Bennett v. Colvin
ORDER granting 14 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the Pleadings -- For the reasons set forth in the ATTACHED WRITTEN OPINION AND ORDER, the Commissioner's motion for judgment on the pleadings is gran ted and Plaintiff's cross-motion for judgment on the pleadings is denied. Accordingly, this appeal is dismissed. The Clerk of the Court is directed to enter judgment and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/30/2016. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DWAYNE ANTHONY BENNETT,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
DORA L. IRIZARRY, United States District Judge:
OPINION AND ORDER
On November 17, 2010, Plaintiff Dwayne Anthony Bennett (“Plaintiff”) filed an
application for Social Security disability insurance benefits (“DIB”) under the Social Security Act
(the “Act”), alleging disability beginning on December 15, 2009. See Certified Administrative
Record (“R.”), Dkt. Entry No. 19 at 209, 265. On May 12, 2011, his application was denied and
he timely requested a hearing. Id. at 210, 215. On July 16, 2012, Plaintiff appeared with his
representative, and testified at a hearing before Administrative Law Judge Harvey Feldmeier (the
“ALJ”). Id. at 177-208. By decision dated January 25, 2013, the ALJ concluded Plaintiff was not
disabled within the meaning of the Act. Id. at 164-171. On August 11, 2014, the ALJ’s decision
became the Commissioner’s final decision when the Appeals Council denied Plaintiff’s request
for review. Id. at 1-5.
Plaintiff filed the instant appeal seeking judicial review of the denial of benefits, pursuant
to 42 U.S.C. § 405(g). See Complaint (“Compl.”), Dkt. Entry No. 1. The Commissioner moved
for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure,
seeking affirmation of the denial of benefits. See Mem. of Law in Supp. of Def.’s Mot. for J. on
the Pleadings (“Def. Mem.”), Dkt. Entry No. 15. Plaintiff cross-moved for judgment on the
pleadings, seeking reversal of the Commissioner’s decision or, alternatively, remand. See Mem.
in Supp. of Pl.’s Cross Mot. (“Pl. Mem.”), Dkt. Entry No. 17. For the reasons set forth below, the
Commissioner’s motion for judgment on the pleadings is granted and Plaintiff’s motion for
judgment on the pleadings is denied. The instant action is dismissed.
Non-Medical and Self-Reported Evidence
Plaintiff was born in 1972. 2 R. at 183. He graduated from high school and completed one
semester of college. Id. 307, 187. After college, Plaintiff served in the United States Navy from
1993 to 1997. Id. at 187. He worked as a baker from 1997 to 1999, as a courier for FedEx from
1999 to 2001, and as a corrections officer with the New York City Department of Corrections
(“DOC”) from 2001 to 2010. Id. at 307. On December 8, 2010, Plaintiff retired from DOC and
began receiving a monthly pension of $3,900. Id. at 187, 356.
On February 9, 2011, Plaintiff completed a “function report,” in which he stated that, on
an average day, he ate, read, took naps, went for walks, watched television, and spent time with
his son. Id. at 322. Plaintiff cared for his son every other weekend, with the assistance of Plaintiff’s
mother. Id. at 323. He did not sleep well, even with the use of a continuous positive airway
pressure machine (“CPAP”). Plaintiff grilled, baked, and made salads on a weekly basis, but his
mother prepared most his meals. Id. at 324. Plaintiff took care of his own personal needs,
grooming, and medication. Id. He cleaned his room and sometimes he did the dishes, taking rests
as needed. Id.
Having thoroughly and carefully reviewed the administrative record, the Court finds the Commissioner’s factual
background accurately represents the relevant portions of said record. Accordingly, the following background is
taken substantially from the background section of the Commissioner’s brief, except as otherwise indicated.
Plaintiff was 37 years old on the alleged onset date, December 15, 2009. As such, Plaintiff was a “younger
person” as defined in 20 C.F.R. § 404.1563(c).
Plaintiff went outside every day, weather permitting.
Id. at 325.
He used public
transportation, went shopping on his own, and attended church regularly. Id. at 325-326. Plaintiff
could not walk for more than one block before needing to rest because of shortness of breath and
chest pain. Id. at 327. He could climb stairs, but experienced similar symptoms after a short
duration. Id. Extended periods of standing fatigued him, and he was not capable of squatting. Id.
He reported no problems sitting or using his hands, although kneeling and reaching caused pain if
done for extended periods. Id.
On July 16, 2012, Plaintiff testified before the ALJ that he lived with his mother and father.
Id. at 183. Plaintiff was 5’11” and weighed 300 pounds. Id. at 184. Plaintiff drove himself to the
store to purchase food, and he regularly rode the bus. Id. at 184-185. Plaintiff spent a majority of
his time at home, where he used the computer, watched television, and went outside for walks. Id.
at 200-201. While seated, he experienced swelling in his legs, which he usually remedied by
standing up and walking around. Id. at 197. He stated that he never slept for more than three or
four hours at a time, including during the night, and that his CPAP machine did not help. Id. at
194. His doctors recommended that he lose weight by adhering to a low salt diet, taking
medication, and walking at least one block every day. Id. at 194-196. Plaintiff stated that it was
difficult for him to exercise because he always was tired and ran out of breath after walking about
one block. Id. at 196. As for his diet, Plaintiff claimed that he had made significant changes, but
had not lost weight. Id. at 194.
Regarding his time as a corrections officer, Plaintiff testified that he was placed on light
duty from 2007 to 2009 because he had undergone corneal transplant surgery. Id. at 190. During
this time, he worked in the records room or at the front desk. Id. Although he was physically
present at the facility for a full eight-hour work day, he worked for approximately two hours per
day, and spent the other six hours taking an extended break. Id. at 190-191. The last time he was
on full duty status overseeing inmates was sometime in 2009 or 2010. Id. at 191-192.
