Henriquez v. Colvin

Filing 15

MEMORANDUM & ORDER denying 9 Motion for Judgment on the Pleadings; granting 12 Motion for Judgment on the Pleadings; For the foregoing reasons, the Commissioner's motion (Docket Entry 12) is GRANTED, and Plaintiff's motion (Docket Entry 9) is DENIED. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 8/15/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
RAFAEL NUNEZ HENRIQUEZ,
Plaintiff,
MEMORANDUM & ORDER
15-CV-2655(JS)

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

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Craig Joseph Tortora, Esq.
Goldsmith & Tortora
2067 Jericho Turnpike
Commack, New York 11725
For Defendant:

Candace Scott Appleton, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

SEYBERT, District Judge:
Rafael

Nunez

Henriquez

(“Plaintiff”)

brought

this

action against the Acting Commissioner of Social Security (the
“Commissioner”)

challenging

the

Commissioner’s

decision

that

Plaintiff is not disabled and thus not entitled to disability
insurance benefits.

The parties have cross-moved for judgment

on

Plaintiff

the

remanded

pleadings.
for

a

benefits

asserts

calculation

further development of the record.

1

that
or,

the

case

must

alternatively,

be
for

For the following reasons,

the Commissioner’s motion is GRANTED, and Plaintiff’s motion is
DENIED.
BACKGROUND
Plaintiff
August 22, 2012,

applied

claiming

a

for

disability

disability

pain, headaches, and depression.

due

(R. 14.)1

benefits

to

neck

and

on
back

Plaintiff had been

injured while working as a groundskeeper on July 14, 2011.

(R.

152-53.)
After his application was denied on March 6, 2013,
Plaintiff

requested

a

hearing

before

an

administrative

law

judge, which took place on December 9, 2013 before April M.
Wexler (the “ALJ”).

(R. 14.)

The ALJ heard testimony from

Plaintiff, who was aided by a Spanish interpreter, and Rocco J.
Meola, a vocational expert.
On

January

10,

(R. 14, 18.)
2014,

the

ALJ

finding that Plaintiff is not disabled.
decision

became

final

when

the

issued

her

(R. 22.)

Appeals

decision
The ALJ’s

Council

denied

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

[its]

decision.”

rules

to

review

the

Administrative

Law

Judge’s

(R. 1.)
Plaintiff

Commissioner.

then

brought

this

action

against

The salient details are discussed below.

The abbreviation “R.” refers to the administrative record.
(Docket Entry 6.)
1

2

the

I.

Evidence Presented to the ALJ
A.

Testimonial Evidence
Born in 1973 in the Dominican Republic, Plaintiff has

been

living

in

the

United

States

for

approximately

years. (Pl.’s Br., Docket Entry 9, at 3; R. 34.)

thirteen

He lives in

New York with his mother and his wife and four children.
33.)

(R.

He previously worked as a groundskeeper for a golf course

and then later for a landscaping company.

(R. 35–36.)

Plaintiff has not been able to work since he injured
his back in July 2011.
from

“[a]

lot
He

(R. 37.)
(R. 37.)
pain.

of

back

also

(R. 18.)
pain”

He testified that he suffers

and

complained

of

“cannot

exert

headaches

and

[him]self.”
dizziness.

He stated that the headaches are caused by his neck
(R. 43 (indicating that “[t]he neck pain goes up to

[Plaintiff’s] head”).)

He elaborated by saying that the neck

pain then “moves through [his] head.”
Plaintiff
treatment

for

his

testified
physical

that

ailments

(R. 43.)
he

receives

and

that

he

chiropractic
also

takes

several medications to manage his pain and to help him sleep.
(R. 37–41.)

He also said that he uses a neck collar at night

and wears a back brace during the day.

(R. 43.)

He received

epidural injections in his back on multiple occasions but later
discontinued using them.

(R. 42.)

3

In

addition

to

his

physical

ailments,

Plaintiff

testified that he suffers from depression. (R. 46.)

He said

that he sometimes “lose[s] [his] control with [his] wife and
kids.”
and

(R. 46.)

is

seeing

He further testified that he takes medication
both

a

psychologist

treatment of his depression.

and

a

psychiatrist

for

(R. 46.)

Plaintiff also discussed how his physical and mental
ailments affect his day-to-day life.

(R. 43–46.)

he gets up and takes his medications.
television.

(R. 43.)

(R. 43.)

cannot

cook

He then watches

He frequently stands up because he “can’t

continue with sitting.”
day.

(R. 43.)

Each morning,

(R. 43.)

He sometimes naps during the

He can shower and dress himself.

for

himself

extended

period

of

pain].”

(R. 44.)

time,

because
then

if
[he]

he

is

(R. 43.)

“standing

start[s]

to

for

feel

He
an

[back

Plaintiff also said that he does not help

around the house, nor does he help with food shopping.

(R. 44.)

He reported that he spends “very, very little” time with his
children.

(R. 45.)

Plaintiff sometimes leaves the house to

attend therapy sessions and medical appointments.

(R. 45.)

He

also leaves the house to eat out approximately once per month.
(R. 45.)

Plaintiff socializes with friends and family about

every

months.

two

(R. 45.)

He

has

Dominican Republic since his accident.

4

also

(R. 45.)

traveled

to

the

The ALJ questioned Plaintiff about how his physical
and mental conditions affect his ability to work.

(R. 47.)

He

said that even if a job allowed him to alternate between sitting
and

standing,

overexerted

he

could

himself.

experience

(R.

47.)

a
He

problem
also

if

he

testified

suddenly
that

his

medication is a problem, as it puts him in a drowsy state.
(R. 47.)
Mr. Rocco J. Meola, a vocational expert, also appeared
and testified.

(R. 48–52.)

Mr. Meola described Plaintiff’s

past work as groundskeeping and lawn maintenance.

(R. 49.)

He

reported that Plaintiff’s previous work was medium in terms of
its physical demands and did not require extensive training.
(R. 49.)
Among

other

things,

the

ALJ

asked

Mr.

