Lovett v. Berryhill

3:17-cv-00637-SRU

2018 | Cited 0 times | D. Connecticut | September 20, 2018

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

KEVIN LOVETT, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

No. 3:17-cv-637 (SRU)

RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS In this Social Security appeal, Kevin Lovett moves to reverse the decision by the Social denying his claim for disability insurance benefits. Mot. J. on Pleadings, Doc. No. 15. The Commissioner of Social Security moves to affirm the decision. Mot. to Affirm, Doc. No. 18. For the reasons set forth below, I DENY Judgment on the Pleadings (Doc. No. 15 its Decision (Doc. No. 18).

I. Standard of Review

The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not an impairment that limits his or her ability to do work-related activities (physical or mental). Id.

(citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does not have a severe impairment, the Commissioner determines whether the impairment is c Case 3:17-cv-00637-SRU Document 19 Filed 09/20/18 Page 1 of 17 Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner

Id.

by his Id. Id. (citing 20

C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant

Id. (citing 20 C.F.R. §§ 404.1520(g), 404.15 meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

the period for which ben the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant

Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the do; he [or she] need not provide additional evid

Id.

administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc.

, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, the entire record, including contradictory evidence and evidence from which conflicting

i legal error or if the factual findings are not supported by substantial evidence in the record as a Greek, 802 F.3d at 374- Brault, 683 F.3d at 447-48. Rather, substantial

Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect Selian, 708 F.3d at 417.

II. Facts

Kevin Lovett filed applications for Social Security benefits and Supplemental Income benefits on November 14, 2014 and November 17, 2014 respectively, with an alleged onset of disability of July 15, 2011. Joint Stipulation of Facts, Doc. No. 17, at 2. However, previous applications for benefits which resulted in final decisions created an administratively imposed disability onset of October 29, 2013 based on the doctrine of res judicata. Id. at 2 n.3. At the time of the administratively imposed disability onset, Lovett was 51 years old. Id. at 2. Lovett

Disability Determination Decision, R. at 186. The SSA initially denied his claim on December 11, 2014, finding that al t[ed] in some limitations in [his] ability to perform work related activities . . . [the SSA] determined that [his] condition [was] not severe enough to keep Lovett from working. Id

medical and other information and work experience in determining how [his] condition affects Id information to determine whether [Lovett could] id., but it Id. Lovett was 52 at the time of the

Lovett sought reconsideration, stating that he disagreed with the SSA determination because he was allegedly disabled for the stated period of time. Request for Reconsideration, R. at 197. The SSA again denied his claim on reconsideration on June 24, 2015 for the same reasons it offered in its initial denial. Id.

Lovett requested a hearing before an Administrative Law Judge on July 13, 2015, and a hearing was held before ALJ John Aletta on October 13, 2016. at 63. At the hearing, the ALJ questioned Lovett about his conditions, treatment history, and

ability to perform daily working and living functions. Id. at 80 89. Lovett responded that he had Id. at 80 81. When asked about the pain in his right hand, Lovett responded that he

Id. at 81. He further testified that he only walk maybe two city lift Id. at 87. Lovett testified that he could reach overhead with both arms as long as he was not holding anything, but Id. at 88.

Lovett testified that he tried to help around the house with cleaning and cooking, and that he did his own laundry. Id. at 89. Further, he did grass with a self-propelled lawn mower, but did not shovel snow in the winter. Id. Lovett testified that he was able to maintain his personal hygiene, stand at the sink and do dishes, and

vacuum the house, Id. at 91 92, 95.

