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Frazier v. Commissioner of Social Security

United States District Court, S.D. New York

April 21, 2017



          ANDREW J. PECK, United States Magistrate Judge.

         Plaintiff Julee Frazier, proceeding through counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). (Dkt. No. 2: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 12: Comm'r Notice of Mot.; Dkt. No. 20: Frazier Notice of Mot.) The parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9.)

         For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. No. 12) is GRANTED and Frazier's motion (Dkt. No. 20) is DENIED.


         Procedural Background

         Frazier filed for DIB and SSI on April 3, 2013, alleging a disability onset date of July 1, 2012. (Dkt. No. 10: Administrative Record ("R.") 125-38.) The Social Security Administration ("SSA") denied Frazier's application on May 24, 2013. (R. 70-76.) Frazier requested a hearing before an Administrative Law Judge ("ALJ") on July 26, 2013. (R. 78-82.) On October 23, 2014, represented by counsel, Frazier had a hearing before ALJ Michael Friedman. (R. 32-51, 90-94.) On January 14, 2015, ALJ Friedman issued a written decision finding Frazier not disabled within the meaning of the Social Security Act. (R. 7-20.) ALJ Friedman's decision became the Commissioner's final decision when the Appeals Council denied review on April 6, 2016. (R. 1-4.)

         Non-Medical Evidence and Testimony

         Born on October 24, 1954, Frazier was fifty-seven years old at the alleged July 1, 2012 onset of her disability. (R. 54, 126.) She completed high school, two years of college and specialized job training in phlebotomy. (R. 152.) Frazier most recently worked as a grounds keeper for the Parks Department (R. 35-36, 45, 152) on a seasonal basis (R. 35) until April 19, 2011 (R. 60, 68, 151-52, 169). She testified that she attempted to work again starting in February 2014, but she was terminated in May 2014 because of her dizziness. (R. 35, 44.)

         On April 9, 2013, Frazier completed a questionnaire on dizziness in connection with her application for benefits. (R. 191-92.) Frazier reported episodes of dizziness, which manifested as light-headedness and staggering, occurring two to three times per day and lasting less than five minutes. (R. 191.) She took meclizine[1]/ to relieve her symptoms. (Id.) She was never treated in an emergency room due to her dizziness. (Id.)

         On April 17, 2013, Frazier completed a Function Report. (R. 158-66.) When asked how her illnesses affect her activities of daily living, she reported that if she moves too fast, "vertigo makes [her] go slower because of spinning." (R. 158.) Vertigo also diminished her ability to look backward, lean forward, squat, stand, sleep, dress herself and cook. (R. 159-60, 162.) She reported back problems that caused an aching and burning pain (R. 164) and prevented her from lifting anything heavy, standing or sitting for "to[o] long" and walking "to[o] far" (R. 162). She stated that she used to wear a back brace, and took or takes methocarbamol, naproxen and ibuprofen for pain. (R. 165.) Her pain would subside twenty to thirty minutes after taking medication. (Id.) Stress caused her blood pressure to rise resulting in "pounding" headaches. (R. 164.) She experienced shortness of breath when dressing (R. 159) and climbing stairs (R. 162). She had to rest after cooking (R. 160) or walking four to five blocks (R. 163).

         Frazier also reported caring and cooking for her autistic grandson (R. 158); preparing food on a daily basis and cooking "full course meals" (R. 160); doing the laundry, cleaning and "some household repairs" (id.); going outside alone three to four times a week (id.); walking and driving her car (R. 160-61); shopping for food, clothes, shoes, furniture and housewares for up to two hours at a time (R. 161); reading and doing Sudoku puzzles on a daily basis (id.); and attending tenants' committee meetings monthly and church and social group meetings weekly (R. 161-62). She could pay her bills, count change and handle a savings account. (R. 161.) She had no problems with reaching, using her hands, hearing and talking. (R. 162.) She had no problems paying attention and following written or spoken instructions, and she could finish what she started. (R. 163.) She got along with people in authority and had never lost a job "because of problems getting along with people." (Id.)

         At her October 23, 2014 hearing, Frazier testified that she suffered from Meniere's disease[2]/ resulting in vertigo. (R. 36.) Her vertigo would cause dizziness on a daily basis that would last "[s]ometimes ten minutes or less." (R. 43.) She stated that she was terminated from her job with the Parks Department in May 2014 because she went home after getting dizzy and falling "out on the platform" while taking the train to work. (R. 44.) Frazier stated that she had a heart murmur and asthma (R. 36); she was treating her asthma with an inhaler (R. 37). Frazier also reported pain in her back, chest and legs. (R. 37-38.) She claimed that her back pain was caused by "two herniated slipped discs" at "L4 and L5, " and that she was treating her back pain with physical therapy and medication. (R. 38.)

