Green v. Commissioner of Social Security

Filing 82

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
--------------------------------------X
MEMORANDUM AND ORDER

LAWRENCE GREEN,

14-CV-5489 (KAM)
Plaintiff,
-against-

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------X
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.

-1-

BACKGROUND
I.

PLAINTIFF’S PERSONAL AND EMPLOYMENT HISTORY
Plaintiff was born on January 24, 1971, in Brooklyn, New

York.

(Tr. 52-53.) 1

He is not married, has no children, and lists

his mother’s residence as his current address.

(Tr. 55–56.)

Plaintiff completed either the seventh or the eighth grade in
special education classes.

(Tr. 53, 427.)

Plaintiff stopped

attending regular school after he was incarcerated as a minor.
(Tr. 53.)

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.
testified

at

the

Initial

Hearing

(Tr. 53–54.)

held

on

Plaintiff

December

6,

2012

(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.
496, 619.)

(Tr. 381,

Further, plaintiff has written several letters and

made several motions to this court, and he passed a licensing exam
for security work.
Plaintiff

(Tr. 427; see generally the docket.)
reported

between 1996 and 2012.

that

(Tr. 282.)

he

had

the

following

jobs

From 2004 to 2005, for six

months, he worked in the maintenance department for the New York

1

“Tr.” citations are to the correspondingly numbered pages in the certified
administrative record that is part of the Commissioner’s answer.

-2-

City

Department

of

responsibilities
bathrooms.

Parks

and

included

(Tr. 59, 262.)

Recreation.

picking

up

packages.
security
Group.

at

guard

for

282.)

and

His

cleaning

In 2007, also for six months, plaintiff

FedEx

(Tr. 281.)

59,

garbage

worked as a packer and cleaner for FedEx.
responsibilities

(Tr.

included

(Tr. 59, 282.)

picking

up

garbage

His
and

From 2007 to 2009, plaintiff worked as a

Elite

Investigations

(Tr. 60, 242-43, 282.)

and

Madison

Security

His responsibilities included

patrolling his designated areas and ensuring that there were no
irregularities.

(Tr. 263.)

Plaintiff testified that he left the

position after he was shot and robbed on duty.

(Tr. 60.)

These

three roles required an eight-hour work day and five-day work
weeks.

(Tr. 272.)

Plaintiff also testified that he has not been

employed since he stopped working as a security guard in 2009.
(Tr. 381.)

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.

(Tr.

61-62, 529.)
II.

MEDICAL HISTORY
A. Evidence Related to Claimed Physical Impairments
Records from St. John’s Episcopal Hospital from September
2009 to March 2011

-3-

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.

(Tr. 349.)

Dr. Sampat noted that

plaintiff had normal motor functioning and coordination.
350.)

(Tr.

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.

(Id.)

On March 4, 2010, plaintiff visited Dr. Saif Khan, M.D. with
complaints of itchy skin, skin rash, and earache.

(Tr. 355–56.)

Dr. Khan diagnosed plaintiff with an ear infection, acute otitis
externa, and contact dermatitis while noting that plaintiff had
normal motor functioning and coordination.
Dr.

Mendel

September 17, 2010.

Warshawsky,
(Tr. 535.)

M.D.,

(Tr. 356.)
examined

plaintiff

on

Plaintiff visited the clinic for

a pre-employment physical exam; plaintiff had no complaints and
reported that he was not in pain.
that

plaintiff

was

“obese,

(Id.)

healthy

Dr. Warshawsky observed

looking”

and

not

in

any

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.

(Tr. 537.)

Plaintiff indicated that he was not in pain, and Dr. Sanda observed

2

The earliest record pertaining to plaintiff’s claimed physical impairments
is from September 10, 2009.

-4-

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.
537-38.)

Dr.

limitations

and

Sanda
that

found

that

plaintiff

plaintiff

could

engage

had
in

no

physical

recreational

programs including sports and swimming. (Tr. 365–66.)

Another

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.
Plaintiff

visited

St.

(Id.)

John’s

Episcopal

hospital

on

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.)

(Tr. 542–

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.

(Tr.

464–65, 466–67, 535, 542–43, 545–46, 548–49.)
Records from Industrial Medicine Associates in May 2011
On

May

4,

2011,

plaintiff

-5-

was

referred

to

Robert

Dickerson,

D.O.,

for

Plaintiff

reported

to

a

consultative

Dr.

Dickerson

examination.
that

he

had

(Tr.
“bad

380.)
legs.”

However, Dr. Dickerson’s examination revealed no abnormality in
plaintiff’s legs, normal range of motion, no pain on palpation, no
sensory

motor

deficits,

he

showed

no

signs

of

synovitis

inflammation; plaintiff’s neurologic examination was normal.
380, 383.)

or

(Tr.

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.
(Tr. 382.)
Plaintiff complained of a bad back and graded his back
pain at a “10/10.”
was

(Tr. 380.)

intermittent

and

Plaintiff reported that the pain

associated

extreme range of motion.

with

prolonged

standing

and

Dr. Dickerson found that plaintiff had

normal range of motion in his back.

(Id.)

Examination of his

spine showed full flexion and extension, and his joints had full
range of motion.

(Tr. 383.)

Dr. Dickerson found that plaintiff

had 5/5 strength in his extremities, with no sensory deficit noted.
(Id.)

Plaintiff also reported that he has a “bad heart.”

380.)

The cardiac examination was normal and plaintiff did not

report chest pain.

(Tr.

Dr. Dickerson noted that plaintiff had high

blood pressure and plaintiff stated that he did not take his blood
pressure medication on that day.

(Tr. 380.)

noted that plaintiff had a history of seizure.

-6-

Dr. Dickerson also
(Tr. 381.)

Plaintiff

reported

that

he

rode

the

bus

to

the

examination and that he had the ability to cook, clean, launder,
shop, and provide childcare.

