O'Brien v. Astrue

Filing 19

ORDER granting Defendant's 12 Motion for Judgment on the Pleadings; and denying Plaintiff's 14 Motion to Remand -- For the reasons set forth in the ATTACHED WRITTEN OPINION AND ORDER, the Commissioner's motion for judgment on the pleadings is granted. Plaintiff's cross-motion for judgment on the pleadings is denied. The appeal is dismissed. The Clerk of the Court is directed to enter judgment and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 9/8/2014. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KEVIN JOHN O’BRIEN,
:
:
Plaintiff,
:
:
-against:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
:
Defendant.
:
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DORA L. IRIZARRY, United States District Judge:

OPINION AND ORDER
13-CV-91 (DLI)

On March 8, 2010, Plaintiff Kevin John O’Brien (“Plaintiff”) filed an application for
Social Security disability insurance benefits (“DIB”) under the Social Security Act (the “Act”),
alleging disability beginning on October 12, 2002 through June 30, 2009, the date last insured.
(See Certified Administrative Record (“R.”), Dkt. Entry No. 17 at 10.) On July 16, 2010, his
application was denied and he timely requested a hearing. (R. 130-131.) On October 12, 2011,
Plaintiff appeared with counsel, and testified at a hearing via video teleconference before
Administrative Law Judge Hilton R. Miller (the “ALJ”). (R. 97-114.) By a decision dated
October 25, 2011, the ALJ concluded Plaintiff was not disabled within the meaning of the Act.
(R. 7-19.) On November 7, 2012, the ALJ’s decision became the Commissioner’s final decision
when the Appeals Council denied Plaintiff’s request for review. (R. 1-6.)
Plaintiff filed the instant appeal seeking judicial review of the denial of benefits, pursuant
to 42 U.S.C. § 405(g). (See Complaint (“Compl.”), Dkt. Entry No. 1.) The Commissioner
moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure, seeking affirmation of the denial of benefits. (See Mem. of Law in Supp. of Def.’s
Mot. for J. on the Pleadings (“Def. Mem.”), Dkt. Entry No. 13.) Plaintiff cross-moved for

judgment on the pleadings, seeking reversal of the Commissioner’s decision, or alternatively,
remand. (See Mem. in Opposition to Def.’s Mot. for J. on the Pleadings and in Supp. of Pl.’s
Cross Mot. (“Pl. Mem.”), Dkt. Entry No. 15.)

For the reasons set forth below, the

Commissioner’s motion for judgment on the pleadings is granted and Plaintiff’s motion for
judgment on the pleadings is denied. The instant action is dismissed.
BACKGROUND
A.

Non-Medical and Self-Reported Evidence
1. Work History
Plaintiff was born in 1953. 1 (R. 170.)

He completed three years of college, and

graduated from the Fire Academy in 1981. (R. 195.) Plaintiff worked as a firefighter for the
New York City Fire Department (“FDNY”) for twenty-one years, retiring in October 2002. (R.
100-101.) On March 23, 2010, while his DIB application was pending, Plaintiff submitted a
Work Activity Report for a Self-Employed Person. (R. 186-189.) Plaintiff indicated that, after
retiring from the FDNY, he worked as a convention consultant for firefighter trainings that
occurred twice a year. (Id.) For each convention, he served as an organizer and worked
approximately six days.

(R. 186-187.)

His annual gross salary for the conventions was

$1,800.00 and he reported earnings for the years 2007 through 2009.
2. Medical History
Plaintiff was a first responder to the World Trade Center (“WTC”) terrorist attacks on the
morning of September 11, 2001. (R. 13.) Plaintiff alleges that, due to his service at the WTC, he
developed severe respiratory conditions that caused him to stop working as a firefighter. (Id.)
Plaintiff testified that, when he retired from the FDNY in 2002, he “felt fine but as the years
1

Plaintiff was 49 years old on the alleged onset date, October 12, 2002, and 55 on the date last insured, June
30, 2009. As such, Plaintiff was a “younger person” on his alleged onset date and “closely approaching advanced
age” on the date last insured. 20 C.F.R. § 404.1563(c) and (d).

2

went further away from September 11 [he] started developing asthmatic and sinus conditions.”
(R. 13, 101.) He started treatment for his pulmonary conditions in 2004. (R. 103.)
Plaintiff alleges that, due to his conditions, he is unable to engage in any physical
activity. (R. 204.) He is restless at night and sleeps during the day. (Id.) He feels winded and
fatigued, and is unable to assist with household chores. (R. 205, 206.) Plaintiff has a driver’s
license and is able to drive his car for short distances. (Id.) He shops for light items for short
periods of time. (R. 207.) Plaintiff is able to walk for ten minutes, but then must rest for three
minutes. (R. 209.) During the day, Plaintiff prepares simple meals, takes his medications,
attends doctor’s visits, but mostly remains at home resting. (R. 102, 204-205.)
On February 18, 2010, the Medical Board of the FDNY (“FDNY Medical Board”)
granted Plaintiff’s application for Accident Disability pursuant to the WTC Bill for a lower
respiratory condition. (R. 310.) The FDNY Medical Board noted that Plaintiff’s condition at the
time (moderate chronic obstructive pulmonary disease (“COPD”) with a bronchospastic
component) would preclude full firefighting, but that he could engage in a “suitable occupation.”
(Id.) Subsequently, on March 24, 2010, Plaintiff’s retirement status was modified to reflect his
award of Accident Disability Retirement. (R. 161.)
Plaintiff testified that he suffers from weekly asthma attacks that last fifteen to twenty
minutes. (R. 102.) These attacks remind him of trying to breathe “at a fire and [his] mask
running out.” (R. 103.) He also suffers from “minor attacks” during which he cannot stop
coughing. (R. 102.) Plaintiff reported that the physicians who examined him tried “every
combination” of inhalers, and that “some of them worked at certain times and some of them just
don’t.” (R. 103.) Plaintiff testified that humidity, temperature changes, air conditioning, dust,
and certain smells and perfumes aggravate his lung condition. (R. 102.)

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B.

Medical Evidence
1.

Medical Evidence from the Relevant Period (October 12, 2002 to June 30,
2009)

On June 27, 2004, Dr. David Prezant from the FDNY Bureau of Health Services clinic
examined Plaintiff. (R. 320, 334.) Plaintiff reported that he spent nearly everyday at the WTC
site until the site closed. (Id.) Plaintiff was an ex-smoker, and had started smoking again on
September 11, 2001. (Id.) Plaintiff smoked about one pack of cigarettes every one to two days.
(Id.) Plaintiff complained of a new dry, daily cough, gastroesophageal reflux disease (“GERD”),
new significant sinus congestion and nasal drip, and wheezing in the morning hours. He also
mentioned that he coughed blood during the first month he worked at the WTC site. (Id.)
Plaintiff denied taking any medications at the time. His lungs were clear and his throat and heart
were normal. (Id.) Plaintiff had lost weight due to diet and increased work. (Id.) Dr. Prezant’s
impressions were a sinus disorder and tracheitis.

(Id.)

