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Mikulec v. Colvin

United States District Court, W.D. New York

June 27, 2017

PAUL KEVIN MIKULEC, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         I. Introduction

         Represented by counsel, Paul Kevin Mikulec (“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 his applications 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 August 2011, plaintiff (d/o/b September 29, 1977) filed an application for DIB, alleging disability beginning March 4, 2011. After his application was denied, plaintiff requested a hearing, which was held before administrative law judge Donald McDougall (“the ALJ”) on April 8, 2013. The ALJ issued an unfavorable decision on June 20, 2013. The Appeals Council denied review of that decision and this timely action followed.

         III. The ALJ's Decision

         Initially, the ALJ found that plaintiff satisfied the insured status requirements of the Act through December 31, 2016. At step one of the five-step sequential evaluation, see 20 C.F.R. § 404.1520, the ALJ found that plaintiff had not engaged in substantial gainful activity since March 4, 2011, the alleged onset date. At step two, the ALJ found that plaintiff suffered from the severe impairments of morbid obesity, asthma, and lumbar spine disorder. 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 found that plaintiff retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), “with the following limitations: [he] must be able to change positions every half-hour; [he] cannot be exposed to extremes of pulmonary irritants; [he] can only occasionally climb, balance, kneel, stoop, crouch or crawl; and, [he] can never climb ladders, ropes, or scaffolds.” T. 13-14. At step four, the ALJ found that plaintiff was incapable of performing past relevant work. At step five, the ALJ found that considering plaintiff's age, education, work experience, and RFC, there were jobs existing in significant numbers in the national economy that he could perform. Accordingly, the ALJ found that plaintiff was not disabled.

         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. Development of the Record

         Plaintiff contends that the ALJ failed to fully develop the medical record. Specifically, plaintiff argues that because his primary care physician, Dr. Sukhwinder Kodial, was referenced in several treatment notes from other medical sources, the record was necessarily incomplete because it did not contain any treatment notes from Dr. Kodial. The record reveals, as plaintiff contends, that Dr. Kodial was carbon-copied on a handful of notes in the medical record. Plaintiff testified, and the record reflects, that he treated primarily with Dr. George Haddad through approximately July 2012, when he switched to Dr. Kodial for primary care. Plaintiff testified that he saw both primary physicians primarily for pain medication, and that he changed care to Dr. Kodial because Dr. Haddad required him to come in monthly in order to renew a pain medicine prescription, whereas Dr. Kodial did not require visits of such frequency.

         The Commissioner argues that the ALJ possessed a complete medical history of plaintiff, and the Court agrees. The information in the medical record provides a longitudinal picture of plaintiff's conditions and medical care. The medical record includes full treatment notes from neurosurgeon Dr. Elad Levy and his nurse practitioner (“NP”) Laura Mason, treatment notes as well as a medical opinion from primary care physician Dr. Haddad, and a consulting examining opinion from state agency physician Dr. Donna Miller. The only references to Dr. Kodial that appear in the record are treatment notes either addressed to, or carbon-copied to, his office. There is no indication in the record that these treatment notes would shed any additional light on plaintiff's conditions than already revealed by the complete medical record, which significantly included treatment notes from plaintiff's primary care physician, Dr. Haddad, for the bulk of the relevant time period.

         Accordingly, the Court finds that this record was complete with “no obvious gaps, ” and therefore the ALJ was “under no obligation to seek additional information in advance of rejecting [plaintiff's] benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (internal quotation marks omitted). “Even though the ALJ has an affirmative obligation to develop the record, it is the plaintiff's burden to furnish such medical and other evidence of disability as the Secretary may require.” Long v. Bowen, 1989 WL 83379, *4 (E.D.N.Y. July 17, 1989) (internal citations omitted). Under these circumstances, the ALJ did not err in failing to obtain treatment records from Dr. Kodial. See Lozama v. Colvin, 2016 WL 1259411, *4 (N.D.N.Y. Mar. 30, 2016) (finding that ALJ did not err in failing to ...


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