Alvarez v. Colvin, No. 6:2015cv06193 - Document 22 (W.D.N.Y. 2016)
Court Description: -CLERK TO FOLLOW UP-ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 18 Commissioner's Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 09/30/2016. (JKT) (Main Document 22 replaced on 9/30/2016) (JHF).
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Alvarez v. Colvin Doc. 22 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK MAYPA ALVAREZ, Plaintif.f, DECISION & ORDER 15-CV-6193 v. CAROLYN W. COLVIN, Defendant. Preliminary Statement Plaintiff Mayda Alvarez brings this action pursuant to Titles II and XVI of the Social Security Act seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying disability disability, security income. her for applications insurance benefits and period of supplemental Presently before (Docket # 1) . See Complaint a the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12 (c) of the Federal Rules of Civil See Docket ## 10, 18. Procedure. Background and Procedural History On July 20, 2012 plaintiff disability and disability security income. claims were Plaintiff for insurance benefits, Administrative Record ("AR.") denied timely applied on filed October a 30, request 2012. for a a period of and supplemental The at 288-89. AR. hearing at 292-307. before an l Dockets.Justia.com Administrative Law Judge was held on July 10, ( "ALJ") . 2013, AR. at 308-09. The hearing before ALJ Rosanne M. Dummer, appeared via video teleconference from Falls Church, VA. 219-63. Plaintiff appeared in Rochester, Justin Goldstein. Id. an unfavorable Id. decision, AR. at NY with her attorney, Dian Lee Haller, testified at the hearing. who a Vocational Expert, On July 24, 2013, the ALJ issued determining that. claimant was not disabled under sections 216(i), 223(d), and 1614(a) (3) (A) of the Social Security Act. AR. at 170-88. Plaintiff requested review of the ALJ's decision with the Appeals Council. On February 2, 2015, request for review, Commissioner's followed. the Appeals denied plaintiff's thereby adopting the ALJ' s decision as the decision. The Council AR. at 168-69. Court AR. heard at 1-4. oral This argument federal on the lawsuit competing motions on May 20, 2016. Medical History On February 11, 2011, plaintiff Strong Memorial Hospital for pain, right hand and forearm. plaintiff's saw Dr. John Elfar at numbness and tingling in her AR. at 1023-24. electromyography and nerve Dr. Elfar noted that conduction studies were negative and that she walked with a normal gait and had a normal mood and appropriate affect. AR. at 1023. He reported Tinel's sign at the right hand and that plaintiff had signs and symptoms 2 consistent Id. Dr. later with carpal Elfar gave reported Plaintiff did saw NP tunnel syndrome plaintiff not a improve Lesley steroid her Johnson 2011, Internal Medicine been present for for on March AR. 25, 2011, Dr. Kulik four years. Dr. AR. at 554-55. so severe that ·Plaintiff it kept her up at Kulik noted hyppallesthesia in right remarked August that plaintiff had 2011 and January On Spaziani August complaining of 19, 2011, low caused her to quit her job. AR. plaintiff Plaintiff forward reported had tenderness flexion, 2+ sensation. chronic no to AR. at 547-48, 545- radiation of at 546. Dr. pain her full back to Dr. pain NP but symptoms, Michelle which Karen no had a 2011, Mazza. spasms, negative motor strength, Spaziani 3 saw On November 15, palpitation deep tendon reflexes, AR. at 548. back sought Her lower back muscles AR. at 547. were tender to palpitation. Id. plaintiff plaintiff progressive AR. at self-discontinued 2012, treatment on three occasions for back pain. 461-62. her Id. therapy, and suggested she start taking Gabapentin. Between 1038. and but otherwise plaintiff's physical exam was normal. 555. test, at she which she reported had 554. 46' which chronic arm pain, night. arm, injection, pain. Tobias Kulik at Strong the pain was at forearm plaintiff saw Dr. complained that AR. some symptoms. physical exam was essentially normal. On June 8, and full SLR and intact saw plaintiff again on January 9, 2012, movement. back AR. was for at tender complaints 462. to of back pain On physical palpation over bilaterally in the lumbar region. examination, the AR. at 462. and plaintiff's rotation. pain could inflammatory arthritis Id. Plaintiff Id. was be with a advised Medical saw Center in PA exam Amy 2, extension, assessed nature element continue lateral or of that possibly depression. physical therapy and Id. Kallio February on March possible to and resulting from a fall on ice. physical in muscles Plaintiff had a Spaziani somatic increase her Cymbalta dose. Plaintiff Dr. her plaintiff's paraspinous guarded but good range of motion on f lexion, movement restricting at University March, 2012, of for Rochester knee pain AR. at 464-45, 468-89, 470-71. 2012 revealed a somewhat A depressed affect, palpable tenderness along the radial and ulnar aspect of the proximal forearm and at the medial edge of the patella, and discomfort with range of motion in plaintiff's right knee. AR. at 468. PA Kallio prescribed Paxil for plaintiff's depression. On March 26, 2012, PA Kallio's exam revealed minimal soft tissue swelling in plaintiff's right knee, and she noted that Paxil had helped improve plaintiff's depression. Also on assessment She opined March for 26, 2012, determination that plaintiff PA of was Kallio completed employment. unable 4 AR. at 470-71. to AR. a physical at 824-827. participate in any activities other than treatment for the next six months. at PA Kallio noted that plaintiff had an abnormal gait and 824-25. was unable to perform a heel and toe walk or squat. She AR. assessed plaintiff's being "very limited" ability to walk, estimated functional AR. at 826. limitations (1-2 hours in an eight hour workday) stand, sit, push, pull, bend, as in her lift and carry. AR. at 827. On May Nicandri pain. and Dr. lateral joint insertion Andrew Bogle at 535. AR. plaintiff 2012, 10, line at tenderness tenderness, knee cortisone shot. by Dr. Strong Orthopedics as and well However, as Gregg for knee pain had pes anserinus medial and and lateral IT band femoral plaintiff had full extension and Id. was able to flex to 110 degrees. right treated Plaintiff's physical exam showed medial and condyle tenderness. her was unclear The doctors assessed that etiology and gave her a AR. at 536. Plaintiff saw PA Kallio on September 10, 2012 for radiating back and knee pain, right elbow joint pain, depression, back spasms, galactorrhea, and recurrent knee pain. lower AR. at 705. Plaintiff reported that her back pain was worse during the day, and became aggravated standing or twisting. described as when AR. bending, at 709. "stabbing and aching." 