Truman v. Colvin

Filing 20

MEMORANDUM-DECISION and ORDER. The decision of the Commissioner is affirmed and plaintiff's complaint is DISMISSED. The Clerk shall enter judgment for Defendant. Signed by US Magistrate Judge Andrew T. Baxter on 9/17/2015. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________________________
SCOTT C. TRUMAN,
Plaintiff,
v.

3:14-CV-1195
(ATB)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________________________________
PETER A. GORTON, ESQ., for Plaintiff
JOSHUA L. KERSHNER, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM-DECISION and ORDER
In accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and
N.D.N.Y. Local Rule 73.1, this matter was referred to me, with the consent of the
parties, for all proceedings and entry of a final judgment, by the Honorable Glenn T.
Suddaby, United States District Judge, by Order dated July 24, 2015 (Docket No. 18).
I.

PROCEDURAL HISTORY
On, February 7, 2011, plaintiff protectively1 filed applications for both Disability

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”), alleging

1

The term “protective filing” indicates that a written statement, “such as a letter,” has been
filed with the Social Security Administration, indicating the claimant’s intent to file a claim for
benefits. See 20 C.F.R. §§ 404.630, 416.340. If a statement meeting the requirements of the
regulations is filed, the Social Security Administration will use the date of the written statement as the
filing date of the application even if the formal application is not filed until a later date. In this case the
protective filing date of February 7, 2011 is listed on the first page of each of the Disability
Determination and Transmittals, dated April 15, 2011. (T. 60, 67).

disability beginning on November 4, 2010. (Administrative Transcript (“T”) at 152-66).
The applications were denied initially on April 19, 2011. (T. 60-73). Plaintiff requested
a hearing before an Administrative Law Judge (“ALJ”) which was conducted by ALJ
John P. Ramos on December 6, 2012 by video. (T. 34-59). ALJ Ramos issued an
unfavorable decision on March 4, 2013. (T. 13-24). ALJ Ramos’s decision became the
Commissioner’s final decision when the Appeals Council denied plaintiff’s request for
review on September 10, 2014. (T. 1-5).
II.

GENERALLY APPLICABLE LAW
A.

Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or
Supplemental Security Income (“SSI”) disability benefits must establish that he or she
is “unable 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
twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff’s
physical or mental impairment or impairments [must 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.
42 U.S.C. § 1382c(a)(3)(B).
2

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the Commissioner next
considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has an impairment
which meets or equals the criteria of an impairment listed in Appendix 1 of
the regulations. If the claimant has such an impairment, the Commissioner
will consider him [per se] disabled . . . . Assuming the claimant does not
have a listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform his
past work, the Commissioner then determines whether there is other work
which the claimant could perform.
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that his impairment prevents him from performing
his past work, there is a “limited burden shift to the Commissioner” to “show that there
is work in the national economy that the claimant can do.” Poupore v. Astrue, 566 F.3d
303, 306 (2d Cir. 2009); Selian, 708 F.3d at 418 & n.2.
B.

Scope of Review

In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin,

3

Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence
is “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative record. Id.
However, this standard is a very deferential standard of review “ – even more so than
the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“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 on behalf of Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040
(2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to
require an ALJ explicitly to reconcile every conflicting shred of medical testimony).
However, the ALJ cannot “‘pick and choose’ evidence in the record that supports his
conclusions.” Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v.
Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
4

III.

FACTS
Plaintiff’s counsel has included a statement of facts in his brief. (Pl.’s Br. at 2-11)

(Dkt. No. 12). Defense counsel has incorporated plaintiff’s statement of facts as well as
the findings of the ALJ at pages 16-23 of the transcript. (Def.’s Br. at 3) (Dkt. No. 19).
The court will adopt the facts stated in plaintiff’s brief, together with the facts as stated
by the ALJ, with any exceptions as noted in the discussion below. Rather than further
detailing the evidence at the outset, relevant details regarding the medical and other
evidence, including the medical opinion evidence, are discussed below as necessary to
address the issues raised by plaintiff.
IV.

ALJ’S DECISION
After finding that plaintiff met his insured status until December 31, 2014, the

ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged
onset date of November 4, 2010. (T. 16). At step two of the sequential analysis, the
ALJ found that plaintiff’s lumbar degenerative disc disease, morbid obesity,
uncontrolled hypertension, and depressive disorder qualified as “severe impairments.”
(Id.) The ALJ found that plaintiff had been “medically managed” for diabetes, sleep
apnea, right knee pain, flank pain, renal stones, pedal edema, dyslipidemia, cannabis
use, tobacco use, and gastroesophageal reflux disease (“GERD”), but that none of these
conditions rose to the level of a severe impairment. (T. 17).
At step three of the analysis, the ALJ found that plaintiff’s impairments did not
5

meet or medically equal the severity of listed impairments. (Id.) The ALJ compared
plaintiff’s impairments to Listings 1.04 (Disorders of the Spine); 12.04 (Affective
Disorders); and 12.06 (Anxiety-Related Disorders). 20 C.F.R. Pt. 404. Subpt. P, App. 1,
§§ 1.04, 12.04, 12.06. The ALJ stated that, although there is no specific listing
regarding obesity, he evaluated the impairment pursuant to the extensive guidelines set
forth in Social Security Ruling (“SSR”) 02-1p, including the references in sections
1.00Q, 3.00I, and 4.00F of the Listings.2
In making his determination that the severity of plaintiff’s mental impairment did
not rise to the level of a Listing, the ALJ carefully analyzed the “paragraph B” criteria
of the Listings, including determining the degree of restriction that plaintiff’s mental
condition had on the four relevant functional areas – activities of daily living; social
functioning; concentration, persistence, and pace; and episodes of decompensation. (T.
18-19). Plaintiff had only mild restrictions in activities of daily living and in
concentration, persistence, and pace. (Id.) He had moderate difficulties in social
functioning, but had no episodes of decompensation. (T. 18-19).
At step four of the analysis, the ALJ found that plaintiff had the residual
functional capacity (“RFC”) to perform sedentary work because he is able to lift and/or
carry ten pounds occasionally and less than ten pounds frequently; stand and/or walk

2

These explanatory sections of the Listing of Impairments discuss the effects of obesity on the
Musculoskeletal (§ 1.00Q), Respiratory (§ 3.00I), and Cardiovascular Systems (§ 4.00F).
6

for two hours in an eight-hour day; and sit for six hours in an eight-hour day. (T. 19).
The ALJ concluded that plaintiff should avoid climbing ropes, ladders, and scaffolds in
addition to avoiding workplace hazards, such as unprotected heights and moving
mechanical parts. (T. 19). Plaintiff was found capable of occasionally climbing stairs
and ramps, balancing, stooping, kneeling, crouching , and crawling.
Mentally, the ALJ determined that plaintiff retained the ability to understand and
follow simple and complex instructions and directions; perform simple and more
complex tasks with intermittent supervision, and independently; maintain attention and
concentration for simple and more complex tasks. (T. 19-20). Plaintiff was deemed
able to regularly attend to a routine and maintain a schedule. The ALJ found that
plaintiff can complete simple and more complex tasks without the need for frequent
supervision and can interact with supervisors on an intermittent basis throughout the
day, but should have no contact with the public. He could also handle reasonable levels
of work-related stress in that he can make decisions directly related to the completion of
his tasks in a stable, unchanging work environment. (T. 19-20).
In making the above mental RFC determination, the ALJ relied on the
consultative opinion of Dr. Sara Long, Ph. D., who examined plaintiff on March 21,
2011. (T. 300-303). With respect to plaintiff’s physical capabilities, the ALJ relied in
part, on the January 3, 2013, post-hearing consultative report by Dr. Justine Magurno,
M.D. (T. 20-21). The ALJ gave very little weight to a New York State Department of
7

Social Services (“DSS”) evaluation completed by Nathan Hare, Ph. D.; a questionnaire
completed by Mahfuzar Rahman, M.D.;3 medical source statements signed by Nurse
Practitioner, Dorene Aleccia; and a report completed by Lawrence Wiesner, D.O.4 (T.
22-23).
Based on the above RFC, the ALJ found that plaintiff could perform his previous
work as an electronics assembler, even though the Dictionary of Occupational Titles
(“DOT”) classified the job as “light” work.” (T. 23-24). The ALJ found that the
information in the DOT, together with plaintiff’s testimony supported a finding that
plaintiff’s former work as an electronics assembler was performed at a sedentary level,
that he did not have to interact with other employees or the public, and that he only had
intermittent contact with his supervisors. (T. 23). Because the ALJ found that plaintiff
could perform his prior work, the ALJ stopped at step four of the analysis and found
that plaintiff was not disabled. (T. 24).
V.

