Sickles v. Astrue

Filing 24

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 18 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Hummel's October 3, 2013 Report-Recommendation and Order is ADOPTED in its entirety for the reas ons stated therein; and the Court further ORDERS that the Commissioner's decision denying disability benefits is AFFIRMED; and the Court further ORDERS that the Clerk of the Court shall enter judgment and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 2/27/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JENNIFER SICKLES,
Plaintiff,
vs.

12-CV-774
(MAD/CFH)

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

LACHMAN & GORTON
Post Office Box 89
1500 East Main Street
Endicott, New York 13761
Attorneys for Plaintiff

PETER A. GORTON, ESQ.

HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
100 South Clinton Street
Syracuse, New York 13261-7198
Attorneys for Defendant

MARIA P. FRAGASSI SANTANGELO
Special Assistant United State Attorney

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Jennifer Sickles brought this action pursuant to 42 U.S.C. § 405(g), seeking a
review of the Commissioner of Social Security's ("Commissioner") decision to deny her
application for Disability Insurance Benefits ("DIB") and Social Security Income ("SSI") under
the Social Security Act, 42 U.S.C. § 401 et seq. The matter was referred to United States
Magistrate Judge Christian F. Hummel for a Report-Recommendation and order pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3(d). Magistrate Judge Hummel recommended that this Court

affirm the decision of the Commissioner denying Plaintiff's application for benefits and dismiss
Plaintiff's complaint. Presently before the Court is Plaintiff's objection to the ReportRecommendation and Order. See Dkt. No. 21.

II. BACKGROUND
A.

Facts
Born on June 16, 1978, Plaintiff was thirty years old when she applied for disability

benefits. Plaintiff obtained her general educational development ("GED") degree as well as
vocational training as a certified nurses' assistant ("CNA"); however that license has since
expired. Plaintiff's previous work experience includes food service and being a nurse's aid and
teacher's assistant. Plaintiff alleges disability from multiple impairments including degenerative
bone disease and bulging discs in her back.

B.

Procedural History
Plaintiff filed applications for DIB on May 6, 2009, and for SSI on May 7, 2009, pursuant

to the Social Security Act, 42 U.S.C. § 401 et seq., claiming an alleged onset of her disability as
of February 13, 2009. Dkt. No. 9-2 at 11. Those applications were denied on September 2, 2009.
Dkt. No. 9–3 at 2–4. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"),
which was eventually held on February 1, 2011, through video conference before Administrative
Law Judge Robert E. Gale. Dkt. No. 9–2, 26; Dkt. No. 9–4 at 19. In a decision dated April 22,
2011, the ALJ held that Plaintiff was not disabled under 42 U.S.C. § 216(i) and § 223(d) of the
Social Security Act, and therefore was not entitled to disability benefits. Dkt. No. 9-2 at 19.
Plaintiff's counsel filed a timely request for review with the Appeals Council. On April 20, 2012,
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the Appeals Council affirmed the ALJ's decision, thus making the ALJ's findings the final
decision of the Commissioner. Dkt. No. 1 at3.
On May 9, 2012, Plaintiff sought review of the Commissioners's final decision pursuant to
42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) by the United States District Court of the Northern
District of New York. The matter was referred to United States Magistrate Judge Christian F.
Hummel pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). In a Report-Recommendation
and Order issued on October 3, 2013, Magistrate Judge Hummel recommended that Plaintiff's
motion for a finding of disability be denied and the Commissioner's motion for judgment on the
pleadings be granted. Thereafter, on October 22, 2013, Plaintiff's counsel submitted objections to
the Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b)(1).

C.

Report-Recommendation and Order
In his the Report-Recommendation and Order Magistrate Judge Hummel held that: 1) the

ALJ's decision to accord little evidentiary weight to the assessments conducted by Doctors
Magurno and Fang was not in error and in doing so, the ALJ did not err in, a) addressing the
medical opinions, and b) finding that there was substantial evidence to support his conclusions;
and 2) the ALJ did not err in assessing Plaintiff's credibility by failing to evaluate required factors
to determine pain level as the determination was supported by substantial evidence. Dkt. No. 18,
17.
As best as this Court is able to decipher from Plaintiff's Brief in Support of Objections
("Plaintiff's Objections"), Plaintiff has objected to the Report-Recommendation and Order on the
following grounds:

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I.

The ALJ erred in his RFC determination because the
administrative record does not contain sufficient "medical
opinions" to support the ALJ's decision or the Magistrate
Judge's affirmation of that decision;

II.

The ALJ erred in his RFC determination because he
ignored the only medical opinions of record as to the
period during which Plaintiff could not work;

III.

The ALJ erred in his RFC determination because
Defendant's expert witness, as a treating source, provided
an assessment of Plaintiff that precludes the ALJ's RFC
determination;

IV.

Magistrate Judge Hummel incorrectly affirmed the ALJ's
credibility determination;

V.

The ALJ erred in his credibility determination because he
failed to indicate in his decision whether Plaintiff's daily
activities were taken into account;.

VI.

The ALJ erred in his credibility determination because he
misconstrued Plaintiff's statements;

VII. The ALJ erred in his credibility determination because he
failed to specifically mention all of the factors required in
a credibility by regulation; and
VIII. The ALJ erred in his credibility determination because his
decision to accord less than controlling weight to
Plaintiff's testimony was based purely on the ALJ's
assessment of the medical records differing from the
assessments of Doctors Magurno and Fang.
See Dkt. No. 21.
III. DISCUSSION
A.

Standard of Review
When reviewing the Commissioner's final decision, the court must determine whether the

Commissioner applied the correct legal standards and whether substantial evidence supports the
decision. See Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v.
Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Although the Commissioner is ultimately responsible
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for determining a claimant's eligibility for benefits, an ALJ makes the actual disability
determination; and that decision is subject to judicial review on appeal. A court may not affirm
an ALJ's decision if it reasonably doubts that the ALJ applied the proper legal standards, even if it
appears that there is substantial evidence to support the ALJ's decision. See id. (citing [Johnson,
817 F.2d] at 986). Additionally, the ALJ must set forth the crucial factors justifying his findings
with sufficient specificity to allow a court to determine whether substantial evidence supports the
decision. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (citation omitted).
A court's factual review of the Commissioner's decision is limited to the determination of
whether substantial evidence in the record supports the decision. See 42 U.S.C. § 405(g); see also
Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as
'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quotations omitted). It must be "'more than
a mere scintilla'" of evidence scattered throughout the administrative record. Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotation omitted).