5 lying down, sitting, Plaintiff's knee pain was Id. On examination, PA Kallio noted decreased range of motion, swelling and tenderness. AR. at 709-10. On September 29, internal medicine 2012, plaintiff underwent a consultative examination by Dr. Harbinder Toor. AR. Plaintiff complained of pain in her lower back, arm and wrist, and right knee. was able to cook, clean, AR. at 557. at right She said that she do laundry and shop, but did not do child care, read, or socialize, and had no hobbies. AR. at 558. Dr. Toor noted on physical examination that plaintiff's gait was abnormal and she limped toward her right side. Id. She had difficulty getting out of her chair and changing for the exam, and declined to squat or perform a heel-to-toe walk. Toor noted restriction in plaintiff's lumbar Id. spine Dr. forward flexion and that plaintiff was unable to perform extension. at 559. AR. Her right elbow flexion/extension was restricted as was Id. her forearm supination/pronation. Plaintiff had tenderness in her right elbow and wrist, right knee and leg. right palmar dorsif lexion, wrist deviation were flexion/extension tingling and f lexion, all numbness Toor diagnosed in her Her Id. right hand, and Her ulnar/radial right Plaintiff Id. was. restricted. dexterity was not intact. Dr. limited. and Id. knee described her finger Id. plaintiff with a history of chronic lower back pain, a history of pain in the right knee, arthritis, 6 history of pain in the right elbow, hand with numbness, medical source moderate squatting, and a history of depression. statement, severe to buttoning objects with the opined that Also on sitting writing, buttons, right forearm interfered and plaintiff long tying a pushing, shoes, zipping and holding He further hand. plaintiff's. had walking, time, coin, right with In his standing, a manipulating and right Id. that with holding, pain physical routine. Toor opined lifting, grasping, zippers, Dr. limitations bending, pulling, right lower arm, balance and Id. September plaintiff 2012, 29' underwent a consultative psychiatric evaluation with Dr. Christine Ransom at the behest of the Social Security Administration. Dr. 64. Ransom medication Plaintiff for noted that depression complained of plaintiff for the had last difficulty been year. falling AR. at 561treated with AR. 561. asleep, at decreased appetite, weight loss, frequent crying spells, irritability, low energy, difficulty concentrating and having "too many thoughts in her mind at once." Id. Plaintiff stated that she did not socialize outside of her family and avoided being around people. AR. at motor 562. Dr. behavior, moderately attention, Ransom observed that plaintiff had lethargic downcast dysphoric eye Id. speech. concentration, cognitive 7 slow, halted, Plaintiff's contact, memory, and functioning, insight and judgment were all adequate. plaintiff could instructions, follow perform AR. at 563. and Dr. -Ransom opined that understand simple tasks simple directions independently, and maintain attention and concentration for simple tasks, maintain a simple regular schedule and learn simple new tasks. Dr. Ransom stated that plaintiff would have difficulty performing complex tasks, relating adequately with others and appropriately dealing with Id.· stress. She diagnosed plaintiff disorder, currently moderate. with major depressive Id. Plaintiff followed up with Dr. Spaziani on October 8, for constant radiating back and knee pain. Spaziani found mild effusion Her back was tender in plaintiff's to Dr. AR. at 565-66. right knee, tenderness to palpation over the knee's medial aspect. 566. 2012 palpation over the with AR. at paraspinous muscles in the lumbar region and up the thoracic spine, but she did not complain of tenderness when strong pressure was applied with a stethoscope. AR. at 565-66. physical therapy and the pain center. reviewed the examination syndrome in a young woman. notes, Plaintiff was referred to AR. at 566. commenting Dr. Martin "chronic pain Certainly too young to be disabled. May need psych referral to help with depression and motivation in addition to the Pain Treatment Center and physical therapy. Agree with no narcotics." AR. at 722. 8 On October psychiatrist, 26, 2012, M. reviewed the Apacible, M.D., Kallio November 15, was authored 2012. "very limited" AR. at hours 831. another stand, Plaintiff concluded AR. at 273-75. employability at 828-31. was push, that met pull, bend, lift, plaintiff was unable with LMSW Lynne AR. at 810-18. in and carry. (two to in her ability to sit. four PA Id. to participate in AR. at 829. DeLilli Mental Health Center on December 11, safety plan. on She opined that plaintiff activities other than treatment for six months. Plaintiff assessment "moderately limited" in .an eight hour day) Kallio Agency (one to two hours in an eight hour day) her ability to walk, AR. State record and concluded that plaintiff retained the ability to perform unskilled work. PA a at the Rochester 2012 to create an initial Plaintiff indicated that she was working on her tearfulness, negative thoughts, and thoughts of self-harm. reported that had experienced Id. Plaintiff she symptoms of depression and anxiety for several years and had a history abuse. of sexual AR. at 818. assault, domestic violence, and physical Plaintiff confessed to thoughts of suicide. LMSW DeLilli diagnosed plaintiff with depressive disorder. Id. On December 18, 2012, plaintiff was examined on referral by Joel Kent, M.D. at the Pain Treatment Center at the University of Rochester Medical Center. right arm pain, AR. at 779-84. Plaintiff reported low and mid-back pain and right leg pain. 9 AR. at 