ISSUES IN CONTENTION
Plaintiff raises the following arguments:
1.

The ALJ did not properly consider the non-exertional limitations to
the sedentary job base caused by the plaintiff’s conditions. (Pl.’s Br.

3

Dr. Rahman is a treating psychiatrist who submitted a mental “Questionnaire” at plaintiff’s
request. (T. 463-66).
4

Dr. Weisner examined plaintiff once on June 29, 2012, and submitted a narrative report, titled
“Orthopedic Independent Medical Examination,” together with a form-document titled, “Work
Capacities,” which requires the medical source to check boxes and circle numbers, representing the
amount of time that an individual can sit, stand, and walk. (T. 327-29, 330-32).
8

at 11-17).
2.

The ALJ erred in finding that plaintiff could perform his past
relevant work, and the Appeals Council erred in failing to properly
consider the vocational testimony and additional evidence submitted
by plaintiff in his appeal. (Pl.’s Br. at 17-19).

3.

The ALJ improperly assessed the medical opinions. (Pl.’s Br. at 1924).

Defendant argues that the Commissioner’s determination is supported by substantial
evidence and should be affirmed. For the following reasons, this court agrees with the
defendant and will order dismissal of the complaint.
VI.

Severe Impairment5
A.

Legal Standards

The claimant bears the burden of presenting evidence establishing severity at
Step Two of the disability analysis. Briggs v. Astrue, No. 5:09–CV–1422 (FJS/VEB),
2011 WL 2669476, at *3 (N.D.N.Y. Mar. 4, 2011) (Rep.-Rec.), adopted, 2011 WL
2669463 (N.D.N.Y. July 7, 2011). A severe impairment is one that significantly limits
the plaintiff’s physical and/or mental ability to do basic work activities. See 20 C.F.R.
§ 404.1520(c); see also 20 C.F.R. § 404.1521(a) (noting that an impairment is not
severe at Step Two if it does not significantly limit a claimant’s ability to do basic work
activities).

5

Although plaintiff’s first issue alleges that the ALJ failed to properly consider plaintiff’s
non-exertional limitations on his ability to perform his prior work, the plaintiff divides his argument
into a discussion of the ALJ’s alleged error at the step two, “severity” analysis as well as a general
discussion of the ALJ’s failure to properly consider the non-exertional impairments that he did deem
severe in the determination of plaintiff’s RFC. The court will analyze each argument separately.
9

The Regulations define “basic work activities” as the “abilities and aptitudes
necessary to do most jobs,” examples of which include, (1) physical functions such as
walking, standing, lifting, pushing, pulling, reaching, carrying, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers and usual work situations; and (6) dealing with changes in a
routine work setting. 20 C.F.R. § 404. 1521(b). “Severity” is determined by the
limitations imposed by an impairment, and not merely its by diagnosis. The mere
presence or diagnosis of a disease or impairment is not, by itself, sufficient to deem a
condition severe. Hamilton v. Astrue, No. 12-CV-6291, 2013 WL 5474210, at *10
(W.D.N.Y. Sept. 30, 2013) (quoting McConnell v. Astrue, No. 6:03-CV-521, 2008 WL
833968, at *2 (N.D.N.Y. Mar. 27, 2008)).
An ALJ should make a finding of “‘not severe’ . . . if the medical evidence
establishes only a ‘slight abnormality’ which would have ‘no more than a minimal
effect on an individual’s ability to work.’” Rosario v. Apfel, No. 97 CV 5759, 1999 WL
294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Social Security Ruling (“SSR”)
85-28, 1985 WL 56856, at *3 (1985)). Although an impairment may not be severe by
itself, the ALJ must also consider “the possibility of several such impairments
combining to produce a severe impairment . . . .” SSR 85-28, 1985 WL 56856, at *3.
However, a combination of “slight abnormalities,” having no more a minimal effect on
plaintiff’s ability to work will not be considered severe. Id. The ALJ must assess the
impact of the combination of impairments, rather than assessing the contribution of
10

each impairment to the restriction of activity separately, as if each impairment existed
alone. Id.
The Second Circuit has held that the Step Two analysis “may do no more than
screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). If
the disability claim rises above a de minimis level, then the ALJ must undertake the
remaining analysis of the claim at Step Three through Step Five. Id. at 1030.
Often, when there are multiple impairments, and the ALJ finds some, but not all
of them severe, an error in the severity analysis at step two may be harmless because the
ALJ continued with the sequential analysis and did not deny the claim based on the lack
of a severe impairment alone. Tryon v. Astrue, No. 5:10-CV-537, 2012 WL 398952, at
*3 (N.D.N.Y. Feb. 7, 2012) (citing Kemp v. Commissioner of Soc. Sec., No. 7:10-CV1244, 2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011)). This is particularly true
because the regulations provide that combined effects of all impairments must be
considered, regardless of whether any impairment, if considered separately, would be of
sufficient severity. 20 C.F.R. §§ 404.1523, 416.923; Dixon, 54 F.3d at 1031.
B.

Application

Plaintiff first argues that the ALJ erred in determining that plaintiff’s diabetes
and sleep apnea were not severe.6 (Pl.’s Br. at 12-14). Plaintiff argues that Dr.

6

As stated above, the ALJ also found that plaintiff’s right knee pain, flank pain, renal stones,
pedal edema, dyslipidemia, cannabis use, tobacco use, and GERD were not severe impairments.
Plaintiff does not challenge these findings, and the court concludes that the ALJ’s decision regarding
these additional impairments is supported by substantial evidence.
11

Mamadou Diallo, M.D.7 noted that plaintiff’s diabetes makes him lethargic all the time,
and that although there were periods of time when the diabetes was managed with diet
and oral medication, in November of 2012, Dr. Michele Boyle’s report noted that
plaintiff’s diabetes was “uncontrolled.” (T. 448).
First, even though the ALJ found that some of plaintiff’s impairments were not
severe, he specifically stated that the “limiting effects of all the claimant’s impairments,
even those that are not severe, were considered in determining the claimant’s residual
functional capacity assessed below.” (T. 17). Thus, the ALJ did not deny plaintiff’s
application based solely on the lack of a severe impairment, and even if his analysis
was erroneous, the error would have been harmless. The ALJ discussed the subsequent
steps of the sequential evaluation,8 stating that he considered the limiting effects of the
non-severe impairments. However, in the alternative, the court also finds that the
ALJ’s severity determination was supported by substantial evidence.
1.

