Martin v. Commissioner of Social Security
MEMORANDUM-DECISION and ORDER: Plaintiff's motion for JOP is Denied. Defendant's motion for JOP is Granted. The Clerk shall enter judgment accordingly.. Signed by Senior Judge Frederick J. Scullin, Jr on 9/9/2021. (bjw, )
Case 3:20-cv-00635-FJS Document 14 Filed 09/09/21 Page 1 of 21
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
COMMISSIONER OF SOCIAL SECURITY,
OLINSKY LAW GROUP
250 South Clinton Street
Syracuse, New York 13202
Attorneys for Plaintiff
HOWARD D. OLINSKY, ESQ.
SOCIAL SECURITY ADMINISTRATION
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, Massachusetts 02203
Attorneys for Defendant
CHRISOPHER LEWIS POTTER, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
Pending before the Court are the parties' cross-motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. See Dkt. Nos. 12, 13.
On May 15, 2017, Plaintiff applied for both Disability Insurance Benefits and
Supplemental Security Income, alleging his disability began on March 15, 2012, due to anxiety.
Case 3:20-cv-00635-FJS Document 14 Filed 09/09/21 Page 2 of 21
See Dkt. No. 12 at 1. The Social Security Administration denied both applications on August 9,
2017. See id. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ").
See id. On November 15, 2018, Plaintiff appeared at a hearing before ALJ Robert Wright. See
Dkt. No. 11, Administrative Record ("AR"), at 15. 1
On January 10, 2019, the ALJ issued a written decision in which he made the following
(1) Plaintiff "meets the insured status requirements of the Social
Security Act through March 31, 2014";
(2) Plaintiff "has not engaged in substantial gainful activity since
March 15, 2012, the alleged onset date";
(3) Plaintiff "has the following severe impairments: degenerative
disc disease of the lumbar and cervical spine, osteoarthritis in the
knees, generalized anxiety behavior, and drug and alcohol
(4) Plaintiff "does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
(5) Plaintiff "has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
is limited to unskilled work, which is simple, routine, and low
stress, defined as having only occasional decision making, changes
in the work setting, or interactions with others";
(6) Plaintiff "has no past relevant work";
(7) Plaintiff "was born on March 11, 1976 and was 36 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date";
References to page numbers in the Administrative Record are to the Bates Stamp numbers,
which are located in the bottom right hand corner of the pages. References to page numbers to
all other documents in the record are to the page numbers that the Court's Electronic Case Filing
System generates, which are located in the top right corner of the pages.
Case 3:20-cv-00635-FJS Document 14 Filed 09/09/21 Page 3 of 21
(8) Plaintiff "has at least a high school education and is able to
communicate in English";
(9) "Transferability of job skills is not an issue because [Plaintiff]
does not have past relevant work";
(10) Based on Plaintiff's "age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can perform"; and
(11) Plaintiff "has not been under a disability, as defined in the
Social Security Act, from March 15, 2012, through the date of this
See AR at 17-26 (citations omitted).
Plaintiff requested that the Social Security Administration's Appeal Council review the
ALJ's decision. The Appeals Council denied that request, thereby making Defendant's decision
final. See Dkt. No. 12 at 2.
On June 8, 2020, Plaintiff filed this action appealing Defendant's final decision. See id.
Plaintiff filed a supporting brief on December 7, 2020, to which Defendant filed a responsive
brief on January 20, 2021. See Dkt. Nos. 12, 13.
In support of his motion, Plaintiff argues that (1) there is not substantial evidence in the
record to support the ALJ's residual functional capacity ("RFC") determination because there are
no medical opinions in the record to guide the ALJ's analysis, and he failed to consider all of the
evidence; and (2) the ALJ failed to provide reasons for his finding that Plaintiff's subjective
allegations were inconsistent with the medical record. See Dkt. No. 12 at 1.
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Standard of review
Absent legal error, a court reviewing the Commissioner's final decision will uphold that
decision if there is substantial evidence in the record to support it. See 42 U.S.C. § 405(g).
Substantial evidence means "more than a mere scintilla" of evidence and "'such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richard v.
Parales, 402 U.S. 389, 401 (1971) (quotation omitted). Accordingly, a reviewing court '''may
not substitute [its] own judgment for that of the [Commissioner], even if [it] might justifiably
have reached a different result upon a de novo review.'" Cohen v. Comm'r of Soc. Sec., 643 F.