(Tr. 381.)

Plaintiff also said he

showered, bathed, and dressed himself five or six times a week and
engaged in some recreational activity, including playing sports.
(Id.)

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
March 2012
Plaintiff next visited St. John’s Episcopal Hospital on
June 9,
anxiety.

2011,

a

pain

seeking

(Tr. 550.)
management

referrals

for

pain

management

and

for

Plaintiff reported that he had been seeing
doctor

for

years

where

he

was

prescribed

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
urine.

(Id.)

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.)

He

was discharged with referrals for anxiety disorder treatment and
pain management.

(Tr. 552.)

On June 13, 2011, plaintiff complained of pain in his
lower back, left hip, and knee.

(Tr. 553.)

Drs. Grohovski, M.D.

and Challa, M.D. noted that an x-ray performed on June 9, 2011,

-7-

revealed that plaintiff had generalized degenerative disc disease
and mild osteo-arthritic changes. (Tr. 553, 598.)

Plaintiff was

discharged with prescriptions for Ibuprofen and Flexeril and a
referral

for

physical

management specialist.

therapy

and

(Tr. 554.)

a

follow

up

with

a

pain

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
for psychiatry.

(Tr. 555, 557, 559.)

during these visits.

(Id.)

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.

(Tr. 561-62.)

Plaintiff also

reported that he had a mild cough, snored at night, felt fatigued
in the day time, and had stomach discomfort.

(Id.)

He was given

a refill of his current medications and referrals for his sleep
and stomach problems.

(Tr. 563.)

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.

(Tr. 564-66.)

Dr.

Argishti noted that plaintiff was referred to the pulmonary clinic

-8-

for sleep studies after he complained of snoring issues, but
plaintiff refused to have the test done.

(Tr. 564.)

also

acute

noted

that

plaintiff

showed

abnormalities were detected.

no

(Tr. 564.)

Dr. Argishti

distress

and

no

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.

(Tr. 564.)

that

2011

examined

plaintiff

from

June

to

All the doctors

March

2012

plaintiff’s history of hypertension and morbid obesity.

noted

(Tr. 553,

555, 557, 559, 562, 565.)
Records from Bushwick Community Health Center from May to
August 2012
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
Center,

and

Dr.

Loretta

Greenidge-Patton,

M.D.,

in

order

to

complete a biopsychosocial report for plaintiff. (Tr. 567-635.)
The report indicated that plaintiff can speak, read, and write
English.

(Tr. 568.)

moderately

depressed

The report also indicated that plaintiff was
and

treated for the condition.

that

plaintiff

(Tr. 570.)

was

currently

being

Plaintiff reported that he

watched television, got himself dressed, bathed and used the
bathroom by himself.

(Tr. 574.)

He also reported that he had no

hobbies, was not able to wash dishes or his clothes, sweep or mop

-9-

the floor, vacuum, make the bed, shop, cook, or socialize.

(Tr.

574.)
Plaintiff’s medical examination revealed hypertension,
pain in the back, left hip and leg, joint pain, dizziness and
depression.

(Tr. 579.)

His physical examination revealed obesity

and inability to raise left leg fully.

(Tr. 580.)

Plaintiff

reported that his pain was a 10, on a scale from 1 to 10 with 10
being the worst.

(Id.)

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.

(Tr. 583.)

Dr. Greenidge-

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.

(Id.)

She recommended adding

an anti-depressant to plaintiff’s treatment regimen.

(Tr. 584-

85.)
On

May

8,

2012,

Dr.

Pierre

Felix,

M.D.,

examined

plaintiff and opined that plaintiff could sit, stand, walk, lift,
push, pull, climb and descend stairs, bend at the hip, bend at the

- 10 -

knee, turn his head, bend his neck, and write and grasp normally.
(Tr. 609.)

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.

(Tr. 614.)

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
documentation provided.

(Tr. 629-630.)

Ms. Servio found that

plaintiff required a modified work environment where kneeling,
pushing, pulling, carrying, stooping, bending, and reaching are
limited or eliminated.

(Tr. 629.)

She also found that plaintiff

did not require a travel accommodation.
concluded that plaintiff was unable to work.

Ms. Servio ultimately
(Tr. 629.)

She cited

plaintiff’s morbid obesity, chronic lower back pain, hip and knee
pain, hypertension, his depressive disorder, his complaints about
his

anxiety

determination.

and

issues

with

sleeping

in

support

of

(Tr. 629-630.)

Records from Beth Israel Medical Center in June 2012

- 11 -

her

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
the

doctors

suspected

drug

abuse.

(Tr.

644–47,

649–51.)

Plaintiff was diagnosed with hypertension, morbid obesity, and
backache;

no

abnormalities

were

revealed

from

examinations at the June 1st and June 14th visits.
650–51.)

the

physical

(Tr. 644–45,

Dr. Masias-Castanon, M.D. during the June 1, 2012 visit,

called two pharmacies to verify that plaintiff had prescriptions
for oxycodone.

(Tr. 650-51.)

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.

(Id.)

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.

(Tr. 651.)

Plaintiff refused over the counter pain medications after being
denied a prescription for oxycodone, he instead requested a pain
management referral for oxycodone.

(Tr. 651.)

At the June 14, 2012 visit, plaintiff reported that his
last oxycodone use was 2 months earlier.

(Tr. 644.)

He denied

using any over the counter medication or any other pain medications
during the two months since he ran out of oxycodone.

(Id.)

Plaintiff also reported that he sleeps to overcome the pain and
again refused other non-opioid pain medication.

- 12 -

(Tr. 644-45.)

At

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
demanded oxycodone.

(Tr. 646-47.)

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
plaintiff.

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.”

(Tr. 529.)

Dr.

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.

(Id.)

