Fleming-Hogan v. Colvin

Filing 18

MEMORANDUM & ORDER: For the foregoing reasons(PLEASE SEE ORDER FOR FURTHER DETAILS), Commissioners motion (Docket Entry 13) is GRANTED, the Plaintiffs motion (Docket Entry 15) is DENIED. The Clerk of the Court is directed to mark this matter CLOSED. Ordered by Judge Joanna Seybert on 12/28/2015. (Ortiz, Grisel)

FILED 
CLERK 

12/28/2015 12:36 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
ROSEMARY E. FLEMING-HOGAN,
Plaintiff,

MEMORANDUM & ORDER
14-CV-1891(JS)

-againstCAROLYN W. COLVIN, Acting
Commissioner of Social Security,

Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Charles E. Binder, Esq.
Law Offices of Harry J. Binder and
Charles E. Binder, P.C.
60 East 42nd Street, Suite 520
New York, NY 10165
For Defendant:

Robert W. Schumacher, II, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, New York 11722

SEYBERT, District Judge:
Plaintiff

Rosemary

E.

Fleming-Hogan

(“Plaintiff”)

commenced this action pursuant to Section 205(g) of the Social
Securities

Act,

defendant,

the

as

amended,

Commissioner

42

U.S.C.
of

§ 405(g),

Social

challenging

Security’s

(“the

Commissioner”), denial of her application for disability insurance
benefits.

Presently

Commissioner’s

motions

Entries 13, 15.)

before
for

the

Court

judgment

on

are
the

Plaintiff’s
pleadings

and

(Docket

For the following reasons, the Commissioner’s

motion is GRANTED and Plaintiff’s motion is DENIED.

BACKGROUND
Plaintiff filed for Social Security Disability benefits
on

July

6,

2011,

October 1, 2009.

alleging

that

she

(R. at 117-20.)

has

been

disabled

since

Plaintiff attributes her

disability to: spinal stenosis, fibromyalgia, high blood pressure,
hypertension, goiter, gout, and arthritis.

(R. at 142.)

After her application for Social Security Disability
benefits was denied on November 16, 2011, Plaintiff requested a
hearing before an administrative law judge (“ALJ”) on December 2,
2011.

(R. at 61-65, 67-68.)

The hearing took place on September

5, 2012 before ALJ Seymour Rayner.

(R. at 35-58.)

On October 11, 2012, the ALJ issued his decision finding
that Plaintiff is not disabled.

(R. at 22-30.)

On November 26,

2012, Plaintiff petitioned the Appeals Counsel to review the ALJ’s
decision and submitted additional evidence in support of her
request.

(R. at 21.)

On January 22, 2014, the Appeals Council

denied Plaintiff’s request.

(R. at 1-7.)

The Court’s review of the administrative record in this
case will proceed as follows: first, the Court will summarize the
relevant evidence presented to the ALJ; second, the Court will
review the ALJ’s findings and conclusions; third, the Court will
summarize

the

additional

evidence

submitted

to

the

Appeals

Council; and finally, the Court will review the Appeals Council’s
decision.
2

I.

Evidence Presented to the ALJ
A.

Non-Medical Evidence
Plaintiff was born in 1960.

high

school

and

some

practical nursing.

vocational

(R. at 118.)

school

(R. at 38.)

training

She completed
in

licensed

Plaintiff was employed from

September 1994 to June 2008 as a teacher, and in 2011 she worked
for a homecare company for one week.
44).

(R. at 39-40, 134-35; 143-

She is married and lives with her mother, her husband, and

their three children.

(R. at 44-45.)

Plaintiff testified that she stopped working on June 30,
2008, after her job ended.

(R. at 142.)

Although she did not

stop working because of her condition, Plaintiff claims that in
October 2009, her condition became too severe for her to resume
working.
that

(R. at 142.)

the

reason

for

In a Disability Report Plaintiff wrote
her

disability

was

spinal

stenosis,

fibromyalgia, hypertension, goiter, gout, and arthritis.
142.)

(R. at

When asked why she could not work, Plaintiff testified as

follows: “Basically it’s the pain, the numbness, [ ] just the aches
and pains.

It just becomes difficult to move and to function.”

(R. at 42.)

