Tryon v. Commissioner of Social Security
MEMORANDUM-DECISION AND ORDER. ORDERED, that the decision denying disability benefits be AFFIRMED; and it is further ORDERED that defendant's motion for judgment on the pleadings (Dkt. No. 9) is GRANTED; and it is furtherORDERED that plaintiff 039;s complaint is DISMISSED; and it is furtherORDERED that pursuant to General Order # 32, the parties are advised that the referral to a Magistrate Judge as provided for under Local Rule 72.3 has been RESCINDED, as such, any appeal taken from this Order will be to the Court of Appeals for the Second Circuit, and it is further ORDERED that the Clerk of Court enter judgment in this case. Signed by U.S. District Judge Mae A. D'Agostino on 2/7/12. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL J. ASTRUE, Commissioner of
AMDURSKY, PELKY, FENNELL
& WALLEN, P.C.
26 East Oneida Street
Oswego, New York 13126
Attorneys for Plaintiff
Social Security Administration
Office of Regional Counsel
26 Federal Plaza - Room 3904
New York, New York 10278
Attorney for Defendant
Gregory R. Gilbert, Esq.
Sixtina Fernandez, Esq.
Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Barbara Tryon, brings the above-captioned action pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), seeking a review of the Commissioner of Social Security’s decision to
deny her application for supplemental social security (“SSI”) and disability insurance benefits
On May 23, 2007, plaintiff protectively filed an application for SSI and DIB benefits.
(Administrative Transcript at p.106-118).1 Plaintiff was 42 years old at the time of the application
with no prior work history. Plaintiff claims that she suffered from chronic back and leg pain and
problems with her right arm and hand due to a motor vehicle accident in May 2003. (T. 144).
Plaintiff claimed to be disabled as of April 27, 2005. On August 29, 2007, plaintiff’s
applications were denied and plaintiff requested a hearing by an ALJ which was held on
September 29, 2009. (T. 21). On November 12, 2009, the ALJ issued a decision denying
plaintiff’s claim for benefits. (T. 8-16). The Appeals Council denied plaintiff’s request for
review on March 26, 2010, making the ALJ’s decision the final determination of the
Commissioner. (T. 1-4). This action followed.
The Social Security Act (the “Act”) authorizes payment of disability insurance benefits to
individuals with “disabilities.” The Act defines “disability” 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.” 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for evaluating disability
"In essence, if the Commissioner determines (1) that the claimant is
not working, (2) that he has a 'severe impairment,' (3) that the
impairment is not one [listed in Appendix 1 of the regulations] that
“(T. )” refers to pages of the administrative transcript, Dkt. No. 6.
conclusively requires a determination of disability, and (4) that the
claimant is not capable of continuing in his prior type of work, the
Commissioner must find him disabled if (5) there is not another type
of work the claimant can do." The claimant bears the burden of
proof on the first four steps, while the Social Security
Administration bears the burden on the last step.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal
A Commissioner’s determination that a claimant is not disabled will be set aside when the
factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw,
221 F.3d at 131. Substantial evidence has been interpreted to mean “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. The Court may also set
aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999).
Here, the ALJ found at step one that plaintiff has not engaged in substantial gainful
activity since the alleged onset date, April 27, 2005. (T. 10). At step two, the ALJ concluded that
plaintiff suffered from degenerative disc disease of the lumbar spine which qualified as a “severe
impairment” within the meaning of the Social Security Regulations (the “Regulations”). (T. 10).
At the third step of the analysis, the ALJ determined that plaintiff did not have an impairment or
combination of impairments that meet or equal the severity of any impairment listed in Appendix
1 of the Regulations. (T. 11). The ALJ found that plaintiff had the residual functional capacity
(“RFC”) to, “perform the full range of light work” and specifically, “during an 8-hour workday,
the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or
walk for a total of 6 hours, and sit for a total of 6 hours”. (T. 12). At step four, the ALJ
concluded that plaintiff had no past relevant work. (T. 15). At step five, relying on the medical3
vocational guidelines (“the grids”) set forth in the Regulations, 20 C.F.R. Pt. 404, Subpt. P, App.
