Cirulli v. Commissioner of Social Security
DECISION AND ORDER granting deft's motion for judgment on the pleadings; affirming the Acting Commissioner's determination and dismissing pltf's complaint. Signed by Magistrate Judge David E. Peebles on 9/7/17. (Copy served via regular and certified)(sfp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
ANNE L. CIRULLI,
Civil Action No.
COMMISSIONER OF SOCIAL SECURITY,
ANNE L. CIRULLI, Pro se
1565 Sawkill Road
Kingston, NY 12401
HON. GRANT JAQUITH
Acting United States Attorney
P.O Box 7198
100 S. Clinton Street
Syracuse, New York 13261
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
JEAN M. DEL COLLIANO, ESQ.
Special Assistant U.S. Attorney
DECISION AND ORDER
Plaintiff Anne L. Cirulli, who is proceeding pro se, has commenced
this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of an
adverse determination by the Acting Commissioner of Social Security. 1
Plaintiff challenges the agency's determination that she was not disabled
at the relevant times and thus ineligible to receive disability insurance
benefits under the Social Security Act. For the reasons set forth below,
defendant's motion for judgment on the pleadings is granted, the Acting
Commissioner's determination is affirmed, and plaintiff's complaint is
Plaintiff was born in July 1960, and at the time of her alleged
disability onset date of September 1, 2014, was fifty-four years old.
Administrative Transcript ("AT") 155. Plaintiff is five feet, eight inches in
height, weighs 190 pounds, and is right-hand dominant. AT 39, 196, 207.
Plaintiff graduated from high school and completed up to two years of
college course work and achieved a medical typist certificate. AT 35-36,
This matter is before me on consent of the parties pursuant to 28 U.S.C. §
636(c). Dkt. Nos. 5, 8.
Plaintiff was involved in a motor vehicle accident on July 24, 2012,
resulting in an injury to her right knee. AT 213, 420, 444. Following that
accident, plaintiff sought treatment from her general physician, Dr.
Rosemary Deleo, who treated her with oral medication, ordered physical
therapy, and arranged for magnetic resonance imaging ("MRI") testing of
the knee. AT 420. The MRI testing revealed a medial meniscus tear and a
probable small lateral meniscus tear. AT 281. Plaintiff was subsequently
seen by Dr. Mark Aierstok, an orthopedic surgeon with Orthopedic
Associates of Dutchess County, who surgically repaired her meniscus on
February 2, 2013. AT 41, 420. Plaintiff has been informed that she will
need a total right knee replacement in the future. AT 47, 420.
Following her accident, plaintiff also began to complain of moderate
to severe neck pain. AT 212, 420. MRI testing conducted of plaintiff's
cervical spine on October 28, 2012, revealed some degenerative changes,
a small bulge at C3-4 with right foraminal stenosis but minimal impression
on the posterior cord, a mild bulge at C4-5 with some foraminal stenosis
but mild impression on the left posterior cord, and disc narrowing at C5-6
and C6-7 with some bulge/osteophytes and mild central and severe
foraminal stenosis. AT 282. The report of that MRI testing concluded with
the following impression:
Multilevel degenerative changes and stenosis.
Compression of the cord is very mild without
myelomalacia. Equivocal for recent bone trauma in
the C7 posterior spinous process and C7
In or about 2006, plaintiff also began to experience lumbar back
pain. AT 347. MRI testing conducted on July 24, 2006, revealed some
bulging discs and the following impression:
Severe bilateral facet arthropathy from L3 to S1.
Forminal stenoses at L4-5 and L5-S1 and mild to
moderate central spinal stenosis at L4-5 are about
the same as on the 2004 MR.
AT 280. An x-ray of plaintiff's lumbosacral spine, taken on April 2, 2015,
revealed some degenerative changes with Grade I spondylolisthesis of L4
over L5 and facet joint arthropathy. AT 352.
In addition to these conditions, plaintiff has now developed
difficulties with her left knee. Following attempts at less invasive treatment,
plaintiff underwent surgery by Dr. Aierstok on April 15, 2015, to repair a
medical meniscal tear. AT 41, 360-61. Plaintiff is required to use a cane to
ambulate. AT 46. It has also been recommended that plaintiff undergo a
left knee replacement. AT 47. Plaintiff has been administered cortisone
injections for her left knee condition, but has not experienced any relief
from those shots. AT 42. Plaintiff utilizes braces on both knees as
prescribed by Dr. Aierstok. AT 48. Plaintiff also complains of arthritis in
both hands, as well as in her lumbar and cervical spine area, coupled with
numbness and tingling from her neck and back into her feet and hands.