1. Medical Evidence Prior to December 15, 2009
On October 5, 2005, Plaintiff had cornea transplant surgery on his left eye. Id. at 360. In
April 2007, Plaintiff went to Brookdale Hospital complaining of shortness of breath induced by
walking or climbing stairs. Id. at 367-395. Doctors performed chest x-rays, an echocardiogram,
and a cardiac catheterization. Id. These tests revealed cardiomegaly, congestion, and a left
ventricular ejection fraction of 25-30%.
Plaintiff was diagnosed with non-ischemic
cardiomyopathy, normal coronary arteries, systolic and diastolic left and right ventricle
dysfunction, and severe pulmonary hypertension. Id. at 388. Doctors recommended medical
therapy, a defibrillator, and an evaluation for sleep apnea. Id.
On June 8, 2007, Augusto Dino Paiusco, M.D. performed an initial cardiac evaluation on
Plaintiff. Id. at 580. Plaintiff informed Dr. Paiusco that he was feeling better and that his cardiac
medication had improved his exercise capacity. Id. Plaintiff reported no chest tightness, but stated
that he continued to experience dyspnea after one block of walking or while going up stairs. Id.
Plaintiff was obese and his blood pressure was 140/94 left and 144/90 right. Id. at 581. His lungs
were clear, and there was no murmur, rub, gallop, click, or heave. Id. Plaintiff did not have edema
in his extremities. Id. Dr. Paiusco suspected that Plaintiff likely had congestive heart failure
(“CHF”) and sleep apnea. Id. Dr. Paiusco recommended preventative therapies for the CFH and
a sleep study for the sleep apnea. Id. On August 11, 2007, an echocardiogram showed that Plaintiff
had an ejection fraction of 30-35%. Id.
From October 5, 2009 to October 9, 2009, Plaintiff was hospitalized at Beth Israel Medical
Center (“Beth Israel”) for an abscess. Id. at 423-41. A cardiac examination showed Plaintiff’s
heart had a regular rate and rhythm. Id. at 430. From November 8, 2009 to November 11, 2009,
Plaintiff again was hospitalized at Beth Israel for an unproductive cough and shortness of breath.
Id. at 397-422, 443-454. Plaintiff’s heart had a regular rhythm and there was pedal edema in the
lower extremities. Id. at 454. A chest x-ray showed no evidence of pulmonary embolus, multiple
pulmonary nodules, most consistent with an infection, and an enlarged pulmonary artery, most
consistent with pulmonary hypertension. Id. at 447. Plaintiff was diagnosed with CHF, pulmonary
hypertension, other chronic pulmonary disease, and obstructive sleep apnea. Id. at 397.
2. Medical Evidence after December 15, 2009
On December 24, 2009, Plaintiff saw Maurice Alwaya, M.D., with complaints of shortness
of breath and coughing and fatigue only upon exertion. Id. at 582. He denied wheezing, edema,
or increased daytime somnolence. Id. Plaintiff weighed 277 pounds, and his blood pressure was
134/100. Id. at 583. Upon examination, Plaintiff‘s lungs were clear to auscultation bilaterally,
with no wheezes, rhonchi, or rales, and decreased air entry. Id. Examination of Plaintiff’s heart
revealed no murmurs, and a regular rate and rhythm. Id. There was trace ankle edema. Id. Dr.
Alwaya stated there could be a cardiac cause for Plaintiff’s shortness of breath. Id. 583. Plaintiff
was diagnosed with shortness of breath, cough, hypoxia, hemoptysis, obesity, sleep apnea,
secondary pulmonary hypertension, congestive heart disease, possible asthma exacerbation, and
hypertension. Id. Plaintiff was advised to see Dr. Paiusco immediately, continue using his CPAP
and try to lose weight. Id. at 584. On March 25, 2010, Plaintiff saw Dr. Paiusco and reported he
was doing better and was compliant with his diet. Id. at 585. Plaintiff weighed 280 pounds and
was advised to lose weight. Id.
On April 6, 2010, Plaintiff saw August A. Feola, M.D, complaining of a boil on his back.
Id. at 497-99. Plaintiff weighed 284 pounds, and his blood pressure was 130/80. Id. at 497. Upon
examination, Plaintiff was in no acute distress. Id. A cardiac examination was within normal
limits with no murmurs, gallops, rubs, thrills, heaves, or lifts. Id. His chest was resonant to
percussion with normal breath sounds bilaterally, without evidence of rales, rhonchi, wheezes or
rubs. Id. There was no edema. Id. Dr. Feola diagnosed sleep apnea, hypertension, acute
bronchitis, cardiomyopathy, obesity, CHF, hyperuricemia, and abscess. Id. at 498. Plaintiff was
also diagnosed as non-compliant with diet, taking medication, keeping follow-up appointments,
and CPAP use. Id.
On May 13, 2010, Plaintiff complained to Dr. Paiusco of dyspnea on exertion and
occasional edema. Id. 578. He had run out of his congestive heart failure medication. Id. He
denied any chest tightness, squeezing, or heaviness. Id. Plaintiff weighed 281 pounds, and his
blood pressure was 144/80. Id. Examination revealed diminished breath sounds in both lung fields
and trace edema of the bilateral extremities. Id. Dr. Paiusco diagnosed non-ischemic
cardiomyopathy with class II-III symptoms. Id. Dr. Paiusco stated that “the remainder of
[Plaintiff’s] other problems are chronic and stable.” He further stressed the “need for absolute
compliance” and reinforced dietary restrictions and nutritional supplementation. Id.
On June 15, 2010, Plaintiff told Dr. Paiusco that he experienced dyspnea when walking
less than two blocks. Id. at 576. On this visit, Plaintiff weighed 295 pounds. Id. On August 26,
Dr. Paiusco noted no positive cardiac examination findings and no edema. Id. at 574. Plaintiff
weighed 280 pounds. Id.
