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Henny v. Commissioner of Social Security

United States District Court, S.D. New York

March 15, 2017


          OPINION & ORDER

          RONNIE ABRAMS, United States District Judge.

         Plaintiff Yolanda I. Henny brings this action seeking judicial review of a decision by the Commissioner of Social Security (the "Commissioner"), which denied her applications for disability insurance benefits and Supplemental Security Income. The Commissioner has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

         The Court finds that the Administrative Law Judge ("ALJ") gave good reasons for declining to give controlling weight to the treating physician's opinion, did not abuse his discretion in denying her subpoena of an examining doctor, properly evaluated Henny's credibility, and supported the determination of her residual functional capacity ("RFC") with substantial evidence. The Court also finds, on review, that the ALJ's decision was otherwise free of legal error and supported by substantial evidence. Accordingly, the Commissioner's motion for judgment on the pleadings is granted, and the case is dismissed.


         A. The Commissioner's Decision

         Henny filed an application for disability insurance benefits and Supplemental Security Income on April 21, 2011, alleging disability as of February 18, 2011. Her application was denied by the Social Security Administration (the "SSA") on August 24, 2011. Administrative Record ("R.") (Dkt. No. 108), at 145-48.[1] On October 12, 2011, Henny requested a hearing before an ALJ. R. 149-50. Hearings were held on August 14, 2012, March 12, 2013, and July 16, 2013 before ALJ Robert Gonzalez, at which Henny was represented by counsel. R. 38-131. On July 26, 2013, ALJ Gonzalez issued a decision finding that Henny did not have a disability as defined by the Social Security Act, and denying Henny's applications for disability insurance benefits and Supplemental Security Income. R. 19-37. After careful consideration of the entire record, the ALJ gave "little weight" to the opinions of Henny's treating physician and chiropractor and "great weight" to the opinions of three examining doctors. R. 25. The ALJ also found that Henny's "allegations of debilitating symptoms" was "not wholly credible, " and determined that she is capable of performing past relevant work. R. 27, 30. Henny sought review of the ALJ's decision by the Appeals Council, which was denied on November 28, 2014, R. 1-6, making the ALJ's decision the final decision of the Commissioner.

         B. Court Proceedings

         Henny, proceeding pro se and in forma pauperis, timely commenced the instant action on January 26, 2015 seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). See Compl., Dkt. No. 2. This case was assigned to the undersigned on March 2, 2015, and on March 11, 2015 the Court granted Henny leave to amend the Complaint, Dkt. No. 5, after which Henny field an Amended Complaint on April 1, 2015, Dkt. No. 6. On April 8, 2015, the Court issued an Order of Service directing that the "U.S. Attorney's Office shall use its best efforts to file a notice of appearance within fourteen days of the date of this Order" and "[w]ithin 90 days of filing a notice of appearance, the Commissioner of Social Security shall serve and file an answer (including the Electronic Certified Administrative Record (e-CAR)) or other response to the complaint." Dkt. No. 7. The Commissioner, represented as it is in these matters by the U.S. Attorney's Office for the Southern District of New York, filed a notice of appearance on April 20, 2015, Dkt. No. 8, and on April 21, 2015, this case was referred to Magistrate Judge Fox for a Report and Recommendation, Dkt. No. 9. The Commissioner's Answer was thus due by July 20, 2015.

         On or about July 10, 2010 respondent sent claimant an informal request seeking an extension of time. Pl.'s Mot. Default J., Dkt. No. 15, at 3. Henny did not consent and the Commissioner did not request an extension from the Court. On July 21, 2015, Henny filed an "Affidavit of Denial for Request of Time Extension, " Dkt. No. 11, and after the Commissioner failed to respond by July 20, on August 31, 2015, Henny filed a Motion for a Default Judgment, Dkt. No. 15. On September 4, 2015 the Clerk of Court issued a Certificate of Default. Dkt. No. 17. That same day, the Commissioner filed an Opposition to the Motion for Default, explaining that its failure to abide by the July 20 deadline was due to "clerical error and oversight, " and that although counsel had "prepared a letter requesting an extension of time ... it appears that [she] never filed the letter." Dkt. No. 18, at 1. Counsel apologized for her oversight and requested the Court grant, nunc pro tunc, an extension of time until September 21, 2015 to respond to the Complaint. Id. at 2. Judge Fox issued an order on September 4, 2015, requesting Henny's written views on the Commissioner's request for an extension of time by September 14, 2015, Dkt. No. 19, which Henny submitted along with another Request for Entry of Default Judgment, Dkt. Nos. 20, 21.

