Daniels v. Colvin
RULING. For the reasons set forth in the attached Ruling, plaintiff's 16 MOTION to Reverse the Decision of the Commissioner is DENIED, and defendant's 18 MOTION to Affirm the Decision of the Commissioner is GRANTED. Signed by Judge Sarah A. L. Merriam on 6/28/2017. (Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KEVIN M. DANIELS
NANCY A. BERRYHILL,
SOCIAL SECURITY ADMINISTRATION:
Civ. No. 3:16CV01181(SALM)
June 28, 2017
RULING ON CROSS MOTIONS
Plaintiff Kevin M. Daniels (“plaintiff”), brings this
appeal under §205(g) of the Social Security Act (the “Act”), as
amended, 42 U.S.C. §405(g), seeking review of a final decision
by the Commissioner of the Social Security Administration (the
“Commissioner” or “defendant”) denying his applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under the Act. Plaintiff has moved for an order
reversing the decision of the Commissioner. [Doc. #16].
For the reasons set forth below, plaintiff’s Motion for
Order Reversing the Decision of the Commissioner [Doc. #16] is
DENIED, and defendant’s Motion for an Order Affirming the
Decision of the Commissioner [Doc. #18] is GRANTED.1
On February 2, 2017, plaintiff filed a Memorandum in Opposition
to defendant’s Motion for an Order Affirming the Decision of the
Commissioner. [Doc. #19]. The Court construes this Memorandum as
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Plaintiff filed concurrent applications for DIB and SSI on
October 10, 2012, alleging disability beginning August 1, 2008.
See Certified Transcript of the Administrative Record, Doc. #11,
compiled on August 12, 2016, (hereinafter “Tr.”) 209-24.3
Plaintiff’s applications were denied initially on March 7, 2013,
see Tr. 114-21, and upon reconsideration on June 28, 2013. See
On November 10, 2014, plaintiff, represented by Attorney
John C. Wirzbicki, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) Ronald J. Thomas. See Tr. 3159; see also Tr. 122-23. Vocational Expert (“VE”) Lawrence P.
Takki also testified at the hearing. See Tr. 51-57; see also Tr.
197-99. On January 28, 2015, the ALJ issued an unfavorable
decision. See Tr. 8-28. On June 1, 2016, the Appeals Council
denied plaintiff’s request for review, thereby making the ALJ’s
plaintiff’s reply brief, filed pursuant to the scheduling order
entered on September 21, 2016. See Doc. #12.
The parties filed a Stipulation of Facts on November 9, 2016.
See Doc. #15.
Plaintiff previously applied for SSI and DIB on February 18,
2010. See Tr. 200-08. These applications were denied initially
on February 4, 2010, and upon reconsideration on January 26,
2011. See Tr. 11. Plaintiff’s alleged onset date of August 1,
2008, was amended by the ALJ to January 27, 2011, the day after
this previous determination. See Tr. 12.
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January 28, 2015, decision the final decision of the
Commissioner. See Tr. 1-7. The case is now ripe for review under
42 U.S.C. §405(g).
Plaintiff timely filed this action for review and now moves
to reverse the Commissioner’s decision. [Doc. #16]. On appeal,
The ALJ erred by failing to consider a closed period;
The ALJ erred at step three by failing to adequately
address Listing 1.02;
The ALJ erred at step two by failing to find that
plaintiff’s chronic pain is a severe impairment; and
The ALJ’s findings regarding plaintiff’s mental limitations
are not supported by substantial evidence.
See Doc. #16-1 at 11-21. As set forth below, the Court finds
that ALJ Thomas did not err as contended.
STANDARD OF REVIEW
The review of a social security disability determination
involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. See
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation
omitted). Substantial evidence is evidence that a reasonable
~ 3 ~
mind would accept as adequate to support a conclusion; it is
more than a “mere scintilla.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). The reviewing court’s responsibility is
to ensure that a claim has been fairly evaluated by the ALJ. See
Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.” (citing Tejada v. Apfel, 167 F.3d 770, 773-74 (2d
Cir. 1999))). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
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“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alterations added) (citing Treadwell v. Schweiker, 698 F.2d
137, 142 (2d Cir. 1983)). The ALJ is free to accept or reject
the testimony of any witness, but a “finding that the witness is
not credible must nevertheless be set forth with sufficient
specificity to permit intelligible plenary review of the
record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 26061 (2d Cir. 1988) (citing Carroll v. Sec. Health and Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983)). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, No. 3:13CV00073(JCH), 2014 WL
1304715, at *6 (D. Conn. Mar. 31, 2014) (citing Peoples v.
Shalala, No. 92CV4113, 1994 WL 621922, at *4 (N.D. Ill. Nov. 4,
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
~ 5 ~
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507
(2d Cir. 2009)). “[W]hether there is substantial evidence
supporting the appellant’s view is not the question here;
rather, we must decide whether substantial evidence supports the
ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58,
59 (2d Cir. 2013) (citations omitted).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
To be considered disabled under the Act and therefore
entitled to benefits, plaintiff must demonstrate that he is
unable to work after a date specified “by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments
must be “of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
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§423(d)(2)(A); 20 C.F.R. §§404.1520(c), 416.920(c) (requiring
that the impairment “significantly limit ... physical or
mental ability to do basic work activities” to be considered
“severe” (alterations added)).