App'x 51, 52 (2d Cir. 2016) (summary order) (quoting Valente v. Sec'y of Health & Human
Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). In other words, "[t]he substantial evidence standard
means once an ALJ finds facts, [a reviewing court] can reject those facts 'only if a reasonable
factfinder would have to conclude otherwise.'" Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d
443, 448 (2d Cir. 2012) (quotation and other citation omitted).
To qualify for social security benefits, a claimant must show that he suffers from a
disability within the meaning of the Act. An individual is considered disabled when he 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 12 months[.]" 42 U.S.C.
§§ 423(d)(1)(A); 1382c(a)(3)(A). Substantial gainful activity ("SGA") is 'work activity that
involves doing significant physical or mental activities . . . for pay or profit." 20 C.F.R.
§ 404.1572(a)-(b). To determine if a claimant has sustained disability within the meaning of the
Act, the ALJ follows a five-step process:
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(1) The ALJ first determines whether the claimant is currently
engaged in SGA. See 20 C.F.R. §§ 416.920(b), 416.972. If so, the
claimant is not disabled. See 20 C.F.R. § 416.920(b).
(2) If the claimant is not engaged in SGA, the ALJ determines if
the claimant has a severe impairment or combination of
impairments. See 20 C.F.R. § 416.920(c). If not, the claimant is
not disabled. See id.
(3) If the claimant has a severe impairment, the ALJ determines if
the impairment meets or equals an impairment found in the
appendix to the regulations (the "Listings"). If so, the claimant is
disabled. See 20 C.F.R. § 416.920(d).
(4) if the impairment does not meet the requirements of the
Listings, the ALJ determines if the claimant can do his past
relevant work. See 20 C.F.R. § 416.920(e), (f). If so, the claimant
is not disabled. See 20 C.F.R. § 416.920(f).
(5) If the claimant cannot perform his past relevant work, the ALJ
determines if he can perform other work, in light of his RFC, age,
education, and experience. See 20 C.F.R. § 416.920(f), (g). If so,
then he is not disabled. See 20 C.F.R. § 416.920(g). A claimant is
only entitled to receive benefits if he cannot perform any
alternative gainful activity. See id.
For this test, the burden of proof is on the claimant for the first four steps and on the
Commissioner for the fifth step, if the analysis proceeds that far. See Balsamo v. Chater, 142
F.3d 75, 80 (2d Cir. 1998) (citation omitted).
ALJ's residual functional capacity determination
In reaching his RFC determination, the ALJ "considered all symptoms and the extent to
which th[o]se symptoms [could] reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and
SSR 16-3p." See AR at 20. He also "considered the medical opinion(s) and prior administrative
medical finding(s) in accordance with the requirements of 20 CFR 404.1520c and 416.920c."
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See id. With regard to his consideration of Plaintiff's symptoms, the ALJ followed a two-step
process. First, he "determined whether there is an underlying medically determinable physical or
mental impairment(s) -- i.e., an impairment(s) that can be shown by medically acceptable clinical
or laboratory diagnostic techniques -- that could reasonably be expected to produce [Plaintiff's]
pain or other symptoms" . . . [and s]econd [if such are shown] he "must evaluate the intensity,
persistence, and limiting effects of [Plaintiff's] symptoms to determine the extent to which they
limit [Plaintiff's] functional limitations." See id. Moreover, "whenever statements about the
intensity, persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, [the ALJ] must consider other evidence in the
record to determine if [Plaintiff's] symptoms limit the ability to do work-related activities." See
At the hearing, Plaintiff testified that he suffered "from severe pain in the right shoulder
and lower back, which ha[d] resulted in poor shoulder movement and difficulty standing and
sitting for prolonged periods." See id. Plaintiff also stated that, "despite compliance with
medications, he still [could not] lift and carry heavy weight and the pain radiate[d] into the upper
and lower extremities." See id. at 20-21. Moreover, Plaintiff asserted that "he [was] often
anxious and require[d] medications for sleeping." See id. at 21. Nonetheless, he stated that "he
ha[d] no difficulty completing activities of daily living such as dressing and bathing [although]
based on his overall condition, [Plaintiff] contend[ed] that he [was] unable to sustain work on a
full-time basis." See id.
After considering Plaintiff's allegations and the evidence, the ALJ found that Plaintiff's
"medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting
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effects of these symptoms [were] not entirely consistent with the medical evidence and other
evidence in the record[.]" See id. Moreover, the ALJ stated that, with regard to Plaintiff's
"statements about the intensity, persistence, and limiting effects of his . . . symptoms, they [were]
inconsistent with the medical record." See id.
