Stevens v. Astrue

Filing 13

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Stevens' complaint (Dkt No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 3/21/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LISA ELLEN STEVENS,
Plaintiff,

5:12-cv-1366
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Stanley Law Offices
215 Burnet Avenue
Syracuse, NY 13203
Law Offices of Kenneth Hiller, PLLC
6000 North Bailey Avenue - Suite 1A
Amherst, NY 14226
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278

JAYA A. SHURTLIFF, ESQ.

KENNETH R. HILLER, ESQ.

BENIL ABRAHAM
Special Assistant U.S. Attorney

Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Lisa Ellen Stevens challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. §§ 405(g)
and 1383(c)(3). (Compl., Dkt. No. 1.) After reviewing the administrative
record and carefully considering Stevens’ arguments, the court affirms the
Commissioner’s decision and dismisses the complaint.
II. Background
On April 27, 2010 and April 28, 2010, Stevens filed applications for
DIB and SSI, respectively, under the Social Security Act (“the Act”),
alleging disability since November 14, 2008. (Tr.1 at 85-86, 249-55, 25659.)2 After her applications were denied, (id. at 98-104), Stevens

1

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

8.)
2

Stevens’ application for DIB reflects an alleged onset date of September 14, 2008.
(Tr. at 249.) The discrepancy between the alleged onset dates, which apparently went
unnoticed by the Administrative Law Judge, (Tr. at 38), is of no moment.
2

requested a hearing before an Administrative Law Judge (ALJ), (id. at
109), which was held on August 25, 2011, (id. at 36-84). On September
12, 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. (Id. at 14, 19-35.)
Stevens commenced the present action by filing her complaint on
September 6, 2012, wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (Dkt. Nos. 7, 8.) Each
party, seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 10, 11.)
III. Contentions
Stevens contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 10 at
11-25.) Specifically, Stevens claims that: (1) the ALJ committed factual
and legal errors at step three by failing to find that Stevens met listing
12.04; (2) the ALJ’s determination of Stevens’ mental residual functional
capacity (RFC) was unsupported by substantial evidence because she
gave no weight to Stevens’ treating physician and little weight to the
3

examining physician; (3) the ALJ failed to develop the record in regard to
Stevens’ exertional RFC; (4) the ALJ did not apply the appropriate legal
standards in assessing Stevens’ credibility; and (5) the ALJ erroneously
relied on the testimony of a vocational expert (VE) in making her step five
determination. (Id.) The Commissioner counters that the appropriate legal
standards were used by the ALJ and her decision is also supported by
substantial evidence. (Dkt. No. 11 at 2-17.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 10 at 3-11; Dkt. No. 11 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)3 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.

3

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

Mar. 19, 2008).
VI. Discussion
A.

Listing 12.04
First, Stevens contends that the ALJ committed factual and legal

errors at step three. (Dkt. No. 10 at 13-15.) Specifically, Stevens claims
that her affective disorder meets the criteria of listing 12.04(B) and listing
12.04(C). (Id.) In opposition, the Commissioner argues that the ALJ’s
findings with respect to the paragraph B criteria are supported by
substantial evidence,4 and, with respect to listing 12.04(C), the two-year
durational requirement was not met and the medical evidence of record did
not establish the presence of the paragraph C criteria. (Dkt. No. 11 at 6-8.)
The court agrees with the Commissioner.
As an initial matter, affective disorders, which are “[c]haracterized by
a disturbance of mood, accompanied by a full or partial manic or
depressive syndrome,” constitute a listing level impairment, and
presumptive disability, provided that the claimant meets the requirements
set forth in paragraphs A and B, or the claimant satisfies the requirements

4

“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).
5

set forth in paragraph C. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04.
Here, the parties do not dispute whether the paragraph A criteria were met,
and instead address only whether the paragraph B and C criteria were met.
Thus, the court separately considers the paragraph B and C requirements
below.
1.