2, the ALJ found that plaintiff had the RFC to perform jobs existing in significant numbers in the
national economy. (T. 15). Therefore, the ALJ concluded that plaintiff was not under a disability
as defined by the Social Security Act. (T. 16).
In seeking federal judicial review of the Commissioner’s decision, plaintiff argues that:
(1) the ALJ erred in failing to find that plaintiff’s neck and right arm complaints were “severe
impairments”; (2) the ALJ failed to properly apply the treating physician rule; (3) the ALJ failed
to acknowledge the report from the state agency examining physician, Dr. Shayevitz; (4) the ALJ
ignored the applicable Regulations and improperly assessed plaintiff's credibility; and (5) the
ALJ’s RFC determination is not supported by substantial evidence. (Dkt. No. ).
Severity of Impairments
Plaintiff argues that the ALJ erred when he determined that plaintiff’s neck and right
shoulder impairments were “non-severe”. A “severe” impairment is one that significantly limits
an individual's physical or mental ability to do basic work activities. Meadors v. Astrue, 370 F.
App'x 179, 182 (2d Cir. 2010) (citing 20 C.F.R. §§ 404.1520( c ), 416.920( c )). The Regulations
define “basic work activities” as the “abilities and aptitudes necessary to do most jobs,” examples
of which include,
(1) Physical functions such as walking, standing, lifting, pushing,
pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual
work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b); see also Social Security Ruling 85–28, 1985 WL 56856, at *3–4, Titles
II and XVI: Medical Impairments That Are Not Severe (S.S.A.1985).
Plaintiff has the burden at step two in the sequential evaluation process to demonstrate the
severity of her impairment. See 20 C.F.R. § 404.1520( c ). The severity analysis at step two may
do no more than screen out de minimis claims. Dixon v. Shalala, 54 F.3d 1019, 1030 (2d
Cir.1995). The “mere presence of a disease or impairment, or establishing that a person has been
diagnosed or treated for a disease or impairment” is not, itself, sufficient to deem a condition
severe. McConnell v. Astrue, 2008 WL 833968, at *2 (N.D.N.Y.2008) (citing Coleman v.
Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995)). “Often when there are multiple impairments, and
the ALJ finds that only some of the impairments, but not others, are severe, any error in the
severity analysis is harmless because the ALJ continues with the with the sequential analysis, and
does not deny plaintiff's application based on the second step alone.” Kemp v. Comm. of Soc.
Sec., 2011 WL 3876526, at *8 (N.D.N.Y. 2011).
Medical Evidence Relating to Neck and Right Arm/Shoulder Impairments
From March 2004 until August 2008, plaintiff received treatment from Syracuse
Orthopedic Specialists for complaints of pain in her neck and right arm/shoulder. The record
contains a total of twelve treatment notes from Dr. Richard Zogby for the relevant time period
and impairments (three visits in 2004; three visits in 2005; one visit in 2006; three visits in 2007
and one visit in 2008). On March 4, 2004, plaintiff complained of right shoulder pain. On
examination, Dr. Zogby found, “right shoulder reveals stiffness with pain, internal external
rotation”. (T. 288). Dr. Zogby noted, “she has really significant problems with her shoulder at
this time”. On April 2, 2004, plaintiff complained of shoulder pain and the objective examination
revealed the same results. Dr. Zogby diagnosed plaintiff with pain in her shoulder and
commented, “as far as the shoulder is concerned, I feel this could be something that could be
treated by Dr. Cooke who has seen her in the past and I will refer her for that”. (T. 284). The
record contains no evidence of any treatment with Dr. Cooke. In April 2004, an MRI of
plaintiff’s right shoulder revealed tendinosis without evidence of a rotator cuff tear and some
inflammation with slight impingement.2 (T. 436, 439). On September 14 2004, Dr. Zogby’s
objective evaluation contained the same notation, “right shoulder reveals stiffness with pain,
internal external rotation”. (T. 281). In 2005, 2006 and 2007, plaintiff treated with Dr. Zogby for
other impairments but made no complaints of neck or right arm/shoulder pain. During that time,
Dr. Zogby offered no diagnosis, treatment or opinion relating to those alleged impairments.
