Hicks, Jr. v. Berryhill

Filing 26

MEMORANDUM OF DECISION & ORDER denying 14 Motion for Judgment on the Pleadings; granting 23 Motion for Judgment on the Pleadings. For the foregoing reasons, the Court denies the Plaintiffs Rule 12(c) motion, grants the Defendant's Rule 12(c) cross-motion, and dismisses the complaint. The Clerk of Court is respectfully directed to close the case. SEE ATTACHED DECISION for details. It is So Ordered by Judge Arthur D. Spatt on 4/27/2020. (Coleman, Laurie)

tNc FILE 0
U.S. Otsr~[~~s OFFICE

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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OURT E.D.N.Y.

APR 2 7 2020

*.

LONG ISLAND OFF/Ce

BRUCE L. HICKS, JR.,

MEMORANDUM OF
DECISION & ORDER

Plaintiff,
-against-

2: 18-cv-1508 (ADS)

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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APPEARANCES:

Algeria & Barovick LLP
Allorneys for the Plaintiff
235 Main Street, Suite 318
White Plains, NY 10601
By:
Andrew J. Barovick, Esq., Of Counsel.

United States Attorneys Office, Eastern District of New York
Allorneys for the Defendant
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Mary M. Dickman, Esq., Assistant United States Attorney.

SPATT, District Judge:
On March 12, 2018, the Plaintiff Bruce L. Hicks (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 then Acting
Commissioner of the Social Security Administration (the "Defendant" or the "Commissioner"),
that she was ineligible to receive Supplemental Security Income ("SSI") benefits.
Andrew M. Saul is now the Commissioner of the Social Security Administration.
Pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P.") 25(d), Saul is hereby
substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this action. See,

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e.g., Pelaez v. Berryhill, No. 12-CV-7796, 2017 WL 6389162 (S.D.N. Y. Dec. 14, 2017), adopted
by, 2018 WL 318478 (S.D.N.Y. Jan. 3, 2018).
Presently before the Court are the parties' cross motions, pursuant to FED. R. CIV. P.
12(c) for a judgment on the pleadings. For the reasons that follow, the Court denies Plaintifrs
motion, grants the Defendant's cross-motion, and closes the case.

I.

BACKGROUND
On October 28, 2014, the Plaintiff, then age 38, applied for SSI benefits under§§ 216(i)

and 223 of the Act. The Plaintiff alleged that he was a former landscaper with a high school
diploma, and that he had been disabled since May 25, 2000 because of a motorcycle accident.
He further alleged that this accident caused him the following maladies: (1) chronic, severe pain
and limitation of movement throughout his left leg, starting at the hip, extending through the
tibia-fibula area and going down to the ankle and foot; (2) diabetic neuropathic pain in in both
feet; (3) foot drop in his left foot; and (4) lumbar radiculopathy stemming from a left L5/Sl
paracentral disc extrusion. He also claimed to suffer from several psychological impairments:
(1) panic disorder; (2) agoraphobia; (3) anxiety related disorders; and (4) difficulty maintaining
concentration, persistence, or pace.
His claim was denied on December 18, 2014, and he requested a hearing. The Plaintiff
appeared with counsel before Administrative Law Judge Alan B. Berkowitz (the "ALJ") on
February 22, 2017. On March 23, 2017, the ALJ issued a written decision in which he found that
the Plaintiff was not disabled under the Act as of October 28, 2014, the date he applied for SSI
benefits.
The Plaintiff sought a review by the Appeals Council, and on January 9, 2018, the
Appeals Counsel ruled that it would not further review the ALJ's decision. The ALJ's decision
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became the final decision of the Commissioner upon the Appeals Council's denial of the
Plaintiffs request for review.
On March 12, 2018, the Plaintiff filed the present action. On June 19, 2019, the parties
submitted the Plaintiffs Rule 12(c) motion and the Defendant's Rule 12(c) cross-motion as fully
briefed to the Court.
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."
II.

