Margotta v. Colvin, No. 1:2013cv03219 - Document 21 (S.D.N.Y. 2014)
Court Description: OPINION re: 13 MOTION for Judgment on the Pleadings filed by Kimberly Margotta, 18 MOTION for Judgment on the Pleadings filed by Carolyn Colvin. Based on the reasoning set forth below, Plaintiff's motion is denied and Defendant's motion for judgment on the pleadings is granted and the Complaint dismissed. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 6/18/2014) (ama)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------x KIMBERLY MARGOTTA, Plaintiff, - against - 13 Civ. 3219 (RWS) OPINION CAROLYN COLVIN, Acting Commissioner of Social Security Defendant. ----------------------------------------x A P P E A RA N C E S: ATTORNEYS FOR PLAINTIFF IRWIN M. PORTNOY AND ASSOCIATES, 542 Union Avenue New Windsor, NY 12553 By: Irwin M. Portnoy, Esq. ATTORNEYS FOR DEFENDANT PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street, Third Floor New York, NY 10007 By: Graham Morrison, Esq. Stephen P. Conte, Esq. 1 P.C. USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC#: , DAT~. FILED: 7 l?"5·'ll \;'1 Sweet, D.J. Plaintiff "Plaintiff") Rules of has Civil review of moved Security Commissioner pleadings. the Social Based on the motion is Rule judgment of "Defendant"), subsequently Commissioner's to the ("Margotta" 12 (c) on the Security cross-moved for conclusions set or Federal proceedings and Carolyn Colvin denying Act and the Commissioner ("SSA"), granted, of defendant Acting Administration under benefits for an adverse decision or Margotta pursuant Procedure ("Commissioner" Social Kimberly (the of the disability "Act"). on the below, the judgment forth The Plaintiff's motion is denied. Procedural History Plaintiff ("DIB") on October 24, on November 19, the filed SSA requested denied a 2008. for Disability 2011 Benefits 2008 and Social Security Income T199-20, Plaintiff's hearing and 201-203. 1 On February 13, application. subsequently Administrative Law Judge Katherine Edgell 4, Insurance (the "Hearing"). T67-91. In a 2009, Plaintiff T116-28. appeared (the "ALJ") ("SSI") before on October Decision on October 28, All references to "T~_" are to the numbered pages of the SSA Administrative Record filed with the Court as ECF No. 8. 1 2 2011 (the "ALJ Decision"), disabled. Tl4-24. the ALJ found that Plaintiff was not Plaintiff review the ALJ's decision, requested the Appeals Council to and the Appeals Council denied review on March 7, 2013. Tl-6. Plaintiff subsequently instant action on May 14, 2013 filed the Complaint (the "Complaint"). the instant motion on January 31, 2014. in the Plaintiff made The Commissioner cross- moved for judgment on the pleadings on April 7, 2014. The matter was marked fully submitted on April 17, 2014. Statement of Facts Testimony On Behalf Of Plaintiff The following information was provided as testimony by the Plaintiff at the Hearing or elsewhere on the record: Plaintiff was born in 1966 and was 44 years old at the time of downstairs high the Hearing. T45. from her father. school and some Margotta T4 3-4 4, college lives 4 6, 2 33. courses, but college. T46. 3 in a basement She has completed did not graduate Plaintiff has previously worked as an office manager, customer service representative at Kohl's and assistant manager at KB Toys. T46-48. She has also worked in web design and other tasks from 1997 to 2002. T49. Plaintiff testified that January 15, 2003. T14; Plaintiff has not migraines and pain Plaintiff has a been in Plaintiff caused by her also able her Compl. to neck, driver's because she feels T82. see she has work 5. <JI Since that but as she suffers arms back, license, been disabled since and legs. does not trouble testified son's with from T48-50. drive often discomfort when pushing on the car's pedals. that suicide she had in 2 0 07, symptoms T4 9, her memory, of and that history of mental illness since she was a child. has time, including her that she suffers which causes depression she has TSO. a Plaintiff long-term memory. T57-58. Plaintiff testified obstruction pulmonary disease T61. pain from in her chronic chest. Plaintiff sometimes experiences limitations in her ability to walk which is dependent on the weather: during times of muggy weather, Plaintiff cannot walk, Plaintiff can walk 10 feet. but on days with good weather, T61-62. The record does not indicate as to whether this is related to Plaintiff's chronic obstruction 4 pulmonary disease. Plaintiff testified that she cannot pick things up due to pain or use a computer due to stabbing sensations in her fingers. T62. In activities of daily living worksheet, Plaintiff indicated that she had no problems attending to her own personal care, including dressing, bathing, grooming and feeding herself. T233-34. She also indicated that she does her own laundry. T235. Plaintiff leaves her house between two to three times a week, T235, either by foot or car, T235. Her hobbies included reading, watching TV, playing tennis and swimming. T236. Plaintiff speaks with friends and family one to two times per week. T237. Mr. Rocco Meola ("Meola") testified at the Hearing as a vocational witness. work someone with Meola testified work. TB 7. On When inquired by the ALJ as to the sort of Plaintiff's that a vocation Plaintiff national could level, profile could perform, perform unskilled medium these types of jobs in the aggregate exists in numbers of approximately 30,000; for the Hudson Valley region, 700. T88. The ALJ also posed Meola with a hypothetical person with Plaintiff's vocational profile who can sit for up to eight hours a day, for up to five hours