Besser v. Colvin
MEMORANDUM-DECISION & ORDER: It is Ordered that the Commissioner's decision denying disability benefits is AFFIRMED, therefore the # 1 Complaint - Social Security Appeal filed by Frank Besser, Sr. is hereby DISMISSED. Signed by Magistrate Judge Daniel J. Stewart on 6/30/2017. (mb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FRANK BESSER, SR.,
Civ. No. 3:16-CV-850
NANCY A. BERRYHILL, Acting Commissioner of Social Security,2
OLINSKY LAW GROUP
Attorney for Plaintiff
300 S. State Street
Syracuse, New York 13202
HOWARD D. OLINSKY, ESQ.
SOCIAL SECURITY ADMINISTRATION
Attorney for Defendant
Office of Regional General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
LAUREN E. MYERS, ESQ.
DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM-DECISION and ORDER
In this action, Plaintiff Frank Besser, Sr., moves, pursuant to 42 U.S.C. § 405(g), for review
of a decision by the Acting Commissioner of Social Security denying his application for Disability
Upon the Plaintiff’s consent, the United States’s general consent, and in accordance with this District’s
General Order 18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. §
636(c) and Federal Rule of Civil Procedure 73. See Dkt. No. 6 & General Order 18.
Nancy A. Berryhill became Acting Commissioner of Social Security on January 23, 2017. Pursuant to Federal
Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as the Defendant in this suit.
Insurance Benefits (“DIB”) and Period of Disability (“POD”).3 Based upon the following
discussion, the Acting Commissioner’s decision denying Social Security benefits is affirmed.
Besser, born on April 23, 1958, filed an application for DIB and POD on June 14, 2013,
claiming an inability to work as of February 9, 2013, due to a variety of ailments, including chronic
obstructive pulmonary disease (“COPD”), obstructive sleep apnea, knee arthritis, pinched nerve in
the neck, and herniated disc. Dkt. No. 8, Admin. Tr. [hereinafter “Tr.”] at pp. 13, 52-53, 61, 63,
125-28, 138, & 141. Besser completed ninth grade and has past relevant work as a security guard.
Id. at pp. 142 & 143.
Besser’s disability application was denied on initial review. Id. at pp. 61 & 64-75. On
August 21, 2014, a Hearing was held before Administrative Law Judge (“ALJ”) Carl E. Stephan;
Besser, who was accompanied by an attorney, was the only witness to testify during the Hearing.
Id. at pp. 26-51. On August 30, 2014, ALJ Stephan sent a vocational interrogatory to Peter Manzi,
a Vocational Expert (“VE”). Id. at pp. 190-95. VE Manzi responded to the interrogatory on
September 15, 2014. Id. at pp. 196-99. Plaintiff’s representative also sent a vocational interrogatory
to the VE, id. at pp. 203-05, and VE Manzi responded to that interrogatory on October 29, 2014, id.
at pp. 212-14.
On February 6, 2015, ALJ Stephan issued an unfavorable decision finding that Besser was
not disabled. Id. at pp. 10-25. On May 13, 2016, the Appeals Council concluded there was no basis
to review the ALJ’s decision, thus rendering the ALJ’s decision the final determination of the Acting
This case has proceeded in accordance with General Order 18, which sets forth the procedures to be followed
when appealing a denial of Social Security benefits. Both parties have filed Briefs, though oral argument was not heard.
Dkt. Nos. 11, Pl.’s Br., & 12, Def.’s Br.
Commissioner. Id. at pp. 1–4. Exhausting all of his options for review through the Social Security
Administration’s tribunals, Plaintiff now brings this appeal.
A. Standard of Review
Under 42 U.S.C. § 405(g), the proper standard of review for this Court is not to employ a de
novo review, but rather to discern whether substantial evidence supports the Commissioner’s
findings and that the correct legal standards have been applied. See Rivera v. Sullivan, 923 F.2d
964, 967 (2d Cir. 1991); Urtz v. Callahan, 965 F. Supp. 324, 325–26 (N.D.N.Y. 1997) (citing, inter
alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Succinctly defined, substantial evidence
is “more than a mere scintilla” of evidence scattered throughout the administrative record; rather,
it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938); see also Williams ex. rel.
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). “To determine on appeal whether an
[Administrative Law Judge’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 ex.
rel. Williams v. Bowen, 859 F.2d at 258.