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §§404.1520, 416.920. In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
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proof as to the first four steps, while the Secretary
must prove the final one.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given [her] residual functional capacity.” Gonzalez ex rel.
Guzman v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243
(2d Cir. 2010) (alteration added) (citing 68 Fed. Reg. 51155
(Aug. 26, 2003)); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009) (per curiam)). The Residual Functional Capacity (“RFC”) is
what a person is still capable of doing despite limitations
resulting from his physical and mental impairments. See 20
C.F.R. §§404.1545(a)(1), 416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
“[E]ligibility for benefits is to be determined in light of the
fact that ‘the Social Security Act is a remedial statute to be
~ 8 ~
broadly construed and liberally applied.’” Id. (quoting Haberman
v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)).
THE ALJ’S DECISION
Following the above-described five-step evaluation process,
the ALJ concluded that plaintiff was not disabled under the Act.
See Tr. 22. At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since January 27, 2011,
the day after the previous determination. See Tr. 14. At step
two, the ALJ found that plaintiff had the severe impairments of
arthritis of the bilateral knees status post arthroscopic
surgery; bipolar disorder; and polysubstance dependence. See id.
The ALJ determined that plaintiff’s deep vein thrombosis was a
non-severe impairment. See id.
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of any of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. See Tr. 14-16. The ALJ specifically
considered Listings 1.02 (major dysfunction of a joint), 12.04
(affective disorders), and 12.09 (substance addiction
disorders). See id. Before moving on to step four, the ALJ found
plaintiff had the RFC
to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except he cannot operate left
or right foot controls. He can occasionally balance,
climb, crawl, kneel, bend, twist, and squat. He can only
~ 9 ~
occasionally interact with supervisors, coworkers, and
Tr. 16. At step four, the ALJ concluded that plaintiff was
unable to perform any past relevant work. See Tr. 21. At step
five, and after considering plaintiff’s age, education, work
experience and RFC, as well as the testimony of the VE, the ALJ
found that jobs existed in significant numbers in the national
economy that plaintiff could perform. See Tr. 21-22.
Plaintiff raises four general arguments in support of
reversal. The Court turns first to the argument that the ALJ
failed to consider a closed period, because the resolution of
this issue will necessarily impact the Court’s analysis of
plaintiff’s other arguments.
Consideration of a Closed Period
Plaintiff summarily contends that the ALJ should have
considered the “closed period” because “plaintiff was more
severely disabled prior to his surgeries, and in the 22 months
during which he had those surgeries and was in physical
therapy.” Doc. #16-1 at 19. Plaintiff does not support this
argument with citations to any legal authority. Defendant
responds that the “ALJ’s decision reflects that he properly
adjudicated the entirety of the relevant time period.” Doc. #18
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At the outset of his opinion, the ALJ stated:
The claimant filed prior Title II and Title XVI
applications on February 4, 2010, and these were denied
applications are final and binding, and are not reopened
herein. Therefore, the present decision addresses only
the period beginning on January 27, 2011, the day after
the previous applications were denied, and continuing
through the present.
Tr. 11. Plaintiff takes issue with this holding, and with the
determination that plaintiff’s onset date was January 27, 2011,
the day after this previous determination. See generally Doc.
#16-1 at 19.
Plaintiff’s argument fails for several reasons.4 As an
initial matter, plaintiff presents his argument in a conclusory
paragraph and fails to support his position with citations to
legal authority. See Doc. #16-1 at 19. “Issues not sufficiently
argued in the briefs are considered waived and normally will not
The record does not reflect that this particular argument was
presented to the Appeals Council. Plaintiff’s April 23, 2015,
Statement in Support of Appeal submitted to the Appeals Council
does not claim error as to the time period considered by the
ALJ, nor does the statement claim that the ALJ erred by failing
to consider a closed period. See Tr. 303-11. Nevertheless, the
Court will consider this argument here, in light of the Supreme
Court’s holding “that a social security claimant who has
exhausted all administrative remedies does not waive judicial
review of any issues not raised before the Appeals Council.”
Plante v. Astrue, No. 06CV972(LEK)(VEB), 2009 WL 1951352, at *2
(N.D.N.Y. July 2, 2009) (citing Sims v. Apfel, 530 U.S. 103, 105
~ 11 ~
be addressed on appeal.” Norton v. Sam’s Club, 145 F.3d 114, 117
(2d Cir. 1998). Accordingly, the Court need not address this
Nevertheless, even if plaintiff had sufficiently briefed
this claimed error, the Court would have rejected plaintiff’s
argument. The Regulations provide that “if you are dissatisfied
with a determination or decision made in the administrative
review process, but do not request further review within the
stated time period, you lose your right to further review and
that determination or decision becomes final.” 20 C.F.R.
§§404.987(a), 416.1487(a). “However, a determination or a
decision ... which is otherwise final and binding may be
reopened and revised by [the SSA,]” on its own “initiative, or
you may ask that a final determination or decision to which you
were a party be reopened.” Id. at (a)-(b).
The record does not reflect, nor does plaintiff contend,
that plaintiff ever moved to reopen the prior applications.
Although plaintiff’s counsel mentioned at the administrative
hearing that there was an “issue” with respect to a closed
period, he never sought to reopen the prior applications. See
Plaintiff also did not further develop this argument in his
reply brief. See generally Doc. #19.
