USDC SONY
DOCUMENT
ELECTRONICALL Y FILED
DOC#:
DATE FILED: JAN 082014
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSEPHINE SIMMONS,
Plaintiff, 13 Civ. 1724 (KBF)
-v- MEMORANDUM
DECISION & ORDER
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
x
KATHERINE B. FORREST, District Judge:
Plaintiff Josephine Simmons seeks review of the decision by defendant
Commissioner of Social Security Cthe Commissioner") denying her disability
insurance benefits application. On April 12, 2011, plaintiff first filed an application
for benefits, alleging that she became unable to work on February 19, 2011. (R. at
68, 128.) The Commissioner denied plaintiffs application on June 6,2011. (R. at
69-72.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"),
and appeared before ALJ Michael J. Stacchini on December 2,2011. (R. at 33-66,
73-74.) On December 20, 2011, the ALJ issued a decision finding plaintiff not
disabled under the Social Security Act. (R. at 23-29.) On January 23, 2013, the
Appeals Council denied plaintiffs request for review. (R. at 1-3.)
On March 14, 2013, plaintiff filed this action seeking judicial review of the
ALJ's decision. (ECF No. 1.) Now before the Court are plaintiffs motion for
judgment on the pleadings CPl.'s Mot.," ECF No. 10) and defendant's cross-motion
Case 1:13-cv-01724-KBF Document 15 Filed 01/08/14 Page 1 of 15
for judgment on the pleadings (,'Def.'s Mot.," ECF No. 12). For the reasons set forth
below, defendant's motion is GRANTED and plaintiffs motion is DENIED.
I. FACTUAL BACKGROUND
The Court recites here only those facts relevant to its review. 1 This Court
reviews the ALJ's decision to determine whether there is substantial evidence to
support her determination that plaintiff was not disabled between April 12, 2011,
when she applied for benefits, and the date of the ALJ's decision, December 20,
2011.
Plaintiff, a former home attendant, alleges that she was disabled as of
February 19, 2011, due to back pain, leg pain, and high blood pressure. (R. at 46,
60, 132.) In her hearing testimony and her application for benefits, plaintiff stated
that she felt pain in the lower left side of her back going down the left leg to her
knee, and that it would spread to the right side of her lower back. (R. at 148.)
Plaintiff testified that sitting, walking, and standing too long would bring on the
pain, that she took Motrin when she could not suffer pain any more, and that
Motrin relieved her pain for about half an hour. (Id.) She further stated that using
a cane and ice pack relieved some pressure and pain. (R. at 53-54, 149.) Plaintiff
said she would be able to stand for about four hours but not six. (R. at 49-50.)
Dr. Arnold B. Wilson, an orthopedic surgeon, treated plaintiff beginning in
July 2008. (R. at 164-68.) He reported limitations in the range of motion of her left
shoulder and lower back and tenderness in her lower back, but normal strength and
I A thorough summary of Plaintiff's medical history is set forth in the administrative record.
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no sensory deficits. (R. at 167.) Dr. Wilson diagnosed plaintiff with a herniated
lumbar disc and left shoulder impingement. (R. at 164.)
Plaintiff was treated at the Lincoln Medical Center emergency room from late
2008 through 2010. (R. at 169-74,177-90.) On May 27,2008, x-rays of plaintiffs
left shoulder and lumbosacral spine appeared normal. (R. at 171-72.) A December
4,2009 abdominal sonogram revealed no acute abnormality. (R. at 173.)
On Febl'uary 21, 2011, plaintiff again visited the Lincoln Medical Center
emergency department. (R. at 191-204.) She complained of lower back pain for
more than a year and a history of dislocated discs in her back. (R. at 195, 197-98.)
Dr. Sivasubramanian T. Narayanan reported normal findings on examination. (R.
at 192.)
Plaintiff returned to Dr. Wilson for follow-up care on March 4 and 31,2011.
(R. at 205,207.) Dr. Wilson reported that plaintiff had been having significant pain
in her lower back with radiation down her left leg following an accident during her
work as a home health aide. (R. at 206.) He noted that x-rays showed some
degenerative disease with no acute abnormalities, and diagnosed low back pain.
(Id.) The doctor stated that plaintiff was "totally disabled." (R. at 207-09.)
Plaintiff underwent physical therapy from March 11 through May 19, 2011.