The ALJ then heard testimony from Vocational Expert Renee Jubrey, who testified that

99. The ALJ asked Jubrey to consider a hypothetical individual of the same age, education (high school, id. at 68), and experience as Lovett, who was limited to performing work at the medium exertional level with the following additional limitations: could only occasionally reach overhead with both arms; occasionally handle and finger with their dominant hand; could frequently climb ramps and stairs; could never climb ladders, ropes, or scaffolds; could frequently balance, stoop, kneel, and crouch; could only occasionally crawl; could never be exposed to unprotected heights or moving mechanical parts; and could not be required to twist their head more than 45 degrees to the left. Id. at 100. The ALJ asked Jubrey whether that she testified that they could not, primarily due to the occasional handling and fingering limitation. Id. Further, Jubrey testified that there were no jobs that the hypothetical person could perform in the national economy at a medium exertional level. Id.

while retaining the same limitations, and Jubrey testified that with that change, the following jobs were available: school bus monitor, with 20,000 jobs available in the national economy; counter clerk, with 25,000 jobs available in the national economy; or usher, with 55,000 jobs available in the national economy. Id. at 101 02. The ALJ modified the hypothetical again to include a complete restriction on reaching overhead with either arm, and Jubrey testified that the overhead reaching restriction would not prevent the hypothetical individual from performing the

aforementioned three jobs. Id. at 103 04. Finally, the ALJ included a sit/stand restriction in the same hypothetical that is, for every ten minutes sitting, the individual would be permitted to stand for five minutes, and for every ten minutes standing, the individual would be permitted to sit for five minutes. Id. at 105. With that additional restriction, Jubrey testified that there would be no jobs available in the national economy for that hypothetical individual. Id. at 105 06.

On November 9, 2016, the ALJ issued an opinion in which he found that Lovett was not

1

ALJ Decision, R. at 15. At the first step, the ALJ found that not engaged in substantial gainful activity since October 29, 2013, the beginning of the relevant Id carpel tunnel syndrome, right shoulder osteoarthritis, right shoulder subscapularis tendinosis, acromiclavicular joint, tear of supraspinatus of left shoulder, and mild bulging disks of cervical

were severe impairments that impo ability to engage in basic work activities. 2

Id.

combination of impairments that [met] or medically equal[ed] the severity of one of the listed impairm not support a finding that the claimant [was] unable to perform fine and gross movements effectively. ALJ Decision, R. at 20. As support for this, the ALJ stated that Lovett testified to activities consistent with effective fine and gross

1 Although Lovett alleged 7/15/11 as the onset date, the ALJ determined that the relevant period began 10/29/13, because of res judicata, for purposes of Title II benefits. ALJ decision, R. at 17. 2 n-severe impairments were disease; gastritis; heartburn; rectal bleeding; constipation; obesity; depression; and anxiety. ALJ Decision, R. at 18 19.

manipulation ALJ decision, R. at 19 20.

Id. at 20. The limitations were that Lovett (1)

(4) c (6) could (7) could never be exposed to unprotected heights and moving mechanical parts, and (8) could not Id. The ALJ noted that Lovett alleged the following set of symptoms not addressed in the RFC determination:

[Lovett] has pain in his neck, as well as his shoulders and right hand. The pain occurs daily and is at a level of 8.5 out of 10. He cannot close his right hand. He can only turn his neck to the right. The only way to turn left is to turn his whole body. He has to get in the fetal position in order to relieve back pain. He can only sleep for about 1 2 hours per night due to the pain. He has problems sitting and standing for long periods. He can only walk about [two] city blocks and lift about [ten] pounds. He has problems reaching with both arms. He has a tendency to drop objects. He can only reach above his head with no weight in his hands. Id Id. However, the ALJ decided that ning the intensity, persistence[,] and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the Id. At the fourth step, the ALJ determined that Lovett could not perform his past relevant work as a taper, janitor, or construction worker. Id. at 24. At the fifth step, the ALJ determined [were] jobs that exist[ed] in significant numbers in the national economy that [Lovett could] Id. at 25. Because the ALJ found that Lovett was capable of making a successful adjustment to other work, he concluded that Id.

December 2, 2016. Request for Review of Hearing Decision/Order, R. at 8. The SSA Appeals

filed a complaint before this c 2017. Compl., Doc. No. 1. Lovett filed a Motion to Reverse on September 19, 2017. Mot. Rev.,

Doc. No. 15. The Commissioner filed a Motion to Affirm on October 10, 2017. Mot. Affirm, Doc. No. 18.