Diabetes

With respect to the diabetes, the ALJ found that “[t]reatment notes indicate that
the claimant’s diabetes is managed with oral medication and dietary restrictions.
(Exhibits 2F, 5F, 15F, and 16F).” (T. 17). Plaintiff argues that the ALJ’s statement is

7

Dr. Diallo was one of the physicians at Lourdes Hospital where plaintiff went for his primary
medical care. Although some of the reports from Lourdes are signed by Dr. Diallo, most of the
primary care reports are signed by Nurse Practitioner Dorene Aleccia. Dr. Boyle’s reports (T. 449-52)
are also from Lourdes Hospital, as are Dr. Shamsuddin Rana’s sleep study reports. (T. 420-30, 484531).
8

The ALJ stopped at step four because he found that plaintiff’s impairments did not prevent
him from performing his prior work.
12

unsupported because of the notations in the record indicating high glucose readings,
and Dr. Boyle’s 2012 statement that the diabetes was “uncontrolled.” (Pl.’s Br. at 12).
While it is true that there are various reports in which plaintiff’s glucose has been
very high, there are several reports indicating that plaintiff’s diabetes is managed with
oral medication and diet. The record indicates that plaintiff’s glucose becomes
uncontrolled when he goes off of his diet, gains weight, and his medications are not
adjusted properly. Plaintiff’s diabetes was mentioned in a report from United Health
Services on December 30, 2009. (T. 275). The nurse who wrote the report stated that
plaintiff “has been managed with diet-oral medications.” (Id.) The “negatives” were
listed as excessive thirst and weight loss, not fatigue or anxiety. The nurse stated that
plaintiff was compliant with his medications, was “feeling better,” and he was
“watching his diet.”
On November 3, 2010, plaintiff told Dr. Diallo that he was very lethargic all the
time. (T. 297). Dr. Diallo stated that “[plaintiff] has diabetes and complains of being
very lethargic all the time.” (T. 297). Dr. Diallo did not conclude that plaintiff’s
diabetes made plaintiff lethargic all the time. Dr. Diallo noted in the same report, that
the plaintiff became very angry when they discussed physicians who told plaintiff to
lose weight.9 (T. 298). On February 3, 2011, plaintiff’s glucose was 215. (T. 294). Dr.
Mamadou Diallo, M.D. referred plaintiff to a dietitian. (T. 294). It appears from
subsequent medical reports that once plaintiff’s medications and diet were adjusted, his

9

This is the same appointment during which the plaintiff requested Oxycodone for his back
pain, and Dr. Diallo refused to give it to him. (T. 298).
13

glucose dropped to more normal levels, even though it is clear that he has diabetes.
While plaintiff cites May and June 201110 reports which state that plaintiff’s
A1C11 was “worsening,” he fails to cite the May 19, 2011 narrative report by NP
Aleccia which states that, although plaintiff’s last A1C was 8.1 – “worse than it was
before,”12 his fasting glucose had improved, and he had lost eight pounds from the
previous visit. (T. 370). NP Aleccia noted that plaintiff did not have the equipment to
test his glucose, so she gave him a prescription for these materials, and instructed him
on how to use them. (T. 370). The June 2, 2011 narrative report by NP Aleccia stated
that “[h]e is doing much better. . . . has lost 21 pounds since February . . . [, and] his
fasting sugars are much better. (T. 368). Plaintiff was “feeling better” and exercising
“daily.” (T. 368). Plaintiff also fails to cite the July 7, 2011 narrative report which
specifically states that plaintiff’s diabetes was in “much better control.” (T. 366). NP
Aleccia noted that plaintiff was exercising and losing weight. (Id.) Plaintiff’s A1C test
result was down to 6.7 percent. (T. 367).
10

Plaintiff’s counsel is citing to the laboratory reports, rather than the nurse practitioner’s
narrative reports from May and June 2011. (T. 395, 398). The ALJ and the court must follow the
medical providers’ interpretation of the laboratory reports since neither adjudicator is a medical
professional.
11

An A1C test is a common blood test used to diagnose type 1 and type 2 diabetes and to gauge
how well an individual is monitoring the diabetes. http://www.mayoclinic.org/tests-procedures/a1c/
basics/definition/prc-20012585. The A1C test results reflect an individual’s average blood sugar level
for the past two to three months, measuring the percentage of hemoglobin that is coated with sugar.
The higher the A1C level, the poorer the blood sugar control, and the higher the risk of diabetic
complications. (Id.) A “normal” level ranges from 4.5 to 6 percent. Someone who has “uncontrolled”
diabetes may have a level of above 8 percent. (Id.) “For most people who have previously diagnosed
diabetes, an A1C level of 7 percent or less is a common treatment target,” but higher levels may be
chosen in some individuals. (Id.)
12

Plaintiff’s previous A1C was 7.7 percent in March of 2011. (T. 373).
14

On August 24, 2011, NP Aleccia stated that plaintiff’s blood sugar had actually
dropped too low when he did not have any carbohydrates at dinner, and that his glucose
was still low the next morning “during exercise” because he was “taking a whole
Metformin now.”13 (T. 364). NP Aleccia stated that plaintiff had lost forty-six pounds
since November and was “doing quite well.” (Id.) NP Aleccia stated that she would
adjust his medication, and would “decrease” the amount of Glipizide14 that plaintiff was
taking. (Id.)
On November 9, 2011, plaintiff saw NP Aleccia for a cold, but she noted that
plaintiff had moved, had stopped taking one of his blood pressure medications, and had
gained nine pounds. (T. 362). There was no mention of his diabetes, other than to order
another A1C test. On November 21, 2011, NP Aleccia stated that plaintiff came in for
a “lab follow up.” (T. 350). She stated that plaintiff “had not been taking his
medication” and “has been gaining weight.” In the section titled “Plan,” NP Aleccia
stated that she told plaintiff that he should “try to lose some more weight. He was
doing so well before.” (Id.) On March 14, 2012, plaintiff gained another five pounds,
but his appointment with NP Aleccia was for his back pain. (T. 357). During that
appointment, plaintiff told NP Aleccia that his blood sugar had been “running in the
130s-140s.” (Id.) On April 11, 2012, plaintiff’s A1C was down to 6.7 percent, his

13

Metformin is used alone or with other medications for the treatment of type 2 diabetes and
controls the amount of glucose in the blood. https://www.nlm.nih.gov/medlineplus/druginfo/meds/
a696005.html.
14

Glipizide is a medication used along with diet, exercise, and sometimes, with other
medications to treat type 2 diabetes by controlling the amount of sugar in the blood. https://www.nlm.
nih.gov/medlineplus/druginfo/meds/a684060.html.
15

fasting glucose was 136, and he had lost seven pounds. (T. 355). On May 23, 2012, NP
Aleccia still reported that plaintiff’s recent blood work showed an A1C of 6.7 percent
and fasting glucose of 138.15 NP Aleccia never noted that plaintiff was “lethargic” as
the result of his diabetes, and his blood sugar was never up to 300 during the
examinations noted above through 2011 and May of 2012.
On October 25, 2012, Dr. Michele Boyle, M.D. reported that plaintiff’s “sugars
are 200 and 300.” (T. 449). But, she also noted that the reason for this increase was
that “he got off his diet, stopped exercising, and he has gained weight.” (Id.) She cited
his previous success in losing weight, and noted that he was doing much better with his
diabetes, to the point where his medication had been decreased. However, on October
25, 2012, because of the increase in blood sugar, the doctor increased plaintiff’s
Glipizide and counseled plaintiff to get the numbers below 120. (Id.) Plaintiff was told
that if his sugars did not meet this goal after a week, his Glipizide could be increased
“some more.” (Id.) Thus, the ALJ was correct that plaintiff’s diabetes was controlled
with diet and medication, and apparently, exercise. In her assessment, Dr. Boyle did
not use the word “uncontrolled,” she actually stated that plaintiff’s diabetes was in
“suboptimal” control. (T. 449). Dr. Boyle proposed to adjust his medication and
attempt to get plaintiff’s glucose back in line.
The ALJ did not question the diagnosis of diabetes. He only questioned the
alleged effect that the impairment had on plaintiff’s ability to work. Plaintiff claims
that the high “sugars” made him tired and anxious, but for most of 2010, 2011 and
15

She appears to have been reporting the March 2012 numbers.
16

2012, plaintiff’s sugars were not at the level that allegedly made him tired and
anxious.16 There is no indication that the diabetes affected the plaintiff’s ability to
perform basic work activities, and the ALJ’s determination that the plaintiff’s diabetes
was not a severe impairment is supported by substantial evidence in the record.
2.

