Green v. Commissioner of Social Security
MEMORANDUM AND ORDER granting 32 Motion for Judgment on the Pleadings. For the reasons stated in the attached Memorandum and Order, the court holds that the Commissioner's finding that plaintiff was not disabled as defined by the Social Secur ity Act since January 13, 2011, was supported by substantial evidence in the record. Accordingly, the defendant's Motion for Judgment on the Pleadings is GRANTED, and the decision of the ALJ is AFFIRMED. The Clerk of Court is res pectfully directed to enter judgment for the defendant, and close this case. The Clerk of Court is respectfully directed to serve plaintiff with a copy of this Memorandum and Order, and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 2/13/2017. (Fletcher, Camille)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Lawrence Green (“plaintiff”) appeals the final
decision of the Commissioner of the Social Security Administration
(“defendant” or “Commissioner”), denying plaintiff’s application
for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act (“the Act”).
Plaintiff, proceeding pro se,
contends that severe medically determinable impairments prevent
him from performing any work and that the Commissioner erred in
denying him SSI benefits.
Presently before the court is the
defendant’s motion for judgment on the pleadings.
For the reasons
stated herein, defendant’s motion for judgment on the pleadings is
GRANTED, and the decision of the Commissioner is AFFIRMED.
PLAINTIFF’S PERSONAL AND EMPLOYMENT HISTORY
Plaintiff was born on January 24, 1971, in Brooklyn, New
(Tr. 52-53.) 1
He is not married, has no children, and lists
his mother’s residence as his current address.
Plaintiff completed either the seventh or the eighth grade in
special education classes.
(Tr. 53, 427.)
attending regular school after he was incarcerated as a minor.
Plaintiff continued receiving special education during
the four-and-half-years he was incarcerated as a juvenile, but he
never obtained a high school equivalency diploma through General
Educational Development (“GED”) testing.
(hereinafter “Initial Hearing”), that he could not read and did
not know how to do math but could count money. (Tr. 54.) Plaintiff
reported to his doctors that he could read, however.
Further, plaintiff has written several letters and
made several motions to this court, and he passed a licensing exam
for security work.
(Tr. 427; see generally the docket.)
between 1996 and 2012.
From 2004 to 2005, for six
months, he worked in the maintenance department for the New York
“Tr.” citations are to the correspondingly numbered pages in the certified
administrative record that is part of the Commissioner’s answer.
(Tr. 59, 262.)
In 2007, also for six months, plaintiff
worked as a packer and cleaner for FedEx.
(Tr. 59, 282.)
From 2007 to 2009, plaintiff worked as a
(Tr. 60, 242-43, 282.)
His responsibilities included
patrolling his designated areas and ensuring that there were no
Plaintiff testified that he left the
position after he was shot and robbed on duty.
three roles required an eight-hour work day and five-day work
Plaintiff also testified that he has not been
employed since he stopped working as a security guard in 2009.
Plaintiff, however, reported to one of his doctors in
June 2012, that he was currently working as a security guard,
though he denied this at the hearing; plaintiff also reported that
he was in the process of getting a permit to carry a firearm.
A. Evidence Related to Claimed Physical Impairments
Records from St. John’s Episcopal Hospital from September
2009 to March 2011
On September 10, 2009 2 plaintiff visited Dr. Jayesh
Sampat, M.D. with complaints of pain in his right arm and shoulder
that radiated to his back.
Dr. Sampat noted that
plaintiff had normal motor functioning and coordination.
The physical examination also revealed that plaintiff’s
right shoulder was tender and that plaintiff was unable to abduct
it; Dr. Sampat diagnosed plaintiff with a shoulder sprain.
On March 4, 2010, plaintiff visited Dr. Saif Khan, M.D. with
complaints of itchy skin, skin rash, and earache.
Dr. Khan diagnosed plaintiff with an ear infection, acute otitis
externa, and contact dermatitis while noting that plaintiff had
normal motor functioning and coordination.
September 17, 2010.
Plaintiff visited the clinic for
a pre-employment physical exam; plaintiff had no complaints and
reported that he was not in pain.
Dr. Warshawsky observed
respiratory distress, and he found no physical abnormalities,
other than plaintiff’s hypertension and morbid obesity. (Tr. 535.)
Plaintiff went in for a follow-up visit on September 20, 2010, and
was examined by Drs. Sanda, M.D and Dr. Yan, M.D.
Plaintiff indicated that he was not in pain, and Dr. Sanda observed
The earliest record pertaining to plaintiff’s claimed physical impairments
is from September 10, 2009.
that plaintiff was “healthy looking,” was not in any respiratory
distress and had normal distal pulses, no edema, no organomegaly
and no focal deficits; plaintiff’s labs were in normal range. (Tr.
programs including sports and swimming. (Tr. 365–66.)
follow-up visit on October 20, 2010, with Dr. Susana Bundoc, M.D.,
returned the same findings.
(Tr. 539–40.) Dr. Bundoc noted that
plaintiff had normal motor functioning and coordination, and that
plaintiff was counselled to lose weight during the last visit but
plaintiff had not made any changes in his diet or exercise regime
as instructed by the other doctors.
December 9, 2010, March 11, 2011, and March 14, 2011 and saw Drs.
Katz, M.D. Wubishet, M.D., and Sandhu M.D.; reports from all three
visits showed normal motor functions and coordination.
44, 545–46, 548-49.)
Plaintiff had indicated that he had no pain
and reported no other complaints during these visits, between
September 2010 and March 2011, but was consistently diagnosed with
hypertension and morbid obesity.
During these visits, plaintiff
was also advised about losing weight to address his obesity.
464–65, 466–67, 535, 542–43, 545–46, 548–49.)
Records from Industrial Medicine Associates in May 2011
However, Dr. Dickerson’s examination revealed no abnormality in
plaintiff’s legs, normal range of motion, no pain on palpation, no
inflammation; plaintiff’s neurologic examination was normal.
Dr. Dickerson’s examination revealed that plaintiff
exhibited normal gait and stance, walked on heels and toes without
difficulty, performed full squats, and used no assistive devices.
Plaintiff complained of a bad back and graded his back
pain at a “10/10.”
Plaintiff reported that the pain
extreme range of motion.
Dr. Dickerson found that plaintiff had
normal range of motion in his back.
Examination of his
spine showed full flexion and extension, and his joints had full
range of motion.
Dr. Dickerson found that plaintiff
had 5/5 strength in his extremities, with no sensory deficit noted.
Plaintiff also reported that he has a “bad heart.”
The cardiac examination was normal and plaintiff did not
report chest pain.
Dr. Dickerson noted that plaintiff had high
blood pressure and plaintiff stated that he did not take his blood
pressure medication on that day.
noted that plaintiff had a history of seizure.
Dr. Dickerson also
examination and that he had the ability to cook, clean, launder,
shop, and provide childcare.
Plaintiff also said he
showered, bathed, and dressed himself five or six times a week and
engaged in some recreational activity, including playing sports.
Based on his examination, Dr. Dickerson concluded that
plaintiff was “unrestricted for any physical activity.” (Tr. 383.)
Records from St. John’s Episcopal Hospital from June 2011 to
Plaintiff next visited St. John’s Episcopal Hospital on
Plaintiff reported that he had been seeing
OxyContin & Gabapentin, and that he wanted to switch doctors
because the doctor did not want to dispense pain medications to
him anymore because the medications were not found in plaintiff’s
Plaintiff reported no acute problems and again was
counseled “at length” about monitoring his weight, his blood
pressure, and other healthy lifestyle issues.
(Tr. 550, 552.)
was discharged with referrals for anxiety disorder treatment and
On June 13, 2011, plaintiff complained of pain in his
lower back, left hip, and knee.
Drs. Grohovski, M.D.
and Challa, M.D. noted that an x-ray performed on June 9, 2011,
revealed that plaintiff had generalized degenerative disc disease
and mild osteo-arthritic changes. (Tr. 553, 598.)
discharged with prescriptions for Ibuprofen and Flexeril and a
Plaintiff visited Drs. Bundoc,
M.D., Marie M.D., and Rebolledo, M.D., on August 16, 2011, November
3, 2011 and November 18, 2011, respectively for refills of his
medications, a routine examination and to have a form filled out
(Tr. 555, 557, 559.)
during these visits.
Plaintiff had no complaints
At the November 3, 2011 visit,
plaintiff reported that he did not have any pain because his back
pain was controlled with Percocet use, and at the November 18,
2011 visit, plaintiff stated he felt well. (Tr. 557, 559.)
