Lao v. Colvin

Filing 26

ORDER granting 19 motion for judgment on the pleadings; denying 21 cross motion for judgment on the pleadings - For the foregoing reasons, the Commissioners motion for a judgment on the pleading dismissing the complaint is granted; the Plaintiffs cross motion for a judgment on the pleadings is denied; and the Clerk of the Court is directed to close this case. So Ordered by Judge Arthur D. Spatt on 5/23/2016. cm by cm/ecf to counsel and Judgment Clerk. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KELVIN ABRAHAM LAO,
Plaintiff,
-againstCAROLYN W. COLVIN, the Acting Commissioner of Social
Security,
Defendant.
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FILED 
CLERK 

5/23/2016 12:09 pm

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

MEMORANDUM OF
DECISION & ORDER
14-CV-7507(ADS)

The Law Offices of Harry Binder and Charles Binder, P.C.
Attorneys for the Plaintiff
60 East 42nd Street, Suite 520
New York, NY 10165
By: Charles E. Binder, Esq., Of Counsel
The United States Attorneys’ Office, E.D.N.Y.
Attorneys for the Commissioner
271 Cadman Plaza East
Brooklyn, NY 11201
By: Candace Scott Appleton, Assistant U.S. Attorney
By: Karen T. Callahan, Assistant U.S. Attorney
SPATT, DISTRICT JUDGE
The Plaintiff Kelvin Abraham Lao (the “Plaintiff”) brings this action pursuant to 42 U.S.C. §
405(g) for review of the final decision of Carolyn W. Colvin, the Acting Commissioner of the Social
Security Administration (the “Commissioner”), finding that the Plaintiff is not entitled to disability
insurance benefits under Title II of the Social Security Act (the “Act”). Presently before the Court are
cross-motions by the parties for a judgment on the pleadings pursuant to Federal Rule Civil Procedure
(“Fed. R. Civ. P.”) 12(c).
For the reasons set forth below, the Court grants the motion by the Commissioner and denies
the motion by the Plaintiff.

I. BACKGROUND
A. The Plaintiff’s Background
The Plaintiff is currently fifty-six years old and resides in Shirley, New York, with his wife.
(SSA Rec. at 285.) He is a high school graduate. (Id. at 309.)
From June 1984 to August 2002, the Plaintiff worked at Merrill Lynch as a senior date entry
specialist. (Id. at 309.) In a form accompanying his application for disability, the Plaintiff described
the work as entailing walking and standing for two hours per day; sitting for ten hours per day;
stooping for two hours per day; kneeling and crouching for 1 hour per day; writing and handling small
objects for twelve hours per day; and frequently lifting objects which weighed at most ten pounds. (Id.
at 339.)
In August 2002, he left Merrill Lynch because he found it stressful working with different
computer programmers. (Id. at 127.)
From September 2002 to December 2002, he worked as a shipping and receiving clerk for the
Triangle Building Company, a building products company. (Id. at 127, 309.) For the Triangle
Building Company, his job entailed counting and helping to process building material. (Id. at 127.)
From July 2003 to January 2004, he worked as an assistant for the Wave Cooling and Heating
Company installing air conduction units, work that he described as requiring “a lot of climbing and
lifting[] heavy material.” (Id. at 127–28.)
From April 2004 to November 2010, the Plaintiff worked as a general manager at Aid Auto
Store. (Id. at 128.) In that role, he worked in the parts department and helped customers get the items
they needed and occasionally filled in for other employees at the cash register. (Id. at 128–29.) On
November 30, 2010, the Plaintiff was laid off from his job because the store went out of business. (Id.
at 162.)

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B. The Plaintiff’s Testimony
As described in more detail below, on June 6, 2012 and November 21, 2013, respectively, the
Plaintiff testified before Administrative Law Judge Bruce MacDougall (the “ALJ”).
The Plaintiff testified that he began experiencing symptoms related to a heart condition and
high blood pressure in May 2011, when he went to the hospital for a urinary tract infection, and the
attending physicians discovered that he was having what he described as a heart attack. (Id. at 131–
32.) Since then, he has experienced shortness of breath, dizziness, and chest pains. (Id. at 131.) He
stated that he was taking medications — Lisinopril, Klonopin, Cardevil, Pravastin, and aspirin —
which helped to control his blood pressure but that his blood pressure still ran high during periods of
stress. (Id. at 133.)
The Plaintiff also stated that he had symptoms related to his back stemming from a 2003
automobile injury. (Id. at 138–139.) In 2012, the Plaintiff went to see an orthopedist because he was
experiencing symptoms in his back, and according to him, an MRI revealed that he had “arthritis, a
spur[,] . . . . and aggressive degenerative disk disease.” (Id. at 166.) He was prescribed muscle
relaxers and physical therapy; however, he could not go to physical therapy because he could not
afford it. (Id. at 143.) As a result of his back condition, the Plaintiff testified that he could not lift
anything heavy, push, or bend down. (Id.)
With regard to his daily activities, the Plaintiff testified that he had trouble getting dressed
because he could not bend over, see id. at 144; he had difficulty sleeping at night due to the pain in his
back, see id. at 147; he had difficulty concentrating or reading, see id. at 149; he could not cook, clean,
or do laundry because he could not stand for more than twenty minutes at a time, though he later
testified that he sometimes tried to cook for himself, see id. at 151–52, 171; he could not drive because
the medication he was taking made him drowsy, see id. at 177–178; and he occasionally went food
shopping with his wife and travelled to New Jersey to visit friends, see id. at 152–53.