Sleep Apnea

Plaintiff also alleges that the ALJ erred in determining that plaintiff’s sleep apnea
was not a severe impairment. (Pl.’s Br. at 13-14). In July of 2012, plaintiff was referred
to Dr. Shamsuddin Rana, M.D. by Dr. Boyle and NP Aleccia for treatment of plaintiff’s
sleep apnea. (T. 420-22). In his initial consultative report, Dr. Rana discussed the
nature of plaintiff’s sleep disorder, and discussed the benefits of weight reduction, sleep
hygiene, quitting smoking, and safe driving. (T. 422). In August of 2012,17 plaintiff
underwent a sleep study which revealed “very sleep disordered breathing.” (T. 423).
Dr. Rana stated that during the nasal CPAP18 component of the study, plaintiff required
a BiPAP,19 and that this “resolved [his] sleep-disordered breathing. The oxygen
16

In Dr. Magurno’s consultative report, dated January 3, 2013, she states that plaintiff’s sugars
are “now running in the 200s.” (T. 532). It appears that this information was told to Dr. Magurno by
plaintiff because it does not appear that she tested his sugar as part of the examination, and there are no
other reports after the October 25, 2012 report in which Dr. Boyle noted that plaintiff was doing well
until he went off his diet and gained weight. (T. 449).
17

The summary of Dr. Rana’s study is also part of the administrative record. (T. 428-30, 431-33
(duplicate)).
18

CPAP stands for Continuous Positive Air Pressure. A CPAP machine delivers pressurized air
at a constant pressure through a mask to the individual’s airway to treat sleep apnea.
http://emedicine.medscape.com/ article/295807-treatment#d8.
19

BiPAP stands for Bi-level Positive Air Pressure. A BiPAP machine permits independent
adjustment of the pressures delivered during inspiration and expiration. http://emedicine.medscape.
com/article/295807-treatment#d8. BiPAP is generally used for individuals who cannot tolerate the
17

saturation was normalized. Snoring was completely resolved too.” (T. 423-24). Dr.
Rana prescribed a BiPAP, weight reduction, and emphasized a low fat, low cholesterol
diet with physical activity. (T. 424, 430).
On September 5, 2012, Dr. Rana wrote that plaintiff was doing fairly well, and he
was not as foggy and sleepy as before the use of the BiPAP, although he was still taking
naps in the afternoons three to four times per week. (T. 488). In a form for compliance
information, it is noted that in the 86 days between September 11, 2012 and December
5, 2012, plaintiff used his BiPAP machine 71 days, with 81% usage. (T. 501). On
December 10, 2012, Dr. Rana noted that plaintiff was in good compliance.20 (Id.) Other
than plaintiff’s occasional statements about his lethargy,21 as stated by defendant, there
is no objective evidence to show that plaintiff’s sleep apnea affected his ability to
perform work-related activities. See Woodmancy v. Colvin, 577 F. App’x 72, 74 (2d Cir.
2014) (plaintiff did not meet his burden to show that various impairments, including
sleep apnea, were severe when plaintiff benefitted from treatment in ways that
minimized their impairing effect); Niles v. Astrue, 32 F. Supp. 2d 273, 282 (N.D.N.Y.
2012) (sleep apnea found to be non-severe because plaintiff did not point to any
high CPAP pressure or who have other complications. Id.
20

The first month, Dr. Rana indicated that plaintiff was in fair compliance. (T. 502).

21

The court notes that the ALJ specifically stated that he found the plaintiff’s statements as to
the intensity, frequency, and limiting nature of his impairments to be not fully credible.” (T. 21). “An
[ALJ] may properly reject [subjective complaints] after weighing the objective medical evidence in the
record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons
‘with sufficient specificity to enable us to decide whether the determination is supported by substantial
evidence.’” Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (quoting Gallardo v. Apfel, No.
96 CIV 9435, 1999 WL 185253, at *5 (S.D.N.Y. March 25, 1999)). Plaintiff in this case did not
challenge the ALJ’s credibility determination.
18

objective evidence of a significant impairment arising from his sleep difficulties, even
though treating nurse practitioner stated that plaintiff’s insomnia impaired his
concentration, focus, and capabilities in combination with his other impairments –
plaintiff was prescribed a CPAP machine and his sleep was described as “adequate”).
But see Solsbee v. Astrue, 737 F. Supp. 2d 102, 111 (W.D.N.Y. 2010) (the doctor
reported “excessive daytime sleepiness, loud snoring, and daytime fatigue, and plaintiff
was unable to use the CPAP machine – ALJ erred in finding sleep apnea non-severe).
Thus, there is no indication that plaintiff’s sleep apnea affected his ability to perform
basic work activities.22
VII. RFC/Treating Physician/Weight of the Evidence
A.

Legal Standards
1.

RFC

RFC is “what [the] individual can still do despite his or her limitations.
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular
and continuing basis” means eight hours a day, for five days a week, or an equivalent
work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2
(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)
(quoting SSR 96–8p, 1996 WL 374184, at *2)).

22

In any event, as stated above, even if the ALJ had erred in determining that plaintiff’s sleep
apnea was not a severe impairment, the ALJ considered this impairment in his ultimate RFC
determination. See Wavercak v. Astrue, 420 F. App'x 91, 93 (2d Cir. 2011) (ALJ found sleep apnea not
a severe impairment but also considered the totality of plaintiff's impairments in determining RFC).
19

In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). An ALJ must
specify the functions plaintiff is capable of performing, and may not simply make
conclusory statements regarding a plaintiff’s capacities. Martone v. Apfel, 70 F. Supp.
2d at 150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984); LaPorta v.
Bowen, 737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F. Supp. 456, 460
(W.D.N.Y. 1987)). The RFC assessment must also include a narrative discussion,
describing how the evidence supports the ALJ’s conclusions, citing specific medical
facts, and non-medical evidence. Trail v. Astrue, No. 5:09-CV-1120, 2010 WL 3825629
at *6 (N.D.N.Y. Aug. 17, 2010) (citing Social Security Ruling (“SSR”) 96-8p, 1996 WL
374184, at *7).
2.

Treating Physician

While a treating physician’s opinion is not binding on the Commissioner, the
opinion must be given controlling weight when it is well supported by medical findings
and not inconsistent with other substantial evidence. See Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If the treating
physician’s opinion is contradicted by other substantial evidence, the ALJ is not
required to give the opinion controlling weight. Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004). The ALJ must, however, properly analyze the reasons that a report of a
20

treating physician is rejected. Id. An ALJ may not arbitrarily substitute his/her own
judgment for competent medical opinion. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.
1999).
3.

Weight of the Evidence

In making his determination, the ALJ weighs all the evidence of record and
carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL
374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues
are not “medical issues,” but are “administrative findings.” The responsibility for
determining these issues belongs to the Commissioner. SSR 96-5p, 1996 WL 374183, at
*2. This issues include – whether the plaintiff’s impairments meet or equal a listed
impairment; the plaintiff’s RFC; how the vocational factors apply; and whether the
plaintiff is “disabled” under the Act. Id. In evaluating medical opinions on issues that
are reserved to the Commissioner, the ALJ must apply the factors listed in 20 C.F.R.
§§ 404.1527(d) and 416.927(d). The ALJ must clearly state the legal rules that he
applies and the weight that he accords the evidence considered. Drysdale v. Colvin, No.
14-CV-722, 2015 WL 3776382, at *2 (S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue,
No. 10 Civ. 4324, 2012 WL 3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation
omitted)).
B.

Application

Plaintiff argues that the ALJ’s RFC determination is incorrect and argues that the
ALJ failed to properly weigh the medical evidence in the record, including evidence
from plaintiff’s treating sources. This court does not agree.
21

1.

Non-Exertional (Mental) Impairments

Plaintiff argues that the ALJ should have found that plaintiff had “moderate
limitation[s]” in his abilities to perform activities within a schedule, maintain regular
attendance, maintain concentration, persistence, and pace, and in his ability to be
punctual within customary tolerances. Plaintiff contends that these limitations would
render him unable to perform his prior work because his job as an electronics assembler
required attention, consistency, and pace. (Pl.’s Br. at 14-17).
The ALJ first considered plaintiff’s “concentration, persistence, and pace” in his
step three determination that plaintiff did not meet a listed impairment. (T. 18-19). The
ALJ found that plaintiff had only “mild” limitations in these areas. The ALJ found that
even though the non-examining medical source, Dr. Altmansberger, opined that plaintiff
had “moderate” limitations in “this category,” Dr. Long noted in her consultative report,
that plaintiff obtained a GED, and appeared to be functioning on an average intellectual
level with a good fund of information. (T. 18) (citing T. 301).
A January 5, 2012 mental health evaluation from the Broome County Mental
Health Clinic notes that plaintiff can use a computer.23 (T. 18) (citing T. 344). The
January 5, 2012 report also states that plaintiff’s attitude was “cooperative,” his energy
and attention were “alert,” his social skills were “average,” his memory was “good,”24
and his intellect was “average.” (T. 344). He was “personable, easy going, pleasant to

23

The report was completed by Len Mantei, a social worker. (T. 345).

