Grygielko-Sanchez v. Commissioner of Social Security
Filing
17
OPINION & ORDER granting 14 Commissioner's Motion for Judgment on the Pleadings and denying 12 plaintiff's Motion for Judgment on the Pleadings. The Clerk of Court is directed to enter judgment in favor of the defendant. Ordered by Judge Nina Gershon on 12/3/2018. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------x
JOANNA GRYGIELKO-SANCHEZ,
OPINION & ORDER
No. 16-cv-5357 (NG)
Plaintiff,
FILED
- v. -
IN CLERK'S OFFiCE
U.S. DlSTRICT COURT E.O.M.Y.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
* DEC042018 *
BROOKLYN OFFICE
----------------- -----------x
GERSHON, United States District Judge:
Plaintiff Joanna Grygielko-Sanchez brings this action seeking reversal of the decision of
the Commissioner of Social Security ("Commissioner") denying her claim for disability insurance
benefits and supplemental security income benefits under Titles II and XVI of the Social Security
Act (the "SSA" or "Act"), 42 U .S.C. §§ 401 et seq and 1381 et seq. After a hearing, where plaintiff
was represented by counsel before Administrative Law Judge ("ALJ'') James Keams, the ALJ
concluded that plaintiff was not disabled because, though unable to perform past relevant work,
she had the residual functional capacity ("RFC") to perform sedentary work, provided she may
stand and shift positions for no more than five minutes per hour and is limited to performing simple
and routine tasks. After the Appeals Council denied plaintiffs request for review, she timely
commenced this action. Both parties now move for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). For the reasons set forth below, the Commissioner's motion is
granted and the plaintiffs motion is denied.
1
Background
I.
A.
Procedural History
Plaintiff filed for benefits on December 27, 2012. Her alleged onset date is December 1,
2012.
1
Administrative Record ("AR") at 147-164, 190. Plaintiff requested a hearing before an
ALJ, which occurred on February 25, 2015. The ALJ issued his opinion on June 16, 2015 denying
plaintiffs claim. The Appeals Council denied plaintiffs request for review on September 12,
2016, thus rendering the decision of the Commissioner final. Plaintiff commenced this action on
September 27, 2016.
B.
Plaintiff's Background and Medical Evidence Before the ALJ
Plaintiff was born on May 19, 1975, making her 37 at the time of the alleged onset date.
Plaintiff completed high school and two years of college. She lives with her husband, mother, and
two children. She has held jobs as a sales clerk, a housekeeper, and a server in a cafe. Until
November 2012, she worked in a delicatessen and earned approximately $15,000 annually.
Plaintiff previously used the name Joanna Lucja Gonzalez, as indicated on her application
for disability benefits, and held a New York State Benefits Identification Card in this name.
Plaintiff filed for disability claiming to have insomnia, anxiety, and pain in the lumber
spine and bilateral hips. In her function report, dated February 17, 2013, plaintiff stated that she
took Lunesta as a sleep aid, Xanax for anxiety, and Hydromorphone for pain. She stated that she
was limited in her daily activities, went out of the house only for medical appointments, and that
her mother performed all of the housework in her home.
Although plaintiff initially alleged an onset date of February 28, 2012, during the
administrative hearing, plaintiffs counsel agreed with the ALJ that the earliest onset date possible
would be December 1, 2012 because plaintiff engaged in substantial gainful activity through
November 2012.
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On August 13, 2012, plaintiff sought treatment from Dr. Isaac Kreizman, a pam
management specialist, for left hip pain and lower back pain radiating down her leg. Plaintiff
complained of trouble sleeping.
Dr. Kreizman administered an injection of Kenalog with
Lidocaine. Motor nerve conduction studies revealed normal findings. A doppler examination
found no evidence of thrombosis in the deep venous system of the lower extremities.
On October 6, 2012, plaintiff underwent Magnetic Resonance Imaging (MRI) of the
lumbar spine, which found moderate broad-based midline disc herniation at L4-L5 and L4-S 1.
An MRI of the hips, performed on October 13, 2012, showed findings associated with
femoroacetabular impingement, or decreased range of motion of the hip joint.
Plaintiff returned to Dr. Kreizman on October 22, 2012 for treatment of hip and lower back
pam. Dr. Kreizman administered injections of Kenalog with Lidocaine in both hips.
