United States District Court, S.D. New York
OPINION & ORDER
ABRAMS, United States District Judge.
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).
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
The Commissioner's Decision
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. 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.
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.
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.
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.
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.
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,  and on September 6, 2016 the Commissioner
submitted a Reply, Dkt. No. 122.
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.
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.").
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.
Mark Kraushaar, M.D.
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.
Hudson Valley Radiology Associates
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:
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.
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.
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.
Columbia Doctors of the Hudson Valley
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.
Treating Physician's & Chiropractic Disability
Deepak Vasishtha, M.D.
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.
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.
Mariyam B. K. Mathew, D. C.
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.
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.
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.
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. 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.
Mark Johnston, M.D.
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.