Jackson v. Colvin

Filing 21

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Jackson's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 8/20/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
EDWARD LUTHER JACKSON,
Plaintiff,

5:14-cv-756
(GLS)

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter M. Hobaica, LLC
2045 Genesee Street
Utica, NY 13501
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
Gary L. Sharpe
Chief Judge

B. BROOKS BENSON, ESQ.

DANIEL R. JANES
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Edward Luther Jackson 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 Jackson’s arguments, the
Commissioner’s decision is affirmed and Jackson’s complaint is dismissed.
II. Background
On January 4, 2011, Jackson filed applications for DIB and SSI
under the Social Security Act (“the Act”), alleging disability since December
30, 2010. (Tr.1 at 91-92, 161-67, 168-77.) After his applications were
denied, (id. at 93-100), Jackson requested a hearing before an
Administrative Law Judge (ALJ), (id. at 101), which was held on July 24,
2012, (id. at 38-90). On October 9, 2012, the ALJ issued an unfavorable
decision denying the requested benefits, (id. at 17-37), which became the
Commissioner’s final determination upon the Social Security Administration

1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

2

Appeals Council’s denial of review, (id. at 1-7).
Jackson commenced the present action by filing his complaint on
June 20, 2014, 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. (Dkt. Nos. 8, 9.) Each
party, seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 16, 19.)
III. Contentions
Jackson contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 16 at
12-25.) Specifically, Jackson claims that the ALJ: (1) failed to develop the
record by refusing to schedule Jackson for a consultative intelligence
examination; (2) erroneously determined Jackson’s residual functional
capacity (RFC); (3) improperly evaluated Jackson’s credibility by failing to
make required findings; and (4) erred at step five by failing to consult a
vocational expert (VE). (Id.) The Commissioner counters that the
appropriate legal standards were used by the ALJ and his decision is also
supported by substantial evidence. (Dkt. No. 19 at 2-16.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
3

No. 16 at 1-12; Dkt. No. 19 at 1.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 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).
VI. Discussion
A.

Development of the Record and Listing 12.05(C)
Jackson first argues that the ALJ failed to develop the record when

he refused to schedule a consultative intelligence evaluation. (Dkt. No. 16
at 12-15.) More specifically, Jackson contends that the failure to order an
intelligence evaluation compromised the ALJ’s step three determination,
because the test could have led to a finding that Jackson was disabled
under Listing 12.05(C). (Id.) The Commissioner counters that an

2

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

intelligence examination was not warranted because IQ scores had already
been submitted to the ALJ, and they did not fall within the range required
by Listing 12.05(C). (Dkt. No. 19 at 5-7.) The Commissioner further
argues that, even if Jackson had a qualifying IQ score, he does not meet
Listing 12.05(C) because he failed to show that he has deficits in adaptive
functioning which manifested prior to age twenty-two. (Id.) The court
agrees with the Commissioner.
While the ALJ has an affirmative obligation to develop the
administrative record, his 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 his 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). The regulations provide that a consultative examination
may be warranted “to resolve an inconsistency in the evidence, or when
the evidence as a whole is insufficient to . . . make a determination or
5

decision on [a] claim.” 20 C.F.R. § 404.1519a(b).
At step three of the disability analysis, the ALJ must determine if a
claimant suffers from a listed impairment. See id. § 404.1520(a)(4)(iii). It
is the burden of the plaintiff to establish that his medical conditions meet all
of the specific medical criteria of a particular listed impairment. See Pratt
v. Astrue, No. 7:06-CV-551, 2008 WL 2594430, at *6 (N.D.N.Y. June 27,
2008) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). Listing 12.05 is
entitled “Intellectual disability.” 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.05.
In order to meet the requirements of Listing 12.05(C)—the Listing at issue
here—a claimant must show “(1) below average intellectual function with
adaptive functioning deficits manifested before age [twenty-two] and
continuing during the claim period, (2) a valid IQ score of [sixty] through
[seventy], and (3) an impairment, other than [his] low IQ, that imposes an
additional and significant work-related limitation of functioning.” Lyons v.
Colvin, No. 7:13-CV-00614, 2014 WL 4826789, at *6 (N.D.N.Y. Sept. 29,
2014) (internal quotation marks and citations omitted).
Here, Jackson claims that the ALJ failed to fully develop the record
when he refused to order a consultative intelligence evaluation because
there was evidence in the record that suggested that he might meet Listing
6