~ 12 ~
Tr. 57-58. Further, even if plaintiff’s mention of the closed
period at the November 10, 2014, administrative hearing were to
be construed as a request to reopen, any such request was
untimely it as it came more than twelve months after the date of
the notice of the initial determination (January 26, 2011). See
20 C.F.R. §§404.988(a), 416.1488(a). Plaintiff did not proffer
“good cause” to trigger application of the longer four-year or
two-year period in which to reopen a claim. See 20 C.F.R.
§§404.988(b), 416.1488(b).6 Plaintiff also fails to proffer any
basis which would support reopening at “any time” pursuant to 20
C.F.R. sections 404.988(c) and 416.1488(c).
Plaintiff does not contend that there was a de facto
reopening of his prior claim, either. “If the Commissioner
reviews the entire record and renders a decision on the merits,
the earlier decision will be deemed to have been reopened, and
“A determination, revised determination, decision, or revised
decision may be reopened — (a) Within 12 months of the date of
the notice of the initial determination, for any reason; [or]
(b) Within four years of the date of the notice of the initial
determination if we find good cause, as defined in §404.989, to
reopen the case[.]” 20 C.F.R. §§404.988(a)-(b); see also
416.1488(a)-(b) (“A determination, revised determination,
decision, or revised decision may be reopened — (a) Within 12
months of the date of the notice of the initial determination,
for any reason; [or] (b) Within two years of the date of the
notice of the initial determination if we find good cause, as
defined in §416.1489, to reopen the case[.]”).
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any claim of administrative res judicata to have been waived and
thus, the claim is subject to judicial review.” Byam v.
Barnhart, 336 F.3d 172, 180 (2d Cir. 2003) (citation and
internal quotation marks omitted). Although plaintiff’s entire
prior file is contained in the administrative record, see Tr.
312-814 (Exhibits 1F-15F), the ALJ’s decision refers to only
four pages of this prior file, and then only for background
purposes. See Tr. 17 (“The claimant has a long history of knee
pain, and in 2010, he underwent bilateral arthroscopic
surgeries.” (citing Exs. 9F at 14-16; 14F at 7-9)). Otherwise,
the ALJ relies entirely on evidence submitted in connection with
plaintiff’s current applications. See generally Tr. 15-21.
Accordingly, the Court finds that the ALJ did not err by
failing to consider the closed period. The ALJ properly
considered plaintiff’s claim for the relevant time period -from the January 27, 2011, onset date, through the date of the
ALJ’s decision, January 28, 2015. See Pratts v. Chater, 94 F.3d
34, 35-36 (2d Cir. 1996) (To be entitled to DIB, a claimant must
demonstrate that he or she was disabled prior to his or her date
of last insured.); see also 20 C.F.R. §§416.202, 416.203 (To be
entitled to an award of SSI, a claimant must only demonstrate
that he or she became disabled at any time before the ALJ’s
~ 14 ~
Plaintiff contends that the ALJ erred at step three of the
sequential evaluation because he “failed to adequately address
Listing 1.02.” Doc. #16-1 at 11. Defendant responds generally
that substantial evidence supports the ALJ’s step three finding.
See Doc. #18 at 5.
Listing 1.02 addresses major dysfunction of a joint:
Characterized by gross anatomical deformity (e.g.,
subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion
of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing,
bony destruction, or ankylosis of the affected joint(s).
A. Involvement of one major peripheral weight-bearing
joint (i.e., hip, knee, or ankle), resulting in
inability to ambulate effectively, as defined in
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.02.
At step three, the ALJ concluded that plaintiff did “not
have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments.”
Tr. 14. “In making this determination, the [ALJ] specially
considered listing 1.02 (major dysfunction of a joint)[,]” and
noted that “[n]o treating or examining physician has provided
any opinion or suggested any findings to demonstrate that the
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severity of the claimant’s impairments meets or medically equals
the criteria of this or any other listed impairment.” Id.
Substantial Evidence Supports the ALJ’s Finding
Plaintiff contends that the ALJ’s statement that no
treating or examining physician has provided any opinion or
findings to demonstrate that the severity of plaintiff’s
impairments meets Listing 1.02 is “demonstrably untrue.” See
Doc. #16-1 at 11-12.
“The applicant bears the burden of proof [at this stage] of
the sequential inquiry[.]” Talavera, 697 F.3d at 151
(alterations added). “For a claimant to show that his impairment
matches a listing, it must meet all of the specified medical
criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Plaintiff relies on the opinion of consultative examiner
Dr. Jan Akus to support his argument that plaintiff meets
Listing 1.02. See Doc. #16-1 at 12. Specifically, plaintiff
notes Dr. Akus’ observations of plaintiff’s painful motion of
the knees and ineffective ambulation, and plaintiff’s medical
history of severe degenerative changes of both knees and torn
menisci. See id.; see also Tr. 869-70 (report of Dr. Akus). The
ALJ considered and summarized the findings of Dr. Akus’
consultative report in his decision. See Tr. 17. Although Dr.
Akus’ report supports a finding that plaintiff meets some of the
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criteria of Listing 1.02, it does not establish that plaintiff
meets all of the specified medical criteria of this Listing.