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C. The Relevant Medical Evidence
As will be described in more detail below, the focus of this appeal is the Plaintiff’s allegedly
disabling heart and back conditions. Accordingly, the Court will briefly detail the relevant medical
data with respect to those conditions. The Court notes that in its view, Dr. Lin’s treatments notes are
not legible and therefore, the Court does not include them for purposes of this summary. Nor does the
Court include records which post-dated the December 11, 2013 Order and were therefore, not before
the ALJ.
1. The Plaintiff’s Heart Impairment
On May 2, 2011, the Plaintiff was admitted at Brookhaven Memorial Hospital (“Brookhaven”)
because he was experiencing pain while urinating, “dysuria,” and a fever. (Id. at 393.) Dr. Samir
Brute, M.D., performed a physical exam on the Plaintiff and noted that his blood pressure was 103/66,
and his heart rate was 90 beats per minute. (Id. at 393–94.) He was diagnosed with a urinary tract
infection, sepsis, and hypertension. (Id. at 396.) On May 7, 2011, he was discharged from the
hospital. (Id.)
On May 17, 2011, the Plaintiff returned to the emergency room at Brookhaven due to tightness
in his chest and an abnormal Electrocardiogram (“EKG”). (Id. at 431.) On May 18, 2011, the Plaintiff
was transferred from Brookhaven to Stony Brook University Hospital (“Stony Brook”) to undergo a
Cardiovascular Catheterization Procedure. (Id. at 455.) Dr. Allen Jeremias, M.D., the cardiologist
who performed the procedure, diagnosed the Plaintiff with non-obstructive coronary artery disease.
(Id. at 457–58.) In addition, Dr. Jordan Katz, M.D., an attending cardiologist, also performed an EKG
on the Plaintiff and diagnosed him with “decreased left ventricular cavity size” and “mildly increased
left ventricular systolic function.” (Id. at 463.)
On May 28, 2011, Dr. Andrew Zaw Lin, M.D., an internist, who had seen the Plaintiff on three
previous occasions during the Relevant Period, completed a disability report in which he indicated that
the Plaintiff had the following functional limitations in light of his cardiac conditions: he could only
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lift ten pounds or less; he could only stand or walk for two hours or less per day; and he could sit for a
period of up to six hours per day. (Id. at 532.) In addition, Dr. Lin listed the Plaintiff as having normal
sensory, mental, and environmental functioning. (Id.)
On June 29, 2011, Dr. Jeremias performed a follow-up cardiovascular exam on the Plaintiff.
(Id. at 553.) At the exam, the Plaintiff reported “no chest or shortness of breath.” (Id. at 552.) After
conducting a physical exam and reviewing the Plaintiff’s prior medical records, Dr. Jeremias
concluded that the Plaintiff has “poorly controlled hypertension with evidence of mild LVH on
echocardiogram, who had a recent cardiac catheterization for chest pain that shows minimal coronary
atherosclerosis.” (Id. at 553.) Dr. Jeremias prescribed Pravastatin, Amlodipine, and Coreg for the
Plaintiff. (Id.)
On August 3, 2011, Dr. Joseph Chernilas, M.D., also a cardiologist, performed a follow-up
exam on the Plaintiff. (Id. at 555.) The Plaintiff reported “postural lightheadedness” and “occasional
transient shortness of breath on exertion.” (Id. at 555.) In his report documenting the visit, Dr.
Chernilas stated:
This is a fifty-one year-old gentlemen with hypertension, hyperlipidemia,
nonobstructive coronary artery disease with preserved LV function and no significant
valvular pathology with improved blood pressure control, but has symptoms of mild
volume depletion, therefore, the combination of lisinopril and hydrochlorothiazide will
be converted to just lisinopril 20 mg once per day. All of the other medications will be
continued.
(Id. at 555.)
On August 16, 2011, R. Reynolds, M.D., a medical consultant for the New York State Office of
Temporary and Disability Agency, reviewed the Plaintiff’s medical records and filled out a form
assessing the Plaintiff’s residual functional capacity. (Id. at 476–82.) Dr. Reynolds found that the
Plaintiff had the residual functional capacity to perform “medium work,” which consisted of
occasionally lifting fifty pounds; frequently lifting twenty-five pounds; pushing and pulling with some
limitations in his upper extremities; and sitting for up to six hours in an eight-hour workday. (Id. at
477.) Dr. Reynolds based this assessment on the report by Dr. Jeremias of the May 17, 2011
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Cardiovascular Catheterization Procedure and the May 18, 2011 EKG conducted by Dr. Katz. (Id. at
477.)
On February 15, 2012, the Plaintiff saw Dr. Ernest Raeder, M.D., a cardiologist, for a followup exam. (Id. at 559–60.) In a report of the visit, Dr. Raeder indicated that the Plaintiff had no
symptoms. (Id. at 560.)
On April 18, 2012, Plaintiff saw Dr. Jeremias for another follow-up exam. The Plaintiff
reported pain in his thighs, a rapid heartbeat, palpitations, shortness of breath, numbness, dizziness,
and anxiety and depression. (Id. at 569.) Dr. Jeremias performed a physical exam on the Plaintiff
which indicated normal cardiovascular and respiratory functioning. (Id. at 571.) He further noted that
the Plaintiff had asked him to fill out a disability form but that there was “no criteria for disability at
this time.” (Id. at 572.)
On August 21, 2012, Dr. Lin completed a Cardiac Impairment Questionnaire in which he
opined that due to the Plaintiff’s heart conditions, he was limited to, among other things, sitting up to
four hours per day; standing or walking up to two hours per day; occasionally lifting five to twenty
pounds; and jobs requiring low stress and no pushing, pulling, kneeling, bending, or stooping. (Id. at
601–02.)
On January 12, 2013, the Plaintiff was admitted at Stony Brook due to increased blood
pressure, flutters in his chest, and facial twitching. (Id. at 607.) An MRI showed “no acute
cardiopulmonary process” and a physical exam showed a normal heart rate and a “good pulse equal in
all extremities.” (Id.) On January 13, 2013, the Plaintiff indicated that his symptoms had abated, and
he was discharged from the hospital. (Id. at 615, 617.)
On March 29, 2013, Dr. Kathleen Stergiopoulous, M.D., a cardiologist, performed a stress test
on the Plaintiff during which the Plaintiff exercised on a tread-mill for eight minutes while Dr.
Stergiopoulous monitored his heart functioning. (See id. at 632–33.) In a final report of the test, Dr.
Stergiopoulous stated that the Plaintiff exhibited “adequate exercise performance” and did not
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experience chest pain while exercising. (Id. at 633.) In addition, images taken of his heart after
exercising showed that the Plaintiff had “normal global and regional left ventricular function” and no
“significant electrocardiographic ST segment changes.” (Id.)
On October 16, 2013, Dr. Mark L. Meyer, M.D., another cardiologist, performed a physical
evaluation of the Plaintiff. (Id. at 669.) In his report, Dr. Meyer concluded:
It is my impression that this patient has no active symptoms related to obstructive
coronary artery disease. He has non-obstructive coronary artery disease on his
catheterization from 2011, was ruled out for myocardial infarcation in January 2013,
and in March 2013 he had a normal nuclear stress test. He does indeed have symptoms
of shortness of breath and intermittent chest discomfort.
(Id. at 670.)
In conjunction with his report, Dr. Meyer also filled out a Cardiac Impairment Questionnaire,
which indicated that the Plaintiff was limited to sitting and standing for up to one hour per day; could
occasionally lift or carry objects of ten to twenty pounds and frequently lift or carry objects weighing
up to ten pounds; and was limited to jobs involving low stress and no pushing, pulling, kneeling,
bending, or stooping. (Id. at 667.)
2. The Plaintiff’s Back Impairment
On November 3, 2005, Dr. Benson Ong Hai, M.D., an orthopedist, examined the Plaintiff, who
complained of neck and back pain resulting from a 2003 car accident. (Id. at 535.) He noted that an
X-Ray of the Plaintiff’s lumbar spine was “unremarkable”; there was “normal disc space and
alignment”; and there was “no evidence of spondylolisthesis or fracture.” (Id. at 536.)
On November 23, 2005, Dr. Bruce Chernofsky, M.D., a radiologist, took an MRI of the
Plaintiff’s back, which revealed a “tiny shallow central disc herniation at L4–L5” and “no significant
central canal stenosis.” (Id. at 538.)
On May 15, 2012, the Plaintiff went to see Dr. Ong Hai for the first time in more than seven
years because he was experiencing pain in his lower back area and numbness in his left leg. (Id.) In
his report of the visit, Dr. Ong Hai indicated, among other things, that the Plaintiff walked without
7