779. pain Her right arm pain had begun two years prior, dated stemmed stated to from that current an a injury from January 2012 her pain, July fall. that she that she was unable was used occasionally crutches to walk. Kent AR. daily functioning and 2011, AR. to and at her her back knee 779-80. pain Plaintiff severely limited by her a knee at 780. complete immobilizer .and Plaintiff told Dr. any activities of daily living at home due to her pain and that she relied on her two daughters to with sleep. her stress and generally complete AR. anxiety, household at chores. Plaintiff well-controlled she by described increased indicated 782. though Pain interfered Id. that mood her Id. medication. Dr. was Kent's recommendation and treatment plan detailed plaintiff's extensive pain response and pronounced symptoms appeared to be minor orthopedic problems AR. pathology. psychosocial at 784. factors He were stated in to what and benign underlying that negatively response it was likely modulating her responses, and recommended physical therapy and medication. that pain Id. Plaintiff saw PA Amy Kallio throughout 2013 with continued complaints of chronic back, and chronic upper and pain in diffuse pain 1091. trigger points On of January 28, plaintiff's right knee, right arm and in her upper back and neck and AR. lower extremities. 987-96, her at 2013 back, 10 121-22, PA 798-804, Kallio chest wall noted and 972-83, multiple upper and lower extremities, assessed and prescribing · Gabapentin. February 18, 2013 Gabapentin, AR. scheduling a chronic pain, letter conditions" 804. fibromyalgia, Plaintiff returned on and PA Kallio slowly increased the dosage of conduction studies. drafted at probable a one-month AR. at 983. stating that fibromyalgia, which were follow On February 20, plaintiff depression a history anxiety," "not well controlled." nerve 2013 PA Kallio "ha [d] and for up of "chronic The letter Id. concluded that plaintiff was unable to perform jury service for the next April eighteen months. 16, 2013 Plaintiff reporting a recent returned to emergency increased upper and lower back pain. dosage of Gabapentin was again AR. PA Kallio on room and for Plaintiff's at 995. increased, visit PA Kallio noted that plaintiff had an upcoming mental health appointment. AR. at 996. On May 20, she has times a Dr. plaintiff saw Dr. Spaziani, 2013, been walking two miles to her mother's week in an attempt to exercise more. Spaziani paraspinous identified muscles and multiple anterior tender trunk and switched plaintiff from Gabapentin to Lyrica. At a follow up on June 11, 2013, 11 at the She AR. at 1012. PA Kallio noted diffuse right AR. along extremities. tenderness knee. several at 1000-12. points some decreased range of motion, the house AR. muscle tenderness, of reporting that 121-22. and increased In a July 22, 2013 employability assessment, PA Kallio opined that plaintiff was very limited (one to two hours in an eight hour workday) her ability to walk, stand, push, pull, pend, use hands, in or use AR. at 1091. 1 public transportation. Throughout 2013 plaintiff received mental health treatment, primarily from LMSW DeLilli and NPP Amanda Lewis.· 79, 820, 2013, 821, 834-35, plaintiff 839-41, tearfully 842, 1083-86. described psychiatric evaluation with NPP Lewis On on at . 78, January 11, stress family difficulties setting limits in relationships. AR. and AR. at 820. February 22, At a 2013, plaintiff described family stressors and ongoing depression for the prior three years. AR. at 839. She reported social anxiety and not wanting to be around too many people. wrote that quite a plaintiff few stressors, for major depressive 840. had a felt significant history Id. NPP Lewis of trauma and that she appeared to meet criteria disorder, and prescribed Prozac. AR. at At a follow up with NPP Lewis on April 19, 2013, plaintiff said that she did not take the Prozac and was Paxil. AR. active during cleaning and at 842. the Plaintiff reported that she was remaining day attending doing yard work. again on June 12, instead back on her Id. 2013 and August 7, appointments, Plaintiff 2013, cooking, saw NPP Lewis the notes of which 'These two reports were submitted to the Appeals Counsel only. 12 were consistent with prior treatment and were submitted only to the Appeals Counsel. On June assessment 1085. 14, for 2013, LMSW determination DeLilli of issued a employability. psychological AR. 1083- She concluded that plaintiff was unable to participate in any activities except treatment for six months. AR. She assessed that plaintiff would be very limited, to function 25% or more of the time, routine and maintain a simple tasks. Ms. Id. schedule, at 1085. i.e. unable in her ability to maintain attention and concentration for rote tasks, a at regularly attend to and perform low stress and DeLilli did not indicate any area in which plaintiff could function normally. LMSW DeLilli filled out a Mental Residual Functional Capacity Questionnaire on September 26, 2013, the Appeals Council. She opined· overall that AR. plaintiff could not engage on a sustained basis. at 156-60. in full-time AR. at 160. which was sent to competitive employment She wrote that plaintiff was unable to meet competitive standards in her ability to deal with stress of semiskilled or skilled work, and was seriously limited in her ability to carry out detailed instructions realistic goals or make plans independently of others. 159. DeLilli competitive attendance also described standards and be in plaintiff her punctual, ability work 13 in as to unable maintain coordination and set AR. to at meet regular with or proximity to others, complete a normal workday/week interruptions from psychologically based symptoms, consistent rest pace periods, without get appropriately to an unreasonable along with changes with normal work stress. in a number co-workers or routine work AR. at 158. without perform at a and length of respond peers, setting, and deal Plaintiff's prognosis was fair. Hearing Testimony Testimony of Plaintiff: On July 10, held before ALJ Rosanne M. Dummer. 