Crouse v. Colvin

Filing 14

MEMORANDUM-DECISION & ORDER that pltf Brenda Crouse's motion for a finding of disability (Dkt. No. 1) is DENIED and the Commissioner's decision finding no disability is AFFIRMED; and that deft's cross-motion for judgment on the pleadings (Dkt. No. 11) is GRANTED. Signed by Magistrate Judge Christian F. Hummel on 3/10/2017. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

BRENDA CROUSE,
Plaintiff,
v.

No. 16-CV-222

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE

APPEARANCES:

OF COUNSEL:

Lachman, Gorton Law Firm
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089

PETER A. GORTON, ESQ.

Social Security Administration,
Office of General Counsel
Attorneys for Defendant
26 Federal Plaza - Room 3904
New York, New York 10278

ANDREEA L. LECHLEITNER, ESQ.
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
Plaintiff Brenda Dee Crouse (“Plaintiff”) brings this action pursuant to 42 U.S.C. §
405(g) seeking review of a decision by the Commissioner of Social Security
(“Commissioner”) denying her application for benefits under the Social Security Act (“Act”).
Plaintiff moves for a finding of disability, or, in the alternative, for the matter to be remanded
for further proceedings, and the Commissioner cross-moves for a judgment on the
pleadings. Dkt. Nos. 10, 11.

I. Background
On February 1, 2013, plaintiff protectively filed an application for disability insurance
benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq., claiming an alleged
onset date of July 31, 2010. T.1 139-45. The application was denied on April 3, 2013. Id.
at 67-73. Plaintiff requested a hearing before an administrative law judge (“ALJ”), which
was held before ALJ Marie Greener on August 7, 2014. Id. at 82-84, 38-66 (transcript of
the hearing). In a decision dated November 26, 2014, the ALJ held that plaintif f was not
entitled to disability benefits. Id. at 20-33. Plaintiff filed a timely request for review with the
Appeals Council, and on February 2, 2016, the request was denied, thus making the ALJ’s
findings the final decision of the Commissioner. Id. at 1-7. This action followed.

II. Discussion
A. Standard 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 supports the
decision. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial ev idence is
“‘more than a mere scintilla,’” meaning that in the record one can find “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal quotation marks omitted)).

1

“T.” followed by a number refers to the pages of the administrative transcript filed by the
Commissioner. Dkt. No. 9.

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“In addition, an ALJ must set forth the crucial factors justifying his findings with
sufficient specificity to allow a court to determine whether substantial evidence supports the
decision.” Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute
its interpretation of the administrative record for that of the Commissioner if the record
contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998). If the Commissioner’s finding is supported by substantial evidence, it is
conclusive. 42 U.S.C. § 405(g); see Halloran, 362 F.3d at 31.

B. Determination of Disability
“Every individual who is under a disability. . . shall be entitled to a disability. . . benefit
. . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of not
less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable impairment is an
affliction that is so severe that it renders an individual unable to continue with his or her
previous work or any other employment that may be available to him or her based upon
age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be
supported by “medically acceptable clinical and laboratory diagnostic techniques.” Id. §
423(d)(3). Additionally, the severity of the impairment is “based [upon] objective medical
facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain
or disability, and educational background, age, and work experience.” Ventura v. Barnhart,
No. 04 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v.
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Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)) (additional citation om itted).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520, to
determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he [or she] is
not, the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his [or her] physical
or mental ability to do basic work activities. If the claimant suffers
such an impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him [or her] disabled
without considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a claimant
who is afflicted with a “listed” impairment is unable to perform
substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the
claimant's severe impairment, he [or she] has the residual
functional capacity to perform his [or her] past work. Finally, if the
claimant is unable to perform his [or her] past work, the
[Commissioner] then determines whether there is other work which
the claimant could perform.
Berry, 675 F.2d at 467. The plaintiff bears the initial burden of proof to establish each of the
first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 19 98) (citing Berry,
675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the
Commissioner to prove that the plaintiff is still able to engage in gainful employment
somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

