Boyd v. Colvin

Filing 19

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Boyd's complaint (Dkt. No. 1) is DISMISSED. Signed by Senior Judge Gary L. Sharpe on 3/3/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MITCHELL BOYD,

Plaintiff,

3:14-cv-1316
(GLS)

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Lachman, Gorton Law Firm
P.O. Box 89
1500 East Main Street
Endicott, NY 13761-0089
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Senior District Judge

PETER A. GORTON, ESQ.

SERGEI ADEN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Mitchell Boyd challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. §§ 405(g)
and 1383(c)(3). (Compl., Dkt. No. 1.) After reviewing the administrative
record and carefully considering Boyd’s arguments, the court affirms the
Commissioner’s decision and dismisses the complaint.
II. Background
In January 2008, Boyd filed applications for DIB and SSI under the
Social Security Act (“the Act”), alleging disability since October 29, 2007.
(Tr.1 at 21A, 70-72, 96-99, 345.) After his applications were denied, (id. at
363-68), Boyd requested a hearing before an Administrative Law Judge
(ALJ), which was held on November 2, 2009, (id. at 31-33, 273-94). On
January 6, 2010, the ALJ issued an unfavorable decision denying the
requested benefits. (Id. at 10-21.) After the Appeals Council’s subsequent
denial of review, (id. at 782-85), Boyd commenced an action in Federal

1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

2

District Court and, on consent of the parties, the matter was remanded for
further administrative proceedings, (id. at 355-58, 369-71). Thereafter, the
Appeals Council remanded the case back to the ALJ who, on April 10,
2013, again denied Boyd’s claim following an additional hearing held on
February 19, 2013. (Id. at 320-39, 373-77, 830-62.)2 This became the
Commissioner’s final determination upon the Appeals Council’s denial of
review. (Id. at 297-304.)
Boyd commenced the present action by filing his complaint on
October 28, 2014 wherein he sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 8, 9.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 12, 13.)
III. Contentions
Boyd contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 12 at 11-24.)
Specifically, Boyd claims that the ALJ: (1) erred in rendering his residual
functional capacity (RFC) determination; and (2) improperly determined

2

The Appeals Council also instructed the ALJ to consolidate Boyd’s 2008 claims with
his subsequent DIB and SSI applications, filed while his appeal of the ALJ’s unfavorable
decision was pending. (Tr. at 376, 406-07, 800-05.)

3

that he was capable of performing work which exists in significant numbers
in the national economy. (Id.) The Commissioner counters that the
appropriate legal standards were used by the ALJ and her decision is also
supported by substantial evidence. (Dkt. No. 13 at 5-16.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
the ALJ. (Dkt. No. 12 at 1-11; Dkt. No. 13 at 1-2; Tr. at 326-39.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)3 is well established and will not be repeated here. For
a full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

RFC Determination
3

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations
governing SSI are omitted.

4

A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,
an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence4 in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Boyd makes two arguments pertaining to the ALJ’s RFC
determination. First, he contends that the ALJ erred in failing to include
nonexertional limitations stemming from his carpel tunnel syndrome (CTS),
shoulder, knee, and back impairments in the RFC determination. (Dkt. No.
12 at 11-17.) Next, Boyd claims that the ALJ erred in determining his
mental RFC. (Id. at 17-22.) For the reasons that follow, the court
disagrees.
1.

Nonexertional Limitations Due To Physical Impairments

According to Boyd, the ALJ erred in failing to include the limitations

4

“Substantial evidence is defined as more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept to support a conclusion.” Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).