Plaintiff complained of pain in his back and left leg,
as well as sleep-related problems during his December 16, 2011
visit with Drs. Yan and Grohoviski.
reported that he had a mild cough, snored at night, felt fatigued
in the day time, and had stomach discomfort.
He was given
a refill of his current medications and referrals for his sleep
and stomach problems.
On March 9, 2012, Plaintiff visited with Drs. Argishti,
M.D. and Bundoc, M.D. for a regular medical check-up, refill of
his medications, and a note for his landlord.
Argishti noted that plaintiff was referred to the pulmonary clinic
for sleep studies after he complained of snoring issues, but
plaintiff refused to have the test done.
abnormalities were detected.
It was suggested to
plaintiff that he make a new appointment with the gastrointestinal
specialist but plaintiff refused and said that his condition was
controlled by his Pepcid medication.
All the doctors
plaintiff’s history of hypertension and morbid obesity.
555, 557, 559, 562, 565.)
Records from Bushwick Community Health Center from May to
Between May 8, 2012 and August 23, 2012, plaintiff was
evaluated by various healthcare professionals, including Vivene
Salkey, a medical case manager at the Bushwick Community Health
complete a biopsychosocial report for plaintiff. (Tr. 567-635.)
The report indicated that plaintiff can speak, read, and write
The report also indicated that plaintiff was
treated for the condition.
Plaintiff reported that he
watched television, got himself dressed, bathed and used the
bathroom by himself.
He also reported that he had no
hobbies, was not able to wash dishes or his clothes, sweep or mop
the floor, vacuum, make the bed, shop, cook, or socialize.
Plaintiff’s medical examination revealed hypertension,
pain in the back, left hip and leg, joint pain, dizziness and
His physical examination revealed obesity
and inability to raise left leg fully.
reported that his pain was a 10, on a scale from 1 to 10 with 10
being the worst.
Dr. Greenidge-Patton, M.D. opined that
during an 8-hour work period, plaintiff could consistently sit for
1–3 hours, stand for 1–3 hours, walk for 1–3 hours, reach for 1–3
hours, and grasp for 1–3 hours, but could not pull, climb, bend,
or kneel. (Tr. 580–81.) Dr. Greenidge-Patton found that plaintiff
should be on temporary unemployment for 90 days but found that
although that plaintiff was depressed because of his chronic
physical condition, his depression was not severe enough in itself
to warrant his not returning to work.
Patton found most of plaintiff’s chronic conditions were stable
but she found his morbid obesity, his glucose condition and his
depressive disorder to be unstable.
She recommended adding
an anti-depressant to plaintiff’s treatment regimen.
plaintiff and opined that plaintiff could sit, stand, walk, lift,
push, pull, climb and descend stairs, bend at the hip, bend at the
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knee, turn his head, bend his neck, and write and grasp normally.
Plaintiff refused to perform some of the tests, but to
the extent that the plaintiff complied with movement tests, Dr.
Felix reported normal findings and noted that there was no evidence
of sensory deficits and noted that plaintiff had a normal gait.
(Tr. 609, 611–12, 614.)
Dr. Felix diagnosed plaintiff with pain
in his back, joints, and lower leg, but found that plaintiff’s
condition was stable.
Georgene Servio, a case manager, conducted a functional
capacity assessment on August 23, 2012.
(Tr. 586-94, 626-30.) In
conducting her assessment she reviewed all the findings from the
biopsychosocial assessment, including the psychosocial assessment,
lab and other tests, specialty medical exams and any clinical
Ms. Servio found that
plaintiff required a modified work environment where kneeling,
pushing, pulling, carrying, stooping, bending, and reaching are
limited or eliminated.
She also found that plaintiff
did not require a travel accommodation.
concluded that plaintiff was unable to work.
Ms. Servio ultimately
plaintiff’s morbid obesity, chronic lower back pain, hip and knee
pain, hypertension, his depressive disorder, his complaints about
Records from Beth Israel Medical Center in June 2012
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Plaintiff made several visits to Beth Israel Medical
Center in June 2012.
He requested oxycodone at the June 1 and
June 14, 2012 visits, but was refused on both occasions because
Plaintiff was diagnosed with hypertension, morbid obesity, and
examinations at the June 1st and June 14th visits.
Dr. Masias-Castanon, M.D. during the June 1, 2012 visit,
called two pharmacies to verify that plaintiff had prescriptions
The first pharmacy reported that
plaintiff never had any prescriptions at that pharmacy, and the
second pharmacy reported that plaintiff had one prescription for
Percocet during November 2011.
Dr. Lau, M.D. also reported
on June 1, 2012 that plaintiff’s records from the outside facility
also demonstrated a possibility of opiate abuse.
Plaintiff refused over the counter pain medications after being
denied a prescription for oxycodone, he instead requested a pain
management referral for oxycodone.
At the June 14, 2012 visit, plaintiff reported that his
last oxycodone use was 2 months earlier.
using any over the counter medication or any other pain medications
during the two months since he ran out of oxycodone.
Plaintiff also reported that he sleeps to overcome the pain and
again refused other non-opioid pain medication.
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the June 14th visit, Dr. Madrid, M.D. observed that plaintiff was
in no apparent pain and easily walked back and forth to the exam
room several times, and created a stir in the waiting room as he
Dr. Madrid further noted that
security was called but plaintiff left the clinic without causing
other issues. (Tr. 647.)
On June 20, 2012, Dr. Ricardo Cruciani, M.D. examined
Dr. Cruciani reported that plaintiff rated his pain as
a 5 out of 10 and noted that plaintiff walked “without difficulties
but was in clear discomfort when bending over to pick up a piece
of paper that he had accidentally dropped.”
Cruciani also reported that plaintiff was working as a security
guard at the time and was in the process of getting a legal permit
to carry a firearm.
Dr. Cruciani’s physical examination of
plaintiff revealed that plaintiff was in no acute distress but
plaintiff’s range of motion was decreased in all directions and
there was tenderness along para-spinal lumbar levels.
Dr. Cruciani assessed that plaintiff had lower back pain and
recommended an MRI to rule out facet disease.
Cruciani’s psychiatric exam revealed that plaintiff’s mood was
eurythmic, plaintiff had appropriate insight and judgment and
plaintiff’s short term and long term memory were intact.
On June 27, 2012, Dr. Jan Slomba examined plaintiff.
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findings on June 20, 2012. (Id.)
Records from Industrial Medicine Associates in July 2012
consultative orthopedic examination on plaintiff.
Plaintiff reported that he did not cook, clean, do laundry, or
shop and that he depended on his parent to shower, to dress and
Dr. Tranese noted that x-ray reports
showed generalized degenerative disk disease in plaintiff’s lumbar
spine and minimal degenerative arthritis in his left hip and knee.
Dr. Tranese found that plaintiff could walk on heels
and toes without difficulty but refused to squat, had full flexion
and extension in his cervical spine, and had full range of motion
in his upper extremities.
Plaintiff refused to
flex or extend his back but was able to bend down to pick up an
object from the floor, and had full range of motion in his lower
Plaintiff used no assistive device and
needed no help changing for the exam, or getting on and off the
exam table, and could rise from the chair without difficulty. (Tr.
Based on his examination and a review of the x-rays that
plaintiff provided, Dr. Tranese found that plaintiff may have
moderate restriction with heavy lifting and frequent bending,
minimal restriction with standing long periods or walking long
distances, and mild to moderate restriction with stair climbing,
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squatting, or kneeling.
He also found that plaintiff
had no limitations using his “upper extremities, or fine and gross
manual activities” and that plaintiff “ha[d] no other physical
Dr. Tranese completed the “Medical Source Statement of
Ability to do Work-Related Activities (Physical)” form.
Dr. Tranese concluded that plaintiff could lift and carry
up to 20 pounds continuously; plaintiff could frequently lift, and
occasionally carry up 50 pounds; plaintiff could occasionally
lift, but never carry 51 to 100 pounds.
He also found
that plaintiff, at one time without interruption, could sit for 8
hours, stand for 6 hours, and walk for 4 hours, and in total for
an 8 hour work day, plaintiff could sit for 8 hours, stand for 7
hours and walk for 6 hours.
Dr. Tranese found that
plaintiff had no limitations with either hand or with use of his
right foot but noted that plaintiff had some minor limitations
with use of his left foot.
Plaintiff was found to
frequently be able to climb stairs and ramps, balance, stoop,
kneel, crouch and crawl but could only occasionally climb ladders
Plaintiff was not found to have any
environmental exposure limitations.
Also on July 9, 2012, Rahel Eyassu, M.D., performed a
consultative internal medicine examination on plaintiff.
Plaintiff reported that he does not clean, cook, do laundry
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or shop, but he reported that he showered and dressed himself.