Plaintiff also testified that she has “been diagnosed

with fibromyalgia, spinal stenosis, high blood pressure, gout.”
(R. at 43.)
Within a Function Report that Plaintiff filled out on
September, 26, 2011, Plaintiff wrote that she had pain in her neck,
3

shoulders, lower back, left leg, and left heel for five years, and
that her symptoms affected her activities for three years.
170-71.)

(R. at

Plaintiff complained of deep muscle soreness, burning

pain, sharp stabbing pain, and numbness.

(R. at 170.)

She stated

she took medication that helped, but did not eliminate her pain,
and

that

these

blurred vision.

medications

caused

(R. at 171-72.)

drowsiness,

dizziness,

and

Plaintiff stated she could only

lift five pounds, stand for five minutes and sit for ten minutes,
and was not able to walk for more than five minutes without
stopping for a 20-25 minute break.

(R. at 167-69.)

Plaintiff

recorded that she could not climb stairs, kneel, squat, reach high,
or use her hands for extended periods.

(R. at 168.)

Plaintiff reported that she was able to independently
shower,

eat

meals,

feed

her

cat,

watch

television,

medications, play games on the computer, crochet, and read.
at 163, 166.)

take
(R.

Plaintiff explained that she could make her bed and

that when seated, she could iron, but that her family took care of
the housecleaning and repairs.

(R. at 163-165.)

She reports no

difficulty hearing, speaking, paying attention, finishing what she
started, following directions, working with others, and handling
stress.

(R. at 168-170.)

Plaintiff is able to pay bills, count

change, and handle a savings account.

(R. at 166.)

Plaintiff

wrote that she could leave her home to shop for food, clothing,
and books, although she could not drive and someone had to go with
4

her to carry her packages.

(R. at 165-66.)

She also goes to the

doctor’s office, pharmacy, and grocery store monthly and to visit
family weekly.
B.

(R. at 165-67.)

Medical Evidence
1.

South Nassau Internal Medicine Associates

Beginning in May 2006, Plaintiff received treatment at
South Nassau Internal Medicine Associates.

(R. at 277.)

On

May 18, 2006 Plaintiff was diagnosed with multinodular nontoxic
goiter and osteoarthritis.
16, at 1.)

(R. at 277; Pl.’s Br., Docket Entry

On September 2, 2009, Plaintiff saw Dr. Eric Blacher

complaining of numbness of the lower back radiating into the left
thigh.

(R. at 275; Pl.’s Br. at 1.)

back pain and anemia.

Plaintiff was diagnosed with

(R. at 275, 338; Pl.’s Br. at 1-2.)

On

October 14, 2009, an MRI of the lumbar spine showed degenerative
changes of the spine, mild central canal stenosis, and moderate
bilateral foraminal narrowing.

(R. at 259-260.)

On May 4, 2010, a sonogram showed a diffusly enlarged
thyroid gland with multiple bilateral nodules consistent with
multinodular goiter. (R. at 285.) This was confirmed by a thyroid
uptake scan on May 19, 2010.

(R. at 283.)

On June 7, 2010,

Plaintiff complained of body aches, fatigue, thinning hair, dry
mouth, and fullness of her neck on the left.

(R. at 269; Pl.’s

Br. at 2.)

On December 17, 2010, Plaintiff described hip and left

arm pain.

(R. at 268; Pl.’s Br. at 2.)
5

Plaintiff was diagnosed

with left lower extremity superficial phlebitis, hypertension, a
multinodular thyroid goiter, and fibromyalgia.
20,

2011,

Plaintiff

returned,

complaining

Id.

that

On January

the

room

spinning, and was diagnosed with hypertension and vertigo.
266; Pl.’s Br. at 2.)

was

(R. at

On February 3, 2011, Plaintiff complained

of back pain and leg swelling.

(R. at 265; Pl.’s Br. at 2.)

On

April 25, 2011, she reported aches and pains all over and poor
sleep.

(R. at 353; Pl.’s Br. at 2.)
2.

Gary Meredith, M.D.

Gary Meredith, M.D., a rheumatologist, treated Plaintiff
“from approximately 2002 through 2007 although she was seen quite
intermittently over those years and there was a stretch between
2004 and 2007 when she was not seen at all.”