         On September 21, 2015, the Commissioner filed an Answer, the Administrative Record, and a Motion for Judgment on the Pleadings. Dkt. Nos. 22-26. On October 27, 2015, Judge Fox held an evidentiary hearing. Thereafter, Henny filed a Motion to Strike the Commissioner's Response as Untimely, Dkt. No. 32, which the Commissioner opposed, Dkt. No. 33. On December 17, 2015, Judge Fox denied the Commissioner's request that the Court grant, nunc pro tunc, an extension of time until September 21, 2015, to respond to the Complaint, "because the defendant failed to show that her failure to act timely is excusable neglect" and directed the Clerk of Court to "strike the Defendant's untimely and unauthorized Answer with the Certified Administrative Record and the Defendant's Motion for Judgment on the Pleadings." Dkt. No. 47, at 21. Specifically, Judge Fox found that the Assistant U.S. Attorney "acted for an improper purpose, in bad faith, causing further delay and unnecessary motion practice, in contravention of Rule 1 of the Federal Rules of Civil Procedure." Dkt. 47 at 21-22. Following additional motion practice, on February 29, 2016, Judge Fox denied the Commissioner's Motion for Reconsideration. Dkt. No. 77.

         On March 15, 2016, the Commissioner filed objections to Magistrate Judge Fox's denial of the Commissioner's request for a nunc pro tunc extension of time, decision to strike the Commissioner's submissions, and denial of the Commissioner's Motion for Reconsideration. Dkt. No. 80. Henny filed a request for entry of a default judgment, Dkt. No. 83, and the Commissioner requested a stay, Dkt. No. 85, which the Court granted, Dkt. No. 86. On April 11, 2016, Henny requested a hearing, which the Court ordered. Dkt. No. 88. After Henny indicated that she would be interested in pro bono counsel, the Court secured a pro bono attorney and arranged for her to contact Henny to discuss the possibility of pro bono representation. Dkt. No. 95. But, on May 4, 2016, Henny then wrote to the Court saying that she wished to represent herself at the hearing. Dkt. No. 96.

         The Court held a day-long evidentiary hearing on June 29, 2016, at which four witnesses testified and were cross-examined by Henny. Dkt. 116 (Transcript). Following the hearing, the Court ruled that Judge Fox's determination that the Assistant U.S. Attorney acted in bad faith was clearly erroneous and that it was clearly erroneous to strike the Administrative Record and Answer. Dkt. 116, at 237-39. Accordingly, it ordered that Magistrate Judge Fox's December 17th and February 29th Orders be set aside pursuant to Federal Rule of Civil Procedure 72(a) and granted Defendant's motion for a nunc pro tunc extension of time to file its Answer, Motion for Judgment on the Pleadings, and the Administrative Record. Dkt. No. 109. The Commissioner filed these submissions the following day, on June 30, 2016. Dkt. Nos. 107, 108, 110, 111. On August 16, 2016, Henny submitted her opposition to the Commissioner's Motion for Judgment on the Pleadings, Dkt. No. 119, [2] and on September 6, 2016 the Commissioner submitted a Reply, Dkt. No. 122.[3]


         A. Non-Medical Evidence

         Henny was born on March 21, 1973, and was 37 years old on the date of the alleged disability onset on February 18, 2011. R. 280. She received her GED, R. 113, and took some college level courses, R. 114. She has two adult children. R. 486.

         Prior to the alleged disability onset date, Henny worked as an office assistant, a telemarketer, a security guard, a waitress, and a food service worker. R. 322-29; see also R. 360. Beginning in 2008, she worked as a secretary at Regina Check Cashing. R. 61-62. Henny testified at the hearing before the ALJ that she stopped working in February of 2011 because she "couldn't sit anymore, " R. 65, 107, the "spasms, the herniated disk, the two pinched nerves made it just impossible." R. 65. Henny believes her injuries are traceable to a car accident in April 2009. R. 100, 125; see Pl.'s Opp., Dkt. No. 119, at 3 (Henny "sought medical help for constant and continuous pain in her neck, back, and legs, sustained as a result of an April 2009 car accident.").