(R. at 212-24.) She reported feeling better on at least four occasions, and notes
show that she tolerated treatment well. (R. at 215, 219, 221, 268-76, 278, 281.)
An April 11, 2011 MRI revealed mild degenerative changes within the lower
lumbar spine. (R. at 229.)
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On May 20, 2011, Dr. Joshi Dipti, a consultative physician, noted that
plaintiff had a history of hypertension and low back pain on the left side. (R. at
238.) Plaintiff described her pain as sharp and achy and said that it was worse
with walking, standing, and sitting, especially for prolonged times. (Id.) Dr. Dipti
reported that plaintiff was obese, was in no acute distress, and walked with a slight
limp. (R. at 239.) She could walk on heels and toes, squatted to 25%, and had a
normal stance. (Id.) Plaintiff told Dr. Dipti that she used a cane for pain,
weightbearing, and balance; the doctor also observed that plaintiff used a cane to
get on and off the exam table and to rise from a chair. (Id.) Examination of
plaintiffs cervical spine was normal. (R. at 239-40.) Plaintiff had a full range of
motion in her hips, knees, ankles, shoulders, elbows, forearms, and wrists; all joints
were stable and non-tender. (R. at 240.) Dr. Dipti diagnosed plaintiff with obesity
and low back pain "with mention of sciatica and radicular symptoms." (Id.)
Plaintiffs attorney submitted further medical evidence to the Appeals
Council after the ALJ's December 20, 2011 decision. (See R. at 255-98, 300-01,
305-09.) Dr. Wilson continued to refer plaintiff for physical therapy. (R. at 255
98.) Plaintiff tolerated treatment well on some dates, and reported feeling better at
sessions in October. (R. at 294-96.) In a February 13, 2012 workers' compensation
report, Dr. Wilson indicated that plaintiff could sit for two hours with rests, stand
for one hour with rests, and walk for one hour with rests, in an eight-hour workday.
(R. at 298.) The doctor concluded that plaintiff was physically ready to return to an
alternate duty job within her physical capabilities. (Id.) On September 2, 2012,
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plaintiff returned to the Lincoln Medical Center emergency department; x-rays
revealed muscle spasm and moderate degenerative joint disease, and the attending
physician discharged plaintiff to home and self-care with a diagnosis of lumbargo.
(R. at 307-09.)2
David Festa, a vocational expert ("VE"), testified at plaintiffs hearing on
December 2, 2011. (R. at 57-66.) The VE identified plaintiffs former work
experience as a "home attendant" and testified that plaintiff had performed that job
at the heavy to very heavy exertionallevel. (R. at 60-61.) The ALJ presented a
hypothetical individual to the VE who could perform a full range of light work, but
with certain limitations, including using a cane in her dominant hand and
alternating between sitting and standing. (R. at 61.) The VE identified two jobs
that such a person could perform: counter clerk, with 414,730 jobs in the national
economy and 13,490 locally, and tanning salon attendant, with 17,280 jobs
nationally and 1,480 locally. (R. at 62.):1
2 On ,January 23, 2013, the Appeals Council denied plaintiffs request to review the ALJ's decision of
December 20,2011. (R. at 1--3.) The Appeals Council stated that the additional evidence submitted
after the ALJ issued his decision did not warrant a change in the ALJ's decision, because the
information related to a time later than December 20,2011. (R. at 23.)
:3 Based on the VE's testimony, the Court acknowledges--and has no reason to doubt-that "tanning
salon attendant" appeared in the Dictionary of Occupational Titles CDOT") with the statistics above.
(See R. at 62~63.) That satisfies the requirements of Social Security Ruling 83~12 and provides
substantial evidence for the ALJ's decision. MgDonaugh v. Astrue, 672 F. Supp. 2d 542, 549
(S.D.N.Y. 2009). However, the Court must note that in the present economy, and given the facts as
set forth herein, this seems like an unlikely job for plaintiff. In any event, the VE testified that
plaintiff would also be able to perform the job of counter clerk, a much more widely available job.
(Qee R. at 62.)
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II. STANDARDS OF REVIE\V
A. .Judgment on the Pleadings
"After the pleadings are closed-but early enough not to delay trial-a party
may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The Court reviews
Rule 12(c) motions for judgment on the pleadings under the same standard as Rule
12(b)(6) motions to dismiss. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905,
922 (2d Cir. 2010). Therefore, "[t]o survive a Rule 12(c) motion, the complaint 'must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.'" Id, (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.