C. ALJ Greener’s Findings
Plaintiff, represented by counsel, testified at the hearing held on August 7, 2014. T.
38-66. Using the five-step sequential evaluation, ALJ Greener found that plaintiff (1) had
not engaged in substantial gainful activity since July 31, 2010, the alleged onset date,
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through December 31, 2010, the date last insured; (2) had the f ollowing severe medicallydeterminable impairments: asthma, allergies, and mild degenerative disc disease of the
lumbar spine; (3) did not have an impairment, alone or in combination, sufficient to meet the
listed impairments in Appendix 1, Subpart P of Social Security Regulation Part 404; (4)
maintained “the residual functional capacity to lift/carry 20 pounds occasionally and 10
pounds frequently, stand for 6 hours out of an 8 hour workday, walk for 6 hours out of an 8
hour workday, and sit for 6 hours out of an 8 hour workday in an indoor, climate-controlled
work environment”; and, thus; (5) given her age, education, work experience, and RFC, was
capable of engaging in employment which exists in significant numbers in the national
economy through the date last insured. Id. at 23-29.

D. Plaintiff’s Contentions
Plaintiff contends that the ALJ (1) failed to assess plaintiff’s myofascial pain, mixed
connective tissue disease, fatigue, fibromyalgia, cognitive dysfunction, chronic sinus pain,
chronic vulvodynia, fibromyalgia, arthritis, and autoimmune disorder as severe impairments;
(2) erred in assessing plaintiff’s RFC on the basis of bare medical findings, and rejecting all
of the medical opinions on the record; and (3) failed to properly assess plaintiff’s pain in
determining the RFC. See Dkt. No. 10.

E. Analysis of Plaintiff’s Arguments
1. The ALJ Properly Applied the Treating Physician Rule
Plaintiff alleges that the ALJ’s RFC determination was not supported by substantial

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evidence, in part because the ALJ rejected all f our medical opinions of record, assigning
them “little weight.” Dkt. No. 10 at 16. Plaintiff asserts that the ALJ’s “bare medical
findings” do not support the RFC determination. Id. Defendant counters that the ALJ
provided “good reasons” for not assigning controlling weight to the treating source opinions.
Dkt. No. 11 at 8.
When evaluating a claim seeking disability benefits, factors to be considered include
objective medical facts, clinical findings, the treating physician’s diagnoses, subjective
evidence of disability, and pain related by the claimant. Harris v. R.R. Ret. Bd., 948 F.2d
123, 126 (2d Cir. 1991). Generally, more weight is given to a treating source. Under the
regulations, a treating physician’s opinion is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2) (2005);
Shaw, 221 F.3d at 134. Before a treating physician’s opinion can be discounted, the ALJ
must provide “good reasons.” Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998).
The ALJ is required to assess the following factors in determining how much weight
to accord the physician’s opinion: “(i) the frequency of examination and the length, nature,
and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the
opinion's consistency with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other relevant factors.” Schaal, 134 F.3d at 503. If other evidence in the
record conflicts with the opinion of the treating physician, this opinion will not be deemed
controlling or conclusive, and the less consistent the opinion is, the less weight it will be
given. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). Ultimately, the final determination
of disability and a claimant’s inability to work rests with the Commissioner. Id. at 133-34;
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see 20 C.F.R. § 404.1527(e).

a. Application of the Treating Physician Rule
The ALJ afforded “little weight to the treating source opinions” because “[t]hese
opinions indicate that the claimant can perform less than the full range of sedentary work . .
. .” T. 28. The ALJ acknowledged that the opinions were completed by treating sources,
but found that the opinions were “not supported by clinical findings during the time period
being adjudicated.” Id.
As acknowledged by the ALJ, the relevant period for determining whether plaintiff
was under a disability is July 31, 2010, her alleged onset date, through December 31, 2010,
her date last insured. T. 25. The treating source statements provided by plaintiff include:
(1) a treating source statement and accompanying medical records from Dr. Steven Bock,
MD, dated July 23, 2014 and July 21, 2014, respectively; (2) a treating source questionnaire
completed jointly signed by Kelly Miller, FNP, and Dr. Henda Bouali, MD, dated August 26,
2014; and (3) a treating source questionnaire completed by Dr. Frank C. Noonan, dated
September 11, 2014. Id. at 398-408, 438-42. T he ALJ also considered DDS medical
consultant R. Nobel, PhD’s opinion, which was signed on April 3, 2013, and assigned the
opinion little weight because Nobel never examined plaintiff.2 Id. at 28.
Dr. Bock’s letter states that plaintiff has suffered from lyme disease “since at least
2011 if not before.” T. 398. She has also suffered from severe myofascial pain, mixed
connective tissue disease, fatigue, and cognitive dysfunction since 1995. Id. In addition,

