Gillard v. Astrue

Filing 21

MEMORANDUM-DECISION and ORDER - That the Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social Security, for defendant Michael J. Astrue, and amend the caption accordingly. That the decision of the Commissioner is AFFIRMED and Gillard's Complaint is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 3/12/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LA-QUANNE GILLARD ,
Plaintiff,

5:11-cv-1173
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
Suite 420
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

BRANDON W. SAWYER, ESQ.
KAREN S. SOUTHWICK, ESQ.

AMANDA J. LOCKSHIN
JASON P. PECK
Special Assistant U.S. Attorneys

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
1

The Clerk is directed to substitute Carolyn W. Colvin, Acting
Commissioner of Social Security, for defendant Michael J. Astrue, and
amend the caption accordingly. See Fed. R. Civ. P. 25(d).

New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff La-Quanne Gillard challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI) and seeks judicial review under 42 U.S.C. §§ 405(g)
and 1383(c)(3). (See Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering Gillard’s arguments, the
court affirms the Commissioner’s decision and dismisses the Complaint.
II. Background
On August 27, 2009, Gillard filed applications for Child’s Insurance
Benefits (CIB) and SSI under the Social Security Act (“the Act”), alleging
disability since October 1, 2008. (See Tr.2 at 11, 44-45, 167-69.)3 After his
application was denied, (see id. at 47-54), Gillard requested a hearing
2

Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 11.)
3

Although it is clear from the record that Gillard applied for CIB, (see
Tr. at 45, 47-50), the application is not contained in the Administrative
Transcript.
2

before an Administrative Law Judge (ALJ), which was held on April 6, 2011
(see id. at 20-40, 55). On May 20, 2011, the ALJ issued an unfavorable
decision denying the requested benefits, which became the
Commissioner’s final determination upon the Social Security Administration
Appeals Council’s denial of review. (See id. at 1-5, 8-19.)
Gillard commenced the present action by filing his Complaint on
September 30, 2011 wherein he sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 10, 11.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 15, 19.)
III. Contentions
Gillard contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (See Dkt. No. 15 at 921.) Specifically, Gillard claims that: (1) the ALJ failed to develop the
record; (2) the residual functional capacity (RFC) determination is
unsupported by substantial evidence and is the product of legal error; (3)
his credibility was improperly assessed; (4) the step five determination is
unsupported by substantial evidence and is the product of legal error; (5)
3

the step two determination with respect to his back pain is unsupported by
substantial evidence; and (6) the Appeals Council erred in failing to grant
review or remand in light of new and material evidence. (See id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and her decision is supported by substantial evidence. (See Dkt.
No. 19 at 11-21.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 15 at 2-7; Dkt. No. 19 at 1-9.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)4 is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008). In addition to showing a disability under the five-step

4

Review under 42 U.S.C. §§ 405(g) and 1383(c)(3) is identical. As
such, parallel citations to the Regulations governing SSI are omitted.
4

sequential analysis, a claimant seeking CIB must also be the child of an
insured person who is entitled to old-age or disability benefits or who has
died, be dependent on the insured, be unmarried, and, as relevant here,
demonstrate that his disability began before age twenty-two. See 20
C.F.R. § 404.350(a).
VI. Discussion
A.

Duty to Develop the Record
Gillard argues first that the ALJ violated her duty to develop the

record by failing to: (1) request a treating source opinion of his functional
limitations; and (2) order a consultative psychiatric examination. (See Dkt.
No. 15 at 9-13.) The Commissioner counters that the ALJ fulfilled her duty
because, among other things, Gillard’s counsel stated at the administrative
hearing that no treating source opinions would be given. (See Dkt. No. 19
at 11-12.) Moreover, the Commissioner argues that a consultative
psychiatric exam was not necessary because no evidence, including his
own testimony, indicated that Gillard suffered any work-related mental
limitations. (See id. at 12-13.) The court agrees with the Commissioner.
While the ALJ has an affirmative obligation to develop the
administrative record, her duty to do so is not without limit. See Guile v.
5