5

caused by his CTS, namely, limitations in his ability to finger and handle
objects. (Dkt. No. 12 at 11-16.) Additionally, Boyd argues that the ALJ
should have included limitations in his ability to reach, bend, climb stairs,
squat, push, and pull, as these limitations are caused by his shoulder,
knee, and back impairments. (Id. at 16-17.) The Commissioner counters,
and the court agrees, that the ALJ considered all of Boyd’s impairments,
reasonably weighed the evidence before her, and thoroughly explained the
reasoning that led her to her RFC determination. (Dkt. No. 13 at 7-13.)
The ALJ concluded that Boyd retained the ability to lift and carry ten
pounds occasionally and less than ten pounds frequently, sit for four hours,
stand for four hours, and perform all other exertional activities occasionally.
(Tr. at 330.) The ALJ further determined that Boyd must change positions
every two hours, can understand and carry out simple instructions,
frequently respond appropriately to supervision, coworkers, and usual work
situations, and frequently deal with changes in a routine work setting. (Id.)
In making this determination, the ALJ relied on portions of the January
2013 opinion of treating nurse practitioner Cori Pane as well as the March
2012 opinion of consultative examiner Marilee Mescon. (Id. at 333-34.)
The ALJ’s decision to omit restrictions on Boyd’s ability to finger and
6

handle from the RFC determination is supported by substantial evidence.
In particular, Dr. Mescon noted that Boyd’s arm and hand pain caused by
his CTS was greatly reduced by medication. (Id. at 661.) Boyd reported to
Dr. Mescon that he was still able to use buttons and zippers, write with a
pen, pick up a coin from a flat surface, and tie his shoelaces. (Id.) Dr.
Mescon’s examination of Boyd’s arms and hands revealed no clinical
findings, rather, he had full motor strength in both of his arms, full grip
strength, and intact hand and finger dexterity. (Id. at 664.)5 Based on her
examination, Dr. Mescon opined that Boyd suffered no functional
limitations in his ability to use his arms or hands. (Id. at 665.) While Boyd
cites evidence that he suffers from CTS as well as clinical findings which
are inconsistent with those of Dr. Mescon, (Dkt. No. 12 at 11-16), “whether
there is substantial evidence supporting the appellant’s view is not the
question,” instead, the court must “decide whether substantial evidence
supports the ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58,

5

Boyd erroneously contends that Dr. Mescon found 4/5 motor strength in Boyd’s “right
upper arm and lower leg.” (Dkt. No. 12 at 9.) In fact, Dr. Mescon found 4/5 motor strength in
Boyd’s “right upper and lower leg,” but 5/5 motor strength in Boyd’s right and left arms. (Tr. at
664.) The court also notes Boyd’s contention that Dr. Mescon’s report is “highly questionable,”
in part, because she repeatedly refers to Boyd as a female. (Dkt. No. 12 at 9.) After reviewing
Dr. Mescon’s report, which explicitly notes that Boyd is “a [forty-five]-year-old male,” the court
concludes that Dr. Mescon’s use of the words “she” and “her” was an inadvertent
typographical error and is of no moment. (Tr. at 661.)

7

59 (2d. Cir. 2013). For instance, Boyd points to the 2008 consultative
examination by Justine Magurno, which revealed that Boyd had a
diminished ability to use a zipper, tie a bow, or use velcro with his right
hand. (Tr. at 157.) However, these findings are inconsistent with Boyd’s
own reports to Dr. Mescon, in March 2012, about his ability to use his
hands. (Id. at 661.) Thus, it was reasonable for the ALJ to discount Dr.
Magurno’s opinion that Boyd’s ability to perform fine motor activities was
moderately limited. (Id. at 157, 331.)
Boyd also takes issue with the ALJ’s reliance on physician Irwin
Rosenberg’s opinion, which failed to include any limitations for handling or
fingering. (Id. at 266-70, 331.) Dr. Rosenberg conducted an independent
orthopedic examination of Boyd in October 2009, at the request of Boyd’s
counsel. (Id. at 266.) Boyd complained of back and knee problems, and
Dr. Rosenberg concluded that Boyd suffered limitations in his ability to
walk, squat, and lift more than five pounds. (Id. at 266-67.) He opined that
Boyd would be able to perform only “extremely sedentary work.” (Id. at
267.) He did not, however, note any complaints, findings, or limitations
with respect to Boyd’s arms or hands, which fact the ALJ relied on in
discounting Dr. Magurno’s opinion with respect to such limitations. (Id. at
8