III. Discussion

On review, Lovett argues that the ALJ failed to s testimony and failed to properly weigh the medical opinion evidence in order to , Doc. No 16, at 2. Specifically, Lovett

-examining report, id. at 3, and improperly ent history and ability to perform activities of daily living when making a credibility determination. Id. at 10 12. are supported by substantial evidence and made by a correct application of legal princip

should therefore be affirmed. Mot. to Affirm, Doc. No. 18, at 1.

A.

Lovett eatment history, and daily activities. Mem. in Supp.

. J. Pleadings, Doc. No 16, at 11 Affirm, Doc. No. 18, at 7. I agree with the Commissioner.

- Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged Id. (citing 20 C.F.R. § 404.1529(b)). If the claimant does suffer from such an impairment, at the second step, the ALJ ,

[s]tatements [the claimant] or others make about [his] impairment(s), [his] restrictions, [his] daily activities, [his] efforts to work, or any other relevant statements [he] make[s] to medical sources during the course of examination or treatment, or to [the agency] during interviews, on applications, in letters, and in testimony in [i Id. (quoting 20 C.F.R. § 404.1512(b)(1)(iii)).

Genier complaints without question; he may exercise discretion in weighing the credibility of the

Id. ALJ are entitled to great deference and . . . can be reversed only if they are patently

, 119 F.3d 1035, 1042 (2d Cir. 1997) (internal quotation marks omitted); see Aponte

-finder, the ALJ Pietrunti, 119 F.3d at 1042 (internal

appraise the credibility of witnesses, including the claimant. Aponte, 728 F.2d at 591. In the See Pietrunti, 119 F.3d at 1042; Aponte, 728 F.2d at 591.

In the first step, could reasonably be expected to cause the alleged symptoms. ALJ Decision, R. at 21. However, at the s statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record. Id. In so finding, the ALJ did not give controlling weight to s primary care provider, Dr. DeGaetano, who concluded that Lovett was only able to sit for four hours, stand and walk for two hours, would need frequent breaks during

absent from work for three days each month. Id. The ALJ found that those opinions by Dr. especially poorly supported. Id. Further, the ALJ highlighted as support for his determination. The ALJ opined that Lovett had likely been laid off from his previous jobs, as opposed to stopping work due to his conditions. ALJ Decision, R. at 22. For example, Lovett testified that he was laid off from his job on the alleged disability onset date of July 15, 2011, but

also indicated on his disability report that he stopped working on August 13, 2010, despite his Id. Further, the ALJ noted that Lovett had previously stated that he did not work because of his disabilities. Id. The ALJ Id. Lovett argues that conflicting dates regarding when and why he

stopped working in 2010 and 201 statements to determine whether Lovett was disabled; rather, the ALJ simply concluded that the

Lovett would have difficulty sustaining work. The ALJ also of independence, which tends to support the state agency assessment, particularly with respect to

The ALJ highlighted that Lovett was able to drive every day, tried to do chores, and did laundry, dishes, vacuuming, and yard work in short spurts. Id. Lovett maintained his grooming and hygiene, could use a self-propelled lawnmower, and could shop for groceries while leaning on the cart. Id. Although Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988), a

relatively high level of activity can factor into a credibility finding with regard to a claimant subjective assessment of the intensity of his symptoms. See Campbell v. Astrue, 7 (2d Cir. 2012) (summary order); Johnson v. Berryhill, 2017 WL 2381272, at *8 (D. Conn.

2017). Further, Lovett testified that he could not take pain medication due to his liver. ALJ

Decision, R. at 22. The ALJ reasoned that Id.

that his pain was not as severe as alleged. Id. Lovett had bilateral surgical corrections for his carpal tunnel syndrome and related impairments in October and November 2014, and during a follow- kept out of work for 6 8 weeks, rather than 4 at 22.