Indeed, plaintiff did not make any further complaints regarding her neck or right arm/shoulder
until August 2008. On August 5, 2008, Dr. Zogby noted that plaintiff reported pain into her right
arm with weakness. Dr. Zogby found pain present in her cervical region and limited range of
motion in plaintiff’s shoulder. (T. 493-496). On September 13, 2008, Dr. Zogby completed a
Medical Assessment Form and opined that plaintiff could occasionally lift/carry up to 10 pounds.
On December 6, 2006, plaintiff was examined by Berton Shayevitz, M.D., at the request
of the agency. (T. 342). Dr. Shayevitz noted that plaintiff’s “principal problem is low back pain”
but also noted that since her automobile accident, she suffered pain in her right arm and hand and
pain in the right trapezius muscle over the right scapula. Upon examination, the doctor noted that
plaintiff was in “no acute distress”, her gait and cervical rotation were normal. Forward and
lateral flexion of her neck was limited due to tightness and some stiffness. (T. 344). Plaintiff’s
range of motion in her right shoulder was full except for forward elevation. Dr. Shayevitz
diagnosed plaintiff with degenerative disc disease in the low back and cervical radiculopathy
down the right arm, “although somewhat lacking in physical findings in the right arm and in the
The MRI report is not part of the record herein.
back”. (T. 345). Dr. Shayevitz “strongly suspected” degenerative disease in the neck with
radiculopathy. (T. 345). Dr. Shayevitz concluded that plaintiff was moderately and markedly
limited in sitting, standing, walking, lifting, carrying, bending, pushing and pulling by her low
back problem. Plaintiff was also moderately and markedly limited in the use of her right arm and
shoulder in terms of lifting, pushing, pulling and carrying. Finally, plaintiff was moderately
limited in motions of her neck and activities dependent on neck motions like driving and
operating machinery. (T. 346).
In February 2007, plaintiff sought treatment at the New York Pain Center for complaints
of pain in her right upper extremity.3 (T. 356). Upon examination, Linda Ehrich, ANP, writing
for Joseph Tiso, M.D., noted that plaintiff exhibited tenderness in her right trapezius. The doctor
requested a cervical MRI.4 On March 1, 2007, plaintiff returned to the Pain Center complaining
of neck pain. Upon examination, plaintiff exhibited a normal station and gait, full range of
motion in her neck and head and tenderness with flexion, extension and rotation. (T. 355).
The ALJ found that plaintiff’s degenerative disc disease in the lumbar spine was a severe
impairment. Plaintiff’s complaints of pain in her neck and right arm/shoulder and her treatment
for said complaints, was sporadic. All objective medical testing evidence relating to her neck and
right arm/shoulder was normal. Despite the absence of objective evidence, Dr. Zogby and Dr.
Shayevitz opined that plaintiff’s ability to do work related activities was impaired by pain in her
neck and right arm/shoulder. However, even assuming that the ALJ erred when he failed to
acknowledge these opinions and find that plaintiff’s neck and right arm/shoulder complaints were
Plaintiff previously sought treatment and received epidural injections at the Pain Center for lower back
There is no indication in the record that this testing was performed.
medically determinable impairments that limited her ability to do work, that omission does not
constitute reversible error. The ALJ’s omission of these impairments at Step Two of the analysis
amounts to no more than “harmless error” because the ALJ continued with the sequential
analysis. In the remaining steps, the ALJ discussed all of plaintiff’s medical treatment and
considered plaintiff’s neck and right arm impairments in determining plaintiff’s RFC. Indeed, the
ALJ concluded, “plaintiff can lift/carry twenty pounds occasionally and ten pounds frequently”.
See O’Grady v. Comm. of Soc. Sec., 2011 WL 3652432, at *4 (N.D.N.Y. 2011) (the Secretary
continued with the analysis and considered the claimant’s cervical condition in plaintiff’s RFC).
As the ALJ proceeded with the analysis and included plaintiff’s severe and non-severe
impairments in the RFC determination, there is no basis to remand this matter based upon the
ALJ’s step two analysis.
Application of Treating Physician Rule and Evaluation of Opinion Evidence
Plaintiff argues that the ALJ misapplied the treating physician rule when he failed to
assign controlling weight to Dr. Zogby’s opinions. Plaintiff also claims that the ALJ failed to
evaluate or consider the opinions of the state agency examining physician, Dr. Shayevitz.