DISCUSSION
Briefly, the parties have presented three issues for the Court, whether: (1) whether the

ALJ violated the treating physician rule in not assigning controlling weight to the testimony of
the Plaintiffs treating physician, Dr. Matthew Shatzer ("Shatzer"); (2) the evidence supported
the ALJ's findings as to the Plaintiff's residual functional capacity ("RFC"); and (3) the ALJ
erred in his ruling that the Plaintiff was not credible. The Court holds that the substantial
evidence supported the ALJ's ruling as to all three issues .. In addition, the Court holds that the
ALJ's disability ruling is supported by substantial evidence. Accordingly, the Court denies the
Plaintiffs Rule 12(c) motion, grants the Defendant's Rule 12(c) cross-motion, and dismisses the
case.

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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)(l)(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 person 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. See Rosa v Callahan, 168 F.3d 72, 77 (2d Cir. 1999). The Plaintiff bears the
burden of proving the first four steps, but then the burden shifts to the Commissioner at the fifth
step to prove that the Plaintiff is capable of working. Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir. 2009) (per curiam); Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008); Rosa, 168 F.3d at
11. See also Perez v. Chater, 11 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, 615 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; as well as the plainti fr 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" 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, 179-71 (2d Cir.
1998)); accord Machadio v. Apfel, 216 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chaler, 221
F.3d 126, 131 (2d Cir. 2000)); 42 U.S.C. § 405(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."). 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 [plaintiffs] view;" instead, the Court
"must decide whether substantial evidence supports the ALJ's decision," Bonet ex rel. T.B. 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., Comm 'r, 683 F.3d 443,448 (2d Cir. 2012) (per curiam)

(quoting Warren v. Shala/a, 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, 531
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
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[the Court] to glean the rationale of an AU's decision."' Cichocki v. Astrue, 729 F.3d 172, 178
n.3 (2d Cir. 2013) (per curiam) (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)
(citingDeChiricov. Callahan, 134F.3d 1177, 1182(2dCir.1998)).

C. The Rule 12(c) Standard
Both parties filed Rule 12(c) motions. ECF 14, 23. Such motions are reviewed under the
same standard as Rule 12(b)(6) motions to dismiss. See Bank of N. Y. v. First Millennium, Inc.,
607 F.3d 905, 922 (2d Cir. 2010). "To survive a Rule 12(c) motion, the complaint 'must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'"
Id (quoting Hayden v. Peterson, 594 F.3d 150, 160 (2d Cir. 2010). The issue on a motion to
dismiss is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims." Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).
"'Detennining whether a complaint states a plausible claim for relief will ... be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense."' Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 566 U.S. 662,
129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009)).
D. Application to the Facts of This Case

In his Rule 12(c) motion, the Plaintiff asks for an order that reverses the Commissioner's
decision that he was not disabled; directs the Commissioner to find the Plaintiff disabled and
entitled to a retroactive period of disability. ECF 14 at 20. In the alternative, he asks that the

7

Court remand his claim for a new administrative hearing and to award him attorney fees pursuant
to the Equal Justice Act, 28 U.S.C.A. § 2412(d). Id He raises three arguments in support.
First, he contends that the AU violated the treating physician rule when he did not assign
controlling weight to Shatzer's testimony, and instead granted it little weight, despite there being
no substantial evidence to contradict that testimony. Id. at 18. Second, the Plaintiff asserts that
the ALJ's RFC findings were not supported by substantial evidence. Id. at 18-19. In particular,
he alleges that the ALJ failed to sufficiently explain his reasoning for his RFC ruling. Id Third,
he argues that the ALJ erred in finding that he was not credible. Id at 19-20.
In its Rule 12(c) cross-motion, the Defendant asks the Court to dismiss the action. ECF
23-1. The Defendant argues that substantial evidence supports the ALJ's decision, including the
choice to accord less than controlling weight to Shatzer's opinion. Id at 20-24. The Defendant
also asserts that substantial evidence supported the ALJ's RFC determination, and that the ALJ
properly assessed the Plaintiff's subjective comments on his condition. Id. at 24-25. The Court
addresses each of these arguments in turn.
1. As to Whether the ALJ Violated 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, 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) (same).