266-67.) Boyd argues that, because Dr. Rosenberg was not considering
Boyd’s hand issues, his opinion cannot offer support to the ALJ’s RFC
determination. (Dkt. No. 12 at 12.) Contrary to this argument, the court
concludes that it was reasonable for the ALJ to consider that the report of
Boyd’s own medical expert makes no mention of arm or hand pain. The
court notes that treating physician Daniel Gaylon opined that such pain
was likely orthopedic in nature, and Dr. Rosenberg performed an
orthopedic examination. (Tr. at 266, 654-55.) Further, Dr. Magurno’s
opinion as to Boyd’s reduced ability to use his arms and hands was based
on her diagnoses of right neck pain that radiated to his arm and right
shoulder pain. (Id. at 157.) The fact that Dr. Rosenberg failed to note any
complaints of neck, arm, or hand pain or limitations flowing therefrom,
ostensibly because Boyd failed to make such complaints to Dr. Rosenberg,
is inconsistent with the restrictive opinion of Dr. Magurno. See 20 C.F.R.
§ 404.1527(c)(4) (“Generally, the more consistent an opinion is with the
record as a whole, the more weight [the ALJ] will give to that opinion.”).6
6

Boyd contends that “it is particularly enlightening . . . that [the ALJ] determine[d] that
Dr. Rosenberg[’s opinion] should be credited as to something he never looked at[,] while his
opinion in all respects as to the physical problems that he did review . . . should be given no
weight.” (Dkt. No. 16 at 1.) On the contrary, the ALJ did not “credit” Dr. Rosenberg’s opinion
as to Boyd’s ability to use his hands and arms, but rather, noted that Dr. Rosenberg’s failure to
find any orthopedic impairments that caused limitations in Boyd’s ability to use his hands and

9

Boyd argues that the ALJ improperly found his daily activities
inconsistent with his allegations of limited ability to perform fine motor
activities, because there was no evidence that he could perform such
activities with the frequency required by sedentary work. (Dkt. No. 12 at
14.) Standing alone, Boyd’s daily activities, which include smoking, playing
video games, making and selling music CDs, doing occasional odd jobs,7
and playing cards, do not create an independent basis for finding that Boyd
could perform fine motor activities on a regular and continuing basis. (Tr.
at 291, 466, 544, 662.) However, it was reasonable for the ALJ to consider
such activities as one factor among many in determining Boyd’s RFC. (Id.
at 332-33, 334); see 20 C.F.R. § 404.1545(a)(3) (declaring that, in
assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence”).
Boyd also argues that the ALJ improperly assessed the February
2013 opinion of nurse practitioner Pane. (Dkt. No. 12 at 15-16.) In
January 2013, Pane who treated Boyd for his low back pain and CTS,

arms was inconsistent with Dr. Magurno’s opinion. (Tr. at 331, 332.)
7

Boyd testified that, since his alleged onset date, he sometimes performed odd jobs,
such as painting, to earn money. (Tr. at 291.)

10

completed a questionnaire and opined that, due to low back pain, Boyd
would need multiple rest periods every hour of the workday, as well as
have a high rate of absenteeism, and moderate limitations in concentration
and work pace. (Tr. at 702.) Further, Pane reported that Boyd did not
suffer any side effects from his medications, can sit for four hours and
stand or walk for four hours in a workday as long as he can change
positions every two hours, and can lift up to ten pounds frequently, and
more than ten pounds occasionally. (Id. at 703.) Thereafter, in February
2013, Pane completed a second questionnaire and opined that, due to
CTS, Boyd could use his right hand and arm to reach, handle, and perform
fine motor activities for only one-third of the work day. (Id. at 723.) The
ALJ credited the sitting, standing, and lifting restrictions of Pane’s January
2013 opinion, but discounted the portions of his opinion with respect to
concentration and ability to sustain work pace because they were not
supported by his treatment notes, which consistently indicated that Boyd’s
low back pain was relieved with medication. (Id. at 334, see id. at 611,
614, 616, 619, 622, 625, 627, 630, 635, 688, 690, 693, 695, 699.)
Additionally, the ALJ discounted Pane’s February 2013 opinion because he
failed to note CTS as one of Boyd’s disabling impairments in his January
11