2010».
B. The Disability Standard
The Commissioner will find a claimant disabled under the Act if he or she
demonstrates an "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 that has lasted or can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The claimant's
impairment must be "of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy."
42 U.S.C. § 423(d)(2)(A). The disability must be "demonstrable by medically
acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
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The Commissioner uses a five-step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920; DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998). The Second Circuit has described the process as
follows:
First, the Commissioner considers whether the claimant is currently engaged
in substantial gainful activity. \Vhere the claimant is not, the Commissioner
next considers whether the claimant has a "severe impairment" that
significantly limits her physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment that is
listed in 20 C.F.R. Part 404, Subpart P, App. 1 ["Appendix 1"]. Assuming the
claimant does not have a listed impairment, the fourth inquiry is whether,
despite the claimant's severe impairment, she has the residual functional
capacity ["RFC"] to perform her past work. Finally, if the claimant is unable
to perform her past work, the burden then shifts to the Commissioner to
determine whether there is other work which the claimant could perform.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
C. Review of the ALJ's Judgment
The Commissioner and ALJ's decisions are subject to limited judicial review.
The Court may only consider whether the Commissioner has applied the correct
legal standard and whether her findings of fact are supported by substantial
evidence. When these two conditions are met, the Commissioner's decision is final.
42 G.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008) (citing
Shaw v. Chatel', 221 F.3d 126, 131 (2d Cir. 2000); Veino v. Barnhart, 312 F.3d 578,
586 (2d Cir. 2002); .Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v.
Chatel', 142 F.3d 75, 79 (2d Cir. 1998) ("We set aside the ALJ's decision only where
it is based upon legal error or is not supported by substantial evidence.").
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If the Commissioner and ALJ's findings as to any fact are supported by
substantial evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v.
Shalala, 59 F.3d 307,312 (2d Cir. 1995). Substantial evidence means "more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Pratts v. Chatel', 94 F.3d 34, 37 (2d Cir.
1996).
The Court must consider the record as a whole in making this determination,
but it is not for this Court to decide de novo whether the plaintiff is disabled. See
Veino, 312 F.3d at 586 ("\Vhere the Commissioner's decision rests on adequate
findings supported by evidence having rational probative force, we will not
substitute our judgment for that of the Commissioner."); Schaalv. Apfel, 134 F.3d
496, 501 (2d Cir. 1998); Beauvoir v. Chatel', 104 F.3d 1432, 1433 (2d Cir. 1997).
The Court must uphold the Commissioner's decision upon a finding of
substantial evidence, even when contrary evidence exists. See Alston v. Sullivan,
904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support
either position, the determination is one to be made by the factfinder."); see also
DeChirico, 134 F.3d at 1182-83 (affirming an ALJ decision where substantial
evidence supported both sides).
III. DISCUSSION
Particularly in light of the deferential standard of review required of this
Court, the ALJ correctly conducted the five-step analysis required by 20 C.F.R. §§
404.1520 and 416.920. At step one, the ALJ found that plaintiff had not engaged in
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substantial gainful activity since February 19, 2011, the alleged onset date. (R. at
25.) At steps two and three, the ALJ found that plaintiff had two severe
impairments-disc bulges and degenerative changes in the lumbar spine-but that
she had no impairment or combination if impairments that met or medically
equaled the requirements of any impairment listed in Appendix 1. (Id.) Having
found none, the ALJ then determined plaintiffs RFC: she could perform light work,
except that she could balance, stoop, kneel, crouch, and climb ramps or stairs only
occasionally; could never climb ladders, ropes, or scaffolds; required a job allowing
her to sit or stand alternatively at will; and required the use of a cane in her
dominant hand for uneven terrain or prolonged ambulation. (R. at 25-26.) At step
four, the ALJ found that plaintiff was unable to perform her past relevant work as a
home health aide. (R. at 27.) Finally, at step five, the ALJ concluded that, based on
the Medical-Vocational Guidelines contained in 20 C.F.R. Part 404, Subpart P, App.
2, plaintiff was able to perform jobs existing in significant numbers in the national
economy. Accordingly, the ALJ concluded that plaintiff was not disabled.
The ALJ supported each of his adverse determinations with substantial
evidence.