a day, three hours at one time; stand an hour at a time; walk up to three 5 hours a day, an hour at a time; can lift up to 20 pounds continuously and up to SO pounds occasionally, but only carry up to 20 pounds reaching, handle, continuously; can frequently engage in and continuously reach in all other planes, finger, feel push, scaffolds; occasionally be cannot exposed pull; be to odors, unprotected heights; fumes, pulmonary and extremes of temperatures and vibrations; only to moderate office noise, as well as occasionally climb ladders exposed to dusts, overhead or but irritants and can be exposed and inquired as to any unskilled jobs such hypothetical person could perform. According to Meola, there are packager, such jobs assembler operators): there (examples of are molded include frames approximately inspector and 45,000 a such and hand tag machine jobs at the national level and 1,300 such jobs in the Hudson Valley region. T88-89. Upon inquiring as to whether such hypothetical person is hirable if concentration with, Meola he or such she that testified also had concentration that such employable. T89. The Medical Evidence Dr. Goddard Lainjo 6 an marked is limitations variously individual in interfered would not be Plaintiff diagnosed her health troubles for the first time on October Plaintiff disease with 22, when fibromyalgia activity Plaintiff's 2003, by Goodard syndrome global physical Dr. with assessment. examination was Lainjo moderate In to this negative diagnosed severe diagnosis, for muscle weakness or trigger points. T573. Treating notes from Dr. Lainjo indicates additional diagnoses of mild-to-moderate rheumatoid arthritis and mild-to-moderates fibromyalgia syndrome with some tender points on examination. were negative. T553, Id. 562, 571-75, Multiple serological findings 587-603. Dr. Lainjo prescribed Plaintiff with a nonsteroidal anti-inflammatory medication three times a day to treat her symptoms. Dr. Francis Nardella On Plaintiff October and fibromyalgia headaches, chronic pain fatigue and T595. Dr. Nardella sleep bowel, bursa severe disorder, chronic tender points supraspinatus and medial generalized chronic suboccipital regions, examined from suffered she trapezius, trochanteric Francis that and positive epicondyle, examination. Dr. irritable probable lateral cervical regions, greater 2005, concluded with musculoskeletal lateral 6, over the muscles, left lower gluteus muscles, aspects of knees on Nardella's notes indicate that Plaintiff 7 developed chronic generalized musculoskeletal pain 15 years from the date of the examination following a motor vehicle accident and that this pain was generalized. T594. Dr. Neal Dunkelman November In Dr. 200 6' Neal Dunkelman diagnosed Plaintiff with chronic pain syndrome and fibromyalgia. At this examination, than 10 years, T559-60. Plaintiff reported having problems for more trying physical therapy in the past and being on Oxycontin 40 mg every 12 hours for approximately one year. T559. Plaintiff also reported having tried a variety of medications, including Vicodin, Tylenol #3, Dunkelman found no focal, flexion was cervical limited range of to Lyrica and muscle relaxants. Dr. sensory or motor deficits but lumbar 10 motion degrees, was extension restricted. At 0 degrees and this visit, Dr. Dunkelman extended Plaintiff's prescription for Oxycontin. Pursuant underwent a to magnetic Dr. Dunkelman's resonance imaging referral, ("MRI") Plaintiff scan of her cervical spine in January 2007. The MRI showed no obvious issues except with a for a normal computerized small right spinal axial paracentral herniated disk at cord and neural ("CAT") tomography 8 foramina. scan T37 3, showed C4-C5, 553. A chronic obstructive pulmonary disease no evidence of mass, that rubs, scarring showed normal rhonchi or rales. Plaintiff had been a primarily treated 23, Dr. 2007, findings, I time, this with not smoker, Records with consuming one pack 616. Plaintiff's noted "in that complaints pain analgesics. feel 372. but The record indicates narcotic Dunkelman do T368, lungs, respiratory effort, T695. long-time per day for the past 30 years. T379, At in both nodules or infiltrates. of subsequent treatments no wheezing, with T522. view [Plaintiff] of should On were February [minimal] be on MRI chronic narcotic medications." Id. Plaintiff The MRI found consistent underwent straightening with muscle MRI of normal spasm. spaces were well maintained, bulging, another disc herniation, the However, the and there was canal in April 2009. cervical T534. lordosis intervertebral disc no evidence of disc stenos is or foraminal stenosis. Id. Dr. Martin Grant Dr. 2006, Martin Grant examined Plaintiff on and diagnosed Plaintiff with hypertension, 9 December 11, depression and fibromyalgia. T368. Dr. Stanley Giudici Dr. 2007 and Stanley Giudici treated Plaintiff on December 12, November examination of Plaintiff pain T564-70. the doctor than three aching, in with the major numb, lower back. disorder; restless leg syndrome, Giudici's Plaintiff had of major depression in Plaintiff reported constant, T568. sharp, Dr. burning Giudici and diagnosed recurrent; post- generalized anxiety disorder; social disorder, obsessive-compulsive anxiety Dr. noted that tingling, depressive traumatic stress disorder; During episodes In the examination, well-localized, shooting 2008. Plaintiff, suffered from more the past. T566. 