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Overbaugh v. Astrue

March 22, 2010

DONALD OVERBAUGH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Donald Overbaugh brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny his application for disability benefits. This matter was referred to United States Magistrate Judge David E. Peebles for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Peebles recommended that this Court enter judgment on the pleadings affirming the Commissioner's decision denying disability and dismissing plaintiff's complaint. Presently before the Court is plaintiff's objection to the Report and Recommendation.*fn1

II. BACKGROUND

On April 6, 2004, plaintiff filed an application for Supplemental Security Income ("SSI"). (T. 50-52)*fn2 . Plaintiff was 47 years old at the time of his application and alleged an inability to work due to obesity, hip pain and chest pain. (T. 59). On June 21, 2004, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on September 9, 2005.

(T. 18, 27). On December 13, 2005, the ALJ issued a decision and found at step one that plaintiff had not engaged in substantial gainful activity since his application for SSI. (T. 18-24). At step two, the ALJ determined that plaintiff's degenerative arthritis of the left hip was a severe impairment. (T. 19, 23). At step three, the ALJ concluded that plaintiff's impairment neither met nor equaled any impairment listed in Appendix 1 of the Regulations. (T. 19, 23). The ALJ next found that plaintiff retained the residual functional capacity to sit for six hours and stand for two hours each in an eight-hour workday and lift 10 pounds. (T. 20). Therefore, the ALJ found that plaintiff had the residual functional capacity to perform a full range of sedentary work activity.

(T. 20). The plaintiff lacked any relevant past work experience. (T. 23). Therefore, relying on the medical-vocational guidelines ("the grids") set forth in the Social Security Regulations, 20 C.F.R. Pt. 404, Subpt. P, App.2, the ALJ found that based upon plaintiff's ability to perform a full range of sedentary work activity and given plaintiff's age and education, plaintiff was not disabled. (T. 23). The ALJ denied plaintiff's application for SSI benefits. (T. 23). The Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner.*fn3 (T. 9-12). This action followed.

III. REPORT AND RECOMMENDATION

In the Report and Recommendation, Magistrate Judge Peebles found that: (1) the ALJ afforded the appropriate weight to the opinions of plaintiff's treating physician, Dr. Charles Bertuch; (2) the ALJ's decision to reject Dr. Lesly Germain's November 2005 Medical Source Statement was properly explained and supported by substantial evidence; (3) Dr. Germain's opinions are wholly consistent with the requirements of sedentary work; and (4) the Appeals Council afforded the proper weight to the opinions offered by Dr. Russell Cecil and Nurse Practitioner Diane Vecchio.*fn4 (Dkt. No. 15).

IV. DISCUSSION

A. Standard of Review

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine de novo whether plaintiff is disabled. Rather, the Court must examine the Administrative Transcript to ascertain whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part of a Magistrate's Report and Recommendation to which a party specifically objects. Failure to object timely to any portion of a Magistrate's Report and Recommendation operates as a waiver of further judicial review of those matters. See Roland v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

Plaintiff objects to the Magistrate's Report and Recommendation on the following grounds: (1) the Magistrate Judge erroneously engaged in post hoc rationalizations of the Commissioner's decision not to afford controlling weight to Dr. Bertuch's opinions; (2) the Magistrate Judge erroneously failed to find that reversal was required due to the ALJ's failure to articulate good cause for discrediting Dr. Germain's opinions; (3) the Magistrate Judge's conclusion that sedentary work allows a claimant to alternate between sitting and standing "at will" is inconsistent with Social Security Ruling 96-9p; and (4) the Magistrate Judge failed to find that reversal was required due to the Appeals Council's lack of explanation as to why it declined to credit the opinions of Dr. Cecil and Nurse Practitioner Vecchio. (Dkt. No. 16).

B. Treating Physician Rule

Under the Regulations, a treating physician's opinion is entitled to "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (treating physician's opinion is not controlling when contradicted "by other substantial evidence in the record"); 20 C.F.R. § 404.1527(d)(2). The less consistent an opinion is with the record as a whole, the less weight it is to be given. Stevens v. Barnhart, 473 F.Supp.2d 357, 362 (N.D.N.Y. 2007); see also Otts v. Comm'r of Soc. Sec., 249 F.App'x 887, 889 (2d Cir. 2007) (an ALJ may reject such an opinion of a treating physician "upon the identification of good reasons, such as substantial contradictory evidence in the record"). When an ALJ refuses to assign a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including:

(I) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.

