Hinton v. Colvin
MEMORANDUM of Decision & Order: SO ORDERED that the Plaintiff's motion for a judgment on the pleadings pursuant to Rule 12(c) is denied in its entirety; and the Commissioner's motion for a judgment on the pleadings dismissing the complaint pursuant to Rule 12(c) is granted in its entirety. The Clerk of the Court is respectfully directed to close this case. Ordered by Judge Arthur D. Spatt on 1/12/2018. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARGARET E. HINTON,
DECISION & ORDER
-againstNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
1/12/2018 11:38 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Law Offices of Harry J. Binder and Charles E. Binder, P.C.
Attorneys for the Plaintiff
60 East 42nd Street
New York, NY 10165
Charles E. Binder, Esq., Of Counsel
United States Attorney’s Office for the Eastern District of New York
Attorneys for the Defendant
271 Cadman Plaza East
Brooklyn, NY 11201
Arthur Swerdloff, Assistant United States Attorney
Melanie Dyani Hendry, Assistant United States Attorney
SPATT, District Judge:
The Plaintiff Margaret E. Hinton (the “Plaintiff” or the “claimant”) commenced this civil
action pursuant to the Social Security Act, 42 U.S.C. § 405 et seq. (the “Act”), challenging a final
determination by the Defendant, Nancy A. Berryhill (the “Defendant” or the “Commissioner”),
the acting commissioner of the Social Security Administration (the “Administration”) at the time
of filing, that she is ineligible to receive Social Security disability insurance benefits.
The Court notes that the Plaintiff originally named Carolyn W. Colvin as the Defendant in
this action, but by operation of law, the present Acting Commissioner, Nancy A. Berryhill is
“automatically substituted as a party.” FED. R. CIV. P. 25(d); see also 45 U.S.C. §405(g) (“Any
action instituted in accordance with this subsection shall survive notwithstanding any change in
the person occupying the office of Commissioner of Social Security or any vacancy in such
Presently before the Court are the parties’ cross motions, pursuant to Federal Rule of Civil
Procedure (“FED. R. CIV. P.” or “Rule”) 12(c) for a judgment on the pleadings. Although the ALJ
found that the Plaintiff was disabled as of August 3, 2014, the Plaintiff asks this Court to find that
the ALJ erred in failing to find that she was disabled before that date. For the reasons that follow,
the Plaintiff’s motion is denied, and the Commissioner’s motion is granted.
A. The Relevant Facts
While the Plaintiff applied for disability benefits based on a combination of mental and
physical impairments, the Plaintiff does not dispute the ALJ’s findings related to her physical
conditions. Therefore, the Court will only address those facts that are related to the Plaintiff’s
1. The Plaintiff’s Testimony
The Plaintiff was 47 years old at the time of her alleged onset. The Plaintiff lives with her
husband and one of their adult daughters. She has a high school diploma and took some college
classes. She last worked in December 2011, as a dispatch supervisor for United Parcel Service.
The Plaintiff drives about once a week, and her daughter usually drives her to medical
appointments. The Plaintiff’s husband handles all of their finances. The Plaintiff bathes herself,
and makes simple meals. However, she only goes shopping with her daughter, and her daughter
does most of the cooking, laundry, and household cleaning. The Plaintiff asserted that if she
spends more than 30 minutes at the grocery store, she has a panic attack. Her only hobby is
watching television. She has one friend with whom she communicates on Facebook.
The Plaintiff testified that her depression was “really bad” at the time, and has affected her
ability to function, sleep without medication, and eat. She has panic attacks at least five times a
day, and they last for fifteen to forty-five minutes. She cannot concentrate long enough to follow
instructions, and feels overwhelmed “all the time.”