Dr. Cruciani’s physical examination of

plaintiff revealed that plaintiff was in no acute distress but
appeared

anxious

and

depressed.

(Id.)

He

also

noted

that

plaintiff’s range of motion was decreased in all directions and
there was tenderness along para-spinal lumbar levels.

(Tr. 530.)

Dr. Cruciani assessed that plaintiff had lower back pain and
recommended an MRI to rule out facet disease.

(Tr. 530.)

Dr.

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.

- 13 -

(Id.)

(Tr. 532.)

Her

findings

were

materially

consistent

with

Dr.

Cruciani’s

findings on June 20, 2012. (Id.)
Records from Industrial Medicine Associates in July 2012
On

July

9,

2012,

Louis

Tranese,

D.O.,

consultative orthopedic examination on plaintiff.

performed

a

(Tr. 502.)

Plaintiff reported that he did not cook, clean, do laundry, or
shop and that he depended on his parent to shower, to dress and
for grooming.

(Tr. 503.)

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.
(Tr. 502.)

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.

(Tr. 503-04.)

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
extremities.

(Tr. 504.)

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.
503.)

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,

- 14 -

squatting, or kneeling.

(Tr. 505.)

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
functional deficits.”

(Id.)

Dr. Tranese completed the “Medical Source Statement of
Ability to do Work-Related Activities (Physical)” form.
512.)

(Tr. 506-

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.

(Tr. 506.)

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.

(Tr. 507.)

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.

(Tr. 508.)

Plaintiff was found to

frequently be able to climb stairs and ramps, balance, stoop,
kneel, crouch and crawl but could only occasionally climb ladders
or scaffolds.

(Tr. 509.)

Plaintiff was not found to have any

environmental exposure limitations.

(Tr. 510.)

Also on July 9, 2012, Rahel Eyassu, M.D., performed a
consultative internal medicine examination on plaintiff.
513.)

(Tr.

Plaintiff reported that he does not clean, cook, do laundry

- 15 -

or shop, but he reported that he showered and dressed himself.
(Tr. 514.)

He also reported that he liked to listen to the radio

and he liked to read.

(Id.)

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.
(Id.)

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.

(Tr. 515.)

Dr. Eyassu found that

plaintiff experienced pain with forward elevation of the left
shoulder.

(Id.)

Dr. Eyassu found no sensory deficits in

plaintiff’s upper or lower extremities and found that plaintiff
had full strength in his upper extremities.
not

determine

plaintiff

the

refused

strength
most

of

of
the

his

lower

tests.

(Tr. 516.)

She could

extremities
(Id.)

Dr.

because
Eyassu’s

determined that plaintiff would be limited in repetitive bending
and activities with heavy lifting, and mildly limited in walking,
prolonged
movements.

standing,

prolonged

sitting,

and

excessive

neck

(Id.)
Dr. Eyassu completed the “Medical Source Statement of

Ability to do Work-Related Activities (Physical)” form.
524.)

(Tr. 518-

Dr. Eyassu concluded that plaintiff could lift and carry up

to 10 pounds frequently; plaintiff could occasionally lift and

- 16 -

carry up to 50 pounds; plaintiff could never lift or carry 51 to
100 pounds.

(Tr. 518.)

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.

(Tr. 519.)

Dr.

Eyassu found that plaintiff had some limitation with pushing and
pulling, but found no other limitations with either hand.
520.)

(Tr.

She also found that plaintiff had some minor limitations

with using his feet.

(Tr. 520.)

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
occasionally

tolerate

unprotected

heights,

moving

mechanical

parts, humidity and wetness, dust, odors, fumes and pulmonary
irritants, extreme cold, extreme heat, and vibrations.

(Tr. 521-

22.)
Records
from
Brownsville
Community
Corporation from August to December 2012

Development

On August 28, 2012, Family Nurse Practitioner, Maggie
Farley, F.N.P., of Brownsville Community Development Corporation
conducted a physical examination of plaintiff.
Practitioner

Farley

management

referral

oxycodone.

(Tr. 668.)

noted
in

that

order

to

plaintiff
attain

(Tr. 668–73.)

requested
a

a

prescription

pain
for

She also noted that although plaintiff had

- 17 -

not had pain medication for the past month, plaintiff showed no
signs of acute distress; he was able to ambulate, sit, stand,
change

positions

and

complete

his

visit

reporting that his pain was 10 out of 10.

comfortably

(Tr. 668.)

despite

Practitioner

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
abnormalities.

(Tr. 668-70.)

On September 4, 2012, plaintiff saw Practitioner Farley
for a “letter for disability” and for the results of the labs
conducted

at

the

August

28,

2012

visit.

(Tr.

674-680.)

Practitioner Farley diagnosed plaintiff with diabetes mellitus
type 2, elevated cholesterol, and degenerative disc disease.
675.)

(Tr.

She noted that plaintiff was newly diagnosed with type 2

diabetes and that there were no associated symptoms.

(Tr. 674.)

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.

(Tr. 681.)

that

controlled.

plaintiff’s

diabetes

was

well

Plaintiff was referred to a podiatrist.
At

a

December

dietician Kelly Weiss.

17,

2012,

(Tr. 690-91.)

She also noted
(Tr.

682.)

(Id.)

plaintiff

was

seen

by

the

Plaintiff reported that he

lost 30 pounds over the course of the last two months.

(Tr. 690.)

He also reported that he did the food shopping and “walked a lot”

- 18 -

as a means of exercise.

(Id.)

Records from Starrett City Podiatry from October to
November 2012
On October 19, 2012, plaintiff visited Starrett City
Podiatry seeking diabetic foot care.

(Tr. 660.)

Dr. Vasilios

Spyropoulos, D.P.M., assessed that plaintiff had diabetes with
neuropathy, hammertoe, posterior calcaneal bone spur, nail fungus
and athlete’s foot.
risks

and

possible

(Tr. 661.)

