Tilbe v. Astrue
MEMORANDUM DECISION AND ORDER. ORDERED that the Report-Recommendation is rejected with respect to the treating physician rule and credibility; and it is further ORDERED that the Report-Recommendation is otherwise accepted in its entirety; and it is further ORDERED that this matter is remanded to the Commissioner of Social Security for further development of the record and reconsideration of the treating physician rule, plaintiff's credibility, and any issues that arise as a result of the reconsideration of those issues; and it is further ORDERED that judgment be entered for plaintiff. Signed by Judge Norman A. Mordue on 7/17/2012. (dpk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Olinsky & Shurtliff
300 South State Street
Syracuse, New York 13202
Howard D. Olinsky, Esq.
Peter W. Jewitt
Social Security Administration
Office of Regional General Counsel
26 Federal Plaza - Room 3904
New York, New York 10278
Special Assistant U.S. Attorney
Hon. Norman A. Mordue, U.S. District Judge
MEMORANDUM DECISION AND ORDER
Plaintiff Daniel Tilbe brings this action under the Social Security Act, 42 U.S.C. §§ 405(g)
and 1383(c)(3), seeking judicial review of the decision by defendant Michael J. Astrue,
Commissioner of Social Security, to deny his application for supplemental security income
benefits (“SSI”) and disability insurance benefits (“DIB”). Plaintiff alleges that he has been
disabled since February 1, 2005, due to bilateral carpal tunnel syndrome, asthma, obesity,
borderline intellectual functioning with reading disorder, lumbar radiculopathy, shoulder
impingement syndrome, and sleep apnea. Administrative Transcript “T.” at 86-95.
On October 23, 2006, plaintiff filed an application benefits under the Social Security Act.
Following an initial denial of his application, T. 51-52, plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). T. 61-62. On December 15, 2008, ALJ Michael Devlin held
a hearing. T. 20-50. Plaintiff appeared at the hearing with his attorney. T. 20. On February 19,
2009, the ALJ issued a decision denying plaintiff’s application. T. 10. On July 16, 2010, the
Appeals Council denied plaintiff’s request for review making the ALJ’s decision the
Commissioner’s final determination. T. 1-5. Plaintiff filed this action on July 26, 2010.
This matter was referred to United States Magistrate Judge Andrew T. Baxter for a Report
and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d). Magistrate
Judge Baxter recommended that this Court enter judgment on the pleadings affirming the
Commissioner’s decision denying disability benefits and dismissing plaintiff’s claims. Presently
before the Court are plaintiff’s objections to the Report and Recommendation.
Magistrate Judge Baxter included a thorough summary of the medical evidence, non-
medical evidence, and hearing testimony. The Court incorporates this summary, to which there is
no objection, here:
A. Anna Marie Ward, M.D.
The earliest medical report in this case is from physician Anna Marie Ward,
who treated plaintiff from May 11, 2005 until July 3, 2006. (T. 178-91). On May 11,
2005, approximately three months after plaintiff claims that he became disabled, Dr.
Ward treated him for wrist pain. (T. 190-91). Dr. Ward stated that plaintiff had always
had neck pain from a “prior accident.” (T. 190). She found good range of motion and
reflexes in the left shoulder, but with some tenderness. Id. She also diagnosed carpal
tunnel syndrome on the left side. (T. 191). On January 23, 2006, Dr. Ward stated that
plaintiff was having breathing problems at night, and in February, she scheduled a
sleep study for March. (T. 184, 186). On May 31, 2006, Dr. Ward noted that plaintiff
had pain in his left hand, carpal tunnel syndrome, and trigger fingers. (T. 181).
B. Hospital Records
On February 10, 2006, plaintiff was admitted to Chenango Memorial Hospital,
stating that, the day before, he woke up on the floor at the bottom of the cellar stairs.
(T. 166). Plaintiff stated that he had no recollection of what happened, and his injuries
consisted of a sore lump on his head with a small abrasion, a sore back, and a sore
abdomen. (T. 166). His examination showed a contusion and small abrasion in the
parietal area of the scalp, some tenderness in the periumbilical area of the low back,
and some tingling in the right leg and foot, on light touch. (T. 166-67). A CT scan of
plaintiff’s brain was normal, and an x-ray of plaintiff’s lumbosacral spine showed no
acute changes. (T. 167). His EKG showed sinus bradycardia with questionable left
ventricular hypertrophy and questionable anterior infarct of undetermined age. (T.
167). His strength and motion were normal. (T. 169). He was discharged from the
hospital the following day on his usual diet and “activity as tolerated.” (T. 167). He
was given Vicodin for pain, and he resumed his Lisinopril,[FN3: Lisinopril is a
medication used to treat high blood pressure.
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000917/] and albuterol inhaler. Id.
Dr. Anthony Chicoria saw plaintiff about his wrist on August 16, 2006. (T.
192-93). An EMG study showed that plaintiff had significant carpal tunnel syndrome,
for which plaintiff had surgery on August 24, 2006. (T. 192-96). The operative report
showed that there was severe nerve compression on the left side, but the release was
successful. (T. 193, 196). In addition to the carpal tunnel release, the doctor
performed a release of the A1 pulley of the third and fourth fingers. (T. 193).
C. Dr. Kalyani Ganesh
On December 1, 2006, Dr. Kalyani Ganesh conducted an internal medicine
consultative examination. (T. 203-210). Plaintiff’s diagnoses were sleep apnea, status
post left carpal tunnel surgery, and hypertension. (T. 206). Dr. Ganesh noted that
plaintiff had left carpal tunnel surgery and would likely need to have surgery on the
right side because he was still experiencing some numbness and pain. (T. 203).