difficulty, had full flexion and extension in his cervical spine, and had full strength in his muscles. (Id.
at 541–42.) He stated that an X-Ray of the Plaintiff’s cervical and lumbar spine showed “normal
alignment”; “no evidence of disk space narrowing”; and evidence of “some bone spurs . . . at the L1–
L2 level.” (Id. at 542.)
On May 31, 2012, Dr. Steven West, M.D., a radiologist, analyzed an MRI of the Plaintiff’s
back and found “slight interval progression in [the] degree of degenerative disc disease. No significant
spinal stenosis. Tiny central disc herniation at L4-L5. No evidence of cauda equine or nerve root
compression.” (Id. at 576.)
On June 7, 2012, Dr. Ong Hai also reviewed the Plaintiff’s MRI and described it as
“unremarkable.” (Id. at 580.) However, he noted that the MRI showed “evidence of disk degeneration
with a disk herniation at the L3–L4 level with evidence of moderate neural foraminal stenosis on the
left side.” (Id.) He prescribed the Plaintiff a “single axis cane” and stated that he would refer the
Plaintiff to physical therapy if and when he obtained social security disability benefits. (Id. at 581.)
On August 16, 2012, Dr. Ong Hai filled out a disability questionnaire based on his three
examinations of the Plaintiff on November 3, 2005; May 15, 2012; and June 7, 2012. (Id. at 590.) He
estimated that the Plaintiff had the residual functional capacity to sit for up to three hours; stand or
walk for up to two hours; occasionally lift 10 to 20 pounds; frequently lift 5 to 10 pounds; and reach,
handle, and finger without limitation. (Id. at 593–94.) He also stated that the Plaintiff could not work
at a job that required him to push, pull, kneel, bend, or stoop; the Plaintiff’s symptoms were likely to
increase if the Plaintiff were placed in a competitive work environment and would interfere with the
Plaintiff’s ability to work at a desk; the Plaintiff could not perform a full time competitive job that
required him to perform activity on a sustained basis; and the Plaintiff was capable of tolerating low
work stress. (Id. at 593–596.)

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D. The Procedural History
On June 16, 2011, the Plaintiff filed an application for disability insurance benefits, alleging
that since May 2, 2011, he was disabled within the meaning of the Act due to cardiovascular disorders,
a digestive disorder, hypertensive cardiovascular disease, hypertension, and hemorrhoids. (Id. at 182,
308.)
On August 17, 2011, the Social Security Administration (“SSA”) denied the Plaintiff’s
application. On September 20, 2011, the Plaintiff requested a hearing before an administrative law
judge.
On June 6, 2012, the Plaintiff appeared before the ALJ for a hearing with his then-attorney
Patrick Busse, Esq. (“Busse”). (Id. at 186.)
On June 26, 2012, the ALJ issued a written decision finding that the Plaintiff was not disabled
within the meaning of the Act through the date of last insured, which he stated was December 31, 2005
(the “June 26, 2012 Order”). (Id. at 192.)
On July 12, 2013, the SSA Appeals Council vacated the June 26, 2012 Order and remanded the
case because (i) the ALJ incorrectly stated that the date of the Plaintiff’s last insured was December 31,
2005, well before the alleged onset date of his disability; (ii) failed to address what effects, if any, the
Plaintiff’s obesity had on his ability to perform his past work; and (iii) failed to give proper
consideration to the Plaintiff’s maximum residual functional capacity and provide an appropriate
rationale for his conclusion with specific references to evidence in the record supporting the assessed
limitations. (Id. at 197–98.) In addition, the Appeals Council noted that on remand, the ALJ should if
necessary, obtain additional evidence from a medical expert to clarify the nature of the Plaintiff’s
impairments and a vocational expert to clarify the effects of the assessed limitations on the Plaintiff’s
ability to perform other work in the national economy. (Id. at 197–98.)
On November 21, 2013, the Plaintiff appeared for a second hearing before the ALJ, again
represented by Busse. (Id. at 158.)
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On December 11, 2013, the ALJ issued a second written decision finding that from May 2,
2011, the alleged onset of the Plaintiff’s disability, to December 31, 2015, the date he last met the
insurance requirements of the Act, the Plaintiff was not disabled within the meaning of the Act (the
“December 11, 2013 Order”). (Id. at 95–104.)
On January 23, 2014, the Plaintiff appealed the December 11, 2013 Order to the SSA Appeals
Council. (Id. at 91–92.) In support of his application, the Plaintiff submitted additional medical
records. (See id. at 1–2.)
On October 29, 2014, the SSA Appeals Council denied the Plaintiff’s request for an appeal,
rendering the December 11, 2013 Order the final decision of the Commissioner. (Id. at 2.) In so
doing, the Appeals Council noted that that additional medical records submitted by the Plaintiff were
dated after December 11, 2013. (Id. at 2.) Since the ALJ’s decision was for the period up to
December 11, 2013, the Appeals Council found that the new information did “not affect the decision
about whether [the Plaintiff] [was] disabled beginning on or before December 11, 2013.” (Id. at 2.)
On December 24, 2014, the Plaintiff timely commenced this action seeking to vacate the
Commissioner’s decision because he contended that the December 11, 2013 Order was contrary to law
and not supported by the substantial evidence.
The Court will now address the applicable standard of review and each of the Plaintiff’s claims
on this appeal.
II. DISCUSSION
A. As to the Standard of Review
‘“A district court may set aside the Commissioner’s determination that a claimant is not
disabled only if the factual findings are not supported by ‘substantial evidence’ or if the decision is
based on legal error.”’ Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (quoting Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000)).

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Under this standard, judicial review of the Commissioner’s final decision requires “two levels
of inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The district court “first reviews the
Commissioner’s decision to determine whether the Commissioner applied the correct legal standard.”
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999).
Next, the Court examines the administrative record to ‘“determine if there is substantial
evidence, considering the record as a whole, to support the Commissioner’s decision[.]”’ Burgess, 537
F.3d at 128 (quoting Shaw, 221 F.3d at 131). “Substantial evidence” means “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). “It is . . . a very deferential standard of review — even
more so than the ‘clearly erroneous’ standard.” Brault v. Soc. Sec. Admin., Com’r, 683 F.3d 443, 448
(2d Cir. 2012). In other words, “once an ALJ finds facts, [a district court] can reject those facts ‘only
if a reasonable factfinder would have to conclude otherwise.”’ Id. (emphasis in original) (quoting
Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)). Thus, “[e]ven where the administrative record
may also adequately support contrary findings on particular issues, the ALJ’s factual findings ‘must be
given conclusive effect’ so long as they are supported by substantial evidence.” Genier v. Astrue, 606
F.3d 46, 49 (2d Cir. 2010) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).
B. As to the Relevant Statutory and Regulatory Framework
To qualify for disability insurance benefits under the Act, an individual must (i) be “insured for
disability benefits;” (ii) not have attained retirement age; (iii) be a U.S. citizen or a foreign national
under certain circumstances not relevant here; (iv) have filed an application for disability insurance
benefits; and (v) have a “disability.” 42 U.S.C. § 423(a)(1).
The Act defines “disability” to mean “inability 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)(1)(A). In addition, the impairment must be “of such severity that [the
11

