Opinion
19-CV-5247(GRB)
2021-03-08
Tracey FEMMINELLA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Craig Joseph Tortora, Goldsmith & Tortora, Commack, NY, for Plaintiff. Candace Scott Appleton, United States Attorneys Office Eastern District Of New York, Brooklyn, NY, for Defendant.
Craig Joseph Tortora, Goldsmith & Tortora, Commack, NY, for Plaintiff.
Candace Scott Appleton, United States Attorneys Office Eastern District Of New York, Brooklyn, NY, for Defendant.
MEMORANDUM OF DECISION & ORDER
GARY R. BROWN, United States District Judge:
Plaintiff Tracey Femminella brings this appeal pursuant to the Social Security Act, 42 U.S.C. § 405 et seq. (the "Act"), challenging a final determination by the Commissioner of the Social Security Administration (the "Defendant" or the "Commissioner") that plaintiff was ineligible to receive Social Security disability insurance benefits. Presently before the Court are the parties’ cross motions, pursuant to Fed. R. Civ. P. 12(c), for judgment on the pleadings. For the reasons that follow, defendant's motion is granted, while plaintiff's motion is denied. Tellingly, the plaintiff seeks only remand for further proceedings and has not requested a remand for calculation of benefits.
In its review, the Court has applied the frequently reiterated standards for entitlement to Social Security disability benefits, review of a denial of such benefits, consideration of motions for judgment on the pleadings, examination of the procedures employed, the substantial evidence rule and deference accorded to ALJ decisions, evaluation of vocational evidence and the treating physician rule. These standards, along with numerous authorities and citations, are discussed at length, merely by way of example, in Zacharopoulos v. Saul , No. 19-5075 (GRB), 516 F.Supp.3d 211 (E.D.N.Y. Jan. 25, 2021), which discussion is hereby incorporated by reference. Familiarity with the procedural history and the administrative record herein is assumed.
The plaintiff's claim to disability benefits is premised principally upon injuries related to her right thumb (deriving from carpal tunnel syndrome and Gamekeeper's Thumb ) and back pain. Administrative Transcript, Docket Entry ("DE") 17 at 19. In a thorough and thoughtful opinion, the ALJ determined that, notwithstanding these impairments, based on the plaintiff's age, residual function capacity, education and work experience, there are jobs that exist in significant number in the national economy which she can perform. Id. at 24. Specifically, the ALJ found that plaintiff retained the residual functional capacity to engage in light work as defined under the regulations and was therefore not entitled to disability benefits. Id. 22. The ALJ's determinations are well supported by the record.
On this appeal, plaintiff's counsel, largely without citation to caselaw, challenges the ALJ's factual findings and application of law. Plaintiff's primary objection stems from the ALJ's failure to recognize her carpal tunnel syndrome (which has some documentation in the record) as a severe impairment at step 2 of the prescribed analysis. However, the argument that an ALJ failed to recognize an impairment as severe at the second step rings hollow where, as here, the ALJ recognizes impairments such that the analysis proceeds beyond that step. As Judge Cogan noted:
"[w]here an ALJ excludes certain impairments from the list of severe impairments at the second step, any such error is harmless where the ALJ identifies other severe impairments such that the analysis proceeds and the ALJ considers the effects of the omitted impairments during subsequent steps." See Calixte v. Colvin , No. 14-cv-5654, 2016 WL 1306533, at *23 (E.D.N.Y. Mar. 31, 2016) (citing O'Connell v. Colvin , 558 F. App'x 63, 65 (2d Cir. 2014) ); Woodmancy v. Colvin , 577 F. App'x 72, 74 n.1 (2d Cir. 2014) ("[W]e identify no error warranting remand because the ALJ did identify severe impairments at step two, so [plaintiff]’s claim proceeded through the sequential evaluation process, in which all of [plaintiff]’s ailments were part of the analysis.").
O'Brien v. Berryhill , No. 19-CV-1359 (BMC), 2020 WL 2329446, at *2 (E.D.N.Y. May 11, 2020). Although the ALJ did not specifically identify plaintiff's carpal tunnel syndrome in his analysis under the subsequent steps, because he clearly considered its "claimed effects ... in determining [Plaintiff's] residual functional capacity," any error was harmless. Woodmancy , 577 F. App'x at 74 n.1.
Other purported errors identified by plaintiff similarly do not withstand scrutiny. For example, plaintiff contends that the ALJ improperly found that substantial and repeated gaps in medical treatment undermined plaintiff's subjective complaints of pain and symptomology. However, both logic and law suggest that the ALJ could properly rely on such information to support his determination. See Vered v. Colvin , No. 14-CV-4590 (KAM), 2017 WL 639245, at *16 (E.D.N.Y. Feb. 16, 2017) ("[T]reatment gaps undermined plaintiff's claim that his impairments were severe [such that] the ALJ reasonably found that plaintiff's medical history during the relevant period was not consistent with plaintiff's subjective testimony about his symptoms.") (citing S.S.R. 16-3P, 2016 WL 1119029, at *8 ("[I]f the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record.") and Moscatiello v. Apfel , 129 F. Supp. 2d 481, 489 (E.D.N.Y. 2001) ("The ALJ is permitted to attach significance to plaintiff's failure to seek medical treatment.")). Similarly, counsel contends that the ALJ accorded excessive weight to plaintiff's reported daily activities, but a careful reading of the decision undermines this contention. See, e.g. , DE 17 at 65 (ALJ citing daily living activities as further support for his rejection of the "intensity, persistence and limiting effects of [her] symptoms," which was predicated upon, inter alia , inconsistencies between plaintiff's subjective reporting, the treating physician's narratives and an absence of supportive diagnostic testing).
Plaintiff further contends that the ALJ misapplied the treating physician rule by failing to fully credit certain opinions of her treating physicians, but the decision carefully balances the weight accorded to various sources, including treating and consulting physicians, together with other medical and non-medical information and the record as a whole, concluding that the evidence does not support the claimed disability. DE 17 at 22-23. Certain conclusory statements by plaintiff's physicians, such as the unsupported statement that she was "disabled," were properly rejected by the ALJ. Id. ; see Snell v. Apfel , 177 F.3d 128, 133 (2d Cir. 1999) ("A treating physician's statement that the claimant is disabled cannot itself be determinative."). Clearly, the ALJ's factual determinations are supported by substantial evidence and should not be disturbed.
Based on the foregoing, plaintiff's motion for judgment on the pleadings is denied, and the Commissioner's motion is granted.