Kameisha v. Astrue

Filing 14

MEMORANDUM & ORDER that the Court GRANTS the Commissioner's motion for judgment, ECF No. 12, and DENIES Kameisha's motion to reverse the hearing officer's decision or remand for further hearing, ECF No. 11. Signed by Judge William G. Young on 4/3/2015. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MICHAEL J. KAMEISHA,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION
NO. 5:12-cv-01324-WGY

YOUNG, D.J.2

April 2, 2015
MEMORANDUM AND ORDER

I.

INTRODUCTION
This is an action under section 405(g) of the Social

Security Act, 42 U.S.C. § 405(g).

Compl. 1, ECF No. 1.

Michael

J. Kameisha (“Kameisha”) is seeking judicial review of the final
decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying him Social Security
Disability (“SSD”) benefits.

Id.

Kameisha claims that the

1

Michael J. Astrue was originally the named defendant in
his capacity as the Commissioner of the Social Security
Administration. On February 14, 2013, Carolyn W. Colvin became
the Acting Social Security Commissioner and has therefore been
substituted as the named defendant pursuant to Federal Rule of
Civil Procedure 25(d). Elec. Clerk’s Notes, June 28, 2013.
2

Of the District of Massachusetts, sitting by designation.
Reassignment Order, ECF No. 13.
1

decision of the Administrative Law Judge (the “hearing officer”)
denying him benefits was not based on substantial evidence.

Id.

Specifically, Kameisha alleges that the hearing officer did not
correctly assess his residual functional capacity (“RFC”) and
credibility and that the Commissioner did not meet her burden of
proving that Kameisha was able to perform other work existing in
significant numbers in the national economy.

Pl.’s Mem. Law

Supp. Mot. J. Admin. R. & Pleadings Pursuant Rule 12(C) F.R.C.P.
(“Kameisha’s Mem.”) 1, ECF No. 11.

Kameisha, therefore,

requests that this Court reverse the hearing officer’s decision
or, alternatively, remand the case for a new hearing.
15.

Id. at

The Commissioner, on the other hand, requests that this

Court affirm her decision denying Kameisha social security
benefits.

Mem. Law Supp. Comm’r’s Mot. J. Pleadings (“Def.’s

Mem.”) 1, ECF No. 12.
A.

Procedural Posture

Kameisha applied for SSD benefits on March 31, 2011.
Sec. Admin. R./Tr. (“Admin. R.”) 150-58, ECF No. 9.3

Soc.

The Social

Security Administration (the “Administration”) denied his
application on July 15, 2011.

Id. at 68-73.

a hearing, which took place on March 1, 2012.
3

Kameisha requested
Id. at 29-66.

The continuously paginated administrative record is split
across several parts on this case’s docket. In the interest of
clarity of presentation, this memorandum will cite simply to the
page numbers of the record itself without reference to the
different ECF numbers.
2

The hearing officer denied Kameisha’s application for SSD
benefits on April 5, 2012.

Id. at 16-25.

On July 5, 2012, the

Appeals Council denied Kameisha’s request to review the hearing
officer’s decision.

Id. at 1-6.

The hearing officer’s

decision, therefore, became the final decision of the
Commissioner.

Id. at 1.

On August 24, 2012, Kameisha filed a complaint under 42
U.S.C. section 405(g) seeking review of the Commissioner’s
decision, Compl., to which the Commissioner filed an answer on
December 10, 2012, Def.’s Answer, ECF No. 8.

On January 25,

2013, Kameisha filed a memorandum of law in support of his
complaint, Kameisha’s Mem., and the Commissioner filed her
memorandum on March 11, 2013, Def.’s Mem.4
case was reassigned to this Court.

On June 25, 2013, the

Reassignment Order, ECF No.

13.
B.

Factual Background

Kameisha was born on June 19, 1954.

Admin. R. 152.

His

past work experience consists of employment as a landscaper from
1980 to 1991, as a delivery man from 1991 to 1992, and as a
janitor from 1992 through 2003.

Id. at. 180.