He diagnosed Plaintiff with an

unspecified respiratory disease and tracheitis. (Id.) Dr. Prezant recommended that Plaintiff
attend a tobacco cessation program and prescribed him Rhinocort, Atrovent, and Doxycycline.
(Id.)
On July 2, 2004, Plaintiff underwent a pulmonary-function test, which showed that
Plaintiff’s forced expiratory volume (“FEV1”) was 74% of the predicted value, and that
Plaintiff’s lung age was 82. (R. 290.) The results were interpreted as low vital capacity possibly
due to restriction of lung volumes. (Id.) His electrocardiogram (“EKG”) results were normal.
(R. 292.) Plaintiff was diagnosed with skin cancer on this date. (R. 319, 333.) The doctor made
no findings as to Plaintiff’s work status. (R. 319.)
On July 21, 2004, Plaintiff underwent a Methacholine bronchoprovocation study, which
showed a reduced FEV1/forced vital capacity (“FVC”) ratio, and reduced mid-expiratory
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airflows. (R. 379.) The impression was obstructive airway dysfunction, with evidence for
bronchial hyper-reactivity during Methacholine bronchoprovocation. (Id.)
On July 25, 2004, Plaintiff was diagnosed with asthma/reactive airways dysfunction
syndrome (“RADS”), and sinusitis. (R. 318, 332.) The FDNY Medical Board physician who
examined Plaintiff counseled him to quit smoking, but Plaintiff decided to “[hold] off” until his
wife’s medical condition improved.

(Id.)

The physician prescribed Rhinocort, Benadryl,

Advair, and Albuterol for attacks. (Id.) He discontinued Atrovent nasal spray. (Id.) The doctor
noted that Plaintiff’s “Current Duty Status” was full duty. (R. 318.)
On August, 29, 2004, Dr. Prezant examined Plaintiff. (R. 317, 331.) Plaintiff’s asthma
was stable except during periods of humidity. (Id.) Dr. Prezant found that Plaintiff’s lungs were
clear, but that nasal congestion was still present despite Plaintiff’s use of Rhinocort and
Benadryl. (Id.) Dr. Prezant discontinued Benadryl, continued Advair, Albuterol, Rhinocort, and
restarted Atrovent. (Id.) Dr. Prezant noted that Plaintiff’s “Current Duty Status” was full duty.
(R. 317.) Dr. Prezant examined Plaintiff again on November 14, 2004, and noted that Plaintiff’s
asthma was stable, his lungs clear, his sinus congestion persistent, and that he was attending a
smoking cessation program. (R. 316, 330.) He noted that Plaintiff’s “Current Duty Status” was
full duty. (R. 316.)
On April 30, 2006, Plaintiff underwent a pulmonary-functioning test, which showed that
his FEV1 was at 82% of the predicted value. (R. 352.) These results were interpreted as normal
spirometry. (Id.) An EKG on the same date showed an ectopic atrial rhythm, which was
borderline abnormal. (R. 354.) An x-ray of Plaintiff’s chest was normal. (R. 347.) Plaintiff’s
lab testing showed higher than normal blood glucose, cholesterol, and LDL cholesterol levels.
(R. 349.) Plaintiff’s urinalysis showed mild abnormalities. (Id.) Lab testing conducted on April

5

6, 2007 showed higher than normal blood levels of microalbumin, LDL cholesterol, cholesterol,
hemoglobin A1C, and glucose. (R. 249-251.)
On September 18, 2007, Dr. Jonathan Okun examined Plaintiff. (R. 252-255.) Dr. Okun
noted that Plaintiff was diagnosed with diabetes mellitus in February 2007. (R. 254.) An eye
examination revealed an established, stable, cortical cataract, which was asymptomatic and did
not threaten Plaintiff’s vision. (R. 255.)
An FDNY WTC Monitoring and Treatment Visit Summary Form dated September 20,
2007, listed asthma and sinusitis as Plaintiff’s WTC-related diagnoses, and indicated that
Plaintiff’s treating doctor was Dr. Michael Weiden. (R. 343.) Dr. Weiden examined Plaintiff on
the same date.

(R. 315, 329.)

Plaintiff reported cough, trouble breathing, and sputum

production. (Id.) Dr. Weiden diagnosed Plaintiff with asthma/RADS and sinusitis. (Id.) He
ordered a Computed Tomography Scan (“CT-scan”) of Plaintiff’s chest and a pulmonaryfunction test. (Id.) He prescribed Zithromicin and Combivent. (R. 315, 329, 343.)
On September 27, 2007, Plaintiff underwent a CT-scan of his chest, which showed mild
diffuse bronchial wall thickening. (R. 340-341, 385-386.) Minimal mosaic attenuation was
present in both lungs on expiration, which was most likely within physiologic limits. (R. 340,
285.) Very mild focal paraseptal emphysema was present at the right lung apex, and there was
evidence of prior granulomatous disease, including a calcified nodule in the right upper lobe and
calcified right paratracheal and hilar lymph nodes. (Id.) Focal atelectasis/scarring was present
within the right upper lobe and inferior lingula, without evidence of endobronchial lesion. (R.
341, 386.) The exam showed a fatty liver and normal heart size. (R. 340-341, 385-386.) On the
same date, Plaintiff underwent a pulmonary-function test, which showed vital capacity and total
lung capacity within normal limits, increased residual volume suggesting air trapping, reduction

6

in airflow at all lung volumes, and minimal changes in expiratory airflow function following the
administration of a bronchodilator.

(R. 374.)

The impression was obstructive airway

dysfunction with air trapping, and no response to bronchodilator at the time of testing. (Id.)
On September 29, 2007, Plaintiff visited Dr. Weiden. (R. 314, 328.) Dr. Weiden
diagnosed Plaintiff with asthma/RADS and sinusitis, and started Plaintiff on Advair and Flonase.
(Id.) Dr. Weiden authorized a CT-scan of Plaintiff’s sinuses. (Id.) On October 4, 2007 Plaintiff
underwent a CT-scan of his sinuses, which showed nasal septal deviation with scattered, minimal
to mild inflammatory disease in the paranasal sinuses and their respective drainage pathways.
(R. 338-339, 387-388, 419-420.) Variations in the configurations of the drainage pathways
could predispose Plaintiff to recurrent episodes of inflammatory disease. (R. 339, 388, 420.)
On October 25, 2007, Dr. John Dodaro, a physician with the FDNY, examined Plaintiff.
(R. 263-265.) Plaintiff complained of tinnitus, chronic sinus infection, allergies, and earache.
(R. 263). Plaintiff’s allergy onset was gradual, chronic, and of mild to moderate severity. (Id.)
Plaintiff described sinus pressure, aggravated by weather change. (Id.) Medications relieved
Plaintiff’s allergies. (Id.) At the time, Plaintiff also experienced postnasal drip, and complained
of asthma, pharyngitis, eczema, dizziness, headache, hives, hoarseness, infections, earache,
reflux, cough, sinus pain, and reddened eyes. (Id.) Plaintiff’s bilateral earache was gradual,
constant, and mild to moderate in severity, including pressure, ear popping, and congestion. (Id.)
Plaintiff complained of “bleeding from ear, clear drainage, decreased appetite, dizziness, fever,
purulent drainage, [and] decreased hearing and cough.” (Id.) An ear examination revealed
cerumen impaction in both ears. (R. 264.) Hearing was decreased in the left ear, and grossly
intact in the right ear. (Id.)