12.05(C). (Dkt. No. 16 at 12-15.) The evidence that Jackson points to are
two IQ scores of eighty-seven and seventy-two, which were obtained when
he was in the sixth and tenth grade, respectively. (Id.; Tr. at 256.) Given
those low scores, Jackson argues, the ALJ should have scheduled
additional testing so that Jackson could be “fully evaluated.” (Dkt. No. 16
at 12-15; Tr. at 41-42.) Without a recent IQ score, Jackson claims that the
ALJ could not properly assess whether he met the requirements for Listing
12.05(C). (Dkt. No. 16 at 12-15.) The court disagrees.
As an initial matter, the court notes that the ALJ’s decision is devoid
of any mention of Listing 12.05(C). This omission troubles the court more
than the ALJ’s failure to schedule an intelligence test. Conversations
between the ALJ and Jackson’s counsel during the hearing, however, may
shed light on why the ALJ omitted a specific discussion of Listing 12.05(C).
In that conversation, the ALJ stated that he was unlikely to schedule a
cognitive examination because he did not believe that this was a case “that
could potentially be evaluated under 12.05C, because the scores have to
be below a certain level,” which they were not. (Tr. at 42.) Nevertheless,
the ALJ stated that he would specifically question Jackson on his reading
and writing abilities, and make a decision at the end of the hearing as to
7

whether an intelligence test was necessary. (Id.) After extensively
questioning Jackson on his reading, writing, and quantitative abilities, in
addition to his activities of daily living and social habits, the ALJ found
additional testing to be unwarranted. (Id. at 88.) Specifically, the ALJ
stated that he was “not going to find that [Jackson] has mental retardation,”
because Jackson is “at least functioning at the . . . borderline level,” but he
also stated that he would “certainly . . . take [Jackson’s cognitive
limitations] into consideration” and not “disregard” them. (Id. at 88-89.)
Given what transpired at the hearing and the ALJ’s own assurances,
it would have been prudent for the ALJ to thoroughly discuss Listing
12.05(C) in his decision, more clearly explain why a consultative
intelligence examination was unnecessary, and specifically outline why
Jackson does not meet the Listing 12.05(C) requirements. For three
primary reasons, however, the court is not persuaded that the ALJ’s failure
to do so constitutes reversible error. First, there is some evidence in the
ALJ’s decision that indicates that he considered the Listing 12.05(C)
requirements after the hearing, such as his reference to Jackson’s
education records and Jackson’s history of special education classes. (Id.
at 23); see Clark v. Colvin, No. 6:12-CV-1507, 2013 WL 6795627, at *10
8

(N.D.N.Y. Dec. 18, 2013) (noting that the ALJ’s failure to mention Listing
12.05(C) by its number was harmless error where the court could glean
from the ALJ’s decision that he considered the Listing 12.05(C)
requirements).
Second, the ALJ had before him valid IQ scores, none of which fell
within the sixty to seventy range that is required to meet Listing 12.05(C).
(Tr. at 256.) Indeed, both scores before the ALJ were above seventy, (id.)
and, although they were obtained while Jackson was in high school, in this
Circuit, “in the absence of evidence indicating otherwise, . . . claimants will
experience a fairly constant IQ throughout [their] li[ves].” Talavera v.
Astrue, 697 F.3d 145, 152 (2d Cir. 2012) (internal quotation marks and
citation omitted). Thus, in light of the scores already available to the ALJ,
Jackson failed to meet one of the requirements of Listing 12.05(C), and it
was not legal error for the ALJ to conclude that additional testing was
unnecessary.
Third, as noted above, even if Jackson did have a qualifying score,
he would also need to demonstrate deficits in adaptive functioning that
initially manifested before he reached the age of twenty-two. See id. at
153; 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.05. The court is not satisfied
9