He also reported that he liked to listen to the radio
and he liked to read.
Plaintiff used no assistive device
and needed no help changing for the exam, or getting on and off
the exam table, and could rise from the chair without difficulty.
Plaintiff declined to walk on his heels and toes and he
declined to squat. (Id.) Dr. Eyassu reported that since plaintiff
refused some of the tests, she was only able to find full range of
motion in plaintiff’s cervical spine, in his upper extremities, in
his knees and in his ankles.
Dr. Eyassu found that
plaintiff experienced pain with forward elevation of the left
Dr. Eyassu found no sensory deficits in
plaintiff’s upper or lower extremities and found that plaintiff
had full strength in his upper extremities.
determined that plaintiff would be limited in repetitive bending
and activities with heavy lifting, and mildly limited in walking,
Dr. Eyassu completed the “Medical Source Statement of
Ability to do Work-Related Activities (Physical)” form.
Dr. Eyassu concluded that plaintiff could lift and carry up
to 10 pounds frequently; plaintiff could occasionally lift and
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carry up to 50 pounds; plaintiff could never lift or carry 51 to
She also found that plaintiff, at one
time without interruption, could only sit, stand, and walk for 30
minutes, and in total for an 8 hour work day, plaintiff could sit
and stand for 4 hours, and walk for 3 hours.
Eyassu found that plaintiff had some limitation with pushing and
pulling, but found no other limitations with either hand.
She also found that plaintiff had some minor limitations
with using his feet.
Dr. Eyassu found that plaintiff
could occasionally climb stairs and ramps, kneel, crouch, crawl
and climb ladders or scaffolds, and he could frequently balance,
operate a motor vehicle and tolerate loud noise; plaintiff could
parts, humidity and wetness, dust, odors, fumes and pulmonary
irritants, extreme cold, extreme heat, and vibrations.
Corporation from August to December 2012
On August 28, 2012, Family Nurse Practitioner, Maggie
Farley, F.N.P., of Brownsville Community Development Corporation
conducted a physical examination of plaintiff.
She also noted that although plaintiff had
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not had pain medication for the past month, plaintiff showed no
signs of acute distress; he was able to ambulate, sit, stand,
reporting that his pain was 10 out of 10.
Farley reported that plaintiff had a history of hypertension, back
pain, anxiety disorder, extreme obesity, and some limitations in
his range of motion due to obesity, but otherwise presented no
On September 4, 2012, plaintiff saw Practitioner Farley
for a “letter for disability” and for the results of the labs
Practitioner Farley diagnosed plaintiff with diabetes mellitus
type 2, elevated cholesterol, and degenerative disc disease.
She noted that plaintiff was newly diagnosed with type 2
diabetes and that there were no associated symptoms.
At plaintiff’s September 28, 2012 follow up visit, Practitioner
Farley noted that plaintiff’s compliance with diet was fair but
his compliance with exercise was poor.
Plaintiff was referred to a podiatrist.
dietician Kelly Weiss.
She also noted
Plaintiff reported that he
lost 30 pounds over the course of the last two months.
He also reported that he did the food shopping and “walked a lot”
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as a means of exercise.
Records from Starrett City Podiatry from October to
On October 19, 2012, plaintiff visited Starrett City
Podiatry seeking diabetic foot care.
Spyropoulos, D.P.M., assessed that plaintiff had diabetes with
neuropathy, hammertoe, posterior calcaneal bone spur, nail fungus
and athlete’s foot.
Plaintiff was educated on the
complications associated with, his diabetic foot condition.
Plaintiff received a prescription for diabetic shoes, lotrisone
cream and nystatin powder.
On November 2, 2012, Brian Levy,
conduction velocity in certain nerves in plaintiff’s lower left
leg, and decreased conduction velocity in plaintiff’s right foot.
(Tr. 653, 708.)
Plaintiff’s symptoms were found to be mild to
B. Evidence Related to Claimed Mental Impairments
Dr. Christopher Flach, Ph.D.
On May 4, 2011, Christopher Flach, Ph.D. conducted a
consultative “psychiatric evaluation” of plaintiff.
Plaintiff reported that he stopped working as a security guard
because it required standing.
The only medical
problems plaintiff reported to Dr. Flach was high blood pressure,
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diabetes and a seizure disorder.
Plaintiff reported that
he slept “okay” with medication and that he had a mixed appetite.
Plaintiff reported that he was able to dress and bathe
himself, do some general cleaning, do laundry, shop, manage money,
take public transportation, socialize and date women.
He did not report any hobbies.
delusion or paranoid thinking, his affect “a little anxious,” mood
dysthymic, sensorium clear, oriented towards person, place and
time, attention and concentration were mildly impaired (“perhaps
secondary to academic problems”), recent and remote memory skills
were moderately impaired, cognitive functioning was below average,
insight and judgment were fair. (Tr. 377–78.) Dr. Flach concluded
that plaintiff would be able to follow simple directions and
regular schedule, and learn new tasks.
concluded that plaintiff had mild problems maintaining attention
and concentration, dealing with stress, and required some help
performing complex tasks.
Dr. Flach ultimately concluded
that the results of his examination were consistent with some
psychiatric issues, plaintiff’s history of substance abuse, and
learning difficulties, all of which Dr. Flach found to interfere
mildly to moderately with plaintiff’s ability to function on a
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Dr. Flach diagnosed plaintiff with
remission, and a learning disorder. (Tr. 379.)
Dr. Nissan Shliselberg, M.D.
On June 6, 2011, Nissan Shliselberg M.D., psychiatrist
and state consultant, completed the psychiatric review technique
form and a mental residual functional capacity assessment.
In the psychiatric review, Dr. Shliselberg determined
that plaintiff had a learning disorder, bipolar disorder, and
polysubstance abuse, which was in remission.
(Tr. 393, 395, 400.)
Dr. Shliselberg also determined that there was no restriction on
plaintiff to maintain social functioning, mild difficulties in
After considering the totality of the
understand and carry out simple tasks independently, and complex
tasks with some help.
Licensed Master Social Work Angel Louis, L.M.S.W.
On December 7, 2011, Angel Louis, L.M.S.W., completed a
Plaintiff reported that he had no employment goals and indicated
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that he did not want a referral for vocational and/or educational
When asked what his barriers to employment
were, plaintiff indicated that he did not want a job.
Plaintiff reported that he experienced the following symptoms for
hallucinations, and paranoia. (Tr. 423.)
Plaintiff was diagnosed
with bipolar disorder and schizo-affective depression disorder.
Mr. Louis also found plaintiff’s psychomotor activity level
to be “lethargic/hypoactive,” attention and concentration dull,
anxious, insight and judgment poor, and memory fair.
He found plaintiff’s thoughts to be disorganized and paranoid and
that plaintiff also experienced hallucinations.
Dr. Carmin Appolon, M.D.
On December 8, 2011, Carmin Appolon, M.D., completed a
psychiatric evaluation of plaintiff.
that plaintiff was alert and attentive, had poor concentration,
remote memory, and intellectual functioning, was restricted or
constricted in affect, had an irritable and expansive mood, had
poor insight and impaired judgment, had auditory hallucinations,
had rational and coherent thought processes, and had no evident
disorder in thoughts and perceptual content.
on her findings, Dr. Appolon diagnosed plaintiff with bipolar
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Dr. Joseph Voight, M.D.
psychiatrist between December 2011 and January 2013.
417, 766-75.) On January 11, 2012, Dr. Voight noted that plaintiff
had denied any psychotic and mood symptoms, his mental condition
was stable, and that his speech was articulate and coherent.
Plaintiff’s 11 follow-up visits between January 2012 and
January 2013 resulted in generally similar, if not identical,
findings: stable mental condition, articulate speech, full affect,
euthymic mood, no hallucination, no delusions, no homicidal or
suicidal ideations, fair or good concentration, fair or good
memory, fair or good insight, and fair or good judgment.
Psychiatric Evaluation Update where he found that plaintiff had
good concentration, good memory, good intellectual functioning,
euthymic mood, fair insight and awareness, fair judgment, rational
and coherent thought process, and no hallucinations or suicidal
Wellness Plan Report for plaintiff on May 30, 2012.
He noted that plaintiff was diagnosed with bipolar disorder and
substance abuse in remission, and that his relevant clinical
findings included (1) articulate speech, normal in rate and volume,
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(2) affect in full range, (3) appropriate mood euthymic, (4)
hallucinations, (6) no suicidal or homicidal ideations (7) no
delusions, and (8) fair insight and judgment.