Plaintiff has received medical treatment for her various conditions
from several sources. Plaintiff's knee conditions have been treated by Dr.
Aierstok and Dr. Richard Dentico, also with Orthopedic Associates, who
has provided plaintiff with steroid injections and a nerve block. AT 369-70,
374-75. Plaintiff's lumbar spine condition has been treated by Dr. Perkins,
who states that plaintiff is a candidate for spinal surgery. AT 433-37. Dr.
Deleo, plaintiff's family physician, has seen plaintiff for a variety of
conditions. AT 382-403, 438-40. Plaintiff was also seen by Dr. Ze'er Weitz
in January 2015 for evaluation of her back and knee pain, AT 298-99, and
again by Dr. John Ioia at the Kingston Well and Joint Center on April 3,
2013. AT 418-19. In his report, Dr. Ioia, noted that "[u]ltimately joint
replacement will be considered but the patient is quite oyung [sic] and
healthy." AT 419.
In addition to her physical conditions, plaintiff also suffers from
depression and anxiety. AT 42-43. Although she has been prescribed
Celexa and BuSpar for those conditions, plaintiff has not undergone any
specialized mental health treatment. Id. Plaintiff states that those
medications have helped her with her mental health symptoms. Id.
Plaintiff has also been prescribed Mobic, Flexeril, and Percocet. AT
43, 45, 198, 341, 347-48. According to plaintiff, the medications she takes
cause her to experience dizziness and drowsiness, and preclude her from
driving. AT 45.
For several years, plaintiff was employed as a medical receptionist
for River Radiology, located in Kingston, New York. AT 38-39. In that
position, she worked mostly in a seated position and was required to carry
some files and medical records. AT 39. Plaintiff left her employment with
River Radiology following the motor vehicle accident and became a coowner of a pizzeria with her husband. AT 36-37, 46, 57. Since September
2014, however, plaintiff has had no involvement in the operation of the
business. AT 40, 197, 213, 341.
Proceedings Before the Agency
Plaintiff applied for disability insurance benefits pursuant to Title II of
the Social Security Act on December 24, 2014. AT 155-56. In her
application, plaintiff alleged a disability onset date of July 24, 2012. 2 Id.
The alleged onset date was later amended to September 1, 2014. AT 17.
Plaintiff's claim was initially denied on April 9, 2015. AT 73-83. Thereafter,
a hearing was conducted on June 24, 2016, before Administrative Law
Judge ("ALJ") Robert Gonzalez. AT 32-72. Both plaintiff and a vocational
expert testified at the hearing. Id. ALJ Gonzalez subsequently issued a
written decision on July 25, 2016, in which he found that plaintiff was not
disabled at the relevant times and therefore not entitled to the benefits
sought. AT 14-31. Id. The ALJ's opinion became a final determination of
the agency on October 18, 2016, upon the denial by the Social Security
Administration Appeals Council of plaintiff's request for review of the
decision. AT 1-6.
Proceedings in This Court
Acting pro se, plaintiff commenced this action on December 12,
2016. Dkt. No. 1. On March 30, 2017, counsel for the Acting
Commissioner filed an administrative transcript of the evidence and
proceedings before the agency. 3 Dkt. No. 12. With the filing of plaintiff's
brief on April 20, 2017, Dkt. No. 15, and that on behalf of the Acting
This matter has been treated in accordance with the procedures set forth in
General Order No. 18. Under General Order No. 18, in an action such as this, once
issue has been joined and the parties have submitted their briefs, the court considers
the case as if both parties have submitted a motion for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Commissioner on May 31, 2017, Dkt. No 16, the matter is now ripe for
Scope of Review
A court's review under 42 U.S.C. § 405(g) of a final decision by the
Commissioner of Social Security is limited; that review requires a
determination of whether the correct legal standards were applied, and
whether the decision is supported by substantial evidence. Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126,
131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998);
Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (Hurd, J.)
(citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Where there
is reasonable doubt as to whether the Commissioner applied the proper
legal standards, his decision should not be affirmed even though the
ultimate conclusion reached is arguably supported by substantial
evidence. Martone, 70 F. Supp. 2d at 148 (citing Johnson, 817 F.2d at
986). If, however, the correct legal standards have been applied, and the
ALJ's findings are supported by substantial evidence, those findings are
conclusive, and the decision should withstand judicial scrutiny regardless
of whether the reviewing court might have reached a contrary result if
acting as the trier of fact. Veino, 312 F.3d at 586; Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988); Barnett v. Apfel, 13 F. Supp. 2d 312, 314
(N.D.N.Y. 1998) (Hurd, M.J.); see also 42 U.S.C. § 405(g).
The term "substantial evidence" 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(1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Jasinski v.
Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). To be substantial, there must
be "'more than a mere scintilla'" of evidence scattered throughout the
administrative record. Richardson, 402 U.S. at 401 (quoting Consol.
Edison Co., 308 U.S. at 229). "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 (1951)).
When a reviewing court concludes that incorrect legal standards
have been applied, and/or that substantial evidence does not support the
agency's determination, the agency's decision should be reversed. 42
U.S.C. § 405(g); see Martone, 70 F. Supp. 2d at 148. In such a case the
court may remand the matter to the Commissioner under sentence four of
42 U.S.C. § 405(g), particularly if deemed necessary to allow the ALJ to
develop a full and fair record or to explain his reasoning. Martone, 70 F.
Supp. 2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)).
A remand pursuant to sentence six of section 405(g) is warranted if new,
non-cumulative evidence proffered to the district court should be
considered at the agency level. See Lisa v. Sec'y of Dep't of Health &
Human Servs., 940 F.2d 40, 43 (2d Cir. 1991). Reversal without remand,
while unusual, is appropriate when there is "persuasive proof of disability"
in the record and it would serve no useful purpose to remand the matter
for further proceedings before the agency. See Parker, 626 F.2d at 235;
see also Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir.
1992); Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 644 (2d
Disability Determination: The Five-Step Evaluation Process
The Social Security Act defines "disability" to include the "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).
In addition, the Social Security Act requires that a claimant's
physical or mental impairment or impairments [be]
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, regardless of whether such
work exists in the immediate area in which he lives,
or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
Id. at § 423(d)(2)(A).
The agency has prescribed a five-step evaluative process to be
employed in determining whether an individual is disabled. See 20 C.F.R.
§§ 404.1520, 416.920. The first step requires a determination of whether
the claimant is engaging in substantial gainful activity; if so, then the
claimant is not disabled, and the inquiry need not proceed any further. Id.
at §§ 404.1520(b), 416.920(b). If the claimant is not gainfully employed,
then the second step involves an examination of whether the claimant has
a severe impairment or combination of impairments that significantly
restricts her physical or mental ability to perform basic work activities. Id.
at §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from such
an impairment, the agency must next determine whether it meets or
equals an impairment listed in Appendix 1 of the regulations. Id. at §§
404.1520(d), 416.920(d), Part 404, Subpt. P, App. 1. If so, then the
claimant is "presumptively disabled." Id. at §§ 404.1520(d), 416.920(d);
see also Martone, 70 F. Supp. 2d at 149 (citing Ferraris v. Heckler, 728
F.2d 582, 584 (2d Cir. 1984)).
If the claimant is not presumptively disabled, step four requires an
assessment of whether the claimant's residual functioning capacity
("RFC") precludes the performance of her past relevant work. 20 C.F.R. §§
404.1520(e), 416.920(e). If it is determined that it does, then as a final
matter, the agency must examine whether the claimant can do any other
work. Id. at §§ 404.1520(f), 416.920(f).
The burden of showing that the claimant cannot perform past work
lies with the claimant. Burgess v. Astrue, 537 F.3d 117, 118 (2d Cir. 2008);
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Ferraris, 728 F.2d at 584.
Once that burden has been satisfied, however, it becomes incumbent
upon the agency to prove that the claimant is capable of performing other
work. Burgess, 77 F.3d at 118; Perez, 77 F.3d at 46. In deciding whether
that burden has been met, the ALJ should consider the claimant's RFC,
age, education, past work experience, and transferability of skills.
Ferraris, 728 F.2d at 585; Martone, 70 F. Supp. 2d at 150.