that Jackson has met his burden. Indeed, even in his memorandum of law,
Jackson ignores this requirement altogether. (Dkt. No. 16 at 12-15.)
“Adaptive functioning refers to an individual’s [ ]ability to cope with the
challenges of ordinary everyday life,” and “courts have held that if one is
able to satisfactorily navigate activities such as liv[ing] on [one’s] own, . . .
pay[ing] bills, and avoid [ing] eviction, one does not suffer from deficits in
adaptive functioning.” Talavera, 697 F.3d at 153 (internal quotation marks
and citations omitted). Throughout the hearing, Jackson testified that he
graduated from high school, albeit with the accommodation of special
education classes,3 can read a newspaper article on occasion, can write
simple notes, do basic math, and, at one period of time, was able to
maintain his finances, but now shares household responsibilities with his
girlfriend. (Tr. at 46-50.) He also testified that he is able to perform some
household tasks, such as mow the lawn and make repairs, and, for
recreation, he visits his grandchildren. (Id. at 68-70, 72.) Moreover, as the
ALJ noted, the psychiatric review technique form completed by Dr. C.

3

The court notes that the record is unclear with respect to whether Jackson actually
was part of a special education program. The ALJ notes that his education records do not
indicate that he was, (Tr. at 23), and Dr. C. Butensky, the State Agency review psychologist,
also noted that “the Fulton City School District indicated that [Jackson] was not a sp[ecial]
ed[ucation] student,” (id. at 301).

10

Butensky, the state agency review psychologist, on March 23, 2011,
concludes that Jackson has no restrictions in activities of daily living, social
functioning, maintaining his concentration, persistence, or pace, and no
repeated episodes of decompensation, and, therefore, that Jackson did not
have a medically determinable mental impairment. (Id. at 289-301.) Under
these circumstances, there is substantial evidence to support a conclusion
that, even if the ALJ erred in failing to develop the record, it was harmless,
as Jackson has not demonstrated that he has deficits in adaptive
functioning.
B.

RFC Determination
Next, Jackson argues that the ALJ’s RFC determination is

unsupported by substantial evidence and tainted by legal error because he
improperly gave only some weight, and not controlling weight, to Jackson’s
treating physician, and because he both failed to set forth specific findings
supporting his opinion that Jackson is capable of performing a full range of
light work, and improperly substituted his own opinion that Jackson
possessed the RFC for light work. (Dkt. No. 16 at 15-22, 24-25.) The
Commissioner counters, and the court agrees, that the ALJ’s RFC
determination is both free of legal error and supported by substantial
11

evidence. (Dkt. No. 19 at 7-14.)
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 evidence4 in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Here, the ALJ found that, in the course of an eight-hour workday,
Jackson has the RFC “to lift and/or carry [twenty] pounds occasionally; lift
and/or carry [ten] pounds frequently; stand and/or walk for a total of six
hours; and sit for a total of six hours.” (Tr. at 27-31.) The ALJ further
found that Jackson “retains the ability to communicate adequately with
supervisors, co-workers, and the public.” (Id.) Accordingly, the ALJ
concluded that Jackson possessed the RFC to perform the full range of
light work. (Id. at 31-32.)

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).

12

1.

Evaluation of Record Medical Evidence

First, Jackson argues that the RFC determination is flawed because
the ALJ erred in giving only some weight, rather than controlling weight, to
his treating physician, Dr. Sarah Shirazi. (Dkt. No. 16 at 15-20.) The court
disagrees.
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 404.1527(c).
Controlling weight will be given to a treating physician’s opinion that is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.” Id.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Unless controlling weight is given to a treating source’s opinion, the ALJ is
required to consider the following factors in determining the weight
assigned to a medical opinion: whether or not the source examined the
claimant; the existence, length and nature of a treatment relationship; the
frequency of examination; evidentiary support offered; consistency with the
record as a whole; and specialization of the examiner. See 20 C.F.R.
§ 404.1527(c). “Nevertheless, where the evidence of record permits [the
court] to glean the rationale of an ALJ’s decision,” it is not necessary that
13