(R. at 261.)

Dr.

Meredith stated that Plaintiff complained of generalized joint
pain in the shoulders, elbows, hands, wrists, knees, ankles, and
multiple other locations over the past year.

(R. at 261.)

A physical examination performed by Dr. Meredith in 2011
revealed limited neck extension, significant limited motion in
both shoulders, fair range of motion in her back, significant
crepitus in the knees, and trigger point tenderness.
62.)

(R. at 261-

Plaintiff’s hips had fair movement, and her ankles and feet

were normal.

(R. at 261-62.)

Dr. Meredith stated that Plaintiff

suffered from osteoarthritis and fibrolmyalgia.

6

(R. at 262.)

On June 23, 2011, Plaintiff was seen by Dr. Meredith for
a visit regarding shoulders, elbows, and wrist puffiness.
249; Pl.’s Br. at 3.)

(R. at

Dr. Meredith diagnosed Plaintiff with

achilles tendonitis and possible gout.

Id.

On July 1, 2011,

Plaintiff reported a swollen heel and was advised to take Aleve.
(R. at 248, 305.)

On July 21, 2011, Plaintiff complained of mild

pain in her left foot and was diagnosed with Achilles tendonitis
secondary to gout, however, Dr. Meredith reported that Plaintiff
had good range of motion in her hips and knees.

(R. at 248, 305.)

On September 6, 2011, Dr. Meredith noted Plaintiff still
had problematic gout, although there was less pain with medication,
and reported that Plaintiff had fair range of motion in her
shoulders and elbows and good range of motion in her hips and
knees, despite swelling, and painful range of motion in her left
ankle.

(R. at 247.)

As of September 27, 2011, Plaintiff’s

medication included Norvasc, Lisinopril, Atenolol, Gabapentin,
Colcrys, Advil, and Pepcid.

(R. at 357.)

On October 6, 2011, Dr. Meredith reported that Plaintiff
had pain in her neck and down her back.

(R. at 301.)

However,

Plaintiff did have fair range of motion in her back and hips,
although there were mild limitations in her neck and trace ankle
edema.

Id.

On December 1, 2011, Plaintiff complained that her

leg pain and sciatica had not improved.
4.)

(R. at 306; Pl.’s Br. at

Dr. Meredith noted that Plaintiff had limited range of motion
7

in her hips and knees, but her shoulders and elbows were within
normal limits, with no active synovitis in her hands or wrists.
(R. at 306.)

On February 2, 2012, Dr. Meredith saw Plaintiff, who

complained of a gout flare-up in her left foot.

(R. at 306.)

Plaintiff had tenderness in her left heel, but a good range of
motion in her shoulders, hips, and knees.

(R. at 306.)

Her elbows

were within normal limits, and her examination was otherwise
unremarkable.
Dr.

(R. at 306.)
Meredith

completed

Questionnaire on February 6, 2012.

a

Multiple

Impairment

(R. at 204-211.)

Plaintiff’s

primary symptoms were joint pain and fatigue.

(R. at 205.)

Dr.

Meredith rated Plaintiff’s pain as a six out of ten and her fatigue
as an eight out of ten.

(R. at 206.)

Dr. Meredith determined

that Plaintiff was able to sit for three hour total and stand or
walk two hours total in an eight hour workday.

Id.

When sitting,

Dr. Meredith determined that Plaintiff needed to get up and move
around every hour and not sit again for thirty minutes.
206-207.)

(R. at

Dr. Meredith assessed that Plaintiff could frequently

lift objects weighing up to ten pounds and occasionally lift
objects weighing between ten and twenty pounds.

(R. at 207.)

Plaintiff could frequently carry objects weighing up to five
pounds, and occasionally carry objects weighing between five and
ten

pounds,

repetitive

but

tasks

had

significant

such

as

limitations

reaching,
8

handling,

in

performing

fingering,

or

lifting. (R. at 207.) Dr. Meredith estimated that Plaintiff would
be absent from work, on average, more than three times a month as
a result of her impairments or treatment, and needed a job that
did not involve pushing, pulling, kneeling, bending, or stooping
and avoid humidity and heights.

(R. at 210.)