         Henny appeared at two hearings before the ALJ, at which she was represented by counsel. She testified at the hearing that she lives by herself and is a "shut-in." R. 73. She explained that she is able to cook, clean, and shop with the assistance of her boyfriend, but that sweeping has become "extremely difficult, " she is unable to mop, and she cleans less frequently. R. 104, 126. She spends most of the rest of the day praying, meditating, and reading. R. 127. She testified that she must lie on her stomach most of the day. R. 70. The ALJ observed that during these hearings "the claimant betrayed no evidence of debilitating symptoms while testifying." R. 28.

         B. Medical Records

         1. Mark Kraushaar, M.D.

         On December 21, 2010 Henny was evaluated by Dr. Kraushaar with complaints of "heaviness in her legs and weakness in both legs, " pain in the back of her thighs from sitting, mild low back pain, and tingling down her legs to her toes. R. 487. Dr. Krasuhaar's diagnostic impression was "low back pain, bilateral hamstring weakness and sprain, right quadriceps sprain, lumbar radiculopathy, lymph edema in the left leg." R. 488. He proscribed physical therapy and recommended an MRI if Henny did not see improvement by January 1, 2011. R. 488. He also conducted a CT scan on her pelvis, which revealed an adnexal mass which "sounds like a cystic ovary." R. 488.

         2. Hudson Valley Radiology Associates

         On March 4, 2011 Henny had a series of MRIs of her lumbar spine, cervical spine, lumbosacral spine, and hips. R. 500-08. These were performed by Steven Klein, M.D., Elliot Hadler, M.D., and Joe Schwartz, M.D. The findings were as follows:

         In the lumbar spine:

At L5-S1, there is mild disc degeneration with a small extruded disc into the right lateral recess and neural foramen, obliterating fat below the exiting L5 nerve root in the foramen and abutting the right SI nerve root in the lateral recess. There is mild flattening of the anterior aspect of the thecal sac on the right.

         R. 500.

         In the cervical spine it was determined that: [a]t C3-4, there is mild degenerative spondylosis, [a]t C4-5, there is mild degenerative spondylosis, [a]t C5-6, there is a degenerated disc with mild bulging of the disc annulus and degenerative spondylosis with compromise of the anterior epidural space across the midline, greater on the right side. . . .[a]t C7-T1, there is mild degenerative spondylosis." R. 502. The C2-3 disc and the C6-7 disc were unremarkable, finally that "there are no intradural masses. The spinal cord demonstrates normal signal intensity. The craniocervical junction is normal. The facet joints are unremarkable." R. 502. There is a "slight disc space narrowing at the C7 T1 level" with "slight evidence of degenerative change." R. 505. The impression was "[m]ild degenerative change." R. 505.

         At the lumbosacral spine, "[t]here is evidence of degenerative change with anterior spurring of the upper vertebral body endplates of L4 and L5. There is a slight disc space narrowing at the L4-5 level. ... no fracture or subluxation." R. 504. The MRIs of Henny's hips showed "normal" and "unremarkable" studies. R. 506-08.

         3. Columbia Doctors of the Hudson Valley

         In February and March of 2012, Henny was seen by doctors at Columbia Doctors of the Hudson Valley for an echocardiogram and stress testing. R. 548-57.

         C. Treating Physician's & Chiropractic Disability Opinions

         1. Deepak Vasishtha, M.D.

         Henny began seeing Dr. Vasishtha, at Musculoskeletal Pain Management, on August 22, 2011, complaining of neck pain radiating to bilateral upper extremities and low back pain radiating to bilateral lower extremities. R. 521. He conducted neurological, musculoskeletal, and deep tissue reflex orthopedic testing and range of motion testing for her cervical and lumbar spine. R. 522-23. His assessment was that Henny had "post lumbar and cervical disc herniation along with early spondylosis in the cervical and lumbar region along with lateral recess stenosis resulting in lumbar and cervical radiculopathy." R. 523. Dr. Vasishtha treated Henny with "lumbosacral epidural injections for radicular component of pain" during September 2011 through February 2012. R. 535-39; R. 560. The record also contains treatment records from January 18, 2012, during which Dr. Vasishtha conducted additional testing and slightly modified his assessment to "post multilevel degenerative disc disease, disc herniations in the cervical and lumbar spine with cervical and lumbosacral radiculopathy along with chronic pain syndrome." R. 519-20.