His last visit with that provider was in January 2015, where he exhibited a loss of flexion in all Id. The however, put effort into the examination. Id not go back to the orthopedist b Id. Lovett was referred to a second orthopedist, but did not follow up. Id. bilateral shoulder impairments, the ALJ noted that the treatment Lovett sought had

Id. At that January 2016 visit, Lovett reported having trouble lifting heavy objects with both hands, and Id. He was referred to physical therapy, but he only went to several sessions over a period of one month before he stopped attending. Id Id

Id.

With respect to Lovett degenerative disk disease of the neck with attendant headaches, the AL was largely the same as for his lumbar spine: minimal with no were more prominent with Id. [d] no loss of gait, loss of range of motion, or other indication consistent with

Id. Therefore, the [this] contradicts the primary care provider opinion indicating significant limit Id.

ted by e ALJ provided specific reasons for his credibility determination, testimony corroborated by reported daily activities or the objective evidence, namely, his treatment and work histor Cichocki -76. Accordingly, the ALJ did not err in his

opinion.

B. Did the ALJ correctly evaluate the medical opinion evidence?

Lovett argues that the ALJ failed to follow the treating physician rule when he decided entitled to controlling weight, and instead non-examining report. . 16, at 2 3. The Commissioner responds that the

to Affirm, Doc. No. 18, at 3.

-supported by medically acceptable clinical and

laboratory diagnostic techniqu 3

Cichocki v. Astrue (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 20 C.F.R. §

404.1527(c)(2)). When the ALJ gives controlling weight to a non-treating physician, and does

nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). After considering those Halloran v. Barnhart

the weight assigned. Burgess v. Astrue

Atwater v. Astrue 013)

not the court Burgess, 537 F.3d at 128.

3 Originally a rule devised by the federal courts, the treating physician rule is now codified by SSA See Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).

consultati Selian, 708 F.3d at

419; Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990). In some circumstances, ho See Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983); see also Prince v. Astrue Petrie v. Astrue

An ALJ is entitled to rely on the opinions of state agency medical consultants in issuing decisions. See Social Security Ruling 96-6p, 1996 WL 374180 (1996). Here, the ALJ certainly

When determining treating physician Dr. DeGaetano. Significantly, however, the ALJ substituted the limitations in

sitting, standing, and walking recommended by state agency medical consultant Dr. Papantonio, Decision, R. at 21.

Lovett argues that the ALJ cited no medical opinions or other authority supporting the Mem.

ALJ Decision, R. at 21, and the ALJ was Moreover, as discussed

-examining consultant who is not a specialist in

a relevant area of medicine and who reviewed a markedly undeveloped record cannot be given greater weight than the well-supported opinions from a treating doctor, such as Dr. DeGaetano , Doc. No. 16, at 4 5. First, though Dr. Papantonio is not a specialist in a relevant area of medicine, he need not be for his opinion to be relevant to tate agency medical . . . consultants . . . are experts in the Social S n appropriate circumstances, [their] opinions may be entitled to greater weight than the opinions of treating or examining sources. -6p, 1996 WL 374180, at *2 at of treating physician

57, 166 69. Further, Lovett does not point to any medical records or evidence after February 2015 which

treatment history, the ALJ determined that the sitting, standing, and walking portions of Dr. -supported.

Lovett argues that because the ALJ did not rely entirely on state agency medical Mem. in Supp. 16, at 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)

not

The ALJ comprehensively stated his reasons for incorporating different aspects of both Dr. DeGaetano and Dr. Papanto he determined functional capacity, and he provided good reasons for his decision to do so, such that it is Cichocki, 729 F.3d at 177. Accordingly, the A residual functional capacity.

IV. Conclusion

is GRANTED gs (Doc. No. 15) is DENIED. The Clerk shall enter judgment and close the case.

So ordered. Dated at Bridgeport, Connecticut, this 20th day of September 2018.