With regard to Plaintiff's physical impairments, the ALJ referred to the following record
evidence. In September 2014, a physical evaluation showed Plaintiff was "'largely
unremarkable'" and that "there was little evidence of muscle edema, irregular heartbeat, or
difficulty breathing." See AR at 21 (citing 20F at 13-27). The following year, although Plaintiff
complained about right knee pain, Dr. James Terzian's x-ray report "revealed no joint effusion,
fracture, or dislocation." See id. (citing 1F at 70; [id. at] 90 and 94). In addition, although
Plaintiff fell on his left knee, Dr. Luis Bentancourt stated that Plaintiff "ambulated with only a
'slight' bump and [that his] MCL appeared stable." See id. (citing [1F] at 76). Moreover,
"physical evaluation showed that [Plaintiff] had only 'mildly' reduced range of motion in the left
knee and no more than moderate tenderness in the right knee." See id. (citing [1F] at 82 and 94).
In December 2015, Plaintiff "reasserted allegations of knee pain" after he had completed
physical therapy; however, he "reported that pain was only a four out of ten." See id. (citing 1F
at 55). Furthermore, "Dr. Bentancourt observed that Plaintiff "ambulated with a normal gait and
displayed little evidence of muscle edema." See id. (citing [1F] at 58 and 68).
Moreover, with regard to Plaintiff's degenerative disc disease of the lumbar spine, Dr.
Bajwa Zafar's x-ray report, dated May 2016, "showed only 'mild' multilevel degenerative disc
disease" and a "follow-up MRI report in June 2016 showed that aside left paracentral disc
herniation, there was normal alignment, body height, and 'mild:' diffuse disc bulging." See id.
(citing 1F at 52; [1F] at 53).
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From June 2016 to October 2016, physical evaluations showed that Plaintiff "was
limping, and had limited range of motion and tenderness in the lumbar spine." See AR at 21
(citing 1F at 45 and 50). However, "the same physical evaluations showed that [Plaintiff]
retained normal strength in [his] lower extremities, as well as normal breathing." See id. (citing
[1F at 45 and 50]). Then, in January 2017, Valentina Davydov, D.O. reported that Plaintiff "had
regain[ed] full range of motion in the lumbar spine, as well as strength in the musculoskeletal
system." See id. (citing 1F at 102-103).
By May 2017, Michael Freeman, D.O., Plaintiff's long-time treating physician, reported
that Plaintiff "was physically normal with no muscle edema. See id. at 21 (citing 1F at 5). Dr.
Freeman also observed that, "[d]espite active osteoarthritis and allegation of pain in the back and
knees, . . . [Plaintiff] had only a 'moderate' muscle spam [sic] in his back." See id. (citing [1F] at
8). In addition, Dr. Bajwa noted that, although Plaintiff "ambulated abnormally with limited
range of motion in the lumbar spine, . . . [he] had normal coordination, sensation, and [an] x-ray
report of the lumbar spine reveal[ed] little evidence of spinal canal stenosis or cord
compression." See id. at 21-22 (citing [1F] at 11 and 16).
Subsequently, in October 2017, Plaintiff alleged shoulder pain; and a physical evaluation
"revealed limited range of motion and tenderness in his shoulder." See id. at 22 (citing 22F at
10). An x-ray of Plaintiff's right shoulder showed a close fracture. See id. (citing [22F] at 11;
23F at 11). However, Plaintiff did not "comply with follow-up appointments, including an
orthopedic evaluation." See id. (citing [22F] at 13 and 20). Moreover, in January 2018, F.N.P.
Julie Vernold conducted physical evaluations that "showed that [Plaintiff] had full range of
motion in the neck area and ambulated steady." See id. (citing 22F at 23-25; 24F at 8).
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During a separate physical evaluation in the same month, Dr. Thomas Gudas observed
that Plaintiff "had 'grossly normal' musculoskeletal, no pain with range of motion, and . . .
[improved] symptoms. . . ." See id. (citing 14F at 3). "In addition, Dr. Gudas stated that a CT
scan of [Plaintiff's] brain revealed no intracranial abnormality." See id. (citing [14F] at 13).
Furthermore, the ALJ noted that "physical evaluations in March and July 2018 continued
to show that [Plaintiff] had a normal range of motion in the neck area with intact reflexes." See
AR at 22. Despite Plaintiff having "difficulty standing, and walking on his toes and heels, Ms.
Vernold reported that he retained full strength in the lower and left extremities." See id. (citing
22F at 42; 49, and 51).
