Dowling v. Colvin et al
Filing
24
MEMORANDUM OF DECISION & ORDER - Accordingly, for the reasons stated above, the Plaintiff's 17 motion for judgment on the pleadings pursuant to Rule 12(c) is denied in its entirety, and the Defendant's 19 motion for judgment on the pleadings dismissing the complaint is granted. The Clerk of the Court is respectfully directed to close this case. It is SO ORDERED by Judge Arthur D. Spatt on 1/18/2018. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
KAREN GREEN DOWLING,
Plaintiff,
FILED
CLERK
12:22 pm, Jan 18, 2018
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
MEMORANDUM OF
DECISION & ORDER
16-cv-4784 (ADS)
-againstNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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APPEARANCES:
Sharmine Persuad
Attorney for the Plaintiff
P.O. Box 283
Massapequa, NY 11758
By:
Sharmine Persuad, 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
By:
Candace S. Appleton, Assistant United States Attorney
SPATT, District Judge:
On August 25, 2016, the plaintiff, Karen Green Dowling (“Dowling,” the “Plaintiff” or the
“Claimant”), commenced this appeal 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 Acting
Commissioner of the Social Security Administration (the “Defendant” or the “Commissioner”),
that she is ineligible to receive Social Security disability insurance benefits.
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. For the reasons
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that follow, the Plaintiff’s motion is denied in its entirety, and the Defendant’s motion is granted
in its entirety.
The Court notes that the Plaintiff’s briefing papers use footnotes, which are contrary to this
Court’s Individual Rule II.A. Notwithstanding these infractions, the Court will consider the
Plaintiff’s papers in rendering its decision. However, the Court advises the Plaintiff’s counsel that
any future filings that contain footnotes will not be considered by this Court.
I. BACKGROUND
On May 19, 2013, the Plaintiff applied for disability insurance benefits under the Act,
alleging that she has been disabled since April 30, 2013. The Plaintiff claims that she is disabled
due to neck and shoulder pain.
Her claim was denied on July 29, 2013, and she requested a hearing. The Plaintiff appeared
with counsel before Administrative Law Judge April M. Wexler (the “ALJ”) on September 15,
2014. On October 8, 2014, the ALJ issued a written decision in which she found that the Plaintiff
was not entitled to disability benefits under the Act.
The Plaintiff sought a review by the Appeals Council, which denied her request on July 18,
2016. The ALJ’s decision became the final decision of the Commissioner upon the Appeals
Council’s denial of the Plaintiff’s request for review.
On August 25, 2016, the Plaintiff filed the instant action. The parties submitted the matter
as fully briefed to the Court on May 8, 2017.
For purposes of these motions, familiarity with the underlying administrative record is
presumed. The Court's discussion of the evidence will be limited to the specific challenges and
responses presently raised by the Plaintiff and the Defendant. In this regard, references to the
record are denoted as “R.”
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II. DISCUSSION
A. The Standard For Benefits Under The Act
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 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). A person may only be disabled if his,
“impairments are of such severity that he is not only unable to do his previous work[,] but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 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 promulgated by the Social Security Administration, 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 the burden shifts to the Commissioner at the fifth step to
prove that the Claimant is capable of working. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008);
Rosa, 168 F.3d at 77. See also Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (“If the claimant
satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the
[Commissioner] to prove in the fifth step that the claimant is capable of working.”). “If at any
step a finding of disability or non-disability can be made, the [Social Security Administration] will
not review the claim further.” Barnhart v. Thomas, 540 U.S. 20, 24, 124 S. Ct. 376, 379, 157 L.
Ed. 2d 333 (2003).
Under the five-step sequential evaluation process, the decision-maker decides:
(1) whether the claimant is currently engaged in substantial gainful activity; (2)
whether the claimant has a severe impairment or combination of impairments; (3)
whether the impairment meets or equals the severity of the specified impairments
in the Listing of Impairments; (4) based on a “residual functional capacity”
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assessment, whether the claimant can perform any of his or her past relevant work
despite the impairment; and (5) whether there are significant numbers of jobs in the
national economy that the claimant can perform given the claimant’s residual
functional capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); 20 C.F.R. §§ 404.1520,
416.920. When conducting this analysis, the ALJ must consider the objective medical facts; the
diagnoses or medical opinions based on these facts; the subjective evidence of pain and disability;
and the claimant’s age, background, education and work experience. Mongeur v. Heckler, 722
F.2d 1033, 1037 (2d Cir. 1983) (per curiam).