2

Plaintiff’s brief does not specifically object to this determination by the ALJ. See Dkt. No. 10.

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Dr. Bock noted that plaintiff has allergies, chronic sinus pain, severe pelvic pain from
chronic vulvodynia, and is “reactive” to chemicals and mold. Id. In addition, “CI spams and
fibromyalgia” began in 1995, and she cannot sit on one position or driv e for too long
because of these ailments. Id. The cognitive dysfunction that she suffers due to lyme and
tick bourne disease would make it difficult for her to stay on task during an eight-hour
workday, and would result in increased absences from work. Id.
Dr. Bock also completed a questionnaire, dated July 26, 2014, in which he opined
that plaintiff’s conditions would cause her both pain and fatigue, and that the conditions and
side effects of any medications used to treat those conditions would diminish her
concentration and work pace. T. 407. Dr. Bock opined that plaintiff would be off task more
than 33% of the day, and would miss more than four days of work per month. Id.
Miller and Dr. Bouali’s questionnaire, dated August 26, 2014, states that plaintiff’s
“conditions” would cause fatigue, but would not cause pain. T. 439. However, the
questionnaire does not identify which conditions it is referring to. The pain from plaintiff’s
conditions would cause the diminishment of work pace, but would not diminish her
concentration. Id. The conditions would make it necessary for plaintiff to rest. Id. She
would be off task 10% or less during the work day. Id. She would miss work about three
times per month. Id. at 440. Dr. Bouali opined that the lim itations set forth in the
questionnaire were present since her first examination of plaintiff on October 27, 2011. Id.
Dr. Bouali gave no opinion as to whether the conditions would have exisited at least one
year prior to her first examination of plaintiff. Id.
Dr. Noonan completed a questionnaire, dated September 11, 2014, without
identifying the conditions for which he treats plained. T. 441. However, he opined that
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plaintiff’s conditions would cause her both pain and fatigue, and that the conditions and side
effects of any medications used to treat those conditions would diminish her concentration
and work pace. Id. She would be off task more than 33% of the day and would be absent
from work more than four days per month. Id. at 441-42. Dr. Noonan stated that plaintif f
suffers the side effects of fatigue and possible low white blood cells as a result of her
Malarone medication, and possible irregular heart rhythm from her Zithromax medication.
Id. at 442. Dr. Noonan opined that plaintif f can sit for approximately one hour during an
eight-hour workday, and that she should change positions every 15-20 minutes. Id. Plaintiff
can stand or walk for approximately one hour during an eight-hour workday. Id. She can lift
up to ten pounds up to three hours per day. but should not lift more than ten pounds at all.
Id.
Plaintiff takes issue with the ALJ’s decision to afford only little weight to the opinions
of Dr. Bouali, Dr. Bock, and Dr. Noonan. Dkt. No. 10 at 16-22. Def endant argues that the
ALJ’s decision to afford little weight to the opinions of record is supported by substantial
evidence. Dkt. No. 11 at 7-13. The Court agrees with defendant.
First and foremost, it is important to note that the period of disability alleged by
plaintiff encompasses only five months—from July 31, 2010, through December 31, 2010.
T. 25. The record contains no treatment notes during this alleged period of disability,
leaving the ALJ the job of determining disability using only treatment records and opinions
that both predate and postdate the alleg ed period of disability.
Plaintiff argues that the ALJ erred in not adopting the limitations set forth in Dr. Bock,
Dr. Bouali’s and Dr. Noonan’s opinions. Dkt. No. 10 at 16-22. However, the ALJ found that
the doctors’ opinions were “not supported by clinical findings during the time period being
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adjudicated.” T. 28. The ALJ correctly found that the doctors’ limitations were not
supported by an musculoskeletal clinical findings or concentration deficits from the JulyDecember 2010 period. Id. Indeed, plaintiff submitted no medical records evidencing that
she received any medical treatment of any kind from July-December 2010. Plaintiff’s
“failure to present any medical evidence from that period seriously undermines [her]
contention that [she] was continuously disabled during that time.” Arnone v. Bowen, 882
F.2d 34, 39 (2d Cir. 1989). Additionally, the ALJ found that plaintiff’s lack of documented
medical evidence for the July-December 2010 period undermined her own reported physical
symptoms. T. 27.
The medical evidence in the does not support the medical opinions of record. For
example, on June 29, 2012, plaintiff presented at UHS in Binghamton, New York, for a
medical check-up on a “whim” to get prescription refills. T. 213. The doctor who examined
her noted that she was “anxious” but otherwise, her physical examination was normal and
unremarkable. Id. at 214-15. Although plaintiff complained of aches and pains, her range
