ANDREW T. BAXTER, Magistrate Judge.
This matter was referred to me, for all proceedings and entry of a final judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos.).
Plaintiff protectively filed
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he is "unable 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. § 1382c(a)(3)(A). In addition, the plaintiff's
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, the burden then shifts to the Commissioner to prove the final step. Id.
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review "— even more so than the `clearly erroneous standard.'" Brault, 683 F.3d at 448.
"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support for the ALJ's decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ cannot "`pick and choose' evidence in the record that supports his conclusions." Cruz v. Barnhart, 343 F.Supp.2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
Plaintiff was 34 years old at the time of the ALJ's hearing. (T. 36). She lives at home with her husband and two children, ages 12 and 15. (T. 37). Plaintiff is righthanded. (T. 37). She has a driver's licence, but does not drive regularly. (Id.) Plaintiff testified that driving is very difficult for her because it is hard for her to turn the wheel, and therefore, she does not "do parking ramps." (T. 38). Plaintiff relies on her mother to "get around town," and she gets out of the house "a couple" of times per week to go to the grocery store or to Walmart. (T. 37-38).
Plaintiff graduated from high school, taking "regular" classes. (T. 38). She attempted to go to "hair school," but could not complete the program because of her wrists. (Id.) Although plaintiff worked as a home health aide for a short time,
Plaintiff testified that she has chronic pain at the top of both of her wrists, and that she has "lumps" where the wrists swell. (T. 40). She has pain opening a door, carrying her purse, or even holding her phone to her ear for an extended period of time. (T. 40-41). Plaintiff stated that if she has to write a letter, she can only write half of a page before she has to take a break and start writing again. (T. 41). She often wears pants with an elastic waist because she has trouble buttoning, and she testified that she has not worn sneakers in a long time. (T. 42).
Plaintiff's husband usually cuts her food. Plaintiff tries to eat, holding the utensil in her right hand, but the pain forces her to use her left hand, and "sometimes" she eats with her fingers because the pain is so severe. (Id.) Plaintiff uses a straw to drink her coffee so she does not have to lift the cup. (Id.) Plaintiff testified that she would have a lot of difficulty lifting something repetitively, even if it was "really light," and she could not lift half a gallon of milk at all. (T. 43-44).
Plaintiff stated that she had a total of six surgeries on her wrists, the last of which took place several months prior to the hearing. (T. 44). Plaintiff testified that the surgeries did not make her wrists better, the "lump" came back, and the pain was "exactly the same." (T. 44-45). Plaintiff testified that she has pain all the time, and that she wakes up with pain in her wrists. (T. 47). Her sleep is often interrupted by the pain. (T. 48). Plaintiff stated that she occasionally takes Vicodin for the pain, but that it makes her sleepy,
The ALJ then took the VE's testimony. (T. 50-59). The ALJ asked the VE about the physical requirements of plaintiff's past relevant work and then asked him three hypothetical questions. (T. 51-52, 52-55). The first two questions assumed that plaintiff could perform light work, with restrictions on the use of her wrists. (T. 51-54). The third question asked the VE to assume that plaintiff could perform only sedentary work in addition to the upper extremity limitations. (T. 52-55) The third hypothetical also asked the VE to assume that plaintiff could only lift five pounds "occasionally," and could not engage in repetitive hand movements. (T. 52, 55). Plaintiff could never climb ladders, ropes, or scaffolds, could only occasionally handle, finger, and feel with the right dominant upper extremity, and could frequently handle, finger, and feel with the left side. (T. 52).
In response to the third hypothetical question, the VE testified that plaintiff could still perform work as a greeter or "information clerk." (T. 55). The VE also testified that although there would be "some erosion . . . around 25%" in the overall number of jobs, plaintiff could also perform alternative work as a call-out operator and a telephone solicitor.
The ALJ's decision and the plaintiff's briefs provide a detailed statement of the medical and other evidence of record. (T. 17-22, Pl.'s Br. at 1-9). Rather than reciting this evidence at the outset, the court will discuss the relevant details below, as necessary to address the issues raised by plaintiff and with any modifications noted in my decision.