Barnhart, No. 5:07-cv-259, 2010 WL 2516586, at *3 (N.D.N.Y. June 14,
2010). Indeed, if all of the evidence received is consistent and sufficient to
determine whether a claimant is disabled, further development of the
record is unnecessary, and the ALJ may make her determination based
upon that evidence. See 20 C.F.R. § 404.1520b(a). Consistent with that
notion, where there are no “obvious gaps” in the record, the ALJ is not
required to seek additional information. Rosa v. Callahan, 168 F.3d 72, 79
n.5 (2d Cir. 1999). Moreover, the ALJ is afforded discretion in determining
whether a consultative exam is warranted. See 20 C.F.R. § 404.1519a.
As with development of the record generally, “the ALJ is to order a
consultative exam only when [the relevant medical evidence of record] is
not ‘sufficient’ to make a decision.” Firpo v. Chater, 100 F.3d 943, 1996
WL 49258, at *2 (2d Cir. 1996). Thus, “‘[i]f the evidence does not support
work-related functional limitations resulting from [a] possible mental
impairment, additional development, including review by a psychiatrist or
psychologist is not necessary.’” Bronzene v. Astrue, No. 1:10-CV-00967,
2012 WL 602142, at *8 (N.D.N.Y. Feb. 23, 2012) (quoting Haskins v.
Comm’r of Soc. Sec., Civ. No. 5:05-CV-292, 2008 WL 5113781, at *7 n.5
(N.D.N.Y. Sept. 11, 2008)).
6

Here, because the record was sufficiently robust for the ALJ to make
a disability determination, she was not obligated to further develop the
record by either: (1) requesting function by function assessments from
Gillard’s treating physicians; or (2) ordering a consultative psychiatric
examination. See Streeter v. Comm’r of Soc. Sec., No. 5:07-CV-858, 2011
WL 1576959, at *3 (N.D.N.Y. Apr. 26, 2011). In this case, the record
contains treatment records from various treating sources including
physicians Daniel Murphy and Colin Harris, nurse practitioner Alita DeJong,
and nurse Sally Palmer. (See Tr. at 301-18, 327-30, 336-39, 342, 345,
347-48, 351-52, 355-56, 361-62, 368-73.) In addition, the record contains
physical therapy progress notes and laboratory findings, including x-rays, a
bone scan, an MRI, and an EMG. (See id. at 255, 261, 263, 310, 313-16,
320-25, 329-30, 340.) Moreover, the record contains an assessment of
Gillard’s functional abilities by consultative examiner Kalyani Ganesh. (See
id. at 276-79.) Although the record lacks functional assessments from
Gillard’s treating physicians, the ALJ questioned Gillard’s counsel at the
administrative hearing regarding the lack of such opinion evidence and was
informed that “none would be given.” (Id. at 23); see 20 C.F.R.
§ 404.1512(e)(2) (2012) (explaining that the ALJ “may not seek additional
7

evidence or clarification from a medical source when [she] know[s] from
past experience that the source either cannot or will not provide the
necessary findings”).5 Subsequently, Gillard’s counsel reported to the ALJ
that all medical records had been submitted and requested that the ALJ
“close the file and render a decision.” (Tr. at 252.)
As for the failure to order a consultative psychological exam, the
medical evidence and testimony in the record do not establish that such an
examination was necessary in order for the ALJ to reach a decision with
regard to the severity of Gillard’s depression and/or anxiety. Specifically, in
March and April 2010 Gillard complained of depression and anxiety to
Palmer, who assessed him as suffering from such impairments. (See id. at
305-07.) Thereafter, Gillard failed to seek any treatment for his mental
impairments until April 2011 at which time DeJong assessed Gillard as
suffering from depression and prescribed him medication. (See id. at 43435.) Notably, neither Palmer nor Dejong are “acceptable medical sources”
and, therefore, their treatment records “cannot establish the existence of a

5

As of March 26, 2012, the Commissioner amended 20 C.F.R. §
404.1512 to remove subsection (e). See Lowry v. Astrue, 474 F. App’x.
801, 805 n.2 (2d Cir. 2012). However, this court should apply the
regulation in force at the time of the ALJ’s opinion. See id.
8