7

During the same visit, a nose examination revealed nasal congestion, while throat and
mouth examinations revealed change in voice and hoarseness. (R. 263-264.) A respiratory
examination showed no cough, no audible wheeze, and regular respiration. (R. 264.) An
endoscopy showed a septum that was deviated to the left, mucosa with a crusty discharge, and
inferior turbinates that revealed moderate hypertrophy. (R. 265.) A laryngoscopy showed
normal results. (Id.) Dr. Dodaro diagnosed Plaintiff with chronic allergic rhinitis, chronic
sinusitis, chronic hypertrophy of the nasal turbinate, chronic impacted cerumen, chronic
dysfunction of the eaustachian tube, chronic deviated nasal septum, chronic laryngitis, and
chronic voice disturbance. (Id.) He prescribed Astelin and Medrol and ordered a follow up visit
in three months. (Id.) Dr. Dodaro noted that Plaintiff was a tobacco user. (R. 263.)
On November 19, 2007, Plaintiff saw Dr. Okun regarding his COPD and diabetes. (R.
256.) Dr. Okun noted that an FDNY physician examined Plaintiff for sinus problems and that
Plaintiff was a tobacco user. (Id.) At this visit, Dr. Okun addressed uncontrolled allergic rhinitis
and diabetes mellitus, the last of which, he noted, had improved.

(Id.)

A respiratory

examination revealed no cough, no audible wheeze, and regular respirations. (Id.) Bilateral
coarse breath sounds were present in both lungs on auscultation. (R. 257.) Plaintiff’s eyes, nose,
mouth, and throat were normal. (Id.) Dr. Okun assessed Plaintiff’s uncontrolled allergic rhinitis,
improved diabetes mellitus, hyperlipidemia, proteinuria, and cough.

(Id.) With respect to

Plaintiff’s emphysema, Dr. Okun recommended a follow up visit with the FDNY physician.
(Id.)

Dr. Okun increased the dosages of Flonase and Metformin, prescribed Simvastatin,

Chantix, Combivent, Advair, Glucophage, Nasonex, and replaced Diovan with Vasotec. (R.
257-258.)

8

An FDNY WTC Monitoring and Treatment Visit Summary Form dated February 19,
2008 listed sinusitis and asthma as Plaintiff’s WTC-related diagnoses. (R. 356.) Plaintiff also
had hypertension, diabetes, and a high lipid profile. (Id.) Lab testing showed higher than normal
blood glucose, cholesterol, and LDL cholesterol levels. (R. 278.) Diet and exercise were
recommended. (R. 356.) An EKG showed a heart sinus rhythm within normal limits. (R. 279.)
Pulmonary-function testing showed an FEV1 at 85% of the predicted value, interpreted as
normal spirometry. (R. 280, 362.)
On September 8, 2008, Plaintiff returned for a visit with Dr. Dodaro. (R. 260-262.)
Plaintiff complained of tinnitus, chronic sinus infection, allergies, and earache. (R. 260.) Dr.
Dodaro noted that tinnitus was constant, causing severe annoyance and associated symptoms of
hearing loss, difficulty concentrating, fluctuating frequencies, vertigo, and insomnia.
Plaintiff’s allergies were chronic and of mild to moderate severity.

(Id.)

(Id.)

Plaintiff also

experienced postnasal drip, and complained of asthma, pharyngitis, eczema, dizziness, headache,
hives, hoarseness, infections, ear pain, reflux, cough, sinus pain, and reddened eyes. (Id.) On
examination, Dr. Dodaro observed cerumen impaction and hearing sensorineural loss in both
ears. (R. 261.) Dr. Dodaro performed a complete removal of cerumen impaction in both ears.
(R. 262.) A respiratory exam showed no cough, no audible wheeze, regular respirations, and a
normal respiratory effort. (R. 261-262.) A nose examination showed a deviated septum and
moderate hypertrophy of the right and left turbinates. (R. 261.) A mouth examination showed
poor dentition. (Id.) Dr. Dodaro diagnosed Plaintiff with chronic sensorineural hearing loss,
chronic tinnitus, chronic impacted cerumen, chronic hypertrophy of the nasal turbinates, and
chronic deviated nasal septum. (R. 262.) He prescribed Veramyst and Medrol, and ordered a
follow up visit in three months. (Id.)

9

On February 20, 2009, Dr. Ann Marchesano, a physician with the FDNY, examined
Plaintiff.

(R. 313, 327.)

Plaintiff was doing well on Advair, but still had sinus disease,

congestion, and a hoarse voice that was worse in the morning. (Id.) Dr. Marchesano prescribed
Astelin to be taken in addition to Rhinocort. (Id.) She recommended a GERD diet, started
Plaintiff on Omeprazole, and authorized a visit to an ear, nose, and throat (“ENT”) specialist.
(Id.) Dr. Marchesano diagnosed Plaintiff with asthma/RADS, sinusitis, and gastroesophagitis.
(Id.) An EKG showed a heart sinus rhythm within normal limits. (R. 273, 414.) A pulmonaryfunction test showed Plaintiff’s FEV1 at 74% of the predicted value, which was interpreted as
normal spirometry. (R. 274, 421.) Lab testing performed on the same date showed mildly
abnormal urinalysis, higher than normal blood glucose levels, and higher than normal lipid
profile. (R. 415.) A chest x-ray yielded normal results. (R. 412.)
On February 24, 2009, Dr. Mark Carney, an ENT allergy specialist, examined Plaintiff.
(R. 342.) Plaintiff reported decreased hearing and ringing in his ear with no pain. (Id.) Plaintiff
attributed his symptoms to his sinus problems.

(Id.)

Plaintiff reported mucous pressure,

increased congestion, rhinitis, dyspnea, and constant sinus infections.

(Id.)

On physical

examination, Plaintiff’s lungs were clear to auscultation. (Id.) Plaintiff’s nose had a deviated
septum. (Id.) Dr. Carney observed hypertrophy of the turbinates, as well as dry mucosa. (Id.)
Plaintiff’s sinuses were within normal limits, but he had excess earwax in his left ear. (Id.)
Plaintiff’s ears were otherwise normal. (Id.) Dr. Carney opined that all of Plaintiff’s chief
complaints were related to his work at the WTC. (Id.) Dr. Carney diagnosed hearing loss,
tinnitus, and chronic rhino/sinusitis. (Id.) He prescribed a saline nasal spray. (Id.) At this visit,
Plaintiff reported that he quit smoking. (Id.)

