Cardenas v. Commissioner of Social Security
RULING. For the reasons set forth in the attached Ruling, plaintiff's 26 MOTION to Reverse the Decision of the Commissioner is DENIED, and defendant's 28 MOTION to Affirm the Decision of the Commissioner is GRANTED. Signed by Judge Sarah A. L. Merriam on 8/23/2017. (Kaczmarek, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
Civ. No. 3:16CV01216(SALM)
August 23, 2017
RULING ON CROSS MOTIONS
Plaintiff Cecelia Cardenas (“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 her application for
Disability Insurance Benefits (“DIB”) under the Act. Plaintiff
has moved to reverse the decision of the Commissioner, or in the
alternative, for remand to the Social Security Administration
for a new hearing. [Doc. #26].
For the reasons set forth below, plaintiff’s Motion for
Order Reversing the Decision of the Commissioner [Doc. #26] is
DENIED, and defendant’s Motion for an Order Affirming the
Decision of the Commissioner [Doc. #28] is GRANTED.
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Plaintiff filed an application for DIB on March 28, 2013,
alleging disability beginning January 1, 2008. See Certified
Transcript of the Administrative Record, compiled on September
12, 2016, (hereinafter “Tr.”) 168-174. At the administrative
hearing, plaintiff amended her alleged disability onset date to
March 28, 2012. See Tr. 56. Plaintiff’s application was denied
initially on June 5, 2013, see Tr. 128-31, and upon
reconsideration on July 3, 2013. See Tr. 139-47.
On July 30, 2014, plaintiff, represented by Attorney Kerin
Woods, appeared and testified through an interpreter at a
hearing before Administrative Law Judge (“ALJ”) Deirdre Horton.
See Tr. 52-81. On September 17, 2014, the ALJ issued an
unfavorable decision. See Tr. 15-31. On July 1, 2016, the
Appeals Council denied plaintiff’s request for review, thereby
making the ALJ’s September 17, 2014, decision the final decision
of the Commissioner. See Tr. 1-9. 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, or in the alternative,
With her motion, plaintiff filed a Stipulation of Facts. See
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to remand for a new hearing. [Doc. #26]. On appeal, plaintiff
The ALJ improperly assessed the medical evidence of
The ALJ erred at step two of the sequential evaluation;
The ALJ erred in assessing plaintiff’s residual
functional capacity (“RFC”), and the ALJ’s RFC
determination is not supported by substantial evidence;
The ALJ erred in relying exclusively on the MedicalVocational Guidelines (the “Grids”) without obtaining
vocational expert testimony; and
The ALJ’s credibility determination is not supported by
See Doc. #26-1 at 1-2. As set forth below, the Court finds that
the ALJ did not err as contended by plaintiff, and that the
ALJ’s determination is supported by substantial evidence.
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
~ 3 ~
omitted). Substantial evidence is evidence that a reasonable
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).
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, a plaintiff must demonstrate that he or
she 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.
~ 6 ~
§423(d)(2)(A); 20 C.F.R. §§404.1520(c) (requiring that the
impairment “significantly limit ... physical or mental ability
to do basic work activities” to be considered “severe”).
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §§404.1520. 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
proof as to the first four steps, while the Secretary
must prove the final one.
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“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) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003));
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per
curiam)). The 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).
“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
broadly construed and liberally applied.’” Id. (quoting Haberman
v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)).
~ 8 ~
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. 31. At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity during the period from
the amended alleged onset date of March 28, 2012, through
September 30, 2012, the date of last insured. See Tr. 23. At
step two, the ALJ found that plaintiff had the severe
impairments of “degenerative disc disease, mild lumbar and
cervical; obesity; and fibromyalgia.” Tr. 23. The ALJ determined
that plaintiff’s thyroid disorder, carpal tunnel syndrome,
intermittent numbness in her hands, and affective disorder were
non-severe impairments. See id. at 24.
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
any of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P,
App. 1. See Tr. 25-26. The ALJ specifically considered Listings
1.00 (musculoskeletal system); 1.04 (disorders of the spine);
1.02 (major dysfunction of a joint), 14.09 (inflammatory
arthritis); and 12.00 (adult mental disorders). See Tr. 25-26.
Before moving on to step four, the ALJ found plaintiff had the
RFC to perform the full range of light work as defined in 20
C.F.R. §404.1567(b). See Tr. 26.
~ 9 ~
At step four, the ALJ concluded that plaintiff was not
capable of performing her past relevant work as a cleaner. See
Tr. 30. At step five, after considering plaintiff’s age,
education, work experience and RFC, and after consulting the
Medical-Vocational Guidelines, found at 20 C.F.R. Part 404,
Subpart P, Appendix 2, the ALJ found that there existed jobs in
significant numbers in the national economy that plaintiff could
perform. See Tr. 30-31.
Plaintiff raises five arguments in support of reversal or
remand. The Court will address each argument in turn.
Assessment of the Medical Evidence of Record
Plaintiff takes issue with the ALJ’s assessment of the
medical evidence of record. Specifically, plaintiff contends
that in classifying plaintiff’s degenerative disc disease as
“mild,” the ALJ failed to consider objective medical evidence,
treatment records, and plaintiff’s own reports of pain. See Doc.
#26-1 at 6-8. Plaintiff also argues that the ALJ erred by
rejecting a portion of the consultative examiner’s opinion, and
by substituting her own opinion for the consultative examiner’s
opinion. See id. at 8-9.
