Doty v. Colvin et al

Filing 15

DECISION AND ORDER denying # 10 Plaintiff's motion for judgment on the pleadings; and granting # 13 Defendant's motion for judgment on the pleadings. Defendant's decision denying Plaintiff disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 10/13/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
TINA M. DOTY,
Plaintiff,
v.

1:16-CV-1276
(GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

LEGAL AID SOCIETY OF NORTHEASTERN NY
Counsel for Plaintiff
40 New Street
Saratoga Springs, NY 12866

MARY MARTHA WITHINGTON, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

ARIELLA R. ZOLTAN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Tina M. Doty
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the
pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 10, 13.) For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings is denied, and
Defendant’s motion for judgment on the pleadings is granted. The Commissioner’s decision
denying Plaintiff’s disability benefits is affirmed, and Plaintiff’s Complaint is dismissed.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1979, making her 17 years old at the alleged onset date, 34 years old
at the application filing date, and 35 years old at the date of the ALJ’s decision. Plaintiff
reported completing the tenth grade with involvement in special education. The ALJ found she
does not have past relevant work. Generally, Plaintiff alleges disability due to left foot problems
and atrial fibrillation.
B.

Procedural History

Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income on
June 11, 2013, alleging disability beginning April 11, 1997. Plaintiff’s applications were
initially denied on August 30, 2013, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). Plaintiff appeared at a hearing before ALJ Robert Wright
on February 12, 2015. On March 25, 2015, the ALJ issued a written decision finding Plaintiff
was not disabled under the Social Security Act. (T. 22-30.) 1 On August 24, 2016, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. (T. 1-3.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 24-29.) First, the ALJ found Plaintiff was insured for disability benefits
under Title II until December 31, 2017. (T. 24.) Second, the ALJ found that Plaintiff has not

1

The Administrative Transcript is found at Dkt. No. 9. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
system.
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engaged in substantial gainful activity since the alleged onset date. (T. 24.) Third, the ALJ
found that Plaintiff’s left foot plantar fasciitis, plantar fibroma and osteoarthritis, atrial
fibrillation, and vertigo are severe impairments, while her asthma and kidney stones are not
severe impairments. (T. 25.) Fourth, the ALJ found that Plaintiff’s severe impairments do not
meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the
“Listings”). (T. 25.) Specifically, the ALJ considered Listings 1.02 (major dysfunction of a
joint) and 4.00 (cardiovascular system disorders). (Id.) Fifth, the ALJ found that Plaintiff has
the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except she can perform unskilled work with no work at heights and
no work involving the operation of a motor vehicle or moving
machinery; the claimant also needs to change positions every thirty
minutes.
(T. 26.) Sixth, the ALJ found that Plaintiff does not have past relevant work. (T. 28.) Seventh,
and finally, the ALJ found that Plaintiff remains able to perform a significant number of other
jobs in the national economy such as surveillance system monitor, information and reception
clerk, and election clerk. (T. 29.) The ALJ therefore concluded that Plaintiff is not disabled.
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff makes four arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ failed to afford proper weight to the opinions from
the treating podiatrist and treating physician. (Dkt. No. 10, at 15-19 [Pl. Mem. of Law].) More
specifically, Plaintiff argues that treating physician Veena Goel, M.D., had a longitudinal
relationship with Plaintiff, that treating podiatrist Richard Berkowitz, D.P.M., is a specialist in
the area of treatment and his opinion is supported by the evidence, and that both sources had a
treating relationship with Plaintiff that provided them with motivation to accurately assess
3