10

2. Medical Evidence after Plaintiff’s Date Last Insured (June 30, 2009)
On October 14, 2009, Plaintiff visited Dr. Marchesano. (R. 326.) Plaintiff complained of
anxiety with heights and ongoing “sinus issues.” (Id.) Dr. Marchesano noted Plaintiff was still
smoking, and that he was resistant to stopping. (Id.) She recommended smoking cessation and
counseling. (Id.) Dr. Marchesano administered a flu vaccine. (Id.) Dr. Marchesano diagnosed
Plaintiff with asthma/RADS, sinusitis, and deferred a psychological diagnosis. (Id.)
On October 18, 2009, Dr. Prezant examined Plaintiff. (R. 324-325.) Plaintiff reported he
had stopped smoking since April 2009, and that his snoring subsequently had decreased. (R.
324.) Plaintiff complained of a daily cough that produced mucous but no blood (hemptyosis).
(Id.) Chronic sinus drip and congestion caused Plaintiff frontal headaches, which ceased when
he cleared his nose. (Id.) Exposure to irritants and weather changes caused Plaintiff’s cough and
sinus drip to recur. (Id.) Plaintiff experienced no shortness of breath while resting or golfing,
but climbing one flight of stairs caused difficulty breathing. (Id.) Dr. Prezant reported that
Plaintiff’s GERD had subsided, and that he had lost forty pounds. (Id.) Plaintiff rarely used
Albuterol, which only helped with attacks in the morning. (Id.) Plaintiff stopped taking Advair
three weeks prior to his visit with Dr. Prezant. (Id.) On examination, Plaintiff’s lungs were
clear, his throat was red, and his left sinuses were tender. (Id.) A pulmonary-function test report
showed Plaintiff’s FEV1 and FVC values respectively at 79% and 84% of the predicted values.
(R. 271, 380). These results were interpreted as normal spirometry. (Id.) Plaintiff was taking
medication for diabetes, high cholesterol, and for his liver. (R. 324.) Dr. Prezant continued
Plaintiff’s medications and authorized a full breath test and CT-scans of Plaintiff’s chest, nose,
lung, and sinuses. (R. 324-325.) Dr. Prezant diagnosed Plaintiff with sinusitis and deferred a

11

psychological diagnosis. (R. 325.) He noted that Plaintiff was considering reapplying for WTC
disability. (R. 324.)
On October 29, 2009, Plaintiff underwent a pulmonary-function test. (R. 283-286, 367370.) The results showed Plaintiff’s vital capacity was near the lower normal limit, primarily
due to reduction of expiratory reserve volume. (R. 368.) Functional residual capacity and
residual volume were increased indicating hyperinflation and air trapping. (Id.) A spirometry
demonstrated reduction in FEV1 with reduced FEV1/FVC ratio and improvement in expiratory
airflow function following application of a bronchodilator. (Id.) The impression was obstructive
airway dysfunction with no significant changes in lung function compared to a prior test dated
September 27, 2007. (Id.) The test administrator noted that Plaintiff provided excellent effort
and cooperation, but that his uncontrollable cough “prevented achievement of expiratory plateau
during almost all maneuvers.” (R. 286, 370.)
On October 29, 2009, Plaintiff underwent a CT-scan of his chest that revealed
granulomatous disease, airway inflammation, and emphysema. (R. 302-304, 381-382, 384, 408410, 429-430.) The scan revealed an ovoid nodule in the left lower lobe measuring eight
millimeters. (R. 304, 382, 410, 428.) The nodule may have been post-inflamatory, but a followup study was advised to confirm the nodule’s stability, unless other studies were available for
comparison. (Id.) The CT-scan also showed cysts on the right kidney and liver, fatty infiltration
of the liver, and coronary vascular calcifications. (R. 302, 304, 382, 384, 408, 410, 428, 430.)
The report recommended a CT-scan of Plaintiff’s chest, a cardiac stress test with imaging, and a
kidney ultrasound. (R. 302, 384, 408, 430.) A subsequent CT-scan of Plaintiff’s sinuses showed
nasal septal deviation, minimal mucosal disease in scattered paranasal sinuses, and sinonasal

12

anatomic variants. (Id.) The report revealed mild sinusitis, and it was recommended that
Plaintiff consult an ENT specialist if symptoms persisted. (R. 306, 404.)
On December 6, 2009, Plaintiff underwent a pulmonary-function test, which showed an
FEV1 at 74% of the predicted value. (R. 270, 392.) This result was interpreted as low vital
capacity possibly due to restriction of lung volumes. (Id.) Plaintiff saw Dr. Prezant for an office
visit on the same day. (R. 323.) Plaintiff had cut down smoking to four cigarettes per day, and
was “ready to use [an] inhaler.”

(Id.)

Plaintiff did not respond to Advair, and reported

“occasional irritant reactions to dust, perfumes, etc.” (Id.) Plaintiff’s sinus congestion had
improved with sinus saline, but did not respond to Rhinocort or Atrovent. (Id.) On examination,
Plaintiff’s lungs were clear, and there was mild tenderness in his sinuses. (Id.) Plaintiff’s
condition was “stable and improved.” (Id.) Dr. Prezant discontinued Advair, and continued
Combivent, nasal saline, Astelin, and Pulmicort.

(Id.)

He diagnosed Plaintiff with

asthma/RADS and sinusitis, deferred a psychological diagnosis, and noted that a cardiovascular
evaluation was pending. (Id.)
On December 11, 2009, Plaintiff underwent a sonogram of his kidneys, which showed
normal-sized kidneys and no shadowing stone or hydronephrosis. (R. 299-300, 371-372, 393,
430-431.) There was a dominant unilocular right renal cyst, which showed a calcium deposit or
mural calcification. (R. 300, 372, 393, 431.) There was no obvious retroperitoneal node on the
right side, though it was noted that a CT-scan evaluation “may be more sensitive for additional
retroperitoneal findings.” (Id.) It was recommended that Plaintiff visit his personal doctor. (R.
299, 371.) A maximal exercise treadmill test was negative. (R. 394-402.) Myocardial perfusion
results were normal. (R. 395, 433.)

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On February 3, 2010, Plaintiff underwent a CT-scan of his chest. (R. 287-289, 363-365.)
Compared to a previous CT-scan, this CT-scan report showed that the left lower lobe/fissural
nodule was stable. (R. 289, 365.) No new or enlarged lung nodule was found. (Id.) The CTscan revealed granulomatous disease, airway inflammation, and hepatic steatosis. (Id.)
On February 23, 2010, Dr. Pauis examined Plaintiff through the FDNY WTC Monitoring
and Treatment program. (R. 427.) Plaintiff’s lab testing showed higher than normal blood
glucose, cholesterol, and LDL cholesterol levels. (R. 423-426, 266-269.) An EKG showed a
heart rhythm within normal limits. (R. 437.) A pulmonary-function test showed an FEV1 at
76% of the expected value, which was interpreted as normal spirometry. (R. 438.) Dr. Pauis
recommended a colonoscopy, and Plaintiff was advised to follow up with Dr. Prezant. (R. 427.)
On July 8, 2010, a lay analyst with the state agency medical consultant’s office
completed a Physical Residual Functional Capacity (“RFC”) Assessment concluding that,
through June 30, 2009, Plaintiff retained the ability to perform medium work. (R. 441-446.)
The unsigned assessment found Plaintiff able to lift or carry fifty pounds occasionally, lift or
carry 25 pounds frequently, stand or walk for a total of six hours in an eight-hour workday, and
no exertional limitation in pushing or pulling. (R. 442.) These findings were based on Plaintiff’s
diabetes, COPD, spirometry, and cardiac testing.

(Id.)

The assessment noted Plaintiff’s

environmental restrictions of avoiding “even moderate exposure to fumes, odors, dust, gases,
poor ventilation, etc.” (R. 444.) The assessment indicated no hearing loss, and that cardiac
testing and spirometry tests revealed “mild restriction.” (Id.) The lay analyst concluded that
Plaintiff’s allegations were partially credible and that no objective medical evidence
substantiated Plaintiff’s allegations of severe reduction of activities of daily living. (R. 444-445.)