24, primary; personality hypothyroid; disorder; and cervical disk disease in C4-5. T569. Dr. Steven Rocker On December 31, for a consultative 2008, Plaintiff saw Dr. examination with complaints everywhere" with no localization of the pain. examination, Plaintiff asthma at age 25, reported that she T2 95. was had "three herniated disks in 10 Steven Rocker of During the diagnosed [her] "pain with neck" and was diagnosed with bipolar disorder earlier that year. his examination report, Dr. Rocker independent in cooking, cleaning, she "is able Plaintiff to shower, also used bath no noted that T2 95. Plaintiff In "is laundry and shopping" and that and dress assistive independently." devices, needed T296. no help changing for the exam or getting on and off the exam table and was able to rise from the chair without difficulty. examination found that she had full strength and lower extremities. T297. finger dexterity and full (5/5) T2 96. in her upper Plaintiff had fully intact hand and grip strength bilaterally. Rocker found no limitations The Dr. speaking, sitting and handling and mild limitations for standing, walking, lifting and carrying. with noted for hearing, T2 98. Dr. Rocker diagnosed her with multiple myalgias history a T2 98. of total that Plaintiff body had a pain. history T2 95. of Dr. Rocker chronic further obstructive pulmonary disease (asthma). T298. Dr. Alan Dubro On the same day as her examination with Dr. Rocker, psychologist Dr. Alan Dubro performed a psychiatric consultative examination on Plaintiff at Division of Disability psychiatric evaluation, the request of the New York State Determinations. T290-94. In his Dr. Dubro noted that Plaintiff had never 11 received any psychiatric Plaintiff's manner was treatment. cooperative, T290. her Dr. Dubro speech was found fluent and clear and her language skills were adequately developed. T291. Plaintiff's goal- directed thought was thought with no she and arithmetic delusions, T291. the examination, had At full affect was serial 3s. and and hallucinations she Plaintiff's fully or mood oriented to Her attention and concentration were Id. Plaintiff and coherent of person, place and time. intact, appeared evidence disorders. euthymic, processes able T2 92. to perform Plaintiff's simple recent mental and remote memory skills were mildly impaired upon distractions associated with pain. Id. understand and Dubro Dr. Dubro attend concluded that to the opined that directions results Plaintiff and of the could follow, instructions. exam were Id. "consistent with pain-related symptoms," but that these symptoms "[did] significantly interfere with [Plaintiff's] ability Dr. to not function on a daily basis." T293. Dr. T. Inman-Dundon On January 16, Inman-Dundon residual reviewed functional 2009, state agency psychiatrist Dr. Plaintiff's capacity record report and issued ("MRFC"). a T. mental T328-30. The report found no significant limitation in Plaintiff's abilities 12 to remember remember short locations very and and work-like procedures, short simple and instructions, schedule, maintain customary tolerances, special others without regular supervision, instructions, perform an carry out activities attendance, sustain be very within a punctual routine ordinary within without work in coordination with or proximity to being related decisions, simple understand and distracted ask simple by them, questions or make request simple work assistance, accept instructions and respond appropriately to criticism from supervisors, distracting along get them or with coworkers peers without behavioral exhibiting or extremes, maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness, appropriate precautions, public transportation. in the remaining understand and unreasonable of categories, including detailed plans hazards and take Plaintiff's ability carry instructions, to out maintain attention and concentration for complete a normal workday and workweek without perform number at and consistent a length of appropriately with the general public, changes normal and travel in unfamiliar places or use remember extended periods, aware T328-329. A moderate limitation was found detailed instructions, interruptions, be in the work setting and independently of others. set rest without periods, an interact respond appropriately to realistic goals, T32 8-32 9. 13 pace No marked and make limitations were found in any category. T328-329. Dr. Inman-Dundon concluded that Plaintiff retained the abilities to perform the mental demands of unskilled work. T330. Dr. Paul Schefflein On February 8, 2010, Plaintiff began treatment with Dr. Paul Schefflein of Northern Psychiatric Services. T400, 404-11. At this time, Dr. Schefflein diagnosed Plaintiff with bipolar disorder and Fibromyalgia. T409-11. On July 20, 2010, Dr. Schefflein assessed the Plaintiff again and noted "marked" deficiencies with regards to Plaintiff's ability to concentrate, be persistent or keep a pace that allows her to complete tasks in a timely manner. T427. According to the chart which Dr. Schefflein used for his evaluation, "marked" means more than moderate, but less than extreme. Id. Dr. Schefflein also noted that disturbance Plaintiff and had poor memory, emotional Plaintiff would have liability. sleep T424. difficulty working at disturbance, He a concluded regular mood that job on a sustained basis and that she would likely miss work more than three times a month. T427. 