B. The Standard Of Review
“Judicial review of the denial of disability benefits is narrow” as “[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, 179-81 (2d Cir. 1998));
accord Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater, 221 F.3d 126,
131 (2d Cir. 2000)); 42 U.S.C. § 504(g). See also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (“Where there is substantial evidence to support either position, the determination is one to
be made by the factfinder.”); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987) (describing
review of the Commissioner’s decision as a requiring “two levels of inquiry”). The ALJ is required
to set forth those crucial factors used to justify his or her findings with sufficient particularity to
allow the district court to make a determination regarding the existence of substantial evidence.
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Accordingly, “the reviewing court does not decide the case de novo.” Pereira v. Astrue,
279 F.R.D. 201, 205 (E.D.N.Y. 2010) (citing Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
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2004)). Rather, “the findings of the Commissioner as to any fact, if supported by substantial
evidence, are conclusive,” id. (citing 42 U.S.C. § 405(g)), and therefore, the relevant question is
not “whether there is substantial evidence supporting 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) (summary order) (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. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (per curiam)
(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 WL 31487903, at *7
(S.D.N.Y. Oct. 29, 2002) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)).
“Substantial 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 v. Astrue, 537
F.3d 117, 127-28 (2d Cir. 2008) (quoting Halloran, 362 F.3d at 31); accord Richardson v. Perales,
402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988). “To determine on appeal whether an ALJ’s findings are supported by
substantial evidence, a reviewing court considers the whole record, examining the evidence from
both sides, because an analysis of the substantiality of the evidence must also include that which
detracts from its weight.” Williams, 859 F.2d at 258 (citing Universal Camera Corp. v. NLRB,
340 U.S. 474, 488, 71 S. Ct. 456, 464, 95 L. Ed. 456 (1951)).
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
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Court] to glean the rationale of an ALJ’s decision.’” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d
Cir. 2013) (summary order) (quoting Mongeur, 722 F.2d at 1040). 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)).
The Court is prohibited from substituting its own judgment for that of the Commissioner,
even if it might understandably have reached a different result upon a de novo review. See
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982); Koffsky, 26 F. Supp. at 478 (quoting
Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).
C. Application To The Facts Of This Case
The Plaintiff contends that the ALJ erred in four ways: (1) the ALJ incorrectly assessed the
medical evidence in violation of the treating physician’s rule; (2) the ALJ improperly evaluated
the Plaintiff’s credibility; and (3) the ALJ did not meet her burden of establishing that there was
work in the national economy that the Plaintiff could perform. The Court will address each of
these issues in turn.
1. As To Whether The ALJ Followed The Treating Physician Rule
a. As To Whether The ALJ Properly Accorded “Little Weight” To Dr. Finuoli’s
Opinion
As mentioned above, the Plaintiff argues that the ALJ committed error by selectively citing
from the administrative record to conclude that Dr. Anthony Finuoli’s opinion was entitled to little
weigh in violation of the treating physician rule.
Under the treating physician rule, the opinion of a claimant’s treating physician as to the
nature and severity of the claimant’s impairments is given “controlling weight,” so long as 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.” Green-Younger v. Barnhart,
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335 F.3d 99, 106 (2d Cir. 2003) (quoting 20 C.F.R. § 404.1527(d)(2)); Bonneau v. Astrue, No.
5:13-cv-26, 2014 WL 31301, at *5 (D. Vt. Jan. 3, 2014). Although, the Court is generally required
to defer to the medical opinion of a treating physician, see Schisler v. Sullivan, 3 F.3d 563, 567-68
(2d Cir. 1993), those findings may not be accorded controlling weight if they are inconsistent with
other substantial evidence, including the opinions of other medical experts. Burgess, 537 F.3d at
128.