Plaintiff was five feet, six inches tall and weighed 326 pounds. (T. 204). Plaintiff was
able to walk on his toes, but not his heels and could squat only 50 percent. (T. 204).
His gait and stance were normal, and he did not use any assistive devices. Id. He
needed no help changing for the examination, getting on and off the examination
table, and was able to rise from his chair without difficulty. Id.
A musculoskeletal examination of the cervical spine showed full flexion, full
extension, lateral flexion of 25 degrees bilaterally, and full rotary movement
bilaterally. (T. 205). There was no scoliosis, kyphosis, or abnormality of the thoracic
spine. Id. The lumbar spine showed full flexion, extension, lateral flexion, and full
rotary movement bilaterally. Id. Straight leg raising was negative on both sides, and
there was full range of motion of the shoulders, elbows, forearms and wrists on both
sides. Id. Plaintiff also had full range of motion in his hips, knees, and ankles.
Strength was 5/5 in his upper and lower extremities, and there were no evident
sublaxations, contractures, ankylosis or thickening. His joints were stable and
Biceps and triceps reflexes were absent, and his ankle jerks were absent, but
patellar reflexes were normal, and no motor or sensory deficit was noted. (T. 205).
His hand and finger dexterity were intact, and his grip strength was 5/5 bilaterally. Dr.
Ganesh stated that muscle atrophy was not “evident.” (T. 205). Spirometry testing was
normal, and the doctor noted that plaintiff put forth “little” effort. Id. Dr. Ganesh’s
conclusion was that plaintiff’s prognosis was “fair,” and that there were “no gross
physical limitation . . . to sitting, standing, walking, or use of upper extremities.” (T.
D. Dennis M. Noia, Ph.D.
On the same day as Dr. Ganesh’s examination, plaintiff also underwent a
consultative “Intelligence Evaluation” by Dennis Noia, Ph.D. (T. 198-202). Dr. Noia
conducted various tests. (T. 200). The intelligence test results indicated that plaintiff
had a Verbal Scale IQ of 77, a Performance Scale IQ of 72, and a Full Scale IQ of 72.
(T. 200). Overall, plaintiff was functioning in the borderline range of intelligence. Id.
Plaintiff’s reading tests showed that he read at a second grade equivalent, and that this
was significantly lower that his overall level of intellectual functioning, suggesting
the presence of a reading disorder. Id.
Dr. Noia concluded that vocationally, the plaintiff appeared to be capable of
understanding and following simple instructions and directions. (T. 201). He also
concluded that plaintiff would be able to perform simple and some complex tasks with
supervision and independently. (T. 201). He was capable of maintaining attention and
concentration for tasks as well as being able to regularly attend to a routine and
maintain a schedule. Id. He appeared to be capable of learning new tasks and making
appropriate decisions. Id. He appeared to be capable of dealing with stress and to be
able to interact “moderately well” with others. Id. Dr. Noia concluded that the results
of the examination were “consistent with borderline intellectual functioning and a
reading disorder.” (T. 201).
E. Dr. Steven A. Levine, D.O.
Plaintiff was treated for his sleep apnea by Dr. Levine. On April 14, 2008,
plaintiff was admitted to the Mohawk Valley Sleep Disorders Center for a
consultation. (T. 241-43). He was tested on May 12, 2008 with a continuous positive
airway pressure (CPAP) machine. (T. 244-50). The CPAP machine eliminated the
obstructive sleep apnea syndrome with “significant improvement in sleep quality,”
and plaintiff reporting that his sleep was “‘much better than average.’” (T. 245). In
June of 2008, Dr. Levine reported that plaintiff’s sleep apnea syndrome was
eliminated with the CPAP machine and was “currently . . . doing extraordinarily
well.” (T. 239) (emphasis added). At that time, plaintiff had also stopped smoking and
was considering bariatric surgery for his morbid obesity. Id.
F. Michael Walsh, M.D. [FN4: Some of the reports refer to Michael Walsh, M.D., and
other reports refer to Michael Walsh, D.O. (Compare T. 264 with T. 301).]
After the ALJ hearing, plaintiff’s counsel submitted some additional medical
records that became part of the administrative transcript. (T. 260-340). Dr. Walsh
began seeing this plaintiff in February of 2008 (T. 335-40), and saw him every three
to five months. (T. 261). Plaintiff was examined on June 2, 2008. (T. 305-08). In that
report, Dr. Walsh stated that there were “positive impingement signs bilaterally” and
straight leg raising was positive on the left. (T. 307). He “added” the diagnosis of left
shoulder impingement syndrome and lumbar radiculopathy. (T. 307). In the comments
section of his June 2 report, Dr. Walsh stated that plaintiff was morbidly obese, and
had degenerative spinal changes with limited functional capacity. He recommended
physical therapy for his left shoulder. (T. 307).
In a “functional capacity” evaluation, also dated June 2, 2008, Dr. Walsh
found that plaintiff could lift ten pounds occasionally; stand or walk two hours per
day; and sit for less than six hours per day. (T. 267). Dr. Walsh checked boxes
indicating “abnormal” on various abilities, including repetitive stooping and bending
for long periods; remaining seated for long periods; crouching or squatting; and
climbing. (T. 267). However, the doctor checked boxes indicating “normal” as to all
mental abilities, including understanding, carrying out and remembering instructions;
responding to co-workers; meeting quality standards and production norms; and
sustaining adequate attendance. Id. Plaintiff’s manipulative abilities were also
considered “normal.” Id.