Plaintiff’s impairments. (Dkt. No. 10, at 16-17 [Pl. Mem. of Law].) Overall, Plaintiff argues
that the ALJ improperly “cherry picked” only the portions of these opinions that supported a
finding of non-disability while ignoring the portions that showed greater restriction. (Dkt. No.
10, at 19 [Pl. Mem. of Law].)
Second, Plaintiff argues that the credibility finding is not supported by substantial
evidence. (Dkt. No. 10, at 18-19 [Pl. Mem. of Law].) More specifically, Plaintiff argues that the
ALJ erred in considering inconsistencies in Plaintiff’s reports about the number of hours she
worked, in the use of childcare activity as a factor showing greater than alleged abilities, and in
failing to properly consider Plaintiff’s reports of dizziness and fatigue. (Id.) Plaintiff further
argues that the ALJ failed to consider the frequency and nature of treatment by Dr. Berkowitz,
which included multiple foot debridements and surgery, treatment that she argues substantiates
her allegations of debilitating pain. (Dkt. No. 10, at 21 [Pl. Mem. of Law].)
Third, Plaintiff argues that the Step Five finding is not supported by substantial evidence
because the hypothetical question posed to the vocational expert (the answer to which the ALJ
used to support the Step Five finding) did not include limitations opined by Dr. Berkowitz and
Dr. Goel. (Dkt. No. 10, at 21-23 [Pl. Mem. of Law].) Plaintiff also argues that the ALJ did not
meet his burden to show a significant number of jobs in the national economy, asserting that two
of the three jobs identified by the vocational expert were not present in significant numbers, and
that the third would be “available sporadically and unlikely to be filled by a claimant with the
diminished RFC presented by plaintiff.” (Dkt. No. 10, at 23 [Pl. Mem. of Law].)
Fourth, Plaintiff argues that the ALJ’s decision overall is not supported by substantial
evidence due to his errors in weighing the opinion evidence and failing to find Plaintiff’s
allegations credible. (Dkt. No. 10, at 24-25 [Pl. Mem. of Law].)
4

Generally, Defendant makes three arguments in support of her motion for judgment on
the pleadings. First, in response to Plaintiff’s first argument, Defendant argues that the ALJ
properly assessed and weighed the opinion evidence from Dr. Berkowitz, Dr. Goel, and
consultative examiner Kataulya Puri, M.D. (Dkt. No. 13, at 5-10 [Def. Mem. of Law].)
Defendant argues that the ALJ correctly determined that the opinions of Dr. Berkowitz and Dr.
Goel were inconsistent with Plaintiff’s own reported activities, including her part-time work
activity, and with the medical evidence. (Dkt. No. 13, at 6-9 [Def. Mem. of Law].) Defendant
also argues that the ALJ was not required to adopt the totality of any opinion when determining
the RFC. (Dkt. No. 13, at 10 [Def. Mem. of Law].)
Second, in response to Plaintiff’s second argument, Defendant argues that the credibility
finding is supported by substantial evidence. (Dkt. No. 13, at 10-12 [Def. Mem. of Law].) More
specifically, Defendant argues that the ALJ did consider Plaintiff’s reports of dizziness and
fatigue by finding vertigo and atrial fibrillation to be severe impairments and by limiting Plaintiff
to no work at heights or with a motor vehicle or moving machinery. (Dkt. No. 13, at 10 [Def.
Mem. of Law].) Defendant also argues that the ALJ properly considered inconsistent daily
activities and Plaintiff’s part-time work that involved an ability to stand and walk that was
inconsistent with her allegations. (Dkt. No. 13, at 11-12 [Def. Mem. of Law].)
Third, in response to Plaintiff’s third and fourth arguments, Defendant argues that the
RFC finding and the Step Five finding are supported by substantial evidence. (Dkt. No. 13, at
12-15 [Def. Mem. of Law].) More specifically, Defendant argues that the ALJ met his burden to
provide evidence of a significant number of jobs in the national economy that Plaintiff remained
able to perform. (Dkt. No. 13, at 14 [Def. Mem. of Law].)

5

II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an
individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d
856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the
correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a
mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
6

the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of the proof as
to the first four steps, while the [Commissioner] must prove the final
one.

7

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
A.

