Galatro v. Colvin

Filing 20

MEMORANDUM & ORDER granting 8 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings; For the foregoing reasons, the Commissioner's motion (Docket Entry 8) is GRANTED, and the Plaintiff's motion (Docket Entry 14) is DENIED. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/29/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JAMES GALATRO,
Plaintiff,
MEMORANDUM & ORDER
14-CV-5284(JS)

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

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Christopher James Bowes, Esq.
Law Offices of Christopher James Bowes
54 Cobblestone Dr.
Shoreham, NY 11786
For Defendant:

Matthew Silverman, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201

SEYBERT, District Judge:
Plaintiff James Galatro (“Plaintiff”) commenced this
action under Section 205(g) of the Social Securities Act, as
amended,

42

U.S.C.

§ 405(g),

challenging

the

Commissioner

of

Social Security’s (the “Commissioner”) denial of his application
for disability insurance benefits.

Presently before the Court

are Plaintiff’s and Commissioner’s motions for judgment on the
pleadings.

(Docket Entries 8, 14.)

For the following reasons,

the Commissioner’s motion is GRANTED, and Plaintiff’s motion is
DENIED.

BACKGROUND1
Plaintiff

filed

an

application

for

Social

Security

Disability benefits on June 6, 2011, claiming a disability since
May 5, 2011.
to

chronic

(R. 116-17.) Plaintiff attributes his disability
recurrent

disorder (“PTSD”).

sinusitis

and

post-traumatic

stress

(R. 144.)

After his application for Social Security Disability
benefits was denied on January 13, 2012, Plaintiff requested a
hearing before an administrative law judge.

(R. 59-71.)

The

hearing took place on November 19, 2012 before administrative
law judge Ronald D. Waldman (the “ALJ”).

(R. 23.)

At the

hearing Plaintiff amended his alleged onset disability date to
June 24, 2011.
Plaintiff

and

(R. 10, 29.)
Dr.

David

The ALJ heard testimony from

Vandergoot,

a

vocational

expert.

(R. 24.)
On

December

11,

2012,

the

finding that Plaintiff is not disabled.

ALJ

issued

(R. 7.)

his

decision

Plaintiff then

sought review of the ALJ’s decision by the Appeals Council.
1-6.)

(R.

However, on July 7, 2014, the Appeals Council denied

Plaintiff’s request for review, stating that it “found no reason
under

[its]

rules

to

review

the

1

Administrative

Law

Judge’s

The facts of this case are taken from the administrative record
filed by the Commissioner on December 9, 2014. (Docket Entry
6.) “R.” denotes the administrative record.
2

decision.”

(R. 1.)

Thus, the ALJ’s decision is considered the

final decision of the Commissioner.
I.

Evidence Presented to the ALJ
A.

Testimonial Evidence
Plaintiff

was

equivalency diploma.
27-28.)

born

(R. 27.)

in

1960

and

holds

a

general

He lives with his two sons.

(R.

He was previously employed as a firefighter with the

New York City Fire Department (“FDNY”) from January 21, 1990 to
April 20, 2010.

2

(R. 145.)

Notably, Plaintiff was a first

responder to the World Trade Center attacks on September 11,
2001.

(See R. 30.)
Plaintiff testified that he stopped working in 2011

after

receiving

disability

surgery and PTSD.

retirement

(R. 29-30.)

as

a

result

of

sinus

Plaintiff further testified that

he could not “tolerate any, like, types of fumes or any types of
smells.”
Plaintiff

(R. 31.)
responded

When asked what type of smells affected him,
“cleaning

fluids.”

(R.

31.)

Plaintiff

testified that his PTSD related to 9/11 and his self-medication
with alcohol.

(R. 33-34.)

suffered from sleep apnea.

Plaintiff also testified that he

(R. 33.)