24

In his “Interpretive Summary,” Social Worker Mantei stated that plaintiff’s memory was “fair
to good for recent and remote events.” (T. 345).
22

speak with, determined, and independent . . . .” (Id.) The ALJ also cited Dr. Mahfuzar
Rahman’s initial evaluation of plaintiff, dated May 22, 2012 in which the doctor stated
that plaintiff’s speech was normal, his thought processes were logical and “goaldirected,” he had no delusions, obsessions, and no suicidal or homicidal ideation. (T.
19) (citing T. 341). Plaintiff’s memory functions were intact, and his insight and
judgment were good.” (Id.) As the ALJ properly noted, the limitations considered at
step three do not constitute an RFC determination, which involves a more detailed
assessment by itemizing various of the functions contained in the broad categories
discussed above. (T. 19). Therefore, the ALJ continued his analysis of plaintiff’s mental
limitations as he considered plaintiff’s RFC at step four.
In his RFC determination at step four, the ALJ found, inter alia, that plaintiff
could understand and follow simple and complex instructions, as well as perform simple
and more complex tasks with intermittent supervision and independently. (T. 19). The
ALJ found that plaintiff could maintain attention and concentration for simple and more
complex tasks, regularly attend to a routine, and maintain a schedule. (T. 20).
“Significant weight” was given to “the opinions of the Administration’s
consultative examiners and psychiatric consultant, due to their programmatic expertise
and the consistency of their opinions with the overall medical evidence. (T. 22)
(referring to Ex. 6F (Sara Long, Ph.D.), 7F & 8F (Dr. R. Altmansberger)). While it is
true that the ALJ did not extensively discuss the reports to which he gave “significant
weight,” and devoted more of his discussion to the reports to which he gave very little
weight, the court has reviewed the documents cited by the ALJ and agrees that his
23

determination of the plaintiff’s mental RFC is supported by substantial evidence.
In May of 2011, Dr. Sara Long, Ph.D. conducted a consultative examination of
plaintiff. (T. 300-303). As plaintiff points out, Dr. Long stated in the “Attention and
Concentration” section of her report that plaintiff subtracted three from twenty with the
result of 27, notwithstanding Dr. Long rephrasing the question three ways. (T. 301).
Plaintiff claims that this statement indicates that Dr. Long believed that plaintiff’s
attention and concentration were “significantly” diminished. (Pl.’s Br. at 15). However,
Dr. Long also stated that “[t]his appears inconsistent with having achieved a GED.” (T.
301). In her “Medical Source Statement,” which plaintiff does not cite, Dr. Long stated
that “Mr. Truman was able to follow and understand simple directions and instructions
and to perform simple tasks independently. He was able to maintain attention and
concentration and is able to maintain a regular schedule.” (Compare T. 301 with 302)
(emphasis added). Thus, Dr. Long did not find that plaintiff’s attention and
concentration were “significantly” diminished.
Dr. Long also stated that the results of her examination were “consistent with
stress-related problems,” but that “in itself, this does not appear to be significant enough
to interfere with his ability to function on a regular basis.” (T. 302). Dr. Long
concluded that “on his paperwork, [plaintiff ] had indicated some depression and
anxiety, but no symptoms are reported or observed during this evaluation.” (T. 302).
Thus, contrary to plaintiff’s argument, Dr. Long’s complete report supports the ALJ’s
determination that plaintiff is able to maintain attention and concentration as well as
maintain a schedule.
24

The ALJ also gave significant weight to Dr. Altmansberger, a non-examining
agency medical consultant who, while checking a box indicating that plaintiff had
“moderate” limitations in maintaining concentration, persistence, and pace (T. 314) for
purposes of the step three Listing analysis, ultimately concluded in his Mental RFC
assessment that plaintiff had no significant limitation in the ability to maintain attention
and concentration for extended periods and in the ability to sustain an ordinary routine
without special supervision. (T. 318). He found a “moderate” limitation in the ability to
perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances. (Id.) However, he also found that plaintiff was not
significantly limited in his ability to carry out very simple, as well as detailed
instructions and “work in coordination with or proximity to others without being
distracted by them.” (T. 318).
Finally, Dr. Altmansberger found that plaintiff was not significantly limited in the
ability to complete a normal work day and work week and perform at a consistent pace
without an unreasonable number of rest periods. (T. 319). Although Dr. Altmansberger
was not an examining physician, the ALJ may rely on the opinion of a non-examining
physician, when the opinion is consistent with that of the examining physicians and is
supported by substantial evidence in the record. See Bessette v. Colvin, No. 08-CV-828,
2015 WL 867172, at *11 (D. Vt. Feb. 27, 2015). Dr. Altmansberger’s report is
consistent with that of Dr. Long, and the court finds that the ALJ gave appropriate
weight to these opinions.
The ALJ gave “very little weight” to the opinion of Nathan Hare, Ph.D, who
25

examined plaintiff for the Department of Social Services on July 25, 2012, and
completed a questionnaire on September 7, 2012, stating that plaintiff was either
“unable to meet competitive standards”25 or had “no useful ability to function” in most
areas, including performing at a consistent pace, maintaining attention for a two hour
period, and maintaining regular attendance. (T. 22) (referring to T. 550-51). The ALJ
gave this report little weight because it was a “one-time”26 evaluation that was not
consistent with the longitudinal medical evidence. (T. 22). In addition, the ALJ took
issue with the heading of “unable to meet competitive standards” because this was a
“vocational assessment” that was beyond Dr. Hare’s expertise.27 (Id.)
The court notes that there is no evidence in the record to support a finding that
plaintiff has “no useful ability to function” in as many areas as noted by Dr. Hale. Dr.
Hale states that plaintiff has “no useful ability to function” in his ability to “[m]aintain
attention for [a] two hour segment,” while stating in his narrative report that plaintiff
was able to sit through the entire interview of approximately 60 minutes with no

25

“Unable to meet competitive standards” is defined in the form to mean that the individual
“cannot satisfactorily perform this activity independently, appropriately, effectively and on a sustained
basis in a regular work setting.” (T. 550).
26

Plaintiff also argues that Dr. Hale’s report should not have been given very little weight
because it was a “one time” examination, while giving great weight to Dr. Long, who also only
examined plaintiff once. (Pl.’s Br. at 21). However, the ALJ did not reject Dr. Hale’s opinion solely
because he saw plaintiff once, but also because his opinion was not consistent with the medical
evidence in the record.
27

The court notes that in his narrative summary and “medical source statement,” Dr. Hare a
psychologist states that “this patient is not able to do sustained work-related physical or mental
activities in a work like setting on a regular and continuing basis.” (T. 548). Clearly, Dr. Hare had no
expertise in determining plaintiff’s “physical” abilities, and his generalization is contrary to the
evidence of record.
26

apparent pain behaviors, the tone and pace of his speech was normal, and his affect was
labile. (T. 545, 550). Dr. Hale also stated in his narrative report that
attention/concentration was “impaired upon testing; his short term memory was
impaired; but his long term memory was grossly intact. (T. 546). Plaintiff’s use of
language and observed conceptual ability indicated average to low average intellectual
ability.” (T. 546). However, in Dr. Hale’s “check box” medical source statement, he
finds that he is “unable to meet competitive standards” in his ability to ask simple
questions or carry out simple instructions. (T. 550). These severe restrictions are not
consistent with any medical source’s interaction with this plaintiff. Thus, the ALJ was
justified in giving Dr. Hale’s report very little weight.
The ALJ also gave very little weight to treating NP Aleccia’s “Medical Source
Statement” because NP Aleccia is not an “acceptable medical source” for purposes of
the Act,28 and her opinion was not consistent with the overall medical evidence. (T. 23).
NP Aleccia performed examinations of plaintiff at Lourdes. NP Aleccia wrote narrative
reports as a result of these examinations, but she also submitted two questionnaires at
plaintiff’s counsel’s request. (T. 407-409, 458-61). The first questionnaire is dated July
18, 2012, and the second questionnaire is dated November 8, 2012. (Id.) The second
questionnaire is a copy of the first questionnaire, with a cover sheet entitled “Addendum
to Questionnaire.” (Id.) Although the first questionnaire has Dr. Diallo’s name typed