Paragraph B Criteria

Paragraph B requires that a plaintiff’s mental impairment result in at
least two of the following: “(1) [m]arked restriction of activities of daily
living; or (2) [m]arked difficulties in maintaining social functioning; or (3)
[m]arked difficulties in maintaining concentration, persistence, or pace; or
(4) [r]epeated episodes of decompensation, each of extended duration.”
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04(B).
Here, ultimately concluding that the paragraph B criteria were not
met, the ALJ found that Stevens suffered from mild limitations in activities
of daily living, moderate restrictions in social functioning, moderate
difficulties with regard to concentration, persistence or pace, and no
episodes of decompensation. (Tr. at 25-26.) In so deciding, the ALJ relied
on hearing testimony, the opinion of state agency psychological consultant,
Dr. T. Inman-Dundon—who found that Stevens had not met the criteria of
6

any listing—findings from state psychological consultant Dr. Jeanne A.
Shapiro’s psychiatric examination, and an activities of daily living report,
completed by Stevens. (Id. at 25, 36-84, 300-12, 382-86, 391-406.)
First, with respect to activities of daily living, the record establishes
that Stevens was able to care for her personal and household needs,
prepare holiday meals, iron, drive, occasionally travel to see her father,
take an online course, grocery shop, and care for her two dogs. (Id. at 4344, 63-64, 65-67, 303-06, 382, 385.) Thus, substantial evidence supports
the ALJ’s decision that Stevens suffered from only a mild impairment in
activities of daily living.
Second, with respect to social functioning, the record fails to
establish that Stevens suffered from marked restrictions. Instead, the
record indicates that Stevens has moderate social functioning. Stevens
lives with her boyfriend, spoke on the phone with her son when he was
serving in the military and lived with her son for some time when he was
released from the military, regularly traveled to doctor’s appointments,
occasionally traveled to visit her father, and stated that she had no problem
getting along with people in authority or with her family and friends. (Id. at
42-43, 66, 302, 307-08, 385.) Given this evidence, while Stevens certainly
7

has some social limitations, the ALJ’s decision that she suffered from not
more than moderate restrictions in social functioning is supported by
substantial evidence.
Third, with regard to concentration, persistence, and pace, Stevens is
able to count change, handle a savings account, and generally manage
household finances. (Id. at 306.) Dr. Shapiro also noted that Stevens
enrolled in an online course, had adequate recent and remote memory
skills, and was able to maintain attention and concentration and perform
serial threes. (Id. at 382, 384.) Again, while Stevens certainly has some
limitations, the ALJ’s decision that Stevens suffered from moderate
restrictions in concentration, persistence, and pace is supported by
substantial evidence.
Finally, there is no evidence that Stevens suffered any episodes of
decompensation. Stevens’ related argument that the ALJ failed to properly
weigh the opinion of her treating physician, Dr. V. Patil, (Dkt. No. 10 at 1415; Tr. at 497), will be addressed below, see infra Part VI.B.1. Thus, the
ALJ correctly determined that paragraph B criteria were not met.
2.

Paragraph C Criteria

The paragraph C criteria are met, provided that the claimant has a:
8

Medically documented history of a chronic affective disorder
of at least [two] years’ duration that has caused more than a
minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of
extended duration; or
2. A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04(C); see 20 C.F.R.
§ 404.1520(d).
Stevens contends that she meets the paragraph C criteria based
solely on Dr. Patil’s opinion that she has “[a] residual disease process that
has resulted in such marginal adjustment that even a minimal increase in
mental demands or change in the environment would be predicted to
cause the individual to decompensate.” (Dkt. No. 10 at 13; Tr. at 394.)
Although the court addresses below the ALJ’s apportionment of weight
among the medical sources, see infra Part VI.B.1, the court notes that Dr.
Patil’s opinion, by itself, does not establish that Stevens meets the
paragraph C criteria because it does not indicate the prerequisite
requirement that she had a “[m]edically documented history of a chronic
9

affective disorder of at least [two] years’ duration” or contain any
explanation for his determination. 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.04(C). Furthermore, Dr. Inman-Dundon found that the medical
evidence of record did not establish that Stevens met the paragraph C
criteria. (Tr. at 402.)
Accordingly, the ALJ’s determination that Stevens does not meet
listing 12.04 is supported by substantial evidence.
B.