The ALJ must consider the following factors if it decides to afford less than controlling
weight to a treating physician’s opinion: “(1) the frequently, length, nature, and extent of treatment;
(2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with
the remaining medical evidence; and (4) whether the physician is a specialist.” Selian v. Astrue,
708 F.3d 409, 418 (2d Cir. 2013) (citing Burgess, 537 F.3d at 129).
In the Second Circuit, the ALJ is required to “give good reasons in [her] notice of
determination or decision for the weight [she] gives [a claimant’s] treating source’s opinion.”
Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (internal citations omitted). The
ALJ is not required to cite each factor explicitly in its decision, but must ensure it applies the
substance of the rule. Halloran, 362 F.3d at 32. The ALJ cannot substitute “[her] own assessment
of the relative merits of the objective evidence and subjective complaints for that of the treating
physician.” Garcia v. Barnhart, No. 01-cv-8300, 2003 WL 68040, at *7 (S.D.N.Y. Jan. 7, 2003).
It is entirely proper for the ALJ to only credit portions of medical source opinions, or weigh
different parts of the same opinion differently. Id; see also Veino v. Barnhart, 312 F.3d 578, 588
(2d Cir. 2002). However, when the ALJ uses a portion of a given opinion to support a finding,
while rejecting another portion of that opinion, the ALJ must have a sound reason for the
discrepancy. See Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (“Although we do not
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require that, in rejecting a claim of disability, an ALJ must reconcile explicitly every conflicting
shred of medical testimony, we cannot accept an unreasoned rejection of all the medical evidence
in the claimant’s favor.” (internal citations omitted)).
In the instant case, ALJ Wexler assigned “little weight” to the opinion of Dr. Finuoli. See
R. at 27-28. Anthony L. Finuoli, D.O. is an orthopedic surgeon and one of the Plaintiff’s treating
physicians. ALJ Wexler determined in relevant part that:
Little weight is given to the opinions of Dr. Finuoli, particularly because they are
inherently inconsistent, and also inconsistent with each other. Initially, at the
claimant’s alleged onset date in April 2013, Dr. Finuoli stated that the claimant
should be kept on restricted duty and in the alternative, should retire and never
perform the full duties of a police officer. In his report in February 2014, the doctor
again stated that the claimant should not perform the duties of a police officer and
should avoid vibration and jostling-type movements.
However, in a
contemporaneous report, Dr. Finuoli significantly restricted the claimant’s
functioning, even to the point that she should only work in an environment with
library-like quiet. There is nothing in his previous reports or treatment notes that
would indicate a need for such significant limitations. The diagnostic evidence
does not support these limitations, and there is an indication that the claimant’s
conditions improved with recent conservative treatment. Moreover, the doctor
placed these restrictions on the claimant as of August 2012, a time during which
she was performing light duty work as a police officer without any apparent
difficulty until her alleged onset date of April 30, 2013, nearly a year later. In
addition, the claimant’s own testimony indicates that she maintains a tolerance for
a greater level of activity than that assessed by Dr. Finuoli. The claimant stated
that she remains able to drive, performs chores around the house, goes out to dinner
with a friend and attends her daughter’s cheerleading events, which would likely
not be performed in a library quiet environment.
R. at 27-28. The Plaintiff takes issue with this portion of the ALJ’s ruling.
The Plaintiff claims that Dr. Finuoli’s opinions were improperly accorded an incorrect
weight. The decision to assign controlling weight to a treating physician’s opinion is proper as
long as it is supported by medically acceptable diagnostic techniques and is consistent with
substantial evidence in the record. Here, the ALJ properly accorded the opinions of Dr. Finuoli
“limited weight.”
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The ALJ gave limited weight to the opinions of Dr. Finuoli primarily for two reasons. First,
the opinions were internally inconsistent and inconsistent with the balance of the medical evidence.
See R. at 27. In a particularly glaring instance, Dr. Finuoli opined that the Plaintiff’s condition
required a noise level akin to a library. R. at 391.
This was a proper application of the third factor, the medical opinion’s consistency with
the record as a whole, to the instant facts. See 20 C.F.R. § 404.1527(c)(3)-(4) (“The more a medical
source presents relevant evidence to support a medical opinion, particularly medical signs and
laboratory findings, the more weight we will give that medical opinion. … Generally, the more
consistent a medical opinion is with the record as a whole, the more weight we will give to that
medical opinion.”). This determination by the ALJ is supported by substantial evidence, as an
evaluation of the record reveals inconsistencies with other aspects of the administrative record.