The ALJ must set forth the crucial factors supporting the decision with sufficient specificity.
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ’s findings are supported by
substantial evidence, the court may not interject its interpretation of the administrative record.
Williams ex rel. Williams v. Bowen, 859 F.2d at 258; 42 U.S.C. § 405(g). However, where the
weight of the evidence does not meet the requirement for substantial evidence or a reasonable basis
for doubt exists as to whether correct legal principles were applied, the ALJ’s decision may not be
affirmed. Johnson v. Bowen, 817 F.2d at 986.
B. Determination of Disability
To be considered disabled within the meaning of the Social Security Act, a plaintiff must
establish an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). Furthermore, the claimant’s physical or mental impairments must be of such severity
as to prevent engagement in any kind of substantial gainful work which exists in the national
economy. Id. at § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner follows a five-step analysis
set forth in the Social Security Administration Regulations. 20 C.F.R. § 404.1520. At Step One,
the Commissioner “considers whether the claimant is currently engaged in gainful activity.” Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). If the claimant is engaged in substantial gainful
activity, he or she is not disabled and the inquiry ends. 20 C.F.R. § 404.1520(b). If the claimant is
not engaged in substantial gainful activity, the Commissioner proceeds to Step Two and assesses
whether the claimant suffers from a severe impairment that significantly limits his or her physical
or mental ability to do basic work activities. Id. at § 404.1520(c). If the claimant suffers from a
severe impairment, the Commissioner considers at Step Three whether such impairment(s) meets
or equals an impairment listed in Appendix 1, in Part 404, Subpart P of the Regulations. Id. at §
404.1520(d). The Commissioner makes this assessment without considering vocational factors such
as age, education, and work experience. Berry v. Schweiker, 675 F.2d at 467. Where the claimant
has such an impairment the inquiry ceases as he or she is presumed to be disabled and unable to
perform substantial gainful activity. Id. If the claimant’s impairment(s) does not meet or equal the
listed impairments, the Commissioner proceeds to Step Four and considers whether the claimant has
the residual functional capacity (“RFC”)4 to perform his or her past relevant work despite the
existence of severe impairments. 20 C.F.R. § 404.1520(e). If the claimant cannot perform his or
her past work, then at Step Five, the Commissioner considers whether the claimant can perform any
other work available in the national economy. Berry v. Schweiker, 675 F.2d at 467; 20 C.F.R. §
Initially, the burden of proof lies with the claimant to show that his or her impairment(s)
prevents a return to previous employment (Steps One through Four). Berry v. Schweiker, 675 F.2d
at 467. If the claimant meets that burden, the burden then shifts to the Commissioner at Step Five
to establish, with specific reference to medical evidence, that the claimant’s physical and/or mental
impairment(s) are not of such severity as to prevent him or her from performing work that is
available within the national economy. Id.; 42 U.S.C. § 423(d)(2)(A); see also White v. Sec’y of
Health and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). In making this showing at Step Five, the
claimant’s RFC must be considered along with other vocational factors such as age, education, past
work experience, and transferability of skills. 20 C.F.R. § 404.1520(f); see also New York v.
Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
C. ALJ Stephan’s Findings
As noted above, Besser appeared and testified at the ALJ Hearing. Tr. at pp. 26-51. In
“Residual functional capacity” is defined by the Regulations as follows: “Your impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. Your
residual functional capacity is what you can still do despite your limitations.” 20 C.F.R. § 404.1545(a).
addition to such testimony, the ALJ had Besser’s medical records consisting of treatment reports and
opinions from various treating and/or consulting physicians. Id. at pp. 220-413.
ALJ Stephan noted initially that, for DIB purposes, Besser met the insured status
requirements of the Social Security Act through September 30, 2013. Id. at pp. 13 & 15. Using the
five-step disability evaluation, ALJ Stephan found that: (1) Besser had not engaged in any
substantial gainful activity since February 9, 2013, the alleged onset disability date; (2) he has severe
medically determinable impairments, namely degenerative disc disease in the cervical and lumbar
spine, COPD, asthma, and arthritis in the knees, but his depression and status post fracture right
ankle are not severe; (3) his severe impairments do not meet nor medically equal any impairment
listed in Appendix 1, Subpart P of Social Security Regulation No. 4; and (4) he retains the RFC to
perform a range of light work, as defined by the Regulations, with certain other restrictions, and, as
such, he could return to his prior work as a security guard and was therefore not disabled. Id. at pp.