He stated that

Plaintiff would need to take 15 minute breaks every one to two
hours.

(R. at 209.)

Dr. Meredith recorded that Plaintiff’s

symptoms would increase if she were placed in a competitive work
environment and that her symptoms periodically were severe enough
to interfere with her attention and concentration.
09.)

(R. at 208-

Dr. Meredith believed, however, that Plaintiff was capable

of being in high stress work.

(R. at 209.)

During a March 1,

2012 visit, Plaintiff complained of bilateral neck spasms and Dr.
Meredith diagnosed her with fibromyalgia, osteoarthritis, and
gout.

(R. at 307; Pl.’s Br. at 5.)

Dr. Meredith noted that

Plaintiff had a good range of motion in the shoulders, hips, and
knees, and fair movement in the neck.

Id.

In a narrative report dated March 2, 2012, Dr. Meredith
noted that when he saw the Plaintiff in 2011, she had generalized
joint pain involving the shoulders, elbows, hands, wrists, knees,
and ankles.

(R. at 220.)

suffered from poor sleep.

In addition, he noted that Plaintiff
(R. at 220.)

His examination revealed

slightly decreased motion in the neck with fullness and limitation,
fair range of motion in the shoulders, limited motion in the back,
9

fair movement in the hips and knees, intermittently positive
straight leg raising, intermittent pain and swelling of the l1ft
heel, and significant trigger point tenderness.

(R. at 220.)

Dr.

Meredith noted Plaintiff had longstanding hypertension, spinal
stenosis, and a thyroid goiter issues.

(R. at 220.)

Dr. Meredith

also noted that Plaintiff continued to suffer from fibromyalgia,
osteoarthritis, and gout.

(R. at 220.)

He further classified

Plaintiff as “disabled” and stated that she was unable to return
to her job as an elementary school teacher because of her physical
limitations.

(R. at 221.)

On April 26, 2012, Plaintiff complained that her upper
right arm was producing pain, and painful motion in the right
shoulder.

Dr.

Meredith

again

diagnosed

fibromyalgia, osteoarthritis, and gout.
5.)

Plaintiff

with

(R. at 307; Pl.’s Br. at

On July 5, 2012, Plaintiff complained of a rash around her

right elbow and left wrist, which Dr. Meredith diagnosed as
osteoarthritis and gout.

(R. at 323; Pl.’s Br. at 5.)

In a report

dated August 28, 2012, Dr. Meredith detailed unchanged diagnoses,
findings, and limitations from those detailed in the previous
questionnaire.

(R. at 363; Pl.’s Br. at 5.)

3.

Jerome Caiati, M.D.

Dr.

Jermome

examination

of

Caiati

Plaintiff,

at

completed
the

November 11, 2011. (R. at 296-99.)
10

an

internal

Commissioner’s

medicine

request,

on

Dr. Caiati noted Plaintiff’s

medical history included hypertension, gout, lumbosacral spinal
stenosis, fibromyalgia, and chest pain.

(R. at 296.)

Dr. Caiati

noted that Plaintiff was obese, in no acute distress, and that her
gait

and

stance

were

normal.

(R.

at

297.)

Dr.

Caiati’s

examination revealed that Plaintiff had minimal difficulty walking
on her toes and could squat two-thirds.

(R. at 297.)

Dr. Caiati noted Plaintiff complained of gout pain, but
there was no evidence of subluxations, contractures, ankyloses, or
thickening and that Plaintiff’s joints were stable and nontender,
with no redness, heat, swelling, or effusion.

(R. at 298.)

Plaintiff did not show cyanosis, clubbing, or edema, no significant
varicosities, or trophic changes and no muscle atrophy.

(R. at

298.)
Dr. Caiati diagnosed Plaintiff with obesity, and noted
that Plaintiff had a history of hypertension, gout, lumbosacral
spinal stenosis, fibromyalgia, and chest pain.

(R. at 298-99.)

Dr. Caiati determined that Plaintiff had minimal limitation in
bending due to low back pain, minimal limitations in climbing due
to left ankle gout pain, minimal to mild limitation in lifting due
to low back pain and left ankle pain, and no restrictions in
sitting, standing, walking, reaching, pushing, or pulling.