14 Dr. Schefflein saw Plaintiff at least eight times starting in February 2010 to June 2011 including visits on March 18, 2010, April Schefflein's 20, 2010 treating and May 18, notes coherent, had normal motor had concentration, good 2010. indicate activity, retention T410, that had an of 604-07. Plaintiff Dr. was intact memory and information and impulse control in at least one visit, possibly from Plaintiff's February 8' 2010 visit. handwritten His T407-08. notes do not provide further information as to Plaintiff's mental and physical functional abilities other than noted above. Other noting that Plaintiff was diagnosed with Fibromyalgia, physical symptoms of Plaintiff's were noted in Dr. than no other Schefflein's notes. Dr. Carol Taylor On August 9, Taylor, 2010, Plaintiff was examined by Dr. Carol Plaintiff's primary care physician. T610-16. Dr. Taylor's notes from this examination indicate that Plaintiff has a past disorder; medical history peptic hypothyroidism. ulcer; T621. of fibromatoses; chronic Plaintiff about Fibromyalgia on October 8, airway first 2010. went T629. migraines; obstruction; to see Dr. and Taylor For her symptoms, Dr. Taylor prescribed Oxycotin 30 mg every 12 hours, 15 bipolar Zanaf lex 4 mg and Ambien 10 mg. On August 4, Oxycontin to Plaintiff treat 2011, due to Plaintiff's continued use of her pain "clearly was symptoms, addicted" Dr. to Taylor tried to dissuade noted Plaintiff T695. that given Oxycontin, duration of use of the drug and behavior. Dr. Taylor her At this visit, from continuing to Oxycontin in the same amount and frequency, use but her warnings did not appear to dissuade Plaintiff. Id. Dr. Kautilya Puri Plaintiff was examined by Dr. Kautilya Puri on July 6, 2011. T57 6. Plaintiff was referred to Dr. State Di vision examination. of In Disability the decreased with local mild bilaterally, in Determination examination, generalized, range of tenderness the neck, motion and shoulders showed of range negative straight strength in atrophy, weakness, the of leg upper motion raising, and lower sensory or neurological of mild, the cervical spine and trigger back, points, as well as The physical examination the thoracic/lumbar bilaterally, extremities, ref lex deficits 16 a noted few a T578. for Puri Dr. giveaway weakness of the hands. normal Puri by the New York and full with in the no spine, muscle muscle upper or lower extremities. limitations to T578. gait, Dr. Puri fine or found gross "no objective activities, motor communication or activities of daily living." T579. As part of her assessment, Dr. claimant could lift up to 50 pounds, carry 2 0 pounds continuously. Plaintiff could sit for T 5 8 0. eight Puri occasionally, T581. and lift or She further determined that hours at three stand for five hours and walk for three hours, intervals. opined that the hour intervals, each at one hour Plaintiff could reach overhead frequently and had no other limitations in the use of her hands or feet, could occasionally climb ladders or scaffolds and frequently engage in all other postural activities. T580-585. Dr. Puri concluded that Plaintiff could work in an environment with moderate noise, at occasional heights and frequently with moving mechanical parts. T584. should No other avoid limitations pulmonary were found, irritants, except vibration that and Plaintiff temperature extremes. T580-585. The ALJ Decision On October 4, connection benefits. with 2011, Plaintiff's On October 28, 2011, the ALJ held a video hearing in claim for disability insurance the ALJ Decision concluded that 17 Plaintiff was not disabled within the meaning of the Act from January 15, 2003 through the date of the ALJ Decision. In the Case of Kimberly A. Margotta, Administrative Hearing at 1 (Oct. 28, 2011); T14. The ALJ made the following findings: 1. Plaintiff met the insured status requirement Social Security Act through December 31, 2008. of the 2. Plaintiff has activity since date. Plaintiff to February 2004 3. Plaintiff has the following severe impairments: small cervical disc herniation per MRI in 2007, with no current diagnostic imaging evidence of disc herniation or other cervical pathology; chronic pain, variously diagnosed as chronic pain syndrome, fibromyalgia, rheumatoid arthritis, arthralgias/polyarthralgias; migraine headaches; chronic obstruction pulmonary disease; hypothyroidism; and a mental impairment, at various times diagnosed as bereavement, bipolar, depressive, anxiety, compulsive-obsessive personality and/or posttraumatic stress disorders. These impairments were found to be "severe". 4. Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 5. Plaintiff has the residual functional capacity to perform a full range of light to a limited range of medium work, as defined in 20 CFR 404 .15676 (b) (c) and 416. 967 (b) (c). She is further limited to unskilled work that does not require exposure to concentrated respiratory irritants. 6. Plaintiff is unable to perform any past relevant work. 7. Plaintiff was born on April 3, 1966 and was 36 years old, which is defined as "a younger individual age 18- not engaged in substantial gainful January 15, 2003, the alleged onset did seasonal work from December 2003 and from December 2004 to February 2005. 18 49" on the alleged disability onset date. 8. 9. Plaintiff has relevant work. 10. In Plaintiff has at least a high school education and is able to communicate in English. When considering Plaintiff's age, education, work experience and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. the Case no of Kimberly A. acquired work skills from past Administrative Hearing at Margotta, 1-11; T14-24. The Applicable Standard Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. 