of motion was good and she had no swelling or heat in any joints. Id. at 215. The doctor
noted that plaintiff was “provider hopping” and that such behavior was not conducive to
good medical care. Id. at 216. On November 26, 2012, plaintiff returned to UHS
complaining of sinus issues. Id. at 218. She described her pain level as a five out of ten.
Id. at 219. A physical exam of her sinuses was largely unremarkable, although the doctor
did observe that her TSH (thyroid-stimulating hormone) was slightly suppressed. Id. at 220.
The doctor also noted that plaintiff suffered from “many other mysterious difficulties,”
indicating that plaintiff’s ailments were not supported by clinical findings. Id. Plaintiff was
seen at UHS again on December 18, 2012, complaining of low back and beck pain. T. 222.
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She described her pain as a five out of ten. Id. Soft tissue techniques and passive
stretching appeared to alleviate her symptoms. Id. at 225. She complained of
musculoskeletal pain again on May 6, 2014. Id. at 319.
In terms of plaintiff’s suffering vulvodynia, the record shows that she underwent
surgical procedures in both 2008, and on April 29, 2009—alm ost two years prior to the
alleged onset date—to treat vaginal stenosis and dyspareunia. T. 445, 413. She did not
seek medical treatment for vulvodynia again until 2014, when she was seen by Dr. Andrew
Goldstein, complaining of vaginal pain. Id. at 421. Dr. Goldstein recommended diazepam
rectal suppositories, Botox injections, and a vaginal dilator. Id. at 422.
The ALJ did credit the extensive medical records involving plaintiff’s treatment for
asthma in restricting plaintiff’s RFC to an indoor, climate-controlled environment. T. 27.
Indeed, plaintiff’s records indicate that she regularly received treatment for asthma before
the alleged onset date, and continued treatment after the date last insured. See T. 238,
242, 248, 253, 258, 262. Based on these treatm ent records indicating that plaintiff’s
condition was exacerbated by environmental allergens, the ALJ restricted her RFC to an
indoor, climate-controlled environment. T. 27, 262.
Plaintiff’s argument that the ALJ failed to consider the opinions of her treating
physician is weakened by the fact that none of the physicians who submitted a medical
opinion treated plaintiff during, or even near in time to, the relevant period. Although Dr.
Bock submitted an opinion stating that plaintiff suffered from lyme disease, chronic
vulvodynia, and fibromyalgia, there is nothing in the record to indicate that he was
personally involved in diagnosing or treating plaintiff for these conditions prior to 2014. See
T. 398. This indicates that Dr. Bock was simply reciting plaintiff’s medical history, as told by
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plaintiff. See Burden v. Astrue, 588 F. Supp. 2d 269, 276 (D. Conn. 2008) (f inding that
plaintiff’s self-reported symptoms did not constitute a medical opinion when transcribed by a
doctor). Further, because the medical opinions of record were rendered by physicians who
did not treat plaintiff until approximately two years after her date last insured, there is no
evidence that her fibromyalgia (diagnosed in 1995) and vulvodynia (diagnosed in 1997)
worsened during the relevant period. See T. 398. Plaintiff had surgery to treat her
vulvodynia in 2008 and 2009, but produces no records betw een 2009 and her visit to Dr.
Goldstein in 2014. Thus, it was reasonable for the ALJ to afford little weight to the medical
opinions of record. See Snell v. Apfel, 177 F.3d 128, 136 (2d Cir. 1999) (noting that the
plaintiff must show that her condition deteriorated before the end of her coverage period in
order for the condition to be disabling).
In sum, the ALJ’s RFC determination is supported by substantial evidence. “[U]nder
certain circumstances, particularly where the medical evidence shows relatively minor
physical impairment, ‘an ALJ permissibly can render a common sense judgment about
functional capacity even without a physician's assessment.” Gross v. Astrue, No. 12-CV6207P, 2014 WL 1806779, at *18 (W.D.N.Y. May 7, 2014) (quoting House v. Astrue, No.
5:11-CV-915 (GLS), 2013 WL 422058, at *4 (N.D.N.Y. Feb. 1, 2013)). Those
circumstances are present here. Although plaintiff claims that the ALJ erred in failing to
consider exertional limitations caused by her musculoskeletal pain and vulvodynia, among
other ailments, the scarcity of treatment records regarding those conditions, especially
during the crucial July-December 2010 period, renders this argument meritless. Perez v.
Sec’y of Health and Human Servs., 958 F.2d 445, 447 (1st Cir. 1991) (“Although claimant
also mentioned other conditions that might pose exertional limitations—a back condition
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and cervical spasms—there was a paucity of medical evidence in the record concerning
these conditions.”). Ultimately, it is plaintiff’s burden to prove that she was disabled before
the date last insured. Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998). Thus, the Court
finds that substantial evidence supports the ALJ’s RFC determination.