claimant] 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 SSA regulations set forth a five-step sequential evaluation process for determining whether
a claimant’s impairment meets the definition of “disability.” See 20 C.F.R. § 404.1520. The Second
Circuit has implemented that procedure as follows:
(i) “[T]he [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity”;
(ii) “If he is not, the [Commissioner] next considers whether the claimant has a ‘severe
impairment’ which significantly limits his physical or mental ability to do basic work
activities”;
(iii) “If the claimant suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment which is listed in Appendix
1 of the regulations”;
(iv) “If the claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education, and work
experience . . . . Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, he has the residual
functional capacity to perform his past work”; and
(v) “Finally, if the claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.”
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d
Cir. 1982) (per curiam)).
“The claimant generally bears the burden of proving that she is disabled under the statute, but
‘if the claimant shows that [her] impairment renders [her] unable to perform [her] past work, the
burden then shifts to the [Commissioner] to show there is other gainful work in the national economy
which the claimant could perform.”’ Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999) (alterations in
original) (quoting Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir.
1983)).
C. As to the December 11, 2013 Order
As noted, following a second hearing on remand, on December 11, 2013, the ALJ ruled that the
Plaintiff was not disabled within the meaning of the Act. (SSA Rec. at 104.)
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In so doing, he applied the correct five-step framework described above. Specifically, he first
determined that that the Plaintiff met the relevant insurance requirements under the Act through
December 31, 2015. (Id. at 97.) Thus, according to the ALJ, the Plaintiff had to demonstrate that he
suffered from a disability during the period May 2, 2011, the date when he alleged that his disability
began, to December 31, 2015, the date when he last met the insurance requirements under the Act (the
“Relevant Period”). (See id.)
Proceeding to the five-step regulatory framework, the ALJ determined that during the Relevant
Period, the Plaintiff had the following “severe impairments”: “hypertension and degenerative disc
disease of the lumbosacral spine.” (Id.) The ALJ noted that the record indicated that the Plaintiff was
overweight and suffered from hemorrhoids and nonobstructive coronary artery disease. (Id.)
However, in the ALJ’s view, the “evidence [did] not establish that these impairments significantly
limit[ed] [the Plaintiff’s] ability to engage in work related activities.” (Id.) Accordingly, the ALJ did
not consider the Plaintiff’s weight, hemorrhoids, or non-obstructive coronary artery disease as
disabling conditions and instead focused the disability analysis on his diagnoses of hypertension and
degenerative disc disease.
Next, the ALJ found that the Plaintiff’s severe impairments did not “meet[]” or “medically
equal” the listed impairments in Appendix 1, 20 C.F.R. § Pt. 404, Subpt. P, App. 1, which constitute
per se disabling conditions. (Id. at 98.)
At step 4 of the framework, the ALJ first determined that the Plaintiff had the residual
functional capacity (“RFC”) to perform the full range of light work, which requires “lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds”; “a
good deal of walking or standing”; and when it involves a good deal of sitting, also requires “some
pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
In support of this conclusion, the ALJ relied on the opinions of Dr. Reynolds, a New York State
Medical Consultant, and Dr. Jeremias, one of the Plaintiff’s treating cardiologists, as well as the
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objective medical evidence. (Id. at 103.) The ALJ also gave little weight to RFC assessments
completed by Dr. Lin, the Plaintiff’s treating internist, Dr. Meyer, an examining cardiologist, and Dr.
Ong Hai, the Plaintiff’s treating orthopedist, all of which suggested that the Plaintiff would be unable
to perform the functions associated with “light work.” (Id. at 102–03.)
Finally, the ALJ considered the Plaintiff’s testimony regarding his symptoms and found that
although the Plaintiff’s back and heart impairments “could reasonably be expected to cause the alleged
symptoms,” his “statements concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely credible.” (Id. at 99.)
For these reasons, the ALJ concluded that the Plaintiff had the RFC to perform “light work”
and therefore, could perform his prior work as a computer database manager, which he described as
“sedentary in exertional nature” in that it only required the Plaintiff to “walk for two hours, stand for
two hours, . . . sit for up to ten hours [per] workday[, and] . . . . lift a maximum of 10 pounds
frequently” (Id.)
Accordingly, at step 4 of the regulatory framework, the ALJ found that the Plaintiffs was not
disabled within the meaning of the Act and did not proceed to step five.
D. As to the Treating Physician Rule
On appeal, the Plaintiff first challenges the ALJ’s determination that the Plaintiff had the RFC
to perform “light work” because he contends that (i) the ALJ erred in not affording controlling weight
to the opinions of Drs. Lin, Meyer, and Ong Hai; and (ii) the ALJ erred in placing great weight on the
opinions of Dr. Jeremias, one of the Plaintiff’s treating cardiologists, and the opinion of Dr. Reynolds,
a State Medical Consultant. (See the Pl.’s Mem. of Law at 11–16).
In reply, the Commissioner asserts that (i) the ALJ correctly concluded that the opinion of Drs.
Lin, Meyer, and Ong Hai were not supported by the substantial evidence; and (ii) the ALJ properly
placed significant weight on the opinions of Drs. Jeremias and Reynolds. (See the Commn’r’s Reply
Mem. of Law at 1–6.) The Court agrees.
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“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis,” meaning “8 hours a day, for 5
days a week, or an equivalent work schedule.” Titles II & Xvi: Assessing Residual Functional
Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996); see also Cichocki v. Astrue, 729 F.3d 172,
176 (2d Cir. 2013) (same). The ALJ must assess an individual’s RFC “based on all the evidence in
[the claimant’s] case record,” including statements from the claimant and all of the “relevant medical
and other evidence.” 20 C.F.R. § 404.1545(a); see also Petersen v. Astrue, 2 F. Supp. 3d 223, 233
(N.D.N.Y. 2012) (“When making a residual functional capacity determination, the ALJ considers a
claimant’s physical abilities, mental abilities, and symptomatology, including pain and other
limitations that could interfere with work activities on a regular and continuing basis.”) (citing 20
C.F.R. § 404.1545(a)).
Under the so-called “treating physician” rule a treating source’s opinion on the nature and
severity of a claimant’s symptoms is given “controlling weight” if 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(c)(2); see also Selian v. Astrue, 708
F.3d 409, 418 (2d Cir. 2013) (Per Curiam) (“The opinion of a treating physician on the nature or
severity of a claimant’s impairments is binding if it is supported by medical evidence and not
contradicted by substantial evidence in the record.”) (citing Burgess, 537 F.3d at 128).
If an ALJ decides not to give controlling weight to a treating source’s opinion, the SSA
regulations require that an ALJ give “good reasons” according to certain factors, including:
the ‘[l]ength of the treatment relationship and the frequency of examination’; the
‘[n]ature and extent of the treatment relationship’; the ‘relevant evidence . . . ,
particularly medical signs and laboratory findings,’ supporting the opinion; the
consistency of the opinion with the record as a whole; and whether the physician is a
specialist in the area covering the particular medical issues.
Burgess, 537 F.3d at 129 (alterations in original) (quoting 20 C.F.R. § 404.1527(d)(2)(i)–(ii), (3)–(5)).