2013, a hearing was Plaintiff testified that she went as far as the eleventh grade and did not have her GED. at 224-25. as a She had previously worked as an office cleaner and wedding favor maker, problems AR. with her right but had to stop working because of She arm. described swollenness and tingling in her right hand that made it difficult to grab and grasp things, give out. and swelling in her right knee that caused it to AR. at 227. Plaintiff testified that she couldn't afford the brace that was prescribed for her arm, stopped using a sleep. and that she knee brace because it gave her cramps AR. at 227-28. in her She said that she was seeking treatment for a recent diagnosis of fibromyalgia. Id. Plaintiff stated that she could walk about a block before stopping, depending on the pain. 14 AR. at 230. She lives with her two teenage daughters who help her around the house. 233-34. She also cares for special needs, though she take him care of limitations. by a lot because organizations, about partially strength in her right hand. does not crowds. watch TV but of vocational expert 245-62. her not been able pain and to physical social life, plaintiff she AR. at 235. listening does not have much She also said that she to music. She avoids Vocational Dian Expert: Haller, ("VE"), also testified at the hearing. 2, DOT skilled, (2) # light work, commercial cleaner, 381.687-014; SVP of 6, skilled, (3) heavy work, manager DOT # 189.167-018; SVP novelty maker, semi-skilled, of 7, light work, # DOT (1) SVP of 4, DOT # unskilled, trainee, SVP work, retail manager, (4) light light 185.167-046; unskilled, a AR. at The VE described plaintiff's past work as follows: 270.357-030; 022. with car and does not belong to because likes the furniture salesperson, work, her grandson AR. at 238. Testimony of old she has of explained that she does not have a any year She has trouble sleeping but is aided Asked Id. two said that AR. at 234. medication. her AR. at SVP of 2, and (5) paper DOT # 794.684- AR. at 248-49. For the first hypothetical, the ALJ asked the VE to consider a person of the claimant's age, education and past work history who is able to lift and 15 carry about twenty pounds occasionally and ten pounds frequently; about six of eight hours; the light level work; unprotected stand and walk can push and pull commensurate with can occasionally climb ramps and stairs; can occasionally balance, avoid can sit, stoop, heights; kneel, right is crouch, hand and crawl; must dominant and can perform frequent, but not continuous or repetitive, handling and fingering with right limitations, the ALJ understand, remember, attention for dominant upper extremity. simple included that the As person for mental is able to and carry out simple instructions; sustain tasks for segments in an eight hour day; extended periods of two hour can tolerate at least brief and superficial contact with others; and is able to adapt to changes as needed for unskilled, responded that such plaintiff's past work, a simple work. person would AR. not The VE at 250-51. be able to perform but that such a person could work as an usher or lobby attendant with 55,000 jobs available nationally; a sub assembler for available nationally; small electrical parts with 29,000 jobs a housekeeper with 220,000 jobs available nationally; a parking lot attendant with 110,000 jobs available nationally; a nationally; an final assembler inspector, with packer, 140,000 and jobs polisher of available eyeglass equipment with 45,000 jobs available nationally; and a packager of small plastic products with 60,000 jobs available nationally. AR. at 252-54. 16 The ALJ then asked the VE to consider the same hypothetical person with the additional option every hour. limitation at 254. AR. of a brief sit/stand The VE responded that such a person could perform the previously listed jobs except parking lot attendant. that such hours. a AR. AR. person at 255. could at 256. The ALJ added a further limitation stand and walk only four of eight The VE responded that such a person could not work as an usher, lobby attendant, or housekeeper. AR. at 256-57. The ALJ asked if there would be an impact on the jobs identified by the VE if the hypothetical person were limited to lifting ten pounds only. that the impacted. For jobs listed AR. at 257. at the To this the VE responded sedentary level would not be VE to Id. her final hypothetical, the ALJ asked the consider an individual with very limited to no ability to have contact with other people, who may be off-task as much as twenty-five percent of the workday and may need two unscheduled breaks a day in addition to scheduled breaks. AR. at 258. The VE responded that such a person could not perform any jobs in the national economy. Id. Determining Disability Under the Social Security Act 17 The Evaluation Process: The Social Security Act provides that a claimant will be deemed to be disabled "if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . has lasted or can be expected to last for a continuous period of not less than twelve months." U.S.C. 42 § The 1382c(a) (3) (A). impairments must be "of such severity that he is not only unable to do his education, previous and work work but cannot, experience, engage considering in any other his age, kind of substantial gainful work which exists in the national economy " The 42 u.s.c. § 1382c(a) (3) (B). determination of disability entails a five-step sequential evaluation .process: 1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities. · 2. If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocations factors such as age, education, and work experience. 3. impairment is not "listed" in the If the the Commissioner then asks whether, regulations, despite the claimant's severe impairment, he or she 4. 