In a Function Report dated November 2, 2011, Plaintiff
indicated that before his illness he would go to the gym, but he

2

At the hearing, however, Plaintiff stated that he stopped
working in June 2011. (R. 28-29.)
3

was now depressed and liked being at home.

(R. 154.)

He noted

that he often left his house and was capable of driving a car.
(R. 155.)

Plaintiff reported that he was able to cook twice a

week and ordered takeout five days per week.
shopped for food weekly.

(R. 156.)

(R. 157.)

He

Plaintiff reported that he

enjoyed watching television and reading newspapers.

(R. 156.)

He also spent time with his girlfriend once per week.

(R. 158.)

Plaintiff noted that he was able to pay bills, count change, and
handle a savings account.

(R. 156.)

Plaintiff reported that his illness did not affect his
ability to lift, stand, sit, climb stairs, kneel, squat, reach,
use hands, see, hear, or talk.

(R. 158-59.)

Plaintiff stated

that his illness affected his walking due to sinus irritation
with allergies and that he could walk for a couple of blocks
before resting for five minutes.
Plaintiff

further

(R. 159, 161.)

reported

that

after

9/11,

he

was

worried about another terror attack and scared to drive in the
city.
(R.

(R. 160.)
162.)

(R. 160.)

He could travel alone but not over bridges.

Plaintiff

also

reported

having

panic

attacks.

When he had these attacks, it took him approximately

“5 minutes to get [his] mind off to something else.”

(R. 162.)

Plaintiff reported seeing Dr. Henry E. Edwards once a month, and
taking Lexapro, Xanax, and Ambien. (See R. 162.)

4

Dr. Vandergoot, an impartial vocational expert, also
appeared

and

testified.

(R.

48-54.)

The

ALJ

asked

Dr.

Vandergoot to assume the residual functional capacity (“RFC”)
of an individual who: (1) was born in 1960; (2) had at least a
high school diploma; (3) speaks English; and (4) “perform work
at all exertional levels, but could not do any jobs where they
would be exposed to environmental irritants, including but not
limited to fumes.”

(R. 49-50.)

Dr. Vandergoot testified that

this hypothetical individual could not perform Plaintiff’s past
work as a firefighter but could perform an unskilled office job,
such

as

(1)

a

photocopy

machine

operator,

a

position

with

approximately 66,000 jobs in the national economy; (2) a general
office clerk, a position with approximately 2,700,000 jobs in
the

national

economy;

and

(3)

an

addressing

approximately 100,000 jobs in the national economy.
B.

clerk,

with

(R. 50-51.)

Medical Evidence
1.

Henry E. Edwards, M.D.

Dr. Edwards, a psychiatrist, treated Plaintiff from
September 14, 2010 to November 16, 2012.
Entry

9,

at

5-6.)

Dr.

Edwards

(Comm’r’s Br., Docket

completed

a

Mental

Functional Capacity Assessment on November 16, 2012.
22.)

Residual
(R. 320-

Dr. Edwards found that Plaintiff was not significantly

limited in his abilities to remember locations and work-like
procedures

and

understands

either
5

simple

or

detailed

instructions.

(R.

320.)

Further,

Plaintiff

experienced

no

significant limitations in his abilities to carry out very short
and

simple

instructions,

sustain

an

ordinary

routine

without

special supervision, work in coordination with or in proximity
to others without being distracted by them, and make simple
work-related

decisions.

limitations,

Plaintiff

general

public,

ask

(R.

320.)

could

simple

Without

interact
questions

any

significant

appropriately
or

request

with

the

assistance,

accept instructions and respond appropriately to criticism from
supervisors,
distracting

get
them

along
or

with

co-workers

exhibiting

behavioral

or

peers

without

extremes,

maintain

socially appropriate behavior, and adhere to basic standards of
neatness and cleanliness.

(R. 321.)

Dr. Edwards also found

that Plaintiff could respond appropriately to changes in the
work setting, maintain awareness of normal hazards, and take
appropriate precautions without limitations.
Dr.
limited

in

maintain

Edwards

his

ability

attention

and

noted
to

that
carry

(R. 321.)