15

However, the Second Circuit has stopped short of requiring that ALJs explicitly consider each
one of these factors; rather, it has affirmed the decisions of ALJs so long as they apply the “substance
of the treating physician’s rule” and provide “good reasons” for not according a treating physician’s
opinion controlling weight. See Halloran, 362 F.3d at 33 (affirming an ALJ’s decision to disregard a
treating physician’s opinion because it “applied the substance of the treating physician rule,” though it
warned in dicta that it “would not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physicians opinion”); see also Atwater v. Astrue, 512 F.
App’x 67, 70 (2d Cir. 2013) (“Finally, Atwater challenges the ALJ’s failure to review explicitly each
factor provided in 20 C.F.R. § 404.1527(c). We require no such slavish recitation of each and every
factor where the ALJ’s reasoning and adherence to the regulation are clear.”); Taylor v. Colvin, No.
3:14-CV-0928 (GTS), 2016 WL 1049000, at *4 (N.D.N.Y. Mar. 11, 2016) (‘“Where, as here, an ALJ’s
reasoning and adherence to the regulations are clear, the ALJ is not required to review explicitly each
and every factor of the regulation.”’) (citing Atwater, 512 F. App’x at 70); Hollaway v. Colvin, No.
14CIV5165 (RAH) (BP), 2016 WL 96172, at *11 (S.D.N.Y. Jan. 8, 2016), report and recommendation
adopted, No. 14-CV-5165 (RA), 2016 WL 1275658 (S.D.N.Y. Mar. 31, 2016) (same).
Here, the ALJ did not explicitly refer to each of the factors set forth in the SSA regulations —
namely, the length of the treatment relationship; the relevant evidence supporting the medical opinion;
the consistency of the opinion with the record as a whole; and whether the physician is a specialist in
the area covering the particular medical issue — when disregarding the RFC assessments of Drs. Lin,
Meyer, and Ong Hai. However, he did implicitly refer to some of the factors and provide what the
Court finds to be “good reasons” supported by substantial evidence in reaching his determination with
respect to each of the physicians. The Court will now address the propriety of the ALJ’s conclusion
with respect to each physician.

16

1. Dr. Lin’s RFC Assessment
With regard to Dr. Lin, the Plaintiff’s treating internist, the ALJ noted that Dr. Lin had
examined the Plaintiff on “numerous” occasions but found that his August 20, 2012 RFC assessment
indicating that the Plaintiff could not perform the duties associated with “light work” was “not
supported by the objective medical evidence, including his own examination findings, which were
largely unremarkable.” (SSA Rec. at 103.)
Although the ALJ did not refer to the treating physician rule specifically or the factors specified
in the SSA regulations, he did apply the substance of the rule by explaining what weight he was giving
to Dr. Lin’s opinion and the reason for why he was not affording it controlling weight — namely, it
was not supported by the objective medical evidence. As the cases discussed above demonstrate, that
is all that is required in this Circuit. See Galatro v. Colvin, No. 14-CV-5284 (JS), 2016 WL 1254330,
at *7 (E.D.N.Y. Mar. 29, 2016) (“[T]he 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.’”) (quoting Astrue, 512 F. App’x at 70).
Further, the Court finds that substantial evidence supports the ALJ’s conclusion that the Dr.
Lin’s RFC assessment is not consistent with the objective medical evidence in the record. In the
August 2012 RFC Assessment, Dr. Lin checked off boxes indicating that the Plaintiff’s heart condition
limited him to sitting for four to six hours; standing for two hours; and occasionally lifting objects up
to twenty pounds. (Id. at 601–602.) The only evidence he cited in support of his opinion was the May
17, 2011 Cardiovascular Catheterization Procedure conducted at Stony Brook, which revealed that the
Plaintiff had “non-obstructive coronary artery disease” and “normal left ventricular function[.]” (Id. at
457–58.)
However, as the ALJ noted elsewhere in the December 11, 2013 Order, see id. at 97, 103, the
physical examinations and tests conducted on the Plaintiff during the Relevant Period consistently
showed that his “non-obstructive coronary disease” did not affect his ability to sit, stand, or walk in a
17

meaningful way. In particular, a March 29, 2013 report of a stress test administered on the Plaintiff by
Dr. Stergiopoulous stated that Plaintiff was able to exercise adequately for eight minutes without chest
pain and that images taken of his chest following the test showed “normal global and regional left
ventricular function”; no “perfusion abnormalities”; and a “normal hemodynamic response to
exercise.” (Id. at 633.) Similarly, Dr. Meyer, a consultative cardiologist, noted after performing a
physical exam on the Plaintiff, that he had “no active symptoms related to obstructive coronary artery
disease.” (Id. at 670.) Other physical exams conducted by the Plaintiff’s doctors at Stony Brook
during the Relevant Period showed no impairments; described his heart condition as “mild”; and noted
that the Plaintiff had a normal heart rate and pulse. (See id. at 553, 562, 570.)
The Plaintiff does not point to any objective medical test results which the ALJ overlooked, and
instead relies primarily on the Plaintiff’s own subjective complaints, which do not, by themselves,
provide the kind objective medical support required to trigger automatic deference under the treating
physician’s rule. See 20 C.F.R. § 416.927(c)(2) (“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.”) (emphasis added); see also Baladi v. Barnhart,
33 F. App'x 562, 564 (2d Cir. 2002) (Summary Order) (“The treating physician’s opinions were based
upon plaintiff’s subjective complaints of pain and unremarkable objective tests, and therefore the ALJ
was not required to give that opinion controlling weight[.]”).
Accordingly, the Court finds substantial evidence supports the ALJ’s decision to disregard the
more onerous limitations on the Plaintiff’s RFC set forth in Dr. Lin’s August 20, 2012 Assessment.
2. Dr. Meyer’s RFC Assessment
Similarly, the ALJ disregarded an RFC assessment completed by Dr. Meyer, a cardiologist, in
which he indicated that the Plaintiff’s heart condition limited him to sitting for one hour per day;