         Frazier testified that she started weekly treatment with psychiatrist Dr. Anna Fagan one or two months before her hearing, and that she had been diagnosed with depression and prescribed Prozac. (R. 38-39.) Her depression started after she lost her job (R. 38) and manifested in frequent crying (R. 39). She reported difficulty concentrating, remembering things, and a lack of interest in being around people. (R. 40-41.) She enjoyed reading, but stated that she could not focus on or understand what she was reading. (R. 42.) She could follow along while watching television, but would often "blank out." (R. 42-43.)

         Frazier stated that she could stand for about five minutes, sit for ten or fifteen minutes, and walk two or three city blocks before needing to rest. (R. 41.) She could carry a five-pound grocery bag. (Id.) Frazier testified that she cooked, cleaned and shopped with help from her daughter. (R. 41-42.) Because of her back pain, she needed to take breaks while cooking and cleaning. (R. 43.)

         Medical Evidence Before the ALJ

         Mount Sinai Outpatient Clinic

         On December 14, 2012, Frazier visited Mount Sinai Clinic complaining of lightheadedness exacerbated by standing quickly, as well as intermittent tinnitus. (R. 204.) She also complained of intermittent vertigo when turning to her right. (Id.) She denied hearing loss, pain, or drainage from her ears. (Id.) Taking meclizine relieved her vertigo symptoms. (Id.) Frazier was examined by physician assistant ("PA") Mei-Kuen Xie (id.), who reported that Frazier was in no acute distress and that her ears and nerve functioning appeared normal apart from right rotary nystagmus[3]/ when performing the Dix Hallpike maneuver[4]/ (R. 205). PA Xie recommended further auditory and electronystagmography testing and prescribed meclizine. (Id.) Dr. Carl Wiesenthal reviewed and agreed with PA Xie's assessments. (Id.)

         On February 6, 2013, Frazier met with audiologist Elena Kagan and underwent tympanometry and comprehensive hearing testing. (R. 203.) The testing revealed normal hearing in both ears. (Id.)

         Institute for Family Health

         On June 11, 2013, Dr. Lindsey Faucette of the Institute for Family Health referred Frazier to Physical Therapy of Harlem for treatment of lower back pain. (R. 227.) Dr. Faucette reported that Frazier had a history of degenerative disc disease but no recent imaging. (Id.) Frazier complained of intermittent burning pain. (Id.) Her examination results, however, were normal. (Id.) Treatment notes spanning four physical therapy sessions in June and July 2013 indicate decreased pain over time (R. 218, 220), "good" rehabilitation potential (R. 213, 217-18, 220, 222, 226), and pain rated at one on a ten-point scale during the final session (R. 213, 222). Frazier's physical therapist reported her activities of daily living to include housekeeping, laundry, hand and arm use, pulling and pushing objects, and the ability to push a shopping cart for two to three city blocks. (R. 213, 215, 218, 220, 222, 224.) Although Frazier was authorized for six physical therapy sessions (R. 227), she attended only four (see R. 212).

         On September 11, 2014, social worker Anna Fagan completed a Mental Health Questionnaire co-signed by Dr. Olanrewaju Adedokun. (R. 233-35.) Frazier's diagnoses are listed on the questionnaire as "major depressive disorder, recurrent episode, moderate; generalized anxiety disorder." (R. 233.) Fagan indicated that Frazier's depressive symptoms included "loss of interest in almost all activities, " "[a]ppetite disturbance with weight change, " "[s]leep disturbance, " "[d]ecreased energy, " "[f]eelings of guilt or worthlessness, " and "[d]ifficulty concentrating or thinking." (Id.) Frazier's only anxiety symptom was "[a]pprehensive expectation." (Id.) Other symptoms included emotional lability, hostility and irritability, and social withdrawal or isolation. (R. 234.) Fagan placed "X" marks in spaces indicating that these symptoms resulted in no restrictions to Frazier's activities of daily living; moderate difficulties in social functioning; marked difficulties in "[c]oncentration, persistence or pace resulting in failure to complete tasks in a timely manner"; and marked "[e]pisodes of deterioration or decompensation in work or work-like settings." (R. 235.) Fagan stated that these symptoms began in "March 2014 when [Frazier] was terminated from employment, " and could be expected to last twelve months or longer. (R. 234.) When prompted to "[d]escribe the clinical findings . . . which demonstrate the severity of [Frazier's] mental impairment and symptoms, " Fagan listed only Frazier's "reports [of] depression and irritability." (Id.)