Plaintiff
out

concentration

was

detailed
for

moderately

instructions,

extended

periods,

perform activities within a schedule, and be punctual within
customary

tolerance.

(R.

320.)

Plaintiff

was

further

moderately limited in his ability to complete a normal workday
and workweek without interruptions from psychologically based

6

symptoms and his ability to perform at a consistent pace without
an unreasonable number and length of rest periods.
2.

(R. 321.)

Paul Herman, Ph.D.

Dr. Herman, a consultative psychologist, completed a
psychiatric
(R. 237.)
skills

evaluation

of

Plaintiff

on

December

14,

2011.

Dr. Herman noted that Plaintiff had adequate social

and

exhibited

no

abnormality

behavior, or eye contact.

in

(R. 238.)

gait,

posture,

motor

Plaintiff’s speech was

within normal limits, and his thought processes were coherent
and

goal

oriented.

Plaintiff’s

recent

(R.
memory

238-39.)
skills

memory skills were intact.

Dr.

were

Herman

mixed,

(R. 239.)

but

found
his

that

remote

Plaintiff’s cognitive

functioning was average, and his insight and judgment were fair.
(R. 239.)

Dr. Herman noted that Plaintiff could follow and

understand simple directions and instructions, perform simple
tasks, maintain attention and concentration at a level adequate
for many vocational endeavors, maintain a regular schedule, make
appropriate

decisions,

(R. 239-40.)
experience

Dr.
some

appropriately

and

Herman

further

difficulty

dealing

with

relate

adequately

noted

performing
stress.

(R.

that

with

others.

Plaintiff

complex
240.)

tasks

might
and

Critically,

however, Dr. Herman found that Plaintiff’s psychiatric problems
were not significant enough to interfere with his ability to

7

function on a daily basis to the extent that all vocational
functioning would be precluded.
3.

(R. 240.)

Daryl P. Di Dio, Ph.D.

Dr. Di Dio, an impartial medical expert, completed a
Medical

Source

Statement

of

Ability

to

Do

Work-Related

Activities (Mental) on September 28, 2012.

(See R. 307-09.)

Dr.

no

Di

Dio

found

that

Plaintiff

had

restrictions

understanding and remembering simple and complex instructions
and

carrying

Plaintiff’s

out

simple

ability

to

instructions.

make

decisions was not impaired.

judgments
(R. 307.)

(R.
on

307.)

simple

Notably,

work-related

Dr. Di Dio further noted

that Plaintiff had no limitations interacting appropriately with
supervisors, co-workers, and the public as well as responding to
changes in the routine work setting.
however,

noted

restrictions

that

Plaintiff

carrying

judgments

on

Plaintiff

had

out

complex
mild

(R. 308.)

experienced

complex

work-related

limitations

in

Dr. Di Dio,

mild

instructions

to
and

decisions.

making

(R.

maintaining

persistence, or pace and handling stress.

moderate

307.)

concentration,

(R. 311.)

However,

Plaintiff suffered no restrictions in activities of daily living
or in maintaining social functioning.
4.
Dr.
specialist,

(R. 311.)

Michael Shohet, M.D.
Shohet,
had

a

treated

treating
Plaintiff
8

ear,
from

nose,
2010

to

and
2012.

throat
On

April 22,
facial

2010,

Plaintiff

pressure,

saw

headaches,

sleeping. (R. 290-92.)

Dr.

Shohet

sore

with

teeth,

complaints

and

of

difficulties

Two months later, Plaintiff underwent

surgery for chronic sinusitis, nasal septal deformity, and nasal
airway obstruction.

(R. 217.)

Subsequently, Plaintiff reported

that his nasal obstruction had improved and denied headaches or
postnasal drainage.

(R. 283.)

Plaintiff also reported that his

sensitivity to heat and smoke through his breathing and sleeping
had markedly improved.
Dr.