18 has residual functional capacity to perform his or her past work. 5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps. Shaw v. C.F.R. Chater, 221 F.3d 126, 404.1520, §§ 132 416.920. (2d Cir. Plaintiff 2000); bears proving his case at steps one through four. is a "limited burden shift to the see also 20 the burden At step five, Commissioner" to of there "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, Commissioner 566 F.3d 303, "need not 306 provide (2d Cir. 2009) additional (noting that evidence claimant's residual functional capacity" at step five); 20 C.F.R. the see also 404.1560(c) (2) § The ALJ' s evaluation, first of In applying the Decision: five-step sequential At the the ALJ made the following determinations. step, the ALJ found that plaintiff had substantial gainful activity since December 1, onset date. AR. at 175. At the second step, not 2010, engaged in the alleged the ALJ found that plaintiff has the following severe impairments: major depressive disorder, pain medial neuropathy, the anxiety, third history epicondyle, knee step, ALJ drug- seeking, right arthritis the of wrist right tendinitis, and fibromyalgia. found that 19 plaintiff AR. does elbow joint right at hand 176. not have At a listed impairment which would social security listings. moved to the plaintiff has fourth the her disabled AR. at 176-77. step, residual perform her past work, render which Accordingly, requires functional under asking capacity the the ALJ whether ("RFC") to notwithstanding her severe impairments . . The ALJ concluded that plaintiff has the RFC to perform light work, with the following limitations: [Plaintiff] can lift/carry about twenty pounds occasionally and ten pounds frequently; sit about six of eight hours; and stand/walk about six of eight hours. She can perform pushing and pulling commensurate with light level work. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She should avoid unprotected heights. She is right-hand dominant, and she can perform. frequent (not continuous/ repetitive) handling and fingering with the right dominant upper extremity. Secondary to mental limitations, the claimant is able to understand, remember, and carry out simple instructions. She is able to sustain attention for simple tasks for extended periods of two-hour segments in an eight-hour day. She is able to tolerate at least brief and superficial contact with others. She is able to adapt to changes as needed for unskilled simple work. She should have the option to sit or stand briefly on the hour, at the workstation. AR. at 177. Lastly, the ALJ moved to the fifth step, which is comprised of two parts. plaintiff's job AR. at 186-88. qualifications by First, the ALJ assessed considering . her physical ability, age, education, and previous work experience. Id. The ALJ next determined whether jobs exist in the national economy 20 that a person perform. Id.; 404 .1520 (f)' with plaintiff's qualifications see also 42 U.S.C. 416: 920 (f). 423 (d) (2) (A); § The ALJ and found that RFC could 20 C.F.R. "there are §§ jobs that exist in significant numbers in the national economy" that plaintiff can perform, specifically usher/lobby attendant, assembler of small electric parts, housekeeper, sub- final assembler, inspector/packer/polisher of eyeglass equipment, or packager of, AR. at small plastic products, pursuant to the VE's testimony. 187. Standard of Review The denying scope of benefits this to Court's plaintiff review is of the ALJ' s It limited. is decision not the function of the Court to determine de novo whether plaintiff is disabled. Brault v. Soc. Sec. Admin., Comm'r, (2d 2012). Cir. administrative evidence record supporting Commissioner Rather, so confirms the applied long as that a "there Commissioner's the 683 F.3d 443, 447 correct review is and "the standard," the Commissioner's determination should not be disturbed. Barnhart, U.S. 1132. It means 475 F.3d 77, 80-81 (2d Cir. 2007), the substantial decision," legal of cert. Acierno v. denied, 551 "Substantial evidence is more than a mere scintilla. such relevant evidence as a reasonable accept as adequate to support a conclusion." 21 mind Brault, might 683 F.3d at 447-48 "Even (internal where support the citation and administrative contrary findings on quotation record marks may particular omitted). also adequately issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." F.3d 46, 49 (2d Cir. 2010) Genier v. Astrue, (internal quotation marks omitted). This deferential standard of review does not mean, that the Court determination. it should simply "rubber stamp" claimants Moran v. unlike a 569 Apfel, F.3d 198 trial, develop non-adversarial Astrue, Melville v. the Commissioner's in our circuit that the social judge in a affirmatively essentially however, "Even when a claimant is represented by counsel, is the well-established rule security ALJ, 606 the nature 108, hearing on disability benefits record of 112 F.3d 45, 51 is must on behalf of all a light benefits (2d Cir. (2d Cir. a in of the proceeding." 2009); 1999) see also ("Because a nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.") . the record need be factors explicitly reconciled by in any determination must be set specificity the While not every factual to enable determination Ferraris determine v. is Heckler, whether [the the reviewing supported 728 F.2d 582, findings 22 are ALJ, to decide substantial 587 in "crucial forth with sufficient court] by the conflict (2d Cir. supported by whether evidence. 1984). 11 "To substantial evidence, record, the reviewing court is required to examine the entire including contradictory evidence and evidence from which conflicting inferences can be drawn." F.2d 1033, 1038 (2d Cir. 1983). Mongeur v. Moreover, Heckler, 722 " [w] here there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of. no disability creates an unacceptable risk that a claimant disability will be determination principles." Johnson v. deprived made of the according Bowen, 817 right to F.2d the 983, to have correct 986 her legal (2d Cir. 1987). Discussion Plaintiff challenges the ALJ's decision on the grounds that the ALJ improperly weighed medical opinions and evidence in her physical and mental RFC analysis, and argues that therefore the ALJ' s decision is not supported by substantial evidence on the record. See Plaintiff's Memorandum of Plaintiff's Reply (Docket # 19). Law (Docket # 10-1); For the reasons that follow, I find that the ALJ appropriately analyzed the medical evidence of record and issued a decision that was supported by the record. I. step four, residual Plaintiff's Physical Residual Functioµal Capacity: At the ALJ found that plaintiff retained the physical