Voigt opined that plaintiff was unable to work for at least 12
Dr. Voight opined on January 3, 2013 in a
report, that plaintiff had poor ability to: sustain attention and
concentration for 2 hours at a time, understand, remember, and
carry out simple work instructions, conform to normal work rules
and schedules, work at a consistent pace until a task is completed,
respond appropriately to ordinary work pressures, make judgments
on simple work-related problems, perform consistently during the
work day without intrusion of mental illness symptom, and respond
appropriately to supervisors and coworkers.
(Tr. 38, 716-18.)
Dr. Paul Davis, M.D.
evaluation that the Bushwick Community Health Center conducted.
Dr. Davis indicated that plaintiff was referred
because of his chronic back pain and to determine his working
Plaintiff reported that he was unable to
work, and during the last month he had a depressed mood, lost time,
had severe headaches, was forgetful, was fatigued and used drugs.
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depressed mood, his form of thought was logical, and his thought
content was normal.
plaintiff’s ability to follow work rules, accept supervision, deal
with the public, maintain attention, relate to co—workers, adapt
to change and adapt to stressful situations.
concluded that plaintiff was unable to work due to plaintiff’s
back problems and chronic depression.
qualified his conclusion by noting that this determination should
be made by plaintiff’s treating physicians.
Dr. Davis also
noted that plaintiff’s “secondary gain of not wanting to work”
played a role in plaintiff’s presentation, and stated that if
plaintiff’s only condition was his depression, he would recommend
Dr. Robert Lancer, Psy. D.
On July 9, 2012, Dr. Robert Lancer, Psy. D., conducted
another consultative psychiatric evaluation of plaintiff.
sleeping, that he had an increased appetite which led to a 20 pound
Plaintiff reported that he can dress, bathe, groom himself, shop
and take public transportation.
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He also stated that
his mother and girlfriend helped him with cooking, cleaning, and
laundry because of his psychiatric disorder, and that he spent his
days watching TV, listening to the radio and reading.
Dr. Lancer determined that plaintiff had fluent speech,
coherent and goal-directed thought processes with no evidence of
hallucinations, delusions, or paranoia, a full range affect which
was appropriate in speech and thought content, a neutral mood,
mildly impaired attention and concentration resulting from his
depression and anxiety, mildly impaired memory skills due to
anxiety during the evaluation, average cognitive functioning, poor
insight, and fair judgment.
Dr. Lancer concluded
that plaintiff could follow and understand simple directions and
instructions, perform simple tasks independently, learn new tasks
and perform complex tasks independently.
Lancer also concluded that plaintiff had difficulty maintaining
making appropriate decisions, relating adequately with others, and
plaintiff’s limitations to his current psychiatric disorder.
disorder, and substance abuse in sustained remission.
III. PROCEDURAL HISTORY
Plaintiff applied for SSI benefits on January 13, 2011,
contending that he had been disabled starting from June 12, 2009,
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due to a combination of physical and mental impairments.
109, 117, 225.)
His application was denied by the Social Security
Administration (“SSA”) on June 6, 2011.
On June 10,
2011, plaintiff requested a hearing before an Administrative Law
Two hearings were held before the ALJ,
first on December 6, 2012, and then on February 12, 2013.
Plaintiff was represented by counsel, and a vocational
expert was present at both hearings.
(Tr. 49, 86.)
On March 28,
plaintiff was not disabled within the meaning of § 1614(a)(3)(A)
of the Social Security Act.
On May 21, 2013, plaintiff
requested a review of the ALJ’s decision.
Adjudication and Review denied plaintiff’s request for review
because the Appeals Council found no grounds under the Agency’s
rules to review the ALJ’s decision.
ALJ’s denial of plaintiff’s claim became final.
On September 17, 2014, plaintiff filed the Complaint in
the present action seeking review of the ALJ’s decision denying
(ECF No. 1.)
The Commissioner of Social Security filed
its answer on December 16, 2014.
(ECF No. 10.)
On May 15, 2015,
the Commissioner moved for judgment on the pleadings.
Plaintiff did not formally oppose the defendant’s motion,
but he did submit various letters and additional medical records
- 27 -
to the court, between January 2015 and January 2017, requesting
among others things, SSI benefits.
(See generally, the case
docket). The court did not consider the additional medical records
submitted by plaintiff because they were not before the ALJ when
the decision was issued.
STANDARDS OF REVIEW
JUDICIAL REVIEW OF THE SSA’S COMMISSIONER’S DETERMINATIONS
Commissioner’s determination of whether or not a claimant is
See Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
Rather, a district court “may set aside the [ALJ’s] determination
that a claimant is not disabled only if the factual findings are
not supported by substantial evidence or if the decision is based
on legal error.”
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.
2008) (internal quotation marks omitted); see Butts v. Barnhart,
388 F.3d 377, 384 (2d Cir. 2004).
than a mere scintilla.
Substantial evidence is “more
It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
court must be certain that the ALJ considered all the evidence
when assessing the legal standards and evidentiary support used by
the ALJ in his disability finding.
20 C.F.R. § 404.1520(3).
“The court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or
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reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.”
Commissioner’s decision to allow the ALJ to further develop the
record, make more specific findings, or clarify his rationale.
See Grace v. Astrue, No. 11-cv-9162, 2013 WL 4010271, at *14
(S.D.N.Y. July 1, 2013); Butts v. Barnhart, 388 F.3d 377, 385–86
(2d Cir. 2004) (“Where the administrative record contains gaps,
remand to the Commissioner for further development of the evidence
is appropriate.”); see also Lopez v. Sec’y of Dept. of Health and
Human Services, 728 F.2d 148, 150–51 (2d Cir. 1984) (“We have
remanded cases when it appears that the ALJ has failed to consider
relevant and probative evidence which is available to him.”);
(indicating that courts may remand the decision when evidence “was
not explicitly weighed and considered by [the ALJ], although such
consideration was necessary to a just determination of a claimant’s
application”) (internal citations omitted).
LEGAL STANDARDS GOVERNING SSA DISABILITY DETERMINATIONS
“To receive federal disability benefits, an applicant
must be ‘disabled’ within the meaning of the [Social Security]
Act.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). A claimant
is disabled under the Act when he is unable to engage in any
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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.”
20 C.F.R. §
The SSA has promulgated a “five-step sequential
evaluation” to determine whether a claimant is disabled. 20 C.F.R.
A. Determining Disability Through the Five-Step Evaluation
i. Step One
At step one, the Commissioner determines whether the
claimant is currently engaged in substantial gainful employment.
20 C.F.R. § 416.920(a)(4)(i). If the claimant is currently engaged
Otherwise, the Commissioner moves to step two.
C.F.R. § 416.920(a)(4)(ii).
ii. Step Two
Step two requires the Commissioner to determine whether
the claimant has a “severe medically determinable physical or
mental impairment” that meets the SSA’s duration requirement.
anatomical, physiological, or psychological abnormalities which
can be shown by medically acceptable clinical and laboratory
20 C.F.R. § 416.908.
The burden is on
the claimant to provide medical evidence from “acceptable medical
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sources” to support his claim that he or she suffers from a
symptoms alone are insufficient to establish a physical or mental
20 C.F.R. § 404.1528(a).
When the claimant purports
to have a mental impairment, the Commissioner must apply a “special
technique” to determine the severity of that mental impairment,
evaluating a claimant’s pertinent symptoms, signs, and laboratory
20 C.F.R. § 416.920a(b)(1)–(2); Kohler v. Astrue, 546
F.3d 260, 265–66 (2d Cir. 2008).
“The Commissioner is required to consider the combined
effect of all [the claimant’s] impairments without regard to
whether any such impairment, if considered separately, would be of
sufficient severity to establish eligibility for Social Security
Burgin v. Astrue, 348 F. App’x 646, 647 (2d Cir. 2009)
(internal quotations omitted).
“An impairment or combination of
impairments is not severe if it does not significantly limit [the
activities.” 20 C.F.R. § 416.921(a). Such “basic work activities”
include: walking, standing, sitting, lifting, pushing, pulling,
understanding, carrying out, and remembering simple instructions,
workers and usual work situations, and dealing with changes in a
- 31 -
routine work setting.
20 C.F.R. § 416.921(b).
severity, the Commissioner will not consider a claimant’s age,
education, and work experience.
20 C.F.R. § 416.920(c).
Commissioner will move onto step three. 20 C.F.R. § 416.920(a)(4).
iii. Step Three
At step three the Commissioner determines whether the
Impairments” found in 20 C.F.R. Part 404, Sub. P, App’x I.
C.F.R. § 416.920(a)(4)(iii).