4

In 2003, Kameisha

In accordance with the Northern District of New York’s
General Order 18 governing appeals from decisions of the Social
Security Administration, this Court treats the parties’
memoranda of law as though “both parties had accompanied their
briefs with a motion for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure.” Social
Security Action – Case Assignment Form 3, ECF No. 3.
3

stopped working due to problems with his left arm.

Id. at 21,

46.
1.

Medical Evidence

Kameisha was diagnosed with HIV in 1991.

Id. at 227.

As

explained at his hearing, he is on HIV medication and a
methadone program.

Id.

As determined by blood tests conducted

in September 2006, Kameisha’s HIV viral load was less than 50
copies/mL.

Id. at 235.

Kameisha started treatment at Camden Medical Care on
October 12, 2006, when he saw Dr. Muftah Kadura, M.D. (“Dr.
Kadura”) for sores on his legs.

Id. at 226, 231.

Dr. Kadura

reported that Kameisha was HIV positive and hepatitis C
negative, had an arthritic left knee, and had arthritic ribs on
the left side.

Id. at 231.

Dr. Kadura also noted that

Kameisha’s HIV viral load was below detectable levels.
226.

Id. at

On December 19, 2006, Kameisha still complained about the

sores on his legs.

Id. at 230.

Dr. Kadura prescribed him

medications and referred him to pain management.

Id.

In

February and March 2007, Kameisha continued treatment with Dr.
Kadura for his HIV and his back pain.

Id. at 228-29.

On July 3, 2008, Kameisha consulted Dr. Smita Kittur, M.D.
(“Dr. Kittur”), complaining of left arm pain and muscle weakness
with no joint pain.

Id. at 236-38.

Kameisha told Dr. Kittur

that he had no back pain and no difficulty walking.
4

Id. at 237.

Kameisha also said he independently performed his activities of
daily living but had difficulty using his left arm.

Id.

Dr.

Kittur observed that Kameisha’s HIV was stable and that his
viral load was below the detectable level.

Id. at 236.

Dr.

Kittur also noted that Kameisha’s gait and station were normal.
Id. at 238.

Kameisha demonstrated full muscle strength in his

right arm and right leg but was unable to raise his left arm up,
though he could hold it up if his arm was brought up to ninety
degrees.

Id.

Kameisha reported to Dr. Kittur that in the weeks

prior to the examination, he could not get his left hand to
carry a grocery bag, could not lift his left hand above his
head, had left shoulder pain, and had pain in the left hand
mainly in the third and fourth fingers.

Id. at 236.

Kameisha

also told Dr. Kittur that his whole hand felt numb, that his
pain in the hands was like a cramping pain, and that taking a
shower was difficult.

Id.

Dr. Kittur noted to rule out

cervical myelopathy, cervical radiculopathy C5-C6, and HIV
neuropathy and myopathy.

Id. at 238.

Dr. Peter Berkey, M.D. (“Dr. Berkey”) treated Kameisha
intermittently.

Id. at 247.

On March 17, 2009, Dr. Berkey

diagnosed Kameisha with HIV infection, weakness of the left arm
with unclear etiology, and hepatitis C with a status post
interferon therapy.

Id.

Blood tests conducted that month

revealed that Kameisha’s viral load was less than 48 copies/mL,
5

which was too low to be quantified but above the lower limit for
detection.

Id. at 253.

On April 14, 2010, Kameisha returned to

Dr. Berkey, who noted that Kameisha had HIV infection, methadone
maintenance, a history of herpes simplex infection in the left
eye, and hepatitis C with a status post interferon therapy.

Id.

at 249.
On February 9, 2012, an x-ray of Kameisha’s cervical spine
showed moderate degenerative disc disease at C5-C6 and minimal
degenerative change at C6-C7 and C4-C5.

Id. at 242.