In a report, dated October 8, 2008, plaintiff’s “chief complaint” was listed as
“disability paperwork.” (T. 298). Dr. Walsh stated that plaintiff reported pain from the
lumbar spine radiating to his left lower extremity and the lateral aspect of his lower
leg. (T. 298). Plaintiff stated that he felt this pain intermittently to the level of his right
knee also. Id. The doctor noted that plaintiff “had an MRI completed several years
ago” which showed “herniation at L5-S1.” Id. There was no chest pain or shortness
of breath, and no sensory loss reported. Id. An examination showed positive straight
leg raising bilaterally, but normal gait. (T. 300). The examination also showed
diminished sensation to pinprick in his feet, but his strength was symmetric. (T. 300).
In an RFC evaluation, dated October 8, 2008, Dr. Walsh stated that plaintiff
could sit, stand, and walk 1-2 hours. (T. 304). The same RFC evaluation stated that
plaintiff could not lift, carry, push, pull, bend, or squat “in any capacity.” Id. He had
no limitations hearing, speaking, or using his hands. Id. All mental abilities were
intact, except for the ability to maintain basic standards of personal grooming, which
the doctor found that plaintiff was able to do with some limitations (2-4 hours). Id.
In his December 15, 2008 RFC evaluation, Dr. Walsh listed the following
diagnoses: diabetes mellitus; obstructive sleep apnea; morbid obesity; and left lumbar
radiculopathy. (T. 261). Due to these impairments, Dr. Walsh stated that plaintiff had
a variety of symptoms. (T. 261). These symptoms included fatigue, difficulty walking,
excessive thirst, swelling, muscle weakness, extremity pain and numbness, and
dizziness or loss of balance. Id. In paragraph 6, entitled “Clinical Findings,” Dr.
Walsh wrote that plaintiff had decreased strength in his left hand and required an
assistive device for “ambulation steadiness.” Id.
Dr. Walsh concluded that plaintiff’s impairments would frequently interfere
with the concentration and attention needed to perform even simple work tasks, but
he could tolerate “moderate work stress.” (T. 262). Dr. Walsh stated that plaintiff
could sit for less than two hours total in an 8-hour work day; could walk less than one
block; could only sit ten minutes at a time; could only stand fifteen minutes at a time,
and must walk “around” every fifteen minutes for two minutes. (T. 263). Plaintiff
would need to shift positions “at will” and would have to take unspecified
unscheduled breaks during the day. Id. On his unscheduled breaks, plaintiff would
have to sit quietly for fifteen minutes before returning to work.
Dr. Walsh also concluded that plaintiff could lift and carry ten pounds, could
rarely twist or stoop, and could never crouch, squat, or climb. (T. 263-64). The doctor
did find that plaintiff would have no significant limitations reaching, handling, or
fingering. (T. 264). However, the doctor then stated that plaintiff could only use his
hands 50% of the time for grasping, turning or twisting objects; 70% of the time for
fine manipulations; and could only use his arms 20% of the time for reaching. (T.
264). Finally, Dr. Walsh stated that plaintiff’s impairments were likely to produce
“good days” and “bad days,” and that, based on this estimate, plaintiff would have to
be out of work about “three days per month.” Id.
G. Kenneth Graniero, M.D.
On June 11, 2008, plaintiff had a bariatric surgery consultation with Dr.
Kenneth Graniero, M.D. (T. 276-78). In an examination, plaintiff “denie[d]” back
pain, joint pain, joint swelling, muscle cramps, muscle weakness, stiffness or arthritis,
paralysis, weakness, paresthesias, syncope, vertigo, and a variety of other symptoms.
(T. 276) (emphasis added). A physical examination showed full range of motion, no
instability, and no weakness in any part of the body. (T. 277). A neurologic
assessment showed no focal deficits, deep tendon reflexes were symmetric, and
sensation was grossly intact. (T. 277). Dr. Graniero’s psychiatric assessment showed
that plaintiff’s judgment and insight were “intact,” he was properly oriented to time,
place and person, and he remembered recent and remote events. Id. There was no
depression, anxiety, or agitation. Id.
H. Physical Therapy Evaluation. Timothy T. Francisco, P.T.
On June 16, 2008, plaintiff was given a physical therapy evaluation. (T.
281-82). Plaintiff had this evaluation because he stated that he began having pain one
year earlier “after a cow hit his shoulder with her head.” (T. 281). The therapist wrote
that plaintiff had signs of left AC (acromioclavicular) joint sprain. Id. Plaintiff had left
shoulder flexion of 150 degrees and left shoulder abduction of 100 degrees. Id.
Leftsided shoulder muscle strength upon flexion, was 4+ out of 5; 4/5 upon abduction;
and 5/5 upon internal and external rotation. Id. Passive range of motion on the left
side was 170 degrees on flexion and 135 on extension. Id. The therapist’s plan was
to have plaintiff attend therapy three times per week for eight weeks to increase range
of motion and strength. Id.
Non-Medical Evidence and Testimony
At the time of the hearing, plaintiff was 47 years old and completed the 10th
grade in school. (T. 25, 27). He testified, however, that he did not take regular classes,
but was in “special ed.” (T. 27). He stated that he dropped out of school when he was
17, and that the hardest part of school was reading and writing. (T. 27). He told the
judge that he did not read or write well at all. (T. 27). Plaintiff stated that, while he
was in school, he took vocational training classes in “small engine repair.” (T. 27).