(R. 280.)

Shohet

diagnosed

Plaintiff

with

chronic

rhinosinusitis and recommended that Plaintiff avoid smoke and
irritants.
of

nasal

(R. 282.)
congestion

(R. 277.)

On October 20, 2010, Plaintiff complained
and

dry

cough,

with

clear

rhinorrhea.

Two months later, Plaintiff complained of headaches

and sensitivity to any airway irritant but was doing well with
improved nasal breathing and pressure symptoms.

(R. 274.)

A

nasal endoscopy was performed, and it revealed widely patent
ostia.
for

(R. 274.)

severe

Dr. Shohet treated Plaintiff in January 2011

headaches

and

teeth

pain.

(R.

272.)

A

nasal

endoscopy performed in March 2011 revealed widely patent ostia
bilaterally with mild polypoid edema.

(R. 268-70.)

In April 2011, Plaintiff complained of nasal congestion
and facial pressure, and Dr. Shohet noted moderate hypertrophy
of

the

right

inferior

turbinate.
9

(R.

271.)

Dr.

Shohet

continued

to

treat

Plaintiff

in

February

2012

for

acute

exacerbation of chronic rhinosinusitis and in May 2012 for head
pressure, nasal congestion, and ear congestion.

(R 264-66, 298-

302.)
5.

Aryeh L. Klahr, M.D.

In March 2010, Dr. Klahr, an examining psychiatrist,
performed an independent psychiatric evaluation of Plaintiff.
(See

R.

211-16.)

Dr.

Klahr

found

that

Plaintiff

was

“permanently unfit to perform full firefighting duties.”

(R.

215.)

and

Dr.

Klahr

also

noted

that

Plaintiff’s

attention

concentration as well as recent and remote memory were intact.
(R.

215.)

Further,

Dr.

Klahr

noted

that

intelligence was average and his judgment was fair.
6.

Plaintiff’s
(R. 215.)

K.J. Kelly, M.D.

In a letter dated October 28, 2010, Dr. Kelly, Chief
Medical

Officer

Committee

for

the

recommended

FDNY,

that

noted

Plaintiff

that
be

the

Medical

found

unfit

Board
for

firefighting duties due to chronic recurrent sinusitis and PTSD.
(R. 318.)
II.

Decision of the ALJ
After reviewing the evidence in the record, the ALJ

issued his decision on December 11, 2012, finding that Plaintiff
was not disabled.

(R. 7-18.)

The ALJ concluded that Plaintiff

did not have an impairment or combination of impairments equal
10

to

one

of

the

Regulations.

impairments

listed

in

Appendix

1

of

the

(R. 12-13.)

The ALJ further concluded that Plaintiff had the RFC
to perform a full range of work at all exertional levels but
with non-exertional limitations that limited him to occasional
contact with the public and avoidance of respiratory irritants.
(R. 13-14.)

In other words, Plaintiff was unable to perform his

past relevant work because of his non-exertional limitations.
(R. 17.)
weight”

In reaching his decision, the ALJ accorded “great
to

Drs.

Herman,

Di

Dio,

and

Edwards

concerning

Plaintiff’s RFC to the extent that they were consistent with and
supported by the clinical findings.
The

ALJ

accorded

(R. 16.)

“less

weight”

to

Dr.

Edwards’s

opinion that Plaintiff “has moderate difficulties carrying out
detailed instructions . . . completing a normal work week, and
performing

at

inconsistent
activities.

a

with

consistent

pace”

clinical

findings

(R. 16.)

because
and

that

opinion

Plaintiff’s

was

admitted

Elsewhere, the ALJ accorded “some weight”

to Drs. Klahr and Kelly, as they were consistent with the ALJ’s
findings and the opinions of Drs. Herman, Di Dio, and Edwards as
well as treating records. (R. 16.)