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Degenerative Disc Disease
Plaintiff contends that the ALJ erred in classifying
plaintiff’s degenerative disc disease as “mild.” Doc. #26-1 at
6. In so doing, plaintiff argues, the ALJ failed to consider:
(1) changes observed in a January 2014 MRI report; (2) the 2014
treatment records of Dr. Kanishka Rajput; and (3) reports of
plaintiff’s pain. See id. at 6-7. Defendant responds that the
ALJ’s decision does indicate that she considered Dr. Rajput’s
treatment records, and the January 2014 MRI is beyond the
relevant time period for plaintiff’s DIB application. See Doc.
#28-1 at 6-7. Defendant further contends that the ALJ properly
considered, and discounted, plaintiff’s allegations of pain. See
id. at 8.
The ALJ’s decision reflects that she properly assessed the
medical evidence of record regarding plaintiff’s degenerative
disc disease. As the ALJ noted, the relevant timeframe for this
DIB application is from the amended alleged onset date of March
28, 2012, through the date of last insured, September 30, 2012.
See Behling v. Comm’r of Soc. Sec., 369 F. App’x 292, 294 (2d
Cir. 2010) (stating that to be entitled to DIB, plaintiff “is
required to demonstrate that she was disabled as of the date on
which she was last insured” (citing 42 U.S.C. §423(a)(1)(A))).
While plaintiff alleges that the MRI from January 2014 showed
~ 11 ~
new impairments, this evidence is one year and four months
beyond the date plaintiff was last insured, and is therefore
outside the relevant timeframe for plaintiff’s DIB claim.2 The
records of Dr. Rajput also fall outside the pertinent timeframe
and are therefore not relevant to the inquiry of whether
plaintiff was disabled on or before the date she was last
insured. See Shook v. Comm’r of Soc. Sec., No. 1:12CV185(TJM),
2013 WL 1213123, at *7 (N.D.N.Y. Jan. 25, 2013) (determining
that evidence after the date of last insured was not relevant,
as the “narrow inquiry here is whether the Commissioner’s
conclusion with respect to the nature and extent of Plaintiff’s
impairment during the relevant time period was supported by such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion” (quotation marks and citation
omitted)), report and recommendation adopted, No. 1:12CV185,
2013 WL 1222008 (N.D.N.Y. Mar. 25, 2013).
In support of her claim that this evidence is relevant,
plaintiff asserts that the January 8, 2014, MRI was performed
“within four month[s] of the date of onset.” Doc. #26-1 at 6.
Plaintiff also contends, several paragraphs later, that this
same MRI was performed “within four months of the date last
insured.” Id. at 7. Both assertions are incorrect. The January
8, 2014, MRI was conducted one year and four months after the
date plaintiff was last insured, and almost two years after the
alleged date of onset. See Tr. 407-10; see also Doc. #27 at 9
(stipulation that MRI was performed on January 8, 2014).
~ 12 ~
Nevertheless, the ALJ’s decision clearly reflects that she
did consider this medical evidence from 2014. The ALJ stated:
“The claimant’s MRI from January 2014 showed evidence of
multilevel spondylosis; however, treatment consisted of only
additional epidural injections (Exhibit 8F and 17F). Further,
EMG testing from January 2014 was negative for testing on the
lower right extremity (Exhibit 9F/7-8).” Tr. 28; cf. Doc. #27 at
9.3 Despite plaintiff’s contention, the ALJ’s decision also
reflects that she considered the treatment notes of Dr. Rajput
at the Anesthesia Associates of New London. See Tr. 28 (citing
to Exhibit 17F, and noting the course of treatment plaintiff
underwent following her January 2014 MRI).
Further, the ALJ’s assessment of these records has
substantial support in the record. Plaintiff’s treating
Plaintiff also claims that the ALJ rejected the “significance”
of the January 2014 MRI by erroneously finding that the
treatment following the MRI consisted of “only one additional
epidural injection.” Doc. #26-1 at 7. Plaintiff purports to
quote the ALJ’s decision on this point, and argues that, in
fact, plaintiff had a series of three additional lumbar steroid
injections following the MRI. See id. at 7-8. However, plaintiff
misquotes the ALJ’s decision. As noted above, the ALJ correctly
indicated that plaintiff’s treatment after the MRI “consisted of
only additional epidural injections.” Tr. 28 (citations
omitted). Thus, it was the type of treatment (and perhaps the
lack of more aggressive treatment) rather than the number of
injections that apparently factored into the ALJ’s decision to
discount the results of plaintiff’s 2014 MRI.
~ 13 ~
physician, Dr. Helar Campos, noted in February 2014 that upon
examination, plaintiff exhibited no tenderness in her neck or
cervical spine, and that plaintiff had agreed to injections for
her “chronic back pain.” Tr. 412. Dr. Rajput’s treatment notes
from March 2014 indicate a plan to “schedule the patient for a
trial of lumbar epidural steroid injections since this has
provided her with excellent benefit in the past.” Tr. 503.
Further, while plaintiff contends that she experienced little
improvement following the treatment, in June 2014, plaintiff
reported short-term pain relief from the course of injections
and from Advil. See Tr. 542. Dr. Rajput’s June 2014 examination
revealed improvement in plaintiff’s flexibility; plaintiff
exhibited normal flexion, extension and rotation of the
lumbosacral spine. See Tr. 543. Dr. Rajput prescribed an
additional course of injections to address plaintiff’s
complaints of pain. See Tr. 544. Thus, there is no merit to the
contention that the ALJ erred in her consideration of medical
evidence of record from beyond the date of last insured.