RFC Determination
The ALJ found Stevens to retain the RFC5 to perform light work,

except that:
she is limited to occasional climbing of ramps and stairs; can
never climb ladders, ropes, or scaffolds; is limited to
occasional kneeling, crawling, stooping, crouching and
balancing; is limited to simple, routine, repetitive tasks;
reminders to perform tasks are not necessary; is unable to
perform at a production rate pace; needs to be in a low-stress
as defined as occasional changes to work setting and
occasional decision-making; is limited to making simple
decisions occasionally; should have no more than occasional
interaction with coworkers, supervisors, and the public;
requires a sit-stand option as needed; and is limited to
occasional exposure to extremes in temperature, humidity,
5

A claimant’s RFC “is the most [she] can still do despite [her] 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. at § 404.1545(a)(3). An ALJ’s RFC determination must be supported by substantial
evidence in the record. See 42 U.S.C. § 405(g).
10

and wetness.
(Tr. at 26.) Stevens takes issue with the ALJ’s determination of both her
mental and physical RFC. (Dkt. No. 10 at 15-21.) Each will be addressed
in turn below.
1.

Mental RFC

Stevens contends that the ALJ improperly afforded great weight to
the opinion of non-examining state psychological consultant Dr. InmanDundon, and gave no weight to the opinion of treating physician Dr. Patil
and only little weight to the state agency consultative psychologist Dr.
Shapiro. (Id. at 15-19.) Stevens claims that the ALJ’s misappropriation of
weight to the medical sources resulted in a flawed RFC determination. (Id.
at 15-19.) The Commissioner counters that the ALJ properly discounted
Dr. Patil’s RFC assessment because it was inconsistent with other
substantial evidence in the record. (Dkt. No. 11 at 12-14.) The court
agrees with the Commissioner.
Generally, an ALJ is required to give controlling weight to a treating
physician’s medical opinion if it is supported by acceptable diagnostic
techniques and is not inconsistent with other substantial evidence in the
record. See 20 C.F.R. § 404.1527(c)(2); Halloran v. Barnhart, 362 F.3d
11

28, 32 (2d Cir. 2004). The ALJ is required to explain the weight she gives
to the opinions of a treating physician. See 20 C.F.R. § 404.1527(c)(2).
When an ALJ does not give a treating physician’s opinion controlling
weight, she must assess several factors to determine how much weight to
give the opinion, including: (1) the length, nature, and extent of the
treatment relationship; (2) the frequency of examination by the treating
physician for the conditions in question; (3) the medical evidence and
explanations provided in support of the opinion; (4) the consistency of the
opinion with the record as a whole; (5) the qualifications of the treating
physician; and (6) other relevant factors tending to support or contradict
the opinion. See id. § 404.1527(c)(2)-(6). The opinion of a non-examining
source can override the opinion of an examining source if it is supported by
evidence in the record. See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir.
1995); see also Netter v. Astrue, 272 F. App’x 54, 55-56 (2d Cir. 2008);
Beasock v. Colvin, No. 6:12-cv-1355, 2014 WL 421324, at *9 (N.D.N.Y.
Feb. 4, 2014); Everson v. Comm’r of Soc. Sec., No. 6:11-cv-901, 2012 WL
3061944, at *2 (N.D.N.Y. July 26, 2012).
Although the ALJ could have discussed the factors listed in 20 C.F.R.
§ 404.1527(c)(2)-(6) in more detail, this shortcoming does not amount to
12