functional capacity to 23 perform light work with occasional and a postural brief limitations, sit/stand option frequent on the handling/fingering, hour. AR. at 177. Plaintiff argues that this RFC analysis is inappropriate because it does not conform Harbindor Toor. the only residual to the medical opinion provided by Dr. According to plaintiff, since Dr. Toor provided medical opinion functional related capacity, to the plaintiff's must ALJ physical "provide an overwhelmingly compelling lay justification" in order to reject Dr. Toor's opinion. See Plaintiff's Memorandum of Law (Docket # 10-1) at 34. Dr. Toor examined plaintiff on September 29, behest of 2012 at the at 557-60. AR. the Social Security Administration. After performing a full social history, assessment of activities of daily living, and physical examination, Dr. Toor authored a medical source statement describing plaintiff as having moderate to severe limitations standing, walking, squatting, bending, and lifting; moderate limitations sitting for a long time and stating that pain would interfere with her balance and physical routine; holding, and moderate writing, limitations tying shoes, buttons, manipulating a coin, forearm and right hand. AR. pushing, zipping pulling, zippers, grasping, buttoning or holding objects with the right at 560. The ALJ rejected Dr. Toor's assessment of plaintiff's moderate to severe limitations as inconsistent with the overall evidence, 24 explaining that "Dr. opinion Toor's appears be to based· on the reports and is entitled to little weight." claimant's self- AR. at 184. Plaintiff contends that the ALJ erred by using her own lay .opinion to discount Dr. that it was subjective inappropriate assessments fibromyalgia, primarily Toor's opinion. ALJ to pain because of for the she recognized a through Plaintiff also argues disorder subjective objective medical findings. reject is diagnosed with which experiences of plaintiff's identified is pain rather See Plaintiff's Memorandum than (Docket # 10-1) at 36-37; Plaintiff's Reply {Docket# 19) at 3. As a one-time entitled to the same Burgess v. Astrue, that treating consultative deference as 537 F.3d 117, physician's "controlling weight") . consulting given record. weight See Cruz v. see also Camille v. it Citing Giddings v. Astrue, Cir. 2009), plaintiff argues that 2 is not report should with Supp. other 13 given found that a generally be opinions of {2d Cir. 3d 329, See {explaining generally are 912 F.2d 8, 104 F. 2008) Circuit has conflicts Sullivan, Colvin, (2d Cir. this or Dr .. Toor treating physician. opinions opinion if a 128 Indeed, physician's little examiner, 343 1990); (W.D.N.Y. 333 F. App'x. 649, 652 (2d the required to ALJ was 0f course, in some circumstances, a consultative examiner's opinion may constitute substantial evidence to support an ALJ' s decision, provided it is supported by evidence on the record. See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995). 25 provide an discounting "overwhelmingly Dr. Toor's (Docket # 10-1) the Second district court, one-time opinion. at 35. Circuit compelling I See justification" Plaintiff's respectfully disagree. remanded a disability for Memorandum In Giddings, case back to the finding in part that the ALJ's rejection of a examiner's opinion was unsupported by the record. Important to the Second Circuit was the fact that the one-time examiner's opinion was "the only medical opinion" explicitly addressing the effects of plaintiff's impairments on her ability to work and because the ALJ opinion that Giddings, 333 F. App'x at 652 the foregoing, stands contradicted the court uncontradicted, physicians, "did however the that thorough 537 F.3d 117, 129 to any medical [consultative] "when circumstantial overwhelmingly compelling . v. Astrue, refer opinion. (emphases in original) found ' [a] not or '" a responsible, Id. at 652 (2d Cir. 2008) Based on medical critique 11 opinion by must nonbe (quoting Burgess (additional internal quotation marks omitted)) The instant case stands in contrast to Giddings. . Though plaintiff criticizes the ALJ for discounting Dr. Toor's opinion, that opinion is but one piece of a voluminous medical history and record. medical Moreover, in her decision, ALJ Dummer cited several opinions and other record evidence that supported her RFC determination, whereas the ALJ in Giddings cited none. 26 For example, ALJ Dummer pointed specifically to an examination from an emergency room visit on November 15, findings on exam were noted, right knee from February 2011, AR. at 546, 24, 2012 in which no acute an MRI of plaintiff's that Dr. Gregory Diedonne noted was "essentially unremarkable," AR. at 467, and a November 30, 2012 x-ray of plaintiff's right knee that did not show any obvious abnormalities, referenced AR. plaintiff's at 945. treating AR. at 184. physicians ALJ Dummer who questioned plaintiff's self-reports of pain, pointing out that Dr. Carroll noted "pain is out of proportion to the clinical findings," and Dr. Martin wrote "may need psych referral depression and motivation in addition PT. II AR. at 184, 534, 919. ALJ to to help with the pain clinic and Dummer also relied upon plaintiff's own· statement that she had been walking two miles several times a week in an effort to increase her exercise. at 184, opinions, 1011. and contrast Dr. These plaintiff's Toor' s objective own medical subjective findings, reporting AR. medical certainly single consultative opinion that plaintiff had moderate to severe limitations with standing and walking and moderate limitations with sitting for a long time. Evidence cited elsewhere in the ALJ' s record provides evidentiary support for opinion and in the the ALJ' s RFC finding that plaintiff could sit stand and walk six of eight hours a day with brief hourly intervals. 27 Plaintiff's own treating physician, Dr. Michelle Spaziani assessed on January 9, 2012 that plaintiff's back pain and various aches and pains could be somatic in nature. 