B.

Supplemental Security Income
Every individual who is insured for disability insurance, has not attained retirement age,

has filed application for disability insurance benefits, and is disabled shall be entitled to a
disability insurance benefit for each month beginning with the first month after his waiting period
in which he becomes so entitled to such insurance benefits. See 42 U.S.C. § 423. 42 U.S.C. §
423(d)(1)(A), in pertinent part, defines "disabled" as the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected . . . to last for a continuous period of not less than 12 months." The definition is
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functionally identical to that which is set forth in 42 U.S.C. § 1382c; 42 U.S.C. § 416(i); 20
C.F.R. § 404.1505(a). While, 42 U.S.C. § 423(c)(2), in pertinent part, defines "waiting period" as
"the earliest period of five consecutive calendar months throughout which the individual with
respect to whom such application is filed has been under a disability and which begins not earlier
than with the first day of the seventeenth month before the month in which such application is
filed if such. The plaintiff carries the initial burden of proving that he or she is disabled within
the meaning of the Act. See 42 U.S.C. § 423(d)(5)(A); see also Draegert v. Barnhart, 311 F.3d
468, 472 (2d Cir. 2002).
The Commissioner follows a five-step process to evaluate disability claims, determining
the following:
(1) whether the claimant is currently engaged in substantial gainful
activity – if so, the claimant is not disabled, (2) whether the
claimant has a severe impairment that limits the claimant's mental
or physical ability to do basic work activities, (3) if the claimant has
a severe impairment, whether the claimant has a "listed
impairment" (an impairment listed in 20 C.F.R., Part 404, Subpart
P, Appendix 1) – if so, there is an irrebuttable presumption of
disability, (4) if the impairment is not "listed", whether the claimant
has residual functional capacity to perform the claimant's past work,
notwithstanding the claimant's severe impairment, and (5) if the
claimant is unable to perform past work, whether there is other
work the claimant would be able to perform.
Credle v. Apfel, 4 Fed. Appx. 20, 22 (2d Cir. 2001) (citing Shaw v. Carter, 221 F.3d 126, 132 (2d
Cir. 2000) (summarizing five-step analysis under 20 C.F.R. §§ 404.1520, 416.920)); see also
Sweet v. Astrue, 510 Fed. Appx. 26, 27-28 (2d Cir. 2013) (quoting Rivera v. Schweiker, 717 F.2d
719, 722 (2d Cir. 1983)). "The claimant bears the burden of proof at steps one through four; at
step five, the SSA bears a limited burden, but 'need only show that there is work in the national
economy that the claimant can do; [it] need not provide additional evidence of the claimant’s
residual functional capacity.'" Pellam v. Astrue, 508 Fed. Appx. 87, 89 (2d Cir. 2013) (quoting
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Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
Plaintiff's various contentions surround the grounds upon which the ALJ based his RFC
determination, and Magistrate Judge Hummel's affirmation of that determination.

C.

Medical Opinions
Plaintiff contends that the administrative record does not contain sufficient "medical

opinions" to support the ALJ's decision. Dkt. No. 21 at 1. Specifically, Plaintiff argues that the
evidence in the record, representing Plaintiff's medical history from 6/20/08 through 5/27/09,
exhibits 1F–4F, do not constitute or contain "medical opinions" upon which the ALJ could rely as
a basis for the RFC determination. Id. at 1.
Plaintiff's assertion appears to center around a distinction she has drawn, without
meaningful clarification, between "medical opinions" and the remainder of the evidence in the
record. She contends the only actual "medical opinions" contained in the administrative record
are those of Doctors Justine Magurno and Xiao Fang. Plaintiff, however, has not offered any
rationale, beyond conclusory allegations, to support her argument that the portions of the record
relied upon by the ALJ do not constitute "medical opinion."1
Even if Plaintiff had offered any noteworthy rationale as to the insufficiency of the ALJ's
reliance on portions of the administrative record as "medical opinions," this Court does not find
the definition of what constitutes "medical opinion", for purposes of RFC determinations, to be

Plaintiff ignores the fact that the documentation concerning diagnostic or preventative
medicine, involving visual diagnosis, diagnosis by interpretation of laboratory data, treatment,
observations about prescribed treatments, or the patients progress, etc., is at its most basic level
nothing more than a medical professionals account of what they perceived, made through the
lense of their medical training, in their empirical observations of a patient. Or more simply, what
a medical professional observes or does, within the scope of their profession, is medical opinion.
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so narrowly interpreted that it requires an adoption of Plaintiff's implied distinction and a finding
of error on behalf of the ALJ. A medical opinion, for purposes of an ALJ's disability
determination, is defined as evidence,2 submitted to or obtained by the ALJ, containing
"statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of [the claimant's] impairment(s), including [] symptoms,
diagnosis and prognosis," the claimant's capabilities despite the impairment(s), and any physical
or mental restrictions. 20 C.F.R. § 404.1527. The regulatory language provides ample flexibility
for the ALJ to consider a broad array of evidence as "medical opinions." See 20 C.F.R. §
404.1527. As such this Court agrees with Magistrate Judge Hummel that the impressions

The Social Security Act requires a claimant to prove to the commissioner that he or she
is in fact disabled by furnishing medical and other evidence that an ALJ can use to reach
conclusions about the claimant's medical impairment(s). 20 C.F.R. § 404.1512(a). The Social
Security Act provides that the definition of "evidence" includes, but is not limited to, (1)
Objective medical evidence, that is, medical signs and laboratory findings; (2) other evidence
from medical sources, such as medical history, opinions, and statements about treatment [the
claimant] has received; (3) statements [the claimant] or others make about [the claimant's]
impairment(s), their restrictions, their daily activities, their efforts to work, or any other relevant
statements [the claimant] make[s] to medical sources during the course of examination or
treatment, or to the administration during interviews, on applications, in letters, and in testimony
in administrative proceedings; (4) information from other sources; (5) decisions by any
governmental or nongovernmental agency about whether [the claimant is] disabled or blind; (6) at
the initial level of the administrative review process, when a State agency disability examiner
makes the initial determination alone (see § 404.1615(c)(3)), opinions provided by State agency
medical and psychological consultants based on their review of the evidence in [the claimant's]
case record; (7) at the reconsideration level of the administrative review process, when a State
agency disability examiner makes the determination alone (see § 404.1615(c)(3)), findings, other
than the ultimate determination about whether [the claimant is] disabled, made by State agency
medical or psychological consultants and other program physicians, psychologists, or other
medical specialists at the initial level of the administrative review process, and other opinions
they provide based on their review of the evidence in [the claimant's] case record at the initial and
reconsideration levels (see § 404.1527(f)(1)(iii)); and (8) at the administrative law judge and
Appeals Council levels, findings, other than the ultimate determination about whether [the
claimant is] disabled, made by State agency medical or psychological consultants and other
program physicians or psychologists, or other medical specialists, and opinions expressed by
medical experts or psychological experts that we consult based on their review of the evidence in
the claimant's] case record (see §§ 404.1527(f)(2)–(3)). 20 C.F.R. § 404.1512(b).
2