error because her ultimate determination is supported by substantial
evidence. Not only was Dr. Patil’s report completed over a year after he
last examined Stevens, (Tr. at 492-97), but, more importantly, it departed
from the thrust of other substantial evidence in the record.6 (Id. at 29.) In
his mental impairment questionnaire, Dr. Patil opined that Stevens had
marked limitation in: (1) remembering work-like procedures;
(2) understanding, remembering, and carrying out very short and simple
instructions; (3) maintaining attention for two-hour segments; (4) making
simple work-related decisions; (5) completing a normal workday and
workweek without interruptions; (6) accepting instructions and responding
appropriately to criticism from supervisors; (7) getting along with coworkers
or peers without unduly distracting them or exhibiting behavioral extremes;
(8) responding appropriately to changes in a routine work setting; and (9)
dealing with normal work stress. (Tr. at 495-96.) Dr. Patil further opined

6

Additionally, Dr. Shapiro’s conclusions are internally inconsistent with her own
evaluation findings. Dr. Shapiro’s medical source statement concluded that Stevens may
have difficulty adequately understanding and following some instructions and directions,
completing tasks, interacting appropriately with others, attending work or maintaining a
schedule. (Tr. at 385.) During the exam, however, Dr. Shapiro noted that Stevens stated
that her symptoms had improved, she recently enrolled to take an online course, and she
denied any past psychiatric hospitalizations. (Id. at 382-83.) Also during the exam, Dr.
Shapiro noted that Stevens was cooperative, exhibited adequate relating and social skills,
and demonstrated coherent and goal-directed thought processes. (Id. at 384.) Given
these internal inconsistencies, the ALJ properly afforded Dr. Shapiro little weight.
13

that Stevens’ global assessment of functioning (GAF)7 score was currently
in the fifty-five to sixty range, but that her maximum GAF in the last year
was sixty-five.8 (Id. at 492.)
The ALJ, however, found Dr. Patil’s functional restrictions to be both
unsupported by the treatment records and internally inconsistent. (Id. at
29.) The court agrees that the functional restrictions are unsupported by
the treatment records, and in particular, the treatment records from
Oswego Hospital, Behavior Services Division. Stevens first visited
Oswego Hospital, Behavior Services Division on April 15, 2010, and
presented with problems of anxiety, panic attacks, and poor sleep. (Id. at
425.) Progress notes dated approximately one month later, on May 10,
2010, demonstrate that Stevens was responding well to, and her
symptoms were controlled by, the medication. (Id. at 424.) Stevens was
seen nearly once per month over the next year by Oswego Hospital,
Behavior Services Division. (Id. at 422-24, 473-86.) At these
7

The GAF Scale “ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186 n.1
(2d Cir. 2004).
8

A GAF score of fifty-one to sixty indicates moderate symptoms, while a GAF score
of sixty-one to seventy indicates the existence of some mild symptoms, or some difficulty in
social, occupational, or school functioning, but also that the individual is able to function
fairly well and has some meaningful interpersonal relationships. See Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed., Text Rev. 2000).
14

appointments, she reported that her symptoms were stable or improving,
and that her appetite, concentration, and focus were good, despite
occasional difficulty sleeping. (Id.) She also consistently reported that the
medication was helping, that there were no side effects to her medications,
and that she hoped she would continue to get better. (Id.) Up until her last
documented appointment on April 13, 2011, (id. at 473)—nearly one year
after her first appointment, (id. at 425)—Stevens’ concentration and focus
were good, and her thought processes and speech were normal, despite
some mild depression and anxiety, (id. at 422-24, 473-86).
Dr. Patil’s medical source statement is also inconsistent with
treatment records from Upstate Comprehensive Pain Clinic. Indeed, on
July 30, 2010, during a mental status exam, Stevens exhibited no
depression, anxiety, or agitation, her insight and memory were intact, and
she was oriented to time, place, and person. (Id. at 454-55.) Stevens also
underwent mental status examinations on August 18, 2010, September 3,
2010, September 24, 2010, October 22, 2010, May 13, 2011, and June 14,
2011, and the findings remained unchanged. (Id. at 457-58, 461, 464,
467-68, 499, 502-04.)
Ultimately, Dr. Patil’s restrictive medical source statement is belied
15

