LaPorta v. Commissioner of Social Security, No. 1:2019cv00237 - Document 19 (W.D.N.Y. 2020)
Court Description: ORDER denying 10 Motion for Judgment on the Pleadings; granting 16 Motion for Judgment on the Pleadings and Dismissing the Complaint with Prejudice. Signed by Hon. Donald Bush on 5/12/20. (SG)
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cite a claimant’s conservative treatment history to support his conclusion that he or she is not disabled); Shaffer v. Colvin, No. 1:14-CV00745 (MAT), 2015 WL 9307349, at *5 (W.D.N.Y. Dec. 21, 2015) (holding that the ALJ properly discredited the plaintiff’s claims of a disabling condition noting that her treatment was essentially 11 Case 1:19-cv-00237-DB Document 19 Filed 05/12/20 Page 12 of 16 routine and conservative, consisting of medication management and physical therapy.); see also Mayor v. Colvin, No. 15 CIV. 0344 (AJP), 2015 WL 9166119, at *22 n. 29 (S.D.N.Y. Dec. 17, 2015) (“Courts in this Circuit routinely uphold credibility determinations in which the ALJ finds a claimant’s statements about their symptoms not credible based, inter alia, on a conservative treatment record”). Citing a decision from a Connecticut district court, Plaintiff asserts that physical therapy, injections, and medication should not be considered conservative treatment. See ECF No. 10-1 at 31 (citing Jazina v.Berryhill, No. 3:16-CV-01470 (JAM), 2017 WL 6453400 (D. Conn. Dec. 13, 2017)). However, the ALJ did not err by referring to Plaintiff’s treatment as “conservative” where the record supports such a characterization. See McLymond v. Berryhill, No. 16-CV-6180 CJS, 2018 WL 1367335, at *10 (W.D.N.Y. Mar. 16, 2018) (citing Knorr v. Colvin, No. 6:15-CV06702(MAT), 2016 WL 4746252, at *14 (W.D.N.Y. Sept. 13, 2016) (Characterizing “physical therapy, a TENS unit, NSAIDs, opioid analgesics, muscle relaxants, anti-convulsant medications, palliative injections, [and] chiropractic adjustments” as “conservative treatments.”)). Furthermore, many courts in this district, including this Court, have defined chiropractic treatment, physical therapy, and injections as “conservative treatment.” See, e.g., Wilson v. Colvin, No. 6:16-CV-06509-MAT, 2017 WL 2821560, at *6 (W.D.N.Y. June 30, 2017) (“It was within the ALJ’s discretion to conclude that Plaintiff’s allegations of debilitating pain were undermined by her failure to follow up on the multiple—relatively conservative—treatment options offered to her such as chiropractic treatment, physical therapy, and epidural injections.”); Green v. Colvin, No. 12-CV-6387T, 2013 WL 4094765, at *3 (W.D.N.Y. Aug. 13, 2013) (noting that Plaintiff explored different methods of “conservative treatment”, such as chiropractic adjustments, to relieve his back pain); Pasquariello v. Comm’r of Soc. Sec., No. 1:18-CV-681-DB, 2019 WL 4257407, at *5 (W.D.N.Y. Sept. 9, 2019) (noting that Plaintiff’s symptoms were consistently 12 Case 1:19-cv-00237-DB Document 19 Filed 05/12/20 Page 13 of 16 managed with “conservative treatment” such as medication, trigger point injections, epidural steroid injections, chiropractic care, acupuncture, home exercise, and physical therapy); Taylor v. Comm’r of Soc. Sec., No. 6:14-CV-0814, 2015 WL 4649820, at *8 (N.D.N.Y. Aug. 5, 2015) (noting that the plaintiff responded well to “conservative chiropractic treatment”). Accordingly, Plaintiff’s reliance on Jazina is unpersuasive, and her argument on this point fails. The ALJ also noted gaps in Plaintiff’s treatment history. Tr. 961, 469, 505. A claimant’s allegations of disability are undermined by a failure to seek regular treatment for the allegedly disabling conditions. See Naval v. Astrue, 303 F.App’x 18, 20 (2d Cir. Dec. 16, 2008) (citing Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989)). Finally, the ALJ found that Plaintiff’s subjective complaints were not consistent with many of the medical opinions of record. Tr. 961, 965. An ALJ has discretion to evaluate the credibility of a claimant and to make an independent judgment based on medical findings regarding the true extent of the claimant’s symptoms. Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984); Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir.1983). It is the function of the Commissioner, not the reviewing court, to “resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.” Caroll v. Sec’y of Health and Human Serv., 705 F.2d 638, 642 (2d Cir.1983); see Gernavage, 882 F. Supp. at 1419 n. 6 (An ALJ's determination with respect to the credibility of witnesses is given great deference because the ALJ heard the testimony and observed the demeanor of the witnesses). Furthermore, Plaintiff must produce appropriate, probative evidence in support of any subjective statements of symptoms, 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4), and the ALJ's decision to discount Plaintiff's statements of symptoms must be accepted by a reviewing court unless it is clearly erroneous. Centano v. Apfel, 73 F.Supp.2d 333, 338 (S.D.N.Y.1999). “An ALJ's evaluation of