/s/ STEFAN R. UNDERHILL Stefan R. Underhill United States District Judge

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

KEVIN LOVETT, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

No. 3:17-cv-637 (SRU)

RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS In this Social Security appeal, Kevin Lovett moves to reverse the decision by the Social denying his claim for disability insurance benefits. Mot. J. on Pleadings, Doc. No. 15. The Commissioner of Social Security moves to affirm the decision. Mot. to Affirm, Doc. No. 18. For the reasons set forth below, I DENY Judgment on the Pleadings (Doc. No. 15 its Decision (Doc. No. 18).

I. Standard of Review

The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the Greek v. Colvin, 802 F.3d 370, 373 n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not an impairment that limits his or her ability to do work-related activities (physical or mental). Id.

(citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does not have a severe impairment, the Commissioner determines whether the impairment is c Case 3:17-cv-00637-SRU Document 19 Filed 09/20/18 Page 1 of 17 Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If the impairment is not per se disabling, then, before proceeding to step four, the Commissioner

Id.

by his Id. Id. (citing 20

C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant

Id. (citing 20 C.F.R. §§ 404.1520(g), 404.15 meaning that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.

the period for which ben the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant

Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the do; he [or she] need not provide additional evid

Id.

administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc.

, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler, the entire record, including contradictory evidence and evidence from which conflicting

i legal error or if the factual findings are not supported by substantial evidence in the record as a Greek, 802 F.3d at 374- Brault, 683 F.3d at 447-48. Rather, substantial

Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect Selian, 708 F.3d at 417.

II. Facts

Kevin Lovett filed applications for Social Security benefits and Supplemental Income benefits on November 14, 2014 and November 17, 2014 respectively, with an alleged onset of disability of July 15, 2011. Joint Stipulation of Facts, Doc. No. 17, at 2. However, previous applications for benefits which resulted in final decisions created an administratively imposed disability onset of October 29, 2013 based on the doctrine of res judicata. Id. at 2 n.3. At the time of the administratively imposed disability onset, Lovett was 51 years old. Id. at 2. Lovett

Disability Determination Decision, R. at 186. The SSA initially denied his claim on December 11, 2014, finding that al t[ed] in some limitations in [his] ability to perform work related activities . . . [the SSA] determined that [his] condition [was] not severe enough to keep Lovett from working. Id

medical and other information and work experience in determining how [his] condition affects Id information to determine whether [Lovett could] id., but it Id. Lovett was 52 at the time of the

Lovett sought reconsideration, stating that he disagreed with the SSA determination because he was allegedly disabled for the stated period of time. Request for Reconsideration, R. at 197. The SSA again denied his claim on reconsideration on June 24, 2015 for the same reasons it offered in its initial denial. Id.

Lovett requested a hearing before an Administrative Law Judge on July 13, 2015, and a hearing was held before ALJ John Aletta on October 13, 2016. at 63. At the hearing, the ALJ questioned Lovett about his conditions, treatment history, and

ability to perform daily working and living functions. Id. at 80 89. Lovett responded that he had Id. at 80 81. When asked about the pain in his right hand, Lovett responded that he

Id. at 81. He further testified that he only walk maybe two city lift Id. at 87. Lovett testified that he could reach overhead with both arms as long as he was not holding anything, but Id. at 88.

Lovett testified that he tried to help around the house with cleaning and cooking, and that he did his own laundry. Id. at 89. Further, he did grass with a self-propelled lawn mower, but did not shovel snow in the winter. Id. Lovett testified that he was able to maintain his personal hygiene, stand at the sink and do dishes, and

vacuum the house, Id. at 91 92, 95.