Whether the Weight Afforded to the Opinion Evidence is Supported By
Substantial Evidence and Consistent with Applicable Legal Standards

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 5-10 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.
§§ 404.1527(c) and 416.927(c). “‘[T]he opinion of a claimant’s treating physician as to the
nature and severity of the impairment is given ‘controlling weight’ so long as it is ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record.’” Greek v. Colvin, 802 F.3d
370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).
However, there are situations where the treating physician’s opinion is not entitled to controlling
weight, in which case the ALJ must “explicitly consider, inter alia: (1) the frequency, 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.’” Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418
(2d Cir. 2013)). However, “[w]here an ALJ’s reasoning and adherence to the Regulations is
clear, she is not required to explicitly go through each and every factor of the Regulation.”
Blinkovitch v. Comm’r of Soc. Sec., No. 3:15-CV-1196, 2017 WL 782979, at *4 (N.D.N.Y. Jan.
8

23, 2017), report and recommendation adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017)
(citing Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)). After considering these factors,
“the ALJ must ‘comprehensively set forth [his] reasons for the weight assigned to a treating
physician’s opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129). “The failure
to provide ‘good reasons for not crediting the opinion of a claimant’s treating physician is a
ground for remand.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-30). The
factors for considering opinions from non-treating medical sources are the same as those for
assessing treating sources, with the consideration of whether the source examined the claimant
replacing the consideration of the treatment relationship between the source and the claimant.
See 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
Plaintiff argues that the ALJ’s choice to afford less weight to the opinions from treating
physicians Dr. Berkowitz and Dr. Goel is not supported by substantial evidence, and that the
ALJ’s selective reliance on only the portions of these opinions that were consistent with a
finding of sedentary work is improper “cherry picking” of the evidence. (Dkt. No. 10, at 15-19
[Pl. Mem. of Law].) These arguments are not persuasive.
On July 22, 2013, Dr. Berkowitz noted he had been treating Plaintiff for left foot plantar
fasciitis and recurring fibromas at a frequency of once per month since September 15, 2008. (T.
286-87.) Dr. Berkowitz opined that Plaintiff was limited to lifting and carrying ten pounds
occasionally, standing and walking less than two hours in an eight-hour workday, and was
limited in her ability to push and pull. (T. 289-90.) Dr. Berkowitz opined that Plaintiff had no
limitation in her ability to sit. (T. 289.) A year later, on July 31, 2014, Dr. Berkowitz opined
that Plaintiff’s prognosis was poor and that she was limited to standing 15 minutes at one time,
standing or walking less than two hours in an eight-hour workday, sitting eight hours in an eight
9

hour workday, and never lifting any weight or performing postural activities. (T. 306-08.) Dr.
Berkowitz further opined that Plaintiff would require unscheduled breaks during the workday for
15 minutes per hour, would experience severe limitations in performing repetitive reaching,
handling or fingering, would likely be absent from work more than four days per month due to
her impairments and treatment, and would constantly experience symptoms severe enough to
interfere with her attention and concentration but would nonetheless remain capable of
performing low stress work. (T. 307-09.) The ALJ afforded great weight to Dr. Berkowitz’s
limitations for lifting and carrying ten pounds occasionally and sitting for an unlimited period of
time, finding these limitations were supported by the evidence, including Plaintiff’s testimony.
(T. 28.) However, the ALJ afforded less weight to the rest of his opined limitations, particularly
related to standing, walking and absences, because these were inconsistent with the evidence
including Plaintiff’s reported activities. (Id.)
On January 26, 2015, Dr. Goel noted she had seen Plaintiff sporadically since 2004 and
noted that Plaintiff’s prognosis was fair. (T. 533.) Dr. Goel opined Plaintiff could sit for 30
minutes at one time, stand for 15 minutes at one time, sit less than two hours total in an eighthour workday, stand or walk less than two hours total in an eight-hour workday, lift and carry up
to ten pounds frequently, frequently twist, occasionally stoop, bend and crouch, and rarely climb.
(T. 534-35.) Dr. Goel further opined that Plaintiff would require unscheduled work breaks every
one-and-a-half to two hours to change position, would likely be absent two days per month due
to her impairments and treatment, and would occasionally experience symptoms severe enough
to interfere with her attention and concentration but would nonetheless remain capable of
performing moderate stress work. (T. 534-36.) Dr. Goel noted that Plaintiff currently worked as
a bottle clerk at a grocery store for four to six hours per shift with no problem. (T. 536.) The
10