The ALJ's Decision
In his decision, ALJ Gonzalez applied the familiar five-step
sequential test for determining the issue of disability, as described above.
AT 18-19. The ALJ first concluded that plaintiff had not engaged in
substantial gainful activity since September 1, 2014, the amended alleged
onset date of her disability. AT 19. At step two he found that plaintiff
suffers from several severe impairments, including left knee osteoarthritis,
status post left knee arthroscopic surgery, status post right knee
arthroscopic surgery, degenerative disc disease and stenosis of the
lumbar spine, degenerative disc disease of the cervical spine, and chronic
pain syndrome. Id. In arriving at that conclusion ALJ Gonzalez rejected, as
not sufficiently severe to meet even the modest requirements at step two,
the physical impairments of hypertension and hyperlipidemia, which he
observed were stable and/or well-controlled with medication. AT 20. ALJ
Gonzalez also concluded that plaintiff's mental impairments of depression
and anxiety are non-severe after determining that they do not, even in
combination, cause more than a minimal limitation in plaintiff's ability to
perform basic mental work activities. AT 20. In arriving at his step-two
determination, ALJ Gonzalez accorded great weight to the opinions
authored by K. Lieber-Diaz, Ph.D., a state agency mental consultant, who
completed a Psychiatric Review Technique regarding plaintiff's limitations
in the areas of daily living, social functioning, and maintaining
concentration, persistence, or pace, and discerned no repeated episodes
of decompensation, as well as Lauren Stack, Ph.D., who conducted a
psychiatric evaluation of the plaintiff. AT 21.
At step three of the sequential analysis, ALJ Gonzalez concluded
that plaintiff's conditions do not meet or medically equal any of the listed,
presumptively disabling conditions set forth in the Commissioner's
regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 1. AT 21. ALJ Gonzalez
specifically considered listings 1.02 (major dysfunction of a joint), 1.04
(disorders of the spine), 12.04 (depression, bipolar related disorders) and
12.06 (anxiety and obsessive/compulsive disorders). AT 21. The ALJ then
determined that plaintiff retains a RFC to perform sedentary work, except
that she can only occasionally climb and descend stairs, occasionally push
and pull, and cannot stoop, crouch, kneel, crawl, drive motor vehicles, or
work at unprotected heights, and requires a cane to ambulate. 4 AT 21-22.
Sedentary work is defined by regulation as follows:
(a) Sedentary work. Sedentary work involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although
a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary
in carrying out job duties. Jobs are sedentary if walking and
Applying that RFC, aided by the testimony of a vocational expert, ALJ
Gonzalez concluded at step four that plaintiff is capable of performing her
past relevant work as a medical receptionist, characterized by the
vocational expert as sedentary and semi-skilled, both as generally
performed and based upon her hearing testimony, as it was actually
performed by plaintiff. AT 26. The ALJ therefore concluded, without
proceeding to step five of the sequential analysis, that plaintiff was not
disabled at the relevant times. AT 27.
In her letter brief, submitted pro se, plaintiff claims that she was to
undergo a left-knee replacement in June 2017, needs a right-knee total
replacement, and will undergo lumbar surgery. 5 Dkt. No. 15. She contends
that, as a result of her physical and mental impairments, she is unable to
sit for longer than thirty minutes at a time, cannot stand for any length of
standing are required occasionally and other sedentary
criteria are met.
20 C.F.R. § 404.1567(a). In addition, a subsequent ruling has clarified that sedentary
work generally involves periods of standing or walking for a total of two hours in an
eight-hour work day, with sitting up to a total of approximately six hours in a similar
period. Social Security Ruling 83-10.
In a subsequent letter submitted to the court on or about July 27, 2017, plaintiff
confirms that she underwent the contemplated left-knee replacement surgery. Dkt. No.
time, cannot walk without pain, and is continuously drowsy as a result of
the medications that she has been prescribed. Id.
In her letter brief, plaintiff disputes the step-two finding that she has
no limitations in the activities of daily living, claiming that she has
difficulties getting out of bed and showering without assistance. Dkt. No.