Plaintiff was educated on the

complications

of,

and

how

to

prevent

complications associated with, his diabetic foot condition.

(Id.)

Plaintiff received a prescription for diabetic shoes, lotrisone
cream and nystatin powder.

(Id.)

D.P.M.,

distal

found

prolonged

On November 2, 2012, Brian Levy,
peak

latency

and

decreased

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

moderate. (Id.)
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.

(Tr. 376-79.)

Plaintiff reported that he stopped working as a security guard
because it required standing.

(Tr. 376.)

The only medical

problems plaintiff reported to Dr. Flach was high blood pressure,

- 19 -

diabetes and a seizure disorder.

(Id.)

Plaintiff reported that

he slept “okay” with medication and that he had a mixed appetite.
(Id.)

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.
Dr.
processes

Flach

coherent

found
with

(Id.)

plaintiff’s
no

(Tr. 378.)

evidence

speech
of

any

fluent,

thought

hallucinations,

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
instructions,

perform

simple

tasks

independently,

regular schedule, and learn new tasks.

maintain

(Tr. 378.)

a

He also

concluded that plaintiff had mild problems maintaining attention
and concentration, dealing with stress, and required some help
performing complex tasks.

(Id.)

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

- 20 -

daily basis.
bipolar

(Tr. 378–79.)

disorder,

Dr. Flach diagnosed plaintiff with

polysubstance

dependence

in

sustained

full

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.
392-408.)

(Tr.

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’s

activities

of

daily

living,

no

difficulties

for

plaintiff to maintain social functioning, mild difficulties in
maintaining
plaintiff

concentration,
did

not

experience

deterioration.

(Tr. 402.)

evidence,

Shliselberg

functional

Dr.

capacity

persistence,
repeated

and

pace,

extended

and

episodes

that
of

After considering the totality of the
concluded

assessment

that

in

the

plaintiff

mental

residual

could

remember,

understand and carry out simple tasks independently, and complex
tasks with some help.

(Tr. 408.)

Licensed Master Social Work Angel Louis, L.M.S.W.
On December 7, 2011, Angel Louis, L.M.S.W., completed a
biopsychosocial

assessment

for

plaintiff.

(Tr.

423-32.)

Plaintiff reported that he had no employment goals and indicated

- 21 -

that he did not want a referral for vocational and/or educational
services.

(Tr. 427.)

When asked what his barriers to employment

were, plaintiff indicated that he did not want a job.

(Id.)

Plaintiff reported that he experienced the following symptoms for
more

than

a

year:

depression,

hyperactivity,

hallucinations, and paranoia. (Tr. 423.)

delusions,

Plaintiff was diagnosed

with bipolar disorder and schizo-affective depression disorder.
(Id.)

Mr. Louis also found plaintiff’s psychomotor activity level

to be “lethargic/hypoactive,” attention and concentration dull,
intellectual

functioning

below

average,

mood

depressed

anxious, insight and judgment poor, and memory fair.

and

(Tr. 430.)

He found plaintiff’s thoughts to be disorganized and paranoid and
that plaintiff also experienced hallucinations.

(Id.)

Dr. Carmin Appolon, M.D.
On December 8, 2011, Carmin Appolon, M.D., completed a
psychiatric evaluation of plaintiff.

(Tr. 418-22.)

She found

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.

(Tr. 420-21.)

Based

on her findings, Dr. Appolon diagnosed plaintiff with bipolar
disorder.

(Tr. 422.)

- 22 -

Dr. Joseph Voight, M.D.
Mr.

Joseph

Voight,

M.D.

was

plaintiff’s

psychiatrist between December 2011 and January 2013.

treating
(Tr. 412-

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.
416.)

(Tr.

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.
416,

766–75.)

On

January

18,

2013,

Dr.

Voight

(Tr.

completed

a

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
ideations.

(Tr. 764.)
Dr.

Voight

also

completed

a

Treating

Wellness Plan Report for plaintiff on May 30, 2012.

Physician’s
(Tr. 624-25.)

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,

- 23 -

(2) affect in full range, (3) appropriate mood euthymic, (4)
thought

process

was

goal-directed,

(5)

no

audio-visual

hallucinations, (6) no suicidal or homicidal ideations (7) no
delusions, and (8) fair insight and judgment.

(Tr. 624.)

Dr.

Voigt opined that plaintiff was unable to work for at least 12
months.

(Tr. 625.)

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.
On
examined

May

15,

plaintiff

2012,

as

a

Paul

Davis,

component

of

M.D.,
the

a

psychiatrist

bio-psychosocial

evaluation that the Bushwick Community Health Center conducted.
(Tr. 616-23.)

Dr. Davis indicated that plaintiff was referred

because of his chronic back pain and to determine his working
ability.

(Tr. 617.)

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.
(Id.)

Dr.

Davis

noted

that

plaintiff

- 24 -

was

irritable,

had

a

depressed mood, his form of thought was logical, and his thought
content was normal.
Dr.

(Tr. 618.)

Davis

reported

that

he

was

unable

to

assess

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.
diagnosed

plaintiff

with

depressive

(Tr. 620.)

disorder,

and

He

further

concluded that plaintiff was unable to work due to plaintiff’s
back problems and chronic depression.

(Tr. 621.)

Dr. Davis

qualified his conclusion by noting that this determination should
be made by plaintiff’s treating physicians.

(Id.)

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
that

plaintiff

return

psychotropic medication.

to

work

after

receiving

appropriate

(Tr. 622.)

Dr. Robert Lancer, Psy. D.
On July 9, 2012, Dr. Robert Lancer, Psy. D., conducted
another consultative psychiatric evaluation of plaintiff.
494-97.)

Plaintiff

reported

that

he

was

having

(Tr.

difficulty

sleeping, that he had an increased appetite which led to a 20 pound
weight

gain,

and

that

he

was

depressed

and

anxious.