Meola

to

consider a hypothetical individual who was limited to sedentary
work.

(R. 50.)

This hypothetical individual had the following

limitations: occasionally lift ten pounds; sit for up to six
hours; stand or walk for approximately two hours in an eighthour day with normal breaks; occasionally climb ramps or stairs;
never climb ladders, ropes, or scaffolds; occasionally balance
and

stoop;

related

never

decisions

kneel,
and

crouch,
few

or

crawl;

workplace

and

simple

work-

changes.

(R.

50.)

Mr. Meola testified that there are jobs in the national economy
in

substantial

numbers

that
5

are

compatible

with

these

limitations.

(R. 50.)

Although Plaintiff could not perform his

past relevant work, he could perform other work based on his
residual

functional

capacity

(“RFC”),

still do despite [his] limitations.”

or

“the

most

[he]

can

20 C.F.R. § 416.945(a)(1).

In fact, Plaintiff could find a job as a table worker, a scale
operator, or a preparer.

(R. 21.)

Mr. Meola also testified

that the sedentary-level jobs he identified could be performed
by an individual who required stretching breaks of up to four
minutes per hour.

(R. 50-51.)

He said that the jobs could not

be performed by an individual who needed to be absent from work
three to four times per month.

(R. 51.)

He also said that none

of the jobs could accommodate a sit-stand option.
Finally,

none

of

the

jobs

could

accommodate

required a ten-minute break every thirty minutes.
B.

a

(R. 52.)
person

who

(R. 52.)

Medical Evidence2
Plaintiff’s

July 14, 2011.

disability

(R. 152.)

allegedly

began

on

The next day, a cervical spine CT-

scan showed no acute fracture or subluxation and degenerative

Plaintiff does not appear to challenge the ALJ’s findings as to
his mental impairment. Nevertheless, the Court accepts the
findings as well–supported by the record. Dr. Paul Herman, a
consultative psychiatrist, evaluated Plaintiff in February 2013
and found that while Plaintiff had psychiatric problems, the
problems were not severe enough to prevent him from working.
(R. 275.) Dr. E. Charles, a state agency psychiatric
consultant, also found that Plaintiff retained the mental
abilities and social skills for performing simple tasks. (R.
66-67.)

2

6

changes.

(R. 245.)

Approximately one month later, Plaintiff

underwent a cervical spine MRI which showed a herniation at the
C5-C6 disc space, impressing the ventral cord, and a bulge at
C3-C4, impressing on the thecal sac.

(R. 224.)

Plaintiff had a lumbar spine MRI performed.

That same day,
(R. 194.)

It

showed left lateral recess stenosis at the L5-S1 disc space, due
to a left disc herniation with hypertrophy of the facets, and
L1/2-L to L4/5 disc bulging and hypertrophy of the facets.

(R.

194.)
1.

Timothy Groth, M.D.

Plaintiff

began

seeing

Dr.

Timothy

management specialist, in August 2011.

Groth,

(R. 211–14.)

a

pain

Plaintiff

reported pain in his back, neck, shoulders, legs, and head.
(R. 211, 213.)

He indicated that his pain without medication

was extreme and unbearable.

(R. 213.)

Plaintiff reported that

the medications he was taking at the time relieved his pain.
(R. 212–13.)
Dr. Groth physically examined Plaintiff.

(R. 214.)

Dr. Groth noted that Plaintiff had tenderness over the occipital
nerve outlets with reproduction of pain to the eyes.

(R. 214.)

There

bilateral

was

also

neuroforaminal

significant

compression

spinal

testing,

tenderness,

palpable

trigger

points

bilaterally, weakness in the left grasp, and decreased sensation
in the left C6 dermatome.

(R. 214.)
7

Dr. Groth’s examination of

the lumbar spine showed flexion to sixty degrees and extension
to

neutral.

(R.

tenderness.

214.)

There

(R. 214.)

was

also

significant

spinal

Finally, the right-sided straight leg

raise was positive, and there was weakness in the right extensor
hallucis longus.

(R. 214.)

following

conditions:

neuralgia,

cervical

Dr. Groth ultimately diagnosed the

cervical

disc

myofascial

herniation,

pain,

cervical

radiculopathy,

lumbar disc herniation, and lumbar radiculopathy.
gave

Plaintiff

an

occipital

prescribed pain medication.
Nine

days

after

nerve

was

(R. 209.)
were

minimal

(R. 214.)

injection,

and

He
he

(R. 210, 214.)
his

initial

Groth, Plaintiff saw him again.
there

block

occipital

appointment

(R. 209.)

tenderness

over

with

Dr.

Dr. Groth noted that

the

occipital

nerves.

Cervical range of motion and sensation in all fingers

decreased.

(R.

209.)

headaches were less severe.

Plaintiff
(R. 209.)

reported

that

his

Dr. Groth diagnosed a

cervical herniated disc with radiculopathy and again prescribed
pain medication.
clearance

from

(R. 209.)
a

He instructed Plaintiff to obtain

neurologist

so

that

injection (“ESI”) could be administered.

an

epidural

steroid

(R. 209.)

Dr. Groth saw Plaintiff again in September, October,
November,
continued,

and

December

symptomatic

2011

and

treatment

January
of

his

and
pain.

March
(R.

2012

for

202–08.)

Dr. Groth administered cervical ESIs in September and December
8

and lumbar ESIs in September and October.
changed
continued

Plaintiff’s
renewing

pain
the

medication

(R. 202.)

in

prescription

Dr. Groth

October

discharged from treatment on March 3, 2012.

and

Plaintiff

until

2011

was

(R. 202.)

Dr.

Groth did not perform any more of the ESIs after December 2011.
2.

Raj Tolat, M.D.

Dr. Tolat saw Plaintiff for electromyographic (“EMG”)
testing on September 8, 2011 while Plaintiff was still seeing
Dr. Groth for management of his pain.