After he dropped out of school, he went to the Job Corps and was given some training
in electrical work, more specifically, commercial wiring, however, he did not work
in that field because he could not pass the test for his electrical license. (T. 28). He
testified that while he was in the Job Corps, they did the reading and spelling for him,
but when he had to take the test by himself, he could not complete it. (T. 29). Plaintiff
testified that he tried to read newspaper articles, comics, and captions under pictures.
(T. 48). However, he stated that he could not understand the articles, and had to have
help filling out his Social Security application. Id.
Plaintiff testified that he became disabled on February 1, 2005 because he
began having back pain, and although he attempted to work at different jobs, he could
not do the paperwork. (T. 29-30). Plaintiff testified that he attempted to work at a fast
food restaurant, but could not “do all the paperwork.” (T. 31). He tried to do security
work, but could not pass the test. (T. 31). However, he was a security guard for a
period of time and a truck driver. (T. 32-34). Plaintiff claimed that he could not work
as a truck driver because he could not fill out the log books. (T. 34). Plaintiff also
worked as a taxi cab driver, but “couldn’t get hired.” (T. 34-35).
Plaintiff testified that the biggest problem keeping him out of work is his
inability to sit, stand, and walk for a period of time due to his low back pain. (T. 3536). Plaintiff stated that his treating physician is Dr. Walsh, who prescribed a cane for
plaintiff. (T. 36). Plaintiff also claimed that he had trouble with his “trigger” fingers
that “still lock up.” (T. 37). Plaintiff stated that he had carpal tunnel syndrome on both
the right and left side, and had two surgeries on the left wrist. (T. 37). The ALJ then
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appeared to be “fairly well controlled.” (T. 39). Plaintiff also claimed that, a few years prior to the
hearing, he had dizziness, lost his balance, and fell down a flight of stairs. (T. 40). Plaintiff also had
some testing for his heart. (T. 40).
He was 5'7" tall, and weighed 343 pounds. (T. 25). By the time of the hearing,
plaintiff was separated from his wife and lived alone in a two story, single family
home. (T. 26). Plaintiff testified that he no longer used the upstairs. (T. 27). Plaintiff
stated that due to his sleep apnea, he did not sleep well at night, causing him to “doze
off” for 15 or 20 minutes, two or three times during the day. (T. 41). Plaintiff testified
that he was taking “a whole bunch” of medication. Id. The ALJ asked whether any of
the medications gave plaintiff side-effects, and plaintiff stated that one of the
medications caused increased necessity to urinate so that he would have to have
“more than” typical breaks during the day to accommodate this side-effect. (T. 43).
Plaintiff complained of being uncomfortable sitting during the hearing. (T.
44). Plaintiff testified that he was uncomfortable even sitting at home in his “Lazy
[sic] Boy” chair. Id. He stated that although he cooked microwave meals for himself,
he used paper plates and plastic utensils because he could no longer do the dishes. Id.
He goes grocery shopping, but uses an electric cart to get around the store. Id. His
sister comes to help him clean the house and do the laundry, and plaintiff hires
someone to mow the lawn. (T. 45). Although plaintiff testified that he could drive, he
stated that he generally only drove back and forth to the store and doctors’ offices. (T.
Plaintiff testified that he could only sit for 10 to 15 minutes before he had to
get up and move around. (T. 46). He estimated that he could only walk one half of a
city block before he had to sit down and rest. Id. Plaintiff also estimated that he
could carry approximately 10 pounds about half way across the room. Id. Plaintiff
stated that he “tried different weights,” and that he has to use both hands to carry a
gallon of milk or he will drop it. (T. 47). Plaintiff claimed that he even dropped items
as light as coffee cups and pens. Id. He stated that he could not bend over and only
wore shoes that he could “slip on.” Id.
Report-Recommendation, Dkt. No. 15, pp.5-16.
To be eligible for Social Security disability benefits, a claimant must establish “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
"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 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
In this case, the ALJ found at step one that plaintiff has not engaged in substantial gainful
activity since February 1, 2005, the alleged onset date. T. 12.
At step two, the ALJ found that plaintiff “has the following ‘severe’ impairments: bilateral
carpal tunnel syndrome, asthma, obesity, and borderline intellectual functioning with reading
disorder”. T. 13. The ALJ also found that plaintiff’s “sleep apnea, hypertension, diabetes and
heart problems are not ‘severe’ in that they do not more than minimally affect the claimant’s
ability to engage in basi[c] work activities individually or in combination.” T. 14.
At step three, the ALJ found that plaintiff did not “have an impairment or combination of
impairments that meets or medically equals one of the listed impairments.” T. 14.
Prior to step four, which requires a determination of whether the claimant can perform
past relevant work, the ALJ found that plaintiff:
has the residual functional capacity to perform the full range of sedentary work . . .
except the claimant must avoid concentrated exposure to fumes, odors, dusts, gases,
poor ventilation, and other respiratory irritants; and the claimant can perform simple
and some complex tasks in a competitive work environment on a regular and
T. 16. The ALJ based his residual functional capacity determination on the opinions of plaintiff’s
treating source, Dr. Walsh, and the consultative examiner for the Administration, Dr. Ganesh. T.
17. The ALJ gave the opinions of Drs. Walsh and Ganesh “some weight”. T. 17. When
evaluating plaintiff’s mental limitations, the ALJ gave “great weight” to the opinion of the
Administration’s examining psychological consultant, Dr. Noia, and “some weight” to the “non-
examining review psychologist”. T. 18. The ALJ found that while plaintiff’s impairments “could
reasonably be expected to cause” the symptoms he allegedly suffered, plaintiff’s statements
concerning the intensity, persistence and limiting effects” of his symptoms were not credible “to
the extent they are inconsistent with” the residual functional capacity determination. T. 17.