See, e.g., R. at 27.
This was also a proper application of the second factor, “the amount of medical evidence
supporting the opinion.” Selian, 708 F.3d at 418; accord Greek v. Colvin, 802 F.3d 370, 375 (2d
Cir. 2015). The ALJ’s examination of the inconsistencies between the opinions of the Dr. Finuoli
and other medical evidence constitutes explicit consideration of the amount of medical evidence
supporting the ALJ’s opinion.
Second, ALJ Wexler concluded that the Claimant’s own testimony contradicted the
limitations mentioned by Dr. Finuoli. R. at 27-28. This rationale was also an appropriate
application of the third factor under the regulations. See 20 C.F.R. § 404.1527(c)(3)-(4) (“The
more a medical source presents relevant evidence to support a medical opinion, particularly
medical signs and laboratory findings, the more weight we will give that medical opinion. …
Generally, the more consistent a medical opinion is with the record as a whole, the more weight
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we will give to that medical opinion.”). It is supported by substantial evidence, as an evaluation
of the record reveals inconsistencies between the testimony of Dr. Finuoli and the Claimant. See,
e.g., R. at 25-26, 59-66, 153-157, 427.
Attempting to challenge ALJ Wexler’s residual functional capacity (“RFC”) conclusions,
the Plaintiff argues that there is evidence in the administrative record that supports Dr. Finuoli’s
opinion. However, whether or not there is substantial evidence that may support an alternative
conclusion by the ALJ is irrelevant. If the ALJ’s decision is supported by substantial evidence,
the inquiry is completed. “Even 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)). Here, as the ALJ’s
conclusions regarding Dr. Finuoli’s medical opinion are supported by substantial evidence, the
existence of support to alternative findings is superfluous.
The Plaintiff also seeks to challenge the ALJ’s RFC conclusion by asserting that the
decision lacks any supporting medical evidence. As discussed above, substantial evidence,
including portions of the opinions of Drs. Mullins and Finuoli, support the ALJ’s RFC finding.
While under 20 C.F.R. § 404.1527(c), an ALJ is required to weigh and evaluate “every medical
opinion,” there is no requirement that an opinion be assigned a particular weight. See, e.g.
Williams v. Colvin, No. 16-cv-2293, 2017 WL 3701480, at *9 (E.D.N.Y. Aug. 25, 2017) (Spatt,
J.) (holding that the ALJ did not err in refusing to assign controlling weight to any of the plaintiff’s
treating physicians).
While the Plaintiff asserts that the ALJ’s failure to order a consultative examination
requires remand, “[a]s with development of the record generally, ‘a consultative examination is
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unnecessary if the record contains sufficient information on which to base the decision.’” ColonTorres v. Colvin, No. 6:12-cv-1591, 2014 WL 296845, at *2 (N.D.N.Y. Jan. 27, 2014) (quoting
Hall ex rel. M.M. v. Astrue, No. 11-cv-6317, 2012 WL 2120613, at *4 (W.D.N.Y. June 11, 2012)).
Here, the Court finds that the record contained sufficient evidence regarding the Plaintiff’s
conditions, and the ALJ had the necessary information required to make her decision. Further, the
Court finds that the record before the ALJ did not require a consultative examination. See, e.g.,
Monroe v. Comm’r of Soc. Sec., No. 5:15-cv-1235, 2016 WL 7971330, at *3 (N.D.N.Y. Dec. 29,
2016) (“[T]he ALJ is not required to order a consultative examination if the facts do not warrant
or suggest the need for it.” (internal citations omitted)) adopted by Monroe v. Colvin, No. 15-cv1235, 2017 WL 318838 (N.D.N.Y. Jan. 23, 2017); Colvin v. Astrue, No. 09-cv-946, 2011 WL
3047713, at *3 (W.D.N.Y. July 25, 2011).
b. As To Whether The ALJ Mischaracterized The Record
Furthermore, the Plaintiff attempts to discredit the ALJ’s RFC conclusion by accusing ALJ
Wexler of mischaracterizing the record. See Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (“Plaintiff’s Memo.”) at 14-17.