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indicated by the examining physicians within treatment,, and progress notes, found in exhibits
1F–4F, constitute the medical opinion of treating physicians. The Court finds that the ALJ
operated under the correct legal standard, and that Magistrate Judge Hummel correctly
determined that the Court should affirm the ALJ's determination.

1. Temporal Relevance of Medical Opinions of Record
Plaintiff also contends that the ALJ erred in his RFC determination because he ignored the
only medical opinions of record as to the period during which Plaintiff could not work. The
scope of evidence an ALJ may review in a claimant's RFC determination is not so narrow as to
constrain their scrutiny or analysis to only opinions that concern the plaintiff's functional capacity
during the alleged period of disability. See 20 C.F.R. § 416.912(d)–(e) (providing temporal
guidelines for the development of the administrative record as it pertains to the plaintiff's medical
history); see also 20 C.F.R. § 416.945(a)(3) (providing scope of the evidence and ALJ may
consider in RFC determinations). Before the ALJ makes a determination regarding whether a
plaintiff is disabled, the ALJ has the responsibility to adequately develop a plaintiff's complete
medical history. See 20 C.F.R. § 416.912(d). Development of a complete medical history entails
obtaining the records of the plaintiff's medical source(s) covering at least twelve months
preceding the month in which the plaintiff filed the application for benefits. Id. Or, as is the case
here, if the onset of disability is alleged to have occurred less than twelve months before the
plaintiff's application was filed, the ALJ must develop the plaintiff's complete medical history
beginning with the month the plaintiff states the disability began. Id.
The plaintiff's medical history is not the exclusive basis for an ALJ's disability
determination. "Objective and subjective factors are to be considered by the [ALJ] when
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evaluating a conclusion of disability. These factors include: (1) objective medical facts; (2)
diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability
testified to by the claimant and family or others; and (4) the claimant's educational background,
age, and work experience." Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983). The ALJ is
required to base an RFC determination "on all of the relevant medical and other evidence." 20
C.F.R. § 416.945(a)(3). In doing so, the ALJ "will consider any statements about what [a
claimant] can still do that have been provided by medical sources, whether or not they are based
on formal medical examinations." Id.
Plaintiff filed her applications for DIB and SSI on May 6, 2009, and May 7, 2009,
respectively, asserting in both an onset of disability on February 13, 2009. Dkt. No. 9–2 at 11.
The medical history in the record extends from November 11, 2006, until February 24, 2011.
Dkt. No. 9–7 at 19, 61. The record was appropriately developed, and the examination and
reliance on the records cited by the ALJ was within the appropriate standard. As such, the ALJ
did not err insofar as he relied upon medical opinions pertaining to periods before the alleged
onset of disability.

2. Controlling Weight of Medical Opinions
While the ALJ appropriately relied on the medical and other evidence in the record in
coming to his RFC determination, Plaintiff contends Defendant's expert witness, as a treating
source, provided an assessment of her that precludes the ALJ's RFC determination. Dkt. No. 21
at 4. Specifically, Plaintiff argues that Dr. Magurno's determination that Plaintiff has marked
limitations for lifting and carrying would limit Plaintiff to no more than sedentary work, and her
moderate limitation in sitting would subsequently preclude her from engaging in even sedentary
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work. Dkt. No. 21 at 2. The inference Plaintiff appears to be asking this Court to draw is that the
medical opinion and objective medical evidence garnered from Dr. Magurno's examination on
August 17, 2009, and Dr. Fang's functionality assessment, completed on February 24, 2011,
should have been given controlling weight and thus should have precluded the ALJ from arriving
at his RFC determination.
While an ALJ is required to, "regardless of its source, . . . evaluate every medical opinion .
. . receive[d]," when a plaintiff's treating source's opinion regarding the nature and severity of a
plaintiff's impairment(s) is "well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record," the ALJ will give controlling weight to medical opinions offered by the plaintiff's
treating sources.3 20 C.F.R. § 404.1527. If, however, the treating source's opinion is found to be
inconsistent with the other substantial evidence in the case record, it will not be given controlling
weight and is then reviewed by the ALJ, in light of the following factors: (i) the frequency of
examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in
support of the opinion; (iii) the opinion's consistency with the record as a whole; (iv) whether the
opinion is from a specialist; and (v) other relevant factors. Schaal v. Apfel, 134 F.3d 496, 503–04
(2d Cir. 1998); see 20 C.F.R. § 404.1527. Upon issuing a notice of determination or a decision as
to the weight accorded to the treating source's opinion, the ALJ must provide good reasons for
doing so. Id. Though ultimately, the final determination of disability and a claimant's inability to
work rests with the Commissioner. Snell v. Apfel, 177 F.3d 128, 133–34 (2d Cir. 1999); see also

This is typically the case because treating sources "are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of [the plaintiff's] medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individuals examinations,
such as consultative examinations or brief hospitalization." 20 C.F.R. § 404.1527(c)(2).
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20 C.F.R. § 404.1527(e).