medically determinable impairment,” but can only “provide insight into the
severity of the impairment(s) and how it affects the individual’s ability to
function.” SSR 06-03p, 71 Fed. Reg. 45,593, 45,594 (Aug. 9, 2006); see
20 C.F.R. § 404.1513(a), (d)(1); Crysler v. Astrue, 563 F. Supp. 2d 418,
434-35 (N.D.N.Y. 2008). In any event, there is no evidence that Gillard’s
mental impairments limited his ability to function in any significant way.
Indeed, Gillard completed a function report in October 2009 and reported
that he “sometimes . . . get[s] depress[ed],” however, he also reported
having no difficulty getting along with others, including those in positions of
authority, paying attention, following instructions, or remembering things,
and noted no changes in his social activities due to his impairments. (Tr. at
213; see id. at 215-17.) Further, at the administrative hearing, Gillard did
not testify to any limitations caused by his depression and confirmed that
he had not seen a psychologist or psychiatrist, although he was taking
depression medication. (See id. at 35.)
For the foregoing reasons, highlighted by the sufficiency of the record
and the lack of any obvious gaps, the ALJ did not violate her duty to
develop the record. See Brown v. Astrue, No. 11-CV-6392T, 2012 WL
2953213, at *7 (W.D.N.Y. July 19, 2012).
9

B.

RFC Determination
Next, Gillard claims that the RFC determination is infirm because the

ALJ erred in weighing the opinion of Dr. Ganesh. (See Dkt. No. 15 at 1315.) The Commissioner responds, and the court agrees, that the ALJ
properly relied on Dr. Ganesh’s opinion to determine Gillard’s RFC. (See
Dkt. No. 19 at 13-15.)
A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,
an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence6 in
the record. See Frye ex rel. A.O. v. Astrue, No. 11-1585-cv, 2012 WL
2125910, at *2 (2d. Cir. June 13, 2012). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; see also
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Here, the ALJ gave “great weight” to Dr. Ganesh’s opinion that Gillard

6

“Substantial evidence is defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept to
support a conclusion.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (internal quotation marks and citations omitted).
10

suffered no gross physical limitation in his ability to sit, stand, walk, or use
his upper extremities. (Tr. at 18; see id. at 278.) Gillard argues that Dr.
Ganesh’s opinion is unclear and incomplete because she did not indicate
the length of time that Gillard could sit, stand, or walk or the frequency with
which he could use his upper extremities. (See Dkt. No. 15 at 14.) This
argument is without merit. Indeed, Dr. Ganesh clearly opined that Gillard
did not suffer any limitations due to his impairments after examining Gillard
and finding full range of motion in his cervical spine, lumbar spine, elbows
and right shoulder, with a reduced range of motion in his left shoulder and
wrist. (See Tr. at 278.) According to Dr. Ganesh, Gillard suffered no motor
or sensory deficits, muscle atrophy, redness, heat, swelling, or effusion.
(See id.) Dr. Ganesh also found that Gillard had 5/5 strength in his upper
and lower extremities, intact hand and finger dexterity, and full grip strength
bilaterally. (See id.) Thus, Dr. Ganesh’s ultimate opinion is well supported
by his extensive examination and is not in any way conclusory. See
Armstrong v. Comm’r of Soc. Sec., No. 05-CV-1285, 2008 WL 2224943, at
*4 n.6 (N.D.N.Y. May 27, 2008).
Gillard also contends that Dr. Ganesh’s opinion is contradicted by the
opinions of Palmer and DeJong as well as Gillard’s physical therapy
11

treatment records. (See Dkt. No. 15 at 15.) Specifically, in January 2010,
Plamer advised that Gillard could not lift more than five pounds at work.
(See Tr. at. 309.) Thereafter, in January 2011, DeJong provided Gillard a
note for work which, according to Gillard, limited him to lifting no more than
five pounds, standing for ten minutes, and walking for twenty minutes.
(See id. at 38-39, 351.) Finally, upon examination in December 2010 and
May 2011, Gillard’s grip strength was found to be reduced. (See id. at 356,
394.)
As mentioned above, Palmer and DeJong are not “acceptable
medical sources” and, thus, their opinions are not entitled to controlling
weight, but rather “should be evaluated on key issues such as impairment
severity and functional effects, along with the other relevant evidence in the
file.” SSR 06-03p, 71 Fed. Reg. at 45,595; see 20 C.F.R. § 404.1513(a),
(d)(1); Crysler, 563 F. Supp. 2d at 434-35. Indeed, the ALJ did consider
the treatment records of Palmer and DeJong and specifically noted that
Gillard “exhibited some tenderness in his hands and sometimes had
decreased grip strength and positive Tinel’s and Phalen’s signs.” (Tr. at
16-17.) However, the ALJ also correctly noted that the clinical findings of
record demonstrate that Gillard has “exhibited relatively few abnormalities
12