(R. 195–201.)

Testing of

the lower extremities revealed left-sided L5 radiculopathy, and
testing of the upper extremities was consistent with left-sided
C6 radiculopathy.
3.

(R. 195, 198.)

Joseph T. Sanelli, D.O.

Plaintiff

began

seeing

Dr.

Joseph

T.

Sanelli,

a

physical medicine and rehabilitation physician at Long Island
Spine Specialists, two months after being discharged from Dr.
Groth’s care.

(R. 225.)

therapy

order

without

myelopathy,

syndrome.

for

(R. 225.)

Dr. Sanelli gave Plaintiff a physical

treatment

of

lumbar

cervical

facet

disc

syndrome,

displacement

and

discogenic

Plaintiff began receiving physical therapy

at Port Jefferson Physical Therapy (“PJPT”) at the end of May
2012.

(R. 230-43.)

questionnaire

on

which

Plaintiff
he

reported

completed
that

decreased since the accident in July 2011.
9

his

an

initial

symptoms

(R. 243.)

had

In the

course of his therapy, Plaintiff usually complained of pain in
his lower back and legs or hamstrings.
completing

seventeen

treatment

(R. 230–243.)

sessions

and

After

exhausting

his

insurance, Plaintiff was discharged from PJPT’s care and was
instructed on self-management with a home exercise program.

(R.

226.)
4.

Kevin Strasser, D.C.

Dr.
completed

a

Kevin

Strasser,

questionnaire

in

Plaintiff’s

2013

about

his

Plaintiff from July 2012 to February 2013.

chiropractor,
treatment

(R. 266–72.)

of
He

reported that he began treating Plaintiff for intermittent pain
in the lower back, neck, and arm.

(R. 266.)

Dr. Strasser noted

that Plaintiff initially needed treatment three times per week,
then only two times a week by November 2012, and then only once
per

week

symptoms

by

January

included

straight-leg

2013.

the

raise;

(R.

267.)

following:

positive

Plaintiff’s

muscle

cervical

spasm;

compression;

initial
positive
sensory

changes; and reduced lumbar and cervical spine ranges of motion.
(R. 267.)

At the time of his final visit in February 2013,

Plaintiff exhibited only: mild muscle spasms in the neck and
shoulders; normal cervical range of motion; mild loss of lumbar
flexion;

no

gait

changes;

negative straight-leg raise.

negative

cervical

(R. 267.)

squat and pick up weights without pain.
10

compression;

and

Plaintiff was able to
(R. 267.)

Dr. Strasser

noted that treatment had gone well, and he opined that Plaintiff
could return to work in March 2013.

(R. 267.)

He stated that

Plaintiff had no limitations in sitting, standing, or walking.
(R.

269.)

Plaintiff

could

lift

or

carry

up

to

ten

pounds

frequently, and he could lift a maximum of fifty pounds.
269.)

(R.

He had no limitations in pushing or pulling, but Dr.

Strasser did note that Plaintiff should not be bent over for
long periods of time.

(R. 271.)

Dr. Strasser also referred Plaintiff to a neurologist,
Dr. Scott McWilliams, for a visit in February 2013.
93.)

(R. 292-

Dr. McWilliams did not find any problems other than back

pain and declined to prescribe medication after Plaintiff showed
him “medications from five different medical providers and three
different area codes.”
5.

(R. 292–93.)

Thomas J. Dowling, M.D.

Plaintiff returned to Long Island Spine Specialists
for a follow-up with Dr. Thomas J. Dowling in October 2012, two
months after completing the physical therapy prescribed for him
by Dr. Sanelli.

(R. 289–91.)

Plaintiff reported that his neck,

thoracic, lower back pain, and headaches remained constant and
unchanged despite the fact that he was showing improvement with
Dr. Strasser.

(R. 289.)

He said that he had gone to the

emergency room the month before because of pain in his neck and
headaches.

(R.

289.)

He

also
11

reported

pain

in

the

left

shoulder and numbness in both arms and hands and his right leg
and foot.

(R. 289.)

He said that he was receiving chiropractic

care which was helping with his pain and taking pain and sleep
medication.

(R. 289.)

On examination, Plaintiff had restricted

range of motion in the cervical spine with spasm.

(R. 290.)

The lumbar spine had a reduction in range of motion, but no
spasm.

(R. 290.)
Dr. Dowling diagnosed Plaintiff with the following:

disc

displacement

displacement

without

without

myelopathy,

and facet syndrome.
chiropractic

myelopathy,

(R. 291.)

treatment.

(R.

lumbar;

cervical;

discogenic

disc

syndrome;

Dr. Dowling ordered continued
291.)

Dr.

Dowling

opined

that

Plaintiff’s impairment was “total temporary” and that he was
unable

to

resume

his

normal

work

at

that

time.

(R.

291.)

However, Dr. Dowling made no indications as to whether or not
the Plaintiff could perform other work.

(See generally R. 289–

91.)
6.

Mehran Golpariani, M.D.

Around

the

same

time

Plaintiff

followed

up

with

Dr. Dowling, he also began seeing Dr. Mehran Golpariani, a pain
management specialist.

(Def.’s Br., Docket Entry 13, at 9.)

On

examination, Dr. Golpariani noted reduced range of motion in the
cervical

spine.

tenderness,

but

(R.
no

299.)

spinal

There

tenderness
12

was
or

bilateral

paraspinal

spasms.

(R.

299.)

Plaintiff’s lumbar spine had reduced flexion and hyperextension
and tenderness, but no spasms.

(R. 299.)

Straight leg raising

was positive on the left at forty-five degrees and negative on
the

right.

cervical

(R.

299.)

herniated

discs,

occipital neuralgia.
a

lumbar

ESI

Dr. Golpariani

and

Dr.

Golpariani
lumbar

(R. 299.)

facet

lumbar

hypertrophy,

and
and

For treatment, he administered

prescribed

administered

diagnosed

pain

medication.

additional

lumbar

(R.