2. The ALJ Properly Assessed Plaintiff’s Pain
Plaintiff argues that the ALJ failed to assess the severity of her symptoms by looking
only to objective evidence. Dkt. No. 10 at 22-24. Defendant argues that the ALJ properly
assessed plaintiff’s pain and determined that her reported symptoms were not as severe as
she stated. Dkt. No. 11 at 13-14.
“It is the function of the [Commissioner], not [the Court], to resolve evidentiary
conflicts and to appraise the credibility of witnesses, including the claimant. Carroll v. Sec’y
of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citing Richardson v.
Perales, 402 U.S. 389, 399 (1971)) (additional citations om itted). The ALJ’s assessment
regarding the claimant’s subjective complaints is a two-step inquiry. Genier v. Astrue, 606
F.3d 46, 49 (2d Cir. 2010). First, the ALJ must determine “whether the claimant suffers
from a medically determinable impairment that could reasonably be expected to produce
the symptoms alleged.” Id. (citing 20 C.F.R. § 404.1529(b)). If the ALJ determines that the
claimant does not suffer from such a medically-determinable impairment, “the ALJ must
consider ‘the extent to which [the claimant’s] symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence’ of record.” Id. (quoting
20 C.F.R. § 404.1529(b)). However, an ALJ cannot reject a claimant’s statements about

