MICHAEL A. TELESCA, District Judge.
Represented by counsel, Stephen Samuel Pavia("Plaintiff") 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 his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). For the reasons discussed below, the Commissioner's decision is affirmed.
Plaintiff protectively filed applications for DIB and SSI on July 12, 2011, alleging disability since April 1, 2007, based on high blood pressure, emphysema, chronic obstructive pulmonary disease, asthma, obesity, diabetes, hypoglycemia, and difficulty breathing. T.92-93, 167-74, 181, 187.
Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rule of Civil Procedure. The Court adopts and incorporates by reference herein the undisputed and comprehensive factual recitations contained in the parties' briefs. The record evidence will be discussed in further detail as necessary to the resolution of the parties' contentions.
When considering a claimant's challenge to the decision of the Commissioner denying benefits under the Social Security Act ("the Act"), the district court is limited to determining whether the Commissioner's findings were supported by substantial record evidence and whether the Commissioner employed the proper legal standards.
The ALJ followed the well-established five-step sequential evaluation promulgated by the Commissioner for adjudicating disability claims. Initially, the ALJ found that Plaintiff meets the insured status requirements of the Act through December 31, 2010. T.13. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since January 16, 2010, the amended onset date.
At step two, the ALJ determined that Plaintiff has the following "severe combination of impairments: diabetes mellitus type II and chronic obstructive pulmonary disease." T.13. The ALJ found that Plaintiff's other alleged impairments, including obesity and a history of drug addiction, are "medically determined" but do not cause more than minimal limitations in his ability to perform basic work activities. T.14. With regard to Plaintiff's obesity, the ALJ noted that when consultative physician Dr. Sandra Boehlert examined him in October 2011, he was 5'5"-tall and weighed 255 pounds; despite Dr. Boehlert's diagnosis of morbid obesity, she found no physical limitations. Subsequently, at a November 2012 appointment with his primary care physician, Dr. Hristo N. Colakovski, Plaintiff's weight was down to 199 pounds. T.14.
With regard to Plaintiff's drug addiction, the ALJ noted that a November 2009 treatment record from Strong Memorial Hospital indicates that Plaintiff has been abstinent from heroin and receiving methadone treatment for about two years. His methadone dosages had been reduced from 45 mg to 6 mg as of August 2012. The ALJ stated that there was "insufficient evidence" to corroborate Plaintiff's testimony that his methadone usage had added to his health problems. T.14.
At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. The ALJ specifically considered Listing 3.00 (Respiratory System) and Listing 9.00 (Endocrine Disorders). T.14. Based on Plaintiff's impairments and resulting limitations, the ALJ found that he has the residual functional capacity ("RFC") to perform less than the full range of "light" work. T.15. Specifically, Plaintiff can walk, stand, and sit for up to 4 hours each in an 8-hour day; lift, carry, and push up to 20 pounds at a time; but must avoid concentrated exposure to pulmonary irritants. T.15;
At step four, the ALJ determined that Plaintiff has past work, but not past relevant work, as a waiter, a short order cook, a cook helper, and a telephone solicitor. T.19-20. The VE testified that a person with Plaintiff's RFC could perform his past work as a waiter and a telephone solicitor.
At step five, the ALJ found that Plaintiff is a younger individual with at least a high school education. T.20. Plaintiff does not have the RFC to perform the full range of "light" work, making reliance on the Medical-Vocational Rule 202.21 inappropriate. The ALJ relied on the VE's testimony that a person with Plaintiff's vocational profile and RFC could perform the requirements of such representative occupations as bench assembler (DOT #706684042, SVP 2, light), of which there are 900 positions in the Finger Lakes region and 345,000 nationally. T.20. Accordingly, the ALJ entered a finding of "not disabled." T.21.