ESIs

299.)

twice

in

November 2012 and Plaintiff reported obtaining good relief of
his pain both times.
Plaintiff

(R. 294–95, 300–01.)
saw

Dr.

Golpariani

again

in

December

and

reported that the ESIs and pain medication were helping his neck
and

back

pain.

(R.

302.)

Dr.

Golpariani’s

examination

disclosed that Plaintiff’s lumbar spine still had reduced ranges
of

motion

(R. 302.)

and

tenderness

and

again,

there

were

no

spasms.

Plaintiff continued to have reduced range of motion

in the cervical spine with fight paraspinal tenderness and no
spinal tenderness or spasms.

(R. 302.)

Straight leg raising

was now positive on the right at sixty degree, and negative on
the

left.

diagnoses.
ESI.

(R.

302.)

(R. 302.)

Dr.

Golpariani

did

not

change

his

Plaintiff did not want another cervical

(R. 302.)
Plaintiff

next

saw

Lauren

Morasse,

one

of

Dr.

Golpariani’s physician assistants, in January and February 2013.
13

(R.

303–04.)

During

the

January

visit,

Plaintiff

severe pain when he did not take pain medication.
He

reported

night.

having

(R. 303.)

pain

in

his

right

leg

which

reported
(R. 303.)

worsened

at

Ms. Morasse’s examination findings were the

same as Dr. Golpariani’s findings from the December visit, and
the diagnoses remained unchanged.

(R. 303.)

prescribed

an

pain

medication

and

Ms. Morasse again

occipital

nerve

block.

(R. 303.)
During the February visit, Plaintiff noted his pain
with medication was relatively minor.

(R. 304.) However, he

reported that he now had pain in his shoulder blades and right
arm.

(R.

304.)

Examination

disclosed

tenderness

in

the

posterior shoulder, but no more paraspinal tenderness in either
the

cervical

or

lumbar

spine.

(R.

304.)

There

was

still

reduced range of motion in both the cervical and lumbar spines
and tenderness in the lumbar spine.
Plaintiff

saw

April, and June 2013.

Ms.

(R. 304.)

Morasse

for

follow-ups

(R. 305–06, 309.)

visit, Plaintiff declined further ESIs.

in

March,

During the March

(R. 305.)

Other than

the return of paraspinal tenderness in both the cervical and
lumbar spines, examination findings remained the same, as did
the diagnoses.

(R. 305.)

During the April visit, Plaintiff

noted that his back pain with medication was trivial.

(R. 306.)

Examination findings remained unchanged, as did the diagnoses,
14

but

another

lumbar

improvement.

(R.

ESI

was

306.)

prescribed

During

the

despite

June

Plaintiff’s

visit,

Plaintiff

reported that his pain had increased but was still relatively
minor.

(R. 309.)

same as before.

Examination findings and diagnoses were the

(R. 309.)

Plaintiff complained that the relief

provided by the ESIs was only temporary and declined any more of
them.

(R. 309.)
Plaintiff

saw

a

new

physician

assistant,

Jenna LaRocca, in Dr. Golpariani’s office in August, September,
November, and December 2013.

(R. 310–13.)

Plaintiff reported

during the August visit that his medication alleviated his pain
and made it tolerable.
diagnoses
(R. 310.)

remained

(R. 310.)

unchanged,

and

Examination findings and
an

ESI

was

again

refused.

During the September visit, Plaintiff again reported

that his medication helped his pain, and he said that he would
consider

resuming

ESIs

Plaintiff

reported

at

the

the

following

November

month.

visit

that

(R.
he

311.)

was

using

traction at home for his neck pain, and he had also started
using

topical

relieve

his

pain-relief
pain.

(R.

patches.
312.)

(R.

During

312.)
the

Both

helped

December

visit,

Ms. LaRocca noted that Plaintiff was being weaned off of using a
lumbar support brace.

(R. 313.)

It is unclear whether this was

the brace he was wearing at the hearing in front of the ALJ the
following

month.

In

any

event,
15

examination

findings

and

diagnoses

again

remained

unchanged

November, and December visits.
7.
On
examined

by

specialist.

during

the

September,

(R. 311–13.)

Marisela Gomez, M.D.
February
Dr.

19,

2013,

Marisela

(R. 260–64.)

Plaintiff

Gomez,

a

was

consultatively

preventative

medicine

Plaintiff reported that he has had

neck pain radiating to his head, lower back pain, and shoulder
pain since a car accident.

(R. 260.)

in his hands and right foot.

He also reported numbness

(R. 260.)

diagnosed with depression and insomnia.

He said he had been

(R. 260-61.)

Plaintiff

reported that his daily activities included showering, dressing,
watching television, listening to the radio, socializing with
friends, and going out only when necessary.

(R. 261.)

He said

that he could not cook, clean, do laundry, shop, or do child
care because he could not stand for a long time.

(R. 261.)

Dr.

Gomez’s physical examination revealed that Plaintiff’s gait and
stance were normal and that he was able to walk on his heels and
could fully squat.

(R. 261.)

He did not need help to change

for the examination or to rise from the exam table.

(R. 262.)

His cervical spine ranges of motion were: flexion, extension,
and lateral flexion to thirty-five degrees each; and rotation to
sixty degrees bilaterally.

(R. 262.)

His lumbar spine ranges

of motion were: flexion to thirty degrees and extension to ten
degrees; lateral flexion and extension were full bilaterally.
16

(R. 262.)

Plaintiff declined to do straight-leg raising from

the

position

supine

because

of

pain.

(R.

262.)

Sitting

straight-leg raising was positive at ten degrees bilaterally.
(R. 262.)

There was full range of motion in the shoulders

bilaterally.

(R.

262.)

Hips

showed

flexion

and

extension

seventy-five degrees bilaterally; rotation, backward extension,
abduction,
Knees

and

showed

adduction

flexion

and

(R. 262.)

There

(R. 262.)