2. The Relevant Medical Evidence
a. Pederson-Krag Center
On February 9, 2012, the Plaintiff was admitted to the Pederson-Krag Center for outpatient
mental health treatment. On February 14, 2012, Dr. Yuan-Fang Chen evaluated the Plaintiff. The
Plaintiff had fair eye contact; an anxious mood with congruent affect; slow speech; and impaired
insight and judgment. Dr. Chen diagnosed major depressive disorder and assessed a global
assessment of functioning (“GAF”) of 45. She was seen again on February 29, 2012, but did not
respond to phone calls or letters after that date. She was discharged from the program on March
b. Dr. Renae Ferguson, the Plaintiff’s Treating Physician
Dr. Renae Ferguson (“Dr. Ferguson”), who is a psychiatrist, began treating the Plaintiff on
September 13, 2012. The Plaintiff informed Dr. Ferguson that she had been hospitalized twice
earlier in the year for two attempted suicides. The Plaintiff described symptoms of insomnia, guilt,
fatigue, feelings of hopelessness and helplessness, weight gain, feelings of worthlessness, and
transient suicidal ideation.
She also reported worrying about “everything.”
diagnosed the Plaintiff with major depressive disorder, recurrent, and severe, without psychotic
features. The Plaintiff’s GAF score was 55. Dr. Ferguson prescribed Trazodone, Klonopin, and
During follow-up examinations in October 2012, and January 2013, the Plaintiff told Dr.
Ferguson that she was feeling better due to medication. On October 11, 2012, Dr. Ferguson noted
that the Plaintiff had a brighter affect; good insight and judgment; and no thought disorder. On
January 9, 2013, Dr. Ferguson assessed that the Plaintiff had a calm affect, good insight and
judgment, and no thought disorder.
On February 5, 2013, Dr. Ferguson completed a medical questionnaire. She said that she
had treated the Plaintiff every one to three months since first seeing her in September. The
Plaintiff’s symptoms at the time consisted of depressed mood, anhedonia (inability to feel
pleasure), hopelessness, worthlessness, decreased concentration and energy, and suicidal
ideations. The Plaintiff was taking Vibrydd, Trazadone, and Klonopin. At the time, Dr. Ferguson
stated that she expected the Plaintiff’s condition to last one year. She described the Plaintiff’s
attitude, appearance, and behavior as friendly, cooperative, well-groomed, and calm; said that she
had spontaneous speech with a normal volume, rate, and pattern; and that she did not have thought
or perception issues. The Plaintiff’s mood and affect was “better” with treatment, but still
depressed and tired. The plaintiff’s orientation, memory, and information were within normal
limits. Her cognition was grossly intact. Her insight and judgment were good. Dr. Ferguson
stated that she was unable to evaluate the Plaintiff’s ability to function in a work setting, ability to
adapt, or her ability to interact socially. She assessed that the Plaintiff did not have any limitations
regarding understanding and memory; and that the Plaintiff had some limitations, “maybe”,
regarding sustained concentration and persistence because the Plaintiff was so overwhelmed at
home and had financial issues.
On March 10, 2013, the Plaintiff said that multiple problems in her family were causing
her stress. The Plaintiff again noted that she was feeling better with medication. Dr. Ferguson’s
diagnosis remained unchanged. She noted that the Plaintiff was well-groomed, oriented, had good
insight and judgment, displayed a calm affect, and did not have thought disorder.
On August 21, 2013, the Plaintiff complained that she was experiencing more frequent
panic attacks, and that certain medication was keeping her up all night. The Plaintiff further stated
that she had been twitching, and was experiencing feelings of depression, anhedonia, hopelessness,
and poor appetite. A mental status exam revealed that the Plaintiff was tremulous yet oriented;
her cognition was grossly intact; she had a good rate and rhythm of speech although it was
monotone; calm affect; no thought disorder; and had good insight and judgment. The Plaintiff
said that she was feeling “terrible.”
On July 10, 2014, the Plaintiff stated that she was experiencing agoraphobia (fear of social
interaction), anhedonia, hopelessness, and helplessness. She noted that a change to Zoloft had
helped her anxiety and panic attacks. Dr. Ferguson again observed her to be tremulous.
Plaintiff said that she felt “doom and gloom all the time now;” that she kept the apartment a mess
to avoid visitors; refused to shower so that she would not have to go out; and would shop in the
dark. Her mental status examination was the same as on August 21, 2013. Dr. Ferguson
specifically noted that the Plaintiff had a “calm affect even though at one point, she said she was
having a panic attack.” (R. at 331). The Plaintiff’s August 7, 2014 visit contained the same
verbatim mental status exam. The Plaintiff apparently told Dr. Ferguson on that date that she was
forgetful or blocking out chunks of time. However, she said that Xanax was helping her go outside.