An examination of the
administrative record reveals that any alleged inconsistencies between the record itself and the
ALJ’s associated representations are merely harmless error, as the ALJ’s findings, as they pertain
to Dr. Finuoli, are supported by substantial evidence. See Barringer v. Comm’r of Soc. Sec., 358
F. Supp. 2d 67, 82 n.26 (N.D.N.Y. 2005); see also Moe v. Colvin, No. 15-cv-347, 2017 WL
6379239, at *5 (W.D.N.Y. Dec. 14, 2017).
First, the Plaintiff’s allegation that “the ALJ’s finding that Dr. Finuoli recommended
restricted duty at the time of onset date is incorrect. The record shows that Ms. Dowling’s alleged
onset date of April 30, 2013 corresponds with Dr. Finuoli’s recommendation of ‘retirement from
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police depart[ment] due to work-related injury to neck/rt. shoulder.’” Plaintiff’s Memo. at 14.
While the Plaintiff is correct that Dr. Finuoli recommended retirement on April 30, 2013 from
Dowling’s current position with the police department, see R. at 259, 397, Dr. Finuoli suggested
that the Plaintiff “continue restricted duty” on April 11, 2013. R. at 398. This was a mere 19 days
from the alleged date of onset, April 30, 2013. The close proximity of the two visits reveal the
harmlessness of such an error.
Next, Dowling alleges that ALJ Wexler’s statements regarding her conservative treatment
were inaccurate. While the Plaintiff’s improvement during the course of her treatment was not
entirely consistent, the Court finds that there is substantial evidence that “the [C]laimant’s
conditions improved with recent conservative treatment.”
R. at 27-28.
The existence of
conflicting evidence is irrelevant, as substantial evidence supporting the ALJ’s decision is present.
Lastly, the Plaintiff alleges that the ALJ misstated her testimony regarding her daily
activities and her subjective complaints of pain. See Plaintiff’s Memo. at 16-17. Specifically,
Dowling claims that the ALJ was incorrect in stating that Dowling encountered no “apparent
difficulty” during the course of her light duty work, from August 2012 until April 2013 and
reiterated that her “testimony r[e]garding her activities, when considered as a whole, is not
inconsistent with Dr. Finuoli’s findings, as the ALJ claimed.” Id. at 17.
However, it is the ALJ’s responsibility to resolve conflicts in the administrative record.
See Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order) (“[The ALJ] was entitled
to weigh all of the evidence available to make an RFC finding that was consistent with the record
as a whole.”); Byrne v. Berryhill, -- F. Supp. 3d --, No. 16-cv-3134, 2018 WL 317842, at *4
(E.D.N.Y. Jan. 5, 2018) (Spatt, J.) (“In order for the Court to determine whether a treating
physician’s opinion is consistent with other substantial evidence in the administrative record, the
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Court must keep in mind that ‘genuine conflicts in the medical evidence are for the ALJ to
resolve.’” (quoting Gunter v. Comm’r of Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010)));
Schlichting v. Astrue, 11 F. Supp. 3d 190, 204 (N.D.N.Y. 2012); McGowan v. Astrue, No. 07-cv2252, 2009 WL 792083, at *8 (E.D.N.Y. Mar. 23, 2009).
As discussed in Section II.C.2.,
evaluating the credibility of the Plaintiff is the province of the ALJ. See Fishburn v. Sullivan, 802
F. Supp. 1018, 1023-24 (S.D.N.Y. 1992). It is entirely proper for the ALJ to reject or discount
claims of pain after weighing the objective medical evidence in the administrative record. See
Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999). Further, an examination of the
administrative record reveals that substantial evidence supports the ALJ’s conclusions regarding
the Plaintiff’s testimony. See Section II.C.2.
c. As To Whether The ALJ Failed To Address The Factors Required By The
Regulations
The Plaintiff lastly argues that the ALJ failed to discuss the factors required by the
regulations and set forth in 20 C.F.R. § 404.1527(c)(2). However, the Court finds that the ALJ
complied with the substance of the treating physician rule. See Halloran, 362 F.3d at 32; Reyes v.