Plaintiff’s

showed

no

signs

was

of

were

full

bilaterally.

extension

full

range

joints

100

of

were

swelling.

degrees

motion

stable

(R.

(R.

262.)

bilaterally.

in

and

262.)

the

ankles.

nontender

The

and

neurological

examination was normal and showed full motor strength, equal
deep tendon reflexes, and no sensory deficits.

(R. 263.)

lumbosacral region was x-rayed, revealing straightening.
265.)

The
(R.

Dr. Gomez diagnosed the following: head and neck pain;

shoulder pain; lower back pain; numbness in both hands and the
right

foot;

opinion,

depression;

Plaintiff

had

and

insomnia.

moderate

(R.

limitations

standing, and bending for long periods.

263.)
for

(R. 263.)

In

her

walking,
Dr. Gomez

also found a mild limitation for pushing, pulling, lifting, and
carrying heavy objects.

(R. 263.)

Dr. Gomez’s findings appear

to be consistent with the record, which shows Plaintiff’s slow
but steady improvement in the years following the July 2011
accident.
17

II.

The Decision of the ALJ
After

reviewing

the

record,

the

ALJ

issued

her

decision on January 10, 2014, finding that Plaintiff is not
disabled.

(R. 8-25.)

The ALJ concluded that while Plaintiff

had severe impairments and could not perform any of his past
relevant work, he retained the RFC to perform sedentary work.
(R. 16-17, 21.)

The ALJ further concluded that there are a

substantial number of jobs in the national economy that are
compatible with Plaintiff’s limitations.

(R. 21.)

III. This Appeal
Plaintiff
(Docket Entry 1.)

commenced

this

appeal

on

May

8,

The Commissioner filed the administrative

record on August 5, 2015 and her answer two days later.
Entries

6,

judgment

7.)

on

On

the

October

pleadings,

19,
and

2015,
on

Plaintiff

December

18,

(Docket

moved

for

2015,

the

Commissioner cross-moved for judgment on the pleadings.
Entries 9, 12.)

2015.

(Docket

These motions are presently before the Court.
DISCUSSION

I.

Standard of Review
In

determine

reviewing

whether

the

the

ALJ’s

ALJ’s

ruling,

findings

the

are

Court
supported

must
by

“substantial evidence in the record as a whole or are based on
an erroneous legal standard.”

Persico v. Barnhart, 420 F. Supp.

2d 62, 70 (E.D.N.Y. 2006) (internal quotation marks and citation
18

omitted).

“Substantial

reasonable

mind

conclusion.”

evidence

might

Johnson

accept
v.

is

as

such

evidence

adequate

Barnhart,

269

F.

Supp.

a

support

to

that

a

2d

82,

84

(E.D.N.Y. 2003) (citing Richardson v. Perales, 402 U.S. 389,
401, 91 S.

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 drawn from
such facts.
evidence

See id.

exists

to

Thus, if the Court finds that substantial
support

the

Commissioner’s

decision will be upheld.

See id.

Court

a

may

have

reached

decision,

the

In other words, even if the

different

decision,

substitute its own judgment for that of the ALJ.

it

must

not

See Carroll v.

Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)
(“It is the function of the [Commissioner], not [a reviewing
court], to resolve evidentiary conflicts and to appraise the
credibility of witnesses, including the claimant.”).
To determine whether substantial evidence supports the
ALJ’s

findings,

including

this

Court

contradictory

must

“examine

evidence

and

conflicting inferences can be drawn.”
F.3d

59,

62

(2d

Cir.

1999)

entire

evidence

from

record,
which

See Brown v. Apfel, 174

(internal

citation omitted) (per curiam).

the

quotation

marks

and

Ultimately, “[t]he findings of

the Commissioner of Social Security as to any fact, if supported

19

by substantial evidence, shall be conclusive . . . .”

42 U.S.C.

§ 405(g).
A.

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

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

A claimant is disabled under the Act when he can

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

reason

of

any

impairment . . .

medically

determinable

physical

or

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

any

other

his

age,

kind

education,

of

and

substantial

exists in the national economy.”

work

gainful

experience,
work

which

42 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
20

the duration requirement set forth at 20 C.F.R. § 404.1509.3

20

C.F.R.

is

§

404.1520(a)(4)(ii).

Third,

if

the

impairment

“severe,” the Commissioner must consider whether the impairment
meets or equals any of the impairments listed in Appendix 1 of
the

Social

Security

§ 404.1520(a)(4)(iii).

regulations.

20

C.F.R.

“These are 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.”
1019, 1022 (2d Cir. 1995).

Dixon v. Shalala, 54 F.3d

Fourth, if the impairment or its

equivalent is not listed in the Appendix, the claimant must show
that he does not have the RFC to perform tasks required in his
previous employment.

20 C.F.R. § 404.1520(a)(4)(iv).

Fifth, if

the claimant does not have the RFC to perform tasks in his or
her

previous

employment,

the

Commissioner

must

determine

if

there is any other work within the national economy that the
claimant is able to perform.

20 C.F.R. § 404.1520(a)(4)(v).

If

not, the claimant is disabled and entitled to benefits.
Plaintiff bears the burden on the first four steps,
but then the burden shifts to the Commissioner for the last
step.

Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).

“In

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.”

3

21

making

the

consider:
opinions

required

(1)
of

the
the

determinations,

objective
examining

medical
or

the

Commissioner

facts;

treating

(2) the

physicians;

must

medical
(3)

the

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

his

family,

and

others;

and

(4)

the

claimant’s

educational background, age, and work experience.”

Boryk ex

rel. Boryk v. Barnhart, No. 02–CV–2465, 2003 WL 22170596, at *8
(E.D.N.Y. Sept. 17, 2003) (citation omitted).
Here, the ALJ performed the above analysis and found
that Plaintiff had not engaged in substantial gainful activity
since July 14, 2011, the alleged onset date of the disability.
(R. 16.)
severe

The ALJ then found that Plaintiff had the following
impairments:

depression.