         On March 13, 2012, Dr. Vasishtha conducted a disability evaluation, concluding that Henny "is permanently disabled more than 75%" and "[t]he disability is classified as severe-partial." R. 564. He assessed that she had (1) "[l]umbar disc herniation resulting in lateral recess stenosis causing chronic low back pain, " (2) "[lumbosacral radiculopathy, bilateral at ¶ 5-S1 levels, " (3) [c]ervical degenerative disc disease with disc bulge at ¶ 5-C6 resulting in lateral recess stenosis, " (4) "[a] chronic cervical radiculopathy, " (5) "[c]hronic pain syndrome, " as well as (6) "[c]hronic lymphedema" and (7) "sequelae of cardiac disease on lifelong cardiac medications." R. 564. He made these conclusions based on his own physical examination as well as a review of the medical records. R. 559-64, 608.[4]

         2. Mariyam B. K. Mathew, D. C.

         Henny began seeing Dr. Mathew, a chiropractor, on January 19, 2011. R. 491, 592. Dr. Mathew diagnosed Henny with multiple cervical subluxations, subluxation of lumbar vertebrae, pain in joint, pelvic region and thigh, cervical spine/strain, and lumbosacral sprain/strain. R. 595. Henny was treated two times per week for "C/S subluxation, torticollis, headache, 4S subluxation, 4S degeneration, piriformis syndrome, neuritis." R. 491. Henny's symptoms included "low back pain, pain on posterior Rt thigh, neck pain." R. 491. Dr. Mathew conducted three comprehensive examinations, in January 2011, on July 12, 2011, and on October 5, 2011. Medical records show that between March 1, 2011 and May 10, 2011 Henny had an office visit with Dr. Mathew twenty times. R. 596-604.

         On July 28, 2011 Dr. Mathew submitted a questionnaire to the New York State Office of Temporary and Disability Assistance, in which she commented that "[patient] showed considerable improvement in the cervical (neck pain, stiffness [and] headache). Ms. Henny [is] slow in improvement in her low back pain due to the occasional exacerbation, " and that her "prognosis is good." R. 492. In this same questionnaire Dr. Mathew opined that Henny could stand and/or walk less than 2 hours per day and sit less than V2 hour per day. R. 494.

         The record also contains an affidavit prepared by Dr. Mathew dated September 20, 2012, which appears to have been prepared in connection with a civil lawsuit Henny had pursued arising from the 2009 car accident. R. 611-19. This affidavit summarizes the testing and treatment provided by Dr. Mathew prior to September 20, 2012.

         On October 19, 2013, Dr. Mathew completed an updated multiple impairment questionnaire. This questionnaire was submitted to the Appeals Council as an attachment to Henny's request that the Appeals Council review the ALJ's decision.[5] She concluded that Henny could sit 15 minutes and stand/walk for 30 minutes in an eight hour day, and that Henny must get up and move around every 15 minutes. R. 672. Dr. Mathew stated that Henny could occasionally lift and carry up to 10 pounds and has "minimal limitations" on grasping, turning, twisting objects, using fingers/hands for fine manipulations, and "moderate" limitations using arms for reaching. R. 673-74. She opined that Henny's experience of pain, fatigue or other symptoms was severe enough to interfere with her attention and concentration "frequently" and "constantly." R. 675. She evaluated Henny as not being able to push, pull, kneel, bend, or stoop. R. 676. In her opinion "the earliest date" that the description of symptoms and limitations in this questionnaire" applied was 2009-2010. R. 676. She also opined that "[p]atient maybe a candidate who could work from home with appropriate chair, desk." R. 676.

         D. Consultative Examinations

         1. Mark Johnston, M.D.

         On July 21, 2011, Henny was referred by the Division of Disability Determination for an internal medicine examination by Dr. Johnston. R. 509-12. According to Henny, the exam lasted approximately 20 minutes. Pl.'s Opp. at 6. Dr. Johnston diagnosed Henny with "[c]hronic back pain with normal range of motion" and concluded she "has a moderate restriction of bending and lifting because of chronic low back pain." R. 511-12. He noted that Henny's gait was normal, she "can walk on heels and toes without difficulty. Squat full. Stance normal. Needed no help changing for exam or getting on and off exam table. Able to rise from chair without difficulty." R. 510. For the musculoskeletal exam, Dr. Johnston found Henny's cervical spine and lumbar spine showed full flexion and range of motion. Her shoulders, elbows, forearms, wrists, hips, knees, and ankles also had a full range of motion. And he found no evident subluxations, contractures, ankylosis or thickening. R. 511. For the neurologic part of the exam, he found Henny's deep tissue reflexes were normal, no sensory deficit, and strength 5/5 in the upper and lower extremities. R. 511.[6]

         2. Earl ...

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