Finally, the ALJ accorded

“less weight” to the opinion of the state agency psychological
consultant

because

evidence

at

11

the

hearing

demonstrated

that

Plaintiff’s

limitations

consultant had determined.

exceeded

III.

what

the

psychological

(R. 16.)

This Appeal
Plaintiff commenced this appeal on September 10, 2014.

(Docket Entry 1.)
record

and

her

Entries 6, 7.)

The Commissioner filed the administrative
Answer

on

December

9,

2014.

(Docket

On February 9, 2015, the Commissioner filed a

motion for judgment on the Pleadings, and on March 31, 2015,
Plaintiff filed a cross-motion for judgment on the pleadings.
(Docket Entries 8, 14.)

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

disability benefits.

whether

Plaintiff

is

entitled

to

Thus, even if the Court may have reached a

different decision, it must not substitute its own judgment for
that of the ALJ.
Cir. 1991).

See Jones v. Sullivan, 949 F.2d 57, 59 (2d

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

grounds,

citation
20

C.F.R.

omitted),

superseded

§ 404.1560.
12

If

by

the

statute
Court

on

finds

other
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

might

reasonable

mind

conclusion.”
401, 91 S.

Id.

accept

as

adequate

to

support

a

(citing Richardson v. Perales, 402 U.S. 389,

Ct.

1420, 1427, 28 L. Ed. 2d 842 (1971)).

The

substantial evidence test applies not only to the ALJ’s findings
of fact, but also to any inferences and conclusions of law drawn
from such facts.

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.”
F.3d

59,

62

(2d

citation omitted).

Cir.

1999)

evidence

from

which

See Brown v. Apfel, 174

(internal

quotation

marks

and

“The findings of the Commissioner of Social

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

42 U.S.C. § 405(g).

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
13

by

reason

of

any

impairment . . .

medically

determinable

physical

or

mental

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).

of

The

claimant’s

impairment

must

be

“such

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

considering
in

exists

any

in

his

other

the

age,

kind

national

of

education,

and

substantial

economy

.

.

work

gainful
.

.”

experience,
work
42

which
U.S.C.

§ 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

20

C.F.R.

§§ 404.1520,

416.920.

First,

the

Commissioner considers whether the claimant is currently engaged
in

“substantial

(4)(i).

gainful

activity.”

20

C.F.R.

§ 404.1520(a)

Second, the Commissioner considers whether the claimant

suffers from a “severe medically determinable physical or mental
impairment” or a severe combination of impairments that satisfy
the duration requirement set forth at 20 C.F.R. § 404.1509.
Third,

if

consider

the

impairment

whether

impairments
regulations.

the

listed
20

is

“severe,”

impairment

in

Appendix

C.F.R.

meets
1

of

the
or

Commissioner
equals

the

Social

§ 404.1520(a)(4)(iii).

3

any

of

3

must
the

Security

“These

are

20 C.F.R. § 404.1509 provides that “[u]nless your impairment is
expected to result in death, it must have lasted or must be
expected to last for a continuous period of at least 12 months.”
14

impairments acknowledged by the Secretary to be of sufficient
severity

to

preclude

gainful

employment.

If

a

claimant’s

condition meets or equals the ‘listed’ impairments, he or she is
conclusively presumed to be disabled and entitled to benefits.”
Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995) (citation
omitted).

Fourth, if the 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.
(4)(iv).

Fifth,

perform

tasks

if

in

the
his

20 C.F.R. § 404.1520(a)

claimant

does

or

previous

her

not

have

the

RFC

employment,

to
the

Commissioner must determine if there is any other work within
the national economy that the claimant is able to perform.
C.F.R. § 404.1520(a) (4)(v).

20

If not, the claimant is disabled

and entitled to benefits.
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.
making

the

consider:
opinions

required

(1)
of

the
the

See Shaw, 221 F.3d at 132.

determinations,

objective
examining

medical
or

the

Commissioner

facts;

treating

(2)

the

physicians;

“In
must

medical
(3)

the

subjective evidence of the claimant’s symptoms submitted by the
claimant,

his

family,

and

others;

the

claimant’s

educational background, age, and work experience.”