The ALJ first found that plaintiff met her insured status until March 31, 2014. (T. 17). Plaintiff had not engaged in substantial gainful activity from July 1, 2012, her alleged date of onset until March 31, 2014. (Id.) At step two of the sequential evaluation, the ALJ found that plaintiff's Carpal Tunnel Syndrome ("CTS") and Cubital Tunnel Syndrome ("Cubital Tunnel") were severe. (T. 17). At step three of the evaluation, the ALJ found that plaintiff's severe impairments did not meet or medically equal the severity of any Listed Impairments. (T. 18). In making this determination, the ALJ considered Listing 11.14 (Peripheral Neuropathy). (Id.) The ALJ found that plaintiff did not have marked or extreme limitations with regard to the use of her extremities as required by the Listing.
At step four, the ALJ found that plaintiff could perform the physical requirements of sedentary work, with several limitations to the use of her upper extremities. (T. 18-21). Plaintiff could occasionally lift up to five pounds, and she could never climb ladders, ropes, or scaffolds. (T. 18). She could occasionally handle, finger, and feel with her right dominant extremity; and she could frequently handle, finger and feel with her left non-dominant extremity. Plaintiff could not engage in repetitive hand movements, but could occasionally tolerate exposure to vibration. (Id.)
The ALJ reviewed plaintiff's testimony and the medical evidence, acknowledging that plaintiff has had six surgeries on her wrists. (T. 19). The ALJ found that plaintiff's medical impairments could reasonably be expected to cause her alleged symptoms, including pain, but that the plaintiff's statements as to the intensity and the limiting effects of those symptoms were not "entirely consistent with the medical and other evidence of record." (T. 19). The ALJ considered the plaintiff's statements regarding her daily activities as well as the medical findings. (T. 19-21).
The ALJ discussed both positive and negative test results, but noted that, as late as December 2015, plaintiff's physical examinations showed that she had intact hand and finger dexterity, 4/5 grip strength, and she demonstrated the ability to zip, button and tie. (T. 19-20). The ALJ stated that in April of 2013, despite positive Tinel's
The ALJ also reviewed the physicians' reports, including those of plaintiff's treating physician, Dr. David Ellison and of consulting examiner Gilbert Jenouri. (T. 20-21). The ALJ only gave partial weight to Dr. Jenouri's report and rejected the report to the extent that he found that plaintiff had some limitation for sitting, standing, walking, foot control, or postural limitations. (T. 20). The ALJ found that neither Dr. Jenouri, nor any of the other physicians diagnosed any impairments which would form a basis for such limitations. (T. 20). The ALJ based her finding on Dr. Ellison's statement that plaintiff's wrist impairments would have no effect on the plaintiff's ability to sit, stand, or walk. (T. 20).
The ALJ also found that plaintiff's lifting and/or carrying limitations were greater than those expressed by Dr. Jenouri. (T. 20). The ALJ accepted Dr. Ellison's finding that plaintiff could occasionally lift only up to five pounds, could use her right arm and hand up to 1/3 of each working day, and could use her left arm and hand more than 1/3 of the working day. (T. 20). The only opinion of Dr. Ellison's that the ALJ did not accept was his answer to questions on a form, regarding plaintiff's ability to be "on task" and his estimation of her necessity to miss work each month. (T. 20). The ALJ stated that Dr. Ellison's opinions about plaintiff's physical capabilities were "consistent with the longitudinal record," but that "his estimations regarding the time off task and [days] absent from work are speculative at best and I therefore reject same." (T. 20).
Based on the plaintiff's RFC and the VE's testimony, the ALJ found at step four that plaintiff could perform her past relevant work as a greeter or "information clerk" at Walmart. (T. 21). In the alternative, the ALJ considered step five of the sequential evaluation, finding that plaintiff could perform other jobs which exist in the national economy. (T. 21). In making this determination, the ALJ considered the Medical Vocational Guidelines as a framework for her decision. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.28. (T. 22). However, because plaintiff has additional limitations that would "impede" plaintiff's ability to perform all or substantially all of the requirements of sedentary work, the ALJ considered the VE's testimony regarding jobs that plaintiff could still perform, notwithstanding these additional limitations. (T. 22). The VE found that plaintiff could still perform the jobs of telephone solicitor and call-out operator. (T. 22). Thus, the ALJ determined that plaintiff was not disabled from July 1, 2012 until her insured status expired on March 31, 2014. (T. 22-23).
Plaintiff raises the following arguments:
Defendant argues that the Commissioner's determination was supported by substantial evidence and should be affirmed. (Def.'s Br. at 7-15) (Dkt. No. 11). Plaintiff filed a reply brief, focusing on the argument that she could not meet the work pace and attendance requirements of her former work or any other work in the national economy. (Dkt. No. 14). For the following reasons, this court agrees with defendant and will affirm the Commissioner's decision, dismissing the complaint.