Dr. Feola’s examination findings and diagnoses on September 18, 2010 were substantially
similar to those of April 6, 2010. Id. at 500-02. Chest, cardiac, musculoskeletal, and neurological
examinations were all within normal limits. Id. at 500. The only significant differences from the
April 6 visit were that Plaintiff weighed 295.5 pounds, and he had not followed up with another
doctor regarding his enlarged tonsils. Id. Dr. Feola examined Plaintiff again on September 27,
2010. Id. at 508. The examination findings and diagnoses were similar to those from the
September 18 visit, except Plaintiff tested positive for herpes simplex virus; he had no lesions and
said he always exercised safe sexual practices. Id.
On September 30, 2010, Dr. Paiusco noted no positive cardiac examination findings. Id.
573. Plaintiff’s blood pressure was 120/70, and he weighed 296 pounds. Id. Dr. Paiusco
encouraged him to start walking. Id.
On February 9, 2011, Dr. Feola completed a report from the New York State Office of
Temporary and Disability Assistance concerning Plaintiff’s condition. Id. at 465-69. He stated
that he had first treated Plaintiff in May 2005 for hypertension that was well controlled. Id. at 465,
466. Plaintiff’s diagnoses were severe sleep apnea, hypertension, cardiomyopathy, obesity, CHF,
pulmonary hypertension, hyperuricemia, and asthma. Id. at 465. His primary symptom was
shortness of breath. Id. at 465-66. Dr. Feola opined that Plaintiff was limited in his ability to push
and/or pull, although he did not specify to what degree. Id. at 468. Dr. Feola stated that Plaintiff
was limited in lifting and carrying, but provided no other information. Id. at 469. He said Plaintiff
could stand and/or walk less than two hours per day and sit less than six hours per day. Id.
On March 24, 2011, Benjamin Kropsky, M.D., an internist, consultatively examined
Plaintiff. Id. at 470-73. Plaintiff reported a history of hypertension and CHF since 2007. Id. at
470. He said he had been hospitalized in October 2010 and reported that he had a very low ejection
fraction. Id. Dr. Kropsky noted Plaintiff’s hospitalization history: 2006 and 2008 for corneal
transplants, and twice in 2009 and once in 2010 for CHF. Id. Plaintiff said he tired easily; he got
short of breath and tired after walking one and one-half block, and had to climb stairs very slowly.
Id. Plaintiff said he had sleep apnea and used a CPAP machine that had decreased his awakening
at night although he still got up several times. Id. His medications were Hydrochlorothiazide,
Bidil, Furosemide, Digoxin, and Carvedilol. Id. Plaintiff said that he lived with his mother. Id. at
471. He cooked and cleaned two times per week, shopped and engaged in child care once a week,
and showered, bathed, and dressed daily. Id. He watched television, listened to the radio, and
read. Id. Upon examination, Plaintiff weighed 300 pounds, and his blood pressure was 170/100.
Id. He appeared to be in no acute distress. Id.
Plaintiff’s gait was normal, and he could walk on heels and toes without difficulty. Id. He
needed no help getting on and off the examination table and was able to rise from a chair without
difficulty. Id. Plaintiff’s lungs were clear to auscultation, and percussion was normal. Id. at 472.
His heart displayed normal rhythm without any murmur, gallop, or rub. Id. Plaintiff had full
ranges of motion in his cervical spine, lumbar spine, shoulders, elbows, forearms, and wrists. Id.
Bilateral hip extension and rotation were full; flexion was 70 to 80 degrees. Id. Straight leg raising
created pain in the thigh on the right at 60 to 70 degrees and on the left at 45 degrees. Id. There
were no sensory deficits or muscle atrophy. Id. Plaintiff had full strength (5/5) in the upper and
lower extremities. Id. Hand and finger dexterity was intact, and he had full grip strength (5/5)
bilaterally. Id. Dr. Kropsky diagnosed hypertension with recurrent CHF and systolic dysfunction
and sleep apnea. Id. at 473. He opined that Plaintiff had a mild to moderate limitation for
prolonged walking and climbing stairs due to shortness of breath and fatigue. Id. Plaintiff was
limited from activities that require moderate or greater exertion because of his cardiac condition.
On March 31, 2011, Plaintiff told Dr. Paiusco that he was feeling better. Id. at 572. His
blood pressure was 135/85, and he weighed 298 pounds. Id. There was trace edema. Id. Dr.
Paiusco opined that Plaintiff’s CHF was possibly resolved, and ordered an echocardiogram. Id.
An echocardiogram performed on April 14, 2011, showed that Plaintiff’s aortic, mitral, tricuspid,
and pulmonic valves were within normal limits. Id. at 475. All chambers were normal in size. Id.
There was mild concentric left ventricular hypertrophy. Id. The left ventricular ejection fraction
(“LVEF”) was 50% (low/normal). Id. The right ventricular systolic function was normal. Id.
There was no pericardial effusion. Id.
Plaintiff saw Dr. Feola on April 18, 2011, to obtain clearance for a tonsillectomy scheduled
for April 25. Id. at 518. Plaintiff stated that he had run out of his blood pressure medication two
days earlier and was being noncompliant with his prescribed low-salt diet after going to a bachelor
party. Id. Plaintiff weighed 295 pounds, and his blood pressure was 140/100. Id. Dr. Feola noted
normal cardiac, musculoskeletal, chest, and neurological examinations. Id. There was no edema.
Id. An electrocardiogram performed that day was abnormal. Id. at 512. Chest x-rays revealed no
evidence of acute cardiopulmonary disease. Id. at 514. Plaintiff was cleared for surgery if his
blood pressure was under 140/90 controlled. Id. at 520.
On May 10, 2011, E. Santos, M.D., a State agency medical consultant, reviewed the
evidence. Id. 487-88. He referenced the April 2011 echocardiogram, and stated that the ejection
fraction was 50%. Id. at 487. There was mild left ventricular hypertrophy, but that had no clinical
significance. Id. Dr. Santos opined that Plaintiff could lift and carry ten to twenty pounds, and
stand and walk for six hours per day. Id.