Boryk ex

15

and

(4)

rel. Boryk v. Barnhart, No. 02–CV–2465, 2003 WL 22170596, at *8
(E.D.N.Y. Sept. 17, 2003).
Here, the ALJ performed the above analysis and found
that Plaintiff had not engaged in substantial gainful activity
since

June

24,

2011.

(R.

12.)

The

ALJ

then

found

that

Plaintiff had the following severe impairments: PTSD, anxiety
disorder, sinusitis, and a history of an alcohol use disorder.
(R.

12.)

The

next

or

impairments

ALJ

determined

any

combination

that

of

none

his

of

Plaintiff’s

impairments

are

the

medical equivalent of any impairment enumerated in Appendix 1 of
the Regulations.
Plaintiff

was

(R. 12.)

incapable

The ALJ then found that although

of

performing

his

past

work

as

a

firefighter, he had the RFC to perform a full range of work at
all exertional levels but with non-exertional limitations that
limited him to occasional contact with the public and avoidance
of respiratory irritants.

(R. 13-14.)

Using Section 204.00 in

the Medical-Vocational Guidelines as a framework for decisionmaking and vocational expert testimony, the ALJ found that there
were jobs that existed in significant numbers in the national
economy that Plaintiff could perform.

(R. 17.)

concluded that Plaintiff was not disabled.
The

Court

must

now

determine

The ALJ thus

(R. 18.)
whether

decision is supported by substantial evidence.

the

ALJ’s

The Commissioner

and Plaintiff have both moved for judgment on the pleadings, and
16

each party has raised several arguments in support of their
respective motions.

The Court will address each argument in

turn.
A.

The Treating Physician Rule
The

treating

physician

Plaintiff's argument.

rule

is

the

cornerstone

of

Particularly, Plaintiff argues that this

case should be remanded because the ALJ: (1) did not acknowledge
the two-year relationship between Plaintiff and Dr. Edwards, (2)
failed to consider Dr. Edwards’s specialization, and (3) gave
too much weight to Dr. Herman’s opinion.
Entry 15, at 23-25.)

(Pl.’s Br., Docket

In opposition, the Commissioner counters

that the ALJ properly assigned “less weight” to Dr. Edwards's
opinion that “Plaintiff had moderate difficulties carrying out
detailed instructions, maintaining attention and concentration
for extended periods, performing activities within a schedule,
maintaining

regular

attendance,

being

punctual,

completing

a

normal work week, and performing at a consistent pace” because
it

was

inconsistent

with

other

evidence

in

the

Record.

rule,

the

medical

(Comm’r’s Reply Br., Docket Entry 16, at 3.)
Under

the

treating

physician

opinions and reports of a claimant’s treating physicians are
generally
Comm’r

of

afforded
Soc.

“special

Sec.,

143

evidentiary
F.3d

Specifically, the regulation states:
17

115,

weight.”
118

(2d

Clark
Cir.

v.

1998).

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.

original).

§

404.1527(c)(2)

(second

and

third

alteration

in

To comply with the requirements of the treating

physician rule, the ALJ must “set forth her reasons for the
weight she assigns to the treating physician’s opinion.”
221 F.3d at 134;

see 20 C.F.R. § 404.1527;

Shaw,

see also Snell v.

Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (explaining that “[a]
claimant . . . who
disabled,

might

knows
be

that

her

especially

physician

bewildered

has

when

deemed
told

by

her
an

administrative bureaucracy that she is not, unless some reason
for the agency’s decision is supplied”).
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) (per curiam); see also Schnetzler v. Astrue,
533

F.

Supp.

2d

272,

286

(E.D.N.Y.

2008).

These

include:
(1) the length of the treatment relationship
and frequency of the examination; (2) the
18

factors

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.