On

February 13, 2012, an MRI of Kameisha’s cervical spine showed
the following: C3-C4 large disc bulge with mass effect on the
spinal cord and intrinsic intramedullary cord edema, plus
moderate central canal stenosis and moderate to severe left
neural foraminal stenosis; C4-C5 large disc bulge with central
and left paracentral disc protrusion yielding direct mass effect
on the ventral cord, plus mild malacia and marked cord edema
intrinsically with severe central canal stenosis and severe
bilateral neural foraminal stenosis; C5-C6 posterior disc
osteophyte complex with a large left paracentral disc
protrusion, plus direct mass effect on the ventral margin of the
spinal cord with marked intrinsic cord parenchymal edema and
myelomalacia with severe central canal stenosis and severe
bilateral neural foraminal stenosis; C6-C7 trace disc bulge with
canal and neural foraminal stenosis; C7-T1 foraminal stenosis;
6

and multilevel degenerative facet joint arthropathy.

Id. at

244.
2.

Kameisha’s Hearing Testimony

At the March 2012 hearing, Kameisha declared that he had
been diagnosed with HIV approximately twenty years ago.
36.

Id. at

He testified that his last job was at a synagogue and that

he stopped working in 2003.

Id. at 37-38.

At the synagogue,

Kameisha was responsible for “setting up classrooms,” tearing
them down, and setting them up again.

Id. at 38-39.

Kameisha

was also in charge of the “regular maintenance on the building,
vacuuming, [washing] floors, [and] stripping the wax.”
39.

Id. at

Kameisha stated that his days were between seven and twelve

hours long and that he had to stay “pretty much on [his] feet
the whole time.”

Id. at 39-40.

After working the first three

or four years by himself, Kameisha supervised the people hired
by the synagogue to help him because he could no longer get the
work done alone.

Id. at 40.

Kameisha then declared that the

synagogue let him go and that he began living on unemployment
benefits.

Id. at 41.

Because his location at the time was too

expensive, he moved to a trailer home in upstate New York.

Id.

Describing a typical day, Kameisha described going to “the
[m]ethadone clinic, driv[ing] home, and . . . pretty much
sit[ting] in front of a television for the rest of the day.”
Id. at 42-43.

Kameisha testified that he lives alone, cooking
7

by “pushing buttons on the microwave” and doing laundry.
43.

Id. at

Kameisha stated that he has a neighbor shovel the snow when

needed.

Id. at 44.

Identifying his disabling impairments, Kameisha said that
due to his smoking and drug use, he quickly gets out of breath.
Id. at 45-46.

Kameisha also stated that although he could hold

objects with his left hand, he could not raise his left arm
above his chest.

Id. at 46.

Kameisha asked Dr. Berkey about

his left hand but did not go to the neurologist as recommended
because he could not afford to “stick around two days in Yonkers
for an appointment.”

Id.

Kameisha made an appointment with Dr.

Kadura, who recommended an MRI, but his “insurance was with Dr.
Berkey in Yonkers, so [he] kept putting that off.”

Id.

Kameisha then declared that he went back to Dr. Kadura about his
arm when preparing his file for disability benefits.
47.

Id. at 46-

Dr. Kadura sent Kameisha “to get an X-ray on [his] arm.”

Id. at 47.

Kameisha testified that Dr. Kadura told him that

there was not much wrong with his left arm and prescribed him
mild pain medication.

Id.

Kameisha declared that he went to

see another doctor and got “the MRI’s and X-rays done on [his]
arm and back about a month ago.”

Id. at 48.

Answering a

question from his attorney about supporting himself financially
without any income, Kameisha stated that his brother had been
helping him.

Id. at 49.
8

The hearing officer asked Kameisha why he needed methadone.
Id. at 52.

Kameisha testified that he went to a methadone

clinic to deal with his cocaine addiction but that he then
“ended getting up hooked on [m]ethadone.”

Id.

He declared to

the hearing officer that he was still on methadone and that he
has “been upping it over the [past] six years” for pain.
53.

Id. at

The hearing officer then inquired about Kameisha’s HIV, and

Kameisha testified that it had stabilized.

Id. at 54.

The

hearing officer also asked if Kameisha had any side effects from
the methadone.