(R. 16.)

a

lumbar

syndrome,

headaches,

and

The ALJ next determined that none of

Plaintiff’s impairments or any combination of his impairments
are

the

medical

equivalent

of

Appendix 1 of the Regulations.

any

impairment

(R. 16.)

enumerated

in

The ALJ then found

that although Plaintiff was incapable of performing his past
work as a groundskeeper, he had the RFC to perform sedentary
work with some minor limitations.

(R. 21, 17.)

Using Part 404,

Subpart P, Appendix 2 of the Medical-Vocational Guidelines as a
framework for decision-making and the testimony of Mr. Meola,
the ALJ found that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform.
22

(R.

21.)

The

disabled.

ALJ

thus

concluded

must

now

that

Plaintiff

was

not

(R. 22.)
The

Court

determine

whether

decision is supported by substantial evidence.

the

ALJ’s

The Commissioner

and Plaintiff have both moved for judgment on the pleadings, and
each party has raised several arguments in support of their
respective motions.

The Court will address each argument in

turn.
B.

Severe Impairments
Plaintiff

first

argues

that

the

ALJ

erred

application of the de minimis standard at step two.
at 5.)

her

(Pl. Br.

Specifically, Plaintiff argues that the ALJ incorrectly

found

the

neck

impairment

to

be

non-severe

and

failed

consider the neck impairment as part of the RFC.
at 5

in

(citing

an

EMG

study,

physical examinations).)
reading

of

headaches

as

determining
impairment

the
a
that
as

ALJ’s

an

MRI

By

impairment,

Plaintiff’s

well.

a

(Pl.’s Br.

CT

scan,

and

This argument is belied by a full
opinion.

severe

report,

to

During

neck
his

recognizing

the

ALJ

problems

appearance

Plaintiff’s

was

essentially

were
before

a

severe

the

ALJ,

Plaintiff stated that his “neck pain . . . goes up to [his]
head”

and

(R. 43.)

then

the

neck

Furthermore,

as

pain
the

“moves

through

Commissioner

[his]

argues,

head.”
the

ALJ

explicitly referred to the cervical MRI and EMG testing in her
23

decision, which shows that the ALJ was aware of the medically
determinable neck impairment.

(R. 18.)

Additionally, the Commissioner correctly argues that
once

a

case

proceeds

past

step

two,

“the

determination

of

whether a specific impairment is severe or non-severe becomes
irrelevant because the ALJ must consider the combined impact of
all impairments, even those that are not severe.”
at 18 (citing 20 C.F.R. § 404.1523).)
specifically

noted

that

in

(Def.’s Br.

In her decision, the ALJ

determining

Plaintiff’s

RFC,

she

considered all of Plaintiff’s impairments, including those not
found to be severe.

(R. 15.)

Plaintiff has not indicated what

additional neck-related limitations the ALJ should have found
that

are

not

Accordingly,

already

Plaintiff’s

incorporated
argument

into

that

the

her
ALJ

decision.
failed

to

properly evaluate his neck impairment is without merit.
C.

Plaintiff’s RFC
The

perform
(R. 17.)

ALJ

found

sedentary

that

work

as

Plaintiff

defined

in

has

the

capacity

to

20

CFR

404.1567(a).

Specifically, the ALJ found that Plaintiff has the RFC

to perform the following jobs, all of which exist in substantial
numbers

in

the

national

operator, and a preparer.

economy:
(R. 21.)

a

table

worker,

a

scale

Plaintiff makes two primary

arguments in challenging the ALJ’s RFC determination: (1) that
the RFC determination is not supported by substantial evidence
24

and

(2)

that

the

ALJ

improperly

evaluated

credibility as to his subjective complaints.

Plaintiff’s

(Pl. Br. at 6–11.)

Both arguments are meritless.
1.

Substantiality of the Evidence

Plaintiff first argues that substantial evidence does
not support the ALJ’s RFC determination.

(Pl. Br. at 6–10.)

The Court, however, finds that the ALJ’s decision is supported
by substantial evidence from the opinions of various doctors,
the medical records, Plaintiff’s own testimony, and the findings
of other sources, such as Dr. Strasser, a chiropractor, and Drs.
Gomez and Dowling, consultative examiners.
As this Circuit has recognized, “[i]t is within the
province of the ALJ to weigh conflicting evidence in the record
and credit that which is more persuasive and consistent with the
record as a whole.”

Banks v. Astrue, 955 F. Supp. 2d 178, 188

(W.D.N.Y. 2013) (citations omitted).

In that regard, the ALJ is

free

or

to

consider

other

sources,

those

that

are

not

traditional medical sources such as physicians or psychologists.
Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995); see also 20
C.F.R.

§

404.1513(e)

(cataloging

examples

of

other

sources,

including chiropractors and physicians’ assistants); accord SSR
06-3p, 2006 WL 2329939, at *2-3 (providing that in considering
the

opinions

of

sources

who

are

not

“acceptable

medical

sources,” the ALJ will consider the same pertinent factors set
25

forth

in

20

C.F.R.

§ 404.1527(d)).

Likewise,

the

ALJ

has

discretion to weigh the testimony of consultative examiners and
attribute the appropriate weight based on the entire record.
Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013) (summary
order); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)
(“[T]he

report

of

a

consultative

physician

may

constitute

[substantial] evidence.”).
In this case, the ALJ afforded greater weight to the
opinions of four doctors: Drs. Strasser, Golpariani, Gomez, and
Dowling.
that

(R. 19.)

Plaintiff

Dr. Strasser, a chiropractor, determined

had

no

standing, or walking.

limitations
(R. 19.)

with

regard

opinions

sedentary work.
weight
because

because
Dr.

services.

are

sitting,

He also opined that Plaintiff

could lift or carry up to ten pounds frequently.
Strasser’s

to

consistent

with

the

(R. 19.)
ability

to

Dr.
do

The ALJ properly afforded his opinion great
of

how

Dowling,

an

frequently

he

orthopedist,

treated
endorsed

Plaintiff
Dr.

and

Strasser’s

(R. 19.)
Dr. Golpariani’s assessment buttressed the findings of

Dr. Strasser.
Plaintiff’s

(R. 19.)
gradual

Golpariani’s care.