2013 opinion, Pane’s treatment notes only contained his opinion that Boyd
was restricted in his ability to lift, and Pane’s February 2013 opinion was
inconsistent with the clinical findings and opinion of Dr. Mescon as well as
Boyd’s daily activities. (Id. at 334.) Instead of the restrictions suggested
by Pane, the ALJ concluded that Boyd was limited by CTS only in his ability
to lift and carry. (Id. at 335.)
Nurse practitioners, such as Pane, are not “acceptable medical
sources” whose medical opinions may be entitled to controlling weight, but
rather are considered “other sources” whose opinions “should be evaluated
on key issues such as impairment severity and functional effects, along
with the other relevant evidence in the file.” SSR 06-03p, 71 Fed. Reg.
45,593, 45,595 (Aug. 9, 2006); see 20 C.F.R. § 404.1513(a), (d)(1); Crysler
v. Astrue, 563 F. Supp. 2d 418, 434-35 (N.D.N.Y. 2008). Social Security
Ruling 06-03p dictates that the opinions of “other sources,” including nurse
practitioners, be evaluated by the same factors as acceptable medical
sources under 20 C.F.R. § 404.1527(c). See 71 Fed. Reg. at 45,595.
According to Boyd, the ALJ failed to apply these regulatory factors or give
good reasons for discounting Pane’s February 2013 opinion. (Dkt. No. 12
at 15-16.) However, a review of the ALJ’s decision reveals that this
12

argument is without merit. The ALJ clearly considered the “supportability”
and consistency of Pane’s opinion. 20 C.F.R. § 404.1527(c)(3)-(4).
Moreover, it is evident from the ALJ’s direct citation to Pane’s treatment
notes, (Tr. at 333), that the nature and duration of Pane’s treatment
relationship with Boyd was properly considered. As it is clear that she
properly applied section 404.1527(c), the ALJ did not err in failing to
methodically discuss each individual factor, and her assessment of Pane’s
opinions is legally sound. See SSR 06-03p, 71 Fed. Reg. at 45,595-96
(“Not every factor for weighing opinion evidence will apply in every case.”).
Further, Boyd argues that there is no adverse medical opinion to
those of Dr. Magurno and Pane, and, as such, the ALJ was required to
accept the limitations they proffered. (Dkt. No. 12 at 16.) However, Dr.
Mescon considered Boyd’s CTS diagnosis, examined his arms and hands,
and opined that Boyd’s only functional limitation was with respect to
respiratory irritants.8 (Tr. at 661-65.) Moreover, Dr. Mescon’s report notes
Boyd’s own acknowledgment that he can use his hands for fingering and

8

Dr. Mescon opined that Boyd suffered no limitations in his ability to sit, stand, climb,
push, pull, or carry. (Tr. at 665.) The ALJ gave this opinion “some weight,” but credited the
sitting, standing, and carrying restrictions contained in nurse practitioner Pane’s opinion in
crafting her RFC determination. (Id. at 334.)