(Id.)

Plaintiff reported that he can dress, bathe, groom himself, shop
and take public transportation.

(Tr. 496.)

- 25 -

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.

(Id.)

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.

(Tr. 495–96.)

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.

(Tr. 496.)

However, Dr.

Lancer also concluded that plaintiff had difficulty maintaining
attention

and

concentration,

maintaining

a

regular

schedule,

making appropriate decisions, relating adequately with others, and
appropriately

dealing

with

stress.

(Id.)

He

attributed

plaintiff’s limitations to his current psychiatric disorder.
Lancer

diagnosed

plaintiff

with

depressive

disorder,

disorder, and substance abuse in sustained remission.

Dr.

anxiety

(Id.)

III. PROCEDURAL HISTORY
Plaintiff applied for SSI benefits on January 13, 2011,
contending that he had been disabled starting from June 12, 2009,

- 26 -

due to a combination of physical and mental impairments.
109, 117, 225.)

(Tr. 52,

His application was denied by the Social Security

Administration (“SSA”) on June 6, 2011.

(Tr. 109.)

On June 10,

2011, plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”).

(Tr. 119.)

Two hearings were held before the ALJ,

first on December 6, 2012, and then on February 12, 2013.
49, 86.)

(Tr.

Plaintiff was represented by counsel, and a vocational

expert was present at both hearings.

(Tr. 49, 86.)

2013,

application,

the

ALJ

denied

plaintiff’s

On March 28,
finding

that

plaintiff was not disabled within the meaning of § 1614(a)(3)(A)
of the Social Security Act.

(Tr. 43.)

On May 21, 2013, plaintiff

requested a review of the ALJ’s decision.
3,

2014,

the

Appeals

Council

of

the

(Tr. 25.)
Office

On September

of

Disability

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.

(Tr. 1.)

ALJ’s denial of plaintiff’s claim became final.

Accordingly, the
(Id.)

On September 17, 2014, plaintiff filed the Complaint in
the present action seeking review of the ALJ’s decision denying
his claim.

(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.
32.)

(ECF No.

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
I.

JUDICIAL REVIEW OF THE SSA’S COMMISSIONER’S DETERMINATIONS
A

district

court

does

not

review

de

novo

the

Commissioner’s determination of whether or not a claimant is
disabled.

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).

The reviewing

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

- 28 -

reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.”
§

405(g).

The

reviewing

court

is

authorized

to

42 U.S.C.
remand

the

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.”);
Cutler

v.

Weinberger,

516

F.2d

1282,

1285

(2d

Cir.

1975)

(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).
II.

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
“substantial

gainful

activity

by

- 29 -

reason

of

any

medically

determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.”
416.905(a).

20 C.F.R. §

The SSA has promulgated a “five-step sequential

evaluation” to determine whether a claimant is disabled. 20 C.F.R.
§ 416.920(a)(4).
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
in

substantial

disabled

gainful

“regardless

416.920(b).

employment,

of

medical

then

the

condition.”

claimant
20

is

not

C.F.R.

Otherwise, the Commissioner moves to step two.

§
20

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.
C.F.R.

§

416.920(a)(4)(ii).

An

impairment

“result[s]

20
from

anatomical, physiological, or psychological abnormalities which
can be shown by medically acceptable clinical and laboratory
diagnostic techniques.”

20 C.F.R. § 416.908.

The burden is on

the claimant to provide medical evidence from “acceptable medical

- 30 -

sources” to support his claim that he or she suffers from a
disabling

impairment.

20

C.F.R.

§§

416.913(a).

Subjective

symptoms alone are insufficient to establish a physical or mental
impairment.

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
findings

and

limitation.

rating

the

degree

of

the

claimant’s

functional

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
benefits.”

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
claimant’s]

physical

or

mental

ability

to

do

basic

work

activities.” 20 C.F.R. § 416.921(a). Such “basic work activities”
include: walking, standing, sitting, lifting, pushing, pulling,
reaching,

carrying,

handling,

seeing,

hearing,

speaking,

understanding, carrying out, and remembering simple instructions,
using

judgment,

responding

appropriately

to

supervision,

co-

workers and usual work situations, and dealing with changes in a

- 31 -

routine work setting.

20 C.F.R. § 416.921(b).

In assessing

severity, the Commissioner will not consider a claimant’s age,
education, and work experience.
impairment

is

medically

20 C.F.R. § 416.920(c).

severe

under

step

two,

If the

then

the

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
claimant’s

impairments

meet

or

equal

one

of

the

“Listing

Impairments” found in 20 C.F.R. Part 404, Sub. P, App’x I.
C.F.R. § 416.920(a)(4)(iii).

of
20

These are impairments acknowledged

by the Secretary to be of sufficient severity to preclude gainful
employment.

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.

§ 416.920(d).
iv. Step Four
If the claimant’s impairments do not “meet or equal” one
of

the

“Listing

of

Impairments”

under

step

Commissioner must proceed to the fourth step:

three,

then

the

assessing the

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.”

- 32 -

20. C.F.R.

§ 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).
Commissioner

should

In determining the claimant’s RFC, the

consider

“all

of

the

relevant

medical

evidence,” as well as descriptions and observations by non-medical
sources, such as the claimant’s friends and family.
416.945(a)(3).

To

the

extent

that

the

20 C.F.R. §

Commissioner’s

RFC

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
impairment

that

individual’s

could

alleged

reasonably
symptoms.

be

expected

Id.

at

to

the

Second,

*3.

produce

the

Commissioner must evaluate the intensity and persistence of the
claimant’s
symptoms

symptoms
limit

activities.

his

and
or

determine
her

the

ability

extent
to

to

perform

which

these

work-related

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.

- 33 -

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.

20

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,
education,

and

“alternative

work

experience,

occupations

has

available

in

the
the

capacity
national

to

perform

economy.”

Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995); 20 C.F.R. §
416.920(a)(4)(v).

If the claimant can transition to another job

prevalent in the national economy, the claimant is not disabled;
on

the

other

Commissioner

hand,
must

if

find

the

claimant

cannot

transition,

the

claimant

disabled.

20

C.F.R.

the
§

416.920(g)(1).
The claimant must prove his case at steps one through
four; thus, the claimant bears the “general burden of proving . .
. disability.”
2008).

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
economy.”

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
Medical Evidence
“Regardless
“every

medical

of

opinion”

its
in

source,”
the

the

regulations

administrative

record

require
to

be

evaluated when determining whether a claimant is disabled under
the

Act.

20

C.F.R.

§§

416.927(c),

(d).

“Acceptable

medical

sources” that can provide evidence to establish an impairment
include, inter alia, claimant’s licensed treating physicians and
licensed or certified treating psychologists.
416.913(a).

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
professionals

like

physician’s

assistants,

(2)

educational

personnel, (3) social welfare agency personnel, as well as (4)
non-medical sources such as caregivers, parents, and siblings.
Id.

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 -

416.919g.
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
v.

Barnhart,

335

F.3d

99,

106

(2d

Cir.

2003)).

Medically

acceptable clinical and laboratory diagnostic techniques include
consideration of a “patient’s report of complaints, or history,
[as] an essential diagnostic tool.”
107.

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
opinion.”

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
physician’s

opinion,

the

following

factors

enumerated

in

the

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”).
Analysis
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.
I.

The ALJ’s Step One Finding was Proper
At step one, the ALJ found that plaintiff had not engaged

in

substantial

gainful

application date.

activity

(Tr. 32.)

since

January

13,

2011,

the

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.)

The

court finds that the ALJ’s step one finding was supported by
substantial evidence.
II.

The ALJ’s Step Two Findings were Proper
At

following

step

severe

two,

the

ALJ

impairments:

found

that

obesity,

plaintiff

diabetic

had

the

neuropathy,

hypertension, diabetes mellitus, lumbar degenerative disc disease,
and bipolar disorder.

(Tr. 32.)

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.

(See Tr.

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
abuse

and

possibly

a

current

addiction

to

oxycodone,

this

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.

(Tr. 32.)

Plaintiff reported to several of

his doctors that he had not had a substance abuse problem since
1999.

(Tr. 381, 385, 477, 503.)
At step two, the ALJ also determined that plaintiff’s

allegations of chronic pain with radicular symptoms were not
severe.

(Tr. 32.)

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
ankles.

(Id.)

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.
III.

The ALJ’s Step Three Findings were Proper
At

step

three,

the

ALJ

found,

after

specifically

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.

(Tr. 32.)

The court

finds that the ALJ correctly applied the proper legal standards,
and her Step Three findings were supported by substantial evidence.
(Tr. 32-34.)
The

ALJ

correctly

noted

that

under

listing

1.04,

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
with
(Id.)
along

pseudoclaudication,

resulting

in

ineffective

ambulation.

Under listing 1.04, a finding of degenerative disc disease
with

evidence

of

nerve

root

compression,

spinal

arachnoiditis, or lumbar spinal stenosis would result in a finding
of disability.

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
stenosis

with

ambulation.
only

pseudoclaudication,

(Tr. 33.)

generalized

resulting

in

ineffective

The ALJ cited x-ray results which revealed

degenerative

disc

disease

with

disc

space

narrowing and marginal osteophyte formation, in support of this
findings.

(See

Tr.

33,

598.)

The

x-rays

also

showed

no

compression fractures, normal alignment, intact sacroiliac joints
and

sacrum,

and

no

paravertebral

soft-tissue

masses.

(Id.)

Further, x-rays of the lumbosacral spine and left hip showed only
generalized

degenerative

disc

disease,

changes, and no compression fractures.

mild

osteoarthritic

(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
substantial evidence.
The ALJ found that plaintiff’s mental impairment did not
meet or medically equal the criteria listings under 12.04 and
12.06.

(Tr. 33.)

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
in

both

[Paragraphs]

A

and

B

- 41 -

are

satisfied,

or

when

the

requirements in [Paragraph] C are satisfied.”

(Id.)

The ALJ found that plaintiff’s mental impairments did
not result in any of the four conditions required under Paragraph
B.

(Tr. 33.)

To meet the requirements of Paragraph B, plaintiff

has to exhibit two of the following four conditions: (1) marked
restriction

of

activities

of

daily

living;

or

(2)

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
duration.

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.

(Tr. 33.)

The ALJ

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.)

Plaintiff’s statements

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
record.
Second, the ALJ found that plaintiff was not markedly
restricted in social functioning.

- 42 -

(Tr. 33.)

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.)

Further, plaintiff

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,
496, 764–75.)

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.
(Tr. 33.)
found

The ALJ relied on the two consultative examiners, who

that

concentration,
skills.

plaintiff
and

had

mildly

mildly

impaired

(Tr. 33, 377-78, 495–96.)

impaired
recent

and

attention
remote

and

memory

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.
766–75.)

(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
record.

- 43 -

Fourth, The ALJ found that plaintiff experienced no
episodes of decompensation which have been of extended duration.
(Tr.

33.)

The

ALJ

noted

that

plaintiff

psychiatrically hospitalized as an adult.
supports

the

ALJ’s

finding

as

plaintiff

has

(Id.)
was

never

been

The record

psychiatrically

hospitalized twice during the 1980s, more than 30 years before the
onset of his alleged disability.

(Tr. 494.)

Accordingly, the

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.
(Tr. 34.)

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
decompensate;
inability

to

or

(3)

current

function

history

outside

a

of

highly

one

or

more

supportive

years’
living

arrangement, with an indication of continued need for such an

- 44 -

arrangement.