Then, in August 2018, Dr. Franklin Wetzel stated that an "x-ray report of [Plaintiff's]
back revealed only 'mild' age appropriate disc space narrowing with no instability." See id.
(citing 22F at 53). Furthermore, "[p]hysical evaluation showed that despite limited range of
motion and tenderness in the back, [Plaintiff] had no swelling, edema, deformity, or muscle
spasm." See id. (citing [22F at 53]). In September 2018, "Ms. Vernold and Betty Lee, N.P.
recalled that [Plaintiff] regained full range of motion in the musculoskeletal system and noted
that [Plaintiff] had been 'noncompliant' with [his] therapeutic plan." See id. (citing [22F] at 6061; 23F at 4). In addition, an x-ray of Plaintiff's "back during this period showed no abnormal
motion despite residual evidence of degenerative disc disease." See id. (citing 22F at 68).
Based on this evidence, the ALJ concluded that, "in spite of [Plaintiff's] multiple
unremarkable physical evaluations, taking into account the combined effect of his physical
impairments and considering his subjective allegations along with a history of back and shoulder
pain as well as osteoarthritis in the knees," he would "limit [Plaintiff] to performing no more
than light exertional work. Particularly, there was some evidence of limited range of motion and
Case 3:20-cv-00635-FJS Document 14 Filed 09/09/21 Page 10 of 21
difficulty walking." See id. The ALJ concluded that "[t]his evidence support[ed] [Plaintiff's]
limitation of no more than light exertional work." See id.
With regard to Plaintiff's mental impairments, the ALJ began by noting that, "in March
2012, [Plaintiff] was hospitalized for reportedly consuming 24 beers per day and was unable to
stop drinking." See AR at 22 (citing 19F at 1). However, after Plaintiff went through detox, "Dr.
Freeman reported that [he] was subsequently discharged in stable condition and [a] mental status
examination revealed he had normal judgment, insight, and no suicidal ideations." See id. (citing
[19F] at 6 and 30). Furthermore, in August 2012, an "outpatient mental health therapy record . . .
revealed that [Plaintiff] had good hygiene, intact speech, and logical thinking." See id. (citing
17F at 2 and 6). "[D]espite [Plaintiff's] allegation of persisting generalized anxiety behavior and
difficulty sleeping, he had no psychosis or impaired memory." See id. (citing [17F] at 6).
Furthermore, the ALJ noted that "the record during this period showed that [Plaintiff] was only
marginally complian[t] with therapy because he had only attended one verbal and one medical
appointment, and had cancelled or failed to show up for three appointments." See id. at 22-23
(citing [17F] at 20).
Furthermore, "[b]y April 2013, Ryan Kim, D.O. disclosed that [Plaintiff] was alert,
oriented, and retained normal memory and judgment." See AR at 23 (citing 20F at 27 and 31).
Dr. Kim also noted that Plaintiff's "mental status examination showed little evidence of suicidal
ideations or homicidal thoughts." See id. (citing [20F at 27 and 31]). Then in August 2014, Dr.
Michael Talarico "recalled that [Plaintiff] had been mentally stable and despite persisting
anxiety, he was noncompliant with the medical regimen." See id. (citing 17F at 28).
Furthermore, "during this period, [Plaintiff] reported that his symptoms had improved, he had
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not experienced panic attacks in some time, and [had spent] increasing time . . . outside with
others. See id. (citing [17F] at 51).
The ALJ also noted that, "[b]y April and June 2015, [Plaintiff] denied feeling hopeless or
depressed, and [a] mental status examination showed that he had appropriate mood, affect, and
unimpaired memory, insight, and judgment." See id. (citing 1F at 72 and 87). Furthermore,
"between June 2016 and October 2016, Dr. Freeman noted that [Plaintiff] had appropriate affect
and mood, as well as fair insight and judgment." See id. (citing 1F at 46, 60, and 68).
In January 2017, Plaintiff was found to have "poor insight and judgment; however, he
was 'negative' for feeling down or experiencing hopeless or little interest in things." See AR at
23 (citing 1F at 35). "In addition, [Plaintiff] appeared to have appropriate mood and affect." See
id. (citing [1F at 35]). Furthermore, in April 2017, despite Plaintiff's "ongoing allegation of
severe generalized anxiety behavior and difficulty sleeping . . ., Dr. Freeman reiterated that,
mentally, [Plaintiff] was oriented, had normal memory, appropriate affect, and fair judgment.
See id. (citing 1F at 5, 11, and 22).