· 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
8

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 the treating physician's
opinion: "(1) the frequen[c]y, length, nature, and extent of [the] 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).
In order for the Court to determine whether a treating physician's opinion is consistent
with other substantial evidence in the administrative record, the Court must keep in mind that
"genuine conflicts in the medical evidence are for the ALJ to resolve." Gunter v. Comm 'r of
Soc. Sec., 361 F. App'x 197, 199 (2d Cir. 2010) (summary order); see also Garcia v. Barnhart,
No. 0l-Civ.-8300, 2003 WL 68040, at *7 (S.D.N.Y. Jan. 7, 2003) (holding that the ALJ cannot
substitute his or her "own assessment of the relative merits of the objective evidence and
subjective complaints for that of a treating physician").
Here, the ALJ discussed Shatzer's opinions when ruling that the Plaintiff had an RFC to
perform sedentary work, in that he could sit for six hours and stand or walk for two hours in an
eight hour workday, with normal breaks; lift or carry ten pounds occasionally; sit for 30 minutes
at a time; and occasionally bend, stoop, crouch, crawl, kneel, squat, and climb. R. at 15-19. The
ALJ noted that Shatzer had treated the Plaintiff for chronic pain since 2015; that in March 2015,
Shatzer believed that the Plaintiff could not sit continuously and needed to get up and move
every ten minutes; that Shatzer also believed the Plaintiff had limitations in repetitive reaching,
handing, fingering, and lifting. Id. at 17. The ALJ noted that Shatzer "inconsistently indicated
that the claimant had minimal to no limitation in grasping, twisting, fine manipulation and
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reaching." Id at 18.

The ALJ also said that Shatzer's opinion was inconsistent with the

Plaintiff's testimony, based on the Plaintiff's testifying that he had no issues with his arms or
hands. Id The ALJ further said that the Plaintiff's "limited recent treatment record" did not
support his medical opinion, and that the Plaintiff's motorcycle accident had occurred more than
sixteen years prior. Id. The ALJ thus gave the opinion "little weight." Id
The ALJ found support for his RFC determination from three sources. The first was from
the Plaintiff's immediate care following the 2000 motorcycle accident: (1) the accident left him
with left posterior hip dislocation; and (2) the Plaintiff had a series of operations on that hip. R
at 15-16. The second source was the Plaintiff's follow-up care with an orthopedist. That care
took place approximately one year after the accident, and the Plaintiff displayed "some
limitations in the left hip and knee range of motion with diminished sensation." R. at 16. The
Plaintiffs treatment plan included "full weight bearing, a prescription for a foot drop splint,
Vicodin and return in six months." Id.
The ALJ noted that the ALJ did not seek treatment for nearly a decade, leading to the
third source, his treatment at Glen Cove Hospital. Id From 2011-12, the Plaintiff received
treatment for illicit drug use, and management of type II diabetes. Id. At the time, the Plaintiff
"reported that he keeps active as possible every day with walking, despite leg pain." Id. In
2014, the Plaintiff received Toradol after visiting the hospital with complaints of back and leg
pain. Id. at 17. Finally, in 2016, the Plaintiff received Percocet, Valium, and Toradol from the
hospital after complaining once again of back and leg pain. Id. at 18.
The Court agrees with the Defendant that substantial evidence supports the ALJ's
findings, and, that the ALJ did not violate the treating physician rule. The evidence in the record
does not support the extent to which Shatzer claimed the Plaintiff to be limited in his RFC.

Shatzer's opinion portrayed the Plaintiff as being in a more dire condition than that of the
Plaintiffs treatment history and the Plaintiffs own testimony as noted above.
In addition, Shatzer' s opinion conflicted with those of two of the Plaintiffs consultative
physicians, which can constitute substantial evidence supporting an ALJ's conclusions. See

Nelson v. Colvin, No. 16-Civ.-3530, 2017 WL 1397547, at *11 (S.D.N.Y. Apr. 14, 2017); Suarez
v. Colvin, 102 F. Supp. 3d 552, 577 (S.D.N.Y. 2015). Here, two consultative examiners, Doctors
Charlene Andrews-Watson and Lali Levi, performed internal examinations of the Plaintiff and
found more moderate limitations with regard to the Plaintiffs range of motion and strength in his
lower body. R. at 18-19; 418-22; 499-505. Thus, the ALJ had support in the record for his
ruling that Shatzer's opinion conflicted with the results of the Plaintiffs consultative examiners,
which further supports a ruling that substantial evidence supported his decision. See DiNapoli v.

