts contends that the ALJ erred in considering these activities, the applicable regulations specifically provide that daily activities should compared to a claimant's allegations in order to assess a claimant's credibility. See 20 C.F.R. § 404.1529(c) (3) ("Factors relevant to your symptoms, such as pain, which we will cons include: (i) Your daily activities") . As was not that above, the Social Security Act provides "findings of the Commissioner of Social any fact, if supported by substanti conclus " 42 U.S.C. § 405(g). ty as to evidence, shall be Here, the opinions Lathan, Dr. Katzman, Dr. Palmeri and Dr. Vlattas provide 30 Dr. substantial evidence in support of the Commissioner's decision to deny disability benefits. This evidence is further bolstered by Butts' detailing of her travels and daily activities. Such evidence of her non-disabled status is not just a "mere scintilla" but rather "relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Richardson, 402 U.S. at 401. B. The Vocational Expert's Testimony Supported The Decision To Deny Butts' Application For Disability Benefits, And The ALJ's Use Of The Testimony Was Not Improper In addition to engaging in an improper RFC analysis, Butts contends that the ALJ erred in his use and analysis of the vocational expert's testimony. Butts contends that, although the ALJ found that Butts has the RFC for light work with a "sit/stand option" (Tr. 19), Social Security Ruling 83-12 recognizes that "unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will." At the hearing, Butts' counsel specifically asked the vocational expert whether any of the jobs the expert identified were managerial, to which the expert relied that all of the jobs described were unskilled (Tr. 67). Accordingly, Butts contends that the ALJ erred in interpreting the vocational expert's testimony, as the expert only identified unskilled jobs, which, 31 by def tion, involve a structure where the employee cannot usually sit or stand at will. Additionally, Butts notes that when the vocational expert was asked whether an employee who had pain severe enough to for up to one-third sedentary work wi re with attention and concentration an eight hour day had the RFC to perform the sit/stand option (Tr. 67-68), the vocational expert indicated that none of the previously identified jobs could be performed (Tr. 68). contends that the ALJ erred As such, Butts his use of the vocational expert's testimony. With respect to Butts' contention that the ALJ erred interpret the vocational expert's testimony because the expert only identif where the empl argument unskill jobs involving a structure cannot usually sit or stand at will, Butts' Is, as the ALJ specifi ly inquired as to whether a sit/stand option was available for the positions discussed. For example, in discussing whether Butts could serve as a surveillance system monitor, the ALJ specifically inquired as to whether a sit/stand option was available t and the vocational expert testifi in the affirmative: Q. All right. I know with surveillance system monitor - - is that a - - is that a sit/stand that will - ­ 32 A. It does permit that, in fact, your honor. (Tr. 66). ALJ disregarded two other jobs the vocational expert mentioned, namely "cl worker" and "assembler, small parts," because a sit/stand option was not available (Tr. 66). When the ALJ asked "[a]re there any other jobs that would permit a sit/stand option," the vocational expert testified that both a "parking lot cashier" and "ticket sell had a sit/stand option available (Tr. 66). contention that ALJ misinte cashier" both As such, Butts' ed the vocational expert's testimony on the basis that the jobs described did not have a s /stand option is unsupported by the record. With to Butts' contention that the vocational testified that no jobs existed for someone with Butts' symptoms of headaches, it must f question posed to limi t be recognized that the vocational at the hearing was to "sedentary" jobs and did not include "light" work (Tr. 67). Additionally, the evidence in the record concerning Butts' headaches is derived from her own testimony reported to her physicians. headaches precluded As such, whether her complaints of from light work is a question of credibility that the ALJ, as the trier of fact, decide. See, e.g., what she ~~~~e~l=l~o~v_.~~~~e_r, 33 is empowered to 621 F. Supp. 1032, 1036 (S.D.N.Y. 1985) medi t (noting that after weighing objective the claimantts demeanor, and other indicia of litYt the ALJ t in resolving conflicting evidence, may to discredit the claimant's subjective estimation of the of impairment). There is evidence in the record Butts' complaints of debilitating headaches to less than credible, including discussion of her travel to South Carolina (Tr. 42), to the casino (Tr. 134), daily half-hour car trips to her son's school (Tr. 50), 25 to 30 minute car to the supermarket (Tr. 51), monthly trips to church (Tr. 134-35), periods of housecleaning that could last up to 5 hours with breaks (Tr. 51), the fact that Butts did 52) and Butts' testimony that, with medicat pain was "manageable" (Tr. 48 49). r own cooking (Tr. , her headache As such, there is substantial evidence to support the ALJ's decision regarding Butts' ability to perform the type of light work discussed at the hearing. C. Butts Has Failed To Present Evidence Supporting Her Contention That The ALJ Was Predisposed To Deny Her Claim Although Butts contends that the ALJ's analysis of the record shows his predi failed to bear her burden ition to deny Butts' claim, Butts has establishing the existence of any 34 form of bias. is a presumption that administrative adjudicators, such as ALJs, are unbiased, Schweiker v. McClure, 456 U.S. 188, 195 96, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982), and that they exercise and integrity. ir ision-making authority with honesty Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). To rebut this presumption, Butts must demonstrate a conflict of erest or some other specific reason for disqualification, Schwe , 456 U.S. at 195, or that the ALJ engaged in conduct so extreme that it deprived the hearing of the fundamental fairness mandated by due process. Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). As establi support of the ALJ's findings with both by the evidence in to Buttsl RFC and by the ALJ's appropriate use of the vocati expert's testimony, Butts has failed to present any evidence bias on the part of the ALJ. ALJ's findings Substantial evidence supports concerning Butts' RFC and the appropriateness of light work scribed by the vocational expert. Conclusion Based on the facts and conclusions set Butts' Rule 12(c) motion for judgment on the pI , the Commissioner'S motion for judgment on 35 above, is eadings is granted and denial of Butts' application for disability benefits is affirmed. It is so ordered. New York, NY September r~ 2012 ,.ROBERT W. SWEET U.S.D.J. 36

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.