Plaintiff's credibility is entitled to great deference if it is supported by substantial 13 Case 1:19-cv-00237-DB Document 19 Filed 05/12/20 Page 14 of 16 evidence.” Nelson v. Astrue, No. 5:09–CV–00909, 2010 WL 3522304, at *6 (N.D.N.Y. Aug.12 2010). As discussed above, the ALJ assigned “very significant weight” to Dr. Kang’s opinion that Plaintiff could continue to work through her daily headaches if she took her prescribed medication. Tr. 965. The ALJ also assigned great weight to the opinions of medical expert Debra Ann Pollack, M.D. (“Dr. Pollack”), 4 very significant weight to the opinions of consultative psychiatric examiners Janine Ippolito, Psy.D. (“Dr. Ippilito”), and Susan Santarpia, Ph.D. (“Dr. Santarpia”); very significant weight to the opinion by state agency mental health consultant S. Juriga, Ph.D. {“Dr. Jurgia”); and significant weight to the opinions of consultative examiners Donna Miller, D.O. (“Dr. Miller”), and Rita Figueroa, M.D. (“Dr. Figueroa”). Tr. 965, 425-429, 995-1007, Tr. 1726-30, 1586-90, 3477-80 Dr. Pollack opined that Plaintiff could perform light work with occasional postural activities, except she could never climb ladder ropes, or scaffold she should not work around unprotected heights, she could tolerate occasional exposure to environmental irritants such as fumes and temperature extremes, shew would have mild to moderate limitations in concentration, persistence, and pace, and she could follow one- and two-step instructions in a low social contact work setting. Tr. 999-1000. Dr. Miller opined that Plaintiff had moderate limitations with repetitive pushing, lifting, and carrying. Tr. 428. Dr. Figueroa opined Plaintiff should avoid high level noise environments and that she had mild limitations in repetitive bending, lifting, and carrying. Tr. 1730. With regard to her mental functioning, Dr. Ippilito opined that Plaintiff could follow and understand simple instructions and tasks, learn new tasks, and make appropriate decisions with no 4 As noted above, Dr. Pollack, a neurologist, appeared and testified as a medical expert at Plaintiff’s hearing. Tr. 9951007. 14 Case 1:19-cv-00237-DB Document 19 Filed 05/12/20 Page 15 of 16 limitations; maintain attention and concentration and maintain a regular schedule with mild limitations; relate adequately to others with moderate limitations; and deal with stress with marked limitations. Tr. 1589. Dr. Santarpia opined that Plaintiff could understand, remember, and apply simple and complex directions; use reason and judgment to make work related decisions; sustain concentration and perform at a task at a consistent pace; sustain an ordinary work routine; and had mild to moderate limitations in interacting with others and regulating her emotions, controlling her behaviors, and maintaining well-being. Tr. 3477, 3479-81. Dr. Jurgia opined that Plaintiff could function in a low stress, low contact environment, performing simple tasks. Tr. 1083. Based on the foregoing, the Court finds that the ALJ properly exercised his discretion and found that Plaintiff’s allegations regarding her functional limitations were not entirely consistent with the medical evidence of record. While Plaintiff may disagree with the ALJ’s conclusion, the Court must “defer to the Commissioner’s resolution of conflicting evidence” and reject the ALJ’s findings “only if a reasonable factfinder would have to conclude otherwise.” Morris v. Berryhill, No. 16-02672, 2018 WL 459678, at *3 (2d Cir. Jan. 18, 2018) (internal citations and quotations omitted); Krull v. Colvin, 669 F. App’x 31 (2d Cir. 2016) (the deferential standard of review prevents a court from reweighing evidence); Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (summary order) (“Under this very deferential standard of review, once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise.”). Further, it is the ALJ’s duty to evaluate conflicts in the evidence. See 20 C.F.R. § 404.1527(c)(i); Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (“Once the ALJ finds facts, [the Court] can reject those facts only if a reasonable factfinder would have to conclude otherwise”); Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 7 (2d Cir. 2017) (“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”) (quoting Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)). 15 Case 1:19-cv-00237-DB Document 19 Filed 05/12/20 Page 16 of 16 For all the reasons explained above, the Court finds that the ALJ appropriately considered the evidence of record, including the clinical findings and the medical opinions, and the ALJ’s determination was supported by substantial evidence. Accordingly, the Court finds no error. CONCLUSION Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and the Commissioner’s Motion for Judgment on the Pleadings (ECF No. 16) is GRANTED. Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter judgment and close this case. IT IS SO ORDERED. _______________________ DON D. BUSH UNITED STATES MAGISTRATE JUDGE 16
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