ALJ afforded great weight to Dr. Goel’s opined limitation for lifting and carrying ten pounds,
finding it was supported by the evidence, including Plaintiff’s testimony. (T. 28.) However, the
ALJ afforded less weight to the rest of the opined limitations because he found they were
inconsistent with the evidence including Plaintiff’s reported activities. (Id.)
As an initial matter, this Court finds that Plaintiff’s argument that the ALJ’s acceptance
of portions of these opinions and rejection of others was improper to be without merit. It is wellestablished that the ALJ has both the ability and the responsibility to resolve conflicts in the
evidence and to weigh all of the available evidence “to make an RFC finding that is consistent
with the record as a whole.” Matta v. Astrue, 508 F. App’x. 53, 56 (2d Cir. 2013) (noting also
that the ALJ’s conclusions do not need to “perfectly correspond” with any of the opinions from
medical sources in order to be supported by substantial evidence) (citing Richardson v. Perales,
402 U.S. 389, 399 (1971)); see also Dirisio v. Comm’r of Soc. Sec., No. 5:15-CV-1181, 2016
WL 7378930, at *4 (N.D.N.Y. Dec. 20, 2016) (“In formulating the RFC, an ALJ is not required
to adhere to the entirety of one medical source’s opinion.”) (citing Matta, 508 F. App’x at 56));
Wilburn v. Colvin, No. 1:15-CV-0058, 2016 WL 1237789, at *4 (N.D.N.Y. Feb. 29, 2016)
(finding that the ALJ was not obligated to incorporate all of a physician’s limitations into the
RFC where he afforded the opinion “significant but not great weight”). The ALJ noted which
portions of the opinion he relied on, which he rejected, and the reasons for his treatment of these
limitations. (T. 28.) Consequently, the mere fact that the ALJ found some portions of these
opinions to be consistent with the evidence as a whole while others were not is not a legal error,
but rather a proper execution of the ALJ’s duty to weigh all evidence and resolve conflicts.
Additionally, the ALJ provided a good reason supported by substantial evidence for the
weight afforded to the opinions from both of these sources, namely that the limitations either
11

were or were not consistent with the evidence. See Saxon, 781 F. Supp. 2d at 102 (“The less
consistent an opinion is with the record as a whole, the less weight it is to be given.”) (citing
Stevens v. Barnhart, 473 F. Supp. 2d 357, 362 (N.D.N.Y. 2007)); Otts v. Comm’r of Soc. Sec.,
249 F. App’x 887, 889 (2d Cir. 2007) (noting that an ALJ may reject an opinion from a treating
physician “upon the identification of good reasons, such as substantial contradictory evidence in
the record”) (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)); 20 C.F.R. §§
404.1527(c)(4), 416.927(c)(4) (indicating that the extent that an opinion is consistent with the
record as a whole is one of the factors considered when determining the amount of weight to
which an opinion is entitled). The ALJ found that the rejected restrictions opined by Dr.
Berkowitz and Dr. Goel were inconsistent with Plaintiff’s own reports of activities. (T. 27-28.)
In particular, the ALJ noted that Plaintiff was able to perform four-to-six hour shifts as a bottle
attendant during the period she alleged being disabled, work that Plaintiff reported involved
standing or walking for the totality of a shift and lifting between five-to-ten or 25 pounds,
depending on the source of her report. (T. 41, 181.) Although this work activity was not fulltime or at the level of substantial gainful activity such that it would provide conclusive proof that
Plaintiff is not disabled, it does clearly contradict the opinions from Dr. Berkowitz and Dr. Goel
that Plaintiff was unable to stand or walk for even two hours in a workday. Since Plaintiff
herself acknowledged that she was able to stand and walk at least two hours and lift at least ten
pounds in a work setting, the ALJ’s rejection of a more restrictive limitations on these abilities is
supported by substantial evidence.
Additionally, the medical evidence, while substantiating the existence of limitations, does
not support the level of greater restrictions opined by these sources. Other than instructions to
remain non-weightbearing for about two months after a foot surgery in November 2008, there
12