On November 21, 2014, Dr. Ferguson completed a Mental Impairment Questionnaire. She
noted that she had seen the Plaintiff once a month since September of 2012. Her diagnosis was
that the Plaintiff suffered from major depressive disorder, recurrent without psychotic features,
and rule out panic disorder with agoraphobia. At the time, the Plaintiff was taking Zoloft, Buspar,
Trazadone, Xanax, and Propranolol. Dr. Ferguson expected that the Plaintiff’s diagnoses and
limitations would last at least 12 months. Dr. Ferguson noted that the Plaintiff displayed a
depressed mood; persistent or generalized anxiety; anhedonia; feelings of guilt, worthlessness,
hopelessness, disappointment, and being overwhelmed. The Plaintiff had motor tension, but
displayed decreased energy and appetite. As to her capacity for attention, Dr. Ferguson noted that
the Plaintiff had difficulty thinking or concentrating; was easily distracted; and had poor immediate
and recent memory. Finally, she noted that the Plaintiff experiences recurrent panic attacks and
bouts of insomnia. While the Plaintiff did not have a low I.Q. or reduced intellectual functioning,
Dr. Ferguson stated that she experiences episodes of decompensation or deterioration in a worklike setting which causes her to withdraw. Those periods were a result of her anxiety and
As to the Plaintiff’s limitations, Dr. Ferguson remarked that she was markedly limited in
her ability to remember locations and work-like procedures; understand, remember, and carry out
detailed instructions; maintain attention and concentration for extended periods; perform activities
within a schedule and consistently be punctual; sustain ordinary routine without supervision; work
in coordination with or in proximity to others without being distracted by them; make simple workrelated decisions; complete a workday without interruptions from psychological symptoms;
perform at a consistent pace without rest periods of unreasonable length or frequency; interact
appropriately with the public; maintain socially appropriate behavior without withdrawing;
respond appropriately to workplace changes; be aware of hazards and take appropriate precautions;
travel to unfamiliar places or use public transportation; set realistic goals; and, make plans
independently. This meant that the Plaintiff’s symptoms were expected to interfere with her
abilities to perform those mental activities for more than two-thirds of an eight-hour workday.
c. Dr. R. Lopez., State Agency Psychological Consultant
On May 6, 2013, Dr. R. Lopez, a state agency psychological consultant, completed a
Psychiatric Review Technique form for the Administration. In it, Dr. Lopez stated that the Plaintiff
had mild restrictions of her activities of daily living; moderate difficulties in maintaining social
functioning; no difficulties in maintaining concentration, persistence, or pace; and no episodes of
decompensation of extended duration. He further opined that she was capable of following
supervision; relating appropriately to coworkers; and performing substantial gainful activity.
B. The Relevant Procedural History
On January 3, 2013, the Plaintiff filed an application for Social Security Disability benefits.
She alleged that her disability began on December 6, 2011. Her application was denied, and she
requested a hearing before an administrative law judge.
On December 2, 2014, the Plaintiff appeared, with counsel, before Administrative Law
Judge Jacqueline Haber Lamkay (the “ALJ”).
On December 12, 2014, the ALJ issued a written decision in which she found that that the
Plaintiff was disabled as of August 8, 2014, but not before that date. Specifically, the ALJ found
that at all times since her onset, the Plaintiff has suffered from the severe impairments of lumbar
degenerative disc disease; osteoarthritis of the right knee status-post meniscectomy; depression;
anxiety; and panic attacks. Despite those severe impairments, the ALJ found that the Plaintiff
possessed the residual functional capacity (“RFC”) to perform sedentary work as defined in 20
C.F.F. § 404.1567(a), except that the Plaintiff could never climb ladders, ropes, or scaffolds; could
occasionally climb ramps and stairs, balance, stoop, and crouch; must avoid concentrated exposure
to extreme cold and hazards such as dangerous moving machinery and unprotected heights; is
limited to occupations that can be performed using a cane for ambulation; is limited to simple,
routine, and repetitive tasks in a low stress work setting defined as not requiring an assembly line
pace with only occasional decision-making required and can only handle occasional changes in
the work setting; can handle no more than occasional interactions with the public, co-workers, and
supervisors; and would need a brief, one to two-minute changes of position every one-half hour.