15 at 1. At step two, the ALJ appropriately considered the limitations
resulting from plaintiff's mental impairments in her ability to perform
activities of daily living, maintain social functioning, and maintain
concentration, persistence, or pace, and additionally examined whether
plaintiff had experienced any repeated episodes of decompensation – the
four relevant inquiries under the prescribed special technique, tracking the
paragraph B criteria for evaluating mental disorders under the
Commissioner's regulations. In doing so he relied heavily upon opinions of
Dr. Lieber-Diaz, who reviewed plaintiff's medical records and concluded
that she has only mild restrictions in the three broad domains of daily
living; social functioning; and concentration, persistence, and pace. AT 2021; see AT 79. While it is true that the ALJ found no limitations in those
three areas, even a finding of a mild limitation in all three, as found by Dr.
Lieber-Diaz, AT 79, would not be sufficient to find disability. To support a
presumptive disability finding under Listings 12.04 and 12.06, for example,
addressing affective and anxiety-related disorders, respectively, a claimant
must suffer from a marked restriction in at least two of the three domain
areas under discussion. See 20 C.F.R. Pt. 404, Subpt. P. App. 1, §
12.04(B); see also 20 C.F.R. § 404.1520(c). The opinions of Dr. LieberDiaz, though not an examining source, can provide substantial evidence to
support the determination by the Commissioner that the paragraph B
criteria were not met in this case. Mongeur v. Heckler, 722 F.2d 1033,
1039 (2d Cir. 1983); accord, Petrie v. Astrue, 412 F. App'x 401, 405 (2d
The ALJ's determination regarding the severity of plaintiff's mental
condition is also supported by the results of a consultative examination by
Dr. Lauren Stack. During her examination, Dr. Stack noted that plaintiff's
demeanor was cooperative and manner of relating was adequate; she was
well-groomed; her motor behavior was normal; and her eye contact was
appropriate. AT 342. Dr. Stack also observed that plaintiff's thought
processes appeared coherent and goal-directed with no evidence of
hallucinations, delusions, or paranoia; her affect was of full range and
appropriate in speech and thought content; she appeared oriented to
person, place, and time; her attention and concentration were mildly
impaired due to emotional distress secondary to pain, as were her recent
and remote memory skills; her cognitive functioning was average; and her
insight and judgment were fair. Id. at 342-43. Dr. Stack concluded by
rendering the following medical source opinion:
The claimant has no impairment in her ability to
follow and understand simple directions and
instructions, perform simple tasks independently,
or make appropriate decisions. She has mild
impairment in her ability to maintain attention and
concentration, learn new tasks, relate adequately
with others, maintain a regular schedule, and
appropriately deal with stress. These difficulties are
caused by symptoms of depression and anxiety.
AT 344. Dr. Stack diagnosed plaintiff as suffering from an "[a]djustment
disorder with mixed anxiety and depressed mood." Id.
The ALJ's finding of non-severity of plaintiff's mental condition is also
supported by plaintiff's testimony offered at the hearing. Plaintiff stated
that, with medication, she had been able to control her feelings of
depression and anxiety. AT 43, 439. In addition, notes of various treating
sources, including Drs. Weitz, Deleo, Mendoza, and Dentico, have, on
several occasions found plaintiff's mood to be normal and her mental
status unremarkable. See, e.g., AT 299, 367, 372, 391, 423.
In sum, I conclude that the ALJ's determination regarding the nonseverity of plaintiff's mental condition at step two is supported by
substantial evidence. 6
Plaintiff next appears to challenge the ALJ's finding regarding her
RFC, which served as the lynchpin of his determination that plaintiff is not
A claimant's RFC represents a finding of the range of tasks she is
capable of performing notwithstanding the impairments at issue. 20 C.F.R.
§ 404.1545(a). An RFC determination is informed by consideration of a
claimant's physical abilities, mental abilities, symptomology, including pain,
and other limitations that could interfere with work activities on a regular
and continuing basis. Id.; Martone, 70 F. Supp. 2d at 150.
To properly ascertain a claimant's RFC, an ALJ must assess
plaintiff's exertional capabilities, which include her ability to sit, stand, walk,
lift, carry, push, and pull. 20 C.F.R. §§ 404.1545(b), 404.1569a.