18

standing or walking for one hour per day; occasionally lifting objects weighing up to twenty pounds;
and frequently lifting objects weighing up to ten pounds. (SSA Rec. at 665–66.)
The ALJ gave limited weight to this assessment because Dr. Meyer “examined the [Plaintiff]
only once and his opinion regarding the [Plaintiff’s] residual functional capacity was not supported by
the record, including his own examination physical findings, which were unremarkable, as well as his
own conclusion that the [Plaintiff] had no active symptoms related to obstructive coronary artery
disease.” (Id. at 102.)
The Plaintiff asserts that the ALJ should have given Dr. Meyer’s assessment significant weight
because in his assessment, Dr. Meyer stated that his opinions were based on the May 17, 2011
Cardiovascular Catheterization Procedure, the March 29, 2013 Stress Test, and positive clinical
findings of shortness of breath and fatigue. (See the Pl.’s Mem. of Law at 15.) Again, the Court
disagrees.
As the already discussed, the Cardiovascular Catheterization Test revealed “non-obstructive
coronary artery disease” but did not indicate the severity of that impairment and subsequent records,
including the March 29, 2013 stress test, suggest that the Plaintiff’s heart functioned without a
problem.
Furthermore, as the ALJ correctly noted, Dr. Meyer’s report of his physical exam of the
Plaintiff and review of the Plaintiff’s medical records appears to be at odds with his RFC assessment.
Specifically, he stated
It is my impression that this patient has no active symptoms related to the obstructive
coronary artery disease. He has non-obstructive coronary artery disease on his
catheterization from 2011, was ruled out for myocardial infarction in January 2013, and
in March 2013 he had a normal nuclear stress test. He does indeed have symptoms of
shortness of breath and intermittent chest discomfort.
(Id. at 670.)

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The fact that Dr. Meyer found “no active symptoms” and described the results of the Plaintiff’s
catheterization and stress test as “normal” undermines a conclusion that the Plaintiff’s RFC was
significantly limited by his heart condition.
Therefore, in light of the objective medical records, the Court finds that substantial evidence
supports the ALJ’s decision to place limited weight on Dr. Meyer’s RFC assessment. See Shaffer v.
Colvin, No. 1:14-CV-00745 (MAT), 2015 WL 9307349, at *4 (W.D.N.Y. Dec. 21, 2015) (“As the
above summary reveals, plaintiff’s treatment records as well as imaging tests and Dr. Miller’s
consulting opinion constitutes substantial evidence contradicting Dr. Singh’s extremely restrictive
functional assessment.”); Johnston v. Colvin, No. 3:13-CV-00073 (JCH), 2014 WL 1304715, at *30
(D. Conn. Mar. 31, 2014) (“[T]he Court finds that the ALJ did not err in failing to assign controlling
weight to Dr. Schwarz’s opinion because it is not supported by the objective medical evidence and is
inconsistent with other medical evidence of record, including other clinical examinations.”).
3. Dr. Ong Hai’s Assessment
On August 16, 2012, Dr. Ong Hai, an orthopedist, also filled out an RFC assessment based on
three prior physical examinations of the Plaintiff on November 3, 2005; May 15, 2012; and June 7,
2012. (SSA Rec. at 590.) In the assessment, he checked the boxes indicating that in a single eighthour workday, the Plaintiff is limited to sitting for three hours and standing or waking for two hours;
occasionally lifting objects weighing up to 20 pounds and frequently lifting objects weighing up to 10
pounds. (Id. at 593–594) He also noted that the Plaintiff’s symptoms would interfere with his ability
to work at a desk and would worsen with stress. (Id. at 594–95.)
The ALJ placed limited weight on Dr. Ong Hai’s RFC assessment because Dr. Ong Hai “first
examined the [Plaintiff] in 2005, but did not examine the Plaintiff again until May 2012” and
“examined the [Plaintiff] only once more before he rendered his opinion regarding the [Plaintiff’s]
residual functional capacity.” (Id. at 103.) In addition, the ALJ found that Dr. Ong Hai’s opinion was

20

“not supported by the medical record, which consistently shows minimal positive findings relating to
the [Plaintiff’s] back.” (Id. at 103.)
On appeal, the Plaintiff asserts that the ALJ “mischaracterized the record by finding the
opinions from a treating board certified physiatrist Dr. Ong [H]ai unsupported by any clinical or
objective findings related to the Plaintiff’s back pain.” (The Pl.’s Mem. of Law at 13.) The Court finds
this objection to be without merit.
As with Dr. Lin, although the ALJ did not explicitly cite to the treating physician rule, he
applied the substance of that rule by considering the length of the treatment relationship and the
relevant medical evidence in the record as a whole. Thus, there was nothing legally improper in the
ALJ’s analysis.
Furthermore, the Court finds that substantial evidence supports the ALJ’s conclusion that the
medical records relating to the Plaintiff’s back showed “minimal positive” findings and were therefore,
inconsistent with Dr. Ong Hai’s opinion.
The Plaintiff originally injured his back in 2003 in a car accident. An MRI taken of the
Plaintiff’s spine on November 23, 2005, two years after the injury, showed a “tiny central disc
herniation minimally indenting the thecal sac. There is no significant central or neural canal stenosis.”
(Id. at 538.) Thus, the original injuries appeared to be relatively minor. Further, despite the Plaintiff’s
injuries to his spine, he was able to return to work as an Assistant Manager at an auto repair store for
five years, a job that he described as requiring him to stand for eight hours per day and frequently lift
cases of oil and anti-freeze weighing upwards of fifty pounds. (Id. at 336.)
In addition, the medical records during the Relevant Period, do not support the Plaintiff’s
contention that his condition worsened to the point where he could not perform “light work” in the five
months after he was laid off from his job at the auto repair store. Specifically, a May 15, 2012 X-Ray
showed “normal alignment” of the Plaintiff’s cervical and lumbar spine and “no evidence of disc
narrowing.” (Id. at 542.) While there was some evidence of “bone spurs” in the Plaintiff’s lumbar
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spine at the L1-L2 level, the Plaintiff showed minimal limitations during his physical — he walked
with a normal gait and without difficulty, had full muscle strength, full flexion in his cervical spine,
and equal reflexes. (Id. at 541–42.) In addition, a May 31, 2012 MRI showed a “slight interval
progression in [the] degree of degenerative disc disease. No significant spinal stenosis. Tiny central
disc herniation at L4-L5. No evidence of cauda equina or nerve root compression.” (Id. at 576)
(emphasis added).
Based on this evidence, the Court finds that substantial evidence supports the ALJ’s conclusion
that Dr. Ong Hai’s restrictive RFC assessment did not square with the objective evidence in the record
and therefore, was not entitled to substantial weight.
4. The Opinion of Dr. Jeremias
The Plaintiff also objects to the ALJ’s use of an opinion by Dr. Jeremias, the Plaintiff’s treating
cardiologist.
In treatment notes from an April 18, 2012 physical exam that he performed on the Plaintiff, Dr.
Jeremias stated that the Plaintiff asked him to fill out a disability form but that there was “no criteria
for disability at this time.” (SSA Rec. at 572.) In the December 11, 2013 Order, the ALJ found that
the Plaintiff’s “cardiac findings have been much more consistent with the opinion of Dr. Jeremias who
concluded that the claimant had no criteria for disability.” (Id. at 103.)
The Plaintiff asserts that the ALJ should not have drawn a negative inference from Dr.
Jeremias’s “vague and conclusory statement” because “[i]t is unclear if Dr. Jeremias [sic] ‘criteria’ of
disability is the same as the Administration’s [sic] definition of disability.” (The Pl.’s Mem. of Law at
13.)
The Plaintiff is correct that under the SSA regulations, the ALJ is “responsible for making the
determination or decision about whether [a claimant] meet[s] the statutory definition of disability,” and
therefore, a “statement by a medical source that [a claimant is] ‘disabled’ or ‘unable to work’ does not
mean that [the ALJ] will determine that [a claimant] is disabled.” 20 C.F.R. § 404.1527(d)(1). Thus,
22