The ALJ found that with this RFC, the Plaintiff could not perform her past relevant work as a
shipping supervisor; insurance claims processor; fast food worker; or cashier. With the assistance
of the testifying vocational expert, the ALJ found that there was a significant number of jobs that
the Plaintiff could have performed before August 8, 2014. However, as of August 8, 2014, due to
the Plaintiff’s age, there were not any jobs that existed in significant numbers in the national
economy that the Plaintiff could perform. The ALJ therefore determined that the Plaintiff was
eligible for Social Security disability benefits as of August 8, 2014.
The Plaintiff asked the Appeals Council to review the ALJ’s decision.
On February 11, 2016, the Appeals Council denied the Plaintiff’s request for review, and
the ALJ’s decision became the final decision of the Commissioner.
On April 11, 2016, the Plaintiff filed the instant complaint.
A. The Applicable Law
While the Act was amended effective March 27, 2017, the Court reviews the ALJ’s
decision under the earlier regulations because the Plaintiff’s application was filed before the new
regulations went into effect. See Lowry v. Astrue, 474 F. App’x 801, 805 n.2 (2d Cir. 2012)
(applying and referencing version of regulation in effect when the ALJ adjudicated plaintiff’s
claim); see also Michael Barca, Plaintiff, v. Comm’r of Soc. Sec., Defendant., No. 2:16-CV-187,
2017 WL 3396416, at *8 (D. Vt. Aug. 8, 2017) (applying the regulations in effect when the plaintiff
filed his application); Alvarez v. Comm’r of Soc. Sec., No. 14CV3542(MKB), 2015 WL 5657389,
at *11 n.26 (E.D.N.Y. Sept. 23, 2015) (“[T]he Court considers the ALJ’s decision in light of the
regulation in effect at the time of the decision.” (citing Lowry, 474 F. App’x at 805 n.2));
The Act defines the term “disability” to mean an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment . . . which
has lasted or can be expected to last for a continuous period of not less than 12 months.” Burgess
v. Astrue, 537 F.3d 117, 119 (2d Cir. 2008) (quoting 42 U.S.C. § 423(d)(1)(A)) (quotation marks
omitted). In addition, “[t]he impairment must be of ‘such severity that [the 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.’” Shaw
v. Chater, 221 F.3d 126, 131–32 (2d Cir. 2000) (quoting 42 U.S.C. § 423(d)(2)(A)).
In determining whether a claimant is disabled, the Commissioner is required to apply the
five-step sequential process set forth in 20 C.F.R. § 404.1520. Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999). The claimant bears the burden of proving the first four steps, but then the burden
shifts to the Commission at the fifth step. Rosa, 168 F.3d at 77. First, the Commissioner considers
whether the claimant is presently working in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i); Rosa, 168 F.3d at 77. If the claimant is not so engaged, the Commissioner next
considers whether the claimant has a “severe impairment” that significantly limits her physical or
mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii); Rosa, 168 F.3d at 77. If
the severity requirement is met, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment that is listed in Appendix 1 of the regulations, or is equal to a listed
impairment. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1; Rosa,
168 F.3d at 77. If the claimant has such an impairment, there will be a finding of disability. If
not, the fourth inquiry is to determine whether, despite the claimant’s severe impairment, the
claimant’s residual functional capacity allows the claimant to perform his or her past work. 20
C.F.R. § 404.1520(a)(4)(iv); Rosa, 168 F.3d at 77. Finally, if a claimant is unable to perform past
work, the Commissioner then determines whether there is other work, such as “light work.” that
the claimant could perform, taking into account, inter alia, the claimant’s residual functional
capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v); Rosa, 168 F.3d at
B. The Standard of Review
“Judicial review of the denial of disability benefits is narrow” and “[t]he Court will set
aside the Commissioner’s conclusions only if they are not supported by substantial evidence in the
record as a whole or are based on an erroneous legal standard.” Koffsky v. Apfel, 26 F. Supp. 2d
475, 478 (E.D.N.Y. 1998) (Spatt, J.) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)).