Plaintiff received care from her primary care physician, Dr. Arkadiy lzrailov, an internist, in
February, May, October, November, and December 2012, and March 2013. The reasons for these
visits included anxiety, insomnia, and gastroesophageal reflux disease (GERO). The plaintiffs
medications were Xanax for anxiety disorder, Lunesta for insomnia, and Protonix for GERO.
Dr. Kreizman completed a medical source statement on May 3, 2013, in which he reported
treating plaintiff since August 13, 2012.
He reported that plaintiff had no significant gait
abnormalities. Dr. Keizman left blank the section of the form requesting information about
medically required assistive walking devices. He opined that plaintiff could lift and carry up to 15
pounds, stand and/or walk for up to six hours per day, and had an unspecified limitation in sitting.
Plaintiff treated with Dr. Kreizman for hip, back, and neck pain on a monthly basis between
January 2013 and June 2014.
At most visits, Dr. Kreizman assessed lumber radiculopathy.
Plaintiff received hip injections in January, February, May, and July 2013, which she reported
3
were helpful in relieving her pain. She received lumbar epidural injections in February, March,
and April 2013, which she also found helpful. At a follow-up visit in September 2013, plaintiff
noted that she felt pain when standing and walking. At visits in December 2013 and February
2014, she indicated that she had difficulty walking due to pain. Examination findings generally
showed paraspinal tenderness, antalgic gait, and decreased range of motion in the lower extremities
and low back. Plaintiff was prescribed Dilaudid, a topical pain reliever.
An MRI of the cervical spine on April 8, 2013 showed central disc herniations at C3-C4,
C4-C5, and C6-C7, and a disc bulge at C5-C6. The test found no foraminal impingement. An
MRI of the lumbar spine from the same date showed central/left paracentral disc herniation at
L5-S 1 with bilateral foraminal impingement and a reduction of disc signal intensity at L4-L5. An
electromyography (EMG) study conducted on April 24, 2014 found evidence of bilateral L4-L5
radiculopathy.
On May 3, 2013, plaintiff underwent, at the behest of the Commissioner, a consultative
evaluation with Robin Tempelman Macfarlane, Ph.D., a psychologist. Plaintiff reported difficulty
sleeping, some appetite disturbance, and depression. She reported experiencing panic attacks three
times per day, which limited her activities and caused her to fear going out by herself. Plaintiff
stated that she could not work because she was nervous and had panic attacks. She reported taking
Xanax, but stated that it did not help with her panic attacks. She also complained of pain with her
daily activities, but stated that she could dress, bathe, and groom herself, cook and prepare food,
clean, and do laundry. She reported that she spends her days socializing with her family. Dr.
Macfarlane opined that plaintiffs difficulties in daily activities appeared to be due to pain and not
to problems concentrating.
4
Dr. Macfarlane's evaluation included a mental status examination, during which plaintiff
was cooperative and related adequately. Plaintiff demonstrated mildly impaired attention and
concentration. She had adequate expressive and receptive language and clear quality of voice, and
her thought processes were coherent and goal-directed. Her affect was dysphoric and mood was
neutral. She could count and perform simple calculations, but could not count backward from 20
by threes. Her recent and remote memory were also mildly impaired due to anxiety. Intellectual
functioning was estimated to be in the average range, and her general fund of information appeared
to be appropriate to her experience.
Dr. Macfarlane concluded that the plaintiff showed no evidence of limitation in her
abilities to follow and understand simple directions and instructions or to perform simple tasks
independently. She determined that the plaintiff demonstrated mild to moderate limitation in her
ability to maintain attention and concentration due to anxiety, but no limitation in her ability to
maintain a regular schedule, learn new tasks, complete complex tasks independently, or make
appropriate decisions. Dr. Macfarlane stated that the results of the examination appeared to be
consistent with psychiatric problems, but that those problems did not alone appear significant
enough to interfere with plaintiffs ability to function on a daily basis.
Dr. Macfarlane
recommended that plaintiff undergo a full psychiatric exam from a psychiatrist in addition to
continuing treatment with her general practice doctor. The report also noted that plaintiff had been
previously referred to a psychiatrist, but prefered to see her general practice doctor for psychiatric
treatment.