         On September 19, 2014, Dr. Adedokun filled out a Medical Opinion Re: Ability To Do Work-Related Activities (Physical) form. (R. 231-32.) Dr. Adedokun indicated Frazier had no limitations on her ability to lift and carry on an occasional or frequent basis, but that she could only stand, walk and sit for less than two hours in an eight-hour work day. (R. 231.) He further opined that Frazier could sit or stand for only fifteen minutes before needing to change position, and that she needed to walk around for twenty minutes on an hourly basis. (Id.) He stated that Frazier would "sometimes need to lie down at unpredictable intervals during an 8 hour working shift." (Id.) When asked what medical findings supported these limitations, Dr. Adedokun stated, "L4-L5 herniated disc and [Frazier] has Meniere's disease." (Id.) Dr. Adedokun also indicated that the vertigo/balance issues secondary to Meniere's disease would prevent Frazier from crouching and climbing ladders, and would limit her to only occasionally twisting, stooping, and climbing stairs. (R. 232.) He stated that Frazier's ability to reach, handle, finger, feel, push and pull were unaffected be her impairments. (Id.)

         Dr. Iqbal Teli

         On April 23, 2013, Dr. Iqbal Teli conducted a consultative examination of Frazier in connection with her application for disability benefits. (R. 198-201.) Frazier's chief complaint was lower back pain, but she also reported a history of acid reflux disease and heart murmur. (R. 198.)[5]/ Her daily activities included cooking, cleaning, showering, and dressing. (Id.) On examination, Dr. Teli found that Frazier exhibited no acute distress; had a normal gait and normal stance; could walk on her toes without difficulty, but could not walk on her heels; and used no assistive device and needed no help getting on and off the exam table or rising from a chair. (R. 199.) Her blood pressure was 134/82 (R. 198), and her heart exhibited a grade two systolic murmur (R. 199). Frazier's cervical and lumbar spine exhibited full flexion, extension, lateral flexion, and rotary movement bilaterally. (Id.) She reported tenderness in her lower back, but her straight leg raise test was negative bilaterally. (Id.) She exhibited diminished pain sensation in her left hand, but her strength and dexterity were intact. (R. 200.) A lumbosacral spine x-ray taken on April 25, 2013 showed straightening but no disc herniations or bulges. (R. 200, 202.) Dr. Teli opined that Frazier "should avoid dust and other respiratory irritants due to history of asthma. [She] has a mild restriction for prolonged sitting and a mild restriction for lifting and carrying heavy weight." (R. 200.)

         New York Eye and Ear Infirmary

         On June 21, 2013, Frazier was examined by Dr. Zetterstrand and underwent videonystagmographic testing. (R. 197.) Dr. Zetterstrand's diagnostic impressions were listed as "vertigo." (R. 196-97.)

         Third Avenue Pharmacy

         On September 15, 2014, Frazier filled prescriptions for Proair HFA, [6]/ Losartan, [7]/ Amlodipine[8]/ and Luticasone.[9]/ (R. 238.) Four days later, she filled a prescription for ibuprofen. (Id.) On October 19, 2014, Frazier filled prescriptions for Fluoxetine, [10]/ Meclizine, Fluticasone, Amlodipine, Losartan and Proair HFA. (R. 238-39.) On November 14, 2014, Frazier filled prescriptions for Meclizine, Fluticasone, Amlodipine and Losartan. (R. 239.) On December 1, 2014, Frazier filled a prescription for Proair HFA. (Id.) On December 10, 2014, Frazier filled prescriptions for Meclizine, Losartan and Amlodipine. (Id.) On January 5, 2015, Frazier filled prescriptions for Meclizine, Amlodipine, Losartan. (R. 230-40.)[11]/