Nonexertional limitations or impairments, including impairments that result
As the Commissioner notes, any error at this stage would be harmless in this
case because the ALJ found other conditions to be sufficiently severe at step two and
continued with the sequential analysis, considering the effects of all of plaintiff's
impairments in formulating plaintiff's RFC and in connection with this step-four
determination. Reices-Colon v. Astrue, 523 F. App'x 796, 798 (2d Cir. 2013).
in postural and manipulative limitations, must also be considered. Id.; see
also 20 C.F.R. Part 404, Subpt. P, App. 2 § 200.00(e). When making an
RFC determination, an ALJ must specify those functions that the claimant
is capable of performing; conclusory statements concerning her
capabilities, however, will not suffice. Martone, 70 F. Supp. 2d at 150
(citing Ferraris, 728 F.2d at 587). An administrative RFC finding can
withstand judicial scrutiny only if there is substantial evidence in the record
to support each requirement listed in the regulations. Martone, 70 F. Supp.
2d at 150 (citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y.
1990) (McAvoy, J., adopting report and recommendation by Di Bianco,
As the Second Circuit has noted, it is the plaintiff who bears the
burden of demonstrating limitations that must be included in an RFC.
Stanton v. Astrue, 370 F. App'x 231, 234 (2d Cir. 2010); Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009). In this instance, having carefully
reviewed the available medical evidence, I conclude that the physical and
mental components of the ALJ's RFC finding are supported by substantial
evidence, and plaintiff has failed to carry her burden of demonstrating the
existence of more limited restrictions in her ability to perform work-related
To be sure, plaintiff suffers from several objectively confirmed
conditions associated with her cervical and lumbar spines, as well as both
of her knees. It may be, as plaintiff asserts, that she does suffer from
some degree of discomfort as a result of those conditions. The fact that
she suffers from discomfort, however, does not automatically qualify her
as disabled because "disability requires more than mere inability to work
without pain." Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983). In
addition, the fact that plaintiff may be undergoing knee replacements
and/or lumbar surgery do not, in and of themselves, qualify her as
disabled. To establish disability, the plaintiff must demonstrate the
existence of a condition that is reasonably expected to persist for twelve
months or more. 20 C.F.R. §§ 404.1509, 416.909. In this case, those
conditions appear to be fairly transitory and, hopefully, reduce plaintiff's
It is clear that, in arriving at his RFC determination, the ALJ
considered all available objective evidence in the record, including MRI
testing results, the opinions and notes of plaintiff's treating physicians, and
those of consultative examiner Dr. Figueroa. The opinions of Dr. Figueroa,
which were afforded "significant weight" based upon their consistency with
other evidence in the record, found no limitation in plaintiff's ability to sit for
the approximately six hours required to perform sedentary work. AT 350.
To the extent sedentary work requires standing or walking for two hours
out of an eight-hour work day, Dr. Figueroa noted that plaintiff is able to
ambulate with a cane and was able to get on and off the examination table
without assistance and rise from her chair without difficulty. AT 348-49.
Likewise, Drs. Perkins and Dentico both noted that plaintiff walks with a
non-antalgic gait. AT 368, 372, 434; see also AT 391 (Dr. Deleo noting
some limitations in the ability for plaintiff to walk but finding her gait and
station to be normal). Similarly, treating physicians noted that plaintiff has
normal range of motion in her hips, normal range of motion in her left
knee, negative straight leg raises bilaterally, and is able to get on and off
an examination table independently. AT 357, 363, 367, 391, 434-35, 445.
Drs. Weitz, Dentico, and Perkins have also noted that plaintiff maintains
generally full strength in her lower extremities. AT 299, 367, 372, 434.
Plaintiff's testimony suggests far greater limitations than those found
by ALJ Gonzalez. Undeniably, an ALJ must take into account a plaintiff's
subjective complaints in rendering the five-step disability analysis. 20
C.F.R. §§ 404.1529(a), (d), 416.929(a), (d). When examining the issue,
however, the ALJ is not required to blindly accept the subjective testimony
of a claimant. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Rather, an
ALJ retains the discretion to "weigh the credibility of the claimant's
testimony in light of the other evidence in the record." Genier, 606 F.3d at
A plaintiff's subjective complaints are entitled to great weight when
they are consistent with and supported by objective clinical evidence
demonstrating that she has a medical impairment that "could reasonably
be expected to produce the pain or other symptoms alleged." 7 20 C.F.R.