by, and inconsistent with, Stevens’ treatment records from Oswego
Hospital, Behavior Services Division and Upstate Comprehensive Pain
Clinic. Dr. Inman-Dundon, however, determined that Stevens has mild
restrictions of activities of daily living, moderate difficulties in maintaining
social functioning, moderate difficulties in maintaining concentration,
persistence, and pace, and no repeated episodes of decompensation. (Tr.
at 391-406.) As the ALJ concluded, Dr. Inman-Dundon’s opinion is more
consistent with the record medical evidence discussed above.
Accordingly, notwithstanding Stevens’ claims to the contrary,9 it follows that
the ALJ’s assignment of weight and assessment of Stevens’ mental RFC
are supported by substantial evidence, and, thus, affirmed.
2.

Physical RFC

Stevens also argues that the ALJ erred in determining her physical
RFC by failing to make a function-by-function finding, rely on medical
opinion evidence to formulate the opinion, and develop the record. (Dkt.

9

Stevens also offers an alternative argument that, if the ALJ found a conflict,
ambiguity, gap in the record, or another inconsistency with Dr. Patil’s medical source
statement, she was under a duty to recontact Dr. Patil to clarify her concerns. (Dkt. No. 10
at 18-19.) This argument is unavailing. The ALJ was required to recontact Dr. Patil “only if
the records received were ‘inadequate . . . to determine whether [Stevens was] disabled,’”
which was not the case here. Brogan-Dawley v. Astrue, 484 F. App’x 632, 634 (2d Cir.
2012) (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996)); see Carvey v. Astrue, 380 F.
App’x 50, 53 (2d Cir. 2010).
16

No. 10 at 19-21.) The Commissioner counters, and the court agrees, that
the ALJ fulfilled her obligation to develop the record, was not required to
make a function-by-function finding, and considered all of the medical
evidence in formulating her RFC, which is supported by substantial
evidence. (Dkt. No. 11 at 9-11.)
First, Stevens’ contention that the ALJ did not rely on medical opinion
evidence is misguided. Stevens argues that, because the ALJ afforded Dr.
Kalyani Ganesh’s opinion “little weight,” the ALJ “formulate[d] her own
opinion as to what the clinical findings and objective medical dat[a]
revealed as to Stevens’ ability to engage in light work on a regular and
continuing basis.” (Dkt. No. 10 at 21.) In fact, however, after reviewing Dr.
Ganesh’s opinion, the ALJ concluded that it was entitled to little weight
because “the evidence of record shows greater functional limitations” than
Dr. Ganesh’s opinion suggested. (Tr. at 28 (emphasis added).) In making
this determination, the ALJ considered the other medical evidence in the
record, which included extensive treatment notes from Stevens’ physicians
at Upstate Comprehensive Pain Clinic, including Drs. Donna-Ann Thomas,
Kevin O’Keefe, Heather Tiller, Scott Van Valkenburg, P. Sebastian
Thomas, and MBBS Umesh Metkar, (id. at 27, 367-72, 430-41, 453-72),
17

along with MRI scans and other clinical findings, (id. at 27, 341-45, 346,
351, 352, 353-58, 359, 378-80). Based on these records, the ALJ
determined that Stevens was more limited than Dr. Ganesh’s opinion
suggested. (Id. at 27-29.) Accordingly, the ALJ relied on appropriate
medical opinions, including that of Dr. Ganesh, in formulating Stevens’
RFC.
Next, Stevens’ argument that the ALJ did not adequately develop the
record by failing to obtain a treating medical source opinion, (Dkt. No. 10 at
19-21), is also without merit. While the ALJ has an affirmative obligation to
develop the administrative record, her duty to do so is not without limit.
See Guile v. 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). “Notably, the lack of
a medical source statement from a treating physician, will not, by itself,
18