Finally, plaintiff argues that the ALJ failed to fully
assess plaintiff’s “conditions” of joint pain, polyarthralgia,
and “cervical and lumbar conditions,” including her “worsening
symptoms as reported to her primary care physician, Dr. Campos,
when seen in February and April 2012 when she reported chronic
~ 14 ~
back pain.” Doc. #26-1 at 7-8. However, the ALJ’s decision
specifically references plaintiff’s complaints of back and joint
pain in conjunction with the treatment notes of Dr. Campos and
Dr. Sandeep Varma. See Tr. 27. The ALJ noted plaintiff’s
subjective complaints of neck pain, back pain and joint pain in
April and August 2012, but found that “[p]hysical examinations
prior to her date last insured were within normal limits and the
claimant was able to ambulate with a normal gait.” Id.; cf. Doc.
#27 at 7-8. The ALJ’s decision also reflects consideration of
plaintiff’s visits with Dr. Varma and Dr. Edward Hargus, stating
that the treatment plaintiff underwent “provided some relief
from her back symptoms” and treatment notes indicate
“improvement in symptoms” and “a negative rheumatoid factor
test.” Tr. 28 (citations omitted). Thus, the ALJ provided
sufficient support for her assessment of the medical evidence
related to plaintiff’s back impairments.
The ALJ properly considered the medical evidence of record
regarding plaintiff’s degenerative disc disease, and the Court
finds no error on this point.
The Opinion of the Consultative Examiner
Plaintiff contends that the ALJ improperly rejected
consultative examiner Dr. Herbert Reiher’s opinion regarding
plaintiff’s capacity to lift. See Doc. #26-1 at 8-9. In doing
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so, plaintiff argues, the ALJ substituted her own opinion for
that of Dr. Reiher’s, thereby committing reversible error. See
id. Defendant argues that the ALJ properly gave less weight to
this aspect of Dr. Reiher’s opinion, as the opinion is both
internally inconsistent and inconsistent with the medical
evidence of record. See Doc. #28-1 at 3. Defendant also contends
that the ALJ did not substitute her own judgment for Dr.
Reiher’s opinion, but rather relied on the objective findings
and medical evidence of record. See id. at 4-5.
In assessing plaintiff’s RFC, the ALJ considered the
consultative examination performed by Dr. Reiher on May 30,
2013. See Tr. 29; see also Tr. 345-47. After taking plaintiff’s
own history of her functional status, where she noted that she
“can lift about 10 pounds,” Tr. 346, Dr. Reiher opined that
plaintiff “can lift up to 10 pounds without any discomfort[.]”
Tr. 347. The ALJ discounted this portion of Dr. Reiher’s
opinion, assigning it “partial weight,” due to plaintiff’s
“normal examination, which is consistent with the objective
findings prior to the claimant’s date of last insured.” Tr. 30.
The ALJ’s assessment of Dr. Reiher’s opinion is supported
by substantial evidence. As the ALJ noted, Dr. Reiher’s
examination of plaintiff was “essentially normal.” Tr. 29.
During his examination, he noted that plaintiff’s “back and
~ 16 ~
spine are nontender to palpitation;” her “gait normal;” her
“heel-to-toe walking normal;” her “squatting limited due to
discomfort;” and that the “[l]umbar spine forward flexion
achieved was eighty degrees.” Tr. 347. He found that plaintiff’s
legs had “good range of motion” and “[s]upine and sitting
straight leg raising was normal.” Id. Dr. Reiher found “no
objective functional limitations on exam.” He continued:
There was some subjective discomfort and limited motion
with activities such as squatting. I find the patient
can lift up to 10 pounds without any discomfort and there
appears to be no evidence of any limitations in standing,
walking or sitting[.] Also on exam today, there were no
limitations in manipulative skills of the hands.
Id. Thus, as the ALJ noted, Dr. Reiher’s statement that
plaintiff can lift up to ten pounds is a recital of plaintiff’s
self-report, and is not supported by his own examination.
Further, the medical evidence in the record for the
relevant time period does not support a ten pound weight
restriction on plaintiff’s ability to lift. Multiple physical
examinations indicate that plaintiff had full muscle strength in
her extremities. See Tr. 448 (examination on February 13, 2012,
noting “no weakness in strength. ... Strength normal”); Tr. 468
(stating that on April 24, 2012, plaintiff exhibited “5/5”
strength in her upper and lower extremities bilaterally); Tr.
471 (same, on May 17, 2012); Tr. 474 (same, on August 30, 2012);
Tr. 477 (same, on September 13, 2012); Tr. 486 (same, on
~ 17 ~
December 20, 2012, two months after the date last insured). Even
one month prior to the hearing before the ALJ, plaintiff
exhibited “5/5” strength in her upper and lower extremities,
bilaterally. Tr. 528.
It is clear from the ALJ’s decision that she relied on this
evidence in determining that plaintiff is capable of lifting
more than ten pounds. See Tr. 28-30. An “ALJ cannot arbitrarily
substitute [her] own judgment for competent medical opinion.”
McBrayer v. Sec’y of Health and Human Servs., 712 F.2d 795, 799
(2d Cir. 1983). Here, however, the ALJ properly relied on the
medical evidence of record, and substantial evidence supports
the ALJ’s decision to assign Dr. Reiher’s opinion “partial
weight.” Accordingly, the Court finds no error on this point.