But see Khan v.

Comm’r of Social Sec., No. 14-CV-4260, 2015 WL 5774828, at *14
(E.D.N.Y.

Sept.

regulations

do

30,
not

2015)

require

(noting
an

ALJ

that
to

even

though

re-contact

a

new

treating

physician to resolve an inconsistency or efficiency, “it may be
incumbent upon the ALJ to re-contact medical sources in some
circumstances”); see also Vanterpool v. Colvin, No. 12-CV-8789,
2014 WL 1979925, at *17 (S.D.N.Y. May 15, 2014) (“Because the
ALJ did not reject [the treating physician’s] opinion due to
gaps in the record, he was not required to contact the physician
for further information or clarification.”).
Nevertheless, the Second Circuit has made clear that
the ALJ need not produce a “slavish recitation of each and every
factor [set forth in 20 C.F.R. § 404.1527(c)] where the ALJ’s
reasoning

and

adherence

to

the

regulation

are

clear.”

See

Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013); see also
Khan

v.

Astrue,

No.

11-CV-5118,

(E.D.N.Y. July 30, 2013).

2013

WL

3938242,

at

*15

Rather, the ALJ need only apply “the

substance of the treating physician rule.”

19

Halloran, 362 F.3d

at 32.

In Halloran, for example, “it [was] unclear on the face

of the ALJ’s opinion whether the ALJ considered (or even was
aware of) the applicability of the treating physician rule.”
Id. at 32.

Even still, the Second Circuit upheld the ALJ’s

opinion because “the substance of the treating physician rule
was not traversed.”

Id.

So too here.

As an initial matter, the ALJ did not categorically
reject Dr. Edwards’ findings.

In fact, the ALJ gave “great

weight” to his opinion in other areas.
this

specific

area--Plaintiff

having

(See R. 16.)
“moderate

But in

difficulties

carrying out detailed instructions . . ., completing a normal
work week, and performing at a consistent pace”--the ALJ gave
“less weight” to Dr. Edwards’s opinion.

(R. 16.)

Particularly,

the ALJ stated that Dr. Herman’s opinion and Plaintiff’s own
testimony
Hogan

compelled

a

Colvin,

No.

v.

different

conclusion.

14-CV-1891,

2015

Accord

WL

Fleming-

9462107,

at

*7

(E.D.N.Y. Dec. 28, 2015) (finding that the ALJ’s decision did
not violate the treating physician’s rule where the treating
physician’s

“opinion

was

inconsistent

with

the

medical

tests

performed on Plaintiff and Plaintiff’s own admissions regarding
her capabilities”).

Cf. Wagner v. Sec’y of Health and Human

Servs., 906 F.2d 856, 861-62 (2d Cir. 1990) (holding that the
Secretary’s

critique

of

failure

present

a

to

the

patient

record

of
20

and

treating

physician’s

disability-related

symptoms

during the period in question failed because “a circumstantial
critique

by

non-physicians,

however

thorough

or

responsible,

must be overwhelmingly compelling in order to overcome a medical
opinion”).
For

example,

experiences

certain

social

any

and

undertake.”
detailed

Dr.

issues

type

of

Edwards
“that

states

clearly

occupational

he

agrees

that

interfere

functioning

(R. 322 (emphasis added).)

report,

that

Plaintiff
with
he

his

might

But in Dr. Herman’s

Plaintiff

suffers

from

“psychiatric problems, but in and of themselves, they do not
appear to be significant enough to interfere with [Plaintiff’s]
ability to function on a daily basis to the extent that all
vocational functioning would be precluded.”

(R. 240.)

To bolster this point, the ALJ references Plaintiff’s
own admissions.

(R. 16.)

Specifically, the ALJ noted that

Plaintiff was able to use the computer for e-mails and take care
of his personal needs.

(R. 14, 16.)

laundry, and drive an automobile.

Plaintiff could shop, do

(R. 14, 16.)