At step four, the ALJ found that plaintiff, a former truck driver, could not “perform any
past relevant work.” T. 18.
At step five, the ALJ considered plaintiff’s age, education, work experience, and residual
functional capacity and concluded that because plaintiff’s limitations did not “significantly erode
the sedentary occupational base”, Medication-Vocational Rule 201.25 and 201.19 directed a
“finding of ‘not disabled’”. T. 19.
The Magistrate Judge found: (1) the ALJ’s determination, at step two, that plaintiff’s
lumbar radiculopathy, shoulder impingement syndrome, and sleep apnea were not “severe”
impairments, was supported by substantial evidence; (2) the ALJ did not err in failing to find that
plaintiff’s impairments met Listing 1.04; (3) the ALJ’s decision to accord the opinion of
plaintiff’s treating physician, Dr. Walsh, “some weight”, is supported by substantial evidence; (4)
the ALJ’s residual functional capacity determination is supported by substantial evidence; (5) the
ALJ’s credibility finding is supported by substantial evidence; and (6) the ALJ properly relied on
the Medical-Vocational Guidelines; a vocational expert was not required. Plaintiff objects to
every aspect of the Report-Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part
of a Magistrate’s Report and Recommendation to which a party specifically objects. Failure to
object to any portion of a Magistrate’s Report and Recommendation operates as a waiver of
further judicial review of those matters. See Roland v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Small v. Sec. of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether plaintiff is disabled. Rather, the Court must examine the
administrative transcript to ascertain whether the correct legal standards were applied, and
whether the decision is supported by substantial evidence. See Shaw, 221 F.3d at 131; Schaal v.
Apfel, 134 F.3d 496, 501 (2d Cir. 1998). “Substantial evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Curry v. Apfel, 209 F.3d
117, 122 (2d Cir. 2000) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal
quotation marks and citation omitted). An ALJ is obligated to develop the record regardless of
whether claimant is represented by counsel. See Shaw, 221 F.3d at 131.
Step Two - Severe Impairment
Plaintiff argues that the Magistrate Judge applied the wrong standard when evaluating
whether the record supported plaintiff’s claims that his back, shoulder, and sleep apnea are severe
impairments. Plaintiff further argues that the Magistrate Judge “cherry-picked” evidence to
support his conclusion.
Plaintiff has the burden at step two in the sequential evaluation process to demonstrate the
severity of his impairment. See 20 C.F.R. § 404.1520(c). An impairment is severe if it
significantly limits physical or mental abilities to do basic work activities. 20 C.F.R. §§
404.1520(c), 416.920(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) (holding that it does not
appear possible for an impairment to be less than “severe” but “more than slight or minimal,”
because “severe” includes the entire range above slight or minimal).
The ALJ found that plaintiff’s carpal tunnel syndrome, asthma, obesity, and borderline
intellectual functioning were “severe” impairments. The ALJ, however, found that plaintiff’s
back and shoulder impairments were not severe because there were no radiological reports in the
record suggesting either impairment and plaintiff specifically told Dr. Graniero that he had no
back pain, joint pain, or joint swelling. The ALJ acknowledged that plaintiff had sleep apnea but
found that it was not a severe impairment because it did not affect plaintiff’s ability to engage in
basic work activities “more than minimally”. Even if the ALJ erred in failing to find plaintiff’s
back and shoulder impairments and sleep apnea, alone or in combination, to be severe
impairments, such an error is harmless in this case. The ALJ did find a number of plaintiff’s
conditions to be severe impairments, and proceeded to step three. Further, notwithstanding his
previous finding that these conditions were not severe, the ALJ considered their impact on
plaintiff’s residual functional capacity. Accordingly, the Court finds plaintiff’s objection
regarding step two is without merit.
At step three, the ALJ considered whether plaintiff had an impairment or combination of
impairments that met or equaled a listed impairment. Plaintiff contends that the ALJ should have
found, at step three, that his back impairment met Listing 1.04, “Disorders of the spine”, and
argues that the Magistrate Judge “inappropriately excused the ALJ from engaging in meaningful
rationale at step 3".
“The Social Security regulations list certain impairments, any of which is sufficient, at
step three, to create an irrebuttable presumption of disability.” DeChirico v. Callahan, 134 F.3d
1177, 1180 (2d Cir. 1998) (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). “The regulations also
provide for a finding of such a disability per se if an individual has an impairment that is ‘equal
to’ a listed impairment.” Id. (citing 20 C.F.R. 404.1520(d) (“If you have an impairment(s) which .
. . is listed in appendix 1 or is equal to a listed impairment(s), we will find you disabled without
considering your age, education, and work experience.”)).
Individuals suffering a disorder of the spine are disabled per se if they meet the criteria
specified in the regulations. The listing plaintiff claims the ALJ should have considered is Listing
1.04(A) which states:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture),
resulting in compromise of a nerve root (including the cauda equina) or the spinal
A. Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test (sitting and supine)
20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.04.
There is a reference in Dr. Walsh’s report dated October 8, 2008, to a “MRI completed
several years ago.” T. 298. Dr. Walsh noted that the “[r]eport shows herniation at L5-S1.” T.