a. The Medical Opinion of Dr. Magurno
The ALJ stated that he gave "reduced weight to the consultative report completed by
Justine Magurno, M.D., because her findings are based on a one-time examination of the claimant
and are inconsistent with the longitudinal medical evidence (Exhibit 5F)." Dkt. No. 9-2 at 17. On
August 17, 2009, upon referral from the Division of Disability Determination, Plaintiff was
examined by Dr. Magurno. Dkt. No. 9-7 at 44. At the time, Plaintiff reported having back pain
that "constantly ached with occasional sharp pain," which at the time she rated at a seven out of
ten. Id. Plaintiff therein related to Dr. Magurno that her daily activities consisted of her cooking,
cleaning, doing laundry, shopping, caring for her children, showering, getting dressed, and
watching TV. Id. The report indicates that Plaintiff was alleging pain during all of these
activities that at times would preclude her from engaging in any or all of them. Id. at 46. Plaintiff
stated that her pain would worsen if she was seated, standing or walking. Id. Plaintiff further
stated that she has pain related to arthritis in her knees, pain related to arthritis in her hands, pain
and crepitus4 in her wrists, pain related to bursitis5 in both of her shoulders, pain related to post
surgical issues with one foot, and the onset of numbness in her right thumb, index and middle

"Crepitus is the sophisticated medical term used to explain the popping, grating or
cracking sensation that can be heard or felt upon percussion of joints or skin, which indicates the
presence of air accumulation inside the closed and compact subcutaneous tissue or joint surface."
Crepitus, NEWHEALTHGUIDE, http://www.newhealthguide.org/Crepitus.html (last visited January
24, 2014).
4

Bursitis is the inflammation or irritation of the bursa. The bursa is a sac filled with
lubricating fluid, located between tissues such as bone, muscle, tendons, and skin, that decreases
rubbing, friction, and irritation. Bursitis, WEB MD,
http://www.webmd.com/pain-management/arthritis-bursitis (last visited January 24, 2014).
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fingers upon use of a computer mouse. Id. Dr. Magurno also reported that she stated that
medication was of some help. Id. At the time of the examination, Plaintiff reported being
prescribed Vicoprofen6 once every 6 hours as needed, Oysco 500 plus D7 once daily, Nucynta
100mg8 twice daily, and Lidoderm patches9 as needed.
During the examination, Dr. Magurno noted that Plaintiff appeared to be in no acute
distress, her gait, station, and appearance were normal, and she was able to heel walk normally,
although she found toe walking painful, her stance was normal, her squat was half, and the braces
she alleged to require for her wrists were not present. Dkt. No. 9-7 at 46. Further, Plaintiff did
not need assistance getting on or off the exam table, although she exhibited "mild difficulty rising
from a chair." Id.

Vicoprofen is a combination of Hydocodone and Ibuprofen. Vicoprofen oral, WEB MD,
http://www.webmd.com/drugs/drug-4635-Vicoprofen+oral.aspx?drugid=4635&drugname=Vicop
rofen+oral&source=1 (last visited January 24, 2014). "This combination medication is used for a
short time (usually less than 10 days) to help relieve moderate to severe pain. It contains a
narcotic pain reliever (hydrocodone) and a nonsteroidal anti-inflammatory drug-NSAID
(ibuprofen). Hydrocodone works in the brain to change how your body feels and responds to
pain. Ibuprofen reduces pain and fever." Id.
6

"This combination medication is used to prevent or treat low blood calcium levels in
people who do not get enough calcium from their diets." Oysco 500/D oral, WEBMD,
http://www.webmd.com/drugs/drug-2801-Oysco+500%2FD+Oral.aspx?drugid=2801&drugname
=Oysco+500%2FD+Oral (last visited January 24, 2014).
7

Nucynta, generically known as tapanedal, "is a narcotic pain reliever (opiate-type), . . .
used to treat moderate to severe short-term pain (such as pain due to injury or following surgery)"
and in some instances is used to treat nerve pain. Tapentadol oral, WEB MD,
http://www.webmd.com/drugs/mono-1209-TAPENTADOL+-+ORAL.aspx?drugid=152562&dru
gname=tapentadol+oral&source=2 (last visited January 24, 2014).
8

"Lidoderm (lidocaine patch 5%) is comprised of an adhesive material containing 5%
lidocaine. Lidoderm, Rxlist, http://www.rxlist.com/lidoderm-drug.htm (last visited January 24,
2014). The patches are prescribed for the temporary relief of minor muscle and joint aches and
pains caused by arthritis, simple backache, strains, tendon problems, or nerve problems."
Lidocaine patch, DRUGS.COM, http://www.drugs.com/cdi/lidocaine-patch.html (last visited
January 24, 2014).
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Plaintiff's account of what positions exacerbated or relieved her pain vary throughout the
administrative record. Dkt. No. 9–7 at 16 (4/29/08 everything exacerbates back pain); id. at 13
(09/10/08 sitting relieves back pain, laying down or standing exacerbates pain); id. at 11 (9/23/08
sitting relieves back pain, laying down exacerbates pain, no indication standing is an issue); id at
6 (10/29/08 cannot stand erect due to pain); id. at 36 (12/02/08 prolonged sitting aggravates back
pain); id. at 44 (8/17/2009 sitting and standing exacerbate pain symptoms, medication helps
relieve pain); id. at 67 (1/26/11 sitting exacerbates pain, sitting also relieves pain); Dkt. No. 9–2
at 34–35 (stating that if Plaintiff engages in more than five to ten minutes of walking on level
ground she needs to lie down with a heat pack or sit in a recliner to rest). The medical records are
also inconsistent regarding Plaintiff's own account of what her pain would preclude her from
doing. See id. at 13. In 2008, Plaintiff indicated that her pain, at the time, would prevent her
from doing household chores or being active, but she failed to indicate that it would prevent her
from going to work or engaging in intimate relations. See id. at 13, 16. In her 2009 hearing
before the ALJ Plaintiff indicated that her back and other pain prevented her from engaging in the
following activities for more than five to fifteen minutes without having to rest for fifteen
minutes, or in some instances needing to rest after single iterations: washing the dishes, cleaning,
sweeping, using a writing implement, cooking, taking care of her children, counting money,
paying bills, using a computer mouse, getting dressed, buttoning her blouse, showering,
concentrating, walking on level ground, standing, sitting on a bus, operating a cash register, and
conducting household finances with either written instrument or a computer. See Dkt. No. 9-2.
Plaintiff alleges this is the extent of her capabilities on good days, which occur on half the days of
the month; on bad days, she is bedridden for the entire day. Id. at 41.
On April 27, 2009, after the alleged onset date of disability, Plaintiff was again treated at
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the Comprehensive Pain Relief Center by Nurse Practitioner Cori Pane. Dkt. No. 9–7 at 42. N.P.
Pane noted that Plaintiff was a "well developed and well nourished white female looking her
stated age of thirty in a pleasant mood, appropriate effect, in no acute distress, and ambulating
with a smooth, steady gait." Id. at 41. On October 19,2009, Plaintiff, again saw N.P. Pane. Id. at
70. Plaintiff reported having pain that she rated as a five on the VAS pain scale. Id. at 70. N.P.
Pane indicated that Plaintiff had been prescribed Norco to be taken six times per day. Id. After
questioning Plaintiff regarding the use of the medication, the record states that the "medical office
assistant" ordered a urine screen of Plaintiff. Id. The urine screen returned a negative result for
opiod levels in Plaintiff's urine. Id. Plaintiff alleged that she was taking less than the prescribed
amount as one of her other medications, tramadol, was providing sufficient relief. Id. Concerned
that Plaintiff was either "abusing or diverting" the medication, N.P. Pane told Plaintiff that if she
did not return the medication by the end of the following business day her prescriptions would be
discontinued. Id.
The record indicates that Plaintiff did not return to the Pain Relief Center for more than
two years. On January 26, 2011, N.P. Pane again examined Plaintiff, noting that Plaintiff still
appeared to be in no acute distress. Id. at 68. N.P. Pane noted that the Plaintiff "admits she didn't
return to our practice in 2009 because she was over-using her Norco10 and was embarrassed to
return." Id. at 67. This is corroborated by the Lourdes Progress notes dated October 22, 2009,
October 29, 2009, and February 16, 2010, where Primary Care Nurse Practitioner Kelly Storrs
saw Plaintiff. Id. at 79–81. In these examinations, N.P. Storrs noted that Plaintiff wanted to