RFC is "what [the] individual can still do despite his or her limitations. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. . . ." A "regular and continuing basis" means eight hours a day, for five days a week, or an equivalent work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2)).
In rendering an RFC determination, the ALJ must consider objective medical facts, diagnoses and medical opinions based on such facts, as well as a plaintiff's subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R §§ 404.1545, 416.945. See Martone v. Apfel, 70 F.Supp.2d 145, 150 (N.D.N.Y. 1999) (citing LaPorta v. Bowen, 737 F.Supp. 180, 183 (N.D.N.Y. 1990)). An ALJ must specify the functions plaintiff is capable of performing, and may not simply make conclusory statements regarding a plaintiff's capacities. Martone, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F.Supp. 456, 460 (W.D.N.Y. 1987)). The RFC assessment must also include a narrative discussion, describing how the evidence supports the ALJ's conclusions, citing specific medical facts, and nonmedical evidence. Trail v. Astrue, No. 5:09-CV-1120, 2010 WL 3825629 at *6 (N.D.N.Y. Aug. 17, 2010) (citing Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *7).
"Although the treating physician rule generally requires deference to the medical opinion of a claimant's treating physician, . . . the opinion of the treating physician is not afforded controlling weight where . . . the treating physician issued opinions that are not consistent with other substantial evidence in the record . . . ." Halloran v. Barnhart, 362 F.3d 28, 32 (2004); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). The ALJ must properly analyze the reasons that a report of a treating physician is rejected. Halloran, 362 F.3d at 32-33. An ALJ may not arbitrarily substitute her own judgment for competent medical opinion. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
Plaintiff's counsel reviews a great deal of the medical evidence of record in his brief and argues that the ALJ engaged in picking and choosing only the medical evidence that favored the ALJ's determination. The essence of plaintiff's argument is that the ALJ should have accepted Dr. Ellison's opinion that plaintiff would be "off task" for 33% of the work day, and that she would be absent from work due to her impairments for four days per month.
In fact, the ALJ's RFC is taken from part of Dr. Ellison's January 2017 Questionnaire, in which he finds that none of plaintiff's other physical capabilities would be impacted by her wrist impairments, together with a Supplemental Questionnaire
There is no question that plaintiff has severe wrist impairments, and she states that the six surgeries have not improved her condition.
The ALJ's decision is not required to perfectly correspond with any of the opinions of medical sources cited in her decision, and she may accept portions of the medical records while rejecting others in order to make an RFC determination that is "consistent with the record as a whole." Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013),
The Second Circuit has recently made it clear that the ALJ need not afford controlling weight to the opinions of a plaintiff's treating physicians when they are not supported by clinical findings and inconsistent with their own records and treatment notes. Smith v. Berryhill, 740 F. App'x 721, 724 (2d Cir. 2018). The ALJ must give "`good reasons'" for affording the limited weight. Id. (quoting Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998); 20 C.F.R. § 404.1527(c) (2)). In Smith, the ALJ gave less weight to the opinions of three treating physicians who completed questionnaires, in which they checked boxes, indicating that the plaintiff would be "off-task" various percentages of the day or absent from work for various days during the month. Id. The court also stated that the ALJ was not required to identify the evidence explicitly rebutting the opinions of Smith's treating physicians before discounting or rejecting them." Id. at 726 (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).
In this case, this court finds that the ALJ's rejection of Dr. Ellison's "off task" and absenteeism opinions is supported by substantial evidence, including an analysis of Dr. Ellison's opinion of plaintiff's physical abilities. The questionnaire asks whether plaintiff's impairments, "and/or" any side effects from medication, would cause plaintiff pain or fatigue, affecting plaintiff's concentration, work pace, or need to rest at work. (T. 369). Dr. Ellison answered "yes" to all of the questions. (Id.) The next question states that if any of the answers to the previous question were "yes," the doctor should estimate the percentage of time that the individual would be "off task" as a result of any or all of the limitations in the previous question. (T. 370). Dr. Ellison checked the box indicating that plaintiff would be "off task" more than 33% of the day. (Id.)