The ALJ then heard testimony from Vocational Expert Renee Jubrey, who testified that

99. The ALJ asked Jubrey to consider a hypothetical individual of the same age, education (high school, id. at 68), and experience as Lovett, who was limited to performing work at the medium exertional level with the following additional limitations: could only occasionally reach overhead with both arms; occasionally handle and finger with their dominant hand; could frequently climb ramps and stairs; could never climb ladders, ropes, or scaffolds; could frequently balance, stoop, kneel, and crouch; could only occasionally crawl; could never be exposed to unprotected heights or moving mechanical parts; and could not be required to twist their head more than 45 degrees to the left. Id. at 100. The ALJ asked Jubrey whether that she testified that they could not, primarily due to the occasional handling and fingering limitation. Id. Further, Jubrey testified that there were no jobs that the hypothetical person could perform in the national economy at a medium exertional level. Id.

while retaining the same limitations, and Jubrey testified that with that change, the following jobs were available: school bus monitor, with 20,000 jobs available in the national economy; counter clerk, with 25,000 jobs available in the national economy; or usher, with 55,000 jobs available in the national economy. Id. at 101 02. The ALJ modified the hypothetical again to include a complete restriction on reaching overhead with either arm, and Jubrey testified that the overhead reaching restriction would not prevent the hypothetical individual from performing the

aforementioned three jobs. Id. at 103 04. Finally, the ALJ included a sit/stand restriction in the same hypothetical that is, for every ten minutes sitting, the individual would be permitted to stand for five minutes, and for every ten minutes standing, the individual would be permitted to sit for five minutes. Id. at 105. With that additional restriction, Jubrey testified that there would be no jobs available in the national economy for that hypothetical individual. Id. at 105 06.

On November 9, 2016, the ALJ issued an opinion in which he found that Lovett was not

1

ALJ Decision, R. at 15. At the first step, the ALJ found that not engaged in substantial gainful activity since October 29, 2013, the beginning of the relevant Id carpel tunnel syndrome, right shoulder osteoarthritis, right shoulder subscapularis tendinosis, acromiclavicular joint, tear of supraspinatus of left shoulder, and mild bulging disks of cervical

were severe impairments that impo ability to engage in basic work activities. 2

Id.

combination of impairments that [met] or medically equal[ed] the severity of one of the listed impairm not support a finding that the claimant [was] unable to perform fine and gross movements effectively. ALJ Decision, R. at 20. As support for this, the ALJ stated that Lovett testified to activities consistent with effective fine and gross

1 Although Lovett alleged 7/15/11 as the onset date, the ALJ determined that the relevant period began 10/29/13, because of res judicata, for purposes of Title II benefits. ALJ decision, R. at 17. 2 n-severe impairments were disease; gastritis; heartburn; rectal bleeding; constipation; obesity; depression; and anxiety. ALJ Decision, R. at 18 19.

manipulation ALJ decision, R. at 19 20.

Id. at 20. The limitations were that Lovett (1)

(4) c (6) could (7) could never be exposed to unprotected heights and moving mechanical parts, and (8) could not Id. The ALJ noted that Lovett alleged the following set of symptoms not addressed in the RFC determination:

[Lovett] has pain in his neck, as well as his shoulders and right hand. The pain occurs daily and is at a level of 8.5 out of 10. He cannot close his right hand. He can only turn his neck to the right. The only way to turn left is to turn his whole body. He has to get in the fetal position in order to relieve back pain. He can only sleep for about 1 2 hours per night due to the pain. He has problems sitting and standing for long periods. He can only walk about [two] city blocks and lift about [ten] pounds. He has problems reaching with both arms. He has a tendency to drop objects. He can only reach above his head with no weight in his hands. Id Id. However, the ALJ decided that ning the intensity, persistence[,] and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the Id. At the fourth step, the ALJ determined that Lovett could not perform his past relevant work as a taper, janitor, or construction worker. Id. at 24. At the fifth step, the ALJ determined [were] jobs that exist[ed] in significant numbers in the national economy that [Lovett could] Id. at 25. Because the ALJ found that Lovett was capable of making a successful adjustment to other work, he concluded that Id.

December 2, 2016. Request for Review of Hearing Decision/Order, R. at 8. The SSA Appeals

filed a complaint before this c 2017. Compl., Doc. No. 1. Lovett filed a Motion to Reverse on September 19, 2017. Mot. Rev.,

Doc. No. 15. The Commissioner filed a Motion to Affirm on October 10, 2017. Mot. Affirm, Doc. No. 18.