D. Plaintiff’s Contentions
In his Brief, Plaintiff contends that the ALJ erred when, in formulating the RFC, he
improperly assessed Plaintiff’s credibility and failed to give significant weight to the lifting,
walking, squatting, and bending restrictions assessed by Justine Magurno, M.D., a medical expert.
As noted above, the Commissioner assesses a claimant’s RFC as a basis for determining the
particular types of work the claimant may be able to do despite the existence of physical and/or
mental impairments. See 20 C.F.R. § 404.1545(a); 20 C.F.R. Part 404, Subpart P, App. 2, §
200.00(c). In qualifying work in the national economy, the Regulations classify and define jobs
according to their physical exertion requirements as sedentary, light, medium, heavy, and very
heavy. 20 C.F.R. § 404.1567. In determining RFC, the ALJ can consider a variety of factors
including a treating physician’s or examining physician’s observations of limitations, the plaintiff’s
subjective allegations of pain, physical and mental abilities, as well as the limiting effects of all
impairments even those not deemed severe. Id. at § 404.1545(a).
In accordance with the Regulations, every medical opinion, regardless of its source, is
considered and weighed. Id. at § 404.1527(c). In deciding what weight, if any, an ALJ should
accord to medical opinions, he or she may consider a variety of factors including “[t]he duration of
a patient-physician relationship, the reasoning accompanying the opinion, the opinion’s consistency
with other evidence, and the physician’s specialization or lack thereof[.]” See Schisler v. Sullivan,
3 F.3d 563, 568 (2d Cir. 1993) (discussing, inter alia, 20 C.F.R. § 404.1527). An ALJ may not
“arbitrarily substitute his own judgment for competent medical opinion.” McBrayer v. Sec’y of
Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983); see also Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999). Where conflicts arise in the medical evidence, resolution of such is properly
entrusted to the Commissioner. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing
Richardson v. Perales, 402 U.S. 389, 399 (1971)).
Furthermore, pursuant to 20 C.F.R. § 404.1529(a), subjective pain will be considered in
determining a claim for disability to the extent in which “symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence.” Symptoms such as pain are to
be considered by the ALJ at all steps of the disability determination. 20 C.F.R. § 404.1529(a) & (d).
A claimant’s statements about the persistence, intensity, and limiting effects of these symptoms are
evaluated in the context of all objective medical evidence, which includes medical signs and
laboratory findings. Id. at § 404.1529(c)(4). Once medically objective evidence is submitted, the
ALJ must identify the severity of the pain and whether that pain will limit the claimant’s ability to
work. Id. at § 404.1529(c). “It is well settled that ‘a claimant’s subjective evidence of pain is
entitled to great weight’ where . . . it is supported by objective medical evidence.” Simmons v.
United States R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir. 1992) (quoting Rivera v. Schweiker, 717 F.2d
719, 725 (2d Cir. 1983)). However, in a case where subjective symptoms are identified, “the ALJ
has discretion to evaluate the credibility of the claimant and to arrive at an independent judgment,
in light of the medical findings and other evidence, regarding the true extent of the pain alleged.”
Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y 1987). Where the ALJ resolves to reject
subjective testimony with regard to pain and other symptoms, he or she “must do so explicitly and
with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the
ALJ’s disbelief and whether his [or her] determination is supported by substantial evidence.” Id.
at 608 (citing, inter alia, Valente v. Sec’y of Health and Human Servs., 733 F.2d 1037, 1045 (2d Cir.
1984)). In evaluating a claimant’s complaints of pain, an ALJ must consider several factors set forth
in the Regulations including:
[The claimant’s] daily activities;
The location, duration, frequency, and intensity of [claimant’s] pain or other
(iii) Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any medication [claimant]
take[s] or ha[s] taken to alleviate [his or her] pain or other symptoms;
Treatment, other than medication, [claimant] receive[s] or ha[s] received for
relief of [his or her] pain or other symptoms;
Any measures [claimant] use[s] or ha[s] used to relieve [his or her] pain or
other symptoms (e.g., lying flat on [his or her] back, standing for 15 to 20
minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning [claimant’s] functional limitations and restrictions
due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3).