was no indication of any ongoing medical restriction on Plaintiff’s standing or walking ability.
(T. 383-96.) Examinations primarily noted an antalgic left gait, some foot and leg edema, foot
pain, scarring and kerotic lesions related to prior surgeries, and the presence of a fibroma in her
plantar area, but Plaintiff was also routinely observed to have intact sensation, deep tendon
reflexes, and strength. (T. 265, 311, 365-81, 522.) Throughout 2013 and 2014, Plaintiff
received only conservative care for her foot impairments that involved debridement of lesions,
paring of callouses, antibiotic ointment, light compression, and (briefly) a cream that was
intended to shrink her fibroma. (T. 365-78.) On August 19, 2014, orthopedist John DiPreta,
M.D., noted that there was nothing from a surgical standpoint that would improve her condition
and recommended she be treated conservatively with shoe modifications and inserts. (T. 311.)
Additionally, although the record does show treatment for atrial fibrillation and vertigo with
symptoms including chest pain, lightheadedness, and dizziness, cardiac testing was generally
negative or asymptomatic, and the evidence overall does not suggest any greater limitations as a
result of these impairments than the ALJ accounted for in the RFC. (T. 228-29, 254, 402-05,
408, 427, 452, 471, 476-78, 481, 507, 527, 531.) There is also no evidence contradicting the
ALJ’s finding that Plaintiff could sit for at least six hours in an eight-hour workday, and he relied
on Dr. Berkowitz’s statements supporting that finding. The medical evidence as a whole
therefore provides substantial evidence to support the weight the ALJ afforded to the opinions
from Dr. Berkowitz and Dr. Goel.
The ALJ’s findings are also supported by his notation that he afforded some weight to the
opinion from consultative examiner Dr. Puri. (T. 27.) The ALJ found that this opinion
supported the existence of exertional limitations, but was not entitled to greater weight because
Dr. Puri was not a treating source and did not provide a specific function by function analysis.
13

(Id.) Nothing in Dr. Puri’s opinion that Plaintiff had mild limitations in gait and performance of
activities of daily living and moderate limitations in lifting contradict the ALJ’s finding that
Plaintiff remained able to perform a range of sedentary work. (T. 303.)
For all the above reasons, the ALJ’s findings related to the opinion evidence are
supported by substantial evidence. Further, the evidence as a whole provides substantial support
for the RFC finding. Remand is not warranted on this basis.
B.

Whether the Credibility Finding is Supported By Substantial Evidence

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 10-12 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
In determining whether a claimant is disabled, the ALJ must also make a determination
as to the credibility of the claimant’s allegations. “‘An administrative law judge 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 set forth his or her
reasons with sufficient specificity to enable us to decide whether the determination is supported
by substantial evidence.’” Schlichting v. Astrue, 11 F. Supp. 3d 190, 205 (N.D.N.Y. 2012)
(quoting Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999)). The Second Circuit
recognizes that “‘[i]t is the function of the [Commissioner], not [reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant,’” and
that “[i]f there is substantial evidence in the record to support the Commissioner’s findings, ‘the
court must uphold the ALJ’s decision to discount a claimant’s subjective complaints of pain.’”
Schlichting, 11 F. Supp. 3d at 206 (quoting Carroll v. Sec’y of Health and Human Servs., 705
F.2d 638, 642 (2d Cir. 1983); Aponte v. Sec’y, Dep’t of Health and Human Servs., 728 F.2d 588,
14