III. Discussion

On review, Lovett argues that the ALJ failed to s testimony and failed to properly weigh the medical opinion evidence in order to , Doc. No 16, at 2. Specifically, Lovett

-examining report, id. at 3, and improperly ent history and ability to perform activities of daily living when making a credibility determination. Id. at 10 12. are supported by substantial evidence and made by a correct application of legal princip

should therefore be affirmed. Mot. to Affirm, Doc. No. 18, at 1.

A.

Lovett eatment history, and daily activities. Mem. in Supp.

. J. Pleadings, Doc. No 16, at 11 Affirm, Doc. No. 18, at 7. I agree with the Commissioner.

- Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) At the first step, the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged Id. (citing 20 C.F.R. § 404.1529(b)). If the claimant does suffer from such an impairment, at the second step, the ALJ ,

[s]tatements [the claimant] or others make about [his] impairment(s), [his] restrictions, [his] daily activities, [his] efforts to work, or any other relevant statements [he] make[s] to medical sources during the course of examination or treatment, or to [the agency] during interviews, on applications, in letters, and in testimony in [i Id. (quoting 20 C.F.R. § 404.1512(b)(1)(iii)).

Genier complaints without question; he may exercise discretion in weighing the credibility of the

Id. ALJ are entitled to great deference and . . . can be reversed only if they are patently

, 119 F.3d 1035, 1042 (2d Cir. 1997) (internal quotation marks omitted); see Aponte

-finder, the ALJ Pietrunti, 119 F.3d at 1042 (internal

appraise the credibility of witnesses, including the claimant. Aponte, 728 F.2d at 591. In the See Pietrunti, 119 F.3d at 1042; Aponte, 728 F.2d at 591.

In the first step, could reasonably be expected to cause the alleged symptoms. ALJ Decision, R. at 21. However, at the s statements concerning the intensity, persistence, and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record. Id. In so finding, the ALJ did not give controlling weight to s primary care provider, Dr. DeGaetano, who concluded that Lovett was only able to sit for four hours, stand and walk for two hours, would need frequent breaks during

absent from work for three days each month. Id. The ALJ found that those opinions by Dr. especially poorly supported. Id. Further, the ALJ highlighted as support for his determination. The ALJ opined that Lovett had likely been laid off from his previous jobs, as opposed to stopping work due to his conditions. ALJ Decision, R. at 22. For example, Lovett testified that he was laid off from his job on the alleged disability onset date of July 15, 2011, but

also indicated on his disability report that he stopped working on August 13, 2010, despite his Id. Further, the ALJ noted that Lovett had previously stated that he did not work because of his disabilities. Id. The ALJ Id. Lovett argues that conflicting dates regarding when and why he

stopped working in 2010 and 201 statements to determine whether Lovett was disabled; rather, the ALJ simply concluded that the

Lovett would have difficulty sustaining work. The ALJ also of independence, which tends to support the state agency assessment, particularly with respect to

The ALJ highlighted that Lovett was able to drive every day, tried to do chores, and did laundry, dishes, vacuuming, and yard work in short spurts. Id. Lovett maintained his grooming and hygiene, could use a self-propelled lawnmower, and could shop for groceries while leaning on the cart. Id. Although Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988), a

relatively high level of activity can factor into a credibility finding with regard to a claimant subjective assessment of the intensity of his symptoms. See Campbell v. Astrue, 7 (2d Cir. 2012) (summary order); Johnson v. Berryhill, 2017 WL 2381272, at *8 (D. Conn.

2017). Further, Lovett testified that he could not take pain medication due to his liver. ALJ

Decision, R. at 22. The ALJ reasoned that Id.

that his pain was not as severe as alleged. Id. Lovett had bilateral surgical corrections for his carpal tunnel syndrome and related impairments in October and November 2014, and during a follow- kept out of work for 6 8 weeks, rather than 4 at 22.