639 (2d Cir. Sellers v. M. C. Floor Crafters, Inc., 8 42 1988). A party's motion will be dismissed if, a review of the pleadings, F. 2d after the court is convinced that the party does not set out factual allegations that are "enough to raise a right Corp. to v. relief Twombly, In disability beyond the speculative 550 U.S. 544, reviewing insurance 570 a 19 Bell Atlantic (2007). Commissioner's the benefits, level." court must decision determine for whether the decision is supported by substantial evidence, § 405 (g); Brown v. 174 Apfel, F. 3d 59, 61-62 see 42 U.S.C. (2d Cir. 1999). Substantial evidence is "more than a mere scintilla," Richardson v. 402 U.S. Perales, (1971) 229, 389, 401, 91 S. Ct. (quoting Consolidated Edison Co. 59 S.Ct. evidence as 206, a 83 L.Ed. might v. (1938)), mind reasonable 126 1420, 28 L.Ed.2d 842 305 U.S. NLRB, 197, and is "'such relevant accept as support a conclusion.'" Brown, 174 F. 3d at 62-63. adequate "To determine whether the findings are supported by substantial evidence, reviewing court is required including contradictory to examine evidence the and entire evidence conflicting inferences can be drawn." Id. at 62 v. Heckler, 722 F.2d 1033, Substantial evidence review-even more Brault v. Soc. so Sec. "is 1038 still than (2d Cir. a the Admin., Com'r, 683 "only if a to conclude otherwise." Id. 1287, 1290 (8th Cir. 1994) which (quoting Mongeur 1983) (per curiam)). standard of erroneous' F.3d 443, standard." 448 2012). Under this standard, once an ALJ finds facts, reject those facts the record, from very deferential 'clearly to (2d Cir. a court can reasonable factfinder would have (quoting Warren v. Shalala, 29 F.3d (emphasis in original). A court reviewing a denial of Social Security benefits does not Chater, review de novo the evidence in the record. 94 F.3d 34, 37 (2d Cir. 20 1996); Jones v. Pratts Sullivan, v. 949 F.2d 57, court 59 may (2d not Secretary, Cir. 1991). substitute In its evaluating own the judgment evidence, "the that the for of even if it might justifiably have reached a different result upon de novo review." Jones v. (2d Cir. 1991) Servs., 733 (quoting Valente v. F. 2d Commissioner's 1037, decision 1041 that Secretary of Health (2d a 949 F.2d 57, Sullivan, Cir. claimant 1984)) . is not supported by substantial evidence in the record, uphold the decision, 42 U.S.C. Arnone, 882 F.2d at 34, 405(g); § Jones, If is 949 F.2d at 59; even where substantial evidence may also Sullivan, 122, where reviewing Cir. the the court must Alston v. (2d Human disabled support the plaintiff's position, 126 & 59 1990), or a 904 F.2d court's independent conclusion based on the evidence may differ from the Commissioner's. Cir. 1982), Rutherford cert denied, Schweiker, 675 F.2d 55, While the 57 ALJ v. 685 Schweiker, 459 U.S. 1212 F.2d (1983); 60, must set forth specificity essential the reviewing court to determine whether the decision is sufficient evidence, v. (2d Cir. 1982). with substantial (2d Schauer considerations by 62 he or she to need not enable the supported "explicitly reconcile every conflicting shred of medical testimony." Mongeur v. Heckler, Harris, 645 722 F.2d 1033, F.2d 122, 124 1040 (2d (2d Cir. Cir. 1983) 1981)). A (citing Miles v. reviewing court 21 ·- -------- gives deference to the ALJ's evaluation since he or she observed the claimant's demeanor and heard the testimony first-hand. v. 968 F, Chater, Mejias v. Supp. 930, 938 (S.D.N.Y.1997), Social Security Administration, 445 F. Pena aff'd sub nom. Supp. 741, 744 (S.D.N.Y. 1978). Determination of Disability Evaluation of Disability Under the Act, be "disabled" is U.S.C. § every individual who is considered to entitled to disability insurance benefits. 423 (a) (1). To be considered disabled under the Act, 42 a claimant must demonstrate 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 twelve months 42 U.S.C. § 423(d) (1) (A), 42 U.S.C. The mere presence of an § 1382c(a) (3) (A). impairment is not sufficient to establish a disability. The claimant is considered disabled: 22 only if h [er] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] 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 [ s] he lives, or whether a specific job vacancy exists for h [er], or whether [s] he would be hired if [s]he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 42 U.S.C. 423(d) (2) (A), § To determine receive disability conduct the the is (2) activity; whether benefits, following claimant 42 U.S.C. the five-step currently if an not, § 1382c(a) (3) (B). individual is entitled to Commissioner is required to inquiry: engaged determine in ( 1) any whether determine whether substantial the gainful claimant has a "severe impairment" that significantly limits his ability to do basic work activities; if ( 3) so, determine whether the impairment is listed in Appendix 1 of the regulations; if it is, the Commissioner will presume the claimant to be disabled; if not, determine functional capacity disability; and ( 5) whether the ("RFC") if not, claimant possesses the ( 4) residual to perform his past work despite the determine whether the claimant 23 ---~~·~-·., is capable of performing other work. Callahan, 168 F. 3d 72, F. Supp. 2d 24, 29 The apply the RFC 77 (2d Cir. represents Gonzalez v. 1999); Rosa v. 404.1520; § Apfel, 61 (S.D.N.Y. 1999). Commissioner fourth 20 C.F.R. and the must fifth most limitations. 