591 (2d Cir. 1984)). Due to the fact that the ALJ has the benefit of directly observing a
claimant’s demeanor and “other indicia of credibility,” the ALJ’s credibility assessment is
generally entitled to deference. Weather v. Astrue, 32 F. Supp. 3d 363, 381 (N.D.N.Y. 2012)
(citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999)).
Plaintiff argues that the credibility finding is deficient based on the ALJ’s reliance on
factors such as inconsistencies between Plaintiff’s reports of the number of hours she worked and
her earnings records, and her performance of childcare as evidence contradicting her reported
level of limitation. (Dkt. No. 10, at 18-19 [Pl. Mem. of Law].) Plaintiff also argues that the ALJ
erred in failing to appropriately consider her reports of dizziness and fatigue and the frequency
and nature of her treatment with Dr. Berkowitz for her foot impairments. (Dkt. No. 10, at 19, 21
[Pl. Mem. of Law].) In finding Plaintiff was not entirely credible, the ALJ noted that the medical
treatment evidence did not show signs and symptoms supporting the degree of restriction she
alleged, that she had been able to work part-time as a bottle attendant for 12 years despite her
combination of impairments, that there was an inconsistency between the number of hours she
reported working and her earnings records, and that her allegations were inconsistent with her
reported activities including babysitting three young children, caring for pets, preparing meals,
cleaning dishes, and doing laundry. (T. 26-27.)
Plaintiff argues that the ALJ erred in using an apparent inconsistency between the hours
Plaintiff reported working as a bottle clerk and the average number of hours that would be
suggested by her hourly wage and her total yearly earnings. (Dkt. No. 10, at 18 [Pl. Mem. of
Law].) However, Plaintiff does not explain why this was an improper consideration, or provide
any authority to support her assertion of error. Rather than being improper, the ALJ is entitled to
consider inconsistencies between the testimony and the evidence when determining whether a
15