§§ 404.1529(a), 416.929(a); Simmons v. United States R.R. Ret. Bd., 982
F.2d 49, 56 (2d Cir. 1992) (citing Rivera v. Schweiker, 717 F.2d 719, 725
(2d Cir. 1983)). The ALJ must consider other factors to assess a
claimant's subjective symptomology, including (1) the claimant's daily
activities; (2) the location, duration, frequency, and intensity of any
symptoms; (3) any precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medications taken; (5) other
treatment received; and (6) other measures taken to relieve symptoms. 20
C.F.R. §§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi).
After considering plaintiff’s subjective testimony, the objective
medical evidence, and any other relevant factors, the ALJ may accept or
Under the Social Security Act, a claimant must provide medical evidence
supporting a finding of disability. 42 U.S.C. § 423(d)(5)(A).
reject claimant's subjective testimony. 20 C.F.R. §§ 404.1529(c)(4),
416.929(c)(4); Martone, 70 F. Supp. 2d at 151. If such testimony is
rejected, however, the ALJ must explicitly state the basis for doing so with
sufficient particularity to enable a reviewing court to determine whether
those reasons for disbelief were legitimate, and whether the determination
is supported by substantial evidence. Tome v. Schweiker, 724 F.2d 711,
713 (2d Cir. 1984); accord, Martone, 70 F. Supp. 2d at 151. Where the
ALJ's findings are supported by substantial evidence, the decision to
discount subjective testimony may not be disturbed on court review.
Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d
Cir. 1984); accord, Monette v. Colvin, 654 F. App'x 516, 519 (2d Cir.
Addressing plaintiff's reported symptomology, ALJ Gonzalez first
noted plaintiff's claims. AT 22. He then proceeded to address the various
medical evidence in the record, and concluded that, while plaintiff's
medically determinable impairments could reasonably be expected to
cause the alleged symptoms, her reports were not fully credible.8 Id. at 22-
It is clear that the ALJ considered the various MRI testing results and x-rays in
arriving at his decision. See, e.g., AT 22 (referring to AT 280 (lumbar spine MRI)); AT
23 (referring to AT 314 (bilateral hip x-ray)); AT 24 (referring to AT 364-65 (MRI of left
knee)); AT 24 (referring to AT 378-79 (MRI of lumbar spine)); AT 25 (referring to AT
443 (x-rays of the left knee)).
26. After doing so, he concluded that plaintiff's claims, to the effect that
she primarily lays down all day, does no housework, can only walk a few
feet, and can only lift one pound, were not fully credible. AT 25. That
determination is well supported by substantial evidence, including the
opinions of consultative examiner Dr. Figuerora, which can constitute
substantial evidence supporting an RFC finding. Mongeur, 412 F. App'x at
Plaintiff argues that the Commissioner's determination failed to take
into account her inability to drive, and thus commute to work. To the
contrary, however, the ALJ did address plaintiff's difficulties in driving and
included a limitation related to that difficulty in his RFC finding. AT 21-22.
In any event, there is record evidence suggesting that, according to
plaintiff herself, she goes out alone, is able to ride in the car when she
travels, and, indeed, does drive. AT 210-11.
In sum, the ALJ's credibility finding and RFC determination draw
support from substantial evidence in the record.
At step four, the ALJ relied on the testimony of a vocational expert
when determining that plaintiff is able to perform her past work as a
receptionist, both as performed in the past and as generally performed. AT
26. The vocational expert testified that a person with plaintiff's RFC would
be able to fulfill the duties of plaintiff's past work as a receptionist, as
generally performed. AT 63-64. Such testimony is appropriate and
provided substantial evidence for the step-four determination by the
Commissioner in light of my finding that the RFC is supported by
substantial evidence. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010).
Accordingly, the determination at step four that plaintiff is not disabled is
supported by substantial evidence.
SUMMARY AND ORDER
Having carefully considered plaintiff's arguments and reviewed the
available evidence, I conclude that the finding that plaintiff is capable of
performing her past relevant work, and is therefore not disabled, is the
product of the application of proper legal principles and is supported by
substantial evidence. Accordingly, it is hereby
ORDERED that defendant's motion for judgment on the pleadings is
GRANTED; and it is further
ORDERED that the Acting Commissioner's determination is
AFFIRMED, and plaintiff's complaint in this matter is DISMISSED; and it is
ORDERED that the clerk of the court serve a copy of this decision
and order upon the parties in accordance with this court's local rules.
September 7, 2017
Syracuse, New York
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