an opinion that a claimant is “not disabled,” by itself, is not entitled to controlling weight. Rather, the
ALJ must look to “all of the medical findings and other evidence that support a medical source’s
statement,” in determining whether a claimant meets the definition of a disability. Id.; see also
Westcott v. Colvin, No. 12-CV-4183 (FB), 2013 WL 5465609, at *3 (E.D.N.Y. Oct. 1, 2013) (“[T]he
assessments by both doctors of Westcott’s ultimate disability status are not entitled to controlling
weight because the treating physician rule does not govern issues reserved to the Commissioner.”).
However, in this case, the ALJ did not give Dr. Jeremias’s apparent opinion that the Plaintiff
was not disabled controlling weight, as the Plaintiff contends. To the contrary, he merely noted that
the opinion was consistent with the “cardiac findings” in the record, which as described earlier, suggest
that the Plaintiff did not have any significant limitations to his RFC. Therefore, the Court sees no legal
error in the ALJ’s conclusion that Dr. Jeremias’s opinion was consistent with the objective medical
evidence.
5. The Opinion of Dr. Reynolds
On August 16, 2011, Dr. Reynolds, a State Medical Consultant, reviewed the Plaintiff’s
medical file and concluded that the Plaintiff had the RFC to perform a full range of medium or light
work, including siting and walking for up to six hours of an eight hour day; occasionally lifting objects
weighing fifty pounds; and frequently lifting objects weighing twenty-five pounds. (See SSA Rec. at
482.)
In the December 11, 2013 Order, the ALJ concluded, “Although Dr. Reynolds never had the
opportunity to personally examine the claimant, his opinion is well supported by the objective medical
evidence. Therefore, the opinion of Dr. Reynolds was given great weight.” (Id. at 103.)
The Plaintiff asserts that the ALJ erred in giving Dr. Reynolds’ opinion great weight because
“[t]he opinions from non-examining consultants are generally entitled to the least weight.” (The Pl.’s
Mem. of Law at 13.) Further, he asserts that the Dr. Reynolds issued his opinion in 2011 and

23

therefore, his assessment did not include the full range of relevant medical records. (See id.) Again,
the Court finds the Plaintiff’s objection to be without merit.
The SSA regulations state although they are not bound by the findings made by a state agency
medical consultants, the ALJ must consider their opinions and give weight to them according to the
same factors relevant to treating physicians, “such as the consultant’s medical specialty and expertise
in our rules, the supporting evidence in the case record, supporting explanations the medical . . .
consultant provides, and any other factors relevant to the weighing of the opinions.” 20 C.F.R. §§
404.1527(e)(2)(i)–(ii); see also Little v. Colvin, No. 5:14-CV-63 MAD, 2015 WL 1399586, at *9
(N.D.N.Y. Mar. 26, 2015) (“State agency physicians are qualified as experts in the evaluation of
medical issues in disability claims. As such, their opinions may constitute substantial evidence if they
are consistent with the record as a whole.”) (quoting Cobb v. Comm’r of Soc. Sec., No. 5:13–cv–591,
2014 WL 4437566, *6 (N.D.N.Y. Sept. 9, 2014)); see also Leach ex rel. Murray v. Barnhart, No. 02
CIV.3561 (RWS), 2004 WL 99935, at *9 (S.D.N.Y. Jan. 22, 2004) (same).
Here, the ALJ accorded the opinion of Dr. Reynolds great weight because it was well supported
by the objected medical evidence, which as described above clearly supports a determination that the
Plaintiff was not significantly inhibited by his heart condition.
Accordingly, here too, the Court finds no error in the ALJ’s decision. See Sykes-Abrams v.
Colvin, No. 6:14-CV-1085 (GTS), 2015 WL 7313402, at *7 (N.D.N.Y. Nov. 19, 2015) (rejecting an
argument that the ALJ erred in placing significant weight on the opinion of a non-examining State
agency medical consultant because “[a]n ALJ is entitled to rely upon the opinions of both examining
and non-examining State agency medical consultants”).
B. As to the Plaintiff’s Credibility
Finally, the Plaintiff asserts that the ALJ failed to properly assess his credibility. (See the Pl.’s
Mem. of Law at 16–18.)

24

It is well-established that “[w]hen determining a claimant’s RFC, the ALJ is required to take
the claimant’s reports of pain and other limitations into account, . . . . but is not required to accept the
claimant’s subjective complaints without question; he may exercise discretion in weighing the
credibility of the claimant’s testimony in light of the other evidence in the record.” Genier, 606 F.3d at
49 (citing 20 C.F.R. § 416.929) (emphasis added).
In that regard, SSA regulations provide a two-step process for evaluating the credibility of a
claimant’s assertions of pain. “At the first step, the ALJ must decide whether the claimant suffers from
a medically determinable impairment that could reasonably be expected to produce the symptoms
alleged.”’ Id. (citing 20 C.F.R. § 404.1529(b)). “If the claimant does suffer from such an impairment,
at the second step, the ALJ must consider ‘the extent to which [the claimant’s] symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence’ of
record.” Id. (alteration in original) (quoting 20 C.F.R. § 404.1529(a)); see also SSR 96–7p, 1996 WL
374186, at *2 (July 2, 1996) (“[O]nce an underlying physical or mental impairment(s) that could
reasonably be expected to produce the individual’s pain or other symptoms has been shown, the
adjudicator must evaluate the intensity, persistence, and limiting effects of the individual’s symptoms
to determine the extent to which the symptoms limit the individual's ability to do basic work
activities.”).
Here, the ALJ considered the Plaintiff’s symptoms:
The [Plaintiff] alleges disability due to a cardiovascular disorder, a digestive disorder,
hypertensive cardiovascular disease, hypertension and hemorrhoids. He testified that as
a result of his impairments, he has low back pain, his left leg is weak, and he has
palpitations if he exerts himself or walks long distances. [He] also testified that he gets
short of breath walking up stairs. In addition, [he] testified that he has difficulty
concentrating and that his medications make him foggy and drowsy.
(SSA Rec. at 98.)
The ALJ then applied the proper two step framework for evaluating the Plaintiff’s credibility.
At the first step, he found that the Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms[.]” (Id. at 99.) However, at the second step, he found that the
25