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the limiting effect of symptoms “solely because the available objective medical evidence
does not substantiate [those] statements.” 20 C.F.R. § 404.1529(c)(2). The evidence to be
considered by the ALJ includes “information about [the claimant’s] prior work record, [the
claimant’s] statements about [his or her] symptoms, evidence submitted by [the claimant’s]
treating or nontreating source, and observations by [Social Security Administration]
employees and other persons.” Id. § 404.1529(c)(3).
If a medically-determinable impairment is shown, the ALJ must evaluate the
intensity, persistence, and limiting effects of the individual’s symptoms to determine the
extent to which the symptoms limit the individual’s ability to do basic work activities. Social
Security Ruling (“SSR”) 96-7p, 1996 WL 374186, at *2 (S.S.A. July 2, 1996). The ALJ must
consider several factors pursuant to 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3):
(i) [The claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of [the
claimant’s] pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) the type, dosage, effectiveness, and side effects of any
medication [the claimant] take[s] or ha[s] taken to alleviate . . .
pain or other symptoms;
(v) Treatment, other than medication, [the claimant] receive[s] or
ha[s] received for relief of . . . pain or other symptoms;
(vi) Any measures [the claimant] use[s] or ha[s] used to relieve
. . . pain or other symptoms (e.g., lying flat on [his] back,
standing for 15 to 20 minutes every hour, sleeping on a board,
etc.); and,
(vii) Other factors concerning [the claimant’s functional
limitations and restrictions due to pain or other symptoms.
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
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In determining what amount of credibility, if any, to afford a claimant’s subjective
complaints, the ALJ must consider all of the objective medical and additional evidence with
the claimant’s subjective complaints to determine whether there are any inconsistencies or
conflicts. 20 C.F.R. § 404.1529(c)(4). If a claimant’s subjective complaints are consistent
with the objective medical evidence, the ALJ will include the claimant’s complaints in his or
her assessment of the claimant’s RFC. Id. “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 [the Court] 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(JSR), 1999 W L 185253, at *5 (S.D.N.Y. Mar. 25, 1999))
(citations omitted).
An ALJ is not required to address all seven factors enumerated in 20 C.F.R. §
404.1529(c)(3) and 20 C.F.R. § 416.929(c)(3) as long as the ALJ engages in “precise
reasoning,” the decision is supported by evidence in the record, and the decision “clearly
indicates the weight . . . [given] to [the] claimant’s statements and the reasons for that
weight.” Felix v. Astrue, No. 11-CV-3697 (KAM), 2012 W L 3043203, at *8 (E.D.N.Y. July
24, 2012). Where the ALJ fails to state specific reasons for his or her credibility finding, and
there is no evidence in the record supporting those reasons, the Court must remand. See
Powell v. Astrue, No. 3:09-CV-01082 (FJS/GHL), 2010 W L 4004935, at *5 (N.D.N.Y. Aug.
13, 2010). However, “if the evidence in the record permits a reviewing authority to ‘glean
the rationale of an ALJ’s decision,’ the ALJ is not required to mention every item of
testimony or to explain why he considered particular evidence unpersuasive or insufficient
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to lead him to a conclusion of disability.” Felix, 2012 WL 3043203, at *9 (quoting Mongeur
v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).
Here, the ALJ determined that plaintiff’s subjective complaints of pain were not as
severe as she stated. T. 27. The ALJ’s determination is supported by substantial evidence.
First, the ALJ noted that plaintiff’s report of breathing difficulties was not consistent
with her pulmonary function tests, which showed mild respiratory obstruction. T. 27; see id.
at 281 (noting “mild, reversible airway obstruction”). Further, although plaintiff testified that
she suffers from extreme fatigue, sinus, pressure, and pelvic floor pain, she also testified
that she takes her golden retriever to “the trails” and takes the dog for walks. Id. at 58. She
also testified that she cooks. Id. at 56. Although allergy testing revealed that plaintiff is
allergic to dogs, she continued to keep dogs and cats in her home. See T. 208, 58. This
undermines her testimony as to the severity of her symptoms. See SSR 16-3P, 2016 W L
1119029, at *8 (S.S.A. Mar. 16, 2016) (noting that the plaintiff’s alleged symptoms may be
found inconsistent with the record “if the individual fails to follow prescribed treatment that
might improve symptoms”).
She testified that in 2010 her vulvodynia pain and muscle pain was so severe that
she could not sit for an extended period of time. T. 61. She testified that she still
experienced severe pain when sitting at the time of the hearing in 2014. Id. However, only
four months prior to the hearing, she told her allergy doctor that she had recently traveled to
California. Id. at 284. The long journey from New York to California most certainly involved
extensive periods of sitting, and this fact casts doubt on her claim that she cannot sit for
extensive periods of time, and supports the ALJ’s finding that she can sit for six hours
during an eight-hour workday. Id. at 27. As stated previously, plaintiff’s reported daily
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activities were also inconsistent with her claims that she suffers from vulvodynia and muscle
pain and fatigue. She reported that she takes her dog to hiking trails, and takes the dog on
walks. Id. at 58. Further, despite plaintiff’s testimony that she suffered severe pain and
fatigue in 2010, she did not submit any medical records from the period in question—JulyDecember 2010. Her failure to seek medical care for her physical ailments during the
relevant time period undermines her claim. Cataneo v. Astrue, No. 11-CV-2671 (KAM),
2013 WL 1122626, at *20 (E.D.N.Y. Mar. 17, 2013) (“It is a natural inference that someone
with an extremely painful physical impairment would not abstain from clinical treatment.”).
Although plaintiff points to portions of the record that show that plaintiff had
difficulties in some activities of daily living, her argument ignores the precedent that the ALJ
is ultimately responsible for weighing the evidence. See Dkt. No. 10 at 23. W here, as here,
the ALJ’s determination is supported by substantial evidence, the Court will not disturb the
ALJ’s findings. Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) (“W here the
Commissioner's decision rests on adequate findings supported by evidence having rational
probative force, we will not substitute our judgment for that of the Commissioner.”). Thus,
the Court finds that the ALJ properly evaluated plaintiff’s subjective complaints of pain.