Norco contains a combination of acetaminophen and hydrocodone. Both medicines are
pain killers. Hydrocodone is an opioid pain medication. An opioid is sometimes called a
narcotic. Acetaminophen is a less potent pain reliever that increases the effects of hydrocodone.
Norco, Drugs.com, http://www.drugs.com/norco.html (last visited February 10, 2014).
10

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cease using her narcotic painkillers, that she understood she had a narcotic addiction, and that in
the February meeting continued to be concerned about staying off narcotic medication. Id. In the
October 29, 2009 consultation, Plaintiff stated that she was feeling the best she had in a very long
time. Id. at 80. Furthermore, the record documents that Plaintiff's mid-back pain had since
resolved itself and that she was now taking tramadol on an as needed basis. Id. at 79–81.
Interestingly, the treatment record also notes that Plaintiff stated that her pain symptoms were
aggravated by daily activities, sitting, standing, and walking but relieved by heat, stretching,
sitting, and moving around. Id.
The longitudinal evidence, both prior to and after the date of the alleged onset of
disability, lends itself to being considered contradictory. In almost every consultation the
examining individual noted a pleasant and attentive woman, representative of her age, with a
normal gait and station who was not in any acute distress and who was ambulating normally. The
pain severity reported by Plaintiff varied, the location of the pain, in some cases varied, and the
correlating adherence to pain management throughout the administration of narcotic pain killers
and NSAIDs diverged. Specifically, after the onset of the most severe symptoms, as related in the
hearing with the ALJ, Plaintiff alleged to have been adhering to her narcotic prescription.
However, in consultation with the nurse practitioner, she stated she was only taking them on an as
needed basis because one of her non-narcotic medications was sufficient. Furthermore, after she
was screened for opioid levels in her system, she tested negative. This was followed by a roughly
two year absence from the Center for Pain Relief, and during that absence, in examinations at
Lourdes by N.P. Storrs, she admitted to having a narcotics addiction. Examined in the aggregate,
the evidence would allow a reasonable mind to draw the inference that Plaintiff's behavior was
not indicative of someone then suffering from pain of the severity alleged. Therefore, the ALJ
16

could reasonably determine that the medical opinion provided by Dr. Magurno is inconsistent
with the remainder of the substantial evidence in the record and was correctly given reduced
weight. As this Court must show deference to the decision made by the ALJ where supported by
substantial evidence, even where the plaintiff may have alleged a plausible interpretation that is
divergent from that of the ALJ, this Court hereby concludes that the ALJ did not err in according
Dr. Magurno's opinion a reduced level of probative weight.

b. The Medical Opinion of Dr. Fang
The ALJ gave minimal weight to the questionnaire completed by Xiao Fang, M.D,
reasoning that "because there are no supporting treatment notes and no indication in the record
that he is a treating source. (Exhibit 8F). Dr. Fang's report [was] also inconsistent with the
longitudinal medical evidence in the record." Dkt. No. 9–2 at17. Plaintiff contends that
Magistrate Judge Hummel erred in his reliance upon the treatment notes contained in the medical
record in affirming the ALJ's RFC determination. Specifically, Plaintiff appears to be again
reasserting that there were no medical opinions, as she defines them, to support the ALJ's
decision. Plaintiff appears to be further asserting that because Dr. Fang's medical opinion
provided an assessment as to Plaintiff's functionality, one which was based upon the medical
record, it would preclude the ALJ from coming to a contrary conclusion in relying upon the
medical record. In fact, by finding a functional capacity contrary to what Plaintiff perceives the
opinion of Dr. Fang to impart, the Plaintiff alleges that the ALJ "substitut[ed] his opinion for that
of the opinions of record." Dkt. No. 21 at 3.
For the reasons set forth above, the Court rejects Plaintiff's argument as it pertains to the
treatment records not expressing medical opinions. Under the Social Security Act, the ALJ is
17

required to evaluate "all of the relevant medical and other evidence" in coming to his RFC
determination. 20 C.F.R. § 416.945(a)(3). There is no regulatory language present in the Social
Security Act to support Plaintiff's argument that the ALJ must utilize medical opinion evidence
that specifically references the claimants capacity for work as the sole basis for his RFC
determination. There are certainly standards to ensure that the ALJ accords each particular piece
of evidence the appropriate amount of probative weight. This Court finds that the ALJ was
within those standards and did not err in according Dr. Fang's questionnaire minimal weight.
On February 24, 2011, Dr. Fang completed a document titled "Questionnaire" concerning
his objective evaluation of the extent to which the limitations Plaintiff alleged to have were
consistent with the physical condition the medical professionals at the clinic observed the patient
to have. See Dkt. No. 9–7 at 63. The questionnaire documents that: 1) if Plaintiff were to return
to repetitive work activity, she would require a sit or stand option and would require one 10
minute rest period per hour or less; 2) that her limitations would likely cause her to be absent
from her place of employment four or more times per month; 3) that sitting was impacting
Plaintiff's condition; 4) that Plaintiff could sit for six hours out of an eight hour work day, but
notes that she must alternate between sitting and standing; 5) that standing and walking were
impacting her condition; 6) that the Plaintiff could stand for at least two hours out of an eight
hour work day; 7) that she could lift five to ten pounds for up to three hours per day; 8) that
although her concentration and her ability to sustain her work pace would be impacted by twenty
percent or more, her limitations would not preclude her from work; and 9) and that her ultimate
diagnosis was chronic back pain. Id.
The amount of probative weight to be accorded to a medical opinion is determined by the
extent of the relationship between the physician and the patient. Generally, if the ALJ "find[s]
18