Under the Regulations, a treating physician's opinion is entitled to “controlling weight”
when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with substantial evidence in [the] case record.” 20 C.F.R. §
404.1527(d)(2); see also Rosa, 168 F.3d at 78–79; Schisler v. Sullivan, 3 F.3d 563, 567 (2d
Cir.1993). An ALJ may refuse to consider the treating physician's opinion controlling only if he
is able to set forth good reason for doing so. Saxon v. Astrue, 781 F.Supp.2d 92, 102 (N.D.N.Y.
2011). The less consistent an opinion is with the record as a whole, the less weight it is to be
given. Otts v. Comm'r of Soc. Sec., 249 F. App’x 887, 889 (2d Cir.2007) (an ALJ may reject such
an opinion of a treating physician “upon the identification of good reasons, such as substantial
contradictory evidence in the record”).
When an ALJ refuses to assign a treating physician's opinion controlling weight, he must
consider a number of factors to determine the appropriate weight to assign, including:
(i) the frequency of the examination and the length, nature and extent
of the treatment relationship; (ii) the evidence in support of the
treating physician's opinion; (iii) the consistency of the opinion with
the record as a whole; (iv) whether the opinion is from a specialist;
and (v) other factors brought to the Social Security Administration's
attention that tend to support or contradict the opinion.
20 C.F.R. § 404.1527(d)(2). “Failure to provide ‘good reasons' for not crediting the opinion of a
claimant's treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d
The opinion of a treating physician is not afforded controlling weight where the treating
physician's opinion contradicts other substantial evidence in the record, such as the opinions of
other medical experts. Williams v. Comm'r of Soc. Sec., 236 F. App’x 641, 643–44 (2d Cir. 2007);
see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing 20 C.F.R. § 404.1527(d)(2)).
When a treating physician's opinions are inconsistent with even his own treatment notes, an ALJ
may properly discount those opinions. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
“While the final responsibility for deciding issues relating to disability is reserved to the
Commissioner, the ALJ must still give controlling weight to a treating physician's opinion on the
nature and severity of a plaintiff's impairment when the opinion is not inconsistent with
substantial evidence. See Martin v. Astrue, 337 F. App'x 87, 89 (2d Cir. 2009).
As discussed, plaintiff had twelve visits with Dr. Zogby from March 2004 through August
2008.5 During those visits, Dr. Zogby’s objective examinations of plaintiff’s lumbar spine and
lower extremities were consistently normal. On nearly every occasion, Dr. Zogby found that
plaintiff’s station and gait were normal and straight leg raising was negative bilaterally. The
range of motion in plaintiff’s lower extremities was full and painless. Additionally, as previously
noted, Dr. Zogby’s objective findings with respect to plaintiff’s neck and right arm/shoulder were
minimal. In April 2004, Dr. Zogby noted that he reviewed MRI films of plaintiff’s lumbar spine
and while no report had been prepared, he opined that the films revealed a disk bulge/protrusion
at L5-S1 with disk dessication.6 (T. 285). Dr. Zogby diagnosed plaintiff with discogenic
syndrome.7 Dr. Zogby referred plaintiff to the New York Pain Center for treatment. On August
11, 2004, plaintiff underwent an evaluation at the Pain Center.8 Upon examination, plaintiff
exhibited a normal station and gait and normal range of motion. Due to insurance issues,
treatment was deferred. In June 2006, a lumbar discogram revealed concordant pain at L5-S1
with a small anular tear and epidural spread of contrast and some “atypical” increase in her pain
symptoms at L3-4 and L4-5.9 The report of the discogram indicates “no focal disk herniation”.
On October 3, 2006, plaintiff presented at the Pain Center with complaints of low back pain. The
The record also contains four office notes from January 2004 through March 2004. However, those visits
were for complaints of pain unrelated to issues presented on this appeal. In addition, the record contains one office
note from December 2009 but the record is incomplete.
The MRI report is not part of the record herein.
Discogenic Syndrome is derangement of an intervertebral disc. Dorland’s Illustrated Medical Dictionary,
534 (31 Ed. 2007).
The records indicate that the August 2004 visit was a “follow up”. However, the record does not contain
any evidence of prior treatment at the Pain Center.