necessarily render the record incomplete.” Bell v. Colvin, No. 5:12-cv1527, 2013 WL 6283834, at *3 (N.D.N.Y. Dec. 4, 2013) (citing 20 C.F.R.
§ 404.1513(b)(6); Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013)).
Here, the ALJ had before her Stevens’ treatment records, objective
medical evidence, including MRIs, and Dr. Ganesh’s opinion. (See
generally Tr. at 341-346, 351-359, 367-72, 378-80, 430-41, 453-72.) In her
disability report, Stevens indicated that she received medical treatment
from Oswego Health Center, Oswego Behavior Services, and University
Hospital. (Id. at 295-98.) The ALJ obtained records from each of these
providers, (id. 332-81, 421-522), and had Stevens attend psychiatric and
internal medicine consultative examinations, (id. at 382-90). Thus, the
court is satisfied that further development of the record was unnecessary
because the ALJ had before her substantial evidence that enabled her to
render a decision. See Firpo v. Chater, 100 F.3d 943 (Table), 1996 WL
49258, at *2 (2d Cir. Feb. 7, 1996); Bell, 2013 WL 6283834, at *3.
Finally, although the ALJ did not provide a function-by-function
analysis of Stevens’ physical capabilities, the ALJ’s decision examined the
relevant factors in reaching an RFC determination, (Tr. at 26-29), and the
ultimate determination was supported by substantial evidence. Further, the
19

ALJ stated that her RFC assessment was based on careful consideration
of the entire record, and she thoroughly reviewed the medical evidence in
formulating her RFC. (Id.) In support of the ALJ’s determination that
Stevens can perform light work, the record shows that Stevens could
ambulate without difficulty and did not have significant neurologic deficits,
(id. at 437), and imaging showed that Stevens had a relatively normal
lumbar spine with no degenerative disc disease, (id. at 431). Moreover,
progress notes indicated that Stevens previously had steroid injections in
her back, which helped, (id. at 440, 457), and that her pain was improving
with medication, (id. at 438, 440). While the ALJ could have provided
further clarification with respect to Stevens’ capabilities, this shortcoming
does not amount to legal error. (Id. at 26-29); see Cichocki v. Astrue, 729
F.3d 172, 177-78 (2d Cir. 2013); Irizarry v. Astrue, No. 5:09-cv-1370, 2012
WL 177969, at *2 (N.D.N.Y. Jan. 23, 2012).
Accordingly, the ALJ’s RFC determination is supported by substantial
evidence and free from legal error.
C.

Credibility Assessment
Stevens next argues that the ALJ did not apply the appropriate legal

standards in assessing her credibility. (Dkt. No. 10 at 21-24.) Specifically,
20

she contends that the ALJ improperly compared the consistency of
Stevens’ statements with the ALJ’s own RFC finding and failed to consider
Stevens’ precipitating factors, medications, or other methods she uses to
alleviate her symptoms.10 (Id.) The Commissioner argues, and the court
agrees, that, in light of inconsistencies in the record that call into question
Stevens’ credibility, it was reasonable for the ALJ to find Stevens’
subjective allegations not credible to the disabling extent claimed. (Dkt.
No. 11 at 14-16.)
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[ ] that could reasonably be expected to produce
the [symptoms] alleged,” she “must evaluate the intensity and persistence
of those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the
10

Stevens also argues, again, that the ALJ failed to develop the record by not
requesting a retrospective opinion from a treating source physician to clarify why Stevens
did not seek mental health treatment for the first seventeen months after finding her
husband dead. (Dkt. No. 10 at 23.) Having already determined that the ALJ fulfilled her
duty to develop the record, see supra Part VI.B.2, the court declines to address this issue
again.
21