Although Dr. Ellison states that plaintiff will be "off task" for more than "33%" of the workday, he states in his estimate of plaintiff's physical abilities, that plaintiff can use her right arm and hand for up to 1/3 of the workday and her left arm and hand for more than 1/3 of the workday. (T. 368) (Supplemental Questionnaire). The term "off task" depends on what the individual perceives as the task. The ALJ's finding that such a determination is "speculative" is supported by the evidence of record. If Dr. Ellison found that plaintiff could use her right hand and arm for 1/3 of the workday, he may have believed plaintiff would be "off task" the rest of the day. This could be true if plaintiff's job required her to use her hands for the entire workday.
However, the ALJ took Dr. Ellison's stated physical limitations into account and determined that plaintiff could only perform work which required her to use her right arm and hand only "occasionally," or up to 1/3 of the workday in addition to limiting her lifting requirement to five pounds "occasionally." The ALJ also specifically found that plaintiff could not do repetitive movements, and thus, even if "pace" were affected, there is no indication that plaintiff would be unable to do her former work as a Walmart greeter. There were no pace requirements discussed in any of the jobs suggested by the VE. This supports the ALJ's finding that Dr. Ellison's opinions in this regard were speculative or not relevant to the particular jobs that were available to plaintiff, given her limitations. There is no indication that Dr. Ellison knew or considered the type of work that was available, notwithstanding plaintiff's limitations.
Plaintiff argues that the ALJ engaged in "picking and choosing" only the evidence that was favorable to the Commissioner. However, the ALJ acknowledged that plaintiff had both positive and negative findings and based her RFC determination on the limitations imposed by plaintiff's treating physician.
Plaintiff argues that the ALJ erred in relying on plaintiff's "activities." (Pl.'s Br. at 12-13). However, the ALJ did
Plaintiff argues that Dr. Jenouri's statement that plaintiff could zip, button, and tie was irrelevant because it was only a "snapshot" in time. (Pl.'s Br. at 12). Plaintiff states that there is no indication that Dr. Jenouri tested plaintiff's functions "over time or after repeated use of her hands/wrists." (Id.) However, the ALJ specifically found in her RFC that plaintiff could not engage in repetitive hands movements. (T. 18). The ALJ also found that Dr. Jenouri overestimated some of plaintiff's abilities and rejected those findings. Even if plaintiff was more restricted than she expressed to Dr. Jenouri, the activities that plaintiff admitted to performing on a daily basis are not inconsistent with the ability to perform the work that the ALJ found was available for her to perform. See Cichocki v. Astrue, 729 F.3d 172, 178 (2d Cir. 2013) (ALJ properly considered plaintiff's daily activity questionnaire, in which she stated that she performed numerous daily tasks that were consistent with a residual capacity to perform light work).
The court notes that on September 1, 2015, an examination of the plaintiff by a nurse practitioner showed that plaintiff had joint tenderness and weakness, but there was no edema, no color change, and she had full range of motion of her wrists with moderate increase in pain with rotation on the right. (T. 245-48). Plaintiff had no motor deficits and her sensation was normal, although she had tenderness at the dorsal scar over her right wrist. (T. 247). Plaintiff noted that her pain was 7/10. (T. 248).
As stated above, the ALJ acknowledged the diagnoses made by the physicians in this case, and accepted that plaintiff has pain in her wrists to the point where she cannot lift more than five pounds occasionally and cannot do repetitive movements with her hands. However, the jobs that the VE proposed do not require plaintiff to perform any movements that are beyond her RFC as stated by her own treating physician.
I find that Lockwood does not affect my decision in this action. The ALJ, plaintiff's attorney, and the VE discussed plaintiff's five pound lifting restriction during the hearing. (T. 57-58). The VE specifically stated that the DOT defines sedentary work as lifting "up to ten pounds," which "digresses from the DOT, so I am using my experience to answer that." (T. 58). The VE also testified that she had already "erode[d]" the number of sedentary jobs based on the plaintiff's actual limitation. (T. 57). Thus, any discrepancy between the VE's testimony and the DOT was reasonably explained at the hearing, even though in her decision, the ALJ stated that she determined that "the [VE's] testimony is consistent with the information contained in the DOT and its companion publications." (T. 22). To the extent that the ALJ's statement could be considered error because there was a conflict which was resolved, the error is harmless because of the detailed discussion at the hearing. As the district judge noted in Lockwood, the exertional categories require that an individual must not be required to lift over a certain amount, but some jobs in the particular exertional category would not require lifting the maximum amount of weight. 2017 WL 2656194 at *5. As stated above, the Second Circuit did not reverse this finding.