that a treating source's opinion on the issue(s) of the nature and severity of [the claimant's]
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the claimant's] case
record, [the ALJ] will give it controlling weight." 20 C.F.R. § 404.1527 (c)(2). When such a
relationship is not established, however, the ALJ is required to apply several factors in
determining the weight to give the opinion. See id.
The Court agrees that the evidence does not establish that Dr. Fang ever acted in the
capacity of a treating physician. Therefore, it was appropriate for the ALJ not to accord
controlling weight to the opinion. The evidence is inconclusive as to whether Dr. Fang was in the
presence of the patient when the questionnaire was completed. The record contains a single
record — a treatment note generated by N.P. Pane on February 2, 2011 — mentioning that
Plaintiff would undergo a disability assessment by Dr. Fang. Dkt. No. 9–2 at 38. Plaintiff uses
the same to assert that it is the Pain Center's policy to have Dr. Fang perform disability
evaluations of patients based upon the records — treatment notes — kept at the center. Dkt. No.
21 at 3. However, the evidence demonstrates, and as Plaintiff has asserted in her own testimony
and submissions to the Court, that Dr. Fang only performed a single evaluation. The relationship
between Dr. Fang and Plaintiff is completely devoid of the aspects, indicated by 20 C.F.R. §
404.1527(c)(2), that form the basis for the Social Security Act's preference towards according a
treating physician's opinion controlling probative weight. Furthermore, the questionnaire is
woefully devoid of details that would be indicative of an intimate knowledge with Plaintiff's
longitudinal medical history. Therefore, the Court agrees that the evidence fails to establish that
Dr. Fang ever acted in the capacity of a treating physician and the ALJ's decision is supported by
substantial evidence.
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Even if Dr. Fang was a treating physician this Court agrees with the ALJ that the opinion
of Dr. Fang was inconsistent with the other substantial evidence of record. Based upon the
singular nature of the exam, the lack of conclusive, consistent, and corroborating accounts of the
severity and persistence of symptoms inasmuch as they accurately correlate to the physical
findings of the medical professionals and their objective notes, the ALJ's decision to accord
minimal weight is thus supported by substantial evidence. Schaal v. Apfel, 134 F.3d 496, 503–04
(2d Cir. 1998); 20 C.F.R. § 404.1527.
For the reasons set forth above, the ALJ's evaluation of, and weight afforded to, the
opinions of Doctors Magurno and Fang was supported by substantial evidence and within the
appropriate legal standard. Thus, this Court finds that the ALJ did not substitute his own opinion
for medical opinions of record.

D.

Credibility Determination
Plaintiff alleges that Magistrate Judge Hummel incorrectly recommended that the Court

affirm the ALJ's credibility determination. Credibility determinations concern a plaintiff's alleged
symptoms, such as pain, their intensity and persistence and the functional limitation(s), if any,
that are attendant to them, and how they affect an ALJ's RFC determination. See 20 C.F.R. §
416.929. As a gateway issue to credibility determinations, the plaintiff must establish, through
supporting medical signs or laboratory findings, the existence of a medically determinable
impairment that could reasonably cause symptoms of the type alleged. See 20 C.F.R. §
416.929(b).
In this case, it is not in dispute that Plaintiff has been found to have degenerative disc
disease of the lumbar spine; nor is it disputed that the type of symptoms she alleges may
20

reasonably be attributed to that impairment. Dkt. No. 9–2 at 15. What is in dispute is the
credibility of her accounts of the severity and persistence of her symptomatic pain and the
functional limitations they cause her.
An ALJ must evaluate the intensity and persistence of those symptoms and any functional
limitations attendant to them in order to determine how they affect a claimant's capacity for work.
See 20 C.F.R. § 416.929(c)(1). Since, symptoms, such as pain, sometimes suggest a greater
severity of impairment than can be shown by objective medical evidence alone, the ALJ must
carefully consider any other information submitted by the claimant for its consistency with any
and all relevant evidence. See 20 C.F.R. § 416.929(c)(3). A claimant's statement(s) about the
intensity and persistence of a particular symptom, such as pain, or about the limiting effects the
symptoms have on their ability to work will not be rejected solely because the available objective
medical evidence does not substantiate a claimant's statement(s). See 20 C.F.R. § 416.929(c)(2).
"However, the ALJ is not obliged to accept without question the credibility of such subjective
evidence." Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009) (citing Martone v.
Apfel, 70 F. Supp. 2d 145, 151 (N.D.N.Y. 1999)) (internal citation omitted). "When such
[statements are] consistent with and supported by objective clinical evidence demonstrating that
[the] claimant has a medical impairment which one could reasonably anticipate would produce
such pain, it is entitled to considerable weight." Crysler v. Astrue, 563 F. Supp. 2d 418, 439-40
(N.D.N.Y. 2008) (citations omitted).
If this is found not to be the case, as was found here by the ALJ, the "ALJ will consider
the following factors in assessing a claimant's credibility: (1) claimant's daily activities; (2)
location, duration, frequency, and intensity of claimant's symptoms; (3) precipitating and
aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to
21

relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by
the claimant to relieve symptoms; and (7) any other factors concerning claimant's functional
limitations and restrictions due to symptoms." Rockwood, 614 F. Supp. at 271 (citing 20 C.F.R.
§§ 416.929(c)(3)(i)-(vii)). In doing so, the ALJ will "consider whether there are any
inconsistencies in the evidence and the extent to which there are any conflicts between [the
claimant's] statements and the rest of the evidence." 20 C.F.R. § 416.929(c)(4). The claimant's
symptoms will "be determined to diminish [their] capacity for basic work activities . . . to the
extent that [the claimant's] alleged functional limitations and restrictions due to symptoms, such
as pain, can reasonably be accepted as consistent with the objective medical evidence and other
evidence." 20 C.F.R. § 416.929(c)(4).