Plaintiff’s statements “concerning the intensity, persistence and limiting effects of these symptoms are
not entirely credible for the reasons explained in the decision.” (Id.)
Subsequently, based on his review of the relevant medical evidence and opinions, the ALJ
determined that the Plaintiff’s complaints related to his heart condition were not entirely credible
because “physical examinations have consistently shown minimal findings, and the results of an
exercise stress test were normal.” (Id. at 103.) He also found that “although the [the Plaintiff] has had
complaints of back pain, physical examinations have also revealed minimal findings relating to [the
Plaintiff’s] back, and MRIs have shown only a tiny herniated disc and some degenerative disease with
no evidence of spinal stenosis or nerve root compression.” (Id.) Finally, he found that “although the
[Plaintiff] testified that his medications make him foggy and drowsy, there is no evidence that he has
ever complained of such side effects to his treating physicians. It is reasonable to assume that [if] the
[the Plaintiff’s] medications were causing significant side effects that he would have mentioned it to
his doctors.” (Id.)
The Plaintiff alleges that the ALJ’s credibility finding was insufficient for three reasons, all of
which the Court finds unpersuasive.
First, he asserts that the ALJ erred because the ALJ rejected the Plaintiff’s statements about the
severity of his symptoms based solely on the objective medical evidence. (See the Pl.’s Mem. of Law
at 17.)
The Plaintiff is correct that the SSA regulations provide that an ALJ may not reject a claimant’s
statements about the intensity and persistence of his or her pain based solely on “objective medical
evidence” — meaning evidence obtained from the application of medically acceptable clinical and
laboratory diagnostic techniques, such as evidence of reduced joint motion, muscle spasm, sensory
deficit or motor disruption. 20 C.F.R. § 404.1529(c)(2). Instead, the SSA regulations describe
“[o]bjective medical evidence” as “a useful indicator” but direct an ALJ to consider other factors in
evaluating the intensity and persistence of a claimant’s symptoms, including:
26

(i) the claimant’s “daily activities”; (ii) “[t]he location, duration, frequency, and
intensity of [the claimant’s] pain or other symptoms”; (iii) “[p]recipitating and
aggravating factors”; (iv) “[t]he type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or other symptoms”; (v)
“[t]reatment, other than medication, you receive or have received for relief of your pain
or other symptoms”; (vi) “[a]ny measures you use or have used to relieve your pain or
other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour,
sleeping on a board, etc.)”; and (vii) “[o]ther factors concerning your functional
limitations and restrictions due to pain or other symptoms.”
Id. at § 404.1529(c)(3) (alterations added).
Although the ALJ did not explicitly consider all of these factors in evaluating the Plaintiff’s
statements concerning the intensity of his symptoms; the ALJ did consider evidence beyond the
medical evidence in the record, including the Plaintiff’s own statements; the medications he was
taking; and the medical opinions of the Plaintiff’s treating and non-treating physicians. Thus, the ALJ
did not, as the Plaintiff contends, discount the Plaintiff’s statements solely on the basis of the objective
medical evidence. See Karoumia v. Colvin, No. 4:13CV04098-JEH, 2015 WL 997225, at *7 (C.D. Ill.
Mar. 3, 2015) (“The ALJ here did not find that the Plaintiff was without pain or limitation, nor did she
require him to provide objective medical evidence to substantiate the degree of his pain or limitations.
Rather, she evaluated the Plaintiff's claims in light of the other evidence in the record which, as noted,
provided a basis for doubting the Plaintiff's testimony. While the ALJ cannot require objective medical
evidence to prove the degree of pain or limitation, the ALJ is also not required to simply accept at face
value the Plaintiff's claims either. She must instead evaluate the Plaintiff's credibility on the issue
according to the factors set forth in SSR 96–7p, which she did.”).
Second, the Plaintiff asserts that the ALJ committed reversible error by failing to specifically
refer to all seven factors set forth in the SSA regulations discussed above and for not providing
sufficiently specific reasons for rejecting the Plaintiff’s testimony. (See the Pl.’s Mem. of Law at 18.)
However, as the Commissioner correctly points out, the Second Circuit has not required the
ALJ to explicitly consider all seven factors set forth in the SSA regulations in evaluating a claimant’s
credibility. Rather, the Circuit Court has stated, “[W]hile it is ‘not sufficient for the [ALJ] to make a
27

single, conclusory statement that’ the claimant is not credible or simply to recite the relevant factors,
[SSR 96–7p, 1996 WL 374186, at *2.], remand is not required where ‘the evidence of record permits
us to glean the rationale of an ALJ’s decision[.]”’ Cichocki v. Astrue, 534 F. App'x 71, 76 (2d Cir.
2013) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)); see also Sabater v. Colvin,
No. 12CV4594 (KMK)(JCM), 2016 WL 1047080, at *6 (S.D.N.Y. Mar. 10, 2016) (“The ALJ,
however, was not obligated to explicitly reconcile each piece of evidence he considered in his decision
as long as it is clear, as is the case here, that he weighed all the evidence of Plaintiff s symptoms, both
subjective and objective.”) (collecting cases).
Here, as noted above, the ALJ did not rely solely on boiler plate language. Rather, he analyzed
all of the evidence in the record, including the Plaintiff’s own testimony, and provided specific reasons
for both his RFC determination and his credibility determination accompanied by references to the
evidence which he believed supported his determinations. (See id. at 103.)
Although his analysis and organization is not necessarily a model of clarity, the Court finds the
ALJ’s reasoning was sufficiently specific to meet the requirements adopted by courts in this Circuit.
Furthermore, as discussed earlier, there is ample support in the record for the ALJ’s conclusion that the
Plaintiff’s statements regarding the intensity of his symptoms were not credible.
For these reasons, the Court finds that the the ALJ’s credibility assessment to be sufficient
under the SSA regulations and supported by substantial evidence in the record. See Cichocki, 534 F.
App’x at 76 (“While the ALJ did not discuss all seven factors listed in 20 C.F.R. § 416.929(c)(3), he
provided specific reasons for his credibility determination, including that the treatment notes, both
from before and after Cichocki’s seizure, indicate that her bipolar disorder was managed with
medication and did not affect her sleep, appetite, or ability to do chores. Because the ALJ thoroughly
explained his credibility determination and the record evidence permits us to glean the rationale of the
ALJ's decision, the ALJ’s failure to discuss those factors not relevant to his credibility determination
does not require remand.”); Tricarico v. Colvin, No. 14-CV-2415 (RRM), 2015 WL 5719696, at *13
28

(E.D.N.Y. Sept. 28, 2015) (rejecting an argument that a case should be remanded because the ALJ
failed to cite to the appropriate factors and set out his reasoning with specificity because, according to
the court, “[t]he ALJ thoroughly explained his credibility determination and the record evidence
permits the Court to glean the rationale of the ALJ’s decision. Thus, the ALJ's determination that
Tricarico was not entirely credible regarding the intensity, persistence, and limiting effects of his
symptoms was supported by substantial evidence in the record.”).
III. CONCLUSION
For the foregoing reasons, the Commissioner’s motion for a judgment on the pleading
dismissing the complaint is granted; the Plaintiff’s cross motion for a judgment on the pleadings is
denied; and the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
May 23, 2016

_/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge

29