His last visit with that provider was in January 2015, where he exhibited a loss of flexion in all Id. The however, put effort into the examination. Id not go back to the orthopedist b Id. Lovett was referred to a second orthopedist, but did not follow up. Id. bilateral shoulder impairments, the ALJ noted that the treatment Lovett sought had

Id. At that January 2016 visit, Lovett reported having trouble lifting heavy objects with both hands, and Id. He was referred to physical therapy, but he only went to several sessions over a period of one month before he stopped attending. Id Id

Id.

With respect to Lovett degenerative disk disease of the neck with attendant headaches, the AL was largely the same as for his lumbar spine: minimal with no were more prominent with Id. [d] no loss of gait, loss of range of motion, or other indication consistent with

Id. Therefore, the [this] contradicts the primary care provider opinion indicating significant limit Id.

ted by e ALJ provided specific reasons for his credibility determination, testimony corroborated by reported daily activities or the objective evidence, namely, his treatment and work histor Cichocki -76. Accordingly, the ALJ did not err in his

opinion.

B. Did the ALJ correctly evaluate the medical opinion evidence?

Lovett argues that the ALJ failed to follow the treating physician rule when he decided entitled to controlling weight, and instead non-examining report. . 16, at 2 3. The Commissioner responds that the

to Affirm, Doc. No. 18, at 3.

-supported by medically acceptable clinical and

laboratory diagnostic techniqu 3

Cichocki v. Astrue (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 20 C.F.R. §

404.1527(c)(2)). When the ALJ gives controlling weight to a non-treating physician, and does

nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). After considering those Halloran v. Barnhart

the weight assigned. Burgess v. Astrue

Atwater v. Astrue 013)

not the court Burgess, 537 F.3d at 128.

3 Originally a rule devised by the federal courts, the treating physician rule is now codified by SSA See Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).

consultati Selian, 708 F.3d at

419; Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990). In some circumstances, ho See Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983); see also Prince v. Astrue Petrie v. Astrue

An ALJ is entitled to rely on the opinions of state agency medical consultants in issuing decisions. See Social Security Ruling 96-6p, 1996 WL 374180 (1996). Here, the ALJ certainly

When determining treating physician Dr. DeGaetano. Significantly, however, the ALJ substituted the limitations in

sitting, standing, and walking recommended by state agency medical consultant Dr. Papantonio, Decision, R. at 21.

Lovett argues that the ALJ cited no medical opinions or other authority supporting the Mem.

ALJ Decision, R. at 21, and the ALJ was Moreover, as discussed

-examining consultant who is not a specialist in

a relevant area of medicine and who reviewed a markedly undeveloped record cannot be given greater weight than the well-supported opinions from a treating doctor, such as Dr. DeGaetano , Doc. No. 16, at 4 5. First, though Dr. Papantonio is not a specialist in a relevant area of medicine, he need not be for his opinion to be relevant to tate agency medical . . . consultants . . . are experts in the Social S n appropriate circumstances, [their] opinions may be entitled to greater weight than the opinions of treating or examining sources. -6p, 1996 WL 374180, at *2 at of treating physician

57, 166 69. Further, Lovett does not point to any medical records or evidence after February 2015 which

treatment history, the ALJ determined that the sitting, standing, and walking portions of Dr. -supported.

Lovett argues that because the ALJ did not rely entirely on state agency medical Mem. in Supp. 16, at 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)

not

The ALJ comprehensively stated his reasons for incorporating different aspects of both Dr. DeGaetano and Dr. Papanto he determined functional capacity, and he provided good reasons for his decision to do so, such that it is Cichocki, 729 F.3d at 177. Accordingly, the A residual functional capacity.

IV. Conclusion

is GRANTED gs (Doc. No. 15) is DENIED. The Clerk shall enter judgment and close the case.

So ordered. Dated at Bridgeport, Connecticut, this 20th day of September 2018.

/s/ STEFAN R. UNDERHILL Stefan R. Underhill United States District Judge

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