Plaintiff claims that the ALJ erred at step two by ignoring his bilateral ulnar neuropathy, which Plaintiff argues is a "severe" impairment because it causes "more than a minimal effect on [his]ability to work[,]" Dkt #8-1 at 11. Plaintiff alleges that this is shown by "ample objective medical evidence in the record" such as a positive Tinel's sign at the right elbow, T.571, and mild atrophy of the interossei and abductor digiti quinti on the right,
As the Commissioner notes, the ALJ did recognize that Plaintiff complained of some numbness in his hands and fingers to Dr. Colakovski and neurologist Shirley J. Cirello, who diagnosed him with "diabetic neuropathy." For instance, Plaintiff reported to Dr. Cirillo on July 18, 2012, that he had tingling in the third and fourth fingers of both his hands. T.569-73. On physical examination, Dr. Cirillo found that Plaintiff was neurologically intact, had full muscle strength, reflexes, range of motion, and normal gait. T.571-72. Indeed, his examination was largely unremarkable. T.570-72. Plaintiff reported having smoked cigarettes for 30-to-40 years and presently was smoking 2 packs of cigarettes per day. T.570. Dr. Cirillo diagnosed him with poorly controlled diabetes, and opined that he was at a high risk for diabetic neuropathy and ulnar neuropathy due to his noncompliance with treatment recommendations, i.e., his failure to take the prescribed dosage of Metformin and his refusal to cease smoking. T.572. Dr. Cirillo explained to Plaintiff that his condition would not improve unless he improved his diabetes control. T.572. The diagnosis of bilateral ulnar neuropathy localized to the elbows was confirmed by Dr. I-Hweii A. Chen on November 6, 2012, based on a motor nerve conduction study. T.661. At that time, Plaintiff complained of mild intermittent numbness in his hands and diminished pinprick at the dorsal ulnar cutaneous nerve territory. T.661.
However, substantial evidence supports a finding that Plaintiff's bilateral ulnar neuropathy is not "severe" insofar as it does not significantly limit his ability to perform work-related activities. At his appointment with Dr. Ciriloo, Plaintiff denied dropping items and explained that he could still play the guitar and open jars, although he had lost some dexterity. T.569. Similarly, he told Dr. Chen that the symptoms "fluctuate" and currently were "mild," and Dr. Chen found that Plaintiff had normal sensation in his hands and full strength in both hands. T.661. Plaintiff reported engaging in activities, on a daily basis, that require fine motor control of his hands (e.g., drawing, painting, and playing the guitar). T.19 (citing T.206-07). Plaintiff noted that, as a result of his illness, he had been able to spend more time doing these leisure activities than when he was working.
Plaintiff contends that the ALJ's RFC assessment was not supported by substantial evidence because the ALJ improperly rejected portions of the opinion issued by Plaintiff's primary care physician, Dr. Colakovski, and because the opinion evidence on which the ALJ relied does not support the RFC determination.
The Commissioner generally "recognizes a `treating physician' rule of deference to the views of the physician who has engaged in the primary treatment of the claimant[.]"
Here, the ALJ gave "significant weight to Dr. Colakovski's assessments of [Plaintiff]'s ability to sit, stand, walk, lift, push, and pull in an eight-hour workday because of his treating relationship with the claimant and the consistency of this opinion with the overall treating record." T.18. However, Plaintiff argues, the ALJ improperly failed to incorporate into the RFC Dr. Colakovski's opinion that Plaintiff could engage in "pushing, pulling, bending" for 1 to 2 hours in an 8-hour workday and had the "ability to lift/carry" for 1 to 2 hours in an 8-hour workday. T.456, 464. According to Plaintiff, the ALJ's RFC determination is incompatible with Dr. Colakovski's opinion. However, the Court cannot discern any material inconsistencies. The form completed by Dr. Colakovski did not mention the amount of weight to be pushed, pulled, lifted, or carried, but instead asked that the ability to perform these activities be expressed in terms of duration. Thus, the ALJ's determination regarding the amount of weight that Plaintiff could lift and carry was not inconsistent with, or contrary to, Dr. Colakovski's opinion about the duration of time Plaintiff could perform these activities. Plaintiff also argues that the ALJ failed to quantify the frequency with which Plaintiff could push, pull, and bend. However, this is of no moment. The SSA rulings indicate that an ability to bend at least occasionally is required for both light and sedentary work.