28

The regulations indicate that a nurse practitioner is not an acceptable medical source to
establish an impairment, however, an NP is listed in a group of “[o]ther sources,” whose opinions may
be considered in determining the extent of the plaintiff’s restrictions based on the diagnosis of an
acceptable medical source. 20 C.F.R. §§ 404.1513(d)(1); 416.913(d)(1).
27

below the signature line, it is clearly signed by NP Aleccia. The cover page of the
second questionnaire has NP Aleccia’s name typed under the signature, and the two
signatures are identical.
The ALJ also indicated that NP Aleccia’s “medical source statements” were given
little weight because of her lack of specialty. NP Aleccia’s questionnaire stated that the
effect of plaintiff’s impairment on his concentration was “mild,” but the effect on his
work pace was “severe.” (T. 408, 460). To the extent that plaintiff alleges that his
mental impairment affects his concentration or attention, it is unclear how NP Aleccia
would be able to assess the limitations on plaintiff’s concentration and work pace when
she stated herself that she was not licensed to treat mental health issues.29 (See T. 355,
460). Thus, the ALJ was justified in giving NP Aleccia’s assessment of plaintiff’s
mental limitations very little weight.
The ALJ also considered Dr. Mahfuzar Rahman’s check-box questionnaire which
noted a “marked” limitation in plaintiff’s ability to complete a normal workday and
work week without interruptions from psychological based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest periods. (T. 463).
Dr. Rahman is a treating psychiatrist. However, the ALJ gave little weight to this
check-box questionnaire because it was unaccompanied by any explanation, and Dr.
Rahman had a very limited “treatment continuum” with plaintiff. (T. 22-23). The ALJ
noted that plaintiff only saw this doctor three or four times, once was for an intake

29

The ALJ also rejected her physical assessments. The court will discuss plaintiff’s physical
impairments below.
28

evaluation, and the subsequent visits were for medication management. (T. 22).
Plaintiff argues that Dr. Rahman saw plaintiff at least six times.30 (Pl.’s Br. at 26).
The record shows that Dr. Rahman saw plaintiff on 5/22/12; 6/21/12; 7/24/12;
and 9/8/12. (T. 340-42, 337, 474, 476-77). Plaintiff was seen by social workers on
1/5/12 and 7/13/12. (T. 343-45, 473). Dr. Rahman’s check-box form dated 11/27/12
does not appear to have been accompanied by an in-person examination. In any event,
even assuming that Dr. Rahman qualifies as a treating physician, as the defendant points
out, Dr. Rahman’s actual narrative examination notes are largely consistent with the
ALJ’s mental RFC. (See T. 340-42, 468-70, 471-72, 474-75, 476-77). To the extent that
Dr. Rahman’s check-box form is inconsistent with his treatment notes, the ALJ was
justified in rejecting the opinion expressed on the form.
Dr. Rahman’s May 22, 2012 in-person evaluation of plaintiff states that personal
grooming was average, and he made good eye contact. (T. 341). Although plaintiff
described himself as being depressed, and his affect was restricted, his speech was
normal in all spheres, his thought processes were logical and goal oriented, he had no
delusions, obsessions, or suicidal or homicidal ideation, his intelligence was average,
his memory was intact in all spheres, and his insight and judgment appeared to be fair to
good. (T. 341).
However, Dr. Rahman assessed a Global Assessment of Functioning (“GAF”)

30

While plaintiff appears to be incorrect about the number of times that he was actually
examined by Dr. Rahman, the court can assume that Dr. Rahman is a treating physician. The ALJ’s
comment merely indicates that, as a treating physician, Dr. Rahman did not see the plaintiff
extensively.
29

score of 45 which indicates “serious symptoms,” including suicidal ideation, severe
obsessional rituals, or a serious impairment in social, occupational, or school
functioning, such as “no friends” or inability to keep a job. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders (“DSM–IV”), at 32 (4th ed.
2000)). GAF is a 100 point scale, and 41-50 indicates “serious symptoms,” 51-60
indicates “moderate symptoms,” and 61-70 indicates “some mild symptoms.” DSM-IVTR at 32-34. See Kohler v. Astrue, 546 F.3d 260, 262 n. 1 (2d Cir. 2008).
No medical source, including Dr. Rahman, has diagnosed a “serious” impairment
in plaintiff’s social or occupational functioning due to his mental impairment. Plaintiff
left his job or was let go, allegedly due to his back impairment, not to his depression.31
The court notes that the ALJ did not mention plaintiff’s GAF, which was also found to
be 45 in Dr. Hare’s evaluation. It has been held that the ALJ need not explicitly
mention the GAF score because he gave very little weight to both the reports that cite
the low score. Marvin v. Colvin, No. 3:12-CV-1779, 2014 WL 1293509, at *2
(N.D.N.Y. Mar. 31, 2014).
The court finds that the ALJ’s rejection of the more severe limitations listed in
Dr. Rahman’s questionnaire is supported by substantial evidence. Although Dr.
Rahman checked a box, stating that the limitation on plaintiff’s ability to complete a
normal work day and work week without psychological interruptions is “marked,” that

31

Dr. Hare noted that plaintiff left his employment because he was “missing time” due to his
back problems. (T. 545). Social worker Mantei stated on January 5, 2012 that plaintiff was let go from
his job due to “physical reasons.” (T. 344). Plaintiff has never been unable to keep a job due to mental
disabilities as mentioned in the GAF scoring system.
30

assessment is inconsistent with his response to another question which indicated that
plaintiff had no restrictions or mild restrictions in his ability to maintain attention and
concentration “for extended periods of time,” and that he only had “more than slight”
restrictions in the ability to perform activities within a schedule, maintain regular
attendance, and/or be punctual.32 (T. 463). The court also notes that in Dr. Rahman's
reports, including his Medical Source Statement, dated 11/27/12, he specifically
indicates that plaintiff has no complaints of medication side-effects. (T. 465, 471, 474).
Clearly, plaintiff never complained to Dr. Rahman that his medications made him
fatigued, thus interfering with his concentration or attention.
Essentially, the ALJ was presented with conflicting evidence in the record, and he
resolved the conflict. It is the province of the ALJ to resolve genuine conflicts in the
record. Veino v. Barnhart, 312 F.3d at 588. The ALJ engaged in a more detailed
discussion of the reports that he rejected, rather than explaining in detail the reasons for
giving the other reports significant weight. However, the Commissioner need not
“reconcile explicitly every shred of medical testimony.” Galiotti v. Astrue, 266 F. App’x
66, 66 (2d Cir. 2008) (citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)).
The courts have been more concerned with “unreasoned rejections” of evidence in

32

The court notes that Dr. Hare’s very restrictive mental RFC is dated September 7, 2012. (T.
544). In his report, Dr. Hare stated that plaintiff’s had “severe” levels of reported depressive
symptoms, and “moderate to severe” levels of reported anxiety. (T. 413). However, Dr. Rahman wrote
an updated report on September 18, 2012 stating that plaintiff’s depression and anxiety were both
“better.” The doctor noted “improved mood” and “modest progress toward mood symptoms and
anxiety.” (T. 477). Dr. Rahman also noted that plaintiff was taking his medications and reported “no
side effects.” (T. 476). The difference in the reports that were less than two weeks apart is significant,
in part, because plaintiff argues that Dr. Long’s report is from 2011, and she did not have the benefit of
the more recent evaluations. (See Pl.’s Br. at 23).
31

plaintiff’s favor. Id. In this case, the ALJ detailed his rejection of the reports which
were in plaintiff’s favor. Thus, his finding that plaintiff’s mental impairment did not
prevent him from maintaining the attention and concentration to perform his prior work
is supported by substantial evidence.
2.