related to his carpal tunnel syndrome.” (Id. at 16.)
Here, as the ALJ concluded, Dr. Ganesh’s opinion is consistent with
the medical evidence of record. (See id. at 18.) Notably, a July 2009 x-ray
of Gillard’s left elbow was negative, an August 2009 x-ray of his left wrist
revealed no bony involvement or bony acute disease, and February 2010
x-rays of his wrists and hands were negative except for the finding of a
“[s]mall accessory ossicle or old trauma” in his left wrist. (Id. at 316, see id.
at 255, 261, 263, 313-15.) In April 2010, an EMG showed Gillard suffered
from “mild right carpal tunnel syndrome” and a CT scan of his brain was
negative, in December 2010, x-rays of his cervical spine showed no
significant abnormality, and, in February 2011, a bone scan revealed no
abnormalities in his cervical spine and an MRI of his spinal cord was
unremarkable. (See id. at 310, 312, 329-30, 332-33, 338.) In addition to
these findings, Gillard exhibited normal grip strength, range of motion, and
motor exams of both arms on numerous occasions. (See id. at 253, 261,
264, 308, 330, 337, 342.) Moreover, in February 2011, Gillard reported
that most of his symptoms had been relieved by a “right carpal tunnel
injection.” (Id. at 327.)
Ultimately, the ALJ’s determination regarding the weight of Dr.
13

Ganesh’s opinion is supported by substantial evidence and, accordingly,
she properly relied on it in making her RFC determination. (See id. at 1718.) Thus, the court rejects Gillard’s argument that the RFC assessment is
unsupported by substantial evidence.
C.

Credibility Determination
Gillard next asserts that the ALJ erred in assessing his credibility by

improperly concluding that his activities of daily living, including smoking,
and his ability to work part time undercut his claims of disability. (See Dkt.
No. 15 at 16-17.) The court disagrees.
“[A]fter weighing the objective medical evidence in the record, the
claimant’s demeanor, and other indicia of credibility,” an ALJ may reject the
claimant’s subjective allegations regarding limitation as long as she sets
forth her “reasons with sufficient specificity to enable [the court] to decide
whether the determination is supported by substantial evidence.” Lewis v.
Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999) (internal quotation marks
and citation omitted). Here, the ALJ properly found Gillard’s statements
concerning the intensity, persistence, and limiting effects of his symptoms
partially credible. (See Tr. at 17.) The ALJ considered Gillard’s selfreported activities of daily living, his ability to work during the period of
14

alleged disability, and the medical evidence, including opinion evidence, of
record. (See id. at 16-18.)
As the ALJ explained, Gillard’s claims of limitation were belied by the
fact that he worked approximately ten hours a week as a FedEx package
handler from January 2009 until January 2011 when he went on medical
leave due to carpal tunnel surgery. (See id. at 17, 25-26, 187.) Indeed,
prior to taking medical leave in January 2011, Gillard applied for lighter
duty work, hoping to do administrative work. (See id. at 38.) The ALJ also
noted that, despite claiming an inability to lift more than five pounds, Gillard
injured himself, nine months after his alleged onset date, while moving
furniture. (See id. at 17, 215, 253.) In addition to working, Gillard’s
activities of daily living include showering, bathing, and dressing himself,
preparing microwave meals, watching television, listening to the radio,
reading, and socializing. (See id. at 212, 241, 276.) Further, Gillard
smokes daily, which the ALJ observed requires manipulative and fine
motor activity, despite his allegations of limitation in the use his of hands
and fingers. (See id. at 17, 28-29, 36-37, 276.) In sum, the ALJ’s
credibility determination was sufficiently articulate and based on substantial
evidence and is, therefore, conclusive.
15

D.

Step Five Determination
Gillard also takes issue with the ALJ’s finding at step five. (See Dkt.