298. As discussed in section V.D. of this Memorandum Decision and Order, that MRI is not in
the record. Even assuming, however, that plaintiff could satisfy the first element, and show disc
herniation, his impairment does not meet all the specified medical criteria of Listing 1.04(A),
which include: limitation of motion of the spine, motor loss, sensory or reflex loss, and positive
straight-leg raising. To qualify for benefits at step three, claimants must show that their
impairments “meet all of the specified medical criteria” for the particular listing. Sullivan v.
Zebley, 493 U.S. 521, 530 (1990). Dr. Ganesh’s notes state that plaintiff’s “cervical spine shows
full flexion, full extension, lateral flexion 25 degrees bilaterally, and full rotary movement
bilaterally.” T. 205. “Lumbar spine shows full flexion, extension, lateral flexion bilaterally, and
full rotary movement bilaterally.” T. 205. Even assuming Dr. Ganesh’s finding that plaintiff’s
“lateral flexion 25 degrees bilaterally” met the “limitation of motion of the spine” criterion, that
Dr. Walsh’s finding that plaintiff had sensory loss in his feet, met the “sensory or reflect loss”
criterion, and that Dr. Walsh’s finding that plaintiff had “positive straight leg raising” met the
“positive straight-leg raising test”, there is no objective evidence in the record showing “motor
loss”. Indeed the only evidence on that score is plaintiff’s complaint to Dr. Walsh that “[h]e feels
like he has been having episodes lately where he feels like legs feel weak.” T. 298. Accordingly,
any error in the ALJ’s failure to consider whether plaintiff’s impairment met or equaled Listing
1.04 is harmless because no view of the evidence would support a finding that plaintiff’s
impairment met all the specified medical criteria of Listing 1.04.
Residual Functional Capacity
Plaintiff argues that the residual functional capacity determination is the product of legal
error because the ALJ failed to include a function by function assessment of plaintiff’s mental
limitations. 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 a residual functional capacity 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).
With respect to a mental impairment, “[i]n the event the impairment is deemed severe, but
does not meet or equal a listed mental disorder, the Commissioner next analyzes the claimant's
RFC”. White v. Comm’r of Soc. Sec., 2008 WL 820177, at *8 (N.D.N.Y. 2008) (citing 20 C.F.R.
§§ 404.1520a(d)(3), 404.1545(c), 416.920a(d)(3), 416.945(c)). “Use of the four broad functional
categories outlined in § 416.920a to determine whether a claimant's impairments are ‘severe’ is
not equivalent to a mental RFC assessment.” Rosado v. Barnhart, 290 F.Supp.2d 431, 441
(S.D.N.Y. 2003) (holding that the use of the “B” criteria to determine whether the plaintiff’s
impairments are “severe” is a separate and distinct step from assessing her mental RFC, which is
expressed as work-related functions). SSR 96-8p requires a more detailed assessment than the
criteria used to rate the severity of mental impairments. Id. (citing 20 C.F.R. Pt. 404 , Subpt. P.
App. 1 § 12.00(A) (finding that the RFC assessment “complements” the “B” criteria by requiring
consideration of an expanded list of work-related capacities that may be affected by mental
disorders)). If an ALJ finds that the claimant suffered from any mental impairment, “no matter
how unsevere”, he has the duty to take that into account when determining plaintiff’s capabilities.
Gray v. Astrue, No. 04 Civ. 3736, 2007 WL 2874049, at *7 (S.D.N.Y. Oct. 3, 2007).
When determining mental RFC, the ALJ is required to itemize various functions contained
in the broad categories outlined in § 416.920a. See SSR 96-8p, 1996 WL 374184, at *4. The
particular functions that must be assessed are the basic work-related mental activities specified by
the regulations - such as limitations in understanding, remembering, and carrying out instructions,
and in responding appropriately to supervision, co-workers, and work pressures in a work
setting-to such a degree as to reduce his or her ability to do past relevant work and other work.
See 20 C.F.R. §§ 404.1520a(d)(3), 404.1545(c), 416.920a(d)(3), 416.945(c); see also White, 2008
WL 820177, at *8; see also Pabon v. Barnhart, 273 F.Supp.2d 506, 516 (S.D.N.Y. 2003).
SSR 85-16 sets forth what evidence the Commissioner should consider when assessing a
claimant's mental residual functional capacity, and provides:
The determination of mental RFC involves the consideration of
evidence, such as:
History, findings, and observations from medical sources (including
psychological test results), regarding the presence, frequency, and
intensity of hallucinations, delusions or paranoid tendencies;
depression or elation; confusion or disorientation; conversion
symptoms or phobias; psychophysiological symptoms; withdrawn or
bizarre behavior; anxiety or tension.
When a case involves an individual . . . who has a severe
impairment(s), which does not meet or equal the criteria in the Listing
of Impairments, the individual's RFC must be considered in
conjunction with the individual's age, education, and work experience.
While some individuals will have a significant restriction of the ability
to perform some work-related activities, not all such activities will be
precluded by the mental impairment. However, all limits on
work-related activities resulting from the mental impairment must be
described in the mental RFC assessment.
SSR 85-16, Policy Interpretation Ruling Titles II and XVI: Residual Functional Capacity for
Mental Impairments, 1985 WL 56855, *2 (S.S.A. 1985).
Here, at step two of the sequential analysis, the ALJ found that plaintiff had “borderline
intellectual functioning with reading disorder”. T. 13. Dennis Noia, Ph.D. conducted a
consultative “Intelligence Evaluation” and concluded that plaintiff was functioning in the
borderline range of intelligence and had a reading disorder. T. 200. Dr. Noia concluded that
vocationally, plaintiff appeared capable of: understanding and following simple instructions and
directions; performing simple, and some complex, tasks; maintaining attention and concentration;
regularly attending to a routine; maintaining a schedule; learning new tasks; making appropriate
decisions; dealing with stress; and interacting “moderately well” with others. T. 201.