14

On September 17, 2011, Dr. Weiden completed a form entitled, “Treating Doctor’s
Patient Functional Assessment To Do Sedentary Work.” (R. 157-160.) Notably, the findings in
this report span the period October 12, 2002 to September 17, 2011. (R. 157.) Dr. Weiden
specified that Plaintiff could stand or walk for less than two hours during an eight-hour day, and
could sit for less than two hours in an eight-hour day. (Id.) Dr. Weiden indicated that, if
required to do so, Plaintiff could lift or carry more than five pounds, but less than ten pounds, for
no more than two-thirds of an eight-hour workday.

(Id.)

Plaintiff’s symptoms included

shortness of breath, chest tightness, wheezing, rhonchi (low-pitched, rattling sounds in the
lungs), episodic acute asthma, episodic acute bronchitis, fatigue, and coughing.

(R. 158.)

Plaintiff suffered from acute asthma attacks precipitated by factors including upper respiratory
infection, allergens, exercise, irritants, cold air and change in weather.

(Id.) Dr. Weiden

characterized the nature and severity of Plaintiff’s attacks as “severe frequent,” occurring three to
six times monthly, and incapacitating Plaintiff for two to four days monthly. (Id.) Dr. Weiden
noted that Plaintiff would need frequent breaks during the workday, and require an average of
two or more sick days monthly. (Id.) He recommended Plaintiff avoid all exposure to extreme
cold, extreme heat, high humidity, wetness, cigarette smoke, perfumes, soldering fluxes,
solvents/cleaners, fumes, odors, gases, dust, and chemicals. (R. 159.) Dr. Weiden indicated that
Plaintiff’s symptoms were severe enough to interfere with the attention and concentration
necessary to perform even simple work tasks at least ninety percent of a workday, and that
Plaintiff was incapable of tolerating “low stress” jobs. (Id.)
C.

Vocational Expert (“VE”) Testimony
At the hearing, the VE testified that Plaintiff’s past work as a firefighter was a skilled job,

requiring a very heavy exertional level. (R. 105.) The ALJ requested the VE to consider a

15

hypothetical individual of Plaintiff’s age, education, work experience, and the following
restrictions:
lift and/or carry up to fifty pounds occasionally, 25 pounds frequently, stand
and/or walk with normal breaks for a total of about six hours in an eight hour
work day, sit with normal breaks for a total of about six hours in an eight hour
work day, [with the environmental restrictions of] avoid[ing] even moderate
exposure to dust, fumes, odors, gases, poor ventilation and other respiratory
irritants, and [who needed to work in environments which do] not involve hazards
such as machinery and heights.
(R. 105-106.) The VE testified that there would be no jobs available at the medium level for
such individual. (R. 106.) The critical factor was the Plaintiff’s need to avoid even “moderate
exposure” to fumes, odors, and irritants. (Id.)
Having originally testified that no jobs at the medium level were available for a
hypothetical individual with the qualifications listed above, the VE later testified that such a
hypothetical individual would be able to work as a bagger in a supermarket and as a hand packer.
(R. 108.) The VE testified that the number of jobs available as a bagger in the national and local
economies was 175,000 and 7,000, respectively. (Id.) However, in calculating the number of
jobs available as a hand packer, the VE reduced the totals by fifty percent, to account for
Plaintiff’s environmental limitations. In doing so, the VE testified that there were 40,000 such
jobs in the national economy and 1,500 in the local economy. (Id.)
When questioned by Plaintiff’s attorney, the VE testified that the fifty percent reduction
in the number of jobs available constituted a judgment call, based on the VE’s work experience
of over 30 years. (R. 109-110.) The VE testified that none of those jobs would be available to a
hypothetical individual who was required to avoid all exposure to heat, cold, humidity, wetness,
perfume, solvents, fumes, dust, and chemicals. (R. 108.) Additionally, since the maximum
allowable absentee rate per month is one day for entry-level unskilled work, none of those jobs

16

would be available to a hypothetical individual who was absent due to illness three to six sick
days per month. (R. 109.)
DISCUSSION
A.

Standard of Review
Unsuccessful claimants for disability benefits under the Act may bring an action in

federal district court seeking judicial review of the Commissioner’s denial of their benefits
“within sixty days after the mailing . . . of notice of such decision or within such further time as
the Commissioner of Social Security may allow.”

42 U.S.C. § 405(g).

A district court,

reviewing the final determination of the Commissioner, must determine whether the correct legal
standards were applied and whether substantial evidence supports the decision. See Schaal v.
Apfel, 134 F. 3d 496, 501 (2d Cir. 1998). The former determination requires the court to ask
whether “the claimant has had a full hearing under the [Commissioner’s] regulations and in
accordance with the beneficent purposes of the Act.” Echevarria v. Sec’y of Health & Human
Servs., 685 F. 2d 751, 755 (2d Cir. 1982) (internal citations omitted). The latter determination
requires the court to ask whether the decision is supported by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
The district court is empowered “to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A remand
by the court for further proceedings is appropriate when “the Commissioner has failed to provide
a full and fair hearing, to make explicit findings, or to have correctly applied the . . . regulations.”
Manago v. Barnhart, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004).

17

A remand to the

Commissioner is also appropriate “[w]here there are gaps in the administrative record.” Rosa v.
Callahan, 168 F. 3d 72, 83 (2d Cir. 1999) (quoting Sobolewski v. Apfel, 985 F. Supp. 300, 314
(E.D.N.Y. 1997)). ALJs, unlike judges, have a duty to “affirmatively develop the record in light
of the essentially non-adversarial nature of the benefits proceedings.” Tejada v. Apfel, 167 F. 3d
770, 774 (2d Cir. 1999) (quotations omitted).
B.

Disability Claims
To receive disability benefits, claimants must be disabled within the meaning of the Act.

See 42 U.S.C. §§ 423(a), (d). Claimants establish disability status by demonstrating an “inability
to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . 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). The claimant bears the initial burden of proof
on disability status and is required to demonstrate disability status by presenting medical signs
and findings, established by medically acceptable clinical or laboratory diagnostic techniques, as
well as any other evidence the Commissioner may require. 42 U.S.C. § 423(d)(5)(A); see also
Carroll v. Sec’y of Health & Human Servs., 705 F. 2d 638, 642 (2d Cir. 1983).
ALJs must adhere to a five-step inquiry to determine whether a claimant is disabled under
the Social Security Act as set forth in 20 C.F.R. § 404.1520. If at any step the ALJ finds that the
claimant is either disabled or not disabled, the inquiry ends there. First, the claimant is not
disabled if he or she is working and performing “substantial gainful activity.” 20 C.F.R. §
404.1520(b).