9, 2012 that depression." at 462. Dr. Spaziani wrote on October had medical AR. patient at 566. AR. plaintiff had full "no In June 2012, AR. plaintiff's physical Joe plaintiff extremities therapist had and aside full that functional limits. Dr. Bogle stated that her AR. and at 534, 536. Griseta in May 2013 active lower range extremity at 858. A report from of motion "all goals exercise program." states in strength was her within PT Griseta's report was final because plaintiff was discharged from physical therapy, that from range of motion and the ability to toe and heel walk without difficulty. that problems achieved and patient stating independent with a home Id. Plaintiff received generally conservative treatment and her healthcare providers repeatedly avoided recommending She was instead referred to physical therapy, splints, medication, immobilizer, and ice. steroid AR. told to use wrist back exercises, knee at 123, 182, 460, 462, 512, 534, 536, 546, 555-56, 578, 615-16, 757, 1038. injections, surgery. 766-67, 784, 798, 804, 844, 1023, Several times it appears that plaintiff was referred to physical attending. therapy but did not go, or went but then stopped Conservative treatment may be taken into account "as 28 additional evidence supporting the ALJ's determination." v. Astrue, 272 F. App'x 54, 55 Plaintiff's that plaintiff counsel has been Netter (2d Cir. 2008). highlights, and diagnosed with the Court recognizes fibromyalgia, which is characterized by a noted absence of objective abnormality on xrays and other (Docket# 335 laboratory at 10-1) F.3d 99, disabling tests. see 107 36-37; (2d Cir. impairment) . presence of multiple See argues 2003) Fibromyalgia disability, I her is diagnosed by which were present the in many However to the extent that fibromyalgia respectfully disagree. fibromyalgia diagnosis, Barnhart, (recognizing fibromyalgia as a tender points, that Memorandum also Green-Younger v. of plaintiff's medical examination. plaintiff Plaintiff's requires a finding of The ALJ noted plaintiff's referenced it many times throughout the opinion, and accounted for plaintiff's physical restrictions due to pain in the RFC. AR. at 176-85. Unlike in Green-Younger where the ALJ failed to credit a physician's findings related to the disease, in this case, the ALJ accepted the diagnosis but based on the totality of the record did not find it disabling. In self-reports, money, at plaintiff ride a bus, 563. mother's She home cook, stated clean, that several stated shop, she times that about week. Plaintiff described caring for her mother, 29 is able to manage and launder clothes. walked a she AR. two at miles 858, AR. to her 1011. grandson with special needs and other family members. for a young child light work. is AR. at 78-79, 782, 839. consistent with See Poupore v. Astrue, 2009); see also Rivers v. Astrue, 2008) (determining light work ability to that wherein remain ALJ active, 566 F.3d 303, was capable properly and despite having fibromyalgia) ability to perform 307 (2d Cir. 22 (2d Cir. 280 F. App'x 20, plaintiff the the engage of performing considered in an Caring plaintiff's exercise regimen There is substantial evidence in the record supporting the ALJ's physical RFC finding, and I find no error. II. capable The of ALJ's Mental performing RFC: simple, ALJ Dummer unskilled superficial contact with others. found work with AR. at 177. plaintiff brief and To support this assessment, she cited opinions from Dr. Apacible and Dr. Ransom, along with other treating opinions and medical findings on the record. Plaintiff argues that the ALJ erred in relying on the opinions of Dr. Ransom, a psychiatric consultative examiner who met with plaintiff once, and Dr. Apacible, a reviewing physician who never met plaintiff. Both opinions found that plaintiff could perform unskilled work on a sustained basis, 74, 563, and the ALJ opinion and found Dr. by the" Apacible' s RFC. AR. gave "great weight" to AR. at 273- Dr. Apacible's Ransom's opinion to be "not contradicted at opinion was 184-85. Plaintiff argues that Dr. rendered prior to other notable mental 30 heal th opinions and therefore was made on an incomplete record and cannot Chater, on amount to substantial 94 F.3d 34, 36 an incomplete evidence). (2d Cir. record evidence. See Pratts v. 1996) (a medical opinion rendered does not constitute substantial As to Dr. Ransom's opinion, plaintiff argues that it is too vague to be the basis of substantial evidence for the RFC analysis. should In place of these opinions, plaintiff argues, have plaintiff's afforded treating greater weight therapist, to LMSW the Lynne two the ALJ opinions DeLilli, who from found that plaintiff had disabling mental health limitations and was unable to arguments work. AR. at unpersuasive, 156-60, and find 1083-86. I that record the find plaintiff's as a whole supports the ALJ's RFC analysis. After examining plaintiff consultative examiner Dr. on September 29, 2012, Christine Ransom wrote that plaintiff could follow and understand simple directions and instructions, perform simple tasks independently, maintain attention and concentration for simple tasks, maintain a simple regular schedule and learn simple new tasks. She will have moderate difficulty performing complex tasks, relat[ing] adequately with others and appropriately deal[ing] with stress due to major depressive disorder, currently moderate. AR. at record 563. to One month date, state later, based on a agency reviewing 31 review of the physician Dr. entire Apacible opined that plaintiff "retains ability to perform unskilled work on sustained basis." AR. at 274. Plaintiff began seeking mental health treatment in December 2012, and saw LMSW Lewis six to DeLilli and eight indicating weeks, nor 840, plaintiff therapy that the claimant's exhibited AR. at 840, no assessments for engage in thought full-time that manage that the these 2013, LMSW DeLilli good had eye calm contact, motor processes, appropriate AR. at 820-21. 2013, and plaintiff had hallucinations, other on September 26, issues indicate stressors In January employment, health treatment notes cooperative, logical speech, mental AR. at 185 (referencing AR. helping behavior, appropriate content, on 842. was intact long term memory. two for the ALJ noted that physical psychosocial focused plaintiff appropriate thought various sessions that NPP Lewis' 843). has stressors. noted Lewis "debilitating no required such extreme restriction." 