ALJ Stephan reviewed the medical record and opinion evidence and determined that Besser
had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except: claimant could lift
and carry twenty pounds occasionally and ten pounds frequently; claimant could
stand and walk for six hours in an eight-hour workday with normal breaks; claimant
could sit for six hours in an eight-hour workday with normal breaks; claimant could
frequently climb, balance, stoop, kneel, and crawl; and claimant could not be
exposed to concentrated respiratory irritants or be frequently exposed to extremes in
temperature or humidity.
Tr. at p. 16.
In rendering this RFC, the ALJ generally found that Plaintiff’s allegations concerning the
intensity, persistence, and limiting effects of his symptoms were not fully credible because they were
inconsistent with the medical evidence as well as Besser’s reporting of his activities of daily living.
Id. at pp. 17-19. For example, in paperwork submitted to the SSA, Plaintiff claimed that he could
not lift, stand, walk, sit, climb stairs, kneel, squat, reach, and use his hands “in repetition.” Id. at pp.
159-60. And, he claimed that he could not walk more than three-to-four blocks before having to
stop to rest for fifteen-to-twenty minutes. Id. at p. 161. But, he also reported that he could prepare
his own meals, drive himself places four-to-five times a week, take care of most of his personal
needs independently, and perform house and yard work such as light vacuuming, laundry, and
mowing the lawn with a riding mower. Id. at pp. 155-57.
During the Hearing, Plaintiff testified that he drove approximately forty-five to fifty minutes
to get to the Hearing. Id. at p. 30. When asked why he stopped working, Plaintiff explained that he
stopped working on March 7, 2014, a date falling after his date last insured, due to surgery he had
on his right ankle, which he had fractured on February 15, 2014, and because of arthritis in his knee.
Id. at p. 35. He further testified that he experiences a lot of pain in his knees when he walks and that
pain in his back radiates to his buttocks and hamstring. Id. at p. 38. Besser also noted that he takes
medication which helps lessen the pain associated with his knee and back conditions. Id. at pp. 36-9-
The ALJ also took into account the fact that during the Hearing, Plaintiff testified to having
stopped smoking in August 2013, yet medical records contradict such a claim, such as treatment
notes from January 13, 2014, April 15, 2014, and June 17, 2014, which indicate that Plaintiff
continued to smoke everyday. Id. at p. 19 (citing Tr. at pp. 330-32, 368, & 383-86). And the ALJ
took note of the fact that despite complaints of pain, Besser has not received treatment from an
orthopedist or pain management specialist. Id. at pp. 18-19. Indeed, the medical record reflects that
physical therapy and home exercise/stretching resulted in some improvement with pain in Plaintiff’s
lumbar spine, and Plaintiff did not receive any injections nor was there any recommendation for
surgery. Id. at pp. 18, 239-48, & 266.
In light of the above, I find that the ALJ properly assessed Plaintiff’s credibility and
sufficiently stated his reasoning for finding Plaintiff not fully credible. Although the ALJ may not
have discussed all credibility factors listed in 20 C.F.R. § 404.1529(c)(3), he explained his
credibility assessment, pointing to record evidence, and any purported “failure to discuss those
factors not relevant to his credibility determination does not require remand.” Cichocki v. Astrue,
534 F. App’x 71, 76 (2d Cir. 2013); see also Cass v. Comm’r of Soc. Sec., 2016 WL 8732514, at *9
(N.D.N.Y. Jan. 22, 2016) (citing Cichocki for the same proposition); Cheek v. Comm’r v. Soc. Sec.,
2015 WL 3857253, at *14 (N.D.N.Y. June 22, 2015) (same).
With regard to the opinion evidence in the record, the ALJ gave little weight to the opinion
rendered on January 13, 2014, by Michael Freeman, M.D., wherein he assessed that Plaintiff was
incapable of performing sedentary work. Tr. at pp. 19-20 & 300-03. The ALJ determined that Dr.
Freeman’s findings are “grossly inconsistent” with the medical evidence as well as Plaintiff account
of his activities; Plaintiff does not challenge the ALJ’s assessment of Dr. Freeman’s opinion. Id.
at p. 20.
The other opinion evidence contained in the record was rendered by Justine Magurno, M.D.,
a consultive examiner, who, following an internal medicine examination conducted on August 27,
2013, issued a medical source statement, which stated as follows:
[Besser] should avoid dust, fumes, and other known lung irritants. There should be
no more than moderate levels of physical exertion. He has marked limitations for
squatting and lifting and moderate for carrying, bending, prolonged walking, and
repetitive neck motion. There is mild limitation for standing.