On May 3, 2013, Dr. Vinod Thukral, an internist, conducted a consultative medical
examination, at the behest of the Commissioner. At that examination, the plaintiff reported being
involved in two motor vehicle accidents, one in approximately 2003 and the second in 2012, that
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caused injuries leading to her hip, back, and neck pain, as well as her anxiety and depression.
Plaintiff stated that she could shower and dress herself, but could not cook, clean, do laundry, or
shop due to pain. The plaintiff declined to perform parts of the examination due to pain. However,
she was able to change for the exam, get on and off the examination table, and rise from a chair
without difficulty. Dr. Thukral evaluated the plaintiffs gait as normal both with and without a
cane. Plaintiff demonstrated a full range of motion in the cervical spine and in the upper extremities.
Dr. Thukral noted mild tenderness in plaintiffs lumbar spine. Neurological examination showed
no abnormalities, and fine motor activity was intact in both hands. Dr. Thukral opined, on the basis
of the examination, that plaintiff had no limitations for sitting, standing, pulling, or pushing, but
had mild limitations for lifting and carrying due to lower backache.
On May 20, 2013, a non-examining State agency psychological consultant, Robert F.
Lopez, Ph.D., reviewed the evidence of record and opined that, from a psychiatric standpoint,
plaintiff was capable of following supervision, relating appropriately to coworkers, and performing
substantial gainful activity.
Plaintiff received treatment from Dr. Izrailov for insomnia, anxiety, nasal congestion, and
GERD in June, July, August, November, and December 2013. Musculoskeletal, neurological, and
psychological examinations were normal. Plaintiff was prescribed Xanax for anxiety, Lunesta for
insomnia, and Protonix for GERD.
On January 20, 2014, plaintiff underwent lumbar medial branch radiofrequency ablation,
a procedure to treat hip pain.
Plaintiff continued treatment with Dr. lzrailov in January, March, and May 2014. Dr.
lzrailov continued plaintiffs medications. Examination findings were normal.
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On March 30, 2014, Dr. Izrailov completed a medical source statement indicating
diagnoses of anxiety disorder, insomnia, GERD, lower back pain, and kidney stones. Dr. Izrailov
stated that plaintiff did not have depression. Dr. Izrailov indicated that plaintiff was limited to
occasionally lifting up to five pounds, standing and/or walking less than two hours per day, sitting
up to six hours per day, and was limited in pushing and pulling. Dr. Izrailov attached several lab
reports including a colonoscopy and esophagogastroduodenoscopy from February 2014, imaging
of the abdomen and pelvis from December 2013, and blood tests from December 2013.
A medical source statement from Dr. Kreizman's medical practice dated June 19, 2014,
notes that plaintiff was limited in lifting, carrying, standing and/or walking, sitting, pushing and/or
pulling, and otherwise, but does not specify the extent of the limitations. The report states that the
preparer cannot provide a medical opinion regarding plaintiffs ability to do work-related
activities.
On July 3, 2014, Dr. Izrailov completed a Treating Physician's Wellness Plan Report
concerning plaintiff. The report lists diagnoses of lower back pain, anxiety, and insomnia. In the
functional capacity section, Dr. Izrailov indicates that plaintiff is unable to work for at least 12
months.
Plaintiff continued to treat with Dr. lzrailov on a monthly basis from June 2014 through
February 2015. Dr. Izrailov continued plaintiffs medications. At visits in December 2014,
January 2015, and February 2015, Dr. Izrailov performed a depression screening, in which he
asked plaintiff if in the last two weeks she had been bothered by little interest or pleasure in doing
things or feeling down, depressed or hopeless. Plaintiff responded "No" to both questions in all
screenings.
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On September 8, 2014, plaintiff received a cervical epidural steroid injection and trigger
point injection in the cervical paraspinous muscles. On September 22, 2014 and December 20,
2014, she received lumbar epidural steroid and trigger point injections. Plaintiff had a follow-up
evaluation on January 22, 2015 during which she reported that her pain had worsened. She rated
the pain as 10/10 in her low back and 6/10 in her neck. Dr. Anson Moise, a surgeon, discussed
proceeding with a surgical consultation for plaintiffs lumbar spine, but plaintiff indicated that she
was not interested in surgical options and requested to repeat the lumbar epidural injections.