Plaintiff next contends that the ALJ erred at step two of
the sequential analysis in finding that plaintiff’s bilateral
hand conditions were non-severe impairments. See Doc. #26-1 at
9-12. Plaintiff argues that such error was not harmless, as it
is “not clear” whether the ALJ considered the effects of these
non-severe impairments in the remainder of the sequential
analysis. Id. at 12. Defendant responds that the ALJ considered
the limitations from all of plaintiff’s impairments; further,
any error at step two would be harmless, as the ALJ found other
~ 18 ~
severe impairments and continued through the sequential
analysis. See Doc. #28-1 at 10-12.
At step two, the ALJ determined that, through the date last
insured, plaintiff suffered from the following severe
impairments: mild lumbar and cervical degenerative disc disease;
obesity; and fibromyalgia. See Tr. 23. The ALJ further found
[t]he record includes evidence of a thyroid disorder,
carpal tunnel syndrome and intermittent numbness in the
hands; however, the conditions did not cause more than
minimal limitations of the claimant’s ability to perform
basic work functions prior to her date last insured.
A step two determination requires the ALJ to determine the
medical severity of the plaintiff’s impairments. See 20 C.F.R.
§404.1520(a)(4)(ii), (c). At this step, the plaintiff carries
the burden of establishing that she is disabled, and must
provide the evidence necessary for the ALJ to make such a
determination. See 20 C.F.R. §404.1512(a). An impairment “is
considered ‘severe’ if it significantly limits an individual’s
physical or mental abilities to do basic work activities[.]”
Social Security Ruling (“SSR”) 96–3p, 1996 WL 374181, at *1
(S.S.A. July 2, 1996). An impairment is “not severe” if it
constitutes only a “slight abnormality (or a combination of
slight abnormalities) that has no more than a minimal effect on
~ 19 ~
the ability to do basic work activities.” Id. (citation
omitted). A condition will not be considered severe solely
because plaintiff has been diagnosed with or treated for a
disease or impairment. See Howard v. Comm’r of Soc. Sec., 203 F.
Supp. 3d 282, 296 (W.D.N.Y. 2016); Taylor v. Astrue, 32 F. Supp.
3d 253, 265 (N.D.N.Y. 2012).
“At step two, if the ALJ finds an 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). This is
because “[u]nder the regulations, once the ALJ determines that a
claimant has at least one severe impairment, 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.
Thus, where the ALJ considers the effects of all
impairments at later stages of the analysis, failure to find
particular conditions “severe” at step two, even if erroneous,
constitutes harmless error. See 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
~ 20 ~
[plaintiff’s] severe and non-severe impairments as he worked
through the later steps.”); Reices-Colon v. Astrue, 523 F. App’x
796, 798 (2d Cir. 2013) (“Because these [non-severe] conditions
were considered during the subsequent steps, any error was
harmless.” (citation omitted)); Stanton v. Astrue, 370 F. App’x
231, 233 n.1 (2d Cir. 2010) (“[W]e would not identify error
warranting remand because the ALJ did identify severe
impairments at step two, so that [plaintiff’s] claim proceeded
through the sequential evaluation process.”).
Here, the ALJ explicitly considered the effects of
plaintiff’s carpal tunnel syndrome and intermittent hand and
finger numbness during the step two analysis. The ALJ found that
“[g]iven the minimal objective findings and lack of ongoing
treatment,” these conditions were non-severe. Tr. 24. The ALJ
determined that these findings were consistent with the opinion
of the consultative examiner and the medical evidence of record.
Further, after finding more than one severe impairment at
step two, the ALJ proceeded with the sequential evaluation,
during which all impairments were considered. Accordingly, even
if the ALJ erred as plaintiff contends, any such error would be
harmless, and would not support a reversal of the Commissioner’s
decision. See Stanton, 370 Fed. App’x at 233 n.1; Rivera, 592 F.
~ 21 ~
App’x at 33. The ALJ considered the nature and extent of
plaintiff’s carpal tunnel and hand symptoms throughout the
sequential evaluation. See Tr. 23-24, 27, 28. The ALJ assessed
plaintiff’s testimony regarding pain in her hands and fingers,
and considered the treatment she had received for carpal tunnel
syndrome and bilateral trigger finger. See Tr. 25. The ALJ’s
decision reflects that she specifically considered Exhibit 4F
(containing treatment records reflecting that plaintiff has
trigger finger in her left second finger; numbness in the
fingers on her left hand; and carpal tunnel in her left hand);
Exhibit 15F (containing multiple treatment notes from October
25, 2011, through December 20, 2012, with only one reference to
a complaint of numbness and tingling in plaintiff’s left hand);
and Exhibit 16F (evaluation and treatment notes for pain in
plaintiff’s hand; trigger finger; and osteoarthritis in
plaintiff’s hands). The ALJ’s opinion further reflects that she
considered “all symptoms,” Tr. 26, and “the claimant’s treatment
history, the objective clinical findings, the claimant’s
subjective complaints, and all of the medical opinions and
evidence of record.” Tr. 30. Thus, the Court concludes that
there is no merit to plaintiff’s contention that “there is no
evidence that the ALJ considered the plaintiff’s bilateral hand
conditions and resulting limitations in fingering and handling
~ 22 ~
in the remaining steps of the sequential process.” Doc. #26-1 at
Accordingly, the Court finds that the ALJ did not err as
contended by plaintiff at step two of the sequential analysis.