Id. at p. 291.
The ALJ gave significant weight to Dr. Magurno’s opinion to the extent that such findings were
consistent with her clinical observations and with the record as a whole. Id. at p. 20. However,
little weight was given to Dr. Magurno’s finding that Besser was markedly limited in his ability to
lift, and the restrictions noted for walking, squatting, and bending were not fully adopted. Id.
During the August 27, 2013 consultive examination, Dr. Magurno noted that Plaintiff did
not appear to be in any acute distress, but he did have a slightly right antalgic gait. Id. at p. 289.
Plaintiff presented with a cane, which he claimed was recommended, though not prescribed, by his
doctor. Id. Plaintiff indicated that he uses the cane because his hip slips and it gives him security.
Id. Dr. Magurno observed that his gait with the cane was not synchronized and she did not feel that
the cane was medically necessary. Id. Dr. Magurno felt that the bilateral knee braces were
medically necessary, but the back brace Plaintiff presented, which was secured with velcro, would
only be necessary for holding heat on his back. Id. Plaintiff did not need any help changing for the
exam nor getting on and off the exam table; he had mild difficulty rising from his chair. Id.
Plaintiff’s stance was normal but squatting was one-third of full while holding onto the table. Id.
Upon examination, Plaintiff had full flexion of his cervical spine, presented no scoliosis,
kyphosis, or abnormality in the thoracic spine, and had flexion 65 degrees in lumbar spine, with full
extension, full lateral flexion bilaterally, and full rotary movement bilaterally. Id. at p. 290. Straight
leg raising was negative bilaterally. Id. Plaintiff also had full range of motion of his shoulders,
elbows, forearms, and wrists bilaterally. Id. And he displayed full range of motion of his hips
bilaterally, except flexion 90 degrees. Id. Plaintiff had no sensory deficit. Id.
As noted above, the ALJ assigned significant weight to those portions of Dr. Magurno’s
assessment to the extent such were consistent with the exam she performed as well as other evidence
in the record. Indeed, it is the ALJ’s responsibility to weigh medical opinions and accept them to
the extent such are consistent with and supported by the medical evidence of record. Contrary to
Plaintiff’s view, in rendering the RFC assessment, ALJ Stephan, after reviewing the entire medical
record, did not ignore the totality of Dr. Magurno’s opinions as the RFC clearly includes limitations
associated with frequent bending, walking, and stooping. Id. at p. 16. Such limitations are
consistent with Dr. Magurno’s clinical examination as well as other evidence contained in the
medical record which show intact gait, balance, and coordination. Id. at pp. 256, 260, 261, 290, &
307. Where Dr. Magurno’s assessments, however, were not supported by the record, or by her own
exam, the ALJ was entitled to give little weight to such assessment, as he did in the case of her
finding that Plaintiff was markedly limited in his ability to lift. As the ALJ noted, Plaintiff displayed
full range of motion throughout his upper extremities as well as full strength in his upper extremities.
Id. at p. 20 & 290. While Plaintiff contends that lifting correlates more from the legs, which present
issues for him. Pl.s’ Br. at pp. 8-9. However, during Dr. Magurno’s examination, strength in his
lower extremities was full (5/5) distally and near full (4/5) proximally.
In considering the medical evidence as well as the clinical observations and findings set forth
in Dr. Magurno’s report, I find that the ALJ properly considered and applied appropriate weight to
those portions of the expert medical opinion rendered by Dr. Magurno, whose credentials are
uncontested,5 for which there was support in the record. The ALJ is entitled to weigh the evidence
before him and determine and accept findings that are consistent with the evidence in the record.
Because the ALJ properly considered the entire medical record, properly explained the weight he
afforded to each medical opinion, and because his decision is supported by substantial evidence, I
find no basis for reversing and remanding the final decision of the Acting Commissioner.
In light of the above, I find that as to the arguments raised by Plaintiff on appeal, the ALJ
did not commit any legal errors and his findings are supported by substantial evidence in the record.
As such, it is hereby
ORDERED, that the Acting-Commissioner’s decision denying disability benefits is
AFFIRMED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order upon the parties to this action.
Date: June 30, 2017
Albany, New York
Per the Regulations, State agency medical consultants are “highly qualified” individuals “who are also experts
in Social Security disability evaluation.” 20 C.F.R. § 404.1527(e)(2)(i).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?