Thus, “the reviewing court does not decide the case de novo.” Pereira v. Astrue, 279
F.R.D. 201, 205 (E.D.N.Y. 2010). Rather, “the findings of the Commissioner as to any fact, if
supported by substantial evidence, are conclusive,” id., and therefore, the relevant question is not
“whether there is substantial evidence to support the [claimant’s] view”; instead, the Court “must
decide whether substantial evidence supports the ALJ’s decision. ” Bonet v. Colvin, 523 F. App’x
58, 59 (2d Cir. 2013) (emphasis in original). In this way, the “substantial evidence” standard is
“very deferential” to the Commissioner, and allows courts to reject the ALJ’s findings “only if a
reasonable factfinder would have to conclude otherwise.” Brault v. SSA, 683 F.3d 443, 448 (2d
Cir. 2012) (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994) (emphasis in original)).
This deferential standard applies not only to factual determinations, but also to inferences and
conclusions drawn from such facts.” Pena v. Barnhart, No. 01-cv-502, 2002 U.S. Dist. LEXIS
21427, at *20 (S.D.N.Y. Oct. 29, 2002) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.
In this context, “[s]ubstantial evidence means ‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Burgess, 537 F.3d at 128 (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). An
ALJ’s findings may properly rest on substantial evidence even where he or she fails to “recite
every piece of evidence that contributed to the decision, so long as the record ‘permits [the Court]
to glean the rationale of [his or her] decision.’” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir.
2013) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). This remains true “even
if contrary evidence exists.” Mackey v. Barnhart, 306 F. Supp. 2d 337, 340 (E.D.N.Y. 2004)
(citing DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998) (holding that an ALJ’s decision
may be affirmed where there is substantial evidence for both sides)).
The Court is prohibited from substituting its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review. See Koffsky, 26
F. Supp. at 478 (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).
C. Application to the Facts
Although the ALJ found that the Plaintiff was disabled, the Plaintiff contends that the ALJ
erred. Specifically, she states that the ALJ erred because she should have been found disabled as
of December 6, 2011, instead of August 3, 2014.
The Plaintiff asks the Court to find that the ALJ erred in applying the law and that her
decision is not supported by substantial evidence. Specifically, the Plaintiff contends that the ALJ
erred in failing to properly apply the treating physician rule; that her RFC assessment is not
supported by substantial evidence; and that the ALJ erred in evaluating the Plaintiff’s credibility.
The Commissioner opposes each of these points.
1. As to Whether the ALJ Properly Applied the Treating Physician Rule and
Determined the Plaintiff’s RFC
As stated above, the ALJ found that despite her severe impairments, the Plaintiff possessed
the RFC to perform sedentary work with numerous limitations listed above. In coming to this
conclusion, the ALJ relied, in part, on the medical opinion of the Plaintiff’s treating physician, Dr.
Ferguson. The ALJ afforded great weight to Dr. Ferguson’s opinion. He did not give any reasons
for affording Dr. Ferguson’s opinion less than controlling weight. The Court finds that this was
Under 20 C.F.R. § 404.1527(c) ALJs are required to weigh and evaluate “every medical
opinion.” When assigning weight to a medical opinion, ALJs consider the following factors: the
nature of the examining relationship; whether or not the medical opinion was made by a treating
source; the length of treatment relationship and the frequency of examination; supportability;
consistency; specialization; and “other factors . . . which tend to support or contradict the opinion.”
20 C.F.R. § 404.1527(c); see also Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).
Controlling weight can be given to “a treating source’s medical opinion on the issue(s) of
the nature and severity” of the claimant’s impairments if the medical opinion is “well supported
by . . . other substantial evidence . . . .” 20 C.F.R. § 404.1527(c)(2). When a treating source’s
medical opinion is not supported by substantial evidence, the opinion will not be afforded
controlling weight. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Where an ALJ declines to
give controlling weight to a treating physician’s opinion, she must provide “good reasons” for
doing so, and must consider the above factors in determining the weight to afford to the opinion.