Listing 1.02 requires an “inability to ambulate
effectively.” Under the Listings, an inability to ambulate
effectively “means an extreme limitation of the ability to walk”
and “is defined generally as having insufficient lower extremity
functions to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the function of both
upper extremities.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§1.00B.2.b.(1). To ambulate effectively, one “must be capable of
sustaining reasonable walking pace over a sufficient distance to
be able to carry out activities of daily living.” Id. at
§1.00B.2.b.(2). Here, although evidence supports that plaintiff
occasionally used a cane, see Tr. 852, 870, 871, there is no
medical evidence that plaintiff required a hand-held assistive
device that limited the function of both his upper extremities.7
See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (“[T]he
Commissioner must ask whether, based solely on medical evidence,
Plaintiff testified that he occasionally requires the use of
crutches at home. See Tr. 39, 47. However, none of plaintiff’s
doctors or other treating providers have observed or prescribed
the use of crutches. Plaintiff did not report using crutches in
his October 18, 2012, Activities of Daily Living Report. See Tr.
256. Additionally, the ALJ found plaintiff “not entirely
credible.” Tr. 17.
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claimant has an impairment listed in Appendix 1 of the
regulations.”). There is also substantial evidence of record
that plaintiff is capable of ambulating effectively, as that
term is defined by section 1.00B.2.b.(2). See Tr. 871 (plaintiff
was ambulatory at mental status examination, although he walked
with a cane); Tr. 892 (Plaintiff “walks daily to lower his
cholesterol and would like a knee brace for his other knee for
use when walking.”); Tr. 940, 958 (noting plaintiff’s gait was
“WNL”); Tr. 984 (plaintiff was “fully ambulatory” during
hospital admission for suicidal ideation); Tr. 1058 (plaintiff
reported “walking and exercising daily”); see also Tr. 239-40
(During a face-to-face interview with plaintiff, Agency examiner
observed plaintiff having “[n]o difficulty walking[.]”).8
Next, plaintiff contends that when making a Listing
determination, the ALJ “cannot limit his discussion to a simple
statement that no doctor has ever given a specific opinion about
a listing.” Doc. #16-1 at 13. “An ALJ is required to explain his
Plaintiff contends: “It is noteworthy here that the ALJ used
the fact that the plaintiff attempts to walk on a daily basis
against him, despite the fact that he did so for health reasons
and needed two braces to do so.” Doc. #16-1 at 13. The reasons
why plaintiff walked on a daily basis are irrelevant to the fact
that he was capable of consistently walking. Additionally, knee
braces are not “assistive devices” which limit the use of
plaintiff’s upper extremities.
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determination that a claimant failed to meet or equal the
listings where the claimant’s symptoms as described by the
medical evidence appear to match those described in the
listings.’” Yeomas v. Colvin, No. 13CV6276(MWP), 2015 WL
1021796, at *17 (W.D.N.Y. Mar. 10, 2015) (internal quotation
marks omitted) (quoting Rockwood v. Astrue, 614 F. Supp. 2d 252,
273 (N.D.N.Y. 2009)). “Although ... an ALJ should set forth a
sufficient rationale in support of his decision to find or not
to find a listed impairment, the absence of an express rationale
for an ALJ’s conclusions does not prevent [the Court] from
upholding them so long as [the Court is] able to look to other
portions of the ALJ’s decision and to clearly credible evidence
in finding that his determination was supported by substantial
evidence.” Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112
(2d Cir. 2010) (citation and internal quotation marks omitted);
see also Berry, 675 F.2d at 468 (affirming ALJ’s decision at
step three even though he did not articulate a rationale “since
portions of the ALJ’s decision and the evidence before him
indicate that his conclusion was supported by substantial
evidence”); Ryan v. Astrue, 5 F. Supp. 3d 493, 507–08 (S.D.N.Y.
2014) (“An ALJ’s unexplained conclusion [at] step three of the
analysis may be upheld where other portions of the decision and
other ‘clearly credible evidence’ demonstrate that the
~ 19 ~
conclusion is supported by substantial evidence.” (collecting
Here, the Court is able to look to other portions of the
ALJ’s decision to conclude that his step three finding is
supported by substantial evidence. See, e.g., Tr. 17-18
(discussion of plaintiff’s activities of daily living, history
of knee pain and other complaints of pain). “Accordingly,
because this is not a case in which we would be unable to fathom
the ALJ’s rationale in relation to evidence in the record, there
is no need for us to remand this case to the ALJ for
clarification.” Salmini, 371 F. App’x at 113.
Alleged Mischaracterization of the Record
In connection with his step three argument, plaintiff also
contends that the ALJ “typically mischaracterizes the evidence
in order to minimize the plaintiff’s problems.” Doc. #16-1 at
13. Plaintiff first takes issue with the following excerpt of
the ALJ’s decision:
Physical examinations of the claimant reveal some
tenderness and crepitance in the knees, but are
otherwise largely normal. Typically, he displays full
strength in all muscle groups, and walks with a normal
gait. Moreover, while he testified that he must often
use a cane or crutches to ambulate, the only doctor who
has ever observed him to use these devises is Dr. Akus,
who examined him at this agency’s request. [Exs. 16F at
16-22; 18F; 21F at 3-5; 24F at 2-4, 10-13].
~ 20 ~
Tr. 18; see also Doc. #16-1 at 13 (quoting this excerpt).
Plaintiff contends that an “[e]xamination of the records that
the ALJ cites in this quote clearly shows that they do not
support this statement.” Id. Plaintiff then highlights
statements or findings from each of these records which he
contends contradict the ALJ’s findings. See Doc. #16-1 at 13-14.