13

handling. (Id. at 661.) Thus, this medical opinion supports the ALJ’s
conclusion that Boyd did not suffer any manipulative limitations. (Id. at
335.) Boyd’s implicit argument that, because Dr. Mescon did not specify
that Boyd is not limited in his ability to handle and finger objects, her
opinion did not support the ALJ’s RFC determination is misguided. Cf.
Yablonski v. Comm’r of Soc. Sec., No. 6:03-CV-414, 2008 WL 2157129, at
*6 (N.D.N.Y. Jan. 31, 2008) (explaining that the opinion of an examining
physician that fails to note any specific limitations caused by a claimant’s
obesity supports an ALJ’s decision that obesity did not cause any
functional limitations).
Finally, Boyd argues that the ALJ improperly failed to include
nonexertional limitations caused by his back and knee impairments. (Dkt.
No. 12 at 16-17.) Boyd cites to his repeated complaints to his treatment
providers that his low back and left knee pain were aggravated by bending,
climbing stairs, and twisting. (Id.) Further, Boyd points out the clinical
findings of Drs. Magurno and Rosenberg. (Id. at 17.) While such evidence
supports Boyd’s claims of limitation, the ALJ relied instead on the opinion
and exam results of Dr. Mescon. (Tr. at 334.) On examination by Dr.
Mescon, Boyd was able to fully squat, walk on his heels and toes, change
14

for the exam and get on and off the exam table without assistance, and rise
from a chair without difficulty. (Id. at 663.) Based on this examination, Dr.
Mescon found that Boyd suffered no exertional or nonexertional limitations
caused by his back and knee impairments, and explicitly opined that Boyd
suffered no limitation in his ability to climb. (Id. at 665.) Because the ALJ
provided sufficient reasons, grounded in the evidence before her, for
discounting the opinions of Drs. Magurno and Rosenberg9 and rendering
her RFC determination, her decision is legally sufficient and supported by
substantial evidence. (Id. at 330-35.)
2.

Mental RFC Determination

Boyd further contends that the ALJ’s mental RFC determination is not
supported by substantial evidence because it is inconsistent with Boyd’s
treatment notes and the opinion of consultative examiner Thomas Ryan.
(Dkt. No. 12 at 17-22.) The court disagrees.
At step two of the sequential evaluation, the ALJ determined that
Boyd suffered from a severe mental disorder, which had been variously

9

Notably, Dr. Rosenberg’s opinion that Boyd is not able to stand for even two hours a
day, can never lift any weight at all, and suffers fatigue and concentration problems as a side
effect of his medications is inconsistent with nurse practitioner Pane’s opinion. (Tr. at 269,
702-03.)

15

characterized throughout the medical evidence. (Tr. at 327.) The ALJ
concluded that Boyd’s mental impairment caused no restrictions in his
activities of daily living, moderate difficulties in social functioning, and
moderate difficulties in concentration, persistence, and pace. (Id. at 329.)
In rendering her RFC determination, the ALJ noted Boyd’s own reports that
he could care for his personal needs, prepare food, clean laundry, shop,
use public transportation, socialize, play cards, watch movies, follow
spoken instructions, finish what he starts, and get along with people in
positions of authority. (Id. at 335.) The ALJ also considered the fact that
Boyd’s treating social worker suggested he partake in Vocational and
Educational Services for Individuals with Disabilities, indicating her opinion
that Boyd could work. (Id.) Further, the ALJ considered the fact that Boyd
stopped attending counseling in January 2011 because things were going
well and did not return to counseling until December 2011, which was his
last counseling session of record. (Id. at 336.) The ALJ also relied on the
opinion of medical consultant E. Kamin, who reviewed Boyd’s treatment
records and consultative examination report in March 2012, and opined
that, despite his moderate limitations in certain areas of functioning, Boyd
remained capable of performing a job with simple tasks. (Id.)
16

Based on the foregoing, the ALJ concluded that Boyd can, on a
sustained basis, understand, carry out, and remember simple instructions,
frequently respond appropriately to supervision, coworkers, and usual work
situations, and frequently deal with changes in a routine work setting. (Id.
at 330.) At step five, the ALJ relied on the testimony of a vocational expert
(VE), as well as Social Security Ruling 85-15, to determine that Boyd’s
mental functional limitations would not prevent him from performing a
successful adjustment to other work in the national economy. (Id. at 33738); see 1985 WL 56857, at *4 (Jan. 1, 1985) (explaining that unskilled
jobs “ordinarily involve dealing primarily with objects, rather than with data
or people”).
Boyd argues that the ALJ’s failure to include moderate limitations in
certain areas of mental functioning as a part of the RFC determination is
inconsistent with the opinion of Dr. Kamin, and, therefore, unsupported by
substantial evidence. (Dkt. No. 12 at 18-19, 21-22.) Dr. Kamin completed
a check-the-box mental RFC assessment form and reported that Boyd was
“not significantly limited” in his ability to remember locations and work-like
procedures, understand, remember, and carry out short and simple
instructions, perform activities within a schedule and maintain regular
17