A non-examining psychologist, E. Kamin, completed a “psychiatric review” and found
plaintiff’s “Impairment(s) Not Severe”. T. 217. Kamin noted:
The clmt is a 45 year old male who alleges disability due to a learning disability and
inability to read and write. The clmt has a history of having dropped out of school in
the 9th grade, and then receiving his GED. [Testing] revealed scores indicative of
borderline intellectual functioning and therefore his impairment is felt to be nonsevere.
Here, the ALJ acknowledged the applicable Regulations and his duty in formulating the
The limitations identified in the “paragraph B” and “paragraph C”
criteria are not a residual functional capacity assessment but are used
to rate the severity of mental impairments at steps 2 and 3 of the
sequential evaluation process. The mental residual functional capacity
assessment used at steps 4 and 5 of the sequential evaluation process
requires a more detailed assessment by itemizing various functions
contained in the broad categories found in paragraphs B and C of the
adult mental disorders listings in 12.00 of the Listing of Impairments
(SSR 96-8p). Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found
in the “paragraph B” mental function analysis. T. 16.
The ALJ summarized Dr. Noia’s opinion and noted Kamin’s opinion. The ALJ afforded
“great weight” to Dr. Noia’s opinion “because of his programmatic expertise and findings that are
consistent with the record”. T. 18. The ALJ gave “[s]ome weight to the non-examining review
psychologist because the claimant’s borderline intellectual functioning poses a minimal limitation
on the claimant’s ability to perform basic mental activities of work.” T. 18. Plaintiff does not
contest that determination and based upon the record, the Court finds that the ALJ assigned
proper weight to those opinions. Plaintiff argues that the ALJ failed to address Dr. Noia’s finding
that plaintiff’s reading and writing abilities were “significantly below an age appropriate level”.
The ALJ, however, specifically noted that Dr. Noia found that plaintiff had a reading disorder, T.
16, but found that plaintiff’s mental limitations would not “prevent the claimant from engaging in
simple, competitive work on a continuing and sustained basis.” T. 19. Thus, plaintiff’s argument
is without merit.
The ALJ discussed plaintiff’s treatment history, his age, education and work experience in
compliance with SSR 85-16. Plaintiff presents nothing more than vague, conclusory objections to
the ALJ’s determination. Moreover, the ALJ’s reliance on Dr. Noia’s opinion was proper. The
doctor’s conclusions are not contradicted by any evidence in the record. See Mongeur v. Heckler,
722 F.2d 1033, 1039 (2d Cir. 1983) (“In assessing opinions, a written report by a licensed
physician who has examined plaintiff may constitute substantial evidence supportive of a finding
by the hearing examiner”); see also Diaz v. Shalala, 59 F.3d 307, 313, n. 5 (2d Cir. 1995) (an ALJ
may rely upon the opinions of the state agency consultants when the evidence in the record
supports the conclusions).
The Court finds that the ALJ properly assessed plaintiff’s mental impairments and
determined that his intellectual functioning and reading disorder did not “significantly erode the
sedentary occupational base.” T. 19. Accordingly, the Court concludes that plaintiff’s contention
that the ALJ failed to include plaintiff’s mental limitations in the residual functional capacity is
Plaintiff argues that the ALJ erred in failing to accord controlling weight to the opinion of
Dr. Walsh, plaintiff’s treating physician. Plaintiff’s objection to the Magistrate Judge’s analysis
of the ALJ’s consideration of Dr. Walsh’s opinion is that the Magistrate Judge “permits reliance
upon a one-time consultative examiner’s opinions over that of the treating physicians [sic]”.
Plaintiff also argues that the absence of an MRI report is an impermissible ground upon which to
discount a treating physician’s opinion because it is the ALJ’s duty to fill any gaps in the medical
An ALJ must affirmatively develop the record in light of the “essentially non-adversarial
nature of a benefits proceeding”, even if the claimant is represented by counsel. Tejada v. Apfel,
167 F.3d 770, 774 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); see
also Echevarria v. Secretary of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982). The
duty of an ALJ to develop the record is "particularly important" when obtaining information from
a claimant's treating physician due to the "treating physician" provisions in the regulations.1
Devora v. Barnhart, 205 F.Supp.2d 164, 172 (S.D.N.Y. 2002). "There is ample case law
suggesting that an ALJ has an independent duty to make reasonable efforts to obtain a report
prepared by a claimant's treating physician in order to afford the claimant a full and fair hearing."
Devora, 205 F.Supp. 2d at 174 (collecting cases). This obligation includes obtaining the treating
physicians’ assessments of plaintiff’s functional capacity. 20 C.F.R. § 404.1512(e); see also
Hardhardt v. Astrue, No. 05-CV-2229, 2008 WL 2244995, at *9 (E.D.N.Y. May 29, 2008).
Under the regulations, a treating source's opinion is entitled to controlling weight if
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is
consistent with other substantial evidence in the record. 20 C.F.R. §§ 404.1527(d)(2),
The Regulations state, in relevant part: “Before we make a determination that you are not
disabled, we will develop your complete medical history ... [and] will make every reasonable
effort to help you get medical reports from your own medical sources when you give us
permission to request the reports.” Pabon v. Barnhart, 273 F.Supp.2d 506, 517 (S.D.N.Y. 2003)
(citing 20 C.F.R. § 416.912(d)); see also Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Remand
is necessary if the ALJ fails to attempt to contact the plaintiff’s treating physician to properly
determine her RFC. See Rosa v. Apfel, No. 97 Civ. 5831, 1998 WL 437172, at *4 (S.D.N.Y. Jul.