20 C.F.R. assess steps that the of the the claimant's inquiry. claimant can RFC to A claimant's do despite his evaluate all 416.945(a). § The Treating Physician Rule Under the SSA, the See 20 C.F.R. medical opinion received. Schisler v. "[a] Sullivan, treating weight" clinical 3 F.3d 563, physician's when it and Commissioner is 567 opinion 404.1527(c); § (2d Cir. must well-supported laboratory must be by diagnostic 1993). given inconsistent with the other substantial evidence record. Cir. Sanders v. 2012) physician's Comm'r of Soc. (quotation opinion is marks not Sec., acceptable and not [the] in is case 506 F. App'x 74, omitted). given However, controlling medically techniques see also If the controlling 77 (2d treating weight, the Commissioner must nevertheless determine what weight to give it by considering: relationship; (2) ( 1) the the length, evidence 24 nature, in and support of frequency the of the physician's opinion; whole; (3) the consistency of the opinion with the record as a (4) the specialization of the physician; and (5) any other relevant factors brought to the attention of the ALJ that support or (i-ii); Schisler, may relied be contradict 3 the opinion. F.3d at upon, even 20 567-69. C.F.R. Other physicians' non-examining factors must be weighed as above. 404.1527(c) (2) §§ ones, 20 C.F.R. the same 416.927(e). § but opinions "More weight must be given to a treating physician than a non-treating one and to an examining source." Petty v. Colvin, at June *11 (S.D.N.Y. 2, source as 12 CIV. 1644 LTS RLE, 2014 WL 2465109, 20 404.1527(c)-(e), 2014); opposed C.F.R. to a §§ non-examining 416. 927 (c) - (e). The ALJ Properly Reviewed And Considered The Evidence As initial under application an the Act and 20 C.F.R. Decision, to Plaintiff combine her the evaluation Schefflein; (iv) § relying (iii) on five-step contends the ALJ that of all the medical analyzed evaluation See 15-16. 404.1520. effects of matter, of as from the considered below. 25 in the In challenging the ALJ Plaintiff's and vocational (i) failing impairments; the her evaluation of Margotta' s evidence outlined the ALJ erred in evidence Plaintiff's (ii) opinion of Dr. credibility; and witness. Each is The ALJ properly combined the effects of all of Plaintiff's impairments In the Act, considering the impairments, ALJ must §§ 404.1520(e), 96-8p. Plaintiff a consider including C.F.R. whether claimant the impairments 414.1545, contends is combined that are the ALJ effects and erred under of all severe. not 416.920(e), that disabled 20 416.945; in SSR assessing separately the contribution of each impairment to others as if each impairment existed alone. However, an examination ALJ Decision shows that this is not the case. conclusion, the ALJ was made "[a] fter specifically noted that of the In coming to her the determination careful consideration of the entire record." See T15, 19. Where an ALJ opinion indicates that it will examine a claimant's ailments in combination, to the contrary, not do so. 2008) there is no reason to believe that the ALJ did See Rivers v. Astrue, 280 F. App'x 20, 23 (2d Cir. Simply because the ALJ broke down Plaintiff's impairments into separate, made and nothing else suggests her manageable categories does not indicate the ALJ determination through analysis of those singular infirmities in isolation. In considering all of Plaintiff's impairments, the ALJ 26 examined Plaintiff's experience with pain, herniated disc, chronic obstructive pulmonary disease and mental illness. The history of ALJ noted chronic narcotics. Plaintiff pain-including syndrome by global with that a has diagnosis 591. 5 8 9' longstanding of fibromyalgia assessment-which had primarily been treated T19-20. However, laboratory consistently shown negative serological findings. 572, a There is some evidence in testing T20, the 559, had 562, record of trigger/tender points on physical examination, but they have not been identified on a regular basis. In addition, T19-20, 297, both treating and examining physicians normal range of motion for the lumbar spine and, of effort on range of motion testing, conclude that 534, Plaintiff's pain 573, 578. documented at times, lack which led one doctor to complaints were subjective in nature. T296-97, 560, 561, 573. The ALJ also highlighted Plaintiff's January 2007 MRI findings that showed a small disc herniation at the C4-5 level, but noted that the herniation resolved on its own by April 2009 and that Plaintiff was not receiving current treatment for neck pain. T20-21. lumbar spine, Other physical evidence, such as an MRI of the signs of disuse atrophy or weakness in the upper or lower extremities, were nonexistent. T21, 297-298, 534, 555. 27 The pulmonary records rubs, ALJ disease showed rhonchi also as found not normal or Plaintiff's an impairment. respiratory rales. T695. chronic T21. effort, Plaintiff Recent with is obstructive treating no wheezing, a long-time also smoker, who has not quit despite advised to do so. With doctors have regards diagnosed illness: Dr. disorder, T424-28; disorder Dr. Plaintiff's Plaintiff Scheff lein with Dr. medical Giudici disorder, to found and that with diagnosed Dubro mental some form Plaintiff concluded that psychological Plaintiff illness, of with she a post-traumatic stress disorder, major mental bipolar had components, had several a pain T293; and depressive a generalized anxiety disorder and a socialized anxiety disorder. Nonetheless, mental status evaluations performed from November 2008 through February 2010 show that Plaintiff was alert, cooperative, paranoia. with T290-92, no evidence 407-10, of 569. fully oriented, pleasant and hallucinations, Plaintiff's delusions overall mood or has been described as "euthymic," her affect range was full and her attention memory and concentration deficits. evaluated T290, Plaintiff's 92, global as intact, 407-10, except for some 569. Dr. Schefflein 566, assessment of functioning mild ("GAF") at 60-65 out of 100 in July 2010, T424, and 75 in February 2010, 28 T409. Dr. with Schefflein' s his GAF assessment of "marked" assessed 60-65 limitations persistence or pace made