(R. at

299.)
4. Luis M. Zuniga, M.D.
State

agency

physician
11

Dr.

Luis

M.

Zuniga

reviewed

Plaintiff’s record and assessed her condition and limitations on
June 12, 2012.

(R. at 230.)

Dr. Zuniga noted that Dr. Meredith’s

March 2012 report did not show that Plaintiff had significant
limitations.

(R. at 230.)

Dr. Zungia determined that Plaintiff’s

degenerative disk disease, osteoarthritis, and obesity were severe
conditions, and that her fibromyalgia, hypertension, gout, and
goiter were not severe.

(R. at 230.)

In Dr. Zuniga’s opinion,

Plaintiff could occasionally lift twenty pounds; frequently lift
objects up to ten pounds; stand or walk about six hours per day in
an eight hour day; sit for approximately six hours; frequently
balance, stoop, kneel, crouch, and crawl, and occasionally climb,
with

unlimited

pushing,

pulling,

and

manipulative or environmental limitation.

reaching,

with

no

(Def.’s Br., Docket

Entry 14, at 16; R. at 230 (affirming an earlier functional
capacity assessment).)
II. Decision of the ALJ
After reviewing the evidence in the record, the ALJ
issued his decision on October 11, 2012, finding Plaintiff not to
be disabled.

(R. at 25-30.)

The ALJ concluded that while

Plaintiff’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of
[the]

symptoms

[were]

not

credible

12

to

the

extent

they

are

inconsistent
assessment.”
The

with

the

above

residual

functional

capacity

(R. at 28.)
ALJ

concluded

that

Plaintiff

has

the

residual

functional capacity to perform light work as defined in 20 C.F.R
404.1567(b).

(R. at 27.)

The ALJ concluded that “[Plaintiff] is

capable of performing her past relevant work as a school teacher
. . . [which] does not require the performance of work-related
activities precluded by the [Plaintiff’s] residual functional
capacity.”

(R. at 30.)
In

reaching

its

decision,

the

ALJ

accorded

“little

weight” to Dr. Meredith’s opinion, a treating physician, because
his

opinion

was

“inconsistent

with

his

examinations

of

the

[Plaintiff] demonstrating fair to only slight decreased range of
motion in the neck, shoulders, elbows, back, hips, and knees, no
active synovitis in the hands or wrists, diagnostic imaging and
testing, the [Plaintiff’s] conservative course of treatment, and
the findings of Drs. Caiati and Zuniga.”

(R. at 30.)

The ALJ

accorded “significant weight” to the opinion of Dr. Zuniga, because
it was “consistent with the opinion of Dr. Caiati, diagnostic
imaging

and

admissions.”

testing,

treatment

(R. at 30.)

notes,

and

the

[Plaintiff’s]

Finally, the ALJ accorded the “greatest

weight” to the opinion of Dr. Caiati, who performed an evaluation
of Plaintiff on behalf of the SSA because it was “supported by and

13

consistent with diagnostic imaging and testing, treatment notes,
and the [Plaintiff’s] admissions.”

(R. at 30.)

III. The Decision of the Appeals Counsel
Plaintiff petitioned the Appeals Council to review the
ALJ’s decision and submitted a letter attaching a Narrative Report
dated December 20, 2012 from Joseph Cohn, M.D. and a Multiple
Impairment Questionnaire dated December 17, 2012 from Joseph Cohn,
M.D.

(R. at 365-75.)
A.

Joseph Cohn, M.D.
Plaintiff

was

evaluated

Rheumatologist, on December 20, 2012.

by

Joseph

Cohn,

(R. at 365.)

M.D.,

a

At that time,

Dr. Cohen found that Plaintiff was suffering from the following
ailments: hypertension, irritable bowel syndrome, reflux, anemia,
L4-L5 left lumbar radiculopathy, hyperuricemia, and gout in the
left ankle.

(R. at 367.)

He also found that there was evidence

of cervical spondylosis, and fibromyalgia.

(R. at 367.)

With

respect to Plaintiff’s capacity to work, Dr. Cohen opined that
Plaintiff “does appear to be disabled at the present time from
full time physical activities” due to her medical problems.
at 367.)

(R.