Colvin, No. 13-cv-4683, 2015 WL 337483, at *16 (S.D.N.Y. Jan. 26, 2015) (“Although the ALJ
is required to explicitly consider all of the factors, the ALJ is not required to explicitly ‘address or
recite’ each factor in [her] decision.” (internal citations omitted)); Duval v. Colvin, No. 6:13-cv495, 2014 WL 4637092, at *12 (N.D.N.Y. Sept. 16, 2014) (“[T]here is no requirement to recite
and discuss each and every factor slavishly[.]”).
Here, the facts in the administrative record, together with the ALJ’s explanation of her
decision demonstrate a proper application of the treating physician rule as applied to the Plaintiff.
See Marquez v. Colvin, No. 12-cv-6819, 2013 WL 5568718, at *12 (S.D.N.Y. Oct. 9, 2013)
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(“Although the ALJ did not explicitly recite the factors, his decision nonetheless adequately
considered each factor[.]”).
2. As To Whether The ALJ Properly Evaluated The Plaintiff’s Credibility
The Plaintiff states that the ALJ’s decision failed to properly evaluate the Claimant’s
subjective complaints of pain and their impact on her RFC. Evaluating the credibility of the
Claimant is the province of the ALJ. See Fishburn, 802 F. Supp. at 1023-24. This is primarily
due to the inherent difficulty in evaluating the credibility of a witness from a secondhand
perspective.
The ALJ is required to conduct a two-step analysis to consider the extent to which
subjective evidence of symptoms can reasonably be accepted as consistent with medical and other
evidence from the administrative record. Brownell v. Comm’r of Soc. Sec., No. 05-cv-0588, 2009
WL 5214948, at *3 (N.D.N.Y. Dec. 28, 2009); see also 20 C.F.R. § 404.1529. First, the ALJ must
consider whether the medical evidence reveals any impairment “which could reasonably be
expected to produce the pain or other symptoms alleged[.]” 20 C.F.R. § 404.1529(a). “Second, if
the medical evidence alone establishes the existence of such impairments, then the ALJ need only
evaluate the intensity, persistence, and limiting effects of a claimant’s symptoms to determine the
extent to which it limits the claimant’s capacity to work.” Crouch v. Comm’r of Soc. Sec., No.
6:01-cv-0899, 2003 WL 22145644, at *10 (N.D.N.Y. Sept. 11, 2003) (citing 20 C.F.R. §§
404.1529(c), 416.929(c)).
If, on the other hand, the objective medical evidence does not
substantiate the alleged injuries, the ALJ must assess the credibility of the Claimant’s testimony
in the context of the case record as a whole. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii). Here, ALJ
Wexler properly applied the above two-step analysis. See R. at 25-26.
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First, the Plaintiff contends that, “[the ALJ’s] findings are … based on a selective citation
to or, in some cases, an actual misstatement of the evidence of record[.]” Where subjective
symptoms are at issue, “the ALJ has discretion to evaluate the credibility of the claimant and to
arrive at an independent judgment, in light of the medical findings and other evidence, regarding
the true extent of the pain alleged.” Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987).
In the Second Circuit, “[a]n [ALJ] may properly reject claims of severe, disabling pain
after weighing the objective medical evidence in the record, the claimant’s demeanor, and other
indicia of credibility, but must [do so explicitly and] set forth his or her reasons with sufficient
specificity to enable [the district court] to decide whether the determination is supported by
substantial evidence.” Lewis, 62 F. Supp. 2d at 651 (internal citations and quotation marks
omitted); accord Fishburn, 802 F. Supp. at 1027-28. The ALJ may consider seven factors relevant
to a claimant’s symptoms:
(i) Your daily activities; (ii) The location, duration, frequency, and intensity of your
pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type,
dosage, effectiveness, and side effects of any medication you take or have taken to
alleviate your pain or other symptoms; (v) Treatment, other than medication, you
receive or have received for relief of your pain or other symptoms; (vi) Any
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) Other factors concerning your functional limitations and restrictions
due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3)(i)-(viii). The ALJ, however, is not required to discuss all seven factors
as long as the decision “includes precise reasoning, is supported by evidence in the case record,
and clearly indicates the weight the ALJ gave to the claimant’s statements and the reasons for that
weight.” Felix v. Astrue, No. 11-cv-3697, 2012 WL 3043203, at *8 (E.D.N.Y. July 24, 2012)
(citing Snyder v. Barnhart, 323 F. Supp. 2d 542, 546-47 & n.5 (S.D.N.Y. 2004)).