However, the records to which the ALJ cites do support the
statement at issue. For example, Exhibit 16F at page 18 states:
“Gait is normal.” Tr. 842. Although plaintiff had significant
crepitus bilaterally, he also exhibited “full range of motion
for both knees[.]” Id. Exhibit 18F, which is the report of Dr.
Akus, states that plaintiff had “[n]egative straight leg
raising” and intact motor strength in the upper and lower
extremities. See Tr. 869-70. Exhibit 21F at pages 3-5 notes that
plaintiff had “mild crepitus bilateral knees,” but otherwise
plaintiff had a normal physical examination. Tr. 891-93; see
also Tr. 1050-51 (Exhibit 24F, at pages 2-4, which is a repeat
of Exhibit 21F at pages 3-5). Finally, Exhibit 24F at pages 1013 notes that plaintiff denied joint pain and had a normal
physical examination. See Tr. 1058-60. Other evidence of record
supports these findings. See, e.g., Tr. 958 (normal gait and
full, or near full, strength in plaintiff’s lower left
~ 21 ~
extremity); Tr. 1012 (normal gait and full range of motion of
Although plaintiff may disagree with the ALJ’s
characterization of the evidence, “[g]enuine conflicts in the
medical evidence are for the Commissioner to resolve.” Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citation omitted).
Further, nothing in these records provides substantial evidence
to support a finding that plaintiff meets Listing 1.02.
Plaintiff next contends:
[T]he ALJ asserts that the plaintiff must be lying about
the fact that he was told he would need knee replacements
because he found no mention in the records that any
doctor had told him that. Doctors do not always note
everything they tell a patient. The plaintiff is
relatively young, and doctors typically tell younger
patients that while they will need knee replacements,
they are not recommended for younger individuals.
Doc. #16-1 at 16. The ALJ’s ruling does not assert that
plaintiff “must be lying,” but rather states that plaintiff
“testified that he has been told that he will require bilateral
knee replacements in the future, but the record contains no real
evidence of this suggestion.” Tr. 18. This is an accurate
recitation of the record and plaintiff fails to identify any
evidence to the contrary. Plaintiff offers only an unsupported
post hoc rationalization for why no recommendation of knee
replacement appears in the medical records. See Dumas v.
Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (The Commissioner
~ 22 ~
“is entitled to rely not only on what the record says, but also
on what it does not say[.]” (citation omitted)).
Plaintiff further contends that the ALJ erred by
discounting plaintiff’s credibility based on a medical record
stating that plaintiff had fallen off of a motorcycle –- showing
that plaintiff is capable of engaging in a range of physical
activities. See Doc. #16-1 at 16; Tr. 18. Plaintiff states: “We
know nothing of the circumstances of this fall, because while
the ALJ felt it was important enough to cast doubt on the
plaintiff’s credibility, he didn’t think it was important enough
to question him about, so he could learn the circumstances.” Id.
Notably, plaintiff’s counsel also had an opportunity to question
the plaintiff at the administrative hearing, and plaintiff’s
counsel did not inquire about the circumstances of this fall.9
“It is well established in the Second Circuit that a claimant
for disability benefits is entitled to a full hearing under the
Secretary’s regulations and in accordance with the beneficent
Plaintiff was provided an opportunity to review his file prior
to the hearing, which contained the relevant medical record. See
Tr. 28 (list of exhibits before the ALJ, which reflects Exhibit
22F containing the medical record at issue reflected at Tr.
1010); see also 172-73 (July 11, 2014, Hearing Notice: “You May
Submit More evidence and Review Your File”); See also 20 C.F.R.
§§404.929, 416.1499 (“At the hearing, you may ... examine the
evidence used in making the determination or decision under
review, and present and question witnesses.”).
~ 23 ~
purposes of the Act.” Losco v. Heckler, 604 F. Supp. 1014, 1019
(S.D.N.Y. 1985) (collecting cases). At such hearings, “the ALJ
is under the general duty affirmatively to develop the record
and to ensure that all the necessary and relevant information is
produced.” Id. (collecting cases). A review of the
administrative hearing transcript reveals that the ALJ complied
with his duty to develop the record and afford plaintiff a full
and fair hearing. See Tr. 31-59. The ALJ’s failure to question
plaintiff about one medical record out of hundreds does not
support a conclusion that plaintiff was deprived of a full and
fair hearing. Accordingly, the Court finds this argument to be
Therefore, the Court finds no error in the ALJ’s step three
Findings as to Pain
Plaintiff next contends that the ALJ erroneously failed to
find that the plaintiff’s chronic pain was a severe impairment
The ALJ did not base his entire credibility assessment of
plaintiff on this one record. The ALJ properly followed the twostep process prescribed by the Regulations to assess plaintiff’s
credibility. See 20 C.F.R. §§404.1529, 416.929; see also Tr. 1619. The ALJ also appropriately considered the other factors set
forth in 20 C.F.R. sections 404.1529(c) and 416.929(c) to assess
plaintiff’s credibility. See Skillman v. Astrue, No. 08CV6481,
2010 WL 2541279, at *6 (W.D.N.Y. June 18, 2010); see also Tr.
~ 24 ~
“despite the fact that the record amply supports such a
finding.” Doc. #16-1 at 17. Plaintiff notes that although such
an omission can be cured at steps four and five of the
sequential evaluation, there is no indication that plaintiff’s
pain was factored into the RFC with respect to plaintiff’s
ability to maintain concentration, persistence or pace. See id.
at 17-18. Defendant responds that plaintiff has failed to
establish chronic pain to be a medically determinable
impairment. See Doc. #18 at 8-9. In reply, plaintiff contends
that regardless of whether or not plaintiff has been diagnosed
with a specific ailment, it is still “incumbent upon the ALJ to
discuss the claimant’s undoubted pain and the limitations that
it imposed.” Doc. #19 at 2.