Second, the ALJ considers whether the claimant has a “severe impairment,”

without reference to age, education and work experience. Impairments are “severe” when they
significantly limit a claimant’s physical or mental ability to conduct basic work activities. 20
C.F.R. § 404.1520(c). Third, the ALJ will find the claimant disabled if his or her impairment

18

meets or equals an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1 (“the Listings”).
See 20 C.F.R. § 404.1520(d).
If the claimant does not have a listed impairment, the ALJ makes a finding about the
claimant’s RFC in steps four and five. 20 C.F.R. § 404.1520(e). In the fourth step, the claimant
is not disabled if he or she is able to perform past relevant work. 20 C.F.R. § 404.1520(f).
Finally, in the fifth step, the ALJ determines whether the claimant could adjust to other work
existing in the national economy, considering factors such as age, education, and work
experience. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(g).
C.

The ALJ’s Decision
On October 25, 2011, the ALJ issued a decision denying Plaintiff’s claims. (R. 7-19.)

The ALJ followed the five-step procedure in making his determination that Plaintiff had the RFC
to perform medium work as defined in 20 C.F.R. § 404.1567(c), with some additional
environmental restrictions, and, therefore, was not disabled. (R. 13, 16.) At the first step, the
ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 12,
2002, the alleged onset date, through June 20, 2009, the date last insured. (R. 12.) At the second
step, the ALJ found the following severe impairments: COPD and diabetes mellitus. (Id.) At
the third step, the ALJ concluded that Plaintiff’s impairments, in combination or individually, did
not meet or equal an impairment included in the Listings. (R. 12-13.)
At the fourth step, the ALJ found that Plaintiff could perform medium work as defined in
20 CFR § 404.1567(c), except that he must avoid moderate exposure to fumes, dust, odors,
gases, and other respiratory irritants as well as hazards, machinery, and heights. (R. 13-14.) The
ALJ found that Plaintiff was unable to perform his past relevant work as a firefighter, which was
a heavy exertion position, because Plaintiff was limited to medium exertion work. (R. 14.)

19

The ALJ found that Plaintiff could “lift [twenty-five] pounds frequently and [fifty]
pounds occasionally; stand, and/or walk for [six] hours in an eight-hour [work]day, [and] sit for
six hours in an eight-hour [work]day.” (Id.) As to Dr. Weiden’s opinion that Plaintiff was
capable of doing less than a full range of sedentary work, the ALJ found that “the substantial
medical evidence of record contradicts this opinion” and, thus, assigned his opinion “little
weight.”

(Id.)

The ALJ found that Plaintiff’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms, but that Plaintiff’s statements concerning
the intensity, persistence, and limiting effects of his symptoms were not credible to the extent
they were inconsistent with the ALJ’s RFC assessment. (Id.)
At the fifth step, “based on the testimony of the vocational expert . . . considering the
claimant’s age, education, work experience, and residual functional capacity” the ALJ found
Plaintiff was “capable of making a successful adjustment to other work that existed in significant
numbers in the national economy.” (R. 16.)
D.

Analysis
The Commissioner moves for judgment on the pleadings, seeking affirmation of the

denial of Plaintiff’s benefits on the grounds that the ALJ applied the correct legal standards to
determine that Plaintiff was not disabled and that the factual findings are supported by
substantial evidence. (See generally Def. Mem.) Plaintiff cross-moves for judgment on the
pleadings, contending the ALJ incorrectly: (1) assigned “little weight” to Dr. Weiden’s opinion
under the treating physician rule; (2) discredited Plaintiff’s statements as to his symptoms; and
(3) ignored contradictory testimony from the VE regarding Plaintiff’s ability to adjust to other
work existing in the national economy. (See generally Pl. Mem.) Alternatively, Plaintiff seeks
remand. (See id. at 13-14.)

20

Upon review of the record, the Court finds that the ALJ applied the correct legal
standards and his decision is supported by substantial evidence. Plaintiff’s arguments to the
contrary are meritless.
1.

Unchallenged Findings
The ALJ’s findings as to steps one to three are unchallenged. (See id. at 13.) Upon a

review of the record, the Court concludes that the ALJ’s findings at steps one through three are
supported by substantial evidence.
2.

Plaintiff’s RFC
a.

The ALJ’s RFC Assessment

The ALJ found that Plaintiff retained the RFC to perform medium work, with the
additional restrictions that Plaintiff avoid “even moderate exposure to fumes, dust, odors, gases,
and other respiratory irritants” and all “hazards, machinery, or heights.” (R. 13-14.) Medium
work involves lifting no more than fifty pounds, and frequently lifting or carrying objects
weighing up to twenty-five pounds. 20 C.F.R. § 404.1567(c). Medium work also involves
standing and/or walking for six hours in an eight-hour workday, and sitting for the remaining
time. See SSR 83-10, 1983 WL 31251, at *6. “Use of the arms and hands is necessary to grasp,
hold, and turn objects, as opposed to the finer activities in much sedentary work, which require
precision use of the fingers as well as use of the hands and arms.” Id. Finally, “[i]n most
medium jobs, being on one’s feet for most of the workday is critical.” Id.
Turning to this action, Plaintiff had the burden of proving that he was unable to perform
medium work. See Poupore v. Astrue, 566 F. 3d 303, 305-06 (2d Cir. 2009) (explaining that at
the fifth step, the Commissioner has the “limited burden” of showing “that there is work in the
national economy that the claimant can do” and that the Commissioner “need not provide

21

additional evidence of the claimant’s residual functional capacity”). During the relevant period
(October 12, 2002 through June 30, 2009), there are no records indicating that Plaintiff was
unable to perform medium duty work, other than the environmental restrictions noted by the
ALJ.

The ALJ was entitled to rely on the lack of findings regarding Plaintiff’s physical

capabilities in assessing his RFC. See Dumas v. Schweiker, 712 F. 2d 1545, 1553 (2d Cir.1983)
(“The Secretary is entitled to rely not only on what the record says, but also on what it does not
say.”); accord Diaz v. Shalala, 59 F. 3d 307, 315 (2d Cir. 1995) (declining plaintiff’s request to
remand for further proceedings to solicit evidence from plaintiff’s physicians as to whether
plaintiff could sit for prolonged periods because each of his physicians evaluated his physical
capabilities and the ALJ was entitled to rely on the absence of that finding in determining that
plaintiff could perform sedentary work).
Substantial evidence in the record supported the ALJ’s RFC assessment.

Notably,

Plaintiff testified that, at the time he retired from full fire duty in October 2002, he felt fine. (R.
101.) There are no medical records indicating that he suffered from any physical impairments
until June 2004, when he sought treatment for his asthma. In June 2004, Dr. Prezant noted that
Plaintiff’s lungs were clear, and that Plaintiff was working at that time. (R. 334.) In August
2004, Plaintiff’s lungs were clear, and his asthma was classified as stable, except during periods
of humidity. (R. 331.) In November 2004, his lungs were clear and his asthma, again was
classified as stable. (R. 330.) Reports associated with these appointments indicate that Plaintiff
was capable of full duty work. (R. 316-18.) A chest x-ray taken in April 2006 revealed normal
results. (R. 347.) A September 2007 CT-scan of Plaintiff’s chest revealed calcified nodules in
Plaintiff’s lungs (R. 265); however, a physical examination conducted the following month
yielded normal results, except for coarse breathing sounds (R. 256). In February 2009, a chest x-