Although Plaintiff "was hospitalized in September 2017 for visual hallucinations, he was
subsequently discharged in stable and improved condition, and [a] CT scan of [Plaintiff's] head
by Dr. Jayaraman showed that it was normal." See id. (citing 1F at 16-20). A "follow-up mental
status examination in January 2018 by Dr. Davydov and Ms. Vernold continue[d] to show that
[Plaintiff] was cooperative, pleasant, and had normal mood and affect. See id. (citing 14F at 3;
2F at 34).
Despite Plaintiff's separate hospitalization during this period for difficulty sleeping and
increased visual hallucinations, Dr. Ken Young "reported that [Plaintiff] had been drinking and
[that a] mental status examination showed logical thought content, clear speech, good eye
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contact, and no evidence of suicidal ideations." See id. (citing 16 at 2-4). In addition, Dr. Agop
Tashchian "subsequently discharged [Plaintiff] after less than a week and found that he was no
longer anxious, depressed, or experiencing suicidal ideations." See id. (citing 16F at 5-6). Dr.
Tashchian also "observed that [Plaintiff] had good eye contact and 'grossly' intact cognitive
functioning and judgment." See id. (citing [16F at 5-6]).
By February 2018, Plaintiff "was again discharged from outpatient physical
therapy for noncompliance." See AR at 23 (citing 17F at 16). Debra Mieroop, L.C.S.W. "stated
that [Plaintiff] had attended only three screen sessions [and] five verbal therapy sessions [and
had] cancelled or failed to show up for seven other appointments." See id. (citing [17F] at 4).
Then, in May 2018, the record revealed that Plaintiff "had a flat affect and [was] drinking 10-20
beers per day." See id. (citing 17F at 21). Even so, Ms. Venold's mental status examination of
Plaintiff showed that he "was cooperative[;] and [she] discharged him in stable condition." See
id. (citing [17F] at 21). A "follow-up mental status examination in July 2018 revealed that
[Plaintiff] was friendly, had normal speech, organized thoughts, and was only 'mildly' anxious."
See id. at 24 (citing 11F at 12). Plaintiff "even reported a good relationship with some family
members." See id. (citing [11F at 12]). Around this same time, "Ms. Lee observed that
[Plaintiff] had stable mood and affect." See id. (citing 23F at 4). "[B]y December 2018, Christin
Wilder, C.A.S.A.C. suggested that [Plaintiff] was doing fairly well, including compl[ying] with
NA and AA meetings, and appearing cooperative and understanding his mental diagnosis." See
id. (citing 26F).
The ALJ noted that "[r]egardless of [Plaintiff's] multiple mental stability, taking into
account the combined effect of mental illnesses [sic] impairments, including a history of severe
anxiety, excessive drinking, and hospitalizations, [he was] limit[ing] [Plaintiff] to unskilled
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work, which is simple, routine, and low stress, defined as having only occasional decision
making, changes in the work setting, or interaction with others." See id.
With regard to the medical opinions, the ALJ noted that, "in August 2017, DDS medical
consultant, A. Dipeolu, Ph.D., stated that there was insufficient evidence to establish that
[Plaintiff] had a severe impairment." See id. at 24 (citing 2A). The ALJ concluded that this
opinion was "clearly contrary to the medical record . . . showing that [Plaintiff] has severe
generalized anxiety behavior and substance and alcohol abuse disorder." See id. Therefore, the
ALJ gave little weight to this opinion. See id.
Furthermore, the ALJ stated that "the evidence reveal[ed] that [Plaintiff] was assigned
GAF scores of 50 and 70." See id. (citing 16 and 17F). The ALJ noted that GAF scores were
merely "snapshots" of a person's functioning at the time they were issued and, thus, lacked
longitudinal perspective. See id. Moreover, the ALJ noted that these scores were vague and did
not provide a function-by-function assessment of Plaintiff's limitations; and, therefore, he had
accorded these scores little weight. See id.
Finally, the ALJ noted that his "residual functional capacity assessment [was] supported
by the medical evidence, including physical and mental examinations, as well as objective
imaging reports from 2012 to 2018." See id. He explained that "[t]he evidence show[ed] that
[Plaintiff] had consistently normal physical and mental evaluations, responded well to the
medical treatment, and experienced little adverse effects from the prescribed medications." See
id. However, he also noted that "there was evidence that [Plaintiff] ambulated abnormally and
was psychiatrically admitted on several occasions." See id. In sum, "[b]ased on the totality of
the evidence and taking into account [Plaintiff's] subjective allegations," the ALJ concluded that
Plaintiff retained the capacity to perform light work with the stated limitations. See id.