Id. at 55.

Kameisha replied that he did not

know what side effects methadone could bring but that felt
fatigue, lack of coordination, and numbness in his extremities.
Id. at 56.

Responding to the hearing officer about his

breathing problems, Kameisha declared that he would get them
when he was stressed out.

Id.

Kameisha also confirmed to the

hearing officer that he was still smoking but that he had
switched to ultra light cigarettes and had “gone from two
pack[s] a day to about a half a pack a day.”

Id. at 57.

Finally, the hearing officer asked Kameisha how he thought his
condition was now compared to 2008.
that it was “easily the same.”
3.

Id.

Kameisha testified

Id. at 58.

Vocational Expert’s Testimony

At the 2012 hearing, the hearing officer examined Dr. James
Newton (“Newton”) as the vocational expert on Kameisha’s case.
9

At the hearing officer’s request, Newton considered the
situation of a hypothetical individual of the same age,
educational background and work experience as Kameisha who: is
limited to the light exertional category of work and to “simple,
routine, and repetitive tasks”; “can only occasionally utilize
his left lower extremity for pushing, pulling and operation of
foot controls, and can only occasionally utilize his left upper
extremity for pushing, pulling, . . . and gross and fine
manipulation”; cannot reach above chest level with his nondominant left arm; and can occasionally stoop.

Id. at 62.

Newton then concluded that such an individual could perform the
jobs of office helper, gate attendant, and ticker seller, each
of which exists in significant numbers in the regional and
national economy.

Id. at 63.

The hearing officer also asked Newton to consider another
hypothetical individual with “no effective use of the nondominant left upper extremity.”

Id. at 63-64.

Newton testified

that such an individual could perform all the jobs previously
identified in the first hypothetical.

Id. at 64.

Kameisha’s

representative then asked Newton if the answer would be the same
if the individual had the additional limitation of being “off
task [twenty] percent of the time.”

Id.

Newton testified that

such individual would not be able to perform those occupations.
Id.
10

II.

LEGAL STANDARD
A.

Standard of Review

A federal district court may affirm, modify, or reverse a
decision of the Commissioner assessing a claimant’s eligibility
for SSD benefits.

42 U.S.C. § 405(g).

During the course of

this review, “[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”

Id.

Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”

Richardson v. Perales, 402 U.S. 389,

401 (1971) (internal quotation marks omitted).

This standard,

therefore, requires the Court to uphold the hearing officer’s
findings “[e]ven where the administrative record may also
adequately support contrary findings on particular issues, . . .
so long as they are supported by substantial evidence.”

Genier

v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation
marks omitted).
B.

Social Security Disability Standard

A claimant is deemed disabled for the purposes of SSD
benefits if he is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.”
11

42 U.S.C. § 423(d)(1)(A).

The Administration has promulgated a five-step sequential
procedure for the hearing officer to apply when determining
whether an applicant is disabled.

20 C.F.R. § 404.1520(a)(4).

The hearing officer will therefore evaluate:
(1) [W]hether the claimant is engaged in
substantial gainful activity;
(2) whether the claimant has a severe
impairment;
(3) whether the impairment meets or
medically equals an impairment listed under
20 C.F.R. Part 404, Subpart P, Appendix 1,
and meets the duration requirement;
(4) whether the claimant has the residual
functional capacity to perform his past
relevant work; and
(5) whether the impairment prevents the
claimant from doing any other work,
considering the claimant’s age, education,
and work experience.
Deno v. Colvin, No. 8:12-cv-01263-WGY, 2014 WL 5315108, at *12
(N.D.N.Y. Oct. 20, 2014) (citing 20 C.F.R. § 404.1520(a)(4)).
The claimant bears the burden of proof of his disability in the
first four steps.
2004).

Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.

This burden shifts to the Commissioner at the last step.

Id.
III. THE HEARING OFFICER’S DECISION
The hearing officer applied the five-step analysis and
ultimately decided that Kameisha was not disabled.
20-21.

Admin. R.