claimant is credible. See Tatum v. Comm’r of Soc. Sec., No. 5:14-CV-1567, 2016 WL 770206, at
*7 (N.D.N.Y. Feb. 2, 2016), report and recommendation adopted by 2016 WL 796068
(N.D.N.Y. Feb. 23, 2016) (noting that “[a]bsent a misunderstanding of plaintiff’s testimony, an
ALJ may rely on inconsistencies in a plaintiff’s testimony in evaluating the plaintiff’s
credibility”) (citing Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010)); Bodoh v. Colvin, No. 5:14CV-1004, 2015 WL 5512442, at *7 (N.D.N.Y. Sept. 15, 2015) (finding no error in the ALJ’s
reliance on inconsistencies in plaintiff’s testimony regarding receipt of worker’s compensation
benefits, activities of daily living, and work history when making an adverse credibility finding).
Because Plaintiff has not shown that the ALJ’s calculations of average hours per week based on
her yearly wages are unreasonable, the ALJ’s identification of an inconsistency in Plaintiff’s
testimony was a proper consideration when assessing credibility.
Plaintiff also argues that the ALJ should not have used her ability to babysit children
against her credibility because of her testimony that she does very little physically for them.
(Dkt. No. 10, at 18 [Pl. Mem. of Law].) However, the ALJ did not rely solely on Plaintiff’s
childcare activities, but rather cited other daily activities that were reasonably inconsistent with
Plaintiff’s alleged level of limitation. Inconsistencies between her allegations and the level of
ability suggested by reported activities is a proper consideration for the credibility analysis. See
Morris v. Comm’r of Soc. Sec., No. 12-CV-1795, 2014 WL 1451996, at *8 (N.D.N.Y. Apr. 14,
2014) (“The issue is not whether Plaintiff's limited ability to undertake normal daily activities
demonstrates her ability to work. Rather, the issue is whether the ALJ properly discounted
Plaintiff's testimony regarding her symptoms to the extent that it is inconsistent with other
evidence.”) Additionally, although Plaintiff argues that the fact she experienced significantly
exacerbated foot pain after working only four-to-six hours as a bottle attendant was an indication
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that she would not be able to work a full eight-hour day, she ignores that the RFC limits her to
sedentary work involving primarily sitting during a workday, while her work as a bottle
attendant is entirely comprised of standing and walking. (T. 26, 181.) Her reports of pain
caused by her current work activity therefore do not undermine the ALJ’s credibility finding.
Plaintiff’s argument that the ALJ ignored the frequency and nature of treatment from Dr.
Berkowitz is contradicted by the written decision. In discussing Dr. Berkowitz’s treatment
relationship, the ALJ noted the following:
She has been under the care of Richard Berkowitz, DPM, for a
number of years. (Exhibits 3F, 6F, 9F). Reports from Dr. Berkowitz
indicate that claimant experiences left foot pain of variable intensity
as well as periodic swelling and gait abnormality. Dr. Berkowitz
periodically debrided her foot lesions and pared callouses on her left
foot. (Exhibit 9F). However, examinations regularly indicate that
the claimant had no joint problem, normal reflexes and sensation,
and full muscle strength in all areas.
(T. 26-27.) The ALJ’s discussion therefore shows that he acknowledged the lengthy treatment
relationship and appropriately reviewed and considered Dr. Berkowitz’s findings and treatment.
Plaintiff’s argument that the ALJ ignored this evidence when assessing whether Plaintiff’s foot
condition imposed debilitating pain is unpersuasive.
Lastly, as Defendant notes, the ALJ did not ignore Plaintiff’s reports of symptoms such
as dizziness and fatigue because he discussed those symptoms in the decision and included
limitations in the RFC in an effort to reasonably account for those symptoms. (T. 26-27; Dkt.
No. 13, at 10 [Def. Mem. of Law].) To the extent that the ALJ did not discuss the evidence
related to these reports and symptoms is great detail, the ALJ is not required to discuss every
piece of evidence, and failure to discuss specific evidence does not indicate that an ALJ failed to
consider that evidence. See Coleman v. Comm’r of Soc. Sec., No. 5:14-CV-1139, 2015 WL
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9685548, at *5 (N.D.N.Y. Dec. 11, 2015) (quoting LaRock ex. rel. M.K. v. Astrue, No. 10-CV1019, 2011 WL 1882292, at *7 (N.D.N.Y. Apr. 29, 2011)); Barringer v. Comm’r of Soc. Sec.,
358 F. Supp. 2d 67, 78 (N.D.N.Y. 2005).
The ALJ provided multiple reasons in support of his finding that Plaintiff’s allegations
were not entirely credible. Consequently, the credibility finding is consistent with the applicable
legal standards and supported by substantial evidence. Remand is not merited on this basis.
C.

