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Walsh v. Colvin

United States District Court, N.D. New York

September 12, 2014


STUART A. KAUFMAN, ESQ., for Plaintiff.

SANDRA M. GROSSFELD, ESQ., Special Asst. U.S. Attorney, for Defendant.


ANDREW T. BAXTER, Magistrate Judge.

This matter was referred to me for report and recommendation by the Honorable Glenn T. Suddaby, United States District Judge, pursuant to 28 U.S.C. ยง 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.


On June 1, 2010, plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") benefits, alleging disability beginning May 25, 2010. (Administrative Transcript ("Tr.") 133-39). The application was initially denied on August 13, 2010. (Tr. 84-87). Administrative Law Judge ("ALJ") Michelle Marcus conducted a hearing on December 20, 2011, at which the plaintiff testified. (Tr. 34-74). On March 2, 2012, the ALJ issued a decision denying plaintiff's application for benefits. (Tr. 18-33). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on March 2, 2012. (Tr. 1-6).


Plaintiff's counsel has included a detailed summary of the facts in his brief. (Pl. Br. at 2-10). Defendant's counsel has incorporated the ALJ's summary into his brief. (Def. Br. at 1). This court will also incorporate the facts as stated by the ALJ and both counsel, with any exceptions as noted in the discussion below.


The ALJ determined that plaintiff met the insured status requirement for purposes of her DIB application through December 31, 2014, and had not engaged in substantial gainful activity since May 25, 2010-the alleged onset date.[1] (Tr. 23). The ALJ found plaintiff suffered from the severe impairments of fibromyalgia and degenerative disc disease. (Tr. 23). She found, however, that plaintiff's chronic asthma, allergies, celiac disease, acid reflux, and emotional issues were not severe impairments as they would not have more than a minimal effect on plaintiff's ability to work. (Tr. 23-24). She further found plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. (Tr. 24).

The ALJ determined that plaintiff had the residual functional capacity ("RFC") to "perform light work... except she requires positional changes that can be made during normal break times and can perform only occasional[] bending." (Tr. 24). In reaching her RFC findings, the ALJ concluded that the plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms-that she can only sit for thirty minutes without pain-were "not credible" to the extent they were inconsistent with the RFC determination. (Tr. 24-25).

The ALJ discussed the results of a lumbar spine x-ray conducted in December 2009 noting that despite slight degenerative changes at L2-3, disc spaces were otherwise preserved. (Tr. 25). An updated lumbar MRI in 2011 indicated mild to moderate degenerative changes, most prominent at the L2-3 level, with multilevel mild foraminal encroachment, but no significant spinal canal stenosis. (Tr. 26). She further discussed the findings of J. Michael Nelligan, PA, who noted that fourteen of eighteen fibromyalgia tender points were painful, but plaintiff had full range of motion of the cervical spine, shoulders, elbows, wrists, fingers, hips, ankles, knees, toes, and lumbosacral spine with no tender or synovitic joints. She also noted that PA Nelligan recommended exercise, improved sleep hygiene, and medication. (Tr. 25). Similarly, during a consultative exam in August 2011, despite a slight limp at first, plaintiff ambulated with a normal gait, was able to independently get on and off the examination table, had normal reflexes and sensation, and full range of motion of the cervical spine as well as in the shoulders, elbows, wrists, hips, knees, and ankles. (Tr. 26). In April 2011, plaintiff reported muscle aches but no muscle weakness, no arthralgias, joint pain, or back pain, and she ambulated normally. (Tr. 25).

The ALJ also noted that in October 2010, plaintiff reported that dietary changes helped control her fibromyalgia symptoms. (Tr. 25). In July 2011, plaintiff reported that acupuncture treatments were helpful in treating her pain. (Tr. 26). The ALJ found it significant that plaintiff testified that she drove for approximately 1.5 hours to attend her hearing; that she provides home care two days a week for generally twenty hours per week, preparing meals, doing laundry and dishes, making the bed, and accompanying her client on walks around the block; that acupuncture treatments and massage therapy are helpful; that she exercises daily; and that although she splits up the work, she is able to vacuum, dust, mop, sweep, cook, clean, and garden; and that she visits friends, occasionally attends church, knits, crochets, and reads motivational books. (Tr. 26).

The ALJ assigned little weight to the opinion of plaintiff's chiropractor, Dean Estramonte, DC. (Tr. 26-27). Estramonte found that plaintiff could sit or stand/walk in combination for less than two hours each in an eight hour workday; sit or stand for no greater than thirty minutes at a time, would require unscheduled breaks and positional changes, and that her symptoms would cause several work-related absences per month. Noting that the treatment notes did not contain musculoskeletal evaluations, the ALJ found that Estramonte's assessment was not supported by the evidence as a whole and appeared contradictory to the plaintiff's testimony regarding her daily living and work schedule. (Tr. 27).

The ALJ also assigned little weight to the opinion of plaintiff's treating provider, Dr. Lehine. (Tr. 27). Dr. Lehine found that plaintiff could lift or carry ten pounds occasionally; would require positional changes every thirty minutes; and could sit or stand and walk in combination for less than two hours each in an eight-hour workday. (Tr. 27). However the ALJ noted that Dr. Lehine also reported that plaintiff's symptoms were treated with nutritional supplements, acupuncture, chiropractic treatments, and massage therapy, which plaintiff found helpful. The ALJ found that Dr. Lehine's assessment was based only on two office visits, and at least in part, on plaintiff's subjective medical history, and that the treatment notes do not indicate symptoms or signs consistent with this assessment or with plaintiff's daily activities and work activity. (Tr. 27).

Finally, the ALJ also assigned little weight to consultative examiner Dr. Dooley. (Tr. 27). The ALJ observed that it did not appear that testing specific to the provided diagnoses was performed, yet Dr. Dooley offered the opinion that plaintiff's impairments limit her ability to work. The ALJ found that the assessment was not supported by the clinical evaluation, but instead was based on plaintiff's subjective statements. (Tr. 27).

The ALJ then found plaintiff was able to perform her past relevant work as a receptionist. (Tr. 28). The ALJ concluded that claimant "has not been under a disability... from May 25, 2010, through the date of this decision." (Tr. 28).


A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she 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 ...

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