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
or

more

years

of

inability

to

function

outside

of

a

highly

supportive living arrangement, or a complete inability to function
independently outside of plaintiff’s home.

(Tr. 34.)

The ALJ’s

findings were supported by Dr. Shliselberg who, on June 6, 2011,
considered

the

available

medical

evidence

and

concluded

Plaintiff’s mental impairments did not satisfy the criteria of a
“per se disabling” impairment set forth in Listings 12.02 (organic
mental

disorders),

12.04

(affective

(substance addiction disorders).

disorders),

(Tr. 392.)

and

12.09

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
evidence

in

the

record

and,

thus,

the

ALJ’s

conclusion

that

plaintiff’s impairments did not meet or equal a disorder under
Listings 12.04 and 12.06 was also supported by the record.

See

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.”).
IV.

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.
34-41.)

(Tr.

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.
(Tr. 34.)

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.

(Tr. 35)

The court finds

that the record as a whole did not support plaintiff’s subjective
complaints and substantial evidence supported the ALJ’s findings
and decision.
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.
C.F.R.

§§

416.929(a),

(b).

If

plaintiff

has

a

20

medically

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.
416.929(c).
factors:

20 C.F.R. §

The Commissioner considers evidence regarding these

plaintiff’s

daily

activities;

the

nature,

location,

onset, duration, frequency, and intensity of his pain; factors
precipitating
effectiveness,

or
and

aggravating
side

the

effects

pain;
of

the

type,

medication;

any

dosage,
other

treatment; and any other measures utilized to relieve the pain or
other symptom.

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.

(Tr. 271.)

record

plaintiff

established

that

As discussed above, the
had

obesity,

diabetic

neuropathy, hypertension, diabetes mellitus, lumbar degenerative
disc disease, and bipolar disorder.
that

the

ALJ’s

initial

Accordingly, the court finds

finding

that

plaintiff’s

alleged

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.
(Tr. 35-41.)

Although a recent Social Security Ruling modified

the standard at step two of the RFC inquiry such that it is no
longer

appropriate

for

the

ALJ

to

make

a

“credibility”

determination based on the individual’s character, an ALJ is still
required

to

plaintiff’s

examine

the

statements

entire

about

the

record

and

intensity,

consider

whether

persistence,

and

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,
including

the

objective

conflicts

therein,

when

medical
making

evidence
the

and

resolved

determination

as

to

the
the

intensity, persistence and limiting effects of an plaintiff’s
SSR 16-3P, 2016 WL 1119029. 3

symptoms.

Further, the court finds

that the ALJ’s findings as to the intensity, persistence and
limiting effects were supported by substantial evidence in the
record.
The ALJ conducted a thorough and detailed review of the
record, beginning with plaintiff’s physical ailments.
41.)

(Tr. 35-

The ALJ noted that plaintiff’s examinations often showed

only normal findings.

(Tr. 35.)

She cited a September 2010

examination, where plaintiff complained of shortness of breath,
but Dr. Polizzi, the examining physician, reported only normal
findings.

(Tr. 35, 362.)

examination,

where

The ALJ also cited a December 9, 2010

plaintiff

visited

the

clinic

to

obtain

prescription refills; again, plaintiff did not report any pain,
and

upon

neurologic

examination,
findings,

plaintiff’s

lower

musculoskeletal

extremities

findings were all noted as normal.

findings,

findings,
and

(Tr. 35, 542-44.)

spinal
The ALJ

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,
neurologic

findings,

lower

extremities

findings were all noted as normal.
The

ALJ

also

cited

Dickerson on May 4, 2011.

findings,

and

spinal

(Tr. 35, 545-47.)

plaintiff’s

examination

(Tr. 35, 380-384.)

by

Dr.

Plaintiff reported

to Dr. Dickerson that he had bad legs, severe back pain, a bad
heart and high blood pressure.
conditions,

plaintiff

(Tr. 35, 380-81.)

reported

that

he

rode

Despite these

the

bus

to

the

examination and that he had the ability to cook, clean, do laundry,
shop, and provide childcare.

(Tr. 35, 381.)

Plaintiff also

reported that he showered, bathed, and dressed himself five or six
times a week and engaged in some recreational activity, including
playing

sports.

(Id.)

The

ALJ

further

noted

that

upon

examination, Dr. Dickerson reported that plaintiff was obese and
had high blood pressure but Dr. Dickerson’s findings were otherwise
normal.

(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
neuropathy.

(Id.)

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.
35, 553.)

(Tr.

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
doctor

refused

to

dispense

pain

medication

medication was not found in his urine.

to

him

(Tr. 35, 550.)

after

the

She further

noted that x-rays of plaintiff’s lumbosacral spine and left hip
showed

generalized

degenerative

disc

disease

and

mild

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
masses.

(Tr. 35, 553, 598.)
The

ALJ

noted

that

on

November

3,

2011,

plaintiff

reported that his back pain was controlled with Percocet, and on
November 18, 2011, plaintiff denied feeling any pain.
557-560.)

(Tr. 36,

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 -

exertional level.

(Tr. 36.)

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.)

At

the first visit on June 1, 2012, the plaintiff reported he was
taking oxycodone, 80mg/4 times per day; the ALJ noted that the
hospital

checked,

prescription.

but

found

(Tr. 36, 649-51.)

no

record

of

any

oxycodone

The ALJ noted that, at the next

visit, on June 14, 2012, plaintiff was referred to pain management
but

requested

oxycodone

in

the

interim.

Plaintiff

was

not

prescribed oxycodone and, although recommended by his doctor,
plaintiff
instead.
2012

refused

to

take

(Tr. 36, 644-47.)

examination,

Dr.

over-the-counter

pain

medication

The ALJ noted that during a June 20,

Cruciani

found

some

mild

to

moderate

limitations in plaintiff’s lumbar spine, hips and legs, but Dr.
Cruciani otherwise reported normal findings.