Whether the Findings at Step Five are Supported By Substantial Evidence

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 12-15 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
Although the claimant has the general burden to prove she has a disability under the
definitions of the Social Security Act, the burden shifts to the Commissioner at Step Five “‘to
show there is other work that [the claimant] can perform.’” McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014) (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). “An
ALJ may rely on a vocational expert’s testimony regarding a hypothetical as long as ‘there is
substantial record evidence to support the assumption[s] upon which the vocational expert based
his opinion’ [] and [the hypothetical] accurately reflect[s] the limitations and capabilities of the
claimant involved.” McIntyre, 758 F.3d at 151 (quoting Dumas v. Schweiker, 712 F.2d 1545,
1553-54 (2d Cir. 1983); citing Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)).
“At Step Five, the Commissioner must determine that significant numbers of jobs exist in
the national economy that the claimant can perform.” McIntyre, 758 F.3d at 151 (citing 20
C.F.R. § 404.1520(a)(4)(v)). “‘Courts have generally held that what constitutes a ‘significant
number’ is fairly minimal.’” Rosa v. Colvin, No. 3:12-CV-0170, 2013 WL 1292145, at *9
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(N.D.N.Y. Mar. 27, 2015) (quoting Fox v. Comm’r of Soc. Sec., No. 6.02-CV-1160, 2009 WL
367628, at *3 (N.D.N.Y. Feb. 13, 2009)).
Plaintiff first argues that the hypothetical question posed to the vocational expert, the
answer to which was used to support the Step Five finding, was incomplete because it did not
contain the greater restrictions opined by Dr. Berkowitz and Dr. Goel. (Dkt. No. 10, at 22-23
[Pl. Mem. of Law].) However, as Defendant notes, this argument is merely repetitive of Plaintiff
previous arguments and is unpersuasive since this Court has already concluded that the ALJ did
not err in the weight afforded to those sources’ opinions.
Plaintiff also argues that the ALJ did not meet his burden because he did not show that a
substantial number of jobs existed that Plaintiff could perform. (Dkt. No. 10, at 23 [Pl. Mem. of
Law].) Specifically, Plaintiff argues that the numbers of jobs as a surveillance system monitor
and information clerk individually do not rise to a significant number, and that election clerk jobs
would only be “available sporadically and [would be] unlikely to be filled by a claimant with the
diminished RFC presented by plaintiff.” (Id.) As an initial matter, Plaintiff’s assumption that
each individual job must exist in significant numbers is not supported by any legal or regulatory
authority. Rather, the pertinent question is whether the ALJ can show that a significant number
of overall jobs exist in the national economy. In combination, there was an estimated total of
210,650 jobs between the three occupations listed by the ALJ. (T. 29.) Based on the relevant
case law, this number certainly constitutes a substantial number for the purposes of Step Five.
Hamilton v. Comm’r of Soc. Sec., 105 F. Supp. 3d 223, 229-31 (N.D.N.Y. 2015) (collecting
cases in which the specific number of occupations in the regional and national economy provided
by the vocational experts were or were not held to be a ‘significant number’).

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Additionally, Plaintiff does not cite to any authority to support that the position of
election clerk would be available only sporadically other than her own interpretation of the
Dictionary of Occupational Title description of this jobs. (Dkt. No. 10, at 23 [Pl. Mem. of
Law].) As Defendant notes, the vocational expert did not make any such qualifications regarding
the availability of this job, and Plaintiff has not provided any persuasive evidence that the
election clerk job is available only sporadically such that it would not serve as support for the
Step Five finding, or that sporadic availability is a criteria that needs to be considered at Step
Five. To the extent that Plaintiff argues that more capable people would be hired for such a
position rather than her, that is not a consideration in the Step Five analysis. The ALJ need not
prove that Plaintiff would be hired for such a job, only that jobs are generally available. See Gill
v. Astrue, No. 1:10-CV-0985, 2011 WL 4352410, at *14 (N.D.N.Y. Sept. 15, 2011), report and
recommendation adopted by 2011 WL 4352719 (Sept. 15, 2011) (“A plaintiff will be found not
disabled if the ALJ determines the plaintiff can perform work in the national economy regardless
of whether work exists in the immediate area in which plaintiff lives, a specific job vacancy
exists for plaintiff, or plaintiff would be hired if she applied.”) (emphasis added) (citing 20
C.F.R. §§ 404.1566(a)(1)-(3)). Overall, Plaintiff’s arguments that the ALJ failed to provide
adequate evidence that a significant number of jobs existed are unpersuasive based on the
substantial evidence provided by the vocational expert’s testimony.
As the ALJ appropriately relied on the vocational expert’s testimony to support the Step
Five finding, that finding is supported by substantial evidence. Remand is not merited on this
basis.

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ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: October 13, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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