Plaintiff argues that the ALJ erred in assessing
plaintiff’s RFC, and that the RFC determination is not supported
by substantial evidence. See Doc. #26-1 at 13.4 Specifically,
plaintiff argues that the ALJ failed to consider plaintiff’s
bilateral hand symptoms and plaintiff’s complaints of pain in
determining that she had the ability to perform the full range
of light work. See id. at 14-16. Defendant argues that the ALJ
appropriately considered the medical evidence when determining
plaintiff’s RFC, and that substantial evidence supports the
ALJ’s RFC determination. See Doc. #28-1 at 3.
A claimant’s RFC is “the most [she] can still do despite
[her] limitations.” 20 C.F.R. §404.1545(a)(1). An ALJ is
“entitled to weigh all of the evidence available to make an RFC
In arguing that the ALJ erred in assessing plaintiff’s RFC,
plaintiff also repeats her prior argument that there is no
medical evidence of record that evinces plaintiff’s ability to
lift up to twenty pounds. See id. at 14. As the Court has
previously rejected this argument, the Court declines to address
it again here.
~ 23 ~
finding that [is] consistent with the record as a whole.” Matta
v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (citation
omitted). “While an ALJ is free to resolve issues of credibility
as to lay testimony or to choose between properly submitted
medical opinions, [s]he is not free to set [her] own expertise
against that of a physician who submitted an opinion to or
testified before [her].” Balsamo v. Chater, 142 F.3d 75, 81 (2d
Cir. 1998) (quotation marks and citation omitted); see also
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (“The ALJ is
not permitted to substitute [her] own expertise or view of the
medical proof for the treating physician’s opinion or for any
competent medical opinion.” (citation omitted)).
Here, the ALJ found that through the date last insured,
plaintiff “had the residual functional capacity to perform the
full range of light work as defined in 20 C.F.R.
[§]404.1567(b).” Tr. 26. The ALJ determined that “[t]he evidence
of record supports no greater limitations than a light residual
functional capacity for the relevant period.” Tr. 29.
The Regulations define “light work” as
lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job
is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full
~ 24 ~
or wide range of light work, you must have the ability
to do substantially all of these activities.
20 C.F.R. §404.1567(b); see also Pardee v. Astrue, 631 F. Supp.
2d 200, 208 n.5 (N.D.N.Y. 2009). In finding plaintiff has the
capacity to perform the full range of light work, the ALJ
considered plaintiff’s subjective complaints and activities of
daily living; the objective medical evidence; plaintiff’s
treatment notes; the opinions of the state reviewing physicians;
and the opinion of the consultative examiner. See Tr. 26-30.
The objective evidence of record prior to the date of last
insured supports the ALJ’s RFC determination. A March 14, 2009,
MRI of plaintiff’s lumbar spine indicated that plaintiff had
“mild degenerative changes. There is no spinal stenosis or
neural foraminal narrowing.” Tr. 441. An MRI report of
plaintiff’s cervical spine, dated April 13, 2009, indicates an
“[e]ssentially normal MRI” with “[m]inimal disc desiccation, and
loss of lordosis which is likely positional in nature.” Tr. 442.
The record also contains multiple treatment notes
indicating normal physical examinations prior to the date of
last insured. See, e.g., Tr. 448 (stating that on February 13,
2012, plaintiff exhibited “no weakness in strength,” “wellpreserved” range of motion, and “strength normal”); Tr. 468
(stating that on April 24, 2012, plaintiff exhibited “5/5”
strength in her upper and lower extremities bilaterally, and
~ 25 ~
upon examination plaintiff is “in no absolute distress”); Tr.
471 (same, on May 17, 2012); Tr. 474 (same, on August 30, 2012);
Tr. 477 (same, on September 13, 2012); Tr. 486 (same, on
December 20, 2012, two months after the date last insured, and
further indicating that plaintiff’s “joint pain appears to be
The ALJ specifically considered the opinions of the nonexamining state agency physicians, and afforded them “some
weight.” See Tr. 29. At the initial review level, Dr. Virginia
Rittner found that plaintiff’s symptoms “did not result in
significant limitations in [plaintiff’s] ability to perform
basic work activities” and that her condition “is not severe
enough to be considered disabling.” Tr. 90. At the
reconsideration level, Dr. Firooz Golkar found that plaintiff
was capable of medium work. See Tr. 100. Dr. Golkar determined
that plaintiff could lift 50 pounds occasionally and 25 pounds
frequently; stand and/or walk and sit for a total of six hours
in an eight hour work day; and had an unlimited ability to lift
and carry. See Tr. 98. Dr. Golkar found that plaintiff could
only occasionally climb ladders, ropes, and scaffolds; and could
frequently climb ramps and stairs; balance; stop; kneel; crouch;
and crawl. See Tr. 98-99. Dr. Golkar found that plaintiff had no
manipulative limitations. See Tr. 99.
~ 26 ~
The consultative examiner, Dr. Reiher, opined that
plaintiff had “no objective functional limitations on exam.” Tr.
347. As discussed above, the ALJ assigned “partial weight” to
this opinion. As the ALJ noted, no physician opined that
plaintiff is unable to work or is required to lie down during
the day, and there is no objective evidence of record that
supports any limitations beyond those the ALJ found. See Tr. 29.