836, Amanda scheduled follow ups with plaintiff averaging every impairments at NPP In support of her decision, ongoing care . Ms. Lynne activity, goal-directed judgment, and LMSW DeLilli authored one on June 14, 2012 and the opining that plaintiff could not competitive employment. AR. at 156-60, 1083-85. The ALJ was under no duty to afford great weight to either LMSW DeLilli or NPP Lewis because 32 they are not acceptable medical sources. therapists she as granted because See "other little they were 20 C.F.R. sources") weight to 416. 913 (d) (1) (listing § Here, LMSW inconsistent the DeLilli' s with the satisfies satisfies this "treating physician's her Court. duty under Further, statement that cannot itself be determinative." F.3d 99, 128, 106 (2d Cir. 2003) 133 (2d Cir. plaintiff was disabled deference the claimant entitled Commissioner 83 F. App'x 347, 349 (2d Cir. treating physician's opinions as 177 F.3d discretion at 133). to place relatively minimal of LMSW DeLilli, 272 the F. App'x district treatment Overall, 54, it greater was weight Such an to and that a is . disabled Apfel, 177 F.3d opinions any 335 that particular makes the ultimate See, e.g., Taylor v. 2003) to the not given any weight)(citing 20 C.F.R. from Barnhart, DeLilli's determination on the issue of disability. Barnhart, record regulations, Green-Younger v. not part well-settled the that in AR. at 185. is LMSW's were the opinions (quoting Snell v. 1999)). because it explained treatment NPP Lewis, and with the record as a whole. explanation ALJ (establishing that issue of disability is § 404.1527(e)(l); well on within the Snell, the ALJ's findings and treatment of NPP Lewis than on the opinions and no error is found. 55 court (2d Cir._ 2008) relied regimen merely as on (finding no error Dr. additional 33 See Netter v. Regalla's evidence Astrue, "because conservative supporting the ALJ's determination sufficient in itself rather to than overcome as an "compelling" "otherwise evidence valid medical opinion") . Despite Dr. plaintiff's urging, the Court does not find that Ransom's statements regarding plaintiff's mental limitations are overly vague. 10-1) at 42-43; See Plaintiff's Memorandum of Law Plaintiff's Reply (Docket# 19) (Docket # at 3-4. Dr. Ransom opined that plaintiff had moderate difficulty performing complex tasks, appropriately opinion records, in relating with adequately with others AR. 563. The stress. congruence with at the other and limited plaintiff's RFC mental not contradicted misplaced. explain by In the [RFC] Here, her evidence, plaintiff's Dr. AR. at to functional Ransom's " AR. the do[] Second health this treatment ALJ Dummer 177. 184. 123-24 Circuit 'moderate' and not the permit considerable make at 209 F.3d 117, terms information, notwithstanding medical Curry, "the that additional read Ransom's opinion was "not work precluding and reliance on Curry v. Apfel, is ALJ dealing to simple work with brief and superficial contact with others. noted that Dr. and the and necessary capacity. assessment Id. of at Plaintiff's (2d Cir. made a 'mild, ALJ, constant a 2000) point to without I layperson exposure inference[s]" 123 [] to about (emphasis added). plaintiff's moderate limitations was not the only opinion relied on in ALJ Dummer' s 34 RFC analysis. medical well As discussed above, history with medical as the notes health providers NPP 595 mental RFC F.3d 402, analysis 2010, Lewis The ALJ was able to assess Dr. opinion in light of all of the other evidence. Astrue, substantial opinions dating back to from mental LMSW DeLilli in 2013. she possessed a 410 that (2d Cir. was 2010) as and Ransom's See Zabala v. (upholding an ALJ's based on clinical findings that plaintiff had no more than "mild" or "moderate" limitations) Finally, the Court disagrees that the ALJ erred in applying great weight to Dr. which stated that unskilled work on Apacible's plaintiff a opinion from October 26, retained sustained the ability AR. basis. to at 2012, perform 274. 185, Plaintiff argues that because Dr. Apacible based his opinion off of an incomplete cannot amount See Plaintiff's Memorandum of Law evidence. 41-42; it record, see Pratts v. Chater, 94 F.3d 34, to substantial (Docket # 10-1) 38 (2d Cir. at 1996) (finding that a non-examining, non-consultative opinion made off of an incomplete record does not form the basis for substantial evidence) . It is true that Dr. Apacible did not have the benefit of viewing treatment notes dated after he rendered his opinion, opinions. Dr. including LMSW DeLilli's assessments and NPP Lewis' That fact, however, does not invalidate his opinion. Apacible predating his had the assessment, benefit of including Dr. 35 examining Ransom's the records findings, AR. at 561-64, Dr. plaintiff's 1023, Elfar's notes from February 11, mood and affect NP Johnson's affect, AR. noting that findings at 556, and Dr. plaintiff's as normal 2011 describing and appropriate, from April 6, 2011 noting a mood, affect, 475. PA wrote depression was in March 2012 behavior, Kelly stable on 2012. AR. at affect, mood, October 2012. 497. Dr. behavior, stable Cymbal ta thought affirmed Davis and AR. that plaintiff judgment and Romanofsky at Spaziani's opinions in January 2012 that her mood and interest in activities was good, PA Lauren Owens AR. those also thought at 461. had normal AR. content. findings found that content and in at April, plaintiff's were normal in In short, Dr. Apacible's opinion was AR. at 625. based off of a sufficient medical record and the ALJ did not err See Tankisi v. in relying on his opinion. 521 Fed.Appx. granting was 35 "substantial supported examinations, sure, 29, by (2d weight" the remainder articulates weighing of the evidence, the to 2013) a (finding no non-examining of the record opinion and Court from strong disagreement Sec., error in that post-dated To be with no suggestion of later deterioration). plaintiff precludes Cir. Comm'r of Soc. with the ALJ' s but the deferential standard of review re-weighing it. Sec. Admin., Comm'r, 683 F.3d 443, 447-48 36 See Brault (2d Cir. 2012). v. Soc .
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