More specifically, Dr. Cohen explained that Plaintiff

was “limited in her physical activities in terms of walking and
sitting” because of her lower back and knee pain and limited in
her arm movement because of “numbness in the left hand.” Dr. Cohen
also noted that Plaintiff had “chronic neck pain” and “joint pains”
14

in her knees and hands.
On

January

(R. at 367.)
22,

2014,

the

Appeals

Council

Plaintiff’s petition to appeal the ALJ’s decision.

denied

(R at 1-7.)

The Appeals Council found that Dr. Cohn’s report did not affect
the ALJ’s decision about whether Plaintiff was disabled on or
before October 11, 2012, because the report was dated December 17,
2012.

(R. at 2.)

The Appeals thus “found no reason under our

rules to review the Administrative Law Judge’s decision.”

(R. at

1.) Therefore, the ALJ’s decision is considered the final decision
of the Commissioner.

(R. at 1.)

IV. Procedural History
Plaintiff

commenced

this

action

on

March

24,

2014.

(Docket Entry 1.) The Commissioner filed the administrative record
and

Answer

on

June

23,

2014.

(Docket

Entries

7-9.)

The

Commissioner moved for judgment on the Pleadings on September 23,
2014, (Docket Entry 13) and Plaintiff moved on October 23, 2014.
(Docket Entry 15).

These motions are presently before the Court.
DISCUSSION

I.

Standard of Review
In reviewing the ruling of the ALJ, this Court will not

determine de novo whether Plaintiff is entitled to disability
benefits.

Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the
ALJ.

See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
15

Instead, the Court must determine whether the ALJ’s findings are
supported by “substantial evidence in the record as a whole or are
based on an erroneous legal standard.”

Curry v. Apfel, 209 F.3d

117, 122 (2d Cir. 2000) (internal quotations marks and citation
omitted),

superseded

§ 404.1560.

by

statute

on

other

grounds,

20

C.F.R.

If the Court finds that substantial evidence exists

to support the Commissioner’s decision, the decision will be
upheld, even if evidence to the contrary exists.

See Johnson v.

Barnhart, 269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003).

“Substantial

evidence is such evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Perales, 402 U.S. 389, 401, 91 S.
842 (1971)).
the

ALJ’s

Id.
Ct.

(citing Richardson v.

1420, 1427, 28 L. Ed. 2d

The substantial evidence test applies not only to

findings

of

fact,

but

also

to

conclusions of law drawn from such facts.

any

inferences

and

See id.

To determine if substantial evidence exists to support
the ALJ’s findings, this Court must “examine the entire record,
including

contradictory

evidence

and

conflicting inferences may be drawn.”

evidence

from

which

See Brown v. Apfel, 174

F.3d 59, 62 (2d Cir. 1999) (internal quotation marks and citation
omitted).

“The findings of the Commissioner of Social Security as

to any fact, if supported by substantial evidence, shall be
conclusive . . . .”

42 U.S.C. § 405(g).

16

A.

Eligibility for Benefits
A claimant must be disabled within the meaning of the

Social Security Act (the “Act”) to receive disability benefits.
See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); 42 U.S.C.
§ 423(a), (d).

A claimant is disabled under the Act when he can

show an inability “to engage in any substantial gainful activity
by

reason

of

any

impairment . . .

medically

determinable

physical

or

which has lasted or can be expected to last for

a continuous period of not less than 12 months.”
§ 423(d)(1)(A).

mental

The

claimant’s

impairment

must

42 U.S.C.
be

of

“such

severity that he is not only unable to do his previous work but
cannot,

considering

his

age,

education,

and

work

experience,

engage in any other kind of substantial gainful work which exists
in the national economy . . . .”

Id.

§ 423(d)(2)(A).

The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the Act.
See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Petrie
v. Astrue, 412 F. App’x 401, 404 (2d Cir. 2011).

First, the

claimant must not be engaged in “substantial gainful activity.”
20 C.F.R. § 404.1520(a)(4)(i).

Second, the claimant must prove

that he suffers from a severe impairment that significantly limits
his mental or physical ability to do basic work activities.
§ 404.1520(a)(4)(ii).

Id.

Third, the claimant must show that his

impairment is equivalent to one of the impairments listed in
17

Appendix 1 of the Regulations.