A discogram is a radiograph of an intervertebral disk. Dorland's at 553.
doctor noted that plaintiff’s MRI of her lumbar spine was “normal”. Upon examination, plaintiff
exhibited a normal station and gait, pain upon flexion, extension and rotation and a full range of
motion. Plaintiff was scheduled for a nerve block and advised to pursue physical therapy. In
January 2007, without any further diagnostic films or additional objective findings, Dr. Zogby
diagnosed plaintiff with a herniated disc with myelopathy.10 (T. 508).
In September 2008, Dr. Zogby prepared a Medical Assessment Form regarding plaintiff’s
ability to do work-related activities. In addition to the restrictions involving carrying and lifting,
as discussed above, Dr. Zogby opined that plaintiff could sit for two hours in an eight hour
workday and stand/walk for one hour. Dr. Zogby noted that plaintiff’s response to treatment and
prognosis were “poor”. (T. 490).
In 2004 and 2005, plaintiff treated with various physicians at St. Joseph’s Hospital Health
Center, Family Practice Center. (T.361). On February 18, 2005, plaintiff treated with Sherin
Varkey, M.D. for low back pain. (T. 364). Dr. Varkey discussed plaintiff’s prior MRI and noted
that it revealed that plaintiff suffered from a disc bulge/protrusion at L5-S1 with dessication. Dr.
Varkey diagnosed plaintiff with low back pain and noted, “I will find out about who will accept
the patient for diskography and a cortisone shot . . . and also she wanted some Lortab, which I
will write a prescription for chronic low back pain”.11 (T. 364). On April 22, 2005, plaintiff
returned to Dr. Varkey complaining of increased back pain. (T. 365). Upon examination,
plaintiff had mild tenderness in the lumbar region but her motor exam in both extremities was 5/5,
Myelopathy is a functional disturbances or pathological change in the spinal cord, often referring to
nonspecific lesions in contrast to the inflammatory lesions of myelitis. Id. at 1239.
Lortab is a semisynthetic opioid analgesic derived from codeine but having more powerful sedative and
analgesic effects. Dorland's at 890, 1090.
her sensory exam was normal and her reflex exam was 2+ bilaterally in both lower extremities.
Dr. Varkey diagnosed plaintiff with discogenic syndrome and provided plaintiff with Lortab and
Skelaxin.12 (T. 365). On July 8, 2005, plaintiff inquired as to whether Dr. Varkey could increase
her Lortab prescription. (T. 366). Upon examination, Dr. Varkey noted that plaintiff was,
“generally in no apparent distress. Back shows low back pain and mild tenderness on palpation”.
(T. 366). On March 24, 2006, plaintiff treated with Amber Shaff, M.D. for a follow up for
medications. Dr. Shaff noted that plaintiff was taking Lortab and complaining of constipation. (T.
373). Upon examination, Dr. Shaff found a full range of motion, strength at 5/5 in all extremities
and no loss of sensation. Dr. Shaff diagnosed plaintiff with chronic back pain and noted that a
2004 MRI of plaintiff’s lumbar spine showed “normal spine, no significant disk bulge, herniation
or stenosis”. Dr. Shaff refilled plaintiff’s prescription for Lortab but noted, “I suspect that she
may be abusing these pain medications. This is the first time I am seeing her, I discussed with the
patient the potential for addiction”. (T. 373). Dr. Shaff opined that plaintiff’s complaints of
constipation were secondary to the pain medication and prescribed a laxative. (T. 374).
The ALJ assigned “little weight”, to Dr. Zogby’s assessment explaining:
Little weight is given to the general opinions of Dr. Borio13and Dr.
Zogby, concluding that she is “temporary totally disabled”, as the
determination of whether the claimant is disabled under the definition
of the Social Security Act is an issue reserved exclusively to the
Commissioner. Further, little weight is also given to Dr. Zogby’s
assessment form as it is inconsistent with his treatment notes which
indicated that while the claimant appeared to be in mild discomfort,
palpation of the lumbar area revealed only mild right paraspinal
Skelaxin is a centrally acting skeletal muscle relaxant used in the treatment of painful musculoskeletal
conditions. Dorland's at 1163, 1748.