No. 15 at 17-19.) Specifically, Gillard alleges that “errors in RFC and in
determining [his] credibility, along with the new and material evidence
submitted to the Appeals Council render the [s]tep [five] determination
unsupported by substantial evidence.” (Id. at 18.) Further, Gillard
contends that the ALJ erred in relying solely on the medical-vocational
guidelines in finding him not disabled, as he suffered from significant
nonexertional manipulative limitations. (See id.) The court finds no merit in
these arguments, largely for reasons already articulated.
Reliance on the Medical-Vocation Guidelines is improper “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” guidelines. Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir.
1986). Instead, where nonexertional impairments significantly diminish a
claimant’s ability to work, “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.
16

As discussed above, the ALJ’s RFC determination—that Gillard was
able to lift, carry, push, pull, and manipulate items weighing ten pounds or
less—and credibility assessment are sound and supported by substantial
evidence. See supra Part VI.B-C; (see Tr. at 15.) In addition, as discussed
below, the Appeals Council’s decision to deny review of the ALJ’s decision
after considering the new evidence, was appropriate. See infra Part VI.F.
Because Gillard’s nonexertional manipulative limitations had little or no
effect on the occupational base of unskilled sedentary work, reliance on the
grid guidelines was appropriate. (See Tr. at 18-19); see Bapp, 802 F.2d at
605 (“If the guidelines adequately reflect a claimant’s condition, then their
use to determine disability status is appropriate.”).
E.

Step Two Determination
Next, Gillard claims that the ALJ erred in failing to find his back pain

to be a severe impairment at step two of the sequential analysis. (See Dkt.
No. 15 at 19-20.) According to Gillard, records submitted to the Appeals
Council, including an x-ray of his lumbosacral spine and physical therapy
progress notes, evidence this severe impairment and, accordingly, the
Appeals Council erred in failing to grant review or remand. (See id. at 19.)
This argument is also unavailing.
17

At step two of the sequential analysis, the ALJ must “determine
whether the claimant has a severe impairment.” Christiana, 2008 WL
759076, at *3; see 20 C.F.R. § 404.1520(a)(4)(ii), (c). A “severe
impairment” is “any impairment or combination of impairments which
significantly limits [his] physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). As pertinent here, basic work activities are “the
abilities and aptitudes necessary to do most jobs,” including: “[p]hysical
functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling.” 20 C.F.R. § 404.1521(b)(1). “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.” Bergeron v. Astrue, No. 09-CV1219, 2011 WL 6255372, at *3 (N.D.N.Y. Dec. 14, 2011) (quoting
McConnell v. Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y.
Mar. 27, 2008)). Indeed, when “medical evidence establishes only a slight
abnormality or a combination of slight abnormalities,” a finding of “not
severe” is warranted. SSR 85-28, 1985 WL 56856, at *3 (1985); see 20
C.F.R. § 404.1521(a). Notably, the omission of an impairment at step two
may be deemed harmless error, particularly where the disability analysis
18

continues and the ALJ later considers the impairment in his residual
functional capacity (RFC) determination. See Tryon v. Astrue, No. 5:10CV-537, 2012 WL 398952, at *4 (N.D.N.Y. Feb. 7, 2012); see also Plante
v. Astrue, No. 2:11-CV-77, 2011 WL 6180049, at *4 (D. Vt. Dec. 13, 2011).
In this case, at step two, the ALJ considered Gillard’s complaints of
low back pain and concluded that it was not a severe impairment as there
was no objective medical evidence that he had been treated for such
condition. (See Tr. at 15.) Thereafter, in making her RFC determination,
the ALJ again considered Gillard’s complaints of a “burning pain in his low
back that lasts for [ten to twenty] minutes after he stands up.” (Id. at 16,
33.) Following issuance of the ALJ’s decision, but prior to a determination
by the Appeals Council, Gillard submitted an x-ray taken on March 21,
2011 which found “a transitional lumbosacral vertebral body.” (Id. at 433.)
Gillard also submitted to the Appeals Council treatment records from
physical therapy he received for carpal tunnel and lumbar spine pain from
March 2011 through May 2011. (See id. at 385-99.) Gillard notes that on
March 23, 2011 straight leg raises were positive at fifty degrees with sharp
pains down his lower extremities. (See Dkt. No. 15 at 19; Tr. at 386.)
Considering this additional evidence, the court agrees with the
19