Dr. Gopariani’s treatment notes reflect

improvement

during

his

time

in

Dr.

Specifically, Dr. Golpariani’s notes show

that Plaintiff’s medication helped his pain, and Plaintiff went

26

from requiring injections to assuage his pain to managing it
with less invasive methods.

(R. 306, 310–11.)

That determination is also consistent with the opinion
of Drs. Gomez and Dowling, two consultative examiners.

(R. 19.)

Dr. Gomez noted that Plaintiff’s gait was normal and that he was
able to walk on his heels and fully squat.
determined

that

Plaintiff

had

(R. 19.)

“moderate

Dr. Gomez

limitation[s]

walking, standing, and bending for long periods.”
Courts

in

this

Circuit

and

elsewhere

have

for

(R. 263.)

concluded

that

a

claimant can perform light or medium work based on “an opinion
assessing

moderate

limitations

for

sitting,

standing

and

walking.”

Harrington v. Colvin, No. 14-CV-6044, 2015 WL 790756,

at *14 (W.D.N.Y. Feb. 25, 2015) (collecting cases); see also
Nelson

v.

Colvin,

(E.D.N.Y.

Mar.

reinforces

31,

the

12-CV-1810,

2014).

conclusion

sedentary work.
The

No.

2014

Thus,
that

Dr.

WL

1342964,

Gomez’s

Plaintiff

at

*12

determination

was

capable

of

(R. 19.)

ALJ

also

relied

on

Dr.

Dowling’s

Plaintiff’s impairment was “temporary.”

opinion

(R. 291.)

that

Although Dr.

Dowling stated that Plaintiff was unable to return to his work
as

a

groundskeeper,

opportunities.

the

doctor

did

not

rule

out

all

job

See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d

Cir. 1983) (“The [Commissioner] is entitled to rely not only on
what

the

record

says,

but

also
27

on

what

it

does

not

say.”)

(citations omitted).

Together, the opinions of Drs. Gomez and

Dowling support the ALJ’s RFC finding.
The

ALJ’s

RFC

determination

is

also

substantial evidence from the medical records.

supported

by

The neurological

examination conducted by Dr. Gomez was normal and showed full
motor

strength,

deficits.

equal

deep

(R. 263.)

Dr. Strasser
following

in

reflexes,

and

no

sensory

At the time of his final visit with

February

problems:

tendon

2013,

mild

Plaintiff

muscle

exhibited

spasms

in

the

only
neck

the
and

shoulders, normal cervical range of motion, mild loss of lumbar
flexion,

no

gait

changes,

negative

negative straight-leg raise.
that

final

visit,

Plaintiff

weights without pain.

cervical

(R. 267.)
was

(R. 267.)

able

compression,

and

Also at the time of
to

squat

and

pick

up

While Plaintiff cites medical

records to the contrary, the Court notes that these citations
come

from

the

medical

tests

Plaintiff’s July 2011 accident.

that

were

conducted

soon

(See Pl.’s Br. at 5.)

after

The rest

of the medical records are consistent with Plaintiff’s gradual
improvement in the years since his accident.
In

his

opposition,

Plaintiff

argues

that

overstated Plaintiff’s vocational factors at step five.
Br. at 11–14.)

the

ALJ

(Pl.’s

Here, the ALJ found that Plaintiff “has at least

a high school education and is able to communicate in English.”
(R. 21.)

Plaintiff claims that he has a marginal education and
28

a limited grasp on the English language.

(Pl.’s Br. at 14.)

However, these arguments contradict the evidence in the record.
Although Plaintiff states that he spoke and read “[v]ery little”
English,

he

conceded

that

he

passed

citizenship examination in English.

the

United

(R. 34–35.)

States

Therefore,

this argument is meritless, and the Court finds that the ALJ’s
RFC determination is supported by substantial evidence.
2.

Subjective Complaints

Plaintiff also challenges the ALJ’s determination that
his statements about the intensity, persistence, and effects of
his symptoms were “not entirely credible.”

(R. 20.) For the

following reasons, however, the Court finds no error in the
ALJ’s credibility determination.
The
element

of

Second

pain

is

Circuit
an

important

determining disability.”
(2d

Cir.

evaluate

1984).
the

However,

credibility

has

held

that

factor

to

“the
be

subjective

considered

in

Mimms v. Heckler, 750 F.2d 180, 185
“[t]he
of

a

ALJ

has

claimant

and

the
to

discretion

to

arrive

an

at

independent judgment, in light of medical findings and other
evidence, regarding the true extent of the pain alleged by the
claimant.”

McLaughlin v. Sec’y of Health, Educ. & Welfare, 612

F.2d 701, 705 (2d Cir. 1980) (alteration in original) (internal
quotation marks and citation omitted).

The Court will uphold an

ALJ’s decision discounting a plaintiff’s subjective complaints
29

of pain as long as the decision is supported by substantial
evidence.

See Aponte v. Sec’y, Dep’t of Health & Human Servs.,

728 F.2d 588, 591–92 (2d Cir. 1984).
Plaintiff

argues

that

the

ALJ’s

failure

to

specifically discuss all seven credibility factors under SSR 967p requires remand.

(Pl.’s Br. at 11–14.)

Yet the ALJ is not

required to discuss all seven credibility factors as long as she
provides reasons for her credibility determination.

See, e.g.,

Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir. 2013) (summary
order).

And, as illustrated above, the ALJ did provide reasons

for her determination.
The
Golpariani
Strasser

(R. 20.)

medical

also
noted

evidence

undermined

provided

that

by

Plaintiff’s

Plaintiff

had

Drs.

Strasser

and

credibility.
and

less

Dr.

need

for

(R. 267.)