Indeed, in light of the objective medical evidence and upon
“giving maximum credit to the claimant,” the ALJ assigned “less
weight” to state agency reviewing physician Dr. Golkar’s opinion
that plaintiff is capable of performing medium work. Tr. 29; see
also Tr. 97-100. There is substantial evidence in the record
that, prior to the date last insured, plaintiff was able to
perform the full range of light work.
As the Court has already determined, there is no merit to
plaintiff’s claim that the ALJ failed to consider plaintiff’s
hand symptoms in assessing plaintiff’s RFC. The ALJ noted the
limited treatment plaintiff received for these symptoms;
assessed plaintiff’s subjective complaints regarding pain in her
hands and fingers; and observed that there were no objective
findings or reports of physicians that supported limitations
based on plaintiff’s hand symptoms. See Tr. 24, 27-30.
~ 27 ~
Plaintiff argues that her medical records “support a
finding of limitations in both the procedural and manipulative
functions of work, including limitations in handling and
fingering, lifting and carrying, as well as non-exertional
impairments.” Doc. #26-1 at 13. The Court finds no support for
this assertion in the record. Dr. Reiher, the consultative
examiner, specifically opined that plaintiff has “no limitations
in manipulative skills of the hands.” Tr. 347. Dr. Golkar, the
state reviewing physician upon reconsideration, found no
manipulative limitations, and found plaintiff capable of
performing medium work. See Tr. 99-100. Plaintiff testified that
the injections she received for treatment of her trigger finger
helped her, and that her fingers were “looser” at the time of
the hearing. See Tr. 66. Plaintiff’s treatment records indicate
that plaintiff’s numbness in her hands was alleviated by motion
and massage. See Tr. 484. As the ALJ noted, plaintiff responded
well to treatment. See Tr. 24; see also Tr. 403; Tr. 513.
As discussed in more detail below, the ALJ evaluated
plaintiff’s subjective complaints of pain and her activities of
daily living, and found that plaintiff’s subjective complaints
were “not entirely credible.” Tr. 28, 30. The ALJ specifically
found that plaintiff’s “pain appears to be largely subjective
without objective findings to support disability.” Tr. 29. Thus,
~ 28 ~
plaintiff’s argument that the ALJ “failed to consider the effect
of the plaintiff’s pain on her ability to perform a full range
of light work” is without merit. Doc. #26-1 at 15.
Any contention by plaintiff that the ALJ did not consider
plaintiff’s neck and back pain resulting from a “documented
presence of osteoarthritis” and joint pain from polyarthralgia
is unfounded. Id. “A RFC determination must account for
limitations imposed by both severe and nonsevere impairments.”
Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir. 2012)
(citations omitted). Only “medically determinable impairments”
are to be considered in assessing an individual’s functional
limitations that are incorporated into an RFC. Jones-Reid, 934
F. Supp. 2d at 404. Neither osteoarthritis nor polyarthralgia
was found to be a medically determinable impairment at step two.
The ALJ therefore was not required to consider those conditions
in determining plaintiff’s RFC. See SSR 96-8P, 1996 WL 374184,
at *2 (S.S.A. July 2, 1996) (“The Act requires that an
individual’s inability to work must result from the individual’s
physical or mental impairment(s). Therefore, in assessing RFC,
the adjudicator must consider only limitations and restrictions
attributable to medically determinable impairments. It is
incorrect to find that an individual has limitations or
~ 29 ~
restrictions beyond those caused by his or her medical
impairment(s) including any related symptoms, such as pain[.]”).
Finally, plaintiff argues that the ALJ erred by failing to
consider “plaintiff’s inability to communicate in English” in
assessing plaintiff’s RFC. Doc. #26-1 at 16. Plaintiff provides
no authority in support of this position. The Regulations state:
If we find that your residual functional capacity does
not enable you to do any of your past relevant work or
if we use the procedures in §404.1520(h), we will use
the same residual functional capacity assessment when we
decide if you can adjust to any other work. We will look
at your ability to adjust to other work by considering
your residual functional capacity and the vocational
factors of age, education, and work experience, as
appropriate in your case.
20 C.F.R. §404.1560(c)(1). “The term education also includes how
well [a claimant is] able to communicate in English since this
ability is often acquired or improved by education.” 20 C.F.R.
§404.1564(b). Thus, plaintiff’s ability to communicate in
English is a factor considered at step five, in determining what
work, if any, she is capable of performing. See id. at (b)(5).
The ALJ properly considered plaintiff’s inability to communicate
in English at step five in the analysis. See Tr. 30. Thus, the
Court finds no error on this point.
The Court finds the ALJ did not err as contended by
plaintiff in assessing plaintiff’s RFC, and that substantial
~ 30 ~
evidence supports the ALJ’s determination that plaintiff can
perform the full range of light work.
Reliance on Medical-Vocational Guidelines
Plaintiff next argues that the ALJ should have been
required to obtain the testimony of a vocational expert (“VE”),
because the ALJ’s RFC determination should have included nonexertional limitations on plaintiff’s ability to work. See Doc.
#26-1 at 17-18. Plaintiff states that the ALJ failed to consider
plaintiff’s inability to communicate in English, and
“mechanically relied on the Medical Vocational guidelines in
determining that there is other work in the national economy
that plaintiff can perform.” Id. at 18. Defendant responds that
the ALJ appropriately relied on the Grids at step five. At step
five, the ALJ found: “Based on a residual functional capacity
for the full range of light work, the undersigned concludes
that, through the date last insured, considering the claimant’s
age, education, and work experience, a finding of ‘not disabled’
is directed by Medical Vocational Rule 202.16.” Tr. 31.