3. The ALJ Properly Assessed All Severe Impairments
Plaintiff argues that the ALJ failed to assess all severe impairments. Specifically,
plaintiff argues that the ALJ erroneously found that plaintiff’s myofascial pain, mixed
connective tissue disease, fatigue, cognitive dysfunction, chronic sinus pain, chonric
vulvodynia, fibromyalgia, arthritis, and autoimmune disorder were not severe. Dkt. No. 10 at
10. Defendant argues that plaintiff failed to establish that the previously identified ailments
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were severe during the relevant period. Dkt. No. 11 at 17. Additionally, defendant asserts
that where, as here, the ALJ found severe impairments at step two and continued the steps
in the sequential evaluation, any error at step two is harmless. Id. at 20. The Court agrees.
Here, the ALJ assessed plaintiff’s severe impairments at step two and determined
that plaintiff suffered from asthma, allergies, and mild degenerative disc disease of the
lumbar spine. T. 25. Even though the ALJ did not assess all of plaintiff’s ailments as
severe impairments, the ALJ clearly considered all of plaintiff’s complained-of symptoms in
formulating the RFC. Id. at 27; see Stanton v. Astrue, 370 F. App’x 231, 233 n.1 (2d Cir.
2010) (finding no error where the ALJ’s decision made clear that the ALJ considered the
effects of all symptoms in formulating the plaintiff’s RFC). Specifically, plaintiff argues that
the ALJ should have assessed plaintiff’s fibromyalgia as severe. Dkt. No. 10 at 12.
However, the symptoms that plaintiff describes are also symptoms that the ALJ discussed
when formulating plaintiff’s RFC. The ALJ discussed plaintiff’s reports of pain, chronic
fatigue, and cognitive difficulties and found that plaintiff’s medical records did not support a
finding that the symptoms were as severe as plaintiff stated. T. 27-28.
For these reasons, the Court finds that the ALJ did not err in determining plaintiff’s
severe impairments.

III. Conclusion
Having reviewed the administrative transcript and the ALJ’s findings, for the reasons
stated herein, the undersigned concludes that the Commissioner’s determination is
supported by substantial evidence. Accordingly it is hereby:

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ORDERED that plaintiff Brenda Crouse’s motion for a finding of disability (Dkt. No. 1)
is DENIED and the Commissioner’s decision finding no disability is AFFIRMED; and
it is further; and it is further
ORDERED that defendant’s cross-motion for judgment on the pleadings (Dkt. No.
11) is GRANTED; and it is further
ORDERED that the Clerk of the Court serve a copy of this Memorandum-Decision
and Order upon the parties in accordance with Local Rules.

Dated:

March 10, 2017
Albany, New York

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