On July 12, 2011, Plaintiff saw Dr. Feola for a follow-up concerning his hypertension and
cardiomyopathy. Id. at 521-23. Dr. Feola noted that Plaintiff had been compliant with taking his
medication, but had not been following his diet and was eating large amounts of salty foods. Id.
at 521. Plaintiff weighed 289 pounds, and his blood pressure was 140/100. Id. The cardiac,
musculoskeletal, and neurological examinations were within normal limits. Id. There was no
edema. Id. Plaintiff’s chest showed normal breath sounds bilaterally. Id. Dr. Feola diagnosed
Plaintiff with sleep apnea, hypertension, acute bronchitis, cardiomyopathy, and obesity. Plaintiff
was also diagnosed as non-compliant with diet, medication, follow-ups, and CPAP use. Id. In a
letter written that day, Dr. Feola stated that Plaintiff had recently retired after ten years as a
corrections officer. Id. at 482. He noted that Plaintiff took multiple medications and had episodes
of shortness of breath, chest pain, dizziness, and palpitations. Id. Dr. Feola stated that “[Plaintiff]
was disabled from NYC Dept. of Corrections on the cardiac disability bill and should be considered
On August 1, 2011, Plaintiff saw Dr. Feola for a rash. Id. at 524-26. He weighed 292
pounds, and his blood pressure was 140/90. Id. at 524. Examination findings remained normal,
and diagnoses were identical to those in July 2011. Id. 524-25. In a letter dated August 2, 2011,
Dr. Feola stated that Plaintiff should not be doing any type of work for at least twelve months due
to cardiomyopathy. Id. at 483.
On August 2, 2011, Plaintiff went to Beth Israel complaining that he had experienced a
rash on his arms, back, and trunk for the previous month. Id. at 598-610. He said he was not
experiencing chest pains, shortness of breath, or edema. Id. at 599. Cardiac, respiratory,
musculoskeletal, and neurological examinations were all within normal limits. Id. 600. Plaintiff
was diagnosed with scabies and discharged. Id.
On November 7, Plaintiff saw Dr. Feola complaining of pimples on his penis. Id. at 527.
The doctor noted that Plaintiff had never taken his herpes medication because Plaintiff believed
he did not have herpes. Id. Plaintiff said he had not taken his blood pressure medication that day.
His blood pressure was 170/122 and he weighed 302 pounds. Id. Chest, cardiac,
musculoskeletal, and neurological examinations were all within normal limits. Id. There was no
On March 7, 2012, Plaintiff told Dr. Feola that he had run out of his water pill and heart
medication and was not using the CPAP machine. Id. at 534-37. He had a penile rash. Id. at 534.
Plaintiff said he checked his blood pressure at home and usually got readings of 120/90. Id. That
day, his reading was 190/120, and he weighed 306 pounds. Id. Chest, cardiac, musculoskeletal,
and neurological examinations were all within normal limits. Id. at 534-35. There was no edema.
Id. at 535. On March 27, Plaintiff followed up with Dr. Feola for the penis irritation. Id. at 538.
On March 8, 2012, Dr. Paiusco noted that Plaintiff said he was feeling well. Id. 569.
Plaintiff’s blood pressure was 150/100, but he had run out of his medication. Id. Plaintiff’s CHF
Dr. Paiusco completed a Cardiac Impairment Questionnaire, wherein he
diagnosed: CHF, non-ischemic; cardiomyopathy with 56% ejection fraction; class II-III cardiac
disease; and dyspnea on exertion. Id. 545-550. Dr. Paiusco referred to the echocardiogram in
January 2010 showing a LVEF of 33%, and another echocardiogram in April 2012 showing a
LVEF of 56%. Id. 546. Clinical findings were shortness of breath, fatigue, weakness, and
occasional edema. Id. 545. Plaintiff’s primary symptoms were dyspnea on exertion and fatigue.
Id. at 546. Dr. Paiusco opined that Plaintiff could sit for four hours total and stand/walk for two
hours total in an eight-hour workday. Id. at 547. He could occasionally lift and carry up to ten
pounds. Id. 548. Plaintiff’s condition would result in less than one absence from work per month.
Id. Fatigue would periodically interfere with his attention and concentration and he was capable
of low stress work. Id.
On April 2, 2012, Dr. Paiusco described Plaintiff's cardiac system as stable and noted a
great increase in ejection fraction. Id. at 568. Plaintiff weighed 295 and his blood pressure was
On June 2, 2012 Dr. Feola noted that Plaintiff was in no acute distress. Id. at 539. Plaintiff
weighed 310 pounds, and his blood pressure was 120/80. Id. Chest, cardiac, musculoskeletal, and
neurological examinations were all within normal limits. Id. There was no edema. Id. Dr. Feola
completed a Multiple Impairment Questionnaire and diagnosed Plaintiff with cardiomyopathy
(LVEF 25-30%), hypertension, CHF class II-III, and sleep apnea. Id. at 552. Testing consisted of
an echocardiogram (LVEF approximately 30%) and positive sleep studies. Id. at 553. Symptoms
and clinical findings were: shortness of breath, swelling of the legs, and severe fatigue and
weakness. Id. at 552-53. Dr. Feola opined that Plaintiff was able to sit for four hours total (not
continuously) and stand/walk for two hours total in an eight-hour workday. Id. at 554. He could
occasionally lift and carry up to ten pounds. Id. at 555. He had significant limitations performing
repetitive reaching, handling, fingering, and lifting due to dyspnea on exertion. Id. Dr. Feola
opined that Plaintiff was markedly limited from using his arms for reaching. Id. at 556. His fatigue
was likely to increase in a competitive work environment and would frequently interfere with his
attention and concentration. Id. 556-67. Dr. Feola concluded that Plaintiff was incapable of
tolerating even low stress work, and that he would need to take breaks of 20 minutes or more at
unpredictable intervals throughout the workday. Id. Dr. Feola stated that the symptoms and
limitations described in the questionnaire had been present since 2009. Id. at 558.