The Court construes plaintiff’s brief as making two
separate arguments related to pain. First, that the ALJ erred at
step two by failing to find plaintiff’s chronic pain to be a
severe impairment; and second, that the ALJ failed to adequately
consider plaintiff’s pain in formulating the RFC as to
plaintiff’s non-exertional limitations. The Court addresses each
argument in turn.
1. Step Two
At step two, the ALJ is required to determine the severity
of the plaintiff’s impairments. See 20 C.F.R.
~ 25 ~
§§404.1520(a)(4)(ii), 416.920(a)(4)(ii); see also id. at (c). At
this step, the plaintiff carries the burden of establishing that
he is disabled, and must provide the evidence necessary to make
determinations as to his disability. See 20 C.F.R.
§§404.1512(a), 416.912(a). An impairment is “severe” if it
significantly limits an individual’s ability to perform basic
work activities. See Social Security Ruling 96–3p, 1996 WL
374181, at *1 (S.S.A. July 2, 1996). An impairment is “not
severe” that constitutes only a slight abnormality having a
minimal effect on an individual’s ability to perform basic work
activities. See id.
Plaintiff fails to point to any evidence of record
supporting his assertion that he suffers from chronic pain
amounting to a severe impairment. Even if it were error for the
ALJ to omit plaintiff’s “chronic pain” as a severe impairment at
step two, any such error would be harmless. If the ALJ finds any
impairment is severe, “the question whether the ALJ
characterized any other alleged impairment as severe or not
severe is of little consequence.” Jones-Reid v. Astrue, 934 F.
Supp. 2d 381, 402 (D. Conn. 2012) (quoting Pompa v. Comm’r of
Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003)), aff’d, 515 F.
App’x 32 (2d Cir. 2013). “Under the regulations, once the ALJ
determines that a claimant has at least one severe impairment,
~ 26 ~
the ALJ must consider all impairments, severe and non-severe, in
the remaining steps.” Pompa, 73 F. App’x at 803 (citing 20
C.F.R. §404.1545(e)). Thus, as long as the ALJ considers all
impairments at later stages of the analysis, failure to find a
particular condition “severe” at step two, even if erroneous,
constitutes harmless error. See Reices-Colon v. Astrue, 523 F.
App’x 796, 798 (2d Cir. 2013) (“Because [non-severe] conditions
were considered during the subsequent steps, any error was
harmless.”); Rivera v. Colvin, 592 F. App’x 32, 33 (2d Cir.
2015) (“[E]ven assuming that the ALJ erred at step two, this
error was harmless, as the ALJ considered both [claimant’s]
severe and non-severe impairments as he worked through the later
Here, the ALJ found several severe impairments and
proceeded with the sequential evaluation, during which all
impairments, severe and non-severe, were considered. As will be
discussed further below, the ALJ also considered the allegations
of plaintiff’s pain throughout his decision. Thus, for the
reasons stated, the Court finds no reversible error at step two
of the sequential evaluation.
2. Consideration of Plaintiff’s Pain
Plaintiff also appears to contend that the ALJ did not
adequately consider plaintiff’s claims of pain in determining
~ 27 ~
the RFC because “there is no indication that [the limiting
effects of pain] were [factored into the RFC], at least with
respect to the plaintiff’s ability to maintain concentration,
persistence or pace.” Doc. #16-1 at 17-18. Defendant does not
respond to this contention, instead focusing on the step two
argument addressed above. See Doc. #18 at 8-9.
The regulations set forth how the Agency evaluates a
claimant’s symptoms, including pain:
When the medical signs or laboratory findings show that
you have a medically determinable impairment(s) that
could reasonably be expected to produce your symptoms,
such as pain, we must then evaluate the intensity and
persistence of your symptoms so that we can determine
how your symptoms limit your capacity for work. In
evaluating the intensity and persistence of your
symptoms, we consider all of the available evidence,
including your history, the signs and laboratory
findings, and statements from you, your treating or
nontreating source, or other persons about how your
symptoms affect you. We also consider the medical
opinions of your treating source and other medical
opinions as explained in §404.1527.
20 C.F.R. §§404.1529(c)(1), 416.929(c)(1).11 The ALJ’s decision
indicates that he considered plaintiff’s complaints of pain.
20 C.F.R. sections 404.1529 and 416.929 were amended effective
March 27, 2017. Throughout this decision, the Court applies and
references the versions of these Regulations that were in effect
at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F.
App’x 801, 805 n.2 (2d Cir. 2012) (applying and referencing
version of regulation in effect when ALJ adjudicated plaintiff’s
claim); see also Alvarez v. Comm’r of Soc. Sec., No.