These are impairments acknowledged
by the Secretary to be of sufficient severity to preclude gainful
If a claimant’s condition “meets or equals” one of
the “listed” impairments, he or she is per se disabled and entitled
to benefits, irrespective of his or her “age, education, and work
experience,” and the sequential evaluation ends.
Id.; 20 C.F.R.
iv. Step Four
If the claimant’s impairments do not “meet or equal” one
Commissioner must proceed to the fourth step:
individual’s “residual functional capacity,” i.e., his or her
capacity to engage in basic work activities, and deciding whether
the claimant’s residual functional capacity (“RFC”) permits the
claimant to engage in his or her “past relevant work.”
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§ 416.920(a)(4)(iv); 20. C.F.R. § 416.920(e).
RFC is defined as the most the claimant can do in a work
setting despite the limitations imposed by his or her impairment.
20 C.F.R. § 416.945(a)(1).
In determining the claimant’s RFC, the
evidence,” as well as descriptions and observations by non-medical
sources, such as the claimant’s friends and family.
20 C.F.R. §
determination relies on the claimant’s allegations of impairmentrelated symptoms, the Commissioner must evaluate those symptoms
using a two-step process. See Social Security Ruling 16-3P, Titles
II and XVI: Evaluation of Symptoms in Disability Claims, 2016 WL
1119029 at *2 (SSA Mar. 16, 2016).
First, the Commissioner must
determine whether the individual has a medically determinable
Commissioner must evaluate the intensity and persistence of the
Id. at *4.
After making the RFC determination, the Commissioner
must determine whether the claimant’s RFC is sufficient to perform
his “past relevant work,” which is defined as substantial gainful
activity that the claimant has done within the past fifteen years.
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20 C.F.R. §§ 416.920(a)(4)(iv), 416.960(b)(1).
If the claimant
can perform his past relevant work, he or she is not disabled.
C.F.R. § 416.920(f).
v. Step Five
The fifth and final step is a determination of whether
a claimant, in light of his residual functional capacity, age,
Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995); 20 C.F.R. §
If the claimant can transition to another job
prevalent in the national economy, the claimant is not disabled;
The claimant must prove his case at steps one through
four; thus, the claimant bears the “general burden of proving . .
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.
At the fifth step, the burden shifts from the claimant to
the Commissioner requiring the Commissioner to show that in light
of the claimant’s RFC, age, education, and work experience, he or
she is “able to engage in gainful employment within the national
Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y.
1997); see also Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
In making that determination, the Commissioner need not provide
- 34 -
additional evidence about the claimant’s RFC, but may rely on the
same assessment that was applied in step four’s determination of
whether the claimant can perform his or her past relevant work.
See 20 C.F.R. § 416.920(g)(1); Poupore v. Astrue, 566 F.3d 303,
306 (2d Cir. 2009).
B. The Treating Physician Rule and Weight Afforded to Other
evaluated when determining whether a claimant is disabled under
sources” that can provide evidence to establish an impairment
include, inter alia, claimant’s licensed treating physicians and
licensed or certified treating psychologists.
See 20 C.F.R. §
In addition, the SSA may rely on “other sources” to
provide evidence of “the severity of [a claimant’s] impairment and
how it affects [a claimant’s] ability to work.”
20 C.F.R. §
416.913(d). “Other sources” include, inter alia, (1) other medical
personnel, (3) social welfare agency personnel, as well as (4)
non-medical sources such as caregivers, parents, and siblings.
In addition, in certain cases the SSA will pay for a qualified
consultative physician to provide a physical or mental examination
of a claimant.
20 C.F.R. § 416.917; see also 20 C.F.R. §§ 416.919,
- 35 -
Under the regulations, the medical opinion of a treating
physician or psychiatrist will be given “controlling” weight if
that opinion is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] record.”
20 C.F.R. §
416.927(c)(2); see also Burgess, 537 F.3d at 128 (describing the
principle as the “treating physician rule”) (citing Green–Younger
acceptable clinical and laboratory diagnostic techniques include
consideration of a “patient’s report of complaints, or history,
[as] an essential diagnostic tool.”
Green–Younger, 335 F.3d at
In addition, opinions from “other sources,” which are not
considered “acceptable medical sources” under the regulations, are
“important and should be evaluated on key issues such as impairment
severity and functional effects.”
Anderson v. Astrue, No. 07–CV–
4969, 2009 WL 2824584, at *9 (E.D.N.Y. Aug. 28, 2009) (citing SSR
06–03p, Titles II and XVI: Considering Opinions and Other Evidence
From Sources Who are Not “Acceptable Medical Sources” in Disability
Claims, 2006 WL 2329939, at *3 (Aug. 9, 2006)).
When a treating physician’s opinion is not afforded
“controlling” weight, the ALJ must “comprehensively set forth [his
or her] reasons for the weight assigned to a treating physician’s
Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004);
- 36 -
see also Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999); 20
C.F.R. § 416.927(c)(2) (stating that the SSA “will always give
‘good reasons’ in [its] notice of determination or decision for
the weight [given to the claimant’s] treating source’s opinion”).
While the regulations do not explicitly or exhaustively define
what constitutes a “good reason” for the weight given to a treating
regulations may guide an ALJ’s determination of what weight to
give a treating source opinion: “(1) the length, frequency, nature,
and extent of the treating relationship, (2) the supportability of
the treating source opinion, (3) the consistency of the opinion
with the rest of the record, (4) the specialization of the treating
physician, and (5) any other relevant factors.”
Scott v. Astrue,
No. 09–CV–3999, 2010 WL 2736879, at *9 (E.D.N.Y. July 9, 2010);
see also 20 C.F.R. § 416.927(c)(2)-(6).
These same factors may
guide an evaluation of the opinions of “other sources,” such as
licensed social workers.
Canales v. Comm’r of Soc. Sec., 698
F.Supp.2d 335, 344 (E.D.N.Y. 2010) (citing SSR 06–03p, 2006 WL
2329939, at *2–3); see also Lopez–Tiru v. Astrue, No. 09–CV-1638
(ARR), 2011 WL 1748515, at *4 (E.D.N.Y. May 5, 2011) (remanding
case where ALJ failed to give controlling weight to treating
physician’s opinion “after making several conclusory statements”).
After considering the entire record and applying the
- 37 -
five-step sequential analysis for determining disability outlined
above, the ALJ concluded that plaintiff was not disabled under
section 1614(a)(3)(A) of the Social Security Act.
(Tr. 32, 43.)
For the reasons discussed herein, the court finds that the ALJ’s
decision was supported by substantial evidence in the record.
Accordingly, the ALJ’s decision is affirmed and defendant’s motion
for judgment on the pleadings is granted.
The ALJ’s Step One Finding was Proper
At step one, the ALJ found that plaintiff had not engaged
The ALJ’s finding was supported by
the record, as plaintiff’s work reports and testimony reflected
that plaintiff has not worked since 2009.
(Tr. 61, 272.)
court finds that the ALJ’s step one finding was supported by
The ALJ’s Step Two Findings were Proper
hypertension, diabetes mellitus, lumbar degenerative disc disease,
and bipolar disorder.
The ALJ’s finding was supported
by the record, as those impairments were reported by plaintiff’s
treating physicians and confirmed by objective medical evidence
during the period since plaintiff’s alleged onset date.
379, 422–23, 465, 467, 535, 543, 546, 549, 553, 555, 557, 559,
- 38 -
562, 565, 598, 661, 674–75, 681–82.)
The ALJ also determined at
step two that although plaintiff has a history of polysubstance
impairment was not severe because there was no indication in the
medical records of any functional limitations due to substance
abuse, and plaintiff’s urine tests were negative for oxycodone.
(Tr. 32, 69.)
After a review of the entire record, the ALJ also
found no evidence of any functional limitations that were caused
by substance abuse.
Plaintiff reported to several of
his doctors that he had not had a substance abuse problem since
(Tr. 381, 385, 477, 503.)
At step two, the ALJ also determined that plaintiff’s
allegations of chronic pain with radicular symptoms were not
The ALJ noted that plaintiff frequently sought
pain management but refused to try non-narcotic or over the counter
medication and the consultative examiners found 5/5 strength in
all extremities, normal neurologic findings and normal range of
motion in the shoulders, elbows, forearms, wrists, hips, knees and
The court finds there is adequate support in the
record for the ALJ’s finding that plaintiff’s complaints of chronic
pain were not consistent with the objective medical evidence and
other evidence in the record.
(See Tr. 383, 504, 644–47, 649–51.)
Accordingly, the court finds that the ALJ, at step two, correctly
applied the proper legal standards, and her findings were supported
- 39 -
by substantial evidence.