on the same day; is associated functional with "mild impairment. to Dr. in concentration, a GAF score of 60-65 moderate" mental Inman-Dundon Plaintiff retained the abilities is inconsistent also symptoms concluded or that to perform the mental demands of unskilled work. T330. Given the record and the ALJ Decision, there is substantial evidence supporting the ALJ's conclusions regarding each individual ailment analyzed and the combination of all impairments on the Plaintiff. Consequently, the ALJ Decision did properly combine all of the Plaintiff's impairments in its of Dr. analysis of whether to extend benefits to Plaintiff. The ALJ Decision did Schefflein's opinion Plaintiff discounted impairments. Dr. not contends that at 18. in its the ALJ evaluation Decision incorrectly regarding Plaintiff's The ALJ evaluated Dr. Schefflein's Schefflein's Pl. Mem. err opinion opinion during step three of the hearing decision, Tl 7-19, and rated the degree of functional limitations caused by Plaintiff's mental impairments as required by 29 20 C.F.R. §§ 404.1520a and 416.920a. The ALJ specifically recognized Dr. Plaintiff's examined "current the evidence psychiatrist." supporting T18. Dr. Schefflein as the The ALJ also Schefflein's made opinion as well as the inconsistencies in his opinions and notes and with other evaluations of Plaintiff. TlB-19. Dr. Schefflein's treating "marked" mental limitations. Dr. good Schefflein' s other concentration, opinions For example, made note only one of of Plaintiff's This opinion stands in contrast to opinion which retention noted that of Plaintiff information and had impulse control. Dr. Schefflein's opinion was also inconsistent with Dr. Dubro's opinion, which found that Plaintiff's attention span and concentration with Dr. were intact. Scheff lein' s T292. These inconsistencies, own GAF evaluation of Plaintiff, along provide substantial evidence for the ALJ's conclusion that "[m]entally, the claimant's residual support [activities functional to the of daily living] suggest capacity than alleged." T18. ALJ's determination that a greater It also lends Plaintiff's "marked" mistakenly asserted mental limitation was temporary. Plaintiff contends that the ALJ that there were no treating opinions in the record. Pl. Mem. at 18. The ALJ Decision makes this comment in the ALJ's examination 30 of step five of the hearing decision; the section was limited to discussions on physical limitations and capabilities. T19-22. The ALJ's limitation of its analysis of Dr. Schefflein's opinion to step three does not absence of an express eviscerate rationale the for ALJ Decision. an ALJ' s conclusions not prevent us from upholding them so long as we are look portions to other credible evidence of ALJ' s finding in the that supported by substantial evidence.'" 371 F. App' x 109, Sec., step three other Thus, Plaintiff's (2d Cir. 2010) of the decision Plaintiff's mental that and to 'able to clearly v. Comm' r was of Soc. (affirming the ALJ' s analysis of evidence in supported argument limitations and does determination Salmini finding based on the ALJ' s portions finding). 112 decision his "[T]he is Dr. the step three unsubstantiated, Schefflein's as treating opinions were addressed by the ALJ. Tl7-19. The ALJ properly assessed Plaintiff's credibility Plaintiff contends that the ALJ failed to properly assess Plaintiff's credibility. Pl. Mem. at 21. Under the Act, a claimant's not statements conclusive signs, alone evidence established by of as to pain and other disability; medically laboratory diagnostic techniques, 31 there must acceptable symptoms be are clinical clinical or which show the existence of a medical or impairment that psychological expected the 404 .1529 (b)' "[s]ubjective pain findings v. even of other of Dep't which could serve if as the of Health 108 be 20 §§ with basis unaccompanied 'objective' physiological reasonably alleged. Nonetheless, 335 F.3d 99, Barnhart, Sec. may anatomical, symptoms 416.929(b) disability, from abnormalities produce to results f ibromyalgia, for by and Human establishing positive medical evidence." (2d Cir. C.F.R. 2003) clinical Green Younger (quoting Donato v. 721 F.2d 414, Servs., 418-19 (2dCir. 1983)). If determinable extent to the impairment, which accepted as claimant [the does the ALJ claimant's] suffer must then symptoms a medically consider can "[t]he reasonably be consistent with the objective medical evidence and other evidence of record." Genier v. Astrue, Cir. 2010) from 606 F.3d 46, 49 (2d (quotation marks omitted). The ALJ did examine Plaintiff's subjective complaints, and found that some of Plaintiff's medically determinable impairments could reasonably have been expected to cause some of Plaintiff's statements regarding her ailments. concluded intensity, that that persistence "[Plaintiff's] and limiting 32 However, statements effects of the ALJ concerning [her] the symptoms are not credible to the above residual extent they are functional capacity inconsistent with the assessment." T20. In the context of determining a claimant's RFC, "the ALJ is required to take the claimants reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence (citations ALJ' s in omitted). consideration nature, evidence ALJ weighing evidence in that took record that factor at 49 into the daily activities, claimant's can F.3d the and the treatment 404.1529(c) (3), 416.929(c) (3). into Plaintiff's the shows §§ 606 Genier, extent and duration of his symptoms, The record Other record." include a provided. 