1. Specificity of an ALJ's Decision
Plaintiff first argues that the ALJ failed to indicate in his decision whether Plaintiff's daily
activities were taken into account during the ALJ's credibility determination. "An ALJ rejecting
subjective testimony 'must do so explicitly and with sufficient specificity to enable the Court to
decide whether there are legitimate reasons for the ALJ's disbelief and whether his decision is
supported by substantial evidence.'" Abdulsalam v. Comm'r of Soc. Sec., No. 5:12-CV-1631,
2014 WL 420465 (N.D.N.Y. Feb. 4, 2014) (quoting Melchior v. Apfel, 15 F. Supp. 2d 215, 219
(N.D.N.Y. 1998)). Further, the Agency rules provide that
[i]t is not sufficient for the adjudicator to make a single,
conclusory statement that "the individual's allegations have been
considered" or that "the allegations are (or are not) credible." It is
also not enough for the adjudicator simply to recite the factors that
are described in the regulations for evaluating symptoms. The
determination or decision must contain specific reasons for the
finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the
22

individual and to any subsequent reviewers the weight the
adjudicator gave to the individual's statements and the reasons for
that
weight.
SSR 96–7p, 1996 WL 374186, at *2.
In his decision, the ALJ addresses Plaintiff's symptoms, their severity, and functional
limitations attendant to them. Dkt. No. 9–2 at 15. The ALJ then reflects upon considerable
portions of the record documenting Plaintiff's medical history from 2008 until 2011. See id. at
15-17 (detailing medical findings resulting from consultations with Dr. Magurno, P.A. D'Angelo,
Dr. Aravapalli, Dr. Desai, N.P. Pane, and Dr. Fang). The ALJ makes the brief assertion that
Plaintiff engages in daily activities on a regular basis. Id. at 16. While the ALJ's opinion is
devoid of further verbal treatment of her daily activities, see id., the source citation offered as
evidence and support for this statement is not. See Dkt. No. 9–7 at 46 (consultative medical
evaluation performed by Dr. Magurno on August 17, 2009). In fact, when the document is
examined in its entirety it accounts for several activities that may be fairly construed as "daily
activities" Plaintiff engages in on a regular basis i.e., cooking, cleaning, child rearing, using a
computer mouse, walking, standing, laying down, sitting, heel walking, toe walking, lifting,
carrying, squatting, showering, dressings, smoking cigarettes, washing ones hair, stretching,
wearing certain clothing. See Dkt. No. 9–2 at 44–49. Citing to evidence in the record, the ALJ
concluded that "[t]he longitudinal medical evidence in the record . . . [u]litimately . . . do not
support the [Plaintiff's] allegations of significant physical limitations." Id. at 16.
Plaintiff appears to initially object to the credibility determination on the basis that the
ALJ did not specifically set forth language indicating that the Plaintiff's daily activities were
considered in the credibility determination. This Court finds that, while the ALJ's decision does
contain conclusory statements as to the credibility determination, the ALJ's decision was set forth
23

with sufficient specificity for this Court to identify the substantial evidence he employed in
drawing his conclusion pertaining to the credibility determination. While the decision does not
expressly state the amount of weight the ALJ accorded to the subjective accounts of pain Plaintiff
provided, this Court finds it evident that minimal weight was accorded to the Plaintiff's subjective
statements as the ALJ concluded that "the clinical findings and objective medical evidence in the
record do not support the claimant's allegations of significant physical functional limitation." Id.
Plaintiff seeks to have this Court find the ALJ's credibility determination to have been
made in error, for lack of specificity, on the basis he did not specifically attribute one of the
enumerative factors listed in section 416.929 to each piece of evidence directly used by the ALJ
as support for his credibility determination. It is readily accepted that an ALJ, "[a]fter
considering plaintiff's subjective testimony, the objective medical evidence, and any other factors
deemed relevant, [ ] may accept or reject claimant's subjective testimony." Saxon v. Astrue, 781 F.
Supp. 2d 92, 105 (N.D.N.Y. 2011) (citing, inter alia, 20 C.F.R. §§ 404.1529(c)(4),
416.929(c)(4)). The Court finds that the ALJ considered the appropriate factors and evidence in
making his credibility

Plaintiff further contends that the failure to specifically address her

limitations attendant to her engaging in daily activities is made more egregious due to her
documented difficulty with medication. Plaintiff refers this Court to her initial brief, where she
asserts that the ALJ erred because his decision made no specific mention of the type, dosage,
effectiveness, or side effects of any medication that Plaintiff was taking at the time. Dkt. No. 21
at 4; Dkt. No. 14 at 18. The ALJ states that after a careful consideration of all of the evidence and
underlying facts he did not find credible Plaintiff's testimony as to the severity and persistence of
her pain and the attendant limitations she incurred. The decision exhibits a thorough analysis by
the ALJ of the medical opinions, treatment records, and progress notes provided by P.A.
24

D'Angelo, Dr. Aravapalli, Dr. Kamlesh, Dr. Desai, N.P. Pane, N.P. Storrs, Dr. Magurno, and Dr.
Fang. The evidentiary documentation utilized by the ALJ specifically includes observations of
Plaintiff, her past and current condition, and treatments ordered by her physicians, and the Court
is satisfied that the information was considered. The choice of which evidentiary basis to utilize,
in a written opinion, in order to justify a decision to accord a reduction in probative weight to a
plaintiff's testimony is up to the ALJ. "[A]n ALJ is not required to discuss in depth every piece of
evidence contained in the record, so long [as] the evidence of record permits the Court to glean
the rationale of an ALJ's decision." LaRock ex. rel. M.K. v. Astrue, No. 10-CV-1019, 2011 WL
1882292, *7 (N.D.N.Y. Apr. 29, 2011) (citing Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.
1983) (internal quotation marks omitted)).
Based on the foregoing, the Court finds Plaintiff's arguments to be without merit.