At the first step, the hearing officer noted that

Kameisha had not engaged in substantial gainful activity since
the date of the alleged onset of his disability, September 30,
12

2003, to the date last insured, December 31, 2008.

Id. at 21.

Proceeding to the second step, the hearing officer determined
that Kameisha had two severe impairments: an impaired left upper
extremity and atrophy of the left deltoid muscle.

Id.

At the

third step, the hearing officer observed that Kameisha’s
impairments did not meet or medically equal one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
at 22.

Id.

Prior to moving to the fourth step, the hearing officer

determined that Kameisha:
[H]ad the residual functional capacity to
perform light work as defined in 20 C.F.R.
404.1567(b) except he could only
occasionally utilize his left lower
extremity for pushing, pulling, and
operation of foot controls, could not reach
above chest level with his non-dominant left
upper extremity, could only occasionally
utilize his left upper extremity for
pushing, pulling, reaching generally, and
gross and fine manipulation, and could only
occasionally engage in stooping. In
addition, he was limited to performing
simple, routine, and repetitive tasks as a
result of his impairments and medication
side effects.
Id. at 22.

At the fourth step, the hearing officer noted that

Kameisha was unable to perform any past relevant work.
24.

Id. at

Finally, the hearing officer found that there were jobs in

significant numbers in the national economy that Kameisha could
perform.

Id.

Therefore, the hearing officer concluded that

Kameisha was not disabled from September 30, 2003, the alleged

13

onset date, through December 31, 2008, the date last insured.
Id. at 25.
IV.

ANALYSIS
Kameisha contests the hearing officer’s decision on three

different grounds.

First, Kameisha argues that the hearing

officer failed to develop the record, leading to an improper
evaluation of Kameisha’s RFC.

Kameisha’s Mem. 7-11.

Second,

Kameisha contends that the hearing officer did not properly
assess his credibility.

Id. at 11-14.

Finally, Kameisha claims

that the vocational expert’s testimony did not constitute
substantial evidence, and therefore the Commissioner did not
meet her burden of proving that Kameisha was able to perform
other work existing in significant numbers in the national
economy.
A.

Id. at 14-15.
Development of the Record and Assessment of the
Residual Functional Capacity

Kameisha alleges that the hearing officer failed to develop
the record when he did not order a consultative examination and
did not consider a treating source’s retrospective opinion,
leading to a flawed assessment of Kameisha’s RFC.

Id. at 7.

More specifically, Kameisha claims that the hearing officer
erred in not taking into account medical evidence of
degenerative disease dated after December 31, 2008, Kameisha’s
last insured date.

Id.

The Commissioner asserts that the

14

hearing officer correctly determined Kameisha’s RFC.

Def.’s

Mem. 9.
A hearing on disability benefits is a non-adversarial
proceeding, and the hearing officer “generally has an
affirmative obligation to develop the administrative record.”
Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); see also 20
C.F.R. § 404.1512(d).

The hearing officer retains this

obligation even if the claimant is represented by counsel.
Perez, 77 F.3d at 47.

Kameisha argues that the significant gap

in his medical record regarding “the nature and the severity of
[his] impairments prior to his date last insured” required the
hearing officer to develop the record.

Kameisha’s Mem. 11.

According to Kameisha, this error of the hearing officer had
adverse consequences for the remaining steps of the disability
assessment.

Id.

First, Kameisha claims that the hearing officer was
oblgiated to consider the results of the February 13, 2012 MRI
that presented evidence of a degenerative condition.

Id. at 8.

The hearing officer, however, considered an x-ray taken just a
few days before, on February 9, 2012, in his assessment of the
medical record and of Kameisha’s impairments.
215.

See Admin. R. 22,

Like the MRI, the x-ray mentions the degenerative disc

disease, though with less detail.

Id. at 242-244.

As the

Commissioner correctly argues, this examination happened more
15

than three years after the date last insured, whereas before
that date, Kameisha had declared to Dr. Kittur that he did not
have joint or back pain.
237.

See Def.’s Mem. 11; see also Admin. R.