attendance, make simple work-related decisions, ask simple questions or
request assistance, maintain socially appropriate behavior, be aware of
normal hazards, and travel in unfamiliar places or use public transportation.
(Tr. at 680-81.) Dr. Kamin further noted that Boyd was “moderately limited”
in his ability to maintain attention and concentration for extended periods,
sustain an ordinary routine, work in coordination with others without being
distracted, perform at a consistent pace, interact appropriately with the
general public, accept instructions and criticism from supervisors, get along
with coworkers, respond appropriately to changes in the work setting, and
set realistic goals or make plans independently of others. (Id.) In the
narrative part of his assessment, Dr. Kamin noted Boyd’s treatment history
and consultative examination, and explained that Boyd has “moderate
limitations and could perform a job in which he would have simple tasks.”
(Id. at 682.)
The ALJ placed “great weight” on this opinion, and included
limitations in her RFC determination accordingly. (Id. at 330, 336.)
Although the ALJ did not use the term “moderate” to describe Boyd’s
mental functional limitations, she did in fact include limitations pertaining to

18

the areas of unskilled work10 that Dr. Kamin’s opinion indicated would be
limited by Boyd’s mental impairment. (Id. at 330, 680-81.) Based on the
opinion of Dr. Kamin, who is deemed to be a qualified expert in the field of
social security disability evaluation, see Baszto v. Astrue, 700 F. Supp. 2d
242, 249 (N.D.N.Y. 2010), as well as Boyd’s daily activities and treatment
history, it was reasonable for the ALJ to conclude that, although Boyd was
somewhat limited in his ability to respond to supervision, co-workers, and
usual work situations, as well as deal with changes in a routine work
setting, he was still capable of performing a wide range of unskilled work.
See, e.g., McIntyre v. Colvin, No. 3:12-CV-0318, 2013 WL 2237828, at *4
(N.D.N.Y. May 21, 2013) (“When medical evidence demonstrates that a
claimant can engage in simple, routine tasks or unskilled work despite
limitations in concentration, persistence, and pace, courts have concluded
that limiting the hypothetical [posed to the VE] to include only unskilled
work sufficiently accounts for such limitations.” (internal quotation marks
and citation omitted)). Further, Boyd’s argument that Dr. Kamin’s opinion

10

Social Security Ruling 96-9p provides that the mental activities generally required by
competitive, remunerative, unskilled work are: understanding, remembering, and carrying out
simple instructions; making simple work-related decisions, responding appropriately to
supervision co-workers and usual work situations, and dealing with changes in a routine work
setting. See 61 Fed. Reg. 34,478, 34,483 (July 2, 1996).

19

was too vague for the ALJ to rely on in rendering her RFC decision, (Dkt.
No. 12 at 21), is unconvincing. See Curry v. Apfel, 209 F.3d 117, 123 (2d
Cir. 2000), superceded by statute on other grounds, 20 C.F.R.
§ 404.1560(c)(2) (explaining that, while the opinions of treating or
consulting physicians need not be reduced to any particular formula, an
ALJ may not rely on such opinions if they are so vague as to render them
useless). Unlike Curry, the medical opinion relied on here adequately
supports the ALJ’s conclusion that Boyd can perform the nonexertional
requirements of unskilled work. See id.
Boyd also argues that the ALJ erred in affording greater weight to the
opinion of Dr. Kamin than the opinion of consultative examiner Ryan. (Dkt.
No. 12 at 19-20.) Dr. Ryan diagnosed Boyd with schizoaffective disorder
and opined that he had moderate limitations in his ability to maintain
attention and concentration, learn new tasks, make appropriate decisions
at times, relate adequately with others, and deal with stress. (Tr. at 65760.) The ALJ gave this opinion “some weight” because it was based on
only one examination and not entirely supported by the medical evidence
of record. (Id. at 336.) As the Commissioner points out, (Dkt. No. 13 at
14-15), opinions of nonexamining sources can be given great weight, even
20

