United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY UNITED STATES DISTRICT JUDGE
brings this action pursuant to section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g), seeking review of the
Commissioner's final decision denying plaintiff's
application for disability insurance benefits
(“DIB”). In 2013, plaintiff filed an application
for DIB alleging disability beginning in 2008, when he was in
a car accident. After a hearing, an administrative law judge
found that plaintiff's diabetic foot ulcer is a severe
impairment but that he is not disabled within the meaning of
the Act because he retains the capacity to perform the full
range of sedentary work as defined in 20 C.F.R. §
404.1529 and SSRs 96-4p and 96-7p. Plaintiff has moved for an
order reversing the decision of the Commissioner (ECF No.
14), and defendant has moved for an order affirming the
decision (ECF No. 16). Plaintiff argues that the ALJ's
decision violates the treating physician rule and is not
supported by substantial evidence. Respondent contends that
the ALJ adequately explained his reasons for discounting the
treating physician's opinion and the ALJ's finding
that plaintiff can perform sedentary work is supported by
substantial evidence. I think respondent is correct.
Therefore, the decision is affirmed.
Plaintiff sustained injuries to his left and right knees and
back after he was struck by a car in July 19, 2008.
Stipulation of Facts (ECF No. 14-2) ¶ 5. He was admitted
to St. Francis Hospital that day, received orthopedic surgery
for an open reduction internal fixation (“ORIF”)
of a right tibial fracture on July 21, 2008, then attended
weekly rehabilitation and occupational therapy from August 3,
2008 through October 18, 2008. Id. ¶¶ 6-7.
attended physical therapy sessions from October 2, 2008
through August 13, 2009 for a variety of conditions,
including his right tibial fracture, right scar tissue, right
chronic ankle spasm and sciatica. Id. ¶ 8. On
December 22, 2008, Dr. Gordon Zimmerman determined that
plaintiff had a “grade III MCL tear of the left knee,
” but was recovering satisfactorily and would have a
“small impairment in the range of 5 to 10%.”
Id. ¶ 15. Dr. Zimmerman ultimately determined
that plaintiff had a 10% permanent partial impairment of his
left knee. Id. ¶ 20. On January 15, 2009,
plaintiff had an evaluation for his lower back pain,
resulting in an assessment of a 3% impairment rating of the
lumbar spine. Id. ¶ 16. On June 25, 2009, Dr.
Kabbash assigned the plaintiff a final 10% permanent
disability rating for his right knee. Id. ¶ 11.
At plaintiff's final physical therapy visit on August 13,
2009, he was able to “perform a hopping motion without
an increase in pain and he was able to perform a single leg
heel raise.” Id. ¶ 12. He canceled his
last scheduled visit and later reported that he was
“doing well and managing with his home exercise
January 2011, plaintiff sought medical treatment for
worsening knee pain. Id. ¶¶ 23-24. He had
an arthroscopic partial meniscectomy in his left knee, to
which he responded well; he stated that “he felt much
better; he was bearing weight as tolerated and increasing his
activity.” Id. ¶¶ 25-26. In 2012,
plaintiff's left knee pain persisted. Id. ¶
32. Notes from 2012 reveal that plaintiff was treated for
type 2 diabetes and was not compliant with taking his
diabetic medicine and following his diet. Id.
¶¶ 32, 33.
March 9, 2013, plaintiff was treated at Rockville General
Hospital for right dorsal foot pain and ankle pain after
dropping a piece of wood on his foot during a home
improvement project. Id. ¶ 35. Podiatrist Eric
Thompson examined the plaintiff on March 12, 2013, and
provided care for a diabetic foot infection with diabetic
neuropathy. Id. ¶ 36. Dr. Thompson saw the
plaintiff for much of 2013 and 2014, and his notes reveal
that the plaintiff had at times been doing a lot of walking.
Id. ¶ 37. April 4, 2014, plaintiff stated that
he had not followed up on treatment for three months because
he was “too busy.” Id.