22

ray revealed normal results. (R. 412.) Plaintiff’s lungs were clear, again, at a February 2009
examination. (R. 342.)
Additionally, medical records for some of the treatment that occurred after the relevant
period supports the ALJ’s RFC assessment. In October 2009, Plaintiff reported that he was
using his Albuterol inhaler occasionally, and no longer used his Advair inhaler. (R. 324.) In
December 2009, Plaintiff reported that respiratory irritants only “occasionally” caused reactions.
(R. 323.) Dr. Prezant found that Plaintiff’s lungs were clear and that his condition had improved
and was stable. (Id.) Pulmonary testing revealed reduced FEV1 and FVC levels; however, the
spirometries were interpreted as normal. (R. 271, 274, 280, 438.)
The record indicates that Plaintiff experienced problems with nasal and sinus congestion
during the relevant period, as well as earaches and impacted earwax. However, none of the
medical records establish that these problems impaired Plaintiff beyond the environmental
restrictions the ALJ established. Further, Plaintiff indicated that his medications improved his
nasal congestion after a few minutes (R. 330) and that his asthma attacks lasted no more than
twenty minutes (R. 102). Accordingly, the Court finds that the ALJ’s RFC assessment was
supported by substantial evidence.
b.

Application of Treating Physician Rule to Dr. Weiden’s Opinion

Plaintiff contends that the ALJ erred in assigning “little weight” to Dr. Weiden’s
September 17, 2011 RFC assessment. (Pl. Mem. at 2-9.) In particular, Plaintiff contends that,
under the treating physician rule, the ALJ was required to explain his decision to assign “little
weight” to Dr. Weiden’s opinion in greater detail than simply stating that “the substantial
medical evidence of record contradicts” Dr. Weiden’s RFC assessment. (Id. at 6.)

23

An ALJ must give controlling weight to the opinion of a treating physician with respect
to “the nature and severity of [a claimant’s] impairment(s).” 20 C.F.R. § 416.927(c)(2); see also
Shaw v. Chater, 221 F. 3d 126, 134 (2d Cir. 2000). A claimant’s treating physician is one “who
has provided the individual with medical treatment or evaluation and who has or had an ongoing
treatment and physician-patient relationship with the individual.” Schisler v. Bowen, 851 F. 2d
43, 46 (2d Cir. 1988). A treating physician’s medical opinion regarding the nature and severity
of a claimant’s impairment is given controlling weight when it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with other
substantial evidence in the record.” Burgess v. Astrue, 537 F. 3d 117, 128 (2d Cir. 2008)
(quotation marks and alteration omitted).

The Second Circuit has noted that “[w]hile the

opinions of a treating physician deserve special respect . . . they need not be given controlling
weight where they are contradicted by other substantial evidence in the record.” Lazore v.
Astrue, 443 F. App’x 650, 652 (2d Cir. 2011) (quoting Veino v. Barnhart, 312 F. 3d 578, 588 (2d
Cir. 2002)). Where a treating source’s opinion is not given controlling weight, the proper weight
accorded by the ALJ depends upon several factors, including: “(i) the frequency of examination
and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the
opinion; (iii) the opinion’s consistency with the record as a whole; and (iv) whether the opinion
is from a specialist.” Clark v. Comm’r of Soc. Sec., 143 F. 3d 115, 118 (2d Cir. 1998); see also
20 C.F.R. § 416.927(c)(2)-(6). The ALJ must clearly state his or her reasons for not giving
controlling weight to a treating physician’s opinion. See Halloran v. Barnhart, 362 F. 3d 28, 3132 (2d Cir. 2004).
Turning to the instant action, the ALJ correctly assigned “little weight” to Dr. Weiden’s
opinion. In a reported dated September 17, 2011, approximately two years after the relevant

24

period closed, Dr. Weiden provided an RFC assessment of Plaintiff. (R. 157-60.) Dr. Weiden
indicated that the report covered the period October 12, 2002 to September 17, 2011. (R. 157.)
Dr. Weiden opined that Plaintiff could stand or walk for less than two hours in an eight-hour
workday; could sit for less than two hours in an eight-hour workday; could lift or carry five
pounds, but not more than ten pounds, and for no more than two-thirds of an eight-hour
workday; would need frequent breaks; and would need two or more sick days each month. (R.
157-58.) Dr. Weiden opined that Plaintiff must avoid all exposure to temperature changes,
humidity, wetness, cigarette smoke, perfumes, soldering fluxes, cleaning solutions, fumes, odors,
gases, dust, and chemicals. (R. 159.) He further opined that Plaintiff would be “off task” ninety
percent of his workday and that he would be “incapable of even ‘low stress’ jobs.” (Id.)
These findings are unsupported by the record. First, Dr. Weiden’s RFC assessment is
contradicted by Plaintiff’s statements. For example, Plaintiff told the ALJ that, when he retired
in 2002, which is also the alleged onset date for his DIB application, he “felt fine.” (R. 101.)
Indeed, he did not seek medical treatment until 2004.

In 2004, Plaintiff indicated to his

physicians that he was working, although he did not specify the nature of his work. (R. 334.)
Indeed, Plaintiff submitted a form indicating that he worked on a biannual basis, six days at a
time, from 2007 to 2009. (R. 186-87.) These admissions contradict Dr. Weiden’s opinion that
Plaintiff would be “off task” ninety percent of a work day and that Plaintiff was “incapable of
even ‘low stress’ jobs.” (R. 159.) Moreover, Plaintiff also indicated that, during the relevant
period, and beyond, he continued to smoke cigarettes. (R. 256, 265, 326, 330, 334, 342.) These
admissions stand in contrast to Dr. Weiden’s opinion that Plaintiff could not work because he
must avoid all exposure to, among other respiratory irritants, cigarettes. (R. 159.)

25

Second, Dr. Weiden’s RFC assessment is contrary to the medical evidence in the record.
There are no other medical records indicating that Plaintiff suffered from physical restrictions of
any kind.

With respect to the environmental restrictions, the medical records from other

physicians do not support Dr. Weiden’s severe restrictions. (R. 256, 265, 330-31, 342, 347.)
Third, Dr. Weiden’s RFC assessment is not substantiated by any clinical testing or objective
findings.

Cf. 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant

evidence to support an opinion, particularly medical signs and laboratory findings, the more
weight we will give that opinion.”) Under these circumstances, the ALJ did not err in assigning
Dr. Weiden’s opinion “little weight.” See Veino, 312 F. 3d at 588 (affirming the ALJ’s decision
to give little weight to the treating physician’s opinion as that opinion was “contrary to the
findings of the consultative examination” and not supported by “objective evidence” and it “was
within the province of the ALJ” to resolve conflicting medical opinions).
Finally, the Court declines to remand this action for the ALJ to explain in greater detail
his decision to assign “little weight” to Dr. Weiden’s opinion. It is evident from the record that
the ALJ’s decision would not change on remand.

Under these circumstances, remand is

unnecessary. The Second Circuit has explained that “[w]here application of the correct legal
principles to the record could lead [only to the same] conclusion, there is no need to require
agency reconsideration.” Zabala v. Astrue, 595 F. 3d 402, 409 (2d Cir. 2010) (declining to
remand even though the ALJ failed to satisfy the treating physician rule as the medical record
that the ALJ overlooked would not have altered the ALJ’s disability determination (quoting
Johnson v. Bowen, 817 F. 2d 983, 986 (2d Cir. 1987))); see also Halloran, 362 F. 3d at 32-33
(declining to remand even when the ALJ failed to provide “good reasons” for the weight given to
a treating physician’s opinion).