On July 2, 2012, Plaintiff told Dr. Paiusco that he had problems standing and sleeping,
increased fatigue, and decreased exercise capacity. Id. at 567. His blood pressure was 110/70,
and he weighed 295 pounds. Id. There was no edema. Id.
Evidence Submitted to Appeals Counsel After the ALJ Issued His Decision
On March 13, 2013, Plaintiff underwent a sleep study at home at the recommendation of
his dentist, Jacques Doueek, D.D.S. Id. at 9-10. Very severe sleep-disordered breathing was
detected, and use of a CPAP was recommended. Id. at 9. Plaintiff obtained another CPAP. Id. at
11. On April 25, 2013, he told his physician that he had been using the machine for three weeks
and had slept throughout the night. Id. He stated that he traveled frequently without the CPAP
and asked for an oral sleep appliance. Id.
Plaintiff was hospitalized at Beth Israel from May 13 to May 15, 2013. Id. at 8, 12-52, 54157. At admission, he complained of shortness of breath, feeling extremely weak, and having an
unproductive cough for two weeks. Id. at 24, 38, 44. Upon examination, he appeared to be in no
acute distress and was ambulatory. Id. at 26, 41, 44. His blood pressure was 170/110, and he
weighed 322 pounds. Id. at 44. The cardiac examination was within normal limits and Plaintiff
did not complain of chest pain. Id. 26, 41, 44. His airways were open, and his breathing was
spontaneous and non-labored. Id. at 26. There was bipedal edema. Id. at 46. The musculoskeletal
examination was normal, and no neurologic deficits were found. Id. On May 14 and 15, 2013,
50, 51. Upon discharge, his chief diagnosis was CHF exacerbation. Id. at 8, 12.
Plaintiff denied having shortness of breath or chest pain, and said he was feeling better. Id. at 48,
Standard of Review
Unsuccessful claimants for disability benefits under the Act may bring an action in federal
district court seeking judicial review of the Commissioner’s denial of their benefits “within sixty
days after the mailing . . . of notice of such decision or within such further time as the
Commissioner of Social Security may allow.” 42 U.S.C. § 405(g). A district court, reviewing the
final determination of the Commissioner, must determine whether the correct legal standards were
applied and whether substantial evidence supports the decision. See Schaal v. Apfel, 134 F. 3d
496, 501 (2d Cir. 1998). The former determination requires the court to ask whether “the claimant
has had a full hearing under the [Commissioner’s] regulations and in accordance with the
beneficent purposes of the Act.” Echevarria v. Sec’y of Health & Human Servs., 685 F. 2d 751,
755 (2d Cir. 1982) (internal citations omitted). The latter determination requires the court to ask
whether the decision is supported by “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
The district court is empowered “to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A remand by
the court for further proceedings is appropriate when “the Commissioner has failed to provide a
full and fair hearing, to make explicit findings, or to have correctly applied the . . . regulations.”
Manago v. Barnhart, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004). A remand to the Commissioner
is also appropriate “[w]here there are gaps in the administrative record.” Rosa v. Callahan, 168
F. 3d 72, 83 (2d Cir. 1999) (quoting Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997)).
ALJs, unlike judges, have a duty to “affirmatively develop the record in light of the essentially
non-adversarial nature of the benefits proceedings.” Tejada v. Apfel, 167 F. 3d 770, 774 (2d Cir.
1999) (quotations omitted).
To receive disability benefits, claimants must be disabled within the meaning of the Act.
See 42 U.S.C. §§ 423(a), (d). Claimants establish disability status by demonstrating an “inability
to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant bears the initial burden of proof
on disability status and is required to demonstrate disability status by presenting medical signs and
findings, established by medically acceptable clinical or laboratory diagnostic techniques, as well
as any other evidence the Commissioner may require. 42 U.S.C. § 423(d)(5)(A); see also Carroll
v. Sec’y of Health & Human Servs., 705 F. 2d 638, 642 (2d Cir. 1983).
ALJs must adhere to a five-step inquiry to determine whether a claimant is disabled under
the Social Security Act as set forth in 20 C.F.R. § 404.1520. If at any step the ALJ finds that the
claimant is either disabled or not disabled, the inquiry ends there. First, the claimant is not disabled
if he or she is working and performing “substantial gainful activity.” 20 C.F.R. § 404.1520(b).
Second, the ALJ considers whether the claimant has a “severe impairment,” without reference to
age, education and work experience. Impairments are “severe” when they significantly limit a
claimant’s physical or mental ability to conduct basic work activities. 20 C.F.R. § 404.1520(c).
Third, the ALJ will find the claimant disabled if his or her impairment meets or equals an
impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1 (“the Listings”). See 20 C.F.R. §
If the claimant does not have a listed impairment, the ALJ makes a finding about the
claimant’s residual functional capacity (“RFC”) in steps four and five. 20 C.F.R. § 404.1520(e).
In the fourth step, the claimant is not disabled if he or she is able to perform past relevant work.
20 C.F.R. § 404.1520(f). Finally, in the fifth step, the ALJ determines whether the claimant could
adjust to other work existing in the national economy, considering factors such as age, education,
and work experience. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(g).
The ALJ’s Decision
On January 25, 2013, the ALJ issued a decision denying Plaintiff’s claims. Id. at 164-171.