On February 19, 2015, Dr. Kreizman completed a medical assessment of ability to do workrelated activities. He reported that plaintiff could lift and/or carry less than 10 pounds, stand and/or
walk less than two hours, and sit with normal breaks periodically alternating sitting and standing
in an eight-hour workday. Additionally, he reported that plaintiff was limited in her upper and
lower extremities.
The record contains a medical source statement of ability to do work-related activities
(mental) completed on February 19, 2015. The parties agree that Dr. Izrailov wrote this report.
The report states that plaintiff has extreme limitations, which it defines as "no useful ability to
function in this area," in every area of work-related mental functioning due to panic disorder, social
anxiety disorder, and general anxiety disorder. The report indicates that the plaintiff can manage
benefits in her own best interest.
On March 4, 2015, the ALJ submitted interrogatories and a disc containing the plaintiffs
medical record to Dr. Charles Plotz, an internist.
Dr. Plotz provided responses to the
interrogatories on March 6, 2015. Dr. Plotz indicated that he had reviewed the evidence. Dr. Plotz
opined that plaintiffs impairments limited her to sedentary work at best. He noted that the record
showed that plaintiff had disc herniations in the cervical and lumbar spine, but that there was no
8
spinal impingement. He also noted that plaintiff reported that she could perform most activities
of daily living including laundry and shopping. In a medical source statement of ability to do
work-related activities (physical), Dr. Plotz indicated that plaintiff could lift and carry up to 10
pounds occasionally, sit four hours at a time and up to seven hours per workday, stand two hours
at a time and up to two hours per workday, and walk one hour at a time and up to one hour per
workday. He noted that plaintiff used a cane, but opined that it was not required to ambulate. He
opined that plaintiff could never climb ladders and scaffolds, never kneel, crouch, or crawl, and
could occasionally climb stairs and ramps, balance, and stoop.
C.
Vocational Expert Testimony
At the administrative hearing in this case, Ms. Miriam Greene, a vocational expert testified.
Prior to the hearing, Ms. Greene had reviewed the plaintiffs work history. Ms. Greene testified that
an individual who was limited to sedentary exertion levels and needed to stand up and shift positions
for five minutes or less per hour could not perform the plaintiffs former job as a sales clerk for food.
Ms. Greene testified that a person with these limitations could work as a "bench assembler, jewelry
stone setter, and surveillance systems monitor." AR at 55. The ALJ asked if the same person, with
the added limitation of requiring unscheduled breaks of one hour per day in addition to regular
breaks, could find work. Ms. Greene responded, "That person could not work competitively." Id.
The plaintiffs counsel had the opportunity to examine Ms. Greene, but did not.
D.
The ALJ Decision
At step one of the sequential analysis, the ALJ found that plaintiff had engaged in
substantial gainful activity, but that such activity had ended as of December 1, 2012.
At the second step, the ALJ determined that plaintiffs degenerative changes of the lumbar
spine, degenerative changes of the cervical spine, and panic disorder were severe impairments. At
9
step three, the ALJ determined that those impairments did not meet or equal the criteria of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
At step four, the ALJ concluded that plaintiff could perform sedentary work, provided she
may stand and shift positions for no more than five minutes per hour and is limited to performing
simple and routine tasks. In reaching this RFC, the ALJ gave great weight to the findings of Dr.
Thukral and Dr. Macfarlane. The ALJ found that plaintiffs testimony was not fully credible as the
findings of Dr. Izrailov, Dr. Thrukral, and Dr. Macfarlane, the EMG and MRI results, the opinion
of Dr. Plotz, and plaintiff's activities of daily living all suggested greater functioning than alleged by
plaintiff. Based on that RFC, the ALJ found that plaintiff could not perform her past relevant work.
At the final step, the ALJ considered plaintiffs age, education, work experience, and RFC,
and relied on the testimony of a vocational expert to determine that there were jobs that existed in
significant numbers in the national economy that plaintiff could perform. Accordingly, the ALJ
found that plaintiff was not disabled under the SSA.
II.