(Tr. 36, 530.)

At

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.

(Id.)

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,

- 52 -

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,
push,

and

pull;

could

occasionally

climb

ladders;

and

could

frequently climb stairs and ramps, balance, stoop, kneel, crouch,
and crawl.
Tranese’s

(Tr. 36-37, 506-08.)
opinion

because

it

The ALJ gave great weight to Dr.
was

supported

treatment notes and by Dr. Eyassu’s findings.

by

Dr.

Tranese’s

(Tr. 37.)

Dr. Eyassu, M.D., consultative examiner, also examined
plaintiff on July 9, 2012; her findings were also discussed by the
ALJ.

(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

4
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.
1.)

- 53 -

frequently

push

or

occasionally

climb

occasionally

kneel,

pull;
stairs,

could
ramps

crouch

and

frequently
and
crawl;

balance

scaffolds,
could

and

could

stoop;

could

occasionally

be

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
conduct.

(Tr. 37.)
The ALJ noted other areas in the record where plaintiff’s

alleged symptoms were inconsistent with the evidence in the record.
(Tr. 37.)

For instance, on August 28, 2012, plaintiff reported to

Nurse Practitioner Farley that his pain was a 10 on a 10-point
pain scale.

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
that

plaintiff

was

limited

to

sitting,

standing,

walking,

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,

5
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.
37,

533.)

Further,

the

ALJ

noted

that

in

September

(Tr.
2012,

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.

(Tr. 37.)

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
daily

living,

functioning

and

than

his

alleged

work

activity

by

plaintiff.

all

suggested

(Tr.

38.)

greater
The

ALJ

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.
36, 529.)

(Tr.

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.

See Veino

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.
reviewed

the

Accordingly, the court finds that the ALJ

record,

resolved

conflicts

in

the

evidence

and

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.

(Tr. 38.)

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.
377.)

(R. 38,

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
receptive

language

skills,

coherent

and

goal-directed

processes, clear sensorium, and intact orientation.
79.)

thought

(Tr. 38, 378-

Dr. Flach concluded that claimant only had mild difficulties

maintaining attention and concentration and dealing with stress.

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(Id.)

The ALJ afforded great weight to Dr. Flach’s opinion.

(Tr.

38.)
The ALJ afforded some weight to Dr. Shliselberg, M.D.,
State agency psychiatric consultant’s opinion from June 6, 2011.
(Tr. 38.)

The ALJ noted that Dr. Shliselberg concluded that

plaintiff could work but had some moderate limitations in his
ability

to

complete

a

normal

workday

and

workweek

without

interruptions from psychologically based symptoms, and to perform
at

a

consistent

appropriately

to

pace,

accept

criticism

from

instructions
supervisors,

remember, and carry out detailed instructions.

and

and

respond

understand,

(Tr. 38, 406-08.)

The ALJ afforded some weight, but less weight than afforded to Dr.
Flach’s

opinion,

to

Dr.

Shliselberg’s

opinion

because

Dr.

Shliselberg reviewed the medical evidence but did not actually
examine plaintiff.
The

ALJ

(Tr. 38.)
noted

that

plaintiff

reported

he

was

experiencing auditory hallucinations along with anxiety to Dr.
Voight, his treating psychiatrist on November 16, 2011.
716-19.)

(Tr. 38,

Dr. Voight opined on January 3, 2013 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 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.

(Tr. 39.)

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
plaintiff:
affect,

stable

euthymic

mental
mood,

condition,
no

articulate

hallucination,

no

speech,
delusions,

full
no

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

6

The ALJ credited Dr. Voight’s opinions and findings expressed in his
treatment notes between December 2011 and January 18, 2013. (Tr. 39.)

- 58 -

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
functioning,
judgment,

euthymic

appropriate

(Tr. 39, 764.)

mood,

fair

thought

insight

process,

and

and

awareness,

no

fair

hallucinations.

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.)

Dr.

Lancer opined that claimant had moderate limitations in his ability
to

interact

appropriately

with

the

public,

supervisors,

and

coworkers and to respond appropriately to usual work situations
and to changes in a routine work setting.

(Tr. 39, 498-99.)

The

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
Dr. Lancer.

(Tr. 39.)

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.

(Tr. 41.)

Next, the ALJ

concluded that plaintiff was unable to perform any past relevant

- 59 -

work.

(Id.)

substantial

The ALJ’s finding was proper and supported by

evidence

in

the

record

plaintiff’s past work exceeded his RFC.
V.

because

the

demands

of

(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
plaintiff

could

perform.

(Tr.

42-43.)

At

step

five,

the

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).

The Commissioner

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.

20

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,
to

direct

a

finding

of

“not

disabled”

because

plaintiff

had

limitations that affected his ability to do the full range of light
work.

(Tr. 42-43.)

The ALJ instead properly relied on vocational

expert evidence to assist in determining whether a significant
number of jobs existed that plaintiff could perform.

(Tr. 42-43);

see 20 C.F.R. § 416.966(e); Dumas v. Schweiker, 712 F.2d 1545,
1554 (2d Cir. 1983) (vocational expert testimony satisfies the

- 60 -

Commissioner’s burden of showing the existence of jobs).

The ALJ

relied on, and accepted the Vocational Expert’s testimony that
there were jobs available in significant numbers in the national
economy

that

someone

with

residual

plaintiff’s

experience,

and

functional

performing.

(Tr. 42-44, 100-102.)

age,

capacity

education,
was

work

capable

of

In sum, substantial evidence

in the record supported the ALJ’s decision that plaintiff was not
disabled under the Social Security Act.

- 61 -

CONCLUSION 7
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
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

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.
SO ORDERED.
Dated:

February 13, 2017
Brooklyn, New York
_______ ___/s/
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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