The hearing officer, who is responsible for weighing the

evidence, Richardson, 402 U.S. at 399, decided based on the
timing of this evidence that Kameisha’s degenerative condition
was “not manifested until after his date last insured.”
R. 22.

Admin.

This Court declines to interfere with that reasonable

view of the record.
Second, Kameisha contests the hearing officer’s decision
not to order a consultative examination.

Kameisha’s Mem. 7.

The relevant regulations stipulate that a consultative
examination is ordered at the Administration’s request, on an
individual case basis, and when appropriate.
404.1519; see also 20 C.F.R. § 404.1517.

See 20 C.F.R. §

If the evidence in the

record is sufficient to render a decision on the claimant’s
disability, a hearing officer is not required to order a
consultative examination.

See 20 C.F.R. § 404.1517.

The

hearing officer determined that he did not need additional
medical evidence to make an informed assessment and that a
“consultative exam would be unenlightening as to [Kameisha]’s
condition over [three] years ago,” the last date for which he
would be able to receive any benefits.

Admin. R. 19.

This

Court rules that the hearing officer was reasonable in deciding
16

that he had sufficient evidence to assess Kameisha’s disability
status.

Moreover, it strikes the Court as correct to say that a

new consultative examination would shed little light on
Kameisha’s past disability.
Finally, as required, see 20 C.F.R. § 404.1512(d), the
Administration contacted Kameisha’s treating physician, Dr.
Berkey, for his medical reports, Admin. R. 189.

On July 1,

2011, a state agency disability examiner called Dr. Berkey and
requested Kameisha’s medical records.

Id.

Four days later, the

Administration had still not received the records and followed
up with another phone call to Dr. Berkey’s office.

Id.

Therefore, this Court determines that the hearing officer
respected his duty to develop the record, contacting Kameisha’s
physician and justifying his consideration of the medical
evidence and the consultative examination.

The hearing officer

has, accordingly, properly assessed Kameisha’s RFC.
B.

Correct Evaluation of Kameisha’s Credibility

Kameisha claims that the hearing officer did not apply the
appropriate legal standards when evaluating his credibility.
Kameisha’s Mem. 11.

According to the Commissioner, the hearing

officer correctly determined that Kameisha’s statements were
inconsistent with his own RFC assessment.
1.

Def.’s Mem. 12.

Credibility Evaluation Standard

17

When assessing the claimant’s RFC, the hearing officer
considers the objective evidence and “the claimant’s reports of
pain and other limitations.”

Genier, 606 F.3d at 49.

The

hearing officer “may exercise discretion in weighing the
credibility of the claimant’s testimony in light of the other
evidence in the record.”

Id. (citing Marcus v. Califano, 615

F.2d 23, 27 (2d Cir. 1979)).
The evaluation of a claimant’s allegations of subjective
pain follows a two-step method.

Id.

First, the hearing officer

determines “whether the claimant suffers from a medically
determinable impairment that could reasonably be expected to
produce the symptoms alleged.”
404.1529(b)).

Id. (citing 20 C.F.R. §

Second, the hearing officer decides “the extent

to which [the claimant’s] symptoms can reasonably be accepted as
consistent with the objective medical evidence and other
evidence of record.”

Id. (alteration in original) (quoting 20

C.F.R. § 404.1529(a)) (internal quotation marks omitted).

The

hearing officer will consider several factors in his assessment
of the claimant’s subjective claims of pain.

See 20 C.F.R. §

404.1529(c).
2.

Kameisha’s Credibility

At the first step, the hearing officer found that Kameisha
had medically determinable impairments that could “reasonably be
expected to cause certain of the alleged symptoms.”
18

Admin. R.

23.

Proceeding to the second step, the hearing officer

determined that Kameisha’s “statements concerning the intensity,
persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above
residual functional capacity assessment.”

Id.

The hearing

officer explained his finding and detailed which elements of
Kameisha’s allegations he considered credible.

He considered

Kameisha’s statements regarding the limitations caused by his
left upper extremity impairment credible and integrated them in
the RFC assessment.