the ALJ “have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.” Petrie v. Astrue, 412
F. App’x 401, 407 (2d Cir. 2011) (internal quotation marks and citation
omitted).
Here, the ALJ gave “[s]ome weight” to Dr. Shirazi’s medical source
statement, but only “to the extent [that she] determined that [Jackson]
could lift up to [ten] pounds frequently and up to [twenty] pounds
occasionally, and could carry up to [ten] pounds frequently and up to
[twenty] pounds occasionally,” despite the severe impairments caused by
his degenerative joint disease of the lumbar spine. (Tr. at 23, 30, 324-30.)
The ALJ also gave some weight to Dr. Shirazi’s determination that Jackson
“retain[s] the ability to hear and understand simple oral instructions and to
communicate simple information,” and is able to “use a telephone to
communicate,” despite his hearing loss. (Id.) However, the ALJ found no
support in the record medical evidence for Dr. Shirazi’s conclusion that
Jackson “cannot stand and walk at the light level of exertion, cannot sit at
even a sedentary level of exertion, and requires the use of a cane to
ambulate.” (Id. at 30, 326.) The ALJ found Dr. Shirazi’s latter conclusions
14

to be “completely subjective, unsupported by any treatment notes or
reports . . ., and devoid of any clinical or diagnostic findings” because
“[t]here is nothing in the medical evidence of record . . . to suggest that Dr.
Shirazi has ever treated or examined [Jackson],” and, at the hearing,
Jackson himself “admitted that he only needed to use a cane on an
occasional basis.” (Id. at 30-31.) The ALJ also gave “some weight” to the
consultative internal medicine examination performed by Dr. Joseph
Prezio, in which Dr. Prezio opined that Jackson had no significant physical
restrictions or limitations, but the ALJ ultimately concluded that Jackson
“does have some mild physical limitations,” and limited him to a light level
of exertion. (Id. at 30, 278.)
The ALJ properly weighed the medical evidence of record. As an
initial matter, the court is not convinced that Dr. Shirazi actually qualifies as
a treating physician. Although Jackson submitted to the Appeals Council5
a two-page office note, which demonstrates that Dr. Shirazi examined

5

After Jackson submitted this treatment note, which is dated August 13, 2012, to the
Appeals Council, the Appeals Council erroneously concluded that it pertains to the period of
time following the ALJ’s decision, which was rendered on October 10, 2012. (Dkt. No. 16,
Attach. 2.) Thus, Jackson alternatively seeks remand on the ground that this treatment note
constitutes new evidence. (Id.) Jackson’s request is denied. Despite the Appeals Council’s
obvious error, as further discussed below, this “new evidence” does little, if anything, to bolster
Jackson’s argument that the ALJ improperly weighed the record medical evidence.

15

Jackson on one occasion prior to the ALJ’s decision—the same day that
she completed her medical source statement—one examination is
insufficient to render Dr. Shirazi a treating physician. (Dkt. No. 16, Attach.
3.) A treating source is defined as a claimant’s own “physician,
psychologist, or other acceptable medical source” who has provided the
claimant “with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502.
“The opinion of a treating physician is accorded extra weight because the
continuity of treatment [s]he provides and the doctor/patient relationship
[s]he develops place [her] in a unique position to make a complete and
accurate diagnosis of h[er] patient.” Mongeur v. Heckler, 722 F.2d 1033,
1039 n.2 (2d Cir. 1983). Courts in this Circuit have found that “[d]octors
who see a patient only once do not have a chance to develop an ongoing
relationship with the patient, and therefore are not generally considered
treating physicians.” Shatraw v. Astrue, No. 7:04-CV-0510, 2008 WL
4517811, at *10 (N.D.N.Y. Sept. 30, 2008) (citing Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999)); see Mongeur, 722 F.2d at 1039 n.2.
Further, even if Dr. Shirazi were to be considered a treating
physician, the ALJ properly afforded her opinion less than controlling
16

weight, as it was inconsistent with the record evidence. First, Jackson’s
own testimony and statements undermine the restrictive limitations in Dr.
Shirazi’s medical source statement. For example, Jackson testified at the
hearing that he only uses a cane occasionally and is capable of mowing
the lawn. (Tr. at 68-69, 83.) Further, during his medical examination with
Dr. Prezio, Jackson stated that, despite his lower back pain, he is able to
cook, clean, do laundry, shop, and generally care for his personal needs.
(Id. at 276.) These statements are more consistent with Dr. Prezio’s
findings that Jackson exhibited a normal gait, and had a full range of
motion in his spine, shoulders, elbows, forearms, wrists, hips, knees, and
ankles. (Id. at 277-78.) Accordingly, the weight afforded to the various
opinions by the ALJ, for reasons which are fully articulated in his written
decision, is free of legal error and supported by substantial evidence. (Id.
at 30-31.)
2.