ALJ “must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg. 34,
483, 34,485 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms;
3) precipitating and aggravating factors; 4) type, dosage, effectiveness and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
§ 404.1529(c)(3)(i)-(vi)).
Here, the ALJ found that Stevens’ statements concerning the
intensity, persistence and limiting effects of her symptoms were not fully
credible. (Tr. at 27, 29.) In making her determination, the ALJ relied on
Stevens’ treatment records, activities of daily living, testimony regarding
her functional abilities, and the opinion of Dr. Inman-Dundon. (Id. at 2729.) Although the ALJ did not undertake a step-by-step exposition of the
factors articulated in 20 C.F.R. § 404.1529(c), “[f]ailure to expressly
consider every factor set forth in the regulations is not grounds for remand
where the reasons for the ALJ’s determination of credibility are sufficiently
22

specific to conclude that [s]he considered the entire evidentiary record.”
Judelsohn v. Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6 (W.D.N.Y.
June 25, 2012) (internal quotation marks and citation omitted); see
Oliphant v. Astrue, No. 11-CV-2431, 2012 WL 3541820, at *22 (E.D.N.Y.
Aug. 14, 2012) (stating that the 20 C.F.R. § 404.1529(c)(3) factors are
included as “‘examples of alternative evidence that may be useful [to the
credibility inquiry], and not as a rigid, seven-step prerequisite to the ALJ’s
finding’” (quoting Snyder v. Barnhart, 323 F. Supp. 2d 542, 546 (S.D.N.Y.
2004))). Here, the ALJ explicitly acknowledged consideration of the 20
C.F.R. § 404.1529 factors, (Tr. at 26), and it is evident from her thorough
discussion that her credibility determination was legally sound. See Britt v.
Astrue, 486 F. App’x 161, 164 (2d Cir. 2012) (finding explicit mention of 20
C.F.R. § 404.1529 and SSR 96-7p as evidence that the ALJ used the
proper legal standard in assessing the claimant's credibility). Moreover, it
is evident from the ALJ’s credibility analysis that her “reference to
consistency with the RFC determination was merely an indication that the
RFC determination incorporated those findings.” Bell, 2013 WL 6283834,
at *4; (Tr. at 27, 29).
Finally, as the Commissioner points out, inconsistencies in Stevens’
23

testimony call her credibility into question. (Dkt. No. 11 at 15-16.) For
example, while her medical records showed that she did not have side
effects from her medications, which she claimed were generally working,
(Tr. at 423-24), at the hearing, she claimed that her medication caused
concentration problems, (id. at 62). Additionally, despite her complaints of
back pain, her activities of daily living—upon which the ALJ heavily
relied—suggest that she is capable of performing simple, routine, and
repetitive tasks. The record showed that Stevens was able to care for her
personal and household needs, prepare holiday meals, iron, drive, shop,
and care for her two dogs. (Id. at 43-44, 63-64, 65-67, 303-06, 382, 385.)
Although, as the ALJ acknowledged, “the weight of the evidence
concerning the claimant’s daily activities does not control the outcome, it
nevertheless provides respective and significant confirmation of [her] ability
to perform work.” (Id. at 29.) Thus, the ALJ’s credibility assessment is
supported by substantial evidence and free from legal error.
D.

Vocational Expert Testimony
Lastly, Stevens argues that the VE testimony cannot provide

substantial evidence to support the denial. (Dkt. No. 10 at 24-25.)
Specifically, she alleges that the ALJ’s errors in developing the record,
24

weighing of medical opinion evidence, and determining the RFC fatally
undermine the step five determination. (Id.) As discussed above,
however, the ALJ’s development of the record, weighing of medical opinion
evidence, and RFC determination were legally sound and are supported by
substantial evidence. Further, the hypothetical question posed to the VE
appropriately encompassed the restrictions contained in the ALJ’s RFC
analysis. (Tr. at 30-31.) As such, the ALJ’s step five determination was
free of legal error and is supported by substantial evidence. See Mancuso
v. Astrue, 361 F. App’x 176, 179 (2d Cir. 2010) (explaining that, if the ALJ’s
RFC assessment is supported by substantial evidence, it is appropriate for
her to rely on that RFC assessment in questioning the VE).
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Stevens’ complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.

25

March 21, 2014
Albany, New York

26