Regarding Kameisha’s claim of back

Id.

pain and numbness caused by medication, the hearing officer gave
Kameisha the benefit of the doubt and incorporated additional
limitations to the RFC.

Id.

The hearing officer then observed

that Kameisha’s alleged breathing problems and coordination
difficulties had no support in the medical record.

Id.

He also

noted that Kameisha “was independent in all activities of daily
living except for his upper extremity problems and other exams
were essentially normal.”

Id.

According to Kameisha, the hearing officer erred in
comparing Kameisha’s subjective allegations of pain with the RFC
finding instead of the medical evidence.

Kameisha’s Mem. 12.

This statement in the hearing officer’s decision comes from a
decision template provided by the Commissioner and is widely
used by hearing officers across the country; the Commissioner
19

admits, however, that this statement has lead to criticism for
its ambiguity, especially in the Seventh Circuit.

See Def.’s

Mem. 14; Bjornson v. Astrue, 671 F.3d 640, 644-46 (7th Cir.
2012); see also Gehm v. Astrue, No. 3:10-CV-1170, 2013 WL 25976,
at *5 & n.6 (N.D.N.Y. Jan. 2, 2013) (Nurd, D.).

Reading the

governing regulations and the case law of this Circuit, the
hearing officer ought indeed assess a claimant’s credibility
with regard to the objective evidence and not his own
administrative determination of the RFC.
404.1529(a); Genier, 606 F.3d at 49.

See 20 C.F.R. §

Despite this ambiguous

statement, however, the hearing officer may still adequately
justify his assessment of the claimant’s credibility with
respect to the rest of the evidence, as “this erroneous
boilerplate language does not merit remand if the [hearing
officer] offers specific reasons to disbelieve the claimant’s
testimony.”

Abdulsalam v. Comm’r of Social Sec., No. 5:12-cv-

1631(MAD), 2014 WL 420465, at *7 (N.D.N.Y. Feb. 4, 2014)
(D’Agostino, M.) (internal quotation marks omitted).
Despite his use of this ambiguous statement, the hearing
officer, when evaluating Kameisha’s credibility, properly
compared Kameisha’s allegations with the objective evidence.
See Admin. R. 23.

The hearing officer explained his comparison

of each alleged limitation with the medical record, granting to
Kameisha credit for his left upper extremity impairment, the
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benefit of the doubt for his back pain and numbness, and no
credit for his breathing problems and coordination difficulties.
Id.

While recognizing the ambiguous language used in the

hearing officer’s decision, this Court concludes that the
hearing officer’s references to specific pieces of objective
evidence in the record mean that his determination regarding
Kameisha’s credibility was supported by substantial evidence.
C.

Correct Reliance on Vocational Expert’s Testimony

Kameisha claims that the vocational expert’s testimony did
not constitute substantial evidence.

Kameisha’s Mem. 14.

This

argument relies on Kameisha’s prior contention regarding the
hearing officer’s failures to develop the administrative record
and to adequately assess Kameisha’s credibility.

Id.

According

to Kameisha, the hypothetical questions asked to Newton did not
include all of Kameisha’s impairments.

Id.

Were that the case,

the hearing officer’s finding at the last of step of the
disability’s assessment would therefore not be supported by
substantial evidence.

Id.

This Court has determined that the hearing officer
respected his duty to develop the administrative record and
correctly evaluated Kameisha’s credibility.

The hearing

officer’s hypothetical to Newton was therefore complete with all
of Kameisha’s credible limitations.

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This Court concludes that

the hearing officer has discharged his duty at the last step and
correctly assessed Kameisha as not disabled.
V.

CONCLUSION
For the foregoing reasons, the Court GRANTS the

Commissioner’s motion for judgment, ECF No. 12, and DENIES
Kameisha’s motion to reverse the hearing officer’s decision or
remand for further hearing, ECF No. 11.
SO ORDERED.

Dated: April 3, 2015

_/s/ William G. Young_
WILLIAM G. YOUNG
DISTRICT JUDGE

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