Combination of Physical & Mental Impairments

The regulations provide that the Commissioner must consider the combined effect
of all plaintiff’s impairments in making the disability determination. 20 C.F.R.
§ 404.1523. See Petsch v. Astrue, No. 11-CV-925, 2012 WL 3313553, at *8 (W.D.N.Y.
July 19, 2012) (it is improper to determine RFC solely upon an evaluation of the
plaintiff’s individual complaints) (citing Gold v. Sec. of HHS, 463 F.2d 38, 42 (2d Cir.
1972)); Ball v. Astrue, 755 F. Supp. 2d 452, 464-65 (W.D.N.Y. 2010) (same).
Plaintiff argues that two “physical” providers gave opinions to the ALJ with
respect to the effect that the combination of plaintiff’s physical and mental impairments
would have on his ability to work. The only objective clinical evidence of any back
impairment is an x-ray report, dated January 14, 2011 which showed “minimal spurring
of the lumbar vertebrae anteriorly at the L1-L2 with no other abnormality appreciated.”
(T. 293). The impression was “mild degenerative spondylosis at upper levels.” (Id.)
Plaintiff cites NP Aleccia and Dr. Lawrence Wiesner – a consultative D.O., who
examined plaintiff on June 29, 2012. (T. 327-32). As stated above, the ALJ gave NP
Aleccia’s report little weight because she is not an acceptable medical source, and the
court notes that she stated in one of her reports that she was not licenced to treat mental
disorders. (T. 355). The ALJ gave Dr. Wiesner’s report very little weight because his
32

conclusions were not consistent with the longitudinal medical evidence, the plaintiff’s
“conservative” treatment, and the plaintiff’s activities of daily living. (T. 23).
At the end of Dr. Wiesner’s RFC evaluation, there was a question regarding
plaintiff’s “concentration” and “ability to sustain work pace.” (T. 332). The question
was whether the plaintiff’s concentration or pace – or both – would be affected by his
“medical condition and/or side effects of medication.” (Id.) Dr. Wiesner checked the
box indicating a “[m]arked” limitation. It is unclear whether Dr. Wiesner was
attempting to assess the plaintiff’s concentration or pace as it related to his physical or
both his physical and mental impairments, but there is no indication in the rest of the
medical record that plaintiff’s back impairment caused “marked” limitations in both
concentration and work pace.33
Dr. Wiesner’s report also contains a questionnaire. (T. 330-32). The
questionnaire indicates that plaintiff cannot sit, stand, or walk for more than ten or
fifteen minutes at a time. (T. 330). He also indicates that plaintiff’s medications,
including the medications he takes for his depression and anxiety, “cause significant
fatigue.” (T. 328). Both the assessment regarding plaintiff’s inability to sit for more
than ten or fifteen minutes and the medication side effects are not supported by the
evidence in the record. Dr. Magurno stated that plaintiff was only mildly limited in his
ability to sit. Even Dr. Hale noted that plaintiff was “able to sit through the entire
interview of approximately 60 minutes with no apparent pain behaviors.” (T. 545).

33

It is unclear whether Dr. Wiesner, a DO, would be qualified to assess plaintiff’s mental
limitations.
33

The court also notes that NP Aleccia stated in the questionnaire that she
completed for plaintiff’s counsel that the effect on plaintiff’s “medical condition” on
plaintiff’s concentration was “mild,” while the effect on his ability to sustain work pace
was “severe.” (T. 408). The questionnaire also asked about medication side effects,
specifically whether “any medications cause fatigue or require the patient to rest after
taking same).” (T. 409). NP Aleccia responded that plaintiff “[h]as been on
[medications] for a long period - side effects now should be minimal.” (Id.) (emphasis
added). Thus, plaintiff apparently never complained to his treating nurse practitioner
that he had limiting effects from his medications. As stated above, Dr. Rahman
specifically stated that plaintiff had no reported side effects from his medications. (T.
471, 474).
The ALJ did consider plaintiff’s impairments in combination, but found that the
combination did not prevent plaintiff from performing his prior work. Plaintiff argues
that the providers are “unanimous” in finding that the combination of plaintiff’s
impairments would diminish plaintiff’s ability to work “consistently without absences,”
and that the only provider who did not comment on the issue of combination of
impairments was consultative examiner, Dr. Magurno. (Pl.’s Br. at 16-17). Plaintiff
claims that the ALJ “would not permit” Dr. Magurno to do so. Plaintiff is incorrect in
his statement.
The ALJ sent plaintiff to internist, Dr. Magurno, after the hearing, although the
ALJ considered Dr. Magurno’s report in his decision. (T. 21). Dr. Magurno completed
her examination on January 3, 2013. (T. 532-36, 538-43). Dr. Magurno submitted a
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narrative report as well as an RFC evaluation. Dr. Magurno found that plaintiff could
lift and carry up to twenty pounds occasionally and ten pounds frequently. (T. 538).
She also found that plaintiff could stand and walk for a combined total of three hours
and sit for six hours in an eight-hour workday. (T. 539). On the form-RFC, Dr.
Magurno also found that plaintiff could sit for one hour, stand for thirty minutes, and
walk for fifteen minutes “without interruption.” (Id.) However, in her narrative report,
she states that plaintiff has “mild limitations for bending, sitting, standing, and walking.
(T. 535). Plaintiff has “marked” limitations for squatting and no limitations for
communication skills, fine motor activities, and reaching. (T. 535). Dr. Magurno
examined plaintiff with respect to his physical impairments – “low back pain” and
“uncontrolled” high blood pressure.34 (T. 538). However, she also mentioned plaintiff’s
diabetes, obesity, right knee pain, history of depression and anxiety, and sleep apnea in
her narrative report. (T. 535, 540).
After plaintiff’s consultative examination, counsel requested that the ALJ
convene another hearing, at which Dr. Magurno would appear to testify, and at which
she could be cross-examined by plaintiff’s counsel (T. 13). Plaintiff’s counsel wrote to
ALJ Ramos, stating that he wished to examine Dr. Magurno “with respect to questions
we have relative to the report on issues of obesity and its effect together with issues of
fatigue and good and bad days.” (T. 252). Although the ALJ refused to convene another
hearing, he specifically allowed counsel to submit questions to Dr. Magurno in writing,

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The RFC form that Dr. Magurno completed is entitled “Medical Source Statement of Ability
to Do Work-Related Activities (Physical). (T. 538).
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but counsel insisted on having an in-person hearing. (T. 13, 248, 252). Plaintiff’s
counsel never sent any interrogatories to Dr. Magurno.
In his decision, the ALJ stated that he determined that a supplemental hearing was
not necessary because there was nothing in the case, or in Dr. Magurno’s consultative
report, that was of such an unusual nature or complexity that written interrogatories
would be insufficient. (T. 13). Because plaintiff’s counsel failed to submit any
interrogatories within the prescribed period, the ALJ found that plaintiff “constructively
waived” his right to question the consultative examiner. (Id.) Thus, plaintiff can not
now complain that the ALJ “refused” to allow Dr. Magurno to comment on the issues in
this case.35
Plaintiff also argues that the ALJ improperly assessed Dr. Magurno’s evaluation.
(Pl.’s Br. at 19-20). Counsel argues that, notwithstanding the weight that he gave Dr.
Magurno’s opinion, the ALJ failed to mention that Dr. Magurno also stated that plaintiff
“needed a sit/stand option” because she stated that plaintiff could only sit for one hour,
stand for thirty minutes and walk for fifteen minutes at a time “without interruption.” (T.
539). As stated above, this assessment appears on the same page in which Dr. Magurno
states that plaintiff can sit for six hours, stand for two hours, and walk for one hour in an