20 C.F.R. when the consideration testimony, to support Plaintiff's and the such there ALJ's subjective other is factors substantial conclusion. complaints sometimes inconsistent with objective evaluations, The were such as when Plaintiff complained of sudden loss of hearing in the left ear in December 2010, but no physical abnormalities of the ear canal or tympanic membranes were present and an examination showed normal hearing. T642-56. The record also indicates that although Plaintiff daily claimed living, that her Plaintiff impairments could 33 take reduced care of activities her of hygiene regularly, help her car. prepare T292. normal father the leg upper weakness, with perform food A neurological range straight meals, of motion raising, and extremities, shopping, the manage money thoracic/lumbar bilaterally, and full with extremities, or cleaning examination in July 2011 of lower sensory light reflex deficits in and and drive also spine, muscle laundry, showed negative strength no muscle the upper in atrophy, or lower as well as "no objective limitations to gait, or gross motor activities, a fine communication or activities of daily living." T578-79. Given that such a record, there is substantial evidence the ALJ exercised proper discretion when she chose to not completely disregard Plaintiff's testimony, but to only evaluate it assessment. when it consistent exercised properly was her with her discretion RFC in evaluating The ALJ Plaintiff's credibility and testimony. The ALJ did not vocational witness At available skills. step jobs This can err five, which be in relying the ALJ must fit done the evidence from the examine whether there are individual's through 34 on the use limitations of a and hypothetical questions Heckler, and answers to 750 F.2d 180, a 186 vocational (2d Cir. expert. See Mimms 1984). At the Hearing, v. the ALJ presented vocational expert Meola with a hypothetical of an individual who could sit for up to eight hours a hours at one time; stand for up to five hours a day, a time; lift walk for up to three hours a day, up to 20 occasionally, pounds could frequently engage in all other continuously carry up to 20 planes, as well as three an hour at an hour at a time; and up pounds in overhand reaching, day, to 50 pounds continuously; and and continuously reach handle, finger, feel, push, occasionally climb ladders or scaffolds; occasionally be exposed to unprotected parts, heights but not to dust, temperature and and frequently fumes, vibrations; to moving pulmonary irritants, and tolerate moderate mechanical extremes of exposure to office noise. T88-89. Plaintiff hypothetical contends question that to Meola: the Plaintiff ALJ erred argues that in its the ALJ should have incorporated Dr. Schefflein's finding that Plaintiff suffered from a lack of concentration and Dr. Puri's recommendation that Plaintiff should avoid strenuous activities or repetitive movements. As an initial matter, and as previously discussed, the 35 ALJ' s rationale support for not by substantial not adopt Dr. adopting Dr. evidence. Schefflein' s Tl 7-19. opinion The ALJ' s was decision to Schefflein's opinion in the posed hypothetical was also supported by substantial evidence. With regards first be noted that have any gross objective motor Plaintiff to Dr. Puri's limitations T579. carry recommendation, Puri determined that activity. "not Dr. out to Puri strenuous also Puri also reaching, noted handling, with both hands that activities continuously. contradictory evidence evidence the that recommendation was not pose a to hypothetical record. See 1983) (Secretary's upheld in ALJ in her required alternative Dumas v. T582. the incorporate Meola burden jobs substantial push the in and there 712 abundant not F.2d showing record pull motions is somewhat in of substantial Dr. Moreover, restrictions was repetitive non-overhead is totality to Meola. that (emphasis added). Al though there that Schweiker, or perform record, instructions to could feeling, incorporated substantial where Plaintiff fingering, fine motor or recommended movements secondary to her above history." 2 Id. Dr. must Plaintiff did not communication, Dr. it into supported 1545, the the evidence the 1554 Puri' s the ALJ RFC by (2d existence national 36 the Cir. of economy supported Dr. Puri does not expand on the meaning of the phrase "secondary to her above history". 2 or the assumptions the vocational expert adopted for his opinion) . Plaintiff contends that Meola' s testimony is suspect with regards to the number of jobs existing in the region where Plaintiff lived was incorrect. A review of the DOT requirements and situations packager, DOT for 559.687-074, machine operator, with the RFC three jobs assembler, Meola DOT identified hand 713.684-014, and tag DOT 649.685-118 - does not reveal any conflict adopted unskilled light, the in jobs respiratory irritants. the with ALJ no Furthermore, Decision. exposure All of these are concentrated to Plaintiff has not presented any evidence that rebuts Meola's identification of jobs existing in significant numbers that Plaintiff could perform. In sum, there is substantial evidence that the ALJ did not err in relying on the evidence provided by the vocational expert. posed Meola in the identified ALJ' s jobs based on hypothetical, Meola's answers were mistaken. 37 the Plaintiff vocational has not profile shown how Conclusion Based motion is on denied the and reasoning Defendant's set forth motion below, for Plaintiff's judgment pleadings is granted and the Complaint dismissed. It is so ordered. New York, NY June / 2014 J, (,._........"\ ··~~ r ~O~~WEET U.S.D.J. 38 on the
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