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ALJ's duty to develop the record
The Second Circuit has held that, based on the non-adversarial nature of social security
proceedings, the ALJ has an affirmative duty to develop the administrative record. See
Hernandez v. Comm'r of Soc. Sec., No. 1:13-cv-959 (GLS/ESH), 2015 WL 275819, *2
(N.D.N.Y. Jan. 22, 2015) (quoting Felder v. Astrue, No. 10-CV-5747, 2012 WL 3993594, *11
(E.D.N.Y. Sept. 11, 2012) (quoting Garcia v. Apfel, No. 98 CIV. 1370, 1999 WL 1059968, at *5
(S.D.N.Y. Nov. 19, 1999))) (other citation omitted). This duty "includes obtaining the treating
physicians' assessments of plaintiff's functional capacity." Clobridge v. Astrue, No. 5:07-CV00691 (NAM), 2010 WL 3909500, *7 (N.D.N.Y. Sept. 30, 2010) (citing 20 C.F.R.
§ 404.1512(e); Hardhardt v. Astrue, 2008 WL 2244995, at *9 (E.D.N.Y. 2008)).
However, the ALJ is not required to develop the record further where all evidence in the
record is consistent and sufficient such that the ALJ can make his determination without
additional evidence. See Hernandez, 2015 WL 275819, at *2 (citing 20 C.F.R. § 404.1520b(a));
Monroe v. Comm'r of Soc. Sec., 676 F. App'x 5, 8 (2d Cir. 2017) (summary order) (citing Tankisi
v. Comm'r of Soc. Sec., 521 Fed. Appx. 29, 34 (2d Cir. 2013) (summary order) (stating that
"[w]here . . . the record contains sufficient evidence from which an ALJ can assess the
[claimant's] residual functional capacity, . . . a medical source statement or formal medical
opinion is not necessarily required . . . "); Reices-Colon v. Astrue, 523 F. App'x 796, 799 (2d Cir.
2013) (summary order) (rejecting plaintiff's argument that ALJ should have requested additional
records to develop administrative record where she failed to identify specific records were
missing or explain how the allegedly missing records would affect the ALJ's decision); Heather
C. v. Berryhill, No. 5:17-cv-0962, 2019 WL 1432593, *3 (N.D.N.Y. Mar. 29, 2019).
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Moreover, the ALJ is not required to develop the record further where it does not contain
any "obvious gaps." See Hernandez, 2015 WL 275819, at *2 (citing Rosa v. Callahan, 168 F.3d
72, 79 n.5 (2d Cir. 1999)); Breinin v. Colvin, No. 5:14-CV-01166 (LEK/TWD), 2015 WL
7749318, *10 (N.D.N.Y. Oct. 15, 2015) (finding that ALJ had no duty to recontact plaintiff's
treating physician where record contained sufficient evidence, which included plaintiff's
statements, diagnostic test results, and medical findings to support ALJ's RFC findings). In
addition, the mere fact that the ALJ relied on opinions based on examinations rendered several
years prior to the ALJ's decision does not make those opinions stale, especially where a plaintiff
has not pointed to evidence indicating that his condition had significantly worsened since the
examinations. See Maxwell H. v. Comm'r of Soc. Sec., No. 1:19-CV-0148 (LEK/CFH), 2020
WL 1187610, *5 (N.D.N.Y. Mar. 12, 2020).
In this case, Plaintiff's argument that the ALJ could not have rendered an RFC
determination based on the evidence is unpersuasive. Although Plaintiff contends that there
were no medical opinions in the record, the ALJ cited to multiple medical reports and medical
opinions in his decision. See generally AR. Furthermore, Plaintiff's argument that the ALJ
should have ordered a consultative examination or contacted his treating physician is
unconvincing because, where, as here, all the evidence in the record is consistent and sufficient,
the ALJ was not required to develop the record further. In addition, despite Plaintiff's contention
that the treatment records contained nothing regarding his functional status or ability to work, the
record contained sufficient evidence from which the ALJ could assess Plaintiff's RFC such that a
medical source statement or formal medical opinion was not required.
Moreover, there are no obvious gaps in the record; and Plaintiff does not argue that any
of his medical history was missing from the record. Therefore, the ALJ did not have a duty to
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recontact Plaintiff's physicians because there was sufficient evidence in the record, including
Plaintiff's statements, test results, and medical reports.