At step two, the ALJ correctly consulted Appendix 1 and found that plaintiffs
severe impairments did not meet or medically equal the severity of an impairment
listed in appendix 1. (See R. at 25.) The ALJ consulted listing 1.04(A), "Evidence of
nerve root compression characterized by ... limitation of motion of the spine," but
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rejected that possibility because plaintiff lacked the necessary muscle atrophy, as
documented by Dr. Dipti's report. (R. at 25 (citing Appendix 1), 27.)
At step three, the ALJ relied on substantial evidence and appropriately
assessed plaintiffs RFC.4 (See R. at 25-26.) The ALJ gave the greatest weight to
the statement of Dr. Dipti, a consultative examining physician, who reported
primarily normal examination results. (See R. at 27, 238-42.) The opinions of
consultative "nonexamining sources" can constitute substantial evidence in support
of an ALJ's determination, even when contrary to treating physician's assessments
(such as that of Dr. \\Tilson), "provided they are supported by evidence in the
record." Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995); see also Mongeur v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (,,[T]he opinion of a treating physician is
not binding if it is contradicted by substantial evidence ... and the report of a
consultative physician may constitute such evidence.").
Here, the ALJ appropriately found Dr. Dipti's report, including its detailed
examination results, to be credible, as they were "based on a thorough in person
examination and ... consistent with the objective medical evidence." (R. at 27.) Dr.
Dipti found normal muscle strength throughout plaintiffs legs, as well as a well-
preserved range of motion. (Id.) The ALJ noted that the doctor's reports were
consistent with plaintiffs testimony that she could perform light work, that she
could walk several blocks with a cart to shop, that she did her own cooking,
I Plaintiff bears the burden to present evidence that she lacked the RFC to perform substantial
gainful activity. See 42 C.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1512(c) ("You must provide medical
evidence showing that you have an impairment(s) and how severe it is during the time you say you
are disabled."); 20 C.F.R. § 404.1545(a)(3) ("[Ylou are responsible for providing the evidence we will
use to make a finding about your [RFC].").
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cleaning, and laundry, and that she only needed her cane for long periods. (ld.)
Dr. Dipti's report thus provided substantial evidence for the ALJ's RFC finding,
which limited plaintiff to light work, consistent with the report. (R. at 26.)
The ALJ gave little weight to the report of Dr. Wilson, plaintiffs treating
physician, who stated that plaintiff was "disabled." (R. at 27.) As the ALJ correctly
noted, the determination that a plaintiff is disabled is not a medical opinion, but
rather an administrative finding that is "reserved to the Commissioner"; the ALJ
therefore need "not give any special significance" to a doctor's view of a patient's
disability. 20 C.F.R. § 404.1527(d)(3). Additionally, the ALJ properly determined
that Dr. Wilson's opinion was inconsistent with plaintiffs testimony and with the
objective medical evidence. (R. at 27.) In fact, while Dr. Wilson stated that plaintiff
was "totally disabled," his medical assessment was "low back pain with radiation
down the left leg," to be treated with physical therapy and Vicodin. (R. at 206-07.)
Plaintiff claims that the ALJ improperly failed to develop the record before
dismissing Dr. Wilson's opinion in favor of Dr. Dipti's. (See Mem. of L. in Supp. of
Pl.'s Mot. ("Pl.'s Mot.") 5-7, ECF No. 11.) It is true that the ALJ must develop the
record fully. Lopezv. Secretary of Dep't of Health & Human Servs., 728 F.2d 148,
150 (2d Cir. 1984). However, the ALJ here did just that through numerous
questions about plaintiffs condition over the course of a lengthy administrative
hearing, amounting to a 33-page transcript. (See R. at 33-66.) Therefore, the cases
cited by plaintiff are distinguishable. See Moran v. Astrue, 569 F.3d 108, 113 (2d
Cir. 2009) (in which the transcript of the plaintiffs hearing was fewer than 13 pages
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long); Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990) (in which the ALJ "failed to
probe into the frequency and severity of [plaintiffs asthma] attacks"); Lopez, 728
F.2d at 150 (in which the ALJ refused to hear testimony from a witness). The ALJ
sufficiently developed the record in this case.