Plaintiff further argues that the ALJ improperly gave "little weight" to Dr. Colakovski's opinion that Plaintiff is able to participate in activities for only 15 hours per week. T.18. Dr. Colakovsi also indicated that Plaintiff was "unable to participate in activities except treatment or rehabilitiation" for "3 to 6 months". T.419, 462. The ALJ determined that Dr. Colakovski's conclusion was "inconsistent with his examination findings, his functional limitations assessment and the overall treating record." T.18. The reasons given by the ALJ for discounting this portion of Dr. Colakovski's opinion are supported by the record. As the Commissioner points out, Dr. Colakovi's functional assessment reports reflect unremarkable clinical findings, e.g., he noted that Plaintiff's general appearance, gait, heel and toe walking, and squatting ability are all normal, as are his skin, lymph nodes, head and face, neck, heart, abdomen, musculoskeletal, neurological, extremities, and hands. T.455-56. The only abnormalities noted are under "eyes" (wears corrective lenses), ear/nose/throat ("cerumen impaction", i.e., earwax buildup, in right ear), and respiratory ("[decreased] air entry"). T.455-56. Dr. Colakovski's clinical findings during previous examinations had been largely unremarkable.
As a final point, Plaintiff's argument that the ALJ did not specify the level of "pulmonary irritants" he must avoid is without merit. The ALJ stated that Plaintiff "must avoid concentrated exposure" to pulmonary irritants. Plaintiff has cited no authority for the proposition that this statement is not sufficiently specific. In any event, if there were error, it is harmless because the need to avoid "concentrated" exposure to respiratory irritants has only a minimal impact on his ability to perform the range of light work given in the ALJ's RFC determination.
Plaintiff argues that the ALJ failed to apply the appropriate legal standard when he found that Plaintiff's allegations were "not entirely credible." T.15. In particular, Plaintiff asserts, the ALJ improperly considered his daily activities as detracting from his complaints of disabling limitations, and erroneously took testimony from the VE before hearing Plaintiff's testimony regarding his limitations.
As the Commissioner argues, the ALJ was not required to accept, without question, Plaintiff's subjective complaints. Rather, "[i]t is the function of the [Commissioner], not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant."
Although Plaintiff characterizes his activities of daily living as "minimal", the ALJ reasonably found that Plaintiff engaged in more than a bare minimum of activities on a daily or regular basis, as discussed above.
Plaintiff's challenge to the format of the hearing is without merit. There is no indication that the ALJ prejudged Plaintiff's claims simply based on the fact that the ALJ heard testimony from the VE prior to Plaintiff testifying at the hearing. As the Commissioner argues, it is clear that the ALJ had reviewed the medical record and had narrowed the range of likely RFC determinations, but had not made up his mind prior to hearing Plaintiff testify. Rather, the ALJ presented four different hypotheticals to the VE, and Plaintiff's attorney presented three additional hypotheticals for the VE's consideration.
Plaintiff contends that due to errors in the RFC determination, the VE's testimony cannot provide substantial evidence to support the ALJ's finding that Plaintiff is not disabled. Plaintiff's claim of error at step five depends upon the finding of error at earlier steps in the sequential evaluation. However, as discussed above, the Court has found that the ALJ's RFC assessment is supported by substantial evidence. At the hearing, one of the hypothetical individuals that the ALJ presented to the VE included all of the limitations contained in the ultimate RFC determination. The VE testified that such an individual could perform representative jobs, such as that of a bench assembler, and that such jobs existed in significant numbers in the national economy. The ALJ relied on the VE's testimony to conclude that Plaintiff could perform work that existed in significant numbers in the national economy and therefore is not disabled.
For the foregoing reasons, the Court finds that the Commissioner's determination was not erroneous as a matter of law and was supported by substantial evidence. Accordingly, the Commissioner's determination is affirmed. Defendant's Motion for Judgment on the Pleadings is granted, and Plaintiff's Motion for Judgment on the Pleadings is denied. The Clerk of the Court is directed to close this case.
