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Lewis v. Colvin

United States District Court, W.D. New York

March 18, 2017

KIM LEWIS, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Represented by counsel, Kim Lewis (“plaintiff”) brings this action pursuant to Title II of the Social Security Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for disability insurance benefits (“DIB”). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Commissioner's motion is granted.

         II. Procedural History

         The record reveals that in December 2010, plaintiff (d/o/b June 3, 1961) applied for DIB, alleging disability as of January 17, 2010. After her application was denied, plaintiff requested a hearing, which was held before administrative law judge Robert T. Harvey (“the ALJ”) on August 8, 2012. The ALJ issued an unfavorable decision on September 5, 2012. The Appeals Council denied review of the ALJ's decision and this timely action followed.

         III. The ALJ's Decision

         Initially, the ALJ found that plaintiff met the insured status requirements of the Act through March 30, 2015. At step one of the five-step sequential evaluation process, see 20 C.F.R. § 404.1520, the ALJ determined that plaintiff had not engaged in substantial gainful activity since January 17, 2010, the alleged onset date. At step two, the ALJ found that plaintiff suffered from the severe impairments of status post anterior cervical discectomy and fusion at ¶ 5-C6, cervical pain with radiculopathy, and degenerative disc disease of the thoracic and lumbar spine. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment.

         Before proceeding to step four, the ALJ determined that, considering all of plaintiff's impairments, plaintiff retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) except that she could not lift or carry more than 10 pounds; she had occasional limitations in bending, climbing, stooping, squatting, kneeling, and balancing, with no climbing of ropes, ladders, or scaffolds and no crawling; she had ccasional limitations in the ability to reach in all directions, with her non-dominant (left) upper extremity, and occasional limitations in pushing or pulling with the upper extremities; and she could not work in areas where she would be exposed to cold or dampness. At step four, the ALJ found that plaintiff was capable of performing past relevant work as a substance abuse counselor and caseworker, which jobs did not involve the performance of work-related activities precluded by her RFC. Accordingly, the ALJ found plaintiff not disabled and did not proceed to step five.

         IV. Discussion

         A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).

         A. Credibility

         Plaintiff's primary contention is that the ALJ failed to properly assess her credibility. Plaintiff argues that the ALJ “cherry picked” testimony that supported his credibility finding and failed to consider her work history in reaching his credibility determination. “Generally speaking, it is the function of the ALJ, not the reviewing court, ‘to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.'” Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 113 (2d Cir. 2010) (quoting Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)). The ALJ is required to consider all of the evidence before him, including the plaintiff's testimony, in reaching his credibility determination. See id.

         In reaching his credibility finding in this case, the ALJ summarized plaintiff's testimony as well as her treatment notes including objective medical evidence. He noted that plaintiff testified that her “activities of daily living [“ADLs”] [included] doing puzzles 3 to 4 hours per week, driving a car 15 miles per week, cleaning, cooking, vacuuming, sweeping, attending church and visiting friends, ” and found that these ADLs were “inconsistent with the allegations of disability.” T. 15.

         The ALJ summarized evidence indicating that plaintiff underwent an anterior cervical discectomy and fusion at ¶ 5-C6 in January 2005, after which she returned to full-time work. The ALJ noted that plaintiff pursued relatively conservative treatment, indicating to treating sources that she did not wish to pursue surgical intervention, and instead treating primarily with pain medication. In December 2009, pain management specialist Dr. Andrew Matteliano continued plaintiff on hydrocodone for pain, and noted that she would “continue with the exercises and go to the chiropractor.” T. 311. In treatment with Dr. Matteliano throughout 2012, plaintiff continued to be prescribed hydrocodone and ...


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