Plaintiffs testimony as to her daily activities provided further substantial
evidence for the ALJ's decision; it also contradicted both Dr. Wilson's statement
that plaintiff was "totally disabled" and plaintiffs own subjective allegations that
she was disabled. (See R. at 26, 49-50, 53-54, 148-49.) Plaintiff stated that using
a cane relieved some pain and that she could stand for about four hours; that she
lived alone in an apartment and prepared her own meals; that she swept, did
laundry, and mopped floors; that she took public transportation; and that she
walked to the supermarket and to her religious services. (R. at 41-42, 49-50, 53
55, 141-42, 149.) That described level of activity is consistent with the medical
record and inconsistent with an inability to perform any work. (R. at 27.) The ALJ
was thus entitled to reject plaintiffs allegations of her disability as not entirely
credible. "It is the function of the [Commissioner], not [the Court], to resolve
evidentiary conflicts and to appraise the credibility of witnesses." Carroll v.
Secretary of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Contrary to
plaintiffs assertions (see Pl.'s Mot. 12-15), the ALJ did consider the seven factors
relevant to a credibility determination, including plaintiffs daily activities, her pain
and symptoms, her medications, and her treatments other than medications. (See
R. at 26-27.)
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Even if Dr. Wilson's opinion were credible and consistent with the medical
record, this Court would nonetheless be required to uphold the ALJ's finding based
on the substantial evidence presented by Dr. Dipti and plaintiffs testimony.
"\Vhere the Commissioner's decision rests on adequate findings supported by
evidence having rational probative force, we will not substitute our judgment for
that of the Commissioner." Veino, 312 F.3d at 58B. That is true even if substantial
evidence would support either a finding of disabled or not disabled, for "[w]here
there is substantial evidence to support either position, the determination is one to
be made by the factfinder." Alston, 904 F.2d at 12B.
At step five, the ALJ properly concluded that, while plaintiff was unable to
perform her past relevant work as a home health aide, she retained the ability to
adjust to other jobs existing in significant numbers in the national economy. (R. at
17-18.) Plaintiff argues that the ALJ and vocational expert (HVE") who testified at
her administrative hearing insufficiently took into account the need for work with a
sit/stand option. (SQQ Pl.'s Mot. at lB.) However, both the ALJ and VE accounted
for plaintiffs limitation to jobs that allowed for her to alternate sitting and
standing. (See R. at B1 ("I want you to also assume that this person is allowed to sit
or stand alternatively at will ....").) Even so, the VE identified two jobs that a
person of plaintiffs profile could perform that existed in the national economy. (R.
at BO-B2.) That vocational opinion constituted substantial evidence to support the
ALJ's decision regarding plaintiffs RFC to perform other jobs. See Dumas v.
Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983).
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Finally, the Appeals Council properly determined that the evidence
submitted after the ALJ's decision did not warrant changing that decision. (See R.
at 1-3.) Evidence submitted after an ALJ issues his or her decision may warrant
remand if it is "new" and "material" and there is a showing of good cause for failure
to present the additional evidence in the prior proceeding. 42 U.s.C. § 405(g). To be
"new" and "material," the evidence must not be "cumulative of what is already in
the record," and it must be "both relevant to the claimant's condition during the
time period for which benefits were denied and probative." Tirado v. Bowen, 842
F.2d 595, 597 (2d Cir. 1988). Here, most of the evidence submitted post-dates the
period at issue in this case, which ended on December 2,2011, and is thus not
"nevv." R. at 298 (dated February 13, 2012), 305-09 (dated September 20,
2012).)Ii The other submissions provide no factual evidence beyond that which
already existed in the record related to plaintiffs physical therapy and medical
appointments. (See R. at 256-97, 301.)
5 Even if the report completed by Dr. Wilson on September 12 did partially relate to the disability
period in question. it is not material. Plaintiff claims that the form "directly contradicts the RFC
found by the ALJ." (See Pl.'s Mot. 11.) However, Dr. Wilson completed that form for a workers'
compensation claim. "[T]he standards which regulate workers' compensation relief are different
from the which govern the award of disability insurance benefits under the Act," and
"an opinion rendered for purposes of workers' compensation is not binding on the [Commissioner]."
~~'-"-''-'--'''~.!±!±j,±, 868 F. Supp. 471, 473 (E.D.N.Y. 1994); see also 20 C.F.R. § 404,1504.
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IV. CONCLUSION
For these reasons, defendant's motion for judgment on the pleadings is
GRANTED and plaintiffs motion for judgment on the pleadings is DENIED. The
Clerk of Court is directed to close the motions at ECF No. 10 and 12 and to
terminate this action.
SO ORDERED.
Dated: New York, New York
January 8, 2014
KATHERINE B. FORREST
United States District Judge
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