20 C.F.R. § 404.1527(c)(2) (“When we do not give the treating source’s medical opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section,
as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight
to give the medical opinion. We will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s medical opinion.”).
While he did not ascribe controlling weight to Dr. Ferguson’s medical opinion, the ALJ
did bestow great weight on her opinion. In reaching his RFC determination, he noted that the
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her symptoms
were not entirely credible. Further, while he assigned only limited weight to Dr. Lopez’s opinion,
he did not assign “no weight” to it, and therefore utilized it in reaching his RFC determination. As
he stated at the conclusion of his opinion, “the above [RFC] assessment is supported by the
consultative examination, the treatment record from New York Pain Consultants and psychiatrist
Dr. Ferguson.” (R. at 30). Therefore, the ALJ gave good reasons for assigning great weight to the
treating physician’s opinion.
As to the Plaintiff’s credibility, the ALJ noted that the Plaintiff was laid off in December
2011. An ALJ is permitted to consider a Plaintiff’s work history. See 20 C.F.R. § 404.1529
(stating that the Administration will consider, inter alia, daily activities and medical history). The
Plaintiff told an orthopedist on March 14, 2013 that she was able to cook, do laundry, shop, shower,
bathe, and dress herself. The Plaintiff told Dr. Ferguson that she even cares for her husband, who
is home-bound as a result of illness. These activities of daily living further supported the ALJ’s
RFC determination, as well as his decision to afford less than controlling weight to Dr. Ferguson’s
opinion. Lewis v. Colvin, 548 F. App’x 675, 677–78 (2d Cir. 2013) (“[T]he ALJ’s determination
that [the plaintiff] could perform light work is supported by [the doctor]’s assessment of mild
limitations for prolonged sitting, standing, and walking, and direction that Lewis should avoid
heavy lifting, and carrying. It is further supported by evidence in the record regarding Lewis's daily
activity.” (internal citations to the record and quotation marks omitted)); Cichocki, 729 F.3d at 178
(finding that the ALJ properly relied on the claimant’s reported daily activities, including walking
her dogs and cleaning, which were consistent with the capacity to perform light work); Poupore
v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (observing that the claimant’s varied activities,
including childcare, vacuuming, dishwashing, occasional driving, and using the computer,
indicated that the claimant’s allegations of disabling limitations were not fully credible).
The Plaintiff’s credibility was further undermined by Dr. Ferguson’s own treatment notes.
On multiple dates, she noted that the Plaintiff had good insight and judgment; that her cognition
was grossly intact; she displayed no thought disorder; and had a calm affect even when the Plaintiff
claimed to be experiencing panic attacks. Of importance, in her assessment on February 5, 2013,
she noted that the Plaintiff’s orientation, memory, and information were within normal limits. In
addition, the Plaintiff continually told Dr. Ferguson that the medication made her feel better.
Therefore, Dr. Ferguson’s treatment notes undermined her opinion and supported the ALJ’s RFC
Courts have consistently held that an ALJ is entitled to discount a treating physician’s
opinion where it is not fully supported by the physician’s treatment notes. See Monroe v. Comm’r
of Soc. Sec., 676 F. App’x 5, 7–8 (2d Cir. 2017) (summary order) (holding that a court can give
less weight to a treating source’s medical opinion where the treatment notes contradict the
opinion); Cichocki, 534 F. App’x at 75 (holding that the ALJ was not required to give controlling
weight to treating physician’s medical opinion where the treatment notes contradicted that
opinion); Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013) (summary order) (holding that ALJ
did not need to acquire a medical source statement from the treating physician when the ALJ had
all of the treatment notes from the Plaintiff’s treating physicians).
Taking all of these factors into account, the ALJ assessed an RFC that was less restrictive
than Dr. Ferguson found. Determining a claimant’s RFC is the sole province of an ALJ. See 20
C.F.R. § 404.1546(c) (“If your case is at the administrative law judge hearing level . . . , the
administrative law judge . . . is responsible for assessing your residual functional capacity.”).
While an RFC determination is, to a certain extent, a medical determination, see Hilsdorf v.
Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 347 (E.D.N.Y. 2010), the ultimate RFC determination
is left to the ALJ, 20 C.F.R. § 404.1546(c).
Consequently, the ALJ did not commit error in assigning an RFC to the Plaintiff that did
not precisely align with any doctor’s RFC assessment. See Matta v. Astrue, 508 F. App’x 53, 56
(2d Cir. 2013) (summary order) (“Although the ALJ’s conclusion may not perfectly correspond
with any of the opinions of medical sources cited in his decision, he was entitled to weigh all of
the evidence available to make an RFC finding that was consistent with the record as a whole.”);
see also 20 C.F.R. § 404.1545(a)(1) (stating that the Commissioner will “assess [a claimant’s]
residual functional capacity based on all the relevant evidence in [the claimant’s] case record.”
Therefore, the ALJ did not err when he assigned great weight to the treating physician’s
opinion, and his RFC determination was supported by substantial evidence. Accordingly, the
Plaintiff’s motion for a judgment on the pleadings based on those issues is denied.
2. As to Whether the ALJ Properly Evaluated the Plaintiff’s Credibility
The Plaintiff also contends that the ALJ failed to properly evaluate her credibility because
he summarily found that her complaints were not credible using boilerplate language. The Court
finds that the ALJ properly evaluated the Plaintiff’s credibility.
“It must be emphasized that ‘it is the function of the Commissioner, and not a reviewing
court, to pass upon the credibility of witnesses and to set forth clearly its findings which form the
basis for its decision.’” Saviano v. Chater, 956 F. Supp. 1061, 1071 (E.D.N.Y. 1997), aff’d, 152
F.3d 920 (2d Cir. 1998) (Spatt, J.) (quoting Stupakevich v. Chater, 907 F. Supp. 632, 637
(E.D.N.Y. 1995)); see also Aponte v. Sec’y, Dep’t of Health and Human Serv., 728 F.2d 588, 591
(2d Cir. 1984) (“It is the function of the [Commissioner], not [the reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.” (internal
quotation and editing marks and citation omitted)).
The plaintiff must bolster complaints of pain by demonstrating, through medical findings,
that an underlying condition does exist and that it would be reasonably expected to produce the
symptomatology alleged. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1529(b); 416.929(b);
Social Security Ruling (“SSR”) 88–13; Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983).
The ALJ found that there was an underlying condition, but did not believe that the condition was
as severe as the Plaintiff claims.
If the claimant’s symptoms indicate a more serious problem than is established by the
medical evidence, other factors such as the claimant’s daily activities and the location, duration,
frequency, and intensity of the pain should be considered. See 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3); SSR 88–13. As stated above, the medical evidence supported the ALJ’s finding
that the Plaintiff’s condition is not as severe as she claims. See Alcantara v. Astrue, 667
F. Supp. 2d 262, 276 (S.D.N.Y. 2009) (ALJ must take subjective complaints into account only “to
the extent that they are consistent with objective medical evidence”).
As the ALJ noted, the Plaintiff was “laid off” in December 2011, and the medical evidence
did not fully support her testimony about the frequency and duration of daily panic attacks. Indeed,
the Plaintiff’s own treating physician noted that the Plaintiff displayed a calm demeanor despite
her claim that she was experiencing a panic attack during an examination.
(R. at 331).
Furthermore, as discussed above, her reported activities of daily living belied her claims relating
to the persistence and intensity of her impairments. Therefore, the ALJ had reasons to doubt the
Plaintiff’s credibility. The Court finds that the ALJ’s decision was supported by substantial
Accordingly, the Plaintiff’s motion for a judgment on the pleadings based on the ALJ’s
evaluation of the Plaintiff’s credibility is denied.
For the reasons stated above, the Plaintiff’s motion for a judgment on the pleadings
pursuant to Rule 12(c) is denied in its entirety; and the Commissioner’s motion for a judgment on
the pleadings dismissing the complaint pursuant to Rule 12(c) is granted in its entirety.
The Clerk of the Court is respectfully directed to close this case.
Dated: Central Islip, New York
January 12, 2018
___/s/ Arthur D. Spatt___
ARTHUR D. SPATT
United States District Judge
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