31, 1998); see also Hopper v. Comm’r of Social Sec., 7:06-cv0038, 2008 WL 724228, at *11
(N.D.N.Y. Mar. 17, 2008); see also Oliveras ex rel. Gonzalez v. Astrue, No. 07 Civ. 2841, 2008
WL 2262618, at *6-7 (S.D.N.Y. May 30, 2008) (holding that remand is appropriate even where
there is no guarantee that the outcome will change, so that the ALJ can make reasonable efforts to
obtain the treating physicians opinion on functional capacity).
In the Disability Report, plaintiff indicated that he had an “MRI/CT Scan whole body” in
February 2006 at Chenango Memorial Hospital. T. 110. Records from Chenango Memorial
Hospital were requested and received. T. 231. According to a discharge summary from
Chenango Memorial Hospital dated February 11, 2006, a CT of the brain showed “[n]o acute
change” and an x-ray of the lumbosacral spine showed “[n]o acute change.” T. 167; see also T.
173 (CT scan imaging services report); T. 174 (x-ray imaging services report). A report by Dr.
Walsh regarding an office visit on February 18, 2008, refers to plaintiff’s “long history of back
pain” and notes that plaintiff indicated “he will bring in reports from previous imaging which he
states delineates multi-level disc disease.” T. 339. In a report dated October 8, 2008, Dr. Walsh
refers to an “MRI completed several years ago” and that the report “shows herniation at L5-S1.”
When evaluating Dr. Walsh’s opinion, the ALJ referred to Dr. Walsh’s June 2008 opinion,
in which “Dr. Walsh indicated the claimant could stand and/or walk two hours a day and sit less
than six hours a day because his lumbar radiculopathy made sitting for long periods painful”. T.
17. The ALJ, however, discounted Dr. Walsh’s opinion regarding plaintiff’s ability to sit and
stand because Dr. Walsh “had just diagnosed lumbar radiculopathy on that date based on the
claimant’s subjective complaint with little clinical and no laboratory findings.” T.17.
On October 8, 2008, Dr. Walsh completed a medical examination form in which he opined
that plaintiff’s ability to walk, stand, and sit was “severely limited (1-2 hours)”. T. 304. Plaintiff
saw Dr. Walsh that same day. T. 298. In his notes from that visit, Dr. Walsh indicated that
according to a report from an MRI completed “several years ago” plaintiff had “herniation at L5-
S1.” T. 298. Thus, unlike his June 2008 opinion, Dr. Walsh’s October 8, 2008 opinion may be
based on acceptable medical imaging, i.e., an MRI. The ALJ, however, did not address Dr.
Walsh’s October 8, 2008 opinion. “In light of the ALJ's affirmative duty to develop the
administrative record, ‘an ALJ cannot reject a treating physician's diagnosis without first
attempting to fill any clear gaps in the administrative record.’” Burgess v. Astrue, 537 F.3d 117,
129 (2d Cir. 2008) (quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)). The ALJ,
therefore, should have attempted to obtain the MRI report Dr. Walsh referred to in his October 8,
2008, office note before discounting Dr. Walsh’s opinion. Accordingly, this matter is remanded
for further development of the medical record and reconsideration of Dr. Walsh’s opinion. The
ALJ is also directed to reconsider plaintiff’s credibility on remand.
Plaintiff argues that the ALJ should have consulted a vocational expert at step five of the
evaluation to determine whether, despite plaintiff’s borderline intellectual functioning and reading
disorder, there were jobs in the economy that plaintiff would perform. “[T]he mere existence of a
nonexertional impairment does not automatically require the production of a vocational expert nor
preclude reliance on the guidelines.” Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986). “A more
appropriate approach is that when a claimant's nonexertional impairments significantly diminish
his ability to work—over and above any incapacity caused solely from exertional limitations—so
that he is unable to perform the full range of employment indicated by the medical vocational
guidelines, then the Secretary must introduce the testimony of a vocational expert (or other
similar evidence) that jobs exist in the economy which claimant can obtain and perform.” Id.
Having already concluded that the ALJ properly considered the evidence regarding plaintiff’s
mental limitations and found they posed “ a minimal limitation on the claimant’s ability to
perform basic mental activities or work”, there is no basis for finding that a vocational expert was
required in this case.2
For the foregoing reasons, it is hereby
ORDERED that the Report-Recommendation is rejected with respect to the treating
physician rule and credibility; and it is further
Plaintiff also, though conclusorily, takes issue with the ALJ’s failure to consult a
vocational expert regarding several non-exertional limitations Dr. Walsh identified in his
opinion, i.e., twisting, stooping, climbing, fatigue, and pain. In light of the Court’s remand of
this matter for further development of the record and reconsideration of Dr. Walsh’s opinion, the
ALJ may wish to reconsider the impact of the non-exertional limitations identified by Dr. Walsh
on plaintiff’s ability to perform a full range of sedentary work, and whether a vocational expert
ORDERED that the Report-Recommendation is otherwise accepted in its entirety; and it
ORDERED that this matter is remanded to the Commissioner of Social Security for
further development of the record and reconsideration of the treating physician rule, plaintiff’s
credibility, and any issues that arise as a result of the reconsideration of those issues; and it is
ORDERED that judgment be entered for plaintiff; and it is further
ORDERED that the Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Date: July 17, 2012
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