Legal Standard and Scope of Review
A claimant is entitled to disability benefits if she is unable "to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). The claimant has both "the general burden
of proving that he or she has a disability within the meaning of the Act" and the specific "burden
of proving his or her case at steps one through four of the sequential five-step framework
established in the SSA regulations." Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (internal
quotation omitted). If the claimant satisfies her burden of proving the requirements of the first
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four steps, at step five of the sequential analysis, the burden shifts to the Commissioner to prove that
the claimant is capable of working. See, e.g., Perez v. Chafer, 77 F.3d 41, 46 (2d Cir. 1996).
A district court may set aside the Social Security Commissioner's decision only if its
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). "Substantial evidence" is evidence "more
than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401
(1971). In other words, a reviewing court must determine whether the ALJ's decision relied on
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"
and applied "the correct legal standards." Burgess, 537 F.3d at 128 (internal quotations omitted).
III.
Discussion
Plaintiff argues that the ALJ's decision must be reversed on the grounds that: (1) the ALJ
failed to give controlling weight to the February 19, 2015 mental medical source statement in
evaluating plaintiffs mental RFC; (2) the ALJ failed to consider the possibility of progressive
deterioration of plaintiffs conditions in evaluating her physical RFC; and (3) the ALJ failed to
adduce medical and vocational evidence proving she is capable of performing other jobs that exist
in significant numbers in the national economy.
The ALJ's decision gave no weight to a mental medical source statement dated February
19, 2015 in evaluating the plaintiffs mental RFC "because the signature is illegible and the person
opined the claimant has extreme limitations in all areas of mental functioning, which has no basis
as can be seen by [Dr. MacFarlane's evaluation]." AR at 26. The Commissioner now accepts the
plaintiffs position that the report was completed by Dr. Izrailov, the plaintiffs primary care
physician, but argues that nonetheless, the ALJ was correct to give the opinion no weight.
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The opinion of a treating physician is ordinarily entitled to "controlling weight," provided
that it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §
404.1527. Where an opinion lacks supporting evidence or is "not consistent with other substantial
evidence in the record, such as the opinions of other medical experts," the weight afforded the
opinion may be diminished. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). If the ALJ
gives less than controlling weight to the treating physician's opinion, the ALJ must provide "good
reasons" for doing so. See Greek v. Colvin, 802 F.3d 370,375 (2d Cir. 2015). Factors to consider
include: (1) the length of the treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship; (3) the supportability of the opinion; (4) the
consistency with the record as a whole; and (5) the specialization of the treating physician. Id.
Assuming, as the Commissioner does, that the February 19, 2015 report was prepared by
Dr. Izrailov, plaintiffs internist, I find no error in the Commissioner's decision not to give it
controlling weight. The report states that plaintiff suffers from "extreme limitations," defined as
"no useful ability to function in this area," in every area evaluated, including the abilities to
"understand and remember short, simple instructions" and "make judgments on simple workrelated decisions." AR at 527. However, Dr. Izrailov's own treatment notes consistently indicate
normal psychological findings. Records from January and February 2015 indicate that plaintiff
denied depression, was "alert and oriented," and displayed "appropriate mood and affect." Thus
Dr. Izrailov' s long-term observations of the plaintiff-which plaintiff argues are grounds for
giving Dr. Izrailov's report great weight-are inconsistent with his February 19, 2015 report. See
Flanigan v. Colvin, 21 F.Supp.2d 285, 305 (S.D.N.Y. 2014) (affirming ALJ's assignment of no
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weight to a treating physician's opinion contradicted by the record including the physician's own
contemporaneous treatment records).
The report is also inconsistent with all other psychological assessments in the record. Dr.
MacFarlane's May 2013 evaluation found no evidence of limitation in plaintiffs abilities to follow
and understand simple directions and instructions, perform simple tasks independently, maintain
a regular schedule, learn new tasks, complete complex tasks independently, or make appropriate
decisions. Dr. Lopez found that plaintiff could follow supervision and relate appropriately to
coworkers.