At

chiropractic care as his treatment progressed.

less

the time of his final visit with Dr. Strasser, in February 2013,
Plaintiff
spasms

in

exhibited
the

neck

only
and

the

following

shoulders;

problems:

normal

mild

cervical

muscle

range

of

motion; mild loss of lumbar flexion; no gait changes; negative
cervical

compression;

and

negative

straight-leg

(R. 267.)

Also at the time of that final visit, Plaintiff was

able to squat and pick up weights without pain.

raise.

(R. 267.)

Similarly, Dr. Golpariani’s notes show that over the course of
his

treatment

Plaintiff

went

from
30

requiring

pain-relieving

injections to managing his pain with medication alone.

(R. 306,

310–311.)
Plaintiff’s

statements

which damaged his credibility.

were

at

times

inconsistent,

See SSR 96-7p, 1996 WL 374186,

at *5 (explaining that one strong indication of credibility is
the consistency of the claimant’s statements, both internally
and

with

other

information

in

the

record).

During

a

psychological examination, Plaintiff stated that he was afraid
to drive after his July 2011 accident, (R. 256); yet before the
ALJ,

he

testified

that

he

continued

to

drive.

(R.

34.)

Plaintiff testified before the ALJ that he did not perform any
childcare

for

evaluation,
children,

he

his

four

told

albeit

a

with

children,

doctor

but

that

he

difficulty.

during
did

a

take

psychiatric
care

(R. 275.)

of

his

Moreover,

Plaintiff told the ALJ that he could not work in part because
his medications have the side effect of making him tired, (R.
43, 47), but told Dr. Golpariani that his medications were not
giving

him

negative

side

effects.

(R. 313.)

Finally,

Dr.

McWilliams seemed to suspect Plaintiff of drug-seeking behavior,
noting in his report that he declined to prescribe new pain
medication

after

different

medical

(R. 292–93.)

Plaintiff
providers

showed
and

him

three

“medications
different

from

area

five

codes.”

For these reasons, Plaintiff’s argument that the

ALJ erred in evaluating his credibility is meritless.
31

None of the decisions Plaintiff cites conflict with
this outcome.

First, Plaintiff relies on Hamlin v. Barnhart,

365 F.3d 1208 (10th Cir. 2004), for the proposition that “a
claimant’s

ability

living

not

is

at 11.)

to

engage

evidence

of

in

an

minimal

ability

activities

to

work.”

of

(Pl.’s

Br.

But in that case, the ALJ observed that the claimant

drove infrequently and performed no house or yard work.
365

daily

F.3d

benefits

at

1221.

because

according

to

Nevertheless,
the

the

claimant

ALJ,

the

ALJ

watched

required

denied

Hamlin,

disability

television,

“significant

which,

attention

and

concentration . . . inconsistent with severe and intractable
pain.”

Id.

(internal

ellipsis in original).

quotation

marks

and

citation

This case is much different.

omitted;
Plaintiff

admitted that he was able to drive locally, take care of his
personal needs, and socialize with friends and family, among
other things.

(R. 34, 43, 45, 275.)

But because of his alleged

pain, he did not cook, clean, shop, or do laundry.

(R. 261.)

The

standard,

ALJ

properly

used

an

all-things-considered

reviewing what Plaintiff could and could not do.
21.)

Critically,

the

ALJ

factored

in

improvement, as noted in doctor’s reports.
11.)

(R. 17, 20,

Plaintiff’s

gradual

(R. 289, 306, 310–

Plaintiff accordingly errs in suggesting that the ALJ

highlighted

some

evidence

and

at 11.)
32

ignored

others.

(Pl.’s

Br.

Second,

Plaintiff

asserts

that

the

ALJ

erred

by

“pick[ing] and choos[ing] among the evidence, relying upon only
that

which

support[ed]

her

ultimate

decision.”

(Pl.’s

Br.

at 11); see also Gecevic v. Sec’y of Health & Human Servs., 882
F. Supp. 278, 286 (E.D.N.Y. 1995); Fiorello v. Heckler, 725
F.2d 174, 176 (2d Cir. 1983)).

Not so.

It is well established

that “an ALJ is not required to ‘reconcile every conflicting
shred of medical testimony.’”
2d

87,

90

(W.D.N.Y.

2000)

See Falcon v. Apfel, 88 F. Supp.

(quoting

2d 122, 124 (2d Cir. 1981)).

Miles

v.

Harris,

645

F.

Indeed, as long as the record

allows the Court “to glean the rationale of an ALJ’s decision,”
the ALJ need not discuss “every item of testimony presented to
him”

nor

“explain[]

why

he

considered

particular

evidence

unpersuasive or insufficient to lead him to a conclusion of
disability.”

Mongeur, 722 F.2d at 1040.

Here, the ALJ has

repeatedly stressed that her determination was made in light of
all of the evidence available to her.
In

sum,

Plaintiff’s

case

(R. 17, 20, 21.)
hinges

on

the

same

basic

assertion: The ALJ should have weighed the evidence differently.
But that is not the governing standard.

The Court’s review is

“limited to determining whether the [Commissioner’s] conclusions
were supported by substantial evidence.”

Lamay v. Comm’r of

Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009).

Under this “very

deferential

must

standard

of

review,”
33

this

Court

accept

the

ALJ’s findings of fact unless “‘a reasonable factfinder would
have to conclude otherwise.’”

Brault v. Social Sec. Admin.,

Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (quoting Warren v.
Shalala,

29

F.3d

1287,

original) (per curiam).
this high hurdle.

1290

(8th

Cir.

1994))

(emphasis

in

Plaintiff’s arguments have not cleared

Accordingly, the Commissioner’s motion is

granted, and Plaintiff’s motion is denied.
CONCLUSION
For

the

foregoing

reasons,

the

Commissioner’s

motion

(Docket Entry 12) is GRANTED, and Plaintiff’s motion (Docket
Entry 9) 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:

August
15 , 2016
Central Islip, New York

34