Id.

§ 404.1520(a)(4)(iii).

Fourth, if his impairment or its equivalent is not listed in the
Appendix, the claimant must show that he does not have the residual
functional capacity (“RFC”) to perform tasks required in his
previous employment.

Id. § 404.1520(a)(4)(iv).

Fifth, if the

claimant successfully makes these showings, the Commissioner must
determine if there is any other work within the national economy
that the claimant is able to perform.

Id. § 404.1520(a)(4)(v).

The claimant has the burden of proving the first four steps of the
analysis, while the Commissioner carries the burden of proof for
the last step.
F.3d

303,

See Shaw, 221 F.3d at 132; Poupore v. Astrue, 566

306

(2d

Cir.

2009).

“In

making

the

required

determinations, the Commissioner must consider: (1) the objective
medical facts; (2) the medical opinions of the examining or
treating physicians; (3) the subjective evidence of the claimant’s
symptoms submitted by the claimant, his family, and others; and
(4)

the

claimant’s

experience.”

educational

Boryk ex rel.

background,

age,

Boryk v. Barnhart, No.

and

work

02–CV–2465,

2003 WL 22170596, at *8 (E.D.N.Y. Sept. 17, 2003) (citing Carroll
v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
1983)).
Here, the ALJ performed the above analysis and found
that Plaintiff had not engaged in substantial gainful activity
since October 1, 2009, and that she had the following severe
18

impairments: fibromyalgia, osteoarthritis, hypertension, and gout.
(R. at 27.)

The ALJ next determined that none of Plaintiff’s

impairments or any combination of her impairments were the medical
equivalent of any impairment enumerated in Appendix 1 of the
Regulations.

(R. at 27.)

Thus, the ALJ found that Plaintiff was

capable of performing her past work as a school teacher, as she
had the RFC to perform a full range of light work.

(R. at 27-30.)

Plaintiff

determination.

takes

issue

with

the

ALJ’s

final

Specifically, Plaintiff argues that (1) the ALJ did not follow the
treating physician’s rule with respect to Dr. Meredith and (2) the
ALJ did not properly assess Plaintiff’s credibility.
at 7-15.)
A.

(Pl.’s Br.

The Court will address these arguments in turn below.
Treating Physician Rule
Plaintiff first argues that remand is required because

the ALJ did not properly apply the treating physician rule to Dr.
Meredith’s
Commissioner

medical

opinions.

counters

that

(Pl.’s
the

Meredith’s opinions “little weight.”
Entry 17, at 1-6.)

ALJ

Br.

at

properly

7-12.)

The

assigned

Dr.

(Comm’r’s Reply Br., Docket

Under the “treating physician rule,” the

medical opinions and reports of a claimant’s treating physicians
are to be given “special evidentiary weight.”
Soc.

Sec., 143 F.3d 115, 118 (2d Cir. 1998).

regulation states:

19

Clark v. Comm’r of
Specifically, the

Generally, we give more weight to opinions
from your treating sources . . . . If we find
that a treating source’s opinion on the
issue(s) of the nature and severity of your
impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the
other substantial evidence in your case
record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2) (alteration in original).

When an ALJ

does not accord controlling weight to the medical opinion of a
treating physician, the ALJ “must consider various ‘factors’ to
determine how much weight to give to the opinion.”

Halloran v.

Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citation omitted); see
also Schnetzler v. Astrue, 533 F. Supp. 2d 272, 286 (E.D.N.Y.
2008).

These factors include:
(1) the length of the treatment relationship
and frequency of the examination; (2) the
nature
and
extent
of
the
treatment
relationship; (3) the extent to which the
opinion is supported by medical and laboratory
findings; (4) the physician’s consistency with
the record as a whole; and (5) whether the
physician is a specialist.

Schnetzler,

533

F.

Supp.

2d

at

286;

see

§ 404.1527(d)(2); Halloran, 362 F.3d at 32.

also

20

C.F.R.

To comply with the

requirements of the treating physician rule ALJ must “set forth
her reasons for the weight she assigns to the treating physician’s
opinion.”