The ALJ’s Step Three Findings were Proper
analyzing listings 1.04, 12.04, and 12.06, that plaintiff did not
have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart. P, Appendix 1.
finds that the ALJ correctly applied the proper legal standards,
and her Step Three findings were supported by substantial evidence.
plaintiff must establish a spine disorder resulting in compromise
of a nerve root with loss of spinal motion, motor loss, and
positive straight leg studies.
Subpt. P, App’x 1 at § 1.04.
(Tr. 32-33); 20 C.F.R. § 404,
She also noted that the listing may
also be met by documented spinal arachnoiditis with attendant
symptoms of burning or painful dysthesia, or by spinal stenosis
Under listing 1.04, a finding of degenerative disc disease
arachnoiditis, or lumbar spinal stenosis would result in a finding
20 C.F.R. § 404, Subpt. P, App’x 1 at § 1.04.
Although the record establishes that plaintiff was diagnosed with
degenerative disc disease, the ALJ found that plaintiff failed to
- 40 -
present medical evidence establishing spinal arachnoiditis with
attendant symptoms of burning or painful dysthesia, or spinal
The ALJ cited x-ray results which revealed
narrowing and marginal osteophyte formation, in support of this
compression fractures, normal alignment, intact sacroiliac joints
Further, x-rays of the lumbosacral spine and left hip showed only
changes, and no compression fractures.
(Tr. 33, 502, 597-98.)
The ALJ also noted that the record contained negative straight leg
raises. (Tr. 333, 380-84, 502-24.) Accordingly, the ALJ’s finding
that none of the medical evidence established symptoms that were
severe enough to qualify under Listing 1.04 was supported by
The ALJ found that plaintiff’s mental impairment did not
meet or medically equal the criteria listings under 12.04 and
Under listing 12.04 of the Appendix, a finding
of an affective disorder would result in a finding of disability.
20 C.F.R. § 404, Subpt. P, App’x 1 at § 12.04.
“The required level
of severity for [affective] disorders is met when the requirements
- 41 -
requirements in [Paragraph] C are satisfied.”
The ALJ found that plaintiff’s mental impairments did
not result in any of the four conditions required under Paragraph
To meet the requirements of Paragraph B, plaintiff
has to exhibit two of the following four conditions: (1) marked
difficulties in maintaining social functioning; or (3) marked
difficulties in maintaining concentration, persistence, or pace;
or (4) repeated episodes of decompensation, each of extended
20 C.F.R. § 404, Subpt. P, App’x 1 at § 12.04(B).
The ALJ found that plaintiff’s activities of daily
living, at most, were mildly restricted.
correctly noted that plaintiff’s own testimonies regarding his
daily activities were sometimes, on the same day, vastly different.
(Tr. 33; see e.g., Tr. 72-74, 496, 503.)
at the ALJ hearing, and elsewhere in the record as noted by the
ALJ, indicated that plaintiff could dress, bathe, groom himself,
take public transportation, manage money, shop, perform childcare
and do laundry.
(Tr. 378, 381, 496.)
Accordingly, the ALJ’s
finding that plaintiff’s activities of daily living, were, at most,
mildly restricted was supported by substantial evidence in the
Second, the ALJ found that plaintiff was not markedly
restricted in social functioning.
- 42 -
The ALJ noted that
Dr. Flach, a consultative examiner, reported that plaintiff had
“good social skills,” and Dr. Lancer, also a consultative examiner,
likewise noted that plaintiff’s manner of relating and social
skills were “adequate.”
(Tr. 33, 377, 495.)
mentioned his fiancé at the December 6, 2012 hearing and elsewhere
in the record, and treating psychiatrist, Dr. Voight, reported on
multiple occasions that plaintiff had fair or good insight and
judgment, and that plaintiff was articulate. (Tr. 74-75, 416–17,
Accordingly, the court finds that the ALJ’s finding
that plaintiff was not markedly restricted in social functioning
was supported by substantial evidence in the record.
Third, the ALJ found that at most, plaintiff had moderate
difficulties in maintaining concentration, persistence, or pace.
The ALJ relied on the two consultative examiners, who
(Tr. 33, 377-78, 495–96.)
These findings were consistent
with plaintiff’s treating psychiatrist, Dr. Voight, who found that
plaintiff had good memory, fair judgment, insight, and awareness,
and appropriate thought processes and content.
(Tr. 764; see also
The court finds that the ALJ’s finding that plaintiff,
at most, had moderate difficulties in maintaining concentration,
persistence, or pace was supported by substantial evidence in the
- 43 -
Fourth, The ALJ found that plaintiff experienced no
episodes of decompensation which have been of extended duration.
psychiatrically hospitalized as an adult.
hospitalized twice during the 1980s, more than 30 years before the
onset of his alleged disability.
ALJ’s finding that plaintiff does not meet the requirements of
Paragraph B was supported by substantial evidence in the record.
The ALJ determined that the evidence did not establish
the presence of Paragraph C criteria for Listings 12.04 and 12.06.
To meet the requirements of Paragraph C of 12.04,
plaintiff had to show that he has a medically documented history
of a chronic affective disorder of at least 2 years’ duration that
has caused more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following: (1)
repeated episodes of decompensation, each of extended duration; or
(2) a residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change
in the environment would be predicted to cause the individual to
arrangement, with an indication of continued need for such an
- 44 -
20 C.F.R. §§ 404, Subpt. P, App’x 1 at § 12.04(C).
To meet to requirements of Paragraph C for Listing 12.06, plaintiff
had to establish a complete inability to function independently
outside the area of one’s home.
20 C.F.R. §§ 404, Subpt. P, App’x
1 at 12.06(C).
The ALJ determined that the medical evidence in the
record did not indicate that the claimant’s mental impairments
have resulted in repeated episodes of decompensation, a residual
disease process resulting in marginal adjustment, a history of one
supportive living arrangement, or a complete inability to function
independently outside of plaintiff’s home.
findings were supported by Dr. Shliselberg who, on June 6, 2011,
Plaintiff’s mental impairments did not satisfy the criteria of a
“per se disabling” impairment set forth in Listings 12.02 (organic
(substance addiction disorders).
Further, the record
shows that plaintiff was mentally stable, had not been hospitalized
for a psychiatric illness in over 30 years, cared for himself,
took public transportation, shopped on occasion, and was able to
socialize with family members and his fiancé, in the period after
the alleged onset date. (Tr. 74-75, 378, 381, 494, 496, 775.)
Accordingly, the ALJ’s finding that plaintiff does not
- 45 -
meet the requirements of Paragraph C was supported by substantial
plaintiff’s impairments did not meet or equal a disorder under
Listings 12.04 and 12.06 was also supported by the record.
e.g. Cobb v. Comm’r of Soc. Sec., No. 13-cv-0591, 2014 WL 4437566,
at *9 (N.D.N.Y. Sept. 9, 2014)(finding that the claimant did not
meet the mental listings where “she successfully goes shopping and
her manner at all of her counseling sessions was appropriate,
despite being outside her home.”); Cruz v. Colvin, 13-cv-1267,
2014 WL 4384129, at *17 (S.D.N.Y. Aug. 29, 2014)(finding that
claimant had not met listing 12.06(c) where “she was able to shop,
travel to doctor’s appointments, and use public transportation.”).
The ALJ’s Residual Functional Capacity Determination and
Step Four Findings were Proper
Next, the ALJ determined plaintiff’s RFC by considering
plaintiff’s subjective complaints and the medical evidence.
The ALJ found that plaintiff had the RFC:
to perform light work as defined in 20 C.F.R.
§416.967(b) except the [plaintiff] can stand
and walk for 6 hours in an 8-hour workday; can
sit for 6 hours in an 8-hour workday; can
understand, remember, and carry out simple,
routine instructions; and is limited to
working in a low stress work environment
meaning requiring only occasional decisionmaking and judgment, only occasional changes
in the work setting, procedures, and tools,
and only occasional interaction with coworkers
and the general public.
The ALJ determined that plaintiff’s medically
- 46 -
determinable impairments could reasonably be expected to produce
plaintiff’s alleged symptoms but found that plaintiff’s statements
regarding the intensity, persistence and limiting effects of these
symptoms were not entirely credible.
The court finds
that the record as a whole did not support plaintiff’s subjective
complaints and substantial evidence supported the ALJ’s findings
Subjective symptoms such as pain are insufficient to
establish that a person is disabled under the Act; there must be
medical signs and laboratory findings showing a medical impairment
that could reasonably be causing the pain or other symptom.
determinable impairment that could reasonably cause the symptoms,
the Commissioner then evaluates plaintiff’s statements about the
intensity and persistence of his symptoms and limitations to
determine if they suggest a greater restriction of function than
is demonstrated by the objective medical evidence.