Commissioner that the ALJ properly determined that Gillard’s back pain
was not a severe impairment. (See Dkt. No. 19 at 18-19.) Initially, the
March 21, 2011 x-ray revealed “no acute disease” and was described in
physical therapy progress notes as “normal.” (Tr. at 385, 433.) Further,
the only acceptable medical source to render an opinion as to Gillard’s
functional limitations was Dr. Ganesh, who found Gillard to be in no acute
distress, with a normal gait and stance, and possess the ability to walk on
his heels and toes, squat in full, change for his exam, get on and off of the
exam table, and rise from a chair without difficulty. (See id. at 277); see 20
C.F.R. § 404.1513(a). Dr. Ganesh reported that Gillard exhibited a full
range of motion in his lumbar spine, 5/5 strength in his lower extremities,
and negative straight leg raising bilaterally. (See id. at 278.) Based on this
examination, Dr. Ganesh opined that Gillard suffered no physical
limitations. (See id.) Consistent with Dr. Ganesh’s examination, in January
and February 2011, Dr. Harris noted that Gillard “walks with no apparent
pain or difficulty” and, in his January 2011 evaluation, exhibited a normal
lower extremity neurologic exam, including a normal sensory exam, 5/5
motor exam, and “2+” reflex exam. (Id. at 329-30, 337-38.) Thus, although
Gillard received some medical treatment for his lower back pain, the ALJ
20

did not err in determining that it did not constitute a severe impairment.
(See id. at 15.) In any event, during the subsequent RFC determination,
the ALJ considered Gillard’s complaints of low back pain and the medical
evidence from sources who examined his lower back. (See id. at 15-18.)
Accordingly, there is no basis to remand this matter based upon her step
two analysis. See Tryon, 2012 WL 398952, at *4.
Because the additional evidence submitted to the Appeals Council
does not render the ALJ’s step two determination contrary to the weight of
the evidence, the Appeals Council properly declined to remand the case on
this basis. See Perez, 77 F.3d at 46 (explaining that “[w]hen the Appeals
Council denies review after considering new evidence, [courts] simply
review the entire administrative record, which includes the new evidence,
and determine, as in every case, whether there is substantial evidence to
support the decision of the [Commissioner]”); infra Part VI.F.
F.

Appeals Council Review
Lastly, Gillard contends that the Appeals Council erred by failing to

remand based on evidence submitted to it after the ALJ’s decision. (See
Dkt. No. 15 at 20-21.) Specifically, Gillard contends that physical therapy
reports and an opinion from his treating physician, provided a basis to
21

review the ALJ’s decision. (See id.) The Commissioner counters, and the
court agrees, that the records presented to the Appeals Council provided
no basis to change the ALJ’s decision. (See Dkt. No. 19 at 20-21.)
The Appeals Council shall consider “new and material” evidence if it
“relates to the period on or before the date of the [ALJ] hearing decision.”
20 C.F.R. § 404.976(b)(1); see Perez, 77 F.3d at 45. The Appeals Council
“will then review the case if it finds that the [ALJ]’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.” 20
C.F.R. § 404.970(b). However, even if “the Appeals Council denies review
after considering new evidence, the [Commissioner]’s final decision
necessarily includes the Appeals Council’s conclusion that the ALJ’s
findings remained correct despite the new evidence.” Perez, 77 F.3d at 45
(internal quotation marks and citation omitted). Accordingly, the additional
evidence becomes part of the administrative record reviewed by the district
court. Id. at 45-46.
Here, after considering the new evidence presented to it, the Appeals
Council properly determined that it did not provide a basis for changing the
ALJ’s decision. (See Tr. at 1-5.) The physical therapy reports submitted to
the Appeals Council, as discussed above, do not add so much to the
22

record as to displace the substantial evidence—including the opinion of Dr.
Ganesh—supporting the ALJ’s RFC determination. See supra Part VI.E.
Further, because the determination of disability is a matter reserved to the
Commissioner, “there is no reasonable probability” that Dr. Murphy’s April
2011 note, stating that Gillard was to refrain from work until further notice,
“would have caused the Commissioner to decide the issue differently.”
Briggs v. Astrue, No. 09-CV-1422, 2011 WL 2669476, at *15 (N.D.N.Y.
Mar. 4, 2011); see 20 C.F.R. § 404.1527(d)(1), (3); (see Tr. at 407.)
G.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk is directed to substitute Carolyn W. Colvin,
Acting Commissioner of Social Security, for defendant Michael J. Astrue,
and amend the caption accordingly; and it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Gillard’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
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Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
March 12, 2013
Albany, New York

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