14CV3542(MKB), 2015 WL 5657389, at *11 n.26 (E.D.N.Y. Sept. 23,
2015) (“[T]he Court considers the ALJ’s decision in light of the
~ 28 ~
Specifically, at step four of the sequential evaluation, the ALJ
considered plaintiff’s subjective testimony concerning his pain,
and its alleged resulting limitations. See Tr. 16. Notably,
plaintiff did not testify that his pain affects his
concentration, persistence or pace. See id. (“Because of his
pain, he has trouble sitting, walking, bending, stooping, and
climbing stairs[.]”). Nor did plaintiff’s counsel attempt to
elicit any such testimony. See generally Tr. 31-50
(administrative hearing transcript). The ALJ next considered
plaintiff’s medical records and explicitly noted plaintiff’s
complaints of knee pain and physical examinations indicating
pain. See Tr. 17. The ALJ ultimately concluded that plaintiff’s
“pain and other symptoms associated with [plaintiff’s] bilateral
knee impairments limit him to work at the sedentary level,
prevent him from operating foot controls, and affect his ability
to perform postural activities.” Tr. 17.
Plaintiff points to no evidence suggesting that his pain
negatively impacted his concentration, persistence or pace, and
the record does not support such a finding. Plaintiff’s mental
status examinations were consistently normal and the reports
regulation in effect at the time of the decision.” (citing
Lowry, 474 F. App’x at 805 n.2)).
~ 29 ~
noted that plaintiff “attends to tasks normally.” Tr. 876; see
also Tr. 879, 882, 884, 886, 888, 1027, 1030, 1033, 1037, 1040,
1042, 1046. On only one of these thirteen visits to his
psychiatrist did plaintiff indicate he was having “some pain
issues and had been prescribed a medication for it by his pcp.”
Tr. 1027. Plaintiff never complained that his pain was
interfering with his concentration, persistence or pace. The
Court further notes the many records reflecting that plaintiff’s
pain level at rest was a “0/10”, and from a “2-5/10” when
walking or climbing stairs. See Tr. 942, 944, 946, 948, 950,
952, 954, 956, 958, 961. The ALJ limited plaintiff to sedentary
work, and further limited his postural activities. Given the
record, there is no reason to believe plaintiff would experience
pain that would significantly impact his concentration,
persistence or pace, as long as his work was limited as
described in the RFC.
Although “the subjective element of pain is an important
factor to be considered in determining disability[,]” Mimms v.
Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (citation omitted), an
ALJ is not “required to credit [plaintiff’s] testimony about the
severity of her pain and the functional limitations it caused.”
Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir. 2008). “The ALJ
has discretion to evaluate the credibility of a claimant and to
~ 30 ~
arrive at an independent judgment, in light of medical findings
and other evidence, regarding the true extent of the pain
alleged by the claimant.” Marcus v. Califano, 615 F.2d 23, 27
(2d Cir. 1979); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir.
1999). This was precisely the evaluation performed by the ALJ
here. See Tr. 17-18.
Accordingly, the Court finds no error in the ALJ’s
consideration of plaintiff’s pain.
Assessment of Plaintiff’s Mental Limitations
Last, plaintiff contends: “The ALJ’s analysis ... is faulty
as to all functional areas, but this discussion will focus on
concentration, persistence and pace.” Doc. #16-1 at 18.
Defendant responds that the ALJ’s finding of a mild limitation
in the domain of concentration, persistence and pace is
supported by substantial evidence. See generally Doc. #18 at 911.
At step three, the ALJ found plaintiff to have “mild
difficulties” in concentration, persistence or pace. Tr. 15. In
support of this finding, the ALJ stated:
[Plaintiff] has indicated that he can pay attention for
just a few minutes at a time. During a February 2013
psychological evaluation performed at this agency’s
request, he struggled to perform some tasks designed to
assess attention, concentration, and memory, but he was
able to complete others without difficulty, and his
treating psychiatrist routinely fails to note any
deficits in these areas on examination. Furthermore, he
~ 31 ~
is able to prepare meals, shop, and drive, which all
require him to sustain a good degree of attention and
concentration [Hearing Testimony; Exs. 3E; 19F; 20F;
22F; 23F]. For these reasons he has a mild limitation in
concentration, persistence or pace.
Tr. 15; see also Tr. 18 (discussion of plaintiff’s mental
impairments).12 Plaintiff essentially argues that the ALJ’s RFC
determination is not supported by substantial evidence because
his findings with respect to plaintiff’s concentration,
persistence and pace are not supported by substantial evidence.
See Tr. 16-1 at 18.
Plaintiff first contends that the findings of the
consultative examiner, Penelope Consentino, undermine the ALJ’s
findings because Dr. Consentino “felt the plaintiff’s
concentration abilities were more than moderately impaired[,]”
and this finding “was based on actual testing.” Doc. #16-1 at
18. Following the administration of several cognitive tests, Dr.
Consentino assessed plaintiff with “[o]verall cognitive
abilities likely ... in the low average range[.]” Tr. 872.
Attention and concentration specifically were also found to be
Later in the step three determination, the ALJ stated that “the
following residual functional capacity assessment reflects the
degree of limitation the undersigned has found in the ‘paragraph
B’ mental function analysis.” Tr. 16. A claimant’s RFC is “the
most [he] can still do despite [his] limitations.” 20 C.F.R.