2. Misrepresentation of Plaintiff's Testimony
Although "[i]t is the function of the [Commissioner], not [the reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of the witnesses, including the claimant,"
Aponte v. Sec'y Dept. Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (quoting
Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1982)), where an ALJ's
credibility determination is based on so serious a misunderstanding of the claimant's statements,
as they pertain to symptom or pain intensity and duration as well as the possible attendant
limiting effects on their capacity to work, that the decision cannot be deemed to have complied
with the evaluative requirements under 20 C.F.R. § 416.929, remand is required. See Genier v.
Astrue, 606 F.3d 46, 50 (2d Cir. 2010). However, where the ALJ has utilized an unwarranted
assumption, formulated from statements of record, in his credibility determination, remand will
25

not follow when his determination is supported by other substantial evidence in the record. See
Rockwood, 614 F. Supp. 2d at 272; see also Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67,
83 n.26 (N.D.N.Y. 2005) (noting that an ALJ's incorrect rendition of facts in the record is nothing
more than harmless error where his credibility assessment is amply supported by other substantial
evidence).
Plaintiff specifically asserts that the ALJ misconstrued what little daily activities he did
examine in a fashion that is "specifically prohibited by cases such as Genier v. Astrue, 606 F.3d
46 (2d Cir. 2010)." In Genier, the plaintiff filed an application for SSI and DIB on April 4, 2006.
Id. at 47. He alleged that he had been unable to work since August 13, 2005, due to his morbid
obesity and related ailments, including severe sleep apnea, back pain, and knee pain. Id. After
receiving a negative disability determination and unfavorable judgements at the district court, the
plaintiff appealed to the Second Circuit. Id. The Second Circuit found that the ALJ had relied on
a serious misunderstanding of the evidence in his credibility determination. Id. at 50.
Based upon the plaintiff's testimony the ALJ had stated in his decision that the plaintiff
"was able to care for his dogs, vacuum, do dishes, cook, and do laundry." Id. However, the
Second Circuit found that the plaintiff "indicated on the questionnaire that he tried to care for his
dogs, to do thing[s] around house [sic], like dishes[,] vacuum[,] etc., and to do his laundry, but
that he required the assistance of a parent for each of these tasks because of his severe fatigue."
Id. (emphasis added). In addition, the ALJ's decision erroneously attributed statements made by
the plaintiff regarding his ability to do daily activities after he had received corrective back
surgery and not during the period of disability. Id. The court found that the plaintiff's testimony
did not contradict his assertions that he had been substantially impaired by pain and fatigue prior
to his treatment and surgery. Id. The Second Circuit vacated the judgement of the district court
26

and remanded for further proceedings "because the ALJ's adverse credibility finding, which was
crucial to his rejection of [the plaintiff's] claim, was based on a misreading of the evidence, it did
not comply with the ALJ's obligation to consider 'all of the relevant medical and other evidence,'
20 C.F.R. § 404.1545(a)(3), and [could not] stand." Id.
Plaintiff argues that the case before the Court is analogous to Genier. The testimony
relied upon by Plaintiff is as follows: "ACTIVITIES OF DAILY LIVING: She says she cooks,
cleans, does laundry, shops, and childcare if she can. It is painful. Her boyfriend and children
help. She showers as needed daily and dresses daily, but it is painful and sometimes she cannot.
She watches TV." Dkt. No. 9–7 at 46. Plaintiff stresses that the failure to specifically address
functional limitations attendant to her performance of daily activities, as described in her
evaluation with Dr. Magurno on August 17, 2009, amounts to the type of misrepresentation of the
facts that the Second Circuit found so egregious in Genier. Dkt. No. 21 at 4.
This Court disagrees. In Genier, the ALJ took statements made by the plaintiff of what he
tried to do and in his decision quoted them as what he could do. Genier, 606 F.3d at 50. Due to
the crucial nature of the testimony as it pertained to the determination of the plaintiff's credibility,
and its ultimate rejection, the Second Circuit found that the error was so gross that it amounted to
the dereliction of the "ALJ's obligation to consider all of the relevant medical and other
evidence." Id. Here, the ALJ has accurately described Plaintiff's statements and afforded them
appropriate consideration. In his decision the ALJ states that "[t]he claimant is a thirty–two year
old female who reportedly resides with her boyfriend, cares for her three young children, and
participates in activities of daily living on a regular basis." Dkt. No. 9–2 at 16. The ALJ has
taken statements made by the Plaintiff about what she asserted she can do, together with the
credible medical evidence, and accurately described Plaintiff's capabilities and limitations.
27

Based on the foregoing, the Court finds the ALJ's credibility determination is amply
supported by substantial evidence, and was made in accordance with the applicable law. See
Rockwood, 614 F. Supp. 2d at 272.

3. Factors Required in a Credibility Determination
Plaintiff contends that the ALJ erred by not specifically making mention of any of the
other factors required in a credibility determination. As the Court concluded above, the list of
relevant factors to be evaluated is more appropriately interpreted as an illustrative list and an
ALJ's decision is only required to contain sufficient specificity to allow the reviewing body to
understand the reasons for the ALJ's decision. SSR 96–7p, 1996 WL 374186, at *2. Plaintiff's
argument would have an ALJ include in each decision a tabulation of all the relevant evidence,
the weight attributed to each, and the reasons for the attribution. The mandate stated in SSR
96–7p does not require the ALJ to be so exhaustive in his credibility decision. The threshold to
be met by his credibility determination is that it must "contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight." SSR 96–7p, 1996 WL 374186, at *2.
The ALJ, in his decision, considers a significant portion of the record documenting
Plaintiff's medical history from 2008 until 2011, see Dkt. No. 9–2 at 15-17 (detailing medical
findings from consultations with Dr. Magurno, P.A. D'Angelo, Dr. Aravapalli, Dr. Desai, N.P.
Pane, and Dr. Fang) and effectively compared those instances against Plaintiff's own statements
made during her evaluation by Dr. Magurno and at the administrative hearing, see Dkt. No. 9–7;
Dkt. No. 22–25. On the basis of this comparison the ALJ found that Plaintiff was partially
28

credible, insofar as her medically determinable condition could reasonably be expected to cause
her pain symptoms. However, the ALJ also found that the objective medical evidence of record
did not support Plaintiff's allegations of severity, persistence and significant physical functional
limitations. Dkt. No. 9–2 at 16–17. This Court finds the ALJ's reasoning was sufficiently
specific and in line with the appropriate standard.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Hummel's October 3, 2013 Report-Recommendation and
Order is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that the Commissioner's decision denying disability benefits is AFFIRMED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment and close this case.
IT IS SO ORDERED.
Dated: February 27, 2014
Albany, New York

29