The ALJ followed the five-step procedure in making his determination that Plaintiff had the RFC
to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with some additional
environmental restrictions, and, therefore, was not disabled. Id. at 167, 171. At the first step, the
ALJ determined that, although Plaintiff alleged a disability since December 15, 2009, he worked
as a corrections officer until December 7, 2010. Id. at 166. Thus, the ALJ found that Plaintiff had
engaged in substantial gainful activity until that date, and had not engaged in substantial gainful
activity since December 8, 2010. Id. At the second step, the ALJ found the following severe
impairments: heart disease associated with cardiomyopathy, CHF, pulmonary hypertension, and
obesity with sleep apnea. Id. at 167. At the third step, the ALJ concluded that Plaintiff’s
impairments, in combination or individually, did not meet or equal an impairment included in the
At the fourth step, the ALJ found that Plaintiff could perform sedentary work as defined in
20 CFR § 404.1567(a), except that he must avoid concentrated exposure to environmental irritants.
Id. The ALJ found that Plaintiff was unable to perform his past relevant work as a corrections
officer, which was a medium exertion position, because Plaintiff was limited to sedentary work.
Id. at 170.
The ALJ found that, during the relevant period, Plaintiff “has been limited to sedentary
work with lifting up to 10 pounds; standing and/or walking up to two hours in an eight-hour
[work]day; and, sitting and working for six hours in an eight hour [work]day.” Id. As to the
opinions of Drs. Feola and Paiusco, the ALJ found that they were “not consistent with the medical
evidence which documents increasing exercise tolerance and fails to document complaints of
significant problems with shortness of breath or other cardiopulmonary symptoms which might …
limit the ability to perform sedentary work.” Id. The ALJ found that Plaintiff’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms, but that
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of his symptoms
were not credible to the extent they were inconsistent with the “objective medical evidence and
[Plaintiff’s] reports of daily activities.” Id.
At the fifth step, “considering [Plaintiff’s] age, education, work experience, and residual
functional capacity,” the ALJ found that “there are jobs in the national economy that [Plaintiff]
can perform” according to the applicable Medical-Vocational Guidelines at 20 C.F.R. 404.1569.
The Commissioner moves for judgment on the pleadings, seeking affirmance of the denial
of Plaintiff’s benefits on the grounds that the ALJ applied the correct legal standards to determine
that Plaintiff was not disabled and that the factual findings are supported by substantial evidence.
See generally Def. Mem. Plaintiff cross-moves for judgment on the pleadings, contending the ALJ
incorrectly: (1) discounted the opinions of Drs. Feola and Paiusco under the treating physician
rule; (2) discredited Plaintiff’s statements concerning the intensity, persistence, and limiting effects
of his symptoms. See Pl. Mem at 7-15. Alternatively, Plaintiff seeks remand. See Id. at 15.
Upon review of the record, the Court finds that the ALJ applied the correct legal standards
and his decision is supported by substantial evidence. Plaintiff’s arguments to the contrary are
The ALJ’s findings as to steps one, two, and three are unchallenged. See generally Id.
Upon a review of the record, the Court concludes that the ALJ’s findings at steps one through three
are supported by substantial evidence.
The ALJ’s RFC Assessment
The ALJ found that Plaintiff retained the RFC to perform sedentary work, with the
additional restriction that Plaintiff avoid concentrated exposure to environmental irritants. Id. at
167. Sedentary work involves lifting no more than ten pounds, and occasionally lifting or carrying
articles like docket files or small tools, with sitting for approximately six hours and standing or
walking for no more than two hours in an eight-hour workday. See 20 C.F.R. § 404.1567(a); see
also SSR 96-9p. Sedentary work does not require the ability “to sit for six unbroken hours without
standing up or shifting position during a work day.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d
Plaintiff had the burden of proving that he was unable to perform sedentary work. See
Poupore v. Astrue, 566 F. 3d 303, 305-06 (2d Cir. 2009) (explaining that at the fifth step, the
Commissioner has the “limited burden” of showing “that there is work in the national economy
that the claimant can do” and that the Commissioner “need not provide additional evidence of the
claimant’s residual functional capacity”). During the relevant period (December 8, 2010 through
January 25, 2013), there is no medical evidence indicating that Plaintiff was unable to perform
sedentary work, as noted by the ALJ. The ALJ was entitled to rely on the lack of findings regarding
Plaintiff’s physical limitations in assessing his capacity to perform sedentary work. See Dumas v.
Schweiker, 712 F. 2d 1545, 1553 (2d Cir.1983) (“The Secretary is entitled to rely not only on what
the record says, but also on what it does not say.”); accord Diaz v. Shalala, 59 F. 3d 307, 315 (2d
Cir. 1995) (declining plaintiff’s request to remand for further proceedings to solicit evidence from
plaintiff’s physicians as to whether plaintiff could sit for prolonged periods because each of his
physicians evaluated his physical capabilities and the ALJ was entitled to rely on the absence of
that finding in determining that plaintiff could perform sedentary work).
Substantial evidence in the record supported the ALJ’s RFC assessment. Notably, Plaintiff
stated that, he shopped for his own food occasionally, prepared some of his own meals, attended
to his own daily personal needs, cared for his son at times, attended church regularly, and cleaned
dishes. See generally, R. 179-208, 322-329. He walked frequently, and was capable of driving a
car and using public transportation. Id. at 200, 184-186. Plaintiff reported that he only had trouble
sitting sometimes, and when he experienced swelling in his legs from sitting, he stood up and
walked around. Id. at 197. Plaintiff also elevated his legs to reduce swelling, but he also testified
that his doctors never instructed him to elevate his legs. Id. at 198. Plaintiff testified that he had
no problems using his hands or lifting objects up to ten pounds. Id. at 199-200, 327. These
activities support the ALJ’s findings that Plaintiff’s RFC enabled him to perform sedentary work.