Finally, although Plaintiff argues that the ALJ denied his application because of his
failure to cooperate rather than on medical grounds, the record belies this argument. In fact,
there are multiple medical reports in the record that consistently state that Plaintiff was mentally
and physically stable. See generally AR. Moreover, because Plaintiff has not pointed to
evidence indicating that his condition has significantly worsened, the ALJ's reliance on medical
examinations from several years prior was not improper.
Accordingly, for all of the above-stated reasons, the Court finds that the ALJ fulfilled his
duty to develop the record and that the record contained substantial evidence to support the ALJ's
ALJ's evaluation of Plaintiff's impairments
An ALJ should give a treating physician's opinion controlling weight where there is
substantial evidence in the record to support it. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.
2019). In the absence of a treating source opinion in the record, it is within the ALJ's purview to
obtain and rely on consultative opinions. See 20 C.F.R. § 404.1519; Annabi v. Berryhill, No. 16CV-9057 (BCM), 2018 WL 1609271, *17 (S.D.N.Y. Mar. 30, 2018) (quoting Hooper, 199 F.
Supp. 3d at 815-16 (S.D.N.Y. 2016) (quoting 20 C.F.R. § 404.1519)).
Moreover, when relying on consultative opinions to formulate a claimant's RFC, it is the
ALJ's duty to weigh the opinion evidence, provide reasons for the weight afforded, and review
the entire record. See Tyler M. v. Saul, No. 3:19-CV-426 (CFH), 2020 WL 5258344, *9
(N.D.N.Y. Sept. 3, 2000) (stating that, "[a]lthough an ALJ will consider medical opinions
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regarding a plaintiff's functioning, ultimately the ALJ is tasked with reaching an RFC based on
the record as a whole" (citation omitted)); Christina M.F. v. Berryhill, No. 5:17-CV-0840 (GTS),
2019 WL 147463, *7 (N.D.N.Y. Jan. 9, 2019) (stating that "the ALJ did precisely what she was
expected to do: consider all of the opinion evidence and balance the differing opined limitations
in light of the evidence as a whole when formulating the RFC"). When determining what weight
to give the opinions of medical sources, the Social Security regulations require the ALJ to
consider several factors, including "(1) Supportability . . .; (2) Consistency . . .; (3) Relationship
with the claimant . . .; [and] (4) Specialization . . . ." 20 C.F.R. § 416.920c(c).
In this case, Plaintiff's assertion that the ALJ cherry-picked the evidence is unpersuasive
because the record clearly indicates that the ALJ relied on substantial evidence indicating that
Plaintiff's physical and mental symptoms were not disabling. The ALJ considered all opinion
evidence and balanced the differing limitations in light of the evidence as a whole when
formulating Plaintiff's RFC. Moreover, the ALJ expressly noted that there were some knee and
spinal abnormalities as well as a closed fracture of Plaintiff's right shoulder. See AR at 21-22.
Similarly, the ALJ recognized that Plaintiff had persisting anxiety symptoms during much of the
alleged disability period as well as reported episodes of hallucinations. See id. at 22-23. 2
In addition, the ALJ reviewed the medical opinions and ultimately formulated an RFC
based on the record as a whole. Plaintiff's treating physician, Dr. Freeman, reported in a 2017
physical examination that Plaintiff was physically normal with no muscle edema and only a
"moderate" muscle spasm in his back. See AR at 21-22. Similarly, Dr. Freeman observed in
Although Plaintiff argues that the ALJ erroneously found at Step 2 that obesity was not a severe
impairment, Plaintiff never included obesity in the detailed list of impairments that he told the
ALJ were severe. Furthermore, outside the obesity discussion, the ALJ stated that, although
Plaintiff sometimes experienced abnormal gait and had some difficulty walking, his gait was
frequently normal. See AR at 21-22.
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multiple mental status examinations from 2012 to 2017 that Plaintiff was oriented, had normal
memory, appropriate affect, and fair judgment and insight. See id. at 22-23. These mental and
physical examinations are consistent with other reports and medical opinions. For example, in
2018, Dr. Gudas observed that Plaintiff had "grossly normal" musculoskeletal, no pain with
range of motion, and his symptoms had improved. See id. at 22. In addition, Dr. Gudas stated
that a CT scan revealed no intracranial abnormality in Plaintiff's brain. See id. Finally, further
physical evaluations from various doctors revealed that, despite a limited range of motion and
tenderness, Plaintiff had no swelling, edema, deformity or muscle spasm. See generally AR.