Plaintiff also

went to restaurants, watched television, and read the newspaper.
(R. 14, 16, 154, 156.)

Further, Plaintiff indicated that he

could pay bills, count change, and handle a savings account.
(R. 16, 156.)

Thus, Plaintiff’s own admissions buttress the

findings of Dr. Herman.

21

Moreover, as the Second Circuit aptly observed, “where
the evidence of record permits us to glean the rationale of an
ALJ’s decision,” the ALJ is not required to mention “every item
of

testimony

considered

presented

particular

to

him

evidence

or

have

explained

unpersuasive

or

why

he

insufficient.”

Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (internal
quotation marks and citation omitted).

For instance, in his

testimony before the ALJ, Plaintiff discussed his panic attacks-ostensibly a factor that Dr. Edwards considered to “clearly
interfers

with

his

social

and

functioning he might undertake.”
added).)

But

Plaintiff

any

type

of

occupational

(R. 38, 46, 322 (emphasis

testified

that

the

panic

attacks

occurred once a month and lasted approximately ten minutes if
Plaintiff took medication.

(R. 38, 46.)

Although this fact was

not explicitly discussed in the ALJ’s decision, it undercuts Dr.
Edwards’s theory that Plaintiff could not perform any type of
occupation.
The

ALJ,

in

treating physician rule.

theory,

followed

the

spirit

of

the

One of the factors to consider is the

consistency of Dr. Edwards’s opinion with the record as a whole.
20 C.F.R. § 404.1527(c)(4).

The ALJ only accorded less weight

to

Dr.

Edwards’s

inconsistent with the evidence.

(R. 16.)

a

certain

portion

of

22

opinion

that

was

The ALJ provided

sufficient reasons to reflect his decision based on Dr. Herman’s
findings and Plaintiff’s admitted activities.
The ALJ, to be sure, did not mention Dr. Edwards’s
area of specialization or any board certifications he may hold,
but

the

ALJ

acknowledged

psychiatrist.”
Exhibit

(R.

5F,

relationship

Dr.

15-16.)

which
with

that

Edwards

Moreover,

illustrates

Plaintiff.

Dr.
(R.

was

the

a

ALJ

Edwards’s
320-22

“treating
references
two-year

(stating

that

Plaintiff “has been a patient of [Dr. Edwards] since 9/14/10”).)
Thus,

even

though

the

ALJ

did

not

explicitly

address

every

factor from 20 C.F.R. § 404.1527(c), the ALJ’s reasons were not
ambiguous.
Similarly, Plaintiff’s other contention--that the ALJ
gave

too

much

weight

to

Dr.

Herman’s

one-time

consultative examination--is meritless.

psychological

As discussed above, the

ALJ determined that Dr. Edward’s opinion was inconsistent with
Dr. Herman’s clinical findings.

(R. 16.)

Dr. Herman noted that

Plaintiff

skills.

(R.

had

adequate

social

238.)

Further,

Plaintiff’s appearance showed no abnormalities, and his speech
was

normal.

(R.

coherent

and

appeared

average.

238.)

Plaintiff’s

goal-directed,
(R.

and

239.)

his

thought

processes

cognitive

Plaintiff’s

functioning

attention

concentration was intact, and his mood was neutral.

were

and

(R. 239.)

Dr. Herman found that Plaintiff was capable of “following and
23

understanding

simple

directions

maintaining a regular schedule.”

and

instructions

(R. 239-40.)

[and]

Thus, the ALJ

did provide “good reasons” for attributing “less weight” to Dr.
Edwards’ findings and more weight to Dr. Herman’s findings on
this particular issue.
Accordingly, the Commissioner’s motion is GRANTED, and
Plaintiff’s motion is DENIED.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion
(Docket Entry 8) is GRANTED, and the Plaintiff’s motion (Docket
Entry 14) 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.
Dated:

March 29, 2016
Central Islip, New York

24