Additionally, medical evidence from the relevant period and after supports the ALJ’s RFC
assessment. With treatment, Plaintiff’s ejection fractions showed improvement during the relevant
period, increasing from 33% in January 2010, to 50% in April 2011, to 56% in April 2012. Id. at
545-546, 475. Plaintiff’s cardiac examinations were within normal limits regularly, or showed no
significant positive findings. Id. at 567-70, 572-78, 585. Plaintiff was consistently diagnosed with
no edema or only trade edema. Id. at 497, 500, 508, 519, 521. Moreover, Plaintiff only
experienced shortness of breath upon exertion, such as walking for more than one block. Id. at
The record indicates that Plaintiff’s shortness of breath upon exertion and fatigue would
have limited Plaintiff from engaging in moderate activities, such as those he performed as a
corrections officer. However, these impairments do not undermine the ALJ’s RFC assessment
that Plaintiff was capable of performing sedentary work. Accordingly, the Court finds that the
medical and non-medical evidence cited above constitute substantial evidence supporting the
ALJ’s RFC finding.
Application of Treating Physician Rule to
the Opinions of Drs. Feola and Paiusco
Plaintiff contends that the ALJ erred in analyzing the opinions of Drs. Feola and Paiusco.
Pl. Mem. at 8-12. An ALJ must give controlling weight to the opinion of a treating physician with
respect to “the nature and severity of [a claimant’s] impairment(s).” 20 C.F.R. § 416.927(c)(2);
see also Shaw v. Chater, 221 F. 3d 126, 134 (2d Cir. 2000). A claimant’s treating physician is one
“who has provided the individual with medical treatment or evaluation and who has or had an
ongoing treatment and physician-patient relationship with the individual.” Schisler v. Bowen, 851
F. 2d 43, 46 (2d Cir. 1988). A treating physician’s medical opinion regarding the nature and
severity of a claimant’s impairment is given controlling weight when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with
other substantial evidence in the record.” Burgess v. Astrue, 537 F. 3d 117, 128 (2d Cir. 2008)
(quotation marks and alteration omitted). The Second Circuit has noted that “[w]hile the opinions
of a treating physician deserve special respect . . . they need not be given controlling weight where
they are contradicted by other substantial evidence in the record.” Lazore v. Astrue, 443 F. App’x
650, 652 (2d Cir. 2011) (quoting Veino v. Barnhart, 312 F. 3d 578, 588 (2d Cir. 2002)). Where a
treating source’s opinion is not given controlling weight, the proper weight accorded by the ALJ
depends upon several factors, including: “(i) the frequency of examination and the length, nature,
and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the
opinion’s consistency with the record as a whole; and (iv) whether the opinion is from a specialist.”
Clark v. Comm’r of Soc. Sec., 143 F. 3d 115, 118 (2d Cir. 1998); see also 20 C.F.R. §
416.927(c)(2)-(6). The ALJ must clearly state his or her reasons for not giving controlling weight
to a treating physician’s opinion. See Halloran v. Barnhart, 362 F. 3d 28, 31-32 (2d Cir. 2004).
Plaintiff contends that, under the treating physician rule, the ALJ should have given
controlling weight to the opinions of Drs. Feola and Paiusco, because their opinions “relied on
appropriate clinical and diagnostic testing.” Pl. Mem. at 8. In particular, he points to the fact that
both doctors based their opinions on clinical evidence indicating shortness of breath, fatigue, and
edema, as well as the echocardiogram test results. Id. (citing R. at 545-546, 552-553). Plaintiff
further contends that the ALJ’s determination failed to identify substantial evidence contradicting
the opinions of Drs. Feola and Paiusco. Id. at 9. According to Plaintiff, the only contradictory
medical evidence was the opinion of Dr. Kropsky. Id. at 10. However, Plaintiff maintains that the
ALJ’s reliance on this opinion was inappropriate because Dr. Kropsky was a one-time examining
consultant whose opinion was not entitled to significant weight. Id. at 10-11 (citing Selian v.
Astrue, 708 F.3d 409, 419 (2d Cir. 2013) (additional citations omitted).
Contrary to Plaintiff’s assertions, the Court finds that the ALJ correctly discredited the
opinions of Drs. Feola and Paiusco to the extent they were inconsistent with the conclusion that
Plaintiff was incapable of performing sedentary work. One of the more significant limitations
found by both doctors was that Plaintiff could sit for only four hours in an eight-hour workday. R.
547, 554. However, as the ALJ correctly observed, this conclusion is wholly inconsistent with
Plaintiff’s own testimony regarding his daily activities, particularly the fact that he spent most of
his day sitting. Id. at 200. The ALJ also correctly found that limitations on Plaintiff’s ability to
sit for extended periods were not supported by evidence in the record. Medical examinations
revealed, at most, trace edema sometimes, and at other times, no edema at all. Plaintiff also
testified that when he had trouble sitting, he stood up and walked around. R. 197. See Halloran,
362 F.3d at 33 (“The regulations do not mandate the presumption that all sedentary jobs in the
United States require the worker to sit without moving for six hours, trapped like a seat-belted
passenger in the center seat on a transcontinental flight.”). Thus, the opinions of Drs. Feola and
Paiusco concerning Plaintiff’s ability to sit were contradicted by substantial evidence, and were
properly rejected by the ALJ.
Other evidence in the record also contradicts the opinions of Drs. Feola and Paiusco that
Plaintiff was incapable of sedentary work. As noted above, Plaintiff’s own testimony regarding
his daily activities suggest Plaintiff is capable of sitting six hours per day, standing or walking for
two hours per day, and occasionally lifting or carrying small items. In fact, Drs. Feola and Paiusco
themselves opined that Plaintiff was capable of performing the latter two requirements of sedentary
work, i.e. standing/walking and carrying small objects. See R. at 547-548 (Dr. Paiusco stated that
Plaintiff capable of walking/standing two hours per day and occasionally carrying 5-10 pounds);
see also Id. at 554-555 (Dr. Feola, same). Additionally, Dr. Feola stated that Plaintiff had
experienced the symptoms and limitations indicating an inability to perform sedentary work since
2009, but Plaintiff worked as a corrections officer until the end of 2010. R. 558. The ALJ was
entitled to consider this “internal inconsistency … [as] a reasonable basis to believe that [the
opinion] was not prepared with the type of attention to detail indicating reliability.” Mainella v.