“In determining whether a claimant is disabled under the
Social Security Act, an ALJ must begin with the Medical–
Vocational Guidelines found in Appendix 2 of 20 C.F.R. Subpart
P. These guidelines, also known as ‘grid rules,’ are a set of
formulae used to determine whether a given claimant is disabled
~ 31 ~
or healthy enough to perform work. The rules take into account
such factors as age, education level, previous work experience,
and physical limitations.” Lugo v. Chater, 932 F. Supp. 497, 501
(S.D.N.Y. 1996) (citation omitted), adhered to on
reconsideration, (Apr. 19, 1996).
An ALJ may rely solely on the Grids unless they do “not
fully account for the claimant’s limitations,” in which case
“the Commissioner must utilize other evidence, such as the
testimony of a vocational expert,” to determine if the claimant
is capable of performing work that is available in significant
numbers in the national economy. Taylor v. Barnhart, 83 F. App’x
347, 350 (2d Cir. 2003) (citation omitted). The ALJ is required
to consult a vocational expert only if “a claimant has
nonexertional limitations that significantly limit the range of
work permitted by his exertional limitations[.]” Zabala v.
Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (emphasis added)
(quotation marks and citation omitted).
Plaintiff argues that the ALJ was required to seek the
testimony of a VE because she had additional non-exertional
limitations not accounted for in the ALJ’s RFC determination.
The Court has already determined that there is substantial
evidence supporting the ALJ’s RFC assessment. Accordingly, the
~ 32 ~
ALJ was not required to seek the testimony of a VE, and the
ALJ’s reliance on the Grids was appropriate.
Plaintiff also argues that the “ALJ failed to consider the
plaintiff’s inability to communicate in English and its effect,
if any, on the erosion of the occupational base at the light
work level.” Doc. #26-1 at 18. Plaintiff does not cite to any
support for this allegation, and the Court finds none. The Grids
specifically account for an individual’s inability to
communicate in English. See 20 C.F.R. Pt. 404, Subpt. P, App. 2,
Rule 202.00(g) (“The capability for light work, which includes
the ability to do sedentary work, represents the capability for
substantial numbers of such jobs. This, in turn, represents
substantial vocational scope for younger individuals (age 18–49)
even if illiterate or unable to communicate in English.”). The
ALJ determined that plaintiff was a “younger individual” on the
date last insured; and that she is not able to communicate in
English. Tr. 30 (citing 20 C.F.R. §404.1563; 20 C.F.R.
§404.1568). The ALJ then determined that Rule 202.16 directed a
finding of not disabled. See Tr. 31; see also 20 C.F.R. Pt. 404,
Subpt. P, App. 2, Rule 202.16. The Court finds no error on this
point. See Nunez v. Colvin, No. 15CV4957(CSP), 2017 WL 684228,
at *18 (S.D.N.Y. Feb. 21, 2017) (“[T]he ALJ found that Plaintiff
could perform a wide range of light work, which rendered her
~ 33 ~
non-disabled under the Grids whether or not she was able to
communicate in English under either Rule 202.16 or 202.20.”
Finally, plaintiff argues that the ALJ erred in her
assessment of plaintiff’s credibility. Specifically, plaintiff
claims that the ALJ failed to fully consider –- and discuss -the factors set forth in 20 C.F.R. §404.1529 and the objective
medical evidence in assessing plaintiff’s credibility. See Doc.
#26-1 at 20. Plaintiff also contends that the ALJ “overstated”
the extent to which plaintiff is able to perform her activities
of daily living. Id. at 21. Defendant counters that the ALJ
correctly assessed plaintiff’s credibility, with support of
substantial evidence. See Doc. #28-1 at 13-14.
The ALJ’s decision states that the plaintiff’s “statements
concerning the intensity, persistence and limiting effects of
[her] symptoms are not entirely credible[.]” Tr. 28. The ALJ
determined that plaintiff’s “allegations that she is incapable
of all work activity is found to be not entirely credible
because of the overall lack of objective evidence prior to her
date last insured.” Tr. 30 (sic). In making this determination
the ALJ pointed to (1) the plaintiff’s activities of daily
living as reported in treatment notes, and (2) the objective
~ 34 ~
medical evidence, as inconsistent with plaintiff’s subjective
allegations of pain. See Tr. 28-29.
“Credibility findings of an ALJ are entitled to great
deference and therefore can be reversed only if they are
patently unreasonable.” Pietrunti v. Dir., Office of Workers’
Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (quotation
marks and citation omitted). The regulations set forth a twostep process that the ALJ must follow in evaluating plaintiff’s
subjective complaints. First, the ALJ must determine whether the
record demonstrates that the plaintiff possesses a “medically
determinable impairment that could reasonably be expected to
produce [plaintiff’s] symptoms, such as pain.” 20 C.F.R.
§404.1529(b). Second, the ALJ must assess the credibility of the
plaintiff’s complaints regarding “the intensity and persistence
of [plaintiff’s] symptoms” to “determine how [the] symptoms
limit [plaintiff’s] capacity for work.” 20 C.F.R. §404.1529(c).