Although Dr. Macfarlane and Dr. Lopez provided consultative opinions, as
psychologists, their opinions in their area of expertise may be given more weight than a nonspecialist. 20 C.F.R. § 404.1527(c)(5). Dr. Izrailov is not, as plaintiff argues, "uniquely qualified
to address the [plaintiffs] psychological issues." PL Br. at 12. As an internist, Dr. Izrailov is a
non-specialist in psychology and psychiatry. Finally, in considering the plaintiffs alleged mental
impairments, it is relevant to note that plaintiff consistently declined to seek specialist mental
treatment, although she was referred to a psychiatrist. Cf Mahoney v. Apfel, 48 F.Supp.2d 237,
246 (E.D.N.Y. 1999) ("[T]he ALJ is permitted to attach significance to plaintiffs failure to seek
medical treatment.") (citations omitted).
To the extent that plaintiff argues the ALJ should have assigned more than "no weight" to
the February 19, 2015 report, this argument is unavailing. "Remand for agency reconsideration is
unnecessary where, as here, application of the correct legal principles to the record could lead only
to the same conclusion." Bavaro v. Astrue, 413 F. App'x 382, 384 (2d Cir. 2011) (internal
quotations and alteration omitted)). Given the report's inconsistency with all other evidence on
the record concerning the plaintiffs psychological capacity, even if the ALJ had assigned the
opinion some weight, this would not have altered the finding regarding plaintiffs mental RFC.
13
The plaintiffs second objection challenges the ALJ's finding that plaintiff retained the RFC
to perform sedentary work with limitations. Sedentary work is work that "involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools." 20 C.F.R. § 404.1567(a). Plaintiff argues that the ALJ did not adequately account for
the progressive worsening of her conditions. But the record did not require the ALJ to conclude
that there was a pattern of deterioration. In fact, the ALJ' s conclusion is largely consistent with the
most recent opinion of Dr. Kreizman, plaintiffs pain management specialist since August 2012.
The only divergence between the two is that Dr. Kreizman opined that plaintiff could lift and carry
less than 10 pounds, while the ALJ found that the plaintiff could lift up to 10 pounds. Dr.
Kreizman's reports vary regarding plaintiffs ability to lift and carry. In a previous report, Dr.
Kreizman had opined that plaintiff could lift and carry up to 15 pounds. 2 The ALJ is entitled to
resolve inconsistencies. In addition to Dr. Kreizman's report, the ALJ had reports from plaintiffs
internist and a consulting internist, Dr. Thukral, each of whom described only limited physical
impairments. Moreover, the ALJ relied on the opinion of the medical expert who reviewed the
complete longitudinal record, including MRI and EMG studies, treatment records, and medical
opinions. Accordingly, substantial evidence supports the ALJ's physical RFC finding.
Plaintiffs third obj~tion is in essence an argument that the ALJ failed to meet his burden at
step five of the sequential analysis. At this step, the ALJ considers factors such as the claimant's
age, education, and past work experience to determine whether the claimant can perform other jobs
existing in significant numbers in the national economy.
2
The ALJ gave no weight to a third, June 19, 2014 report from Dr. Kreizman's office
because it is unclear who authored the opinion. As the report provided no specific information
and states that the preparer "cannot provide a medical opinion regarding plaintiffs ability to do
work-related activities," AR 343, I do not fault the ALJ for assigning no weight to this report.
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Substantial evidence supports the ALJ's finding that plaintiff can perform other jobs. A
vocational expert testified to the existence of three jobs available in significant numbers in the
national economy that a person with the plaintiff's RFC can perform. The ALJ was entitled to
credit that testimony. 20 C.F.R. § 404.1566(e).
Finally, although plaintiff does not challenge the ALJ's finding that her testimony was not
fully credible, I have considered this finding and conclude that it is adequately supported by the
record. Plaintiff testified that she could not work because of pain, insomnia, and anxiety. Plaintiff's
testimony about the intensity of her pain and her activities of daily living indicates a level of
incapacitation that is not otherwise reflected in the record. This testimony contradicts earlier
statements the plaintiff made to healthcare providers and the objective findings of the plaintiff's
treating physicians. Accordingly, I conclude that the record adequately supports the ALJ's decision.
IV.
Conclusion
· For the foregoing reasons, the Commissioner's motion is granted and the plaintiff's motion
is denied. The Clerk of Court is directed to enter judgment in favor of the defendant.
SO ORDERED.
• r
/ ,,
Nina Gershon
/s/
NINA GERSHON
United States District Judge
Dated: December 3, 2018
Brooklyn, New York
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