Dr. Joseph Borio was plaintiff’s chiropractor. Plaintiff does not dispute the weight afforded to his
tenderness, her gait was normal, and the straight leg test was negative
Upon review of the record, the Court agrees with the ALJ’s assessment of Dr. Zogby’s
opinions. Dr. Zogby’s September 2008 opinions regarding plaintiff’s limitations are not
supported by substantial medical evidence. Plaintiff’s physicians at St. Josephs Health Care
Center continually noted that plaintiff was in no acute distress, her motor and strength
examinations were normal, sensory exams were normal and her range of motion was full. In
addition, Dr. Tiso’s notes indicate that plaintiff’s objective medical testing was normal. While
the lumbar MRI report is not part of the record herein, the physicians at St. Joseph’s Health Care
Center and the physicians at the Pain Center, noted that the films were negative/normal.
Moreover, Dr. Zogby’s own objective testing further belies his conclusions. Upon
examination, Dr. Zogby consistently found that plaintiff exhibited negative straight leg raising, a
normal gait and normal strength testing. Dr. Zogby also stated that plaintiff walked “with no
apparent pain or difficulty” finding only that she appeared in “mild pain”. The limitations as
expressed by Dr. Zogby in his September 2008 examination are far more limiting than any
restrictions discussed in his office records and do not coincide with his contemporaneous
findings. Accordingly, the ALJ assigned the appropriate weight to these opinions. See Wynn v.
Astrue, 617 F.Supp.2d 177, 184 (W.D.N.Y. 2009) (the significant limitations were not supported
by objective assessments such as range of motion and strength tests). Although the Court is
aware that deference should be accorded to Dr. Zogby's opinions pursuant to the treating
physician rule, the ALJ articulated “good reasons” for failing to afford the opinions such weight.
See Bennett v. Astrue, 2010 WL 3909530, at *6 (N.D.N.Y. 2010) (citation omitted).
Accordingly, the matter will not be remanded for further consideration of this issue.
The treating physician rule does not apply to consulting doctors. See Goldthrite v.
Astrue, 2008 WL 445770, at *10 (W.D.N.Y. 2008). However, where the ALJ fails to give
controlling weight to opinions from plaintiff's treating sources, the Regulations require an ALJ to
explain the weight given to the opinions of state agency medical consultants. Stytzer v. Astrue,
2010 WL 3907771, at *7 (N.D.N.Y. 2010).
Here, the ALJ was not required to assign controlling weight to Dr. Shayevitz’s opinions
as he was a consulting physician who examined the plaintiff on one occasion. However, because
the ALJ declined to afford “controlling weight” to Dr. Zogby’s opinion, the ALJ was required to
explain the weight he afforded to other medical evidence. In this regard, the ALJ reasoned:
I have given great weight to Dr. Putcha because of her specialty as an
orthopedic surgeon, and her report is based on a review of the
evidence in record.14 I also give some weight to Dr. Ganesh’s
consultative examination because of her programmatic expertise and
because it is based on an examination of the claimant.15 (T. 15).
The ALJ failed to specifically assign weight to Dr. Shayevitz opinions. However, upon
review of the entire decision, it is clear that the ALJ considered and relied upon Dr. Shayevitz’s
opinions. The ALJ referred to Dr. Shayevitz’s examination in the context of discussing plaintiff’s
right shoulder complaints:
Berton Shayevitz, M.D. noted that the examination was lacking in
physical findings in the claimant’s right arm. (T. 11).
The ALJ also cited to Dr. Shayevitz’s findings in a discussion of plaintiff’s daily
Dr. Putcha did not examine plaintiff but performed a review of the record for the agency. Plaintiff does
not contest or dispute the weight afforded to her opinions.
On July 26, 2007, Dr. Kalyani Ganesh performed an internal medicine consultative examination at the
request of the agency. Plaintiff does not contest or dispute the weight afforded to her opinions.
In terms of activities of daily living, the claimant reported being able
to tend to her personal needs; and do light cleaning, laundry and
shopping. Socially the claimant lives with her son and boyfriend,
socializes with her friends, and uses Facebook as a form of
communicating with her friends. With regards to concentration,
persistence or pace, the claimant is able to read, write, watch
television, and use the Internet without any difficulties. (T. 11).