Comm'r of Soc. Sec., No. 14-Civ.-3652, 2016 WL 1245002, at *11 (E.D.N.Y. Mar. 24, 2016)
("Based on the lack of support for Dr. Peselow's conclusions in the treatments notes and the
Department of Sanitation forms he completed, the conflicting findings of [consulting physician]
Dr. Lancer, and the plaintiffs own statements regarding his capacities, I find that the ALJ had
good reasons for affording Dr. Peselow's opinion less than controlling weight.") (internal
quotation marks and brackets omitted); Suarez v. Colvin, 102 F. Supp.3d 552, 574-78 (S.D.N.Y
2015).
In addition, the ALJ did not entirely disregard Shatzer's opinion. The Court observes that
the ALJ did in fact agree with the portion of Shatzer's opinion that the Plaintiff can occasionally

lift and carry ten pounds. See, e.g., Franco v. Berryhill, No. 17-cv-7548, 2019 WL 6211275, at
*6 (E.D.N.Y. Nov. 21, 2019) (Spatt, J.) ("In any event, as ALJ Wexler noted in her decision, she
did take Dr. Chernoffs opinion into consideration by imposing limitations on how long the
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Plaintiff could be expected to sit."). Accordingly, the Court holds that the ALJ did not violate
the treating physician rule.
2. As to Whether Substantial Evidence Supported the AU's RFC Finding
For the same reasons as listed above, the Court rules that substantial evidence supports
the AU's findings as to the Plaintiffs RFC. The ALJ correctly ruled on the Plaintiffs RFC
based on a combination of granting limited weight to Shatzer's opinion; assessing the totality of
the Plaintiffs medical record; and considering the opinions of the Plaintiffs consultative
physicians. See, e.g., Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 7-8 (2d Cir. 2017)
(summary order) ("Here, the administrative record demonstrates that the ALJ's decision not to
give controlling weight to Dr. Wolkoffs opinion under the 'treating physician' rule was proper
considering the substantial evidence contradicting Dr. Wolkoffs assessment.").
The Court also holds that the ALJ adequately explained his RFC ruling. Courts in this
Circuit have remanded social security appeals on the basis of failing to explain an RFC ruling
when an ALJ did not expand on why a treating physician's opinion was unpersuasive, Bolden v

Commissioner of Social Security, 556 F. Supp. 2d 152, 164 (E.D.N.Y. 2007); failed to note the
weight assigned to various medical source statements, Forbes ex rel. Forbes v. Astrue, No. 08CV-1991, 2010 WL 1529273, at *3 (E.D.N.Y. Apr. 15, 2010); or did not elaborate on its
evaluation of the evidence in the record, Todman v. Astrue, No. 07-Civ.-10473, 2009 WL
874222, at *1 (S.D.N.Y. Mar. 30, 2009).
In this case, the Plaintiff appears to be making a Todman argument in asserting that the
ALJ "failed to explain his basis" for ruling that "the opinions of plaintiffs physicians were not
supported in the records." ECF 14 at 18. However, the Court finds no such failure of the ALJ to
explain his rationale. The ALJ spent numerous pages in his decision outlining exactly how
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Shatzer's allegations conflicted with the rest of the evidence in the record, namely, Shatzer's
inconsistent findings, the long gaps in the Plaintiff's treatment history, and the Plaintiffs visits
with the consultative physicians. Rat 15-20.
The ALJ also dedicated a portion of his opinion to describing the two consultative
physicians who made an internal examination of the Plaintiff, Andrews-Watson and Levi,, which
shows that the two reports were in harmony with one another. Id at 18-19. Regarding the
Andrews-Watson examination, the ALJ said that "the claimant had moderate limitations for
prolonged sitting and moderate to marked limitations for prolonged standing, walking, climbing,
pushing, pulling, lifting, and carrying heavy objects." Id at 18. The ALJ summarized the Levi
examination by saying that the Plaintiff displayed a decreased range of motion of the hips, knee,
and ankle, that the Plaintiff had no sensory deficits and full muscle strength in his lower
extremities, and that the Plaintiff had marked limitations for standing, walking, squatting, or
kneeling. Id. at 18-19. The ALJ further noted as to both consultative physicians that their
opinions were "generally consistent" with the limitations in the Plaintiffs hip range of motion
from the Plaintiff's treatment records. Id
Accordingly, the Court rules that the ALJ adequately explained his RFC finding, which
showed the Plaintiff as being limited by his condition but not to the extent alleged by Shatzer.
3. As to the ALJ's Ruling on the Plaintiffs Credibility