20 C.F.R. § 404.1527(d)(2).

While the final responsibility for deciding issues relating to disability is reserved to the Commissioner, the ALJ must still give controlling weight to a treating physician's opinion on the nature and severity of a plaintiff's impairment when the opinion is not inconsistent with substantial evidence. See Martin v. Astrue, 337 F. App'x 87, 89 (2d Cir. 2009).

In rejecting a claim of disability, an ALJ is not required to reconcile explicitly every conflicting shred of medical testimony. See Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981). Failure to specifically state the weight afforded to a treating physician's opinion does not mean that the opinion was not properly considered. See Marine v. Barnhart, 2003 WL 22434094, at *3 (S.D.N.Y. 2003) (holding that the ALJ's failure to comment on weight afforded to opinions was not improper as the decision indicates that his findings were made "[a]fter consideration of the entire record."). When consideration of a report would not change the outcome of the decision, the ALJ's failure to specifically state the weight afforded to an opinion is harmless error. Jones v. Barnhart, 2003 WL 941722, at *10 (S.D.N.Y. 2003); see also Walzer v. Chater, 1995 WL 791963, at *9 (S.D.N.Y. 1995).

1. Dr. Bertuch

In November 2001, plaintiff began treating with Charles Bertuch, M.D., an orthopedist, for pain in his left hip. (T. 211). Based upon an examination and x-rays, Dr. Bertuch diagnosed plaintiff with mild osteoarthritis of the left hip and mild to moderate osteoarthritis in the right hip. Dr. Bertuch noted that, "he does not have as much arthritis [sic] that I would have expected with this amount of his symptoms, amount of motion loss and pain". (T. 211). Dr. Bertuch recommended weight loss and physical therapy but noted that plaintiff was not a candidate for a hip replacement at that time. (T. 212). Plaintiff continued to treat with Dr. Bertuch from January 2002 until August 2002. (T. 141-145). Dr. Bertuch consistently noted that plaintiff had more pain and loss of motion than he would expect from the amount of arthritis shown on x-rays. (T. 143-145). Dr. Bertuch noted that pain was subjective but the loss of motion was an objective finding. (T. 144). In June 2002, plaintiff complained of pain with loss of motion and claimed he tried to work but, "could not do anything". (T. 142). In August 2002, Dr. Bertuch noted that plaintiff was, "ready for a total hip replacement". (T. 141).

In February 2004, plaintiff returned to Dr. Bertuch and claimed that he cancelled surgery several years ago due to a heart condition. (T. 140). Dr. Bertuch noted that plaintiff had marked pain and marked loss of range of motion of the left hip and pain in his left groin. (T. 140). Dr. Bertuch prescribed Aleve and advised plaintiff to use a cane and consider scheduling surgery for a total hip replacement. (T. 140). In May 2004, plaintiff returned to Dr. Bertuch with marked pain on range of motion of the left hip. (T. 233). Dr. Bertuch again noted, "I cannot explain the marked pain and marked loss of range of motion for the amount of arthritis since there is still quite a bit of joint space remaining". (T. 233). Dr. Bertuch recommended cortisone injections, "rather than jump into total hip replacement". (T. 233). On June 23, 2004, plaintiff returned to Dr. Bertuch complaining of left hip pain and pain in his groin when urinating. (T. 232). Dr. Bertuch noted, "amazingly he has full range of motion of left hip". (T. 232).

On September 22, 2004, Dr. Bertuch prepared a letter addressed "To Whom it May Concern". (T. 195). Dr. Bertuch stated:

I have been treating Mr. Overbaugh since November 2001 for arthritis of his left hip. He has been unable to work; he has continued pain in his left hip. He has been referred to the Orthopedic Clinic at Ellis Hospital for further treatment and evaluation. I feel that it is reasonable that he is not able to work during this period of time. (T. 195).

On February 2, 2005, plaintiff had his last visit with Dr. Bertuch and complained of pain in his lower back radiating to his left leg. (T. 231). Dr. Bertuch noted, "I feel this is all too complicated []situation since he has arthritis of the hip with good motion of his hip". Dr. Bertuch noted that the problem was not only orthopedic but also due to plaintiff's large size and suggested that plaintiff may need ...


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