Colvin, 2014 WL 183957, at *5 (E.D.N.Y. Jan. 14, 2014) (citing Michels v. Astrue, 297 F. A pp’x
74, 76 (2d Ci r.2008)).
As to the opinions of Drs. Kropsky and Santos, the Second Circuit permits “the opinions
of nonexamining sources to override treating sources’ opinions provided they are supported by
evidence in the record.” Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v.
Sullivan, 3 F.3d 563, 567 (2d Cir. 1993)). Oliphant v. Astrue, 2012 WL 3541820, at *19 (E.D.N.Y.
Aug. 14, 2012) (“The Second Circuit has held that if the record supports a consultative, nonexamining medical opinion, the ALJ may accord that opinion greater weight than the opinion of a
treating physician.”). Here, the same medical and non-medical evidence that contradicts the
treating physician’s opinions supports the opinions of the consultative and nonexamining sources.
Accordingly, the ALJ was entitled to give the opinions of Drs. Kropsky and Santos greater weight
than those of the treating physicians in determining Plaintiff’s RFC.
Plaintiff contends that the ALJ erred in discrediting his statements regarding the severity
of his symptoms. Pl. Mem. at 12-15. The Second Circuit recognizes that subjective allegations
of pain may serve as a basis for establishing disability. See Taylor v. Barnhart, 83 F. App’x 347,
350 (2d Cir. 2003). However, the ALJ is afforded discretion to assess the credibility of a claimant
and is not “required to credit [Plaintiff’s] testimony about the severity of her pain and the functional
limitations it caused.” Correale-Englehart v. Astrue, 687 F.Supp. 2d 396, 434 (S.D.N.Y. 2010)
(quoting Rivers v. Astrue, 280 F. App’x 20, 22 (2d Cir. 2008)). In determining Plaintiff’s
credibility, the ALJ must adhere to a two-step inquiry set forth by the regulations. See Peck v.
Astrue, 2010 WL 3125950, at *4 (E.D.N.Y. Aug. 6, 2010). First, the ALJ must consider whether
there is a medically determinable impairment that reasonably could be expected to produce the
pain or symptoms alleged. 20 C.F.R. § 404.1529(b); SSR. 96-7p. Second, if the ALJ finds that
the individual suffers from a medically determinable impairment that reasonably could be expected
to produce the pain or symptoms alleged, then the ALJ is to evaluate the intensity, persistence, and
limiting effects of the individual’s symptoms to determine the extent to which they limit the
individual’s ability to work. 20 C.F.R. § 404.1529(c).
When the ALJ finds that the claimant’s testimony is not consistent with the objective
medical evidence, the ALJ is to evaluate the claimant’s testimony in light of seven factors: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the pain; (3)
precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any
medications taken to alleviate the pain; (5) any treatment, other than medication, that the claimant
has received; (6) any other measures that the claimant employs to relieve the pain; and (7) other
factors concerning the claimant’s functional limitations and restrictions as a result of the pain. 20
C.F.R. § 404.1529(c)(3)(i)-(vii).
The Second Circuit has stated that “[i]f the ALJ rejects plaintiff’s testimony after
considering the objective medical evidence and any other factors deemed relevant, [she] must
explain that decision with sufficient specificity to permit a reviewing court to decide whether there
are legitimate reasons for the ALJ’s disbelief.” Correale-Englehart, 687 F. Supp. 2d at 435. When
the ALJ neglects to discuss at length her credibility determination with sufficient detail to permit
the reviewing court to determine whether there are legitimate reasons for the ALJ’s disbelief and
whether her decision is supported by substantial evidence, remand is appropriate. Id. at 435-36;
see also Grosse v. Comm’r of Soc. Sec., 2011 WL 128565, at *5 (E.D.N.Y. Jan. 14, 2011) (finding
the ALJ committed legal error by failing to apply factors two through seven); Valet v. Astrue, 2012
WL 194970, at *22 (E.D.N.Y. Jan. 23, 2012) (remanding the case where the ALJ “considered
some, but not all of the mandatory” factors).
Turning to the instant action, the ALJ found that Plaintiff’s “medically determinable
impairments reasonably could be expected to cause the alleged symptoms,” but that his statements
“concerning the intensity, persistence, and limiting effect of [his] symptoms” were not credible to
the extent that they were inconsistent with the RFC. R. 168. Substantial evidence in the record
supports the ALJ’s credibility determination.
First, Plaintiff’s self-reported activities of daily living undermine his statements concerning
the intensity, persistence, and limiting effects of his symptoms. Moreover, as the Commissioner
correctly notes, the ALJ considered Plaintiff’s non-compliance with his doctor’s orders as part of
his credibility analysis. SSR 96-7p (“[A claimant’s] statements may be less credible if the level
or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or
records show that the individual is not following the treatment as prescribed and there are no good
reasons for this failure.”); see also Green v. Astrue, 2007 WL 2746893, at *8 (S.D.N.Y. Sept. 17,
2007) (citing Id.).
As further noted by the Commissioner, Plaintiff’s non-compliance was
substantial and consistent. Plaintiff repeatedly failed to refill his heart medication and high blood
pressure medication. R. at 518, 527, 534, 569, 578. He also stopped using his CPAP machine
based on his own subjective assessment that it was “not helping [him] at all,” and against his
doctors’ instructions to continue using it. Id. at 195, 534. Significantly, Plaintiff did not follow
his doctors’ dietary restrictions despite the “need for absolute compliance.” Id. at 498, 501, 509,
518, 519, 521, 522, 525, 528, 532, 540, 578. Accordingly, Plaintiff’s daily activities and repeated
non-compliance with treatment modalities support the ALJ’s credibility determination.
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is
granted. Plaintiff’s cross-motion for judgment on the pleadings is denied. The appeal is dismissed.
Dated: Brooklyn, New York
March 30, 2016
DORA L. IRIZARRY
United States District Judge
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