April 12, 2013, a Connecticut state medical consultant
reviewed plaintiff's record and concluded that plaintiff
could lift 20 pounds occasionally and ten pounds frequently;
stand and/or walk for three hours, and sit for about six
hours in an eight-hour workday. Id. ¶ 28. He
did not have any manipulative, visual, communicative or
environmental limitations. Id. A subsequent mental
status examination found that “plaintiff would have the
ability to function on tasks that did not require much
movement or lifting.” Id. ¶ 29. A state
psychologist reviewed the record and found that plaintiff
could “understand and retain simple directives of
two-to-three steps, though he would have a difficult time
remembering more complex instructions.” Id.
¶ 30. On October 17, 2013, Dr. Dodenhoff performed a
one-time physical evaluation, finding that plaintiff suffered
from sleep apnea, restless leg syndrome and a diabetic ulcer
on his right foot. Id. ¶ 40. Dr. Dodenhoff
wrote that plaintiff was able to sit and handle objects and
“should be able to respond appropriately to
supervision, coworkers, and the pressures in a work
condition seemingly worsened in 2014. He was treated at
Rockville General Hospital for foot pain and a chronic ulcer
on April 15, 2014, followed by several additional procedures
related to his foot. Id. ¶¶ 42-44. Dr.
Eric Lui, a podiatrist, began treating the plaintiff on May
7, 2014. Id. ¶ 45. Dr. Lui's notes reflect
the following diagnoses: diabetic neuropathy (May 7, 2014);
neuropathy with an open wound on the right foot (May 13,
2014); and neuropathy with a second open wound on the right
foot (May 20, 2014). Id. ¶¶ 46-48. During
the ensuing months, Dr. Lui examined the plaintiff weekly for
problems with his right foot. R. at 61. On November 5 and 12,
2014, Dr. Lui urged plaintiff to remain off the foot as much
as possible, keep it elevated and use a walking boot as
necessary. Stipulation of Facts ¶ 65-66.
October 24, 2014, Dr. Lui completed a medical assessment.
Id. ¶ 67. He opined that plaintiff could
occasionally lift up to 20 pounds but could never carry any
weight due to his diabetic neuropathy and the chronic ulcer
on his right foot. Id. He could sit for 30-45
minutes, stand for fifteen minutes and walk for fifteen
minutes without interruption. Id. Over the course of
an eight-hour workday, he could sit for 3 to 4 hours, stand
for one hour, and walk for a total of one hour; however, he
would have to lie down and elevate his right foot 3 to 4
times a day for 30 to 60 minutes each time due to his chronic
diabetic ulcer. Id. He could use his upper body
bilaterally and left foot with little or no restriction, and
occasionally operate a motor vehicle, although he could not
operate foot controls with his right foot. Id. He
could not climb stairs, be around moving mechanical parts or
be in extreme cold or heat. Id.
originally filed for DIB on February 19, 2013. R. at 155-160.
After a hearing, the ALJ concluded that, although
plaintiff's chronic foot ulcer constitutes a severe
impairment, he retains the residual functional capacity to
perform the full range of sedentary work. With regard to Dr.
Lui's assessment of plaintiff's limitations, the ALJ
The assessment of the claimant's podiatrist, Dr. Lui (Ex.
16F) is given some weight. It is based on a treating
relationship and specialty as a podiatrist. It suggests a
less-than-sedentary profile that is not fully supported by
the record, including his own notes (Ex. 18F). For instance,
he states that [t]he claimant cannot use his hands
bilaterally more than frequently, but there is no indication
of any neurological findings in the upper extremities (Exs.
11F, 18F, 20F). The idea that he cannot use foot controls
with his right foot is inconsistent with his admission that
he can drive (Ex. 4E). There is no indication that he is
unable to sit without limitation, given that the only
findings are some erythema and sensory loss in the lower
extremities. (Exs. 11F, 18F, 20F). Also, these notes indicate
no gait issues either (Id.). Accordingly, the degree
of restriction on sitting, standing, and walking is
unjustified. Thus, the opinion is given credit to the extent
it supports a full sedentary profile. This is consistent with
his indication that he could go back to a desk job. (Ex. 7F).
R. at 39.
regard to plaintiff's need to elevate his ...