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Pintagro v. Colvin

United States District Court, W.D. New York

December 27, 2017

RICHARD PINTAGRO, 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, Richard Pintagro (“Plaintiff”) instituted this action pursuant to Title XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Acting Commissioner of Social Security (“the Commissioner”)[1] denying his application for Supplemental Security Income (“SSI”). The Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).

         II. Procedural Status

         On September 10, 2012, Plaintiff protectively filed an SSI application, alleging a disability onset date of November 7, 2002, due to a traumatic ruptured disc, hypertension, dyslipidemia, obstructive sleep apnea, and chronic low back pain. (T.172-78, 194).[2] This claim was denied initially on December 4, 2012. A hearing was held by administrative law judge Mark Solomon (“the ALJ”) on October 18, 2013, via videoconference. Plaintiff appeared with his non-attorney representative and testified. The ALJ issued an unfavorable decision on February 11, 2014, finding that despite Plaintiff's severe impairments of lumbar disc disease, obesity, and obstructive sleep apnea, Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work with some additional limitations. The ALJ's decision became the Commissioner's final decision on April 8, 2015, when the Appeals Council denied Plaintiff's request for review. Plaintiff then commenced this action.

         Before the Court are the parties' cross-motions for judgment on the pleadings. The Court will discuss the record evidence further below, as necessary to the resolution of the parties' contentions. For the reasons discussed below, the Commissioner's decision is affirmed.

         III. Discussion

         A. RFC Unsupported by Substantial Evidence Due to Failure to Properly Weigh Medical Consultant's Opinion

         Plaintiff argues that the ALJ erred in his weighing of the RFC questionnaire completed by State agency medical consultant Dr. Walter Cobbs on February 15, 2013. (T.262-69). Plaintiff further contends that the RFC assessment is not supported by substantial evidence.

         On February 15, 2013, State agency medical consultant Dr. Walter Cobbs provided an opinion based on his review of the available medical records. (T.262-69). With regard to Plaintiff' exertional limitations, Dr. Cobbs opined that Plaintiff could occasionally lift and/or carry (including upward pulling) 20 pounds, frequently lift and/or carry (including upward pulling) 10 pounds, stand and/or walk (with normal breaks) at least 2 hours in an 8-hour day, sit (with normal breaks) about 6 hours in an 8-hour day, and had an unlimited ability to push and/or pull (including operation of hand/foot controls). (T.263). Dr. Cobbs cited the following evidence in support of these limitations: MRI dated October 6, 2008, showing mild to moderate degenerative disc disease (“DDD”) without spinal stenosis or nerve root compression; a lumbar spine x-ray dated November 27, 2012, showing mild to moderate DDD; and office notes from J.G. Dahlie, M.D. (to whom Plaintiff apparently was referred by Dr. Erika Connor) showing “limitation of lumbar forward flexion to 20 deg[rees], but in multiple exams, DTR [deep tendon reflexes], SLR [straight-leg raising], sensory intact; toe and heel walk limited by back pain, gait slow, not antalgic, no aid to ambulation, no limitation upper extremities; may walk up to 4 hrs/8 hr day, unscheduled rest approximately 10 min[utes] hourly, sit [sic]. Sit may take 5 min[ute] break to stretch, 1/hr.” (T.263-64).

         The ALJ found that Plaintiff has the RFC to perform sedentary work,

except that he is able to sit for 6 hours in an 8-hour workday, and stand/walk for 2 hours in an 8-hour workday; can lift or carry 10 lbs. occasionally and 5 lbs. frequently, can never climb ropes, ladders, or scaffolds; [can] occasionally (very little to 1/3d [sic] of the work day) climb ramps/stairs; and occasionally balance, crawl, crouch, kneel or stoop. In addition, he is able to perform work that does not involve any exposure to unprotected heights, hazardous machinery, weather extremes, or pulmonary irritants.

(T.14). The ALJ did not include any unscheduled rest breaks in the RFC.

         The ALJ stated in his decision that Dr. Cobbs' RFC questionnaire deserved “substantial weight” “except for the limits regarding standing/walking.” (T.18). According to Plaintiff, the ALJ failed to reconcile Dr. Cobbs' report with the RFC by failing to include unscheduled rest breaks. Plaintiff interprets Dr. Cobbs' report as stating that he needs “unscheduled rest approximately ten minutes ...


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