20 C.F.R. §
The Commissioner considers evidence regarding these
onset, duration, frequency, and intensity of his pain; factors
treatment; and any other measures utilized to relieve the pain or
Id.; SSR 16-3P, 2016 WL 1119029.
- 47 -
Plaintiff alleged at the time he applied for SSI that he
suffered mental illness, chronic back pain, hypertension, a heart
condition, and chest pain.
As discussed above, the
neuropathy, hypertension, diabetes mellitus, lumbar degenerative
disc disease, and bipolar disorder.
Accordingly, the court finds
impairments were not supported by the objective medical evidence
or other evidence and were unlikely to produce the symptoms he
complained of, was supported by substantial evidence.
Second, the ALJ evaluated the intensity and persistence
of the claimant’s symptoms and determined that plaintiff was able
to perform light work despite the limiting effects of his symptoms.
Although a recent Social Security Ruling modified
the standard at step two of the RFC inquiry such that it is no
determination based on the individual’s character, an ALJ is still
limiting effects were consistent with objective medical evidence
and other evidence.
SSR 16-3P, 2016 WL 1119029, at *1, 4, 7;
compare to SSR 96-7P, 1996 WL 374186.
The court finds that
although the ALJ made a credibility determination, (Tr. 40-41),
the ALJ correctly applied the controlling legal standard, as
- 48 -
discussed in SSR 16-3P, when she considered the entire record,
intensity, persistence and limiting effects of an plaintiff’s
SSR 16-3P, 2016 WL 1119029. 3
Further, the court finds
that the ALJ’s findings as to the intensity, persistence and
limiting effects were supported by substantial evidence in the
The ALJ conducted a thorough and detailed review of the
record, beginning with plaintiff’s physical ailments.
The ALJ noted that plaintiff’s examinations often showed
only normal findings.
She cited a September 2010
examination, where plaintiff complained of shortness of breath,
but Dr. Polizzi, the examining physician, reported only normal
(Tr. 35, 362.)
The ALJ also cited a December 9, 2010
prescription refills; again, plaintiff did not report any pain,
findings were all noted as normal.
(Tr. 35, 542-44.)
also cited a March 11, 2011, follow up appointment that similarly
showed normal findings; plaintiff did not report any back or leg
3 The court notes that prior to the issuance of SSR 16-3P, SSR 96-7P, 1996 WL
374186, was controlling, and that ruling allowed ALJs to assess the
credibility of the claimant during the RFC determination.
- 49 -
pain and upon examination, plaintiff’s musculoskeletal findings,
findings were all noted as normal.
Dickerson on May 4, 2011.
(Tr. 35, 545-47.)
(Tr. 35, 380-384.)
to Dr. Dickerson that he had bad legs, severe back pain, a bad
heart and high blood pressure.
(Tr. 35, 380-81.)
examination and that he had the ability to cook, clean, do laundry,
shop, and provide childcare.
(Tr. 35, 381.)
reported that he showered, bathed, and dressed himself five or six
times a week and engaged in some recreational activity, including
examination, Dr. Dickerson reported that plaintiff was obese and
had high blood pressure but Dr. Dickerson’s findings were otherwise
(Tr. 35, 383.)
The ALJ gave only some weight to the
opinion of Dr. Dickerson, a consultative examiner, that plaintiff
had no functional limitations due to any physical impairment,
because he ALJ determined that plaintiff had some functional
limitations because of his morbid obesity and mild to moderate
The ALJ cited plaintiff’s examinations during June 2011,
where plaintiff reported no acute problems but indicated that he
had chronic back pain.
(Tr. 35, 550.)
- 50 -
Plaintiff also reported
that he had left hip pain and knee pain during this period.
The ALJ further noted that during this period plaintiff
reported that he was taking OxyContin and Gabapentin for years to
manage his pain, but that he had to switch doctors because his
medication was not found in his urine.
(Tr. 35, 550.)
noted that x-rays of plaintiff’s lumbosacral spine and left hip
osteoarthritic changes, but the ALJ also noted that the x-rays
also showed no compression fractures, normal alignment, intact
sacroiliac joints and sacrum, and no paravertebral soft tissue
(Tr. 35, 553, 598.)
reported that his back pain was controlled with Percocet, and on
November 18, 2011, plaintiff denied feeling any pain.
She further noted that plaintiff’s hypertension was
reported as being under control in March 2012.
(Tr. 36, 665.)
The ALJ gave some weight Dr. Greenidge-Patton’s May 8,
2012, finding that during an 8-hour work period, plaintiff could
consistently sit for 1–3 hours, stand for 1–3 hours, walk for 1–3
hours, reach for 1–3 hours, and grasp for 1–3 hours, but could not
pull, climb, bend, or kneel.
(Tr. 36, 580–81.)
The ALJ noted
that the limitations that Dr. Greenidge-Patton identified were
consistent with plaintiff being able to perform work at the light
- 51 -
The ALJ discounted Dr. Greenidge-
Patton’s opinion that plaintiff could not pull, climb, bend, or
kneel because it was not supported by Dr. Greenidge-Patton’s
examination findings or the medical evidence in general.
The ALJ discussed plaintiff’s June 2012 visits to Beth
Israel, where plaintiff sought oxycodone.
(Tr. 36, 644-51.)
the first visit on June 1, 2012, the plaintiff reported he was
taking oxycodone, 80mg/4 times per day; the ALJ noted that the
(Tr. 36, 649-51.)
The ALJ noted that, at the next
visit, on June 14, 2012, plaintiff was referred to pain management
prescribed oxycodone and, although recommended by his doctor,
(Tr. 36, 644-47.)
The ALJ noted that during a June 20,
limitations in plaintiff’s lumbar spine, hips and legs, but Dr.
Cruciani otherwise reported normal findings.
(Tr. 36, 530.)
the same visit, plaintiff reported to Dr. Cruciani that he was
working as a security guard and was in the process of getting a
legal permit to carry a firearm.
The ALJ gave great weight to the July 9, 2012 opinion of
Dr. Tranese, the orthopedic consultative examiner.
(Tr. 36, 502.)
The ALJ noted that plaintiff reported that he did not cook, clean,
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do laundry, or shop and that he depended on his parent for
showering, dressing and grooming. 4
(Tr. 36, 503.)
The ALJ noted
that Dr. Tranese reported that during the exam that although
plaintiff refused to flex or extend his back, he was able to bend
down to pick up a sheet of paper from the floor.
(Tr. 36, 504.)
Based on his examination and a review of the x-rays that plaintiff
provided, Dr. Tranese concluded that plaintiff could occasionally
lift and carry up to 50 pounds; in total for an 8 hour work day,
plaintiff could sit for 8 hours, stand for 7 hours and walk for 6
hours; plaintiff could continuously reach, handle, finger, feel,
frequently climb stairs and ramps, balance, stoop, kneel, crouch,
(Tr. 36-37, 506-08.)
The ALJ gave great weight to Dr.
treatment notes and by Dr. Eyassu’s findings.
Dr. Eyassu, M.D., consultative examiner, also examined
plaintiff on July 9, 2012; her findings were also discussed by the
(Tr. 37, 513-17.)
Dr. Eyassu’s examination was largely
consistent with Dr. Tranese, except that Dr. Eyassu found that
plaintiff could occasionally lift/carry up to 50 pounds; could sit
and stand for 4 hours, and walk for 3 hours in an 8-hour workday;
plaintiff could continuously reach, handle, finger, feel and could
The ALJ also noted that plaintiff reported to Dr. Lancer, on the same day,
that he could dress, bathe, and groom himself without assistance. (Tr. 36, n.
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exposed to unprotected heights, moving mechanical parts, humidity
and wetness, dust, odors, fumes and pulmonary irritants, extreme
cold and heat, and vibrations.
(Tr. 37, 518-23.)
The ALJ noted
that she gave less weight to Dr. Eyassu’s opinion because plaintiff
refused to participate in many of the tests and showed poor effort
in doing some of the other tests that Dr. Eyassu attempted to
The ALJ noted other areas in the record where plaintiff’s
alleged symptoms were inconsistent with the evidence in the record.
For instance, on August 28, 2012, plaintiff reported to
Nurse Practitioner Farley that his pain was a 10 on a 10-point
The ALJ noted that Practitioner Farley reported,
however, that plaintiff could ambulate, change positions, and
completed the visit comfortably. 5
(Tr. 37, 668.)