Accordingly, based on the above, the Court finds that the ALJ's overall evaluation of the
evidence was reasonable and thorough and that substantial evidence in the record supported his
ALJ's determination regarding Plaintiff's subjective allegations of his condition
"As a fact-finder, the ALJ has 'the discretion to evaluate the credibility of a claimant and
to arrive at an independent judgment, in light of medical findings and other evidence.' . . .
Credibility findings of an ALJ are entitled to great deference and therefore can be reversed only
if they are 'patently unreasonable.' . . ." Pietrunti v. Dir., Office of Workers' Comp. Programs,
119 F.3d 1035, 1042 (2d Cir. 1997) (internal quotations omitted). "In assessing the credibility of
the objective evidence of pain and disability provided by the plaintiff's testimony, the ALJ
considers the objective medical evidence and a number of other factors." Osborne v. Astrue, No.
6:07-CV-0314 (LEK), 2010 WL 2735712, *7 (N.D.N.Y. July 9, 2010) (citing SSR 96-7p).
These factors include the following:
(1) The individual's daily activities;
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(2) The location, duration, frequency, and intensity of the
individual's pain or other symptoms;
(3) Factors that precipitate and aggravate the symptoms;
(4) The type, dosage, effectiveness and side effects of any
medication the individual takes or has taken to alleviate pain or
(5) Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
(6) Any measures other than treatment the individual uses to
relieve pain or other symptoms . . . ; and
(7) Any other factors concerning the individual's functional
limitations and restrictions due to pain or other symptoms.
Id. at *8 (citing [SSR 96-7p]).
Furthermore, the ALJ is not required to discuss every piece of the evidence in the record
explicitly. See Brault, 683 F.3d at 448. If the ALJ does not cite certain evidence, it does not
mean that the ALJ failed to consider it. See id. (citation omitted). In addition, it is not for the
court to reweigh the evidence based on a plaintiff's disagreement with the results. See Michelle
M. v. Comm'r of Soc. Sec., No. 3:18-CV-1065 (TWD), 2020 WL 495170, *8 (N.D.N.Y. Jan. 30,
2020) (collecting cases and stating that "it was within the ALJ's purview to weigh the evidence
of record, resolve any inconsistencies therein, and make a determination consistent with the
evidence as a whole"). It does not matter if the court or another ALJ may have weighed the
evidence differently or reached a different determination on the plaintiff's credibility if there was
substantial evidence in the record to support the ALJ's finding. See Clark v. Comm'r of Soc. Sec.,
No. 7:13-CV-256 (FJS), 2016 WL 1057047, *6 (N.D.N.Y. Mar. 14, 2016) (stating that, "to the
extent that Plaintiff points to evidence in the Administrative Record that reasonably might
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support a conclusion that [Plaintiff] is disabled, 'whether there is substantial evidence supporting
the [Plaintiff's] view is not the question' on appeal" (quotation omitted)).
In this case, Plaintiff argues that the ALJ failed to provide reasons for finding his
allegations inconsistent with the medical records. However, a review of the record shows that
the ALJ considered Plaintiff's subjective allegations and compared them to the medical reports
and imaging findings. Based on his review, the ALJ found that Plaintiff's allegations were not
entirely consistent with the evidence.
Furthermore, Plaintiff contends that the ALJ failed to provide any explanation for
rejecting his subjective allegations; and, therefore, the Court should remand the case. Contrary
to Plaintiff's argument, however, the ALJ highlighted medical evidence in the record that tended
to contradict Plaintiff's allegations. For example, the ALJ contrasted Plaintiff's reported knee
pain with examination findings of only mildly reduced knee range of motion, normal or only
slightly impaired gait, and no knee joint effusion, fracture, or dislocation. See AR at 21-22. In
addition, the ALJ recognized that Plaintiff reported severe back pain but contrasted this
allegation with physical examination and imaging findings that showed mild abnormalities and
predominantly normal strength. See id.
Accordingly, for all these reasons, the Court finds that the ALJ's credibility determination
was not "patently unreasonable"; and, in fact, there was substantial evidence in the record to
support this determination.
Having reviewed the entire file in this matter, the parties' submissions and the applicable
law, and for the above-stated reasons, the Court hereby
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ORDERS that Plaintiff's motion for judgment on the pleadings, see Dkt. No. 12, is
DENIED; and the Court further
ORDERS that Defendant's motion for judgment on the pleadings, see Dkt. No. 13, is
GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and
close this case.
IT IS SO ORDERED.
Dated: September 9, 2021
Syracuse, New York
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