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The court notes that in his letter to ALJ Ramos, plaintiff’s counsel asked that he be able to
question Dr. Magurno on the issue of obesity and its effect, together with issues of fatigue and good
and bad days. (T. 252). However, in his brief, counsel states that the ALJ refused to allow Dr.
Magurno to comment on work pace or concentration. (Pl.’s Br. at 16). The issues here become a bit
confused. Dr. Magurno is a family practice physician, and Dr. Weisner is a doctor of osteopathy.
Initially, plaintiff’s issues with concentration and pace involved his mental status, and neither Dr.
Weisner, nor Dr. Magurno are qualified with respect to mental impairments. Thus, plaintiff must argue
that his physical impairments cause his limitations in concentration and pace. It does not appear that
Dr. Magurno would have been qualified to comment otherwise.
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eight-hour day. (T. 539).
It is true that the ALJ did not mention the part of Dr. Magurno’s RFC form, which
stated that plaintiff could sit for one hour, stand for thirty minutes, and walk for fifteen
minutes “without interruption.” Defense counsel argues that this statement does not
indicate that plaintiff needs a “sit/stand” option, and plaintiff could have submitted an
interrogatory to clarify this statement, but did not do so. In any event, in her narrative
report, Dr. Magurno stated that plaintiff would only have a “mild” limitation for
bending, sitting, standing, and walking. (T. 535).
The ALJ was within his discretion to accept certain portions of the doctor’s
report, but reject those that are not supported by the treatment notes or other substantial
record evidence. Gray v. Colvin, No. 1:13-CV-955, 2015 WL 5005755, at *5
(W.D.N.Y. Aug. 20, 2015) (citing Pavia v. Colvin, No. 6:14-CV-6379, 2015 WL
4644537, at *4 (W.D.N.Y. Aug. 4, 2015) (citing Veino v. Barnhart, 312 F.3d at 588).
Sitting for only one hour “without interruption” is not a “mild” limitation on the ability
to sit, even if one can sit for six hours. Thus, Dr. Magurno’s statement that plaintiff
could only sit for one hour without interruption is not consistent with any other part of
her examination, and the ALJ did not err in failing to include a sit/stand option in his
RFC.
VIII. Past Relevant Work
A.

Legal Standards

The law is clear that the ALJ must evaluate plaintiff’s previous specific job as
well as the job as it is generally performed in the national economy pursuant to the
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Dictionary of Occupational Titles (“DOT”). Jasinski v. Barnhart, 341 F.3d 182, 185 (2d
Cir. 2003). At the fourth step of the disability analysis, plaintiff has the burden to show
that he is unable to return to his previous specific job and an inability to perform the
past relevant work “generally.” Id. (citing Jock v. Harris, 651 F.2d 133, 135 (2d Cir.
1981); Social Security Ruling (“SSR”) 82-62, 1982 WL 31386 at *3 (1982).
B.

Application

Plaintiff argues that the ALJ erred in finding that plaintiff could perform his past
work as an electronics assembler. In this case, the DOT describes the job of electronics
assembler as “light,” with a specific vocational preparation code (“SVP”) of 4. (T. 23).
However, the ALJ found that plaintiff stated that his particular electronics assembler job
involved soldering parts onto a circuit board. (Id.) Plaintiff stated that the heaviest
weight that he lifted and carried was ten pounds. He also stated that he sat down most
of the time and did not have to interact with others. (Id.) He only had intermittent
contact with his supervisors and no contact with the public at all. (Id.) The ALJ found
that, as plaintiff described his work, it was sedentary in nature, and neither his physical
nor his mental limitations would prevent him from performing his previous job as he
performed it. (T. 23-24).
Plaintiff now argues that even though he can perform sedentary work, according
to Dr. Magurno, he needs a “sit/stand” option, and the ALJ never addressed the issue.
He concedes that the most weight he had to lift was ten pounds, but that he had to lift
this amount of weight “constantly,” rather than only “frequently” as it is listed in the
description of sedentary work. Plaintiff testified that his previous work required him to
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sit most of the day and solder parts onto a circuit board. (T. 38-39, 49). While plaintiff
argues now that he had to lift “less than ten pounds” “constantly,” not “frequently,”
there is absolutely no evidence or testimony that he had ten pounds in his hands
constantly. In fact, plaintiff’s “Work History Report,” he specifically stated that the
“heaviest” weight lifted by plaintiff in his prior work was 10 pounds, and the weight he
“frequently” lifted was “less than 10 pounds.” (T. 185). Plaintiff never stated that he
lifted less than 10 pounds “constantly.” Instead, plaintiff stated that he wrote, typed, or
handled small objects for “8” hours. (T. 185). In his form, he also stated that he only
walked for 15 minutes, stood for one hour, and sat for six hours.36 He never climbed,
stooped, kneeled, crouched, crawled, or grabbed or grasped big objects. (Id.) Thus,
based on the description that plaintiff gave of his former work, the ALJ’s finding that
plaintiff could perform his prior job was supported by substantial evidence in the record
before the ALJ.
IX.

Appeals Council Evidence
A.

Legal Standards

The regulations provide that the Appeals Council considers new and material

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While sitting for six hours is a general requirement, “the Second Circuit has observed, “[t]he
regulations do not mandate the presumption that all sedentary jobs in the United States require the
worker to sit without moving for six hours, trapped like a seat-belted passenger in the center seat on a
transcontinental flight.’” Nezelek v. Astrue, No. 3:05-CV-1481, 2009 WL 1310518, at *8 n. 8 (quoting
Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (the ALJ’s finding that plaintiff can perform
sedentary work if “she is given several breaks or allowed to change positions often” does not contradict
the Social Security regulations defining ‘sedentary work’)). Smith v. Colvin, No. 3:12-CV-1665
FJS/ATB, 2014 WL 98676, at *12 n.9 (N.D.N.Y. Jan. 9, 2014). While the ALJ in this case did not
include the ability to change positions often in his RFC, he was justified in determining based upon Dr.
Magurno’s statements that her assessment did not mean that plaintiff “required” a sit/stand option.
39

evidence if it relates to the period on or before the date of the ALJ’s decision. 20 C.F.R.
§ 404.976(b)(1). See Jenkins v. Colvin, No. 1:13-CV-1035, 2015 WL 729691, at *5
(N.D.N.Y. Feb. 19, 2015) (citation omitted). If the Appeals Council finds that the
evidence is new and material, it will review the case if it finds that the ALJ’s decision is
contrary to the weight of the current record evidence. Id. (citing 20 C.F.R. § 404.970
(b). Even if the Appeals Council finds that the evidence is not new and material and
declines to review the ALJ’s decision, the evidence in question becomes part of the
record for review by the court. Id. (citing Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996).
If the Appeals Council denies review after reviewing the new evidence, the
Commissioner’s decision includes the AC’s conclusion that the ALJ’s findings remain
correct despite the new evidence. Id.
B.

Application

Plaintiff’s counsel submitted the testimony of VE Victor Alberigi to the Appeals
Council for its review. (T. 555-63). The Appeals Council denied plaintiff’s request for
review, finding that there was no basis to review the ALJ’s decision, notwithstanding
the additional evidence submitted by plaintiff. (T. 1-2). Plaintiff argues that the Appeals
Counsel erred in failing to review the ALJ’s decision, and that the VE’s testimony
shows that an individual with plaintiff’s RFC could not perform his past relevant work,
nor could he perform any substantial gainful activity.
The problem with plaintiff’s argument is that the questions that plaintiff’s counsel
asked the VE to assume that plaintiff had to “lift and maneuver objects throughout the
day,” without specifying what objects, how heavy they would be and what maneuvering
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entailed. (T. 560). The VE was also asked to assume that plaintiff had moderate
limitations in attention, concentration, and persistence. (T. 561). The VE testified that if
plaintiff had a moderate reduction in his “ability to concentrate or be consistent or work
at a pace,” then he could not perform any substantial gainful activity. (T. 562-63).
There is no indication in the record of what plaintiff’s prior work actually required in
terms of pace or consistency. In any event, the ALJ did not find that plaintiff was
moderately limited in attention and concentration, and the court has determined that the
ALJ’s finding is supported by substantial evidence. Thus, the questions asked by
plaintiff’s counsel were meant to elicit a particular response from the VE and assumed
limitations that were not included in the ALJ’s properly supported RFC finding. Thus,
the Appeal’s Council’s decision to reject plaintiff’s proffered evidence was supported
by substantial evidence in the record.
WHEREFORE, based on the findings above, it is
ORDERED, that the decision of the Commissioner is affirmed, and the plaintiff’s
complaint is DISMISSED, and it is
ORDERED, that the Clerk enter judgment for DEFENDANT.
Dated: September 17, 2015

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