Finally, the ALJ noted that Dr. Shayevitz’s report is consistent with the finding that
claimant was capable of performing light work. (T. 13).
Despite the fact that the ALJ failed to specifically assign weight to Dr. Shayevitz’s
opinion, the ALJ clearly considered the opinion and thus, the Court declines to remand this matter
on that basis. See Barringer v. Comm’r of Social Sec., 358 F.Supp.2d 67, 78 -79 (N.D.N.Y. 2005)
(an ALJ’s failure to cite specific evidence does not indicate that it was not considered).
Plaintiff claims that the ALJ should have considered her efforts to alleviate her pain in
connection with plaintiff’s credibility assessment. Specifically, plaintiff contends that her
“longstanding attempts at pain relief” should enhance her credibility.
“The ALJ has discretion to assess the credibility of a claimant's testimony regarding
disabling pain and to arrive at an independent judgment, in light of medical findings and other
evidence, regarding the true extent of the pain alleged by the claimant.” Marcus v. Califano, 615
F.2d 23, 27 (2d Cir.1979). If plaintiff's testimony concerning the intensity, persistence or
functional limitations associated with his impairments is not fully supported by clinical evidence,
the ALJ must consider additional factors in order to assess that testimony, including: 1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3) precipitating and
aggravating factors; 4) type, dosage, effectiveness and side effects of any medications taken; 5)
other treatment received; and 6) other measures taken to relieve symptoms. 20 C.F.R. §§
404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi). The issue is not whether the clinical and objective
findings are consistent with an inability to perform all substantial activity, but whether plaintiff's
statements about the intensity, persistence, or functionally limiting effects of his symptoms are
consistent with the objective medical and other evidence. See SSR 96–7p, 1996 WL 374186, at
*2 (SSA 1996). One strong indication of credibility of an individual's statements is their
consistency, both internally and with other information in the case record. SSR 96–7p, 1996 WL
274186, at *5 (SSA 1996).
After considering plaintiff's subjective testimony, the objective medical evidence, and any
other factors deemed relevant, the ALJ may accept or reject claimant's subjective testimony.
Saxon, 781 F.Supp.2d at 105 (citing 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)). An ALJ
rejecting subjective testimony must do so explicitly and with specificity to enable the Court to
decide whether there are legitimate reasons for the ALJ's disbelief and whether his decision is
supported by substantial evidence. Melchior v. Apfel, 15 F.Supp.2d 215, 219 (N.D.N.Y.1998)
(quoting Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y.1987) (citations omitted)). The
Commissioner may discount a plaintiff's testimony to the extent that it is inconsistent with
medical evidence, the lack of medical treatment, and her own activities during the relevant period.
Howe–Andrews v. Astrue, 2007 WL 1839891, at *10 (E.D.N.Y.2007).
In this case, the ALJ, citing to SSR 96-7p, found plaintiff “not credible” based upon the
objective medical evidence and her activities of daily living. (T. 13). Having reviewed the
Administrative Transcript in its entirety, the Court finds that the ALJ correctly applied the
standard, enumerated in 20 C.F. R. § 404.1529(c)(3)(i)-(iv), in assessing plaintiff’s credibility.
The ALJ discussed plaintiff’s daily activities noting that she was able to grocery shop, do
household chores, use the Internet/Facebook, read, play Scrabble and help her son with his
homework. (T. 14). The ALJ also commented on plaintiff’s pain, the duration of the pain,
aggravating factors, plaintiff’s medication and plaintiff’s attempts to alleviate her pain:
The claimant also reported having neck pain everyday. She indicated
that any activity would exacerbate her pain. More specifically, she
cannot sit for more than an hour, and can only walk for a couple of
minutes. In addition, she is unable to walk too far due to shooting
pain in her leg. Despite taking medication for her pain five times a
day, she testified that she still has pain, and is chronically fatigued.
The claimant is unable to drive or visit with friends and family. A side
effect of her medication includes constipation, which has caused
abdominal pain. She also pursued non-surgical treatments for her
back pain, such as medication, injections, physical therapy and
transforaminal block; yet, the claimant’s symptoms still remain. (T.