~ 32 ~
in the “low average range[.]” Id. Although plaintiff
characterizes these findings as reflecting that his
concentration is “more than moderately impaired,” this is not an
accurate characterization of Dr. Consentino’s report, which
found plaintiff in the “low average range[.]” Tr. 872 (emphasis
added). In any event, the ALJ discounted this opinion as it was
“inconsistent with the medical evidence[,]” including the
records of plaintiff’s “treating psychiatrist [who] has never
observed any deficits in these areas[.]” Tr. 20.
The ALJ’s conclusion is supported by substantial evidence
of record -- most notably the treatment records of plaintiff’s
treating psychiatrist, which consistently noted normal mental
status examinations and that plaintiff “attends to tasks
normally.” Tr. 876; see also Tr. 879, 882, 884, 886, 888, 1027,
1030, 1033, 1037, 1040, 1042, 1046; Tr. 239 (Disability Report
observing that plaintiff had no difficulty concentrating); Tr.
966 (mental status following March 23, 2011, discharge: “His
recent and remote memory is fair. Judgment fair. Insight fair.
He appeared to be of average intellect.”). “In making a
substantial evidence evaluation, a consulting physician’s
opinions or report should be given limited weight because they
are often brief, are generally performed without benefit or
review of the claimant’s medical history and, at best, only give
~ 33 ~
a glimpse of the claimant on a single day.” Harrington v.
Colvin, No. 6:13CV01230(MAD), 2015 WL 1275337, at *7 (N.D.N.Y.
Mar. 19, 2015) (citation and internal quotation marks omitted)).
Accordingly, the Court finds no error in the ALJ’s providing the
opinion of Dr. Consentino limited weight.13
Plaintiff next contends that “the other evidence upon which
the ALJ made his finding is not at all probative.” Doc. #16-1 at
18. Specifically, plaintiff states that his ability to watch
television, shop one time per month, and drive for five minutes
at a time are not reliable evidence of his ability to
concentrate. See id. at 18-19; see also Doc. #19 at 4 (“Almost
none of the activities to which the ALJ alludes have any
rational connection to the ability to concentrate, or if they
do, the extent to which the claimant engages in them cannot be
said to be substantial evidence of his capabilities one way or
Plaintiff reported that from the time he wakes up until the
time he goes to bed, he takes his medication, watches television
and reads. See Tr. 250; see also 254. Plaintiff also indicated
Although the ALJ provided “good reasons” for giving Dr.
Consentino’s opinion limited weight, see Tr. 19-20, “an ALJ is
not required to provide ‘good reasons’ for not crediting a
consulting doctor’s opinion[.]” Harrington, 2015 WL 1275337, at
*7 (citation omitted).
~ 34 ~
that he makes himself “TV Dinners” on a daily basis, Tr. 252,
and that he shops in stores once a month for food. See Tr. 254.
Plaintiff also stated that he “sometimes” drives. Tr. 253.
The Court agrees with plaintiff that his ability to shop
once per month or drive for five minutes at a time is not
necessarily indicative of his ability to concentrate. However,
plaintiff’s ability to read and watch TV, apparently for the
entirety of the day, see Tr. 250, does suggest that plaintiff
maintains a good ability to concentrate. This is particularly
true where, as here, plaintiff represented there was “hardly
any” change in these activities since August 1, 2008 (his
originally alleged onset date). In August 2008, plaintiff was
still working as a mechanic, a job which requires good
concentration and attention. See Tr. 36 (plaintiff’s testimony
that he worked as a mechanic until August 2008); Tr. 258
(plaintiff’s work history report reflecting he worked in auto
repair from November 2007 to December 2008); Tr. 50 (VE
testimony that plaintiff’s prior work was classified as
automobile repair mechanic, 620.261-010, SVP-7).14 Although
plaintiff’s current daily activities alone might not support the
This is considered a skilled job. See Starzynski v. Colvin, No.
1:15CV00940(MAT), 2016 WL 6956404, at *2 (W.D.N.Y. Nov. 29,
2016) (SVP 7 occupations are “skilled.”).
~ 35 ~
ALJ’s findings as to plaintiff’s ability to concentrate, this
information coupled with the records of plaintiff’s treating
psychiatrist provide the substantial evidence necessary to
uphold the ALJ’s findings.
Ultimately, plaintiff’s argument rests on his alternative
view of the evidence. Plaintiff concedes that “[t]hat there may
be evidence in the record that supports the ALJ’s conclusion,
but that conclusion is undermined by the non-evidence he prefers
to rely upon.” Doc. #16-1 at 19. But the question for the Court
is not whether there is substantial evidence to support
plaintiff’s view, but rather, “whether substantial evidence
supports the ALJ’s decision.” Bonet, 523 F. App’x at 59
(citations omitted). Substantial evidence supports the ALJ’s
findings as to plaintiff’s concentration, persistence and pace,
and therefore, the Court finds no error.
For the reasons set forth herein, the defendant’s Motion
for an Order Affirming the Decision of the Commissioner [Doc.
#18] is GRANTED, and plaintiff’s Motion for Order Reversing the
Decision of the Commissioner [Doc. #16] is DENIED.
This is not a recommended ruling. The parties consented to
proceed before a United States Magistrate Judge on September 27,
~ 36 ~
2016 [Doc. #14], with any appeal to be made directly to the
Court of Appeals. See Fed. R. Civ. P. 73(b)-(c).
SO ORDERED at New Haven, Connecticut, this 28th day of June,
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
~ 37 ~
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