         Vocational Expert Testimony

         Vocational expert Gerald Belchick testified at Frazier's hearing. (R. 45-50.) Belchick testified that Frazier's prior work as a groundskeeper qualified as medium work. (R. 45-46.) ALJ Friedman asked Belchick whether jobs existed that Frazier could perform, assuming she could perform medium work but could not perform jobs "involving heights, exposed, moving machinery, or driving" or those "involving excessive pulmonary irritants, " and that she could only perform "jobs involving simple, routine, repetitive-type tasks, and involving only occasional contact with supervisors, coworkers, and the public." (R. 46.) Belchick opined that with those restrictions, Frazier could not perform her past work as a groundskeeper because of irritants in the air (id.), but that she could perform the duties of a "small assembly" factory worker (R. 46-47), a hand packaging factory worker (R. 47), a kitchen helper (restaurant dishwasher) (id.), and an order filler (R. 48). All of these jobs, according to Belchick, exist in significant numbers in the national economy. (R. 46-48.) On cross examination, Belchick testified that Frazier's sensitivity to pulmonary irritants would limit some kitchen helper jobs, but "would not . . . totally eliminate the jobs." (R. 49.)

         ALJ Friedman's Decision

         On January 14, 2015, ALJ Friedman denied Frazier's application for benefits. (R. 7-20.) ALJ Friedman applied the appropriate five step legal analysis. (R. 11-12.) First, he found that Frazier "has not engaged in substantial gainful activity since July 1, 2012, the alleged onset date." (R. 12.) Second, ALJ Friedman found that Frazier had "the following 'severe' impairments: Meniere's disease; vertigo; hypertension; asthma; depressive disorder; lumbago." (Id.) Third, ALJ Friedman found that Frazier did "not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (R. 13.) ALJ Friedman specifically addressed Frazier's asthma, Meniere's disease, and hypertension, concluding that those impairments did not meet the listings' criteria based on a lack of physician intervention, no audiology reports indicating hearing loss, and no identifiable effects of high blood pressure on her organs. (Id.) ALJ Friedman also concluded that Frazier's mental impairments were not severe based on her activities of daily living, her reported participation in social gatherings, her testimony that she enjoys reading and doing Sudoku puzzles, and her lack of reported episodes of decompensation. (R. 13-14.)

         ALJ Friedman determined that Frazier had the residual function capacity ("RFC")

to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) restricted against jobs involving heights, exposed moving machinery or driving or jobs involving excessive pulmonary irritants, and also restricted to jobs involving simple, routine repetitive type tasks and requiring only occasional contact with supervisors, co-workers and the public.

(R. 15.)

         ALJ Friedman accorded "significant" weight to Dr. Teli's consultative opinion that Frazier should avoid respiratory irritants and had "[o]nly a mild restriction for prolonged sitting and for lifting and carrying heavy weight." (R. 16-17.) ALJ Friedman found that the lack of imaging evidence and Frazier's conservative course of treatment cut against Dr. Faucette's statement that Frazier's back pain was caused by degenerative disc disease. (R. 17.) With regard to Frazier's mental impairments, ALJ Friedman found that the opinions of Dr. Adedokun and social worker Anna Fagan, who found "marked" impairments in several areas (see page 6 above), conflicted with Frazier's self-completed function report (see pages 2-3 above) and her activities of daily living (R. 18). ALJ Friedman also concluded that Frazier's "statements concerning the intensity, persistence and limiting effects" of her impairments, including back pain, vertigo, and depression, were "not entirely credible." (R. 17.) He supported this determination with a review of the medical evidence of record, as well as Frazier's own testimony regarding her activities of daily living. (R. 17-18.)

         At the fourth step, ALJ Friedman determined that Frazier had no past relevant work (R. 19), but that given Frazier's "age, education, work experience and residual functional capacity, there are jobs that exist in significant numbers in the national economy" that she could perform (R. 19-20). ALJ Friedman noted that Frazier is considered an individual of advanced age, that she has a high school education and is able to communicate in English. (R. 18-19.) He relied on vocational expert Belchick's testimony that a person with these characteristics and limitations could work as a hand packager, kitchen helper or order filler. (R. 19.) Accordingly, ALJ Friedman concluded that Frazier was not "under a 'disability', as defined in the Social Security Act, from July 1, 2012" through January 14, 2015. (R. 20.)



         A. Definition Of Disability

         A person is considered disabled for Social Security benefits purposes when he 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 period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S.Ct. 376, 379 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F.App'x 856, 857 (2d Cir. 2012).[12]/

An individual shall be determined to be under a disability only if [the combined effects of] his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270.[13]/

         In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).[14]/

         B. Standard Of Review

         A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record as a whole to support such determination. E.g., 42 U.S.C. § 405(g); Giuntav.Comm'r of Soc. Sec., 440 F.App'x 53, 53 (2d Cir. 2011).[15]/ "'Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" M ...

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