The ALJ gave
little weight to Practitioner Farley’s September 4, 2012, opinion
reaching, and grasping for 1-3 hours in an 8-hour work day, and
her finding that plaintiff could not push, pull, climb, or bend
because they were inconsistent with her findings from August 28,
Practitioner Farley also reported that although plaintiff had been without
pain medication for a month, plaintiff was not in acute distress during this
visit. (Tr. 668.)
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2012, and inconsistent with other evidence in the record.
plaintiff’s diabetes was reported as being well controlled; in
October 2012, plaintiff was diagnosed with mid-foot degenerative
changes bilaterally, degenerative joint disease and posterior heel
spurs bilaterally; in November 2012, plaintiff was diagnosed with
mild to moderate neuropathy.
Based on her review of the record, the ALJ concluded
that plaintiff had limitations due to his obesity and neuropathy,
but the objective findings, plaintiff’s statements regarding his
discredited some opinions from 2012 because plaintiff reported to
Dr. Cruciani that he was working as a security guard in 2012, and
was in the process of attaining a license to carry a firearm.
Plaintiff maintained at the hearing that he last worked
in 2009 and his earning record from the City of New York is
consistent with this statement.
(Tr. 13, 242.)
Based on this
information, the ALJ acted within her authority when she discounted
some opinions regarding plaintiff’s alleged disability.
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts
in the medical evidence are for the Commissioner to resolve.”).
Moreover, even if plaintiff was not employed as a security guard
in 2012 and the ALJ should not have discounted plaintiff’s other
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reports, there was substantial evidence in the record supporting
the ALJ’s findings.
Accordingly, the court finds that the ALJ
afforded the proper weights to the various medical opinions, and
as such, the ALJ’s findings were supported by substantial evidence.
Similar to plaintiff’s alleged physical impairments, the
ALJ found that plaintiff alleged mental issues were not fully
supported by the medical evidence.
The ALJ noted that
Dr. Flach, consultative examiner, examined plaintiff on May 4,
2011, when plaintiff reported that he had dysphoric moods, anxiety,
talkative speech, psychomotor agitation, excessive involvement in
pleasurable activities, elevated/expansive mood, flight of ideas,
short-term memory problems, and concentration problems.
The ALJ noted that despite these symptoms, the claimant
reported that he was able to dress and bathe himself, clean, do
laundry, shop, manage money, take public transportation, and go on
dates with women.
(R. 38, 378.)
The ALJ noted that Dr. Flach’s
diagnosis was inconsistent with plaintiff’s reported symptoms; Dr.
Flach found that plaintiff had good social skills, cooperative
demeanor, adequate grooming and hygiene, adequate expressive and
processes, clear sensorium, and intact orientation.
(Tr. 38, 378-
Dr. Flach concluded that claimant only had mild difficulties
maintaining attention and concentration and dealing with stress.
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The ALJ afforded great weight to Dr. Flach’s opinion.
The ALJ afforded some weight to Dr. Shliselberg, M.D.,
State agency psychiatric consultant’s opinion from June 6, 2011.
The ALJ noted that Dr. Shliselberg concluded that
plaintiff could work but had some moderate limitations in his
interruptions from psychologically based symptoms, and to perform
remember, and carry out detailed instructions.
(Tr. 38, 406-08.)
The ALJ afforded some weight, but less weight than afforded to Dr.
Shliselberg reviewed the medical evidence but did not actually
experiencing auditory hallucinations along with anxiety to Dr.
Voight, his treating psychiatrist on November 16, 2011.
Dr. Voight opined on January 3, 2013 that plaintiff had
poor ability to sustain attention and concentration for 2 hours at
instructions, conform to normal work rules and schedules, work at
a consistent pace until a task is complete, respond appropriately
to ordinary work pressures, make judgments on simple work-related
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problems, and respond appropriately to supervisors and coworkers.
(Tr. 38, 716-18.)
The ALJ afforded little weight to Dr. Voight’s
opinion because it was inconsistent with his treatment notes over
the course of the previous 12 months, and because plaintiff only
mentioned that he experienced hallucinations when he was in his
therapy sessions, but never to any of the other doctors plaintiff
visited during the same period.
The court finds that although Dr. Voight was plaintiff’s
treating psychiatrist, the ALJ gave “good reasons” for discounting
his January 3, 2013 opinion. 6
Santiago v. Barnhart, 441 F. Supp.
2d 620, 628 (S.D.N.Y. 2006) (The “ALJ can give the treating
physicians’ opinions less than controlling weight only if they are
not well supported by medical findings or are inconsistent with
other substantial evidence in the record.”) Dr. Voight’s treatment
notes between December 2011 and January 18, 2013, do not support
his January 3, 2013 report.
Between December 2011 and January
2013, Dr. Voight typically made the following findings about
homicidal or suicidal ideations, fair or good concentration, fair
or good memory, fair or good insight, and fair or good judgment.
(Tr. 416, 767–75.)
The ALJ noted that on January 18, 2013, two
The ALJ credited Dr. Voight’s opinions and findings expressed in his
treatment notes between December 2011 and January 18, 2013. (Tr. 39.)
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weeks after Dr. Voight’s January 3, 2013 report and his latest
psychiatric treatment note in the record, Dr. Voight reported that
plaintiff had good concentration, good memory, good intellectual
(Tr. 39, 764.)
Accordingly, the court finds that the ALJ’s
decision to not accord controlling weight to Dr. Voight’s January
3, 2013 opinion was supported by substantial evidence.
The ALJ also relied on the opinion of Dr. Lancer, a
consultative examiner, from July 9, 2012.
(Tr. 39, 494-500.)
Lancer opined that claimant had moderate limitations in his ability
coworkers and to respond appropriately to usual work situations
and to changes in a routine work setting.
(Tr. 39, 498-99.)
ALJ gave some weight to this opinion, but noted that Dr. Flach’s
findings, plaintiff’s work activity in 2012, and more recent mental
health treatment notes, such as Dr. Voight’s January 18, 2013
treatment note, all indicated greater functioning than opined by
In sum, the court finds that the ALJ’s RFC finding that
plaintiff is able to perform work at the light exertional level
when limited to unskilled work in a low stress work environment
was supported by substantial evidence.
Next, the ALJ
concluded that plaintiff was unable to perform any past relevant
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The ALJ’s finding was proper and supported by
plaintiff’s past work exceeded his RFC.
(Tr. 38, 41.)
The ALJ’s Step Five Findings were Proper
At step five, the ALJ determined that there were several
jobs available in significant numbers in the national economy that
Commissioner has the limited burden of showing there is other work
that a claimant can perform.
See Poupore v. Astrue, 566 F.3d 303,
306 (2d Cir. 2009); 20 C.F.R. §§ 416.920(e)-(g).
ordinarily discharges that burden by using the applicable rule(s)
in the Medical Vocational Guidelines, which take administrative
notice of the numbers of unskilled jobs that exist throughout the
national economy at five categories of exertional levels.
C.F.R. Part 404, Subpt P, App’x 2 (Grid(s)), § 200.00(b); see 20
C.F.R. §§ 416.960(c), 416.969; see also Heckler v. Campbell, 461
U.S. 458 (1983). The ALJ did not use the SSA’s Grid Rules, however,
limitations that affected his ability to do the full range of light
The ALJ instead properly relied on vocational
expert evidence to assist in determining whether a significant
number of jobs existed that plaintiff could perform.
see 20 C.F.R. § 416.966(e); Dumas v. Schweiker, 712 F.2d 1545,
1554 (2d Cir. 1983) (vocational expert testimony satisfies the
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Commissioner’s burden of showing the existence of jobs).
relied on, and accepted the Vocational Expert’s testimony that
there were jobs available in significant numbers in the national
(Tr. 42-44, 100-102.)
In sum, substantial evidence
in the record supported the ALJ’s decision that plaintiff was not
disabled under the Social Security Act.
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For the foregoing reasons, the court holds that the
Commissioner’s finding that plaintiff was not disabled as defined
by the Social Security Act since January 13, 2011, was supported
defendant’s Motion for Judgment on the Pleadings is GRANTED, and
the decision of the ALJ is AFFIRMED.
The Clerk of Court is
respectfully directed to enter judgment for the defendant, and
close this case.
The Clerk of Court is respectfully directed to
serve plaintiff with a copy of this Memorandum and Order, and note
service on the docket.
February 13, 2017
Brooklyn, New York
Kiyo A. Matsumoto
United States District Judge
7 In plaintiff’s appeal to the Appeals Council, Ruth Axelrod, plaintiff’s
counsel during the administrative proceeding, raised several arguments. (Tr.
346.) The court evaluated the arguments raised by plaintiff’s previous
counsel and found them to be without merit.
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