The ALJ found plaintiff less than credible because the objective medical testing, including
MRI films and clinical findings do not support her testimony. To wit, in February 2004, plaintiff
advised her doctors at St. Joseph’s Health Care Center that her low back pain “is much improved”
and that she “doesn’t really have any complaints currently”. (T. 360). Moreover, plaintiff
discussed her activities of daily living with Dr. Shayevitz and Dr. Kalyani Ganesh. (T. 475).
Plaintiff stated that she could cook, clean, do laundry and light chores (with the exception of
vacuuming and sweeping). Plaintiff could care for her personal needs, watch television and read.
She lived with her significant other, her two children and her two grandchildren. Plaintiff also
stated that she liked to socialize with friends. (T. 343).
Plaintiff argues, without factual or legal support, that the ALJ should have found her
credible based upon her persistent efforts to obtain relief from pain. Plaintiff refers to her
frequent use of prescription medication and the gastrointestinal side effects; her chiropractor
visits and the fact that she received six nerve blocks. Based upon the record, the ALJ properly
assessed plaintiff’s treatment and applied the Regulations. In October 2003, plaintiff received
seven chiropractic treatments. (T. 228). There is no further evidence of any chiropractic
treatment. Plaintiff had four physical therapy treatments in 2005 and nine sessions in 2006. (T.
300). Plaintiff has not had any physical therapy since November 2006. With regard to nerve
blocks, as with all of plaintiff’s medical treatment, the time in between treatments was lengthy.
In 2007, Dr. Shaff suspected the plaintiff was abusing Lortab and other pain medications.
Plaintiff claims that she “persistently” sought to alleviate her pain, however the substantial
medical evidence does not support such efforts sufficient to warrant an enhancement of her
“To the extent the ALJ's RFC findings rested on his determination of plaintiff's credibility,
it was ‘within the discretion of the [Commissioner] to evaluate the credibility of plaintiff's
complaints and render an independent judgment in light of the medical findings and other
evidence regarding the true extent of such symptomatology’”. Cohen v. Astrue, 2011 WL
2565659, at *22 (S.D.N.Y. 2011) (citations omitted). Taken as a whole, the record supports the
ALJ’s determination that plaintiff was not entirely credible. The Court finds that the ALJ
employed the proper legal standards in assessing the credibility of plaintiff's complaints of pain
and adequately specified the reasons for discrediting plaintiff's statements.
Plaintiff claims that the ALJ’s RFC determination that plaintiff could perform the full
range of “light work” is not supported by substantial evidence.
Residual functional capacity is:
“what an individual can still do despite his or her limitations . . . .
Ordinarily, RFC is the individual's maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and
continuing basis, and the RFC assessment must include a discussion of
the individual's abilities on that basis. A ‘regular and continuing basis’
means 8 hours a day, for 5 days a week, or an equivalent work
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, Policy Interpretation Ruling
Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims (“SSR 96-8p”), 1996
WL 374184, at *2 (S.S.A. July 2, 1996)). In making the RFC determination, the ALJ must
consider a claimant’s physical abilities, mental abilities, symptomology, including pain and other
limitations which could interfere with work activities on a regular and continuing basis. 20
C.F.R. § 404.1545(a).
Here, the ALJ found that plaintiff had the RFC to perform a full range of light work.
Plaintiff argues that the ALJ failed at Step Five of the sequential analysis based upon the same
arguments asserted above. The Court has determined that the ALJ assigned the appropriate
weight the medical opinion evidence and properly assessed plaintiff’s credibility. Thus, the Court
finds that the ALJ employed the correct legal standards and that substantial evidence supports the
ALJ’s RFC determination.
IT IS HEREBY,
ORDERED, that the decision denying disability benefits be AFFIRMED; and it is further
ORDERED that defendant's motion for judgment on the pleadings (Dkt. No. 9) is
GRANTED; and it is further
ORDERED that plaintiff's complaint is DISMISSED; and it is further
ORDERED that pursuant to General Order # 32, the parties are advised that the referral to
a Magistrate Judge as provided for under Local Rule 72.3 has been RESCINDED, as such, any
appeal taken from this Order will be to the Court of Appeals for the Second Circuit, and it is
ORDERED that the Clerk of Court enter judgment in this case.
IT IS SO ORDERED.
Dated: February 7, 2012
Albany, New York
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