overriding the opinions of treating sources, provided that they are
supported by evidence in the record. See Diaz v. Shalala, 59 F.3d 307,
313 n.5 (2d Cir. 1995); Florez v. Apfel, No. CV 97-3052, 1998 WL 760334,
at *6-7 (E.D.N.Y. Aug. 31, 1998).
A review of the record here supports the ALJ’s conclusion that the
longitudinal medical evidence is not wholly consistent with the results of Dr.
Ryan’s examination. For instance, nurse practitioner Pane’s treatment
notes often included a psychiatric assessment, all of which were benign.
(Tr. at 612, 615, 617, 621, 623, 626, 628, 631, 636, 686, 691, 694, 696,
700.) While many of these notes merely indicate that Boyd did not suffer
from any “unusual anxiety or evidence of depression,” (id. at 612), at times
Pane’s notes include detailed findings, such as noting that Boyd was fully
alert, with a normal affect, judgment, insight, attention span and
concentration. (Id. at 628, 631, 636, 686.) On examination by Dr. Ryan,
however, Boyd’s manner of relating was poor, motor behavior was restless,
attention and concentration and memory were impaired, insight and
judgment were poor, cognitive functioning was below average, and he
exhibited mild stammering. (Id. at 658-59.) On the other hand, a
December 2011 treatment note from Boyd’s treating social worker indicates
21

that he stopped mental health treatment in January 2011 because “things
were going well,” he was not as angry, and had developed coping skills.
(Id. at 650-52.) It was also noted that Boyd stopped getting his prescription
medication in February 2011. (Id. at 651.) A mental status examination at
that time revealed that Boyd’s behavior and speech were unremarkable,
memory intact, intellect average, and attention gained. (Id.) His affect was
flat, however, and his mood was anxious and irritable. (Id.) These results
are inconsistent with the findings of Dr. Ryan’s consultative exam, although
they offer some support for Boyd’s complaints of mental limitations.
In sum, it was reasonable, given the medical and other evidence
before her, for the ALJ to conclude that, while Boyd suffered from some
mental limitations, they were not so severe as to be disabling.
B.

Step Five Determination
Finally, Boyd claims that the ALJ erred in determining that jobs exist

in significant numbers in the national economy that he is capable of
performing. (Dkt. No. 12 at 22-24.) Specifically, he alleges that the ALJ’s
errors in assessing his RFC, along with a failure to include in the
hypothetical posed to the VE the handling and fingering limitations
articulated by Pane, as well as the moderate limitations in attention and
22

concentration and social interaction articulated by Kamin, fatally undermine
the step-five determination. (Id.) As discussed above, however, the ALJ’s
RFC findings were legally sound and are supported by substantial
evidence. See supra Part VI.A. Although the hypothetical question did not
include a recitation of Pane’s or Dr. Kamin’s proffered limitations, it
appropriately encompassed the restrictions contained in the ALJ’s RFC
analysis. (Compare Tr. at 330, with id. at 848.) As such, the ALJ’s stepfive determination was free of legal error and is supported by substantial
evidence. See Mancuso v. Astrue, 361 F. App’x 176, 179 (2d Cir. 2010)
(explaining that, if the ALJ’s RFC assessment is supported by substantial
evidence, it is appropriate for him to rely on that RFC assessment in
questioning the VE).
C.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Boyd’s complaint (Dkt. No. 1) is DISMISSED; and it is further
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ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
March 3, 2016
Albany, New York

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