In the instant case, ALJ Wexler properly explained why she determined that the Claimant’s
credibility was limited. This decision was based on an evaluation of the entire record, including
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careful examination of the Claimant’s testimony. Specifically, the ALJ noted that her regular
activities were inconsistent with her complaints. See Perez v. Barnhart, 440 F. Supp. 2d 229, 23435 (W.D.N.Y. 2006) (“[T]he ALJ also properly relied in part on the testimony concerning
plaintiff’s daily activities, which was some evidence of plaintiff’s physical capabilities.”
(collecting cases)); Petti v. Colvin, No. 13-cv-267, 2014 WL 6783703, at *10 (E.D.N.Y. Dec. 2,
2014) (“In assessing the claimant’s credibility, the ALJ must consider … various regulatory factors
including the claimant’s daily activities[.]”). “The claimant reported … that she is able to engage
in a wide range of daily activities. She stated that she drives locally, goes food shopping, does
laundry (but does not carry it downstairs), cleans and is able to cook.” R. at 25. She is also able
to travel to her daughter’s events and on family vacations, albeit with discomfort. See R. at 25.
ALJ Wexler also mentioned that Dowling’s conservative treatment of her symptoms is
inconsistent with the medical records. See id. at 25. Of importance, she no longer attends physical
therapy and does not take pain medication for her neck and shoulder injuries. The Court finds that
the Plaintiff’s conservative treatment regimen also indicates that she is not as restricted as she
asserts. See Church v. Colvin, 195 F. Supp. 3d 450, 456-57 (N.D.N.Y. 2016); Lovell v. Colvin,
137 F. Supp. 3d 347, 354 (W.D.N.Y. 2015); Cahill v. Colvin, No. 12-cv-9445, 2014 WL 7392895,
at *14 (S.D.N.Y. Dec. 29, 2014).
Therefore, the Court holds that the ALJ’s findings regarding the Plaintiff’s subjective
complaints are supported by substantial evidence.
3. As To Whether The ALJ’s Finding At Step V Is Based On Substantial Evidence
The Plaintiff lastly contends that the ALJ erred in finding that there is other work in the
national economy that Dowling could perform.
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Specifically, the Plaintiff argues that the
hypothetical questioning used to determine other potential positions of employment was based on
a flawed RFC determination. This, the Plaintiff claims, taints the vocational expert’s analysis.
At the final step, the ALJ must determine whether the claimant can be employed in other,
less demanding work in the national economy. See 20 C.F.R. §§ 404.1520(g), 404.1560(c). To
make that determination, the ALJ may rely on an RFC assessment in questioning a vocational
expert as long as the assessment is based on substantial evidence. See Mancuso v. Astrue, 361 F.
App’x 176, 179 (2d Cir. 2010). This is in addition to the claimant’s education, age, previous work
experience, and the transferability of his or her skills. See 20 C.F.R. § 404.1520(g).
As this Court has already held that substantial evidence supports ALJ Wexler’s RFC
determination, the Court rejects the instant argument. See Wavercak v. Astrue, 420 F. App’x 91,
95 (2d Cir. 2011) (“Because we have already concluded that substantial record evidence supports
the RFC finding, we necessarily reject [the claimant’s] vocational expert challenge.”); Pardee v.
Astrue, 631 F. Supp. 2d 200, 212 (N.D.N.Y. 2009) (holding that the hypothetical posed to the
vocational expert was supported by substantial evidence). Therefore, the ALJ’s finding that there
are a significant number of jobs in the national economy that the Plaintiff can perform is supported
by substantial evidence.
III. CONCLUSION
Accordingly, for the reasons stated above, the Plaintiff’s motion for judgment on the
pleadings pursuant to Rule 12(c) is denied in its entirety, and the Defendant’s motion for judgment
on the pleadings dismissing the complaint is granted.
The Clerk of the Court is respectfully directed to close this case.
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It is SO ORDERED:
Dated: Central Islip, New York
January 18, 2018
_____/s/ Arthur D. Spatt______
ARTHUR D. SPATT
United States District Judge
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