Finally, the Court holds that substantial evidence supports the ALJ's credibility
determination concerning the Plaintiff.

In General, it is the ALJ' s function, and not the

reviewing Court, '"to resolve evidentiary conflicts and to appraise the credibility of witnesses,
including the claimant."' Sa/mini v. Comm'r o/Soc. Sec., 371 F. App'x 109, 113 (2d Cir. 2010)
(summary order) (quoting Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d
13

Cir. 1983)). An ALJ properly deems a plaintiff to be not credible when he finds inconsistences
between the plaintiffs testimony and the medical evidence in the record or the plaintiffs
statements of daily living. Matthew v. Colvin, No. 13-CV-5336, 2015 WL 5098662, at *8
(E.D.N.Y. Aug. 31, 2015); see also Burnette v. Colvin, 564 F. App'x 605, 609 (2d Cir. 2014)
(summary order); Donnelly v. Colvin, No. 13-Civ.-7244, 2015 WL 1499227, at *15 (S.D.N.Y.
Mar. 31, 2015).
Here, the ALJ ruled that the Plaintiffs "statements concerning the intensity, persistence
and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and
other evidence in the record." R. at 19. The ALJ cited numerous examples of the Plaintiffs
daily living that were inconsistent with a claim of total disability: that the Plaintiff lived alone;
that he bathed and dressed independently; shopped for food and did laundry. Id at 19-20.
These "routine activities" evince substantial evidence of the Plaintiffs not being credible. See
Lamorey v. Barnhart, 158 F. App'x 361, 363--64 (2d Cir. 2006) (summary order) ("[W]e
nevertheless agree with [the ALJ's) conclusion that the record contains substantial evidence of
routine activities by Lamorey inconsistent with her claimed total disability.").
The ALJ also compared the Plaintiffs testimony to two of his 2012 consultative exams,
which "indicated that he shops, as well as takes care of other activities of daily living." R. at 19,
413-22 (noting the Plaintiffs ability to socialize, maintain his household, go shopping, and
cook). Thus, the ALJ also found the Plaintiffs statements alleging a total disability to be
inconsistent with the evidence in the record. See Burnette, 564 F. App'x at 609 ("[T]he ALJ
acted well within his discretion in concluding that [plaintiff] was less than credible where [the]
ALJ found inconsistencies between [plaintiffs] statements and the evidence.") (internal
quotation marks omitted); see also Donnelly, 2015 WL 1499227, at *6 (observing that the ALJ
14

I

noted that the record showed the Plaintiffs having moderate restrictions m her social
functioning).
Accordingly, substantial evidence supports the ALrs determination on the Plaintiffs
credibility.

III.

CONCLUSION
For the foregoing reasons, the Court denies the Plaintiffs Rule 12(c) motion, grants the

Defendant's Rule 12(c) cross-motion, and dismisses the complaint.
The Clerk of Court is respectfully directed to close the case.

It is SO ORDERED.

/s/Arthur D. Spatt
April 27, 2020
Arthur D. Spatt, U.S.D.J.

Date

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