26

c.

Plaintiff’s Credibility

Plaintiff contends that the ALJ erred in discrediting his statements regarding the severity
of his symptoms.

(Pl. Mem. at 3-4, 6-7.)

The Second Circuit recognizes that subjective

allegations of pain may serve as a basis for establishing disability. See Taylor v. Barnhart, 83 F.
App’x 347, 350 (2d Cir. 2003). However, the ALJ is afforded discretion to assess the credibility
of a claimant and is not “required to credit [Plaintiff’s] testimony about the severity of her pain
and the functional limitations it caused.” Correale-Englehart v. Astrue, 687 F.Supp. 2d 396, 434
(S.D.N.Y. 2010) (quoting Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir. 2008)). In determining
Plaintiff’s credibility, the ALJ must adhere to a two-step inquiry set forth by the regulations. See
Peck v. Astrue, 2010 WL 3125950, at *4 (E.D.N.Y. Aug. 6, 2010). First, the ALJ must consider
whether there is a medically determinable impairment that reasonably could be expected to
produce the pain or symptoms alleged. 20 C.F.R. § 404.1529(b); S.S.R. 96-7p. Second, if the
ALJ finds that the individual suffers from a medically determinable impairment that reasonably
could be expected to produce the pain or symptoms alleged, then the ALJ is to evaluate the
intensity, persistence, and limiting effects of the individual’s symptoms to determine the extent
to which they limit the individual’s ability to work. 20 C.F.R. § 404.1529(c).
When the ALJ finds that the claimant’s testimony is not consistent with the objective
medical evidence, the ALJ is to evaluate the claimant’s testimony in light of seven factors: (1)
the claimant’s daily activities; (2) the location, duration, frequency, and intensity of the pain; (3)
precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any
medications taken to alleviate the pain; (5) any treatment, other than medication, that the
claimant has received; (6) any other measures that the claimant employs to relieve the pain; and
(7) other factors concerning the claimant’s functional limitations and restrictions as a result of

27

the pain. 20 C.F.R. § 404.1529(c)(3)(i)-(vii).
The Second Circuit has stated that “[i]f the ALJ rejects plaintiff’s testimony after
considering the objective medical evidence and any other factors deemed relevant, [she] must
explain that decision with sufficient specificity to permit a reviewing court to decide whether
there are legitimate reasons for the ALJ’s disbelief.” Correale-Englehart, 687 F. Supp. 2d at
435. When the ALJ neglects to discuss at length her credibility determination with sufficient
detail to permit the reviewing court to determine whether there are legitimate reasons for the
ALJ’s disbelief and whether her decision is supported by substantial evidence, remand is
appropriate. Id. at 435-36; see also Grosse v. Comm’r of Soc. Sec., 2011 WL 128565, at *5
(E.D.N.Y. Jan. 14, 2011) (finding the ALJ committed legal error by failing to apply factors two
through seven); Valet v. Astrue, 2012 WL 194970, at *22 (E.D.N.Y. Jan. 23, 2012) (remanding
the case where the ALJ “considered some, but not all of the mandatory” factors).
Turning to the instant action, the ALJ found that Plaintiff’s “medically determinable
impairments reasonably could be expected to cause the alleged symptoms,” but that his
statements “concerning the intensity, persistence, and limiting effect of [his] symptoms” were
not credible to the extent that they were inconsistent with the RFC. (R. 14.) Substantial
evidence in the record supports the ALJ’s credibility determination.
First, during the course of this litigation, Plaintiff contradicted himself regarding his
capabilities. Plaintiff filed his DIB application in 2010, alleging that he became disabled on
October 12, 2002. (R. 170, 194-95.) Yet, at his hearing, he testified that, when he retired from
the FDNY in October 2002, he “felt fine,” and that his impairments did not develop until later.
(R. 101.) Moreover, Plaintiff admitted that he worked, at least intermittently, during the relevant
period (October 12, 2002 through June 30, 2009). (R. 334, 186-87.) Plaintiff also claimed that

28

any exposure to respiratory irritants aggravated his conditions. (R. 102-04.) However, he
continued to smoke cigarettes on a daily basis during the relevant period and beyond. (R. 256,
265, 326, 330, 334, 342.)
The medical evidence supports the ALJ’s credibility determination as well. Plaintiff did
not seek treatment for his impairments until 2004, and at that time, denied taking any
medications for his impairments. (R. 334.) Subsequently, Plaintiff’s asthma stabilized with use
of Advair and Albuterol. (R. 330-32.) Plaintiff continued to complain about nasal and sinus
congestion. (R. 330-31.) However, there were no further reports regarding Plaintiff’s treatment
for his impairments until September 2007, nearly five years after the alleged onset date of
October 12, 2002. (R. 343.) It was not until after the relevant period closed that Plaintiff
complained of difficulty breathing from climbing a flight of stairs. (R. 324.) But, at the same
time, Plaintiff did not experience breathing problems when walking or golfing. (Id.) Notably, he
denied any other medical issues.

(Id.)

For all of these reasons, the ALJ did not err in

discrediting Plaintiff’s statements regarding the severity of his symptoms.
d.

ALJ’s Reliance on VE

Plaintiff contends that the ALJ ignored the VE’s initial finding that no work existed that
an individual with an RFC for medium work with the environmental restriction of avoiding even
moderate exposure to respiratory irritants could perform. (Pl. Mem. at 9-10.) Plaintiff is correct
that, after this initial testimony, the ALJ pressed the VE about various positions that an
individual with Plaintiff’s RFC could perform. (R. 105-08.) Ultimately, the VE testified that
such an individual could work as bagger in a supermarket or a hand packer. (R. 108.). The ALJ
was entitled to rely on the VE’s testimony in reaching his decision. See 20 C.F.R. § 404.1566(e)
(“If the issue in determining whether you are disabled is whether your work skills can be used in

29

other work and the specific occupations in which they can be used, or there is a similarly
complex issue, we may use the services of a vocational expert or other specialist.”) Thus, the
ALJ’s decision was supported by substantial evidence.
Plaintiff further contends that the ALJ ignored the VE’s finding that there were no jobs
available for an individual with an RFC for medium work with the environmental restriction of
avoiding all exposure to respiratory irritants. (Pl. Mem. at 10-12.) At the hearing, Plaintiff’s
attorney solicited this testimony from the VE (R. 108-09), which was based solely on Dr.
Weiden’s opinion (R. 159). As set forth above, the ALJ did not err in assigning “little weight” to
Dr. Weiden’s RFC assessment, and, thus, did not err in ignoring testimony from the VE based
solely on Dr. Weiden’s RFC assessment. Accordingly, the Court concludes that the ALJ’s
decision finding Plaintiff was not disabled was supported by substantial evidence.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is
granted.

Plaintiff’s cross-motion for judgment on the pleadings is denied.

The appeal is

dismissed.
SO ORDERED.
Dated: Brooklyn, New York
September 8, 2014
______________/s/______________
DORA L. IRIZARRY
United States District Judge

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