The ALJ should consider factors relevant to plaintiff’s
symptoms, such as pain, including: (1) the claimant’s daily
activities; (2) the “location, duration, frequency, and
intensity” of the claimant’s pain or other symptoms; (3) any
precipitating or aggravating factors; (4) the “type, dosage,
effectiveness, and side effects of any medication” taken by
claimant to alleviate the pain; (5) “treatment, other than
~ 35 ~
medication,” that plaintiff has received for relief of pain or
other symptoms; (6) any other measures plaintiff has used to
relieve symptoms; and (7) other factors concerning plaintiff’s
“functional limitations and restrictions due to pain or other
symptoms.” Id. The ALJ must consider all evidence in the case
record. See SSR 96–7p, 1996 WL 374186, at *5 (S.S.A. July 2,
1996). The credibility finding “must contain specific reasons
... supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.” Id. at
At the first step of this two-step analysis, the ALJ
concluded that “the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms[.]” Tr. 28. At the second step, the ALJ found that “the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible[.]”
Id. The ALJ’s credibility analysis is well-supported by the
record. The ALJ properly relied on the full record, including
the objective medical evidence, plaintiff’s treatment notes, the
course of treatment plaintiff has received for her impairments,
and plaintiff’s activities of daily living.
~ 36 ~
In assessing plaintiff’s symptoms, the ALJ considered the
objective medical evidence, and found that it did not support
plaintiff’s allegations of disability. See Tr. 28. The ALJ
stated that plaintiff’s records do not show a “significant
limited range of motion, muscle spasms, muscle atrophy, motor
weakness, sensory loss, or reflex abnormalities associated with
intense and disabling pain.” Id. The ALJ specifically considered
diagnostic tests which showed “only evidence of mild
degenerative changes in the lumbar spine;” an MRI of plaintiff’s
neck that was “normal;” negative EMG testing of the lower right
extremity; no remarkable neurological deficits; the ability to
ambulate effectively; and a negative rheumatoid factor test. Id.
The ALJ noted that any abnormal findings in clinical
examinations were “generally limited to tenderness to palpation
and muscle tightness” and observed that plaintiff’s treatment
notes were “essentially normal.” Id. The ALJ also considered
that plaintiff “underwent only conservative pain management
therapy” and that surgery was not performed during the relevant
time period. Id. The ALJ observed that although plaintiff
complained of persistent pain, treatment provided plaintiff some
relief without side effects. See id.
After considering the medical evidence, the ALJ reviewed
plaintiff’s self-reported daily activities and determined that
~ 37 ~
they did not support her allegation of disability. See Tr. 28.
Specifically, the ALJ considered plaintiff’s ability to function
independently during the day; to prepare simple meals for her
family; to maintain her personal care; and to perform light
household chores. See Tr. 28-29. The ALJ determined that “[t]he
ability to perform these daily activities is contrary to the
allegation of complete and total disability.” Tr. 29.
Plaintiff argues that “the ALJ overstated the extent to
which the plaintiff is able to perform these activities.” Doc.
#26-1 at 21. “[A]n ALJ must assess subjective evidence in light
of objective medical facts and diagnoses.” Williams, 859 F.2d at
261. Plaintiff’s activities of daily living reflect that
plaintiff cared for her child when her husband was working. See
Tr. 203. Initially she reported no problems with personal care,
see Tr. 204, but approximately three months later claimed
additional limitations. See Tr. 231.5 Plaintiff reported that she
Plaintiff completed two questionnaires detailing her activities
of daily living. The first is dated April 7, 2013, see Tr. 203211, and the second is dated July 2, 2013. See Tr. 230-237. The
second questionnaire reflects increased limitations in
plaintiff’s daily activities. For example, in the first
questionnaire, plaintiff reported that she was able to go out
alone. See Tr. 206. However, several months later, plaintiff
reported that she could not go out alone because “depression and
anxiety kick in.” Tr. 233.
~ 38 ~
shops for groceries, handles money, reads daily, and goes to
church. See Tr. 207-208. She stated that she could walk for
thirty minutes before tiring, but required her husband’s
assistance with housework, and had difficulty lifting items. See
Tr. 209, 231, 235. Plaintiff also reported to the consultative
examiner that she can “dress herself and feed herself and can
stand at one time for about one hour and walk on level ground
for one to two blocks and is okay with sitting. ... She can
perform activities at home including sweeping, mopping,
vacuuming, cooking and dishwashing.” Tr. 345-46.
The Court finds that the ALJ properly considered the
factors listed in 20 C.F.R. §404.1529(c). The ALJ explicitly
considered plaintiff’s activities of daily living and treatment
plan, along with the objective medical evidence, and considered
plaintiff’s allegations of pain. See Tr. 27.
Where the ALJ has identified a number of specific reasons
for her credibility determination, which are supported by
substantial evidence in the record, the Court will not secondguess her decision. See Stanton, 370 F. App’x at 234. “It is the
function of the Secretary, not [the court], to resolve
evidentiary conflicts and to appraise the credibility of
witnesses, including the claimant.” Carroll, 705 F.2d at 642;
see also Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)
~ 39 ~
(“The ALJ has discretion to evaluate the credibility of a
claimant and to arrive at an independent judgment, in light of
medical findings and other evidence, regarding the true extent
of the pain alleged by the claimant.”). Substantial evidence
supports the ALJ’s findings as to plaintiff’s credibility, 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.
#28] is GRANTED, and plaintiff’s Motion for Order Reversing the
Decision of the Commissioner and/or Remanding the Matter for
Hearing [Doc. #26] is DENIED.
SO ORDERED at New Haven, Connecticut, this 23rd day of
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
~ 40 ~
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