Shaw, 221 F.3d at 134;

see 20 C.F.R. § 404.1527;

see

also Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (explaining
that “[a] claimant . . . who knows that her physician has deemed

20

her disabled, might be especially bewildered when told by an
administrative bureaucracy that she is not, unless some reason for
the agency’s decision is supplied.”)
Here, the ALJ did not violate the treating physician’s
rule because he articulated his reasons for giving certain doctor’s
opinions less weight.

With respect to Dr. Meredith, the ALJ noted

that

opinion

Dr.

Meredith’s

was

inconsistent

with

his

own

examinations of “the claimant demonstrating fair to only slightly
decreased range of motion in the neck, shoulders, elbows, back,
hips, and knees, no active synovitis in the hands or wrists,
diagnostic imaging and testing, the claimant’s conservative course
of treatment, and the findings of Drs. Caiati and Zuniga.”
30.)

(R. at

Moreover, in deciding that Dr. Meredith’s opinions were not

entitled to controlling weight, the ALJ considered the various
factors, set forth in 20 C.F.R. § 404.1527, to determine how much
weight to afford their opinions.

(R. at 28.)

Specifically, the

ALJ found that Dr. Meredith’s opinion was inconsistent with the
medical

tests

performed

on

Plaintiff

admissions regarding her capabilities.

and

Plaintiff’s

(R. at 30.)

own

Thus, the

ALJ’s decision did not violate the treating physician’s rule.
B.

Credibility
Plaintiff also argues that the ALJ did not properly

assess Plaintiff’s credibility and that “[t]he ALJ’s credibility
determination is not supported by substantial evidence.”
21

(Pl.’s

Br. at 14.) The Court disagrees. Here, the ALJ found that although
“[Plaintiff’s] medically determinable impairments could reasonably
be

expected

to

cause

the

alleged

symptoms,”

her

“statements

concerning the intensity, persistence and limiting effects of
these symptoms are not credible . . . .” (R. at 28.) As discussed
below, the Court finds that there is substantial evidence in the
record to support the ALJ’s conclusion.
The Second Circuit has held that “the subjective element
of pain is an important factor to be considered in determining
disability.”

Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984).

However, “[t]he ALJ has the discretion to evaluate the credibility
of a claimant and to arrive at an independent judgment, in light
of medical findings and other evidence, regarding the true extent
of the pain alleged by the claimant.”
Health,

Educ.

&

Welfare,

612

F.2d

McLaughlin v. Sec’y of

701,

705

(2d

Cir.

1980)

(alteration in original) (internal quotation marks and citation
omitted).

The Court will uphold an ALJ’s decision discounting a

petitioner’s subjective complaints of pain, as long as the decision
is supported by substantial evidence.

See Aponte v. Sec’y, Dep’t

of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984).
Here,

Plaintiff’s

subjective

complaints

were

contradicted by other evidence in the record as well as Plaintiff’s
own

testimony

and

behavior

at

the

hearing.

Specifically:

(1) Plaintiff testified that she stopped working because her job
22

ended--not

because

of

a

physical

impairment

(R.

at

142);

(2) Plaintiff stated that she was able to perform a wide range of
activities, including: showering, eating meals, feeding her cat,
watching
reading.

television,

playing

(R. at 163-67.)

computer

games,

crocheting,

and

Moreover, Plaintiff’s allegations of

disability are inconsistent.

Plaintiff testified that she does

not cook, clean, do laundry, or food shop.

In her Functional

Report however, she admitted that she is able to shower and dress
herself, cook, make her bed, and shop for food.
These

contradictions

support

ALJ’s

Plaintiff’s subjective complaints.

decision

(R. at 163-67.)
to

discount

See, e.g., Vargas v. Astrue,

No. 10–CV–6306, 2011 WL 2946371, at *15 (S.D.N.Y. July 20, 2011);
Shriver v. Astrue, No. 07–CV–2767, 2008 WL 4453420, at *2 (E.D.N.Y.
Sept. 30, 2008).
CONCLUSION
For the foregoing reasons, Commissioner’s motion (Docket
Entry 13) is GRANTED, the Plaintiff’s motion (Docket Entry 15) is
DENIED.

The Clerk of the Court is directed to mark this matter

CLOSED.
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Date: December
28 , 2015
Central Islip, New York
23