Light Work

Jackson also claims that the ALJ’s determination that Jackson
possessed the RFC to perform the full range of light work was erroneous
because the ALJ “fail[ed] to set forth specific findings supporting his
opinion,” and “improperly substitut[ed] his own opinion” to support his
17

conclusion, which was otherwise not supported by the medical evidence in
the record. (Dkt. No. 16 at 21-22, 24-25.) Again, the court disagrees.
Under the regulations, light work “involves lifting no more than
[twenty] pounds at a time with frequent lifting or carrying of objects
weighing up to [ten] pounds.” 20 C.F.R. § 404.1567(b). Light work also
may “require[] a good deal of walking or standing,” or it may involve “sitting
most of the time with some pushing and pulling of arm or leg controls.” Id.
“To be considered capable of performing a full or wide range of light work,
you must have the ability to do substantially all of these activities.” Id.
Further, “the full range of light work requires standing or walking, off and
on, for a total of approximately [six] hours of an [eight]-hour workday.”
SSR 83-10, 1983 WL 31251, at *6 (1983).
Turning to Jackson’s first argument, contrary to his assertion that the
ALJ “did not estimate specifically any amounts of time that [Jackson] could
sit, stand, walk or perform work activities,” (Dkt. No. 16 at 22), the ALJ
found that “[t]hroughout the course of an eight-hour workday, [Jackson]
has the capability to lift and/or carry [twenty] pounds occasionally, lift
and/or carry [ten] pounds frequently, stand and/or walk for a total of six
hours, and sit for a total of six hours.” (Tr. at 31.) Accordingly, Jackson’s
18

argument is summarily rejected.
Further, these specific findings are supported by the medical
evidence, and not, as Jackson contends, based on the ALJ’s “own
opinion.” (Dkt. No. 16 at 24.) As discussed above, the ALJ based these
findings, in part, on Dr. Shirazi’s medical source statement and Dr. Prezio’s
consultative internal medicine examination, both of which support a
conclusion that Jackson is capable of performing light work. (Tr. at 30-31.)
Other medical evidence in the record also supports these findings. For
example, the ALJ noted that April 2010 x-rays of Jackson’s lumbar spine
were negative, (id. at 27, 275), and, despite complaining about moderate
low back pain from 2010 to 2012 and having some positive tests, there was
no evidence to suggest that he consistently sought medical treatment for
his pain, (id. at 27-28). The ALJ also thoroughly discussed Jackson’s
nonexertional limitations—namely, his hearing loss. (Id. at 32.) Indeed,
the ALJ examined the extent to which the light work occupational base
might be eroded by his limitations, and, relying on Jackson’s hearing
testimony and Dr. Shirazi’s medical source statement, ultimately concluded
that Jackson “continues to possess the abilit[ies] to hear and understand
simple oral instructions, . . . communicate simple information, and . ..
19

function[] both with and without a hearing aid.” (Id. at 32, 328.)
Accordingly, the ALJ’s RFC determination is free of legal error and
supported by substantial evidence.
C.

Credibility Determination
Next, Jackson vaguely and curtly claims that the ALJ “erred in failing

to set forth required findings to substantiate his rejection of [Jackson]’s
testimony as to pain and limitations as not credible,” but completely fails to
explain in what way the ALJ’s credibility determination was insufficient.
(Dkt. No. 16 at 22-23.) The court agrees with the Commissioner, (Dkt. No.
19 at 14-15), that the ALJ’s credibility determination was not patently
unreasonable.
“Evidence of pain is an important element in the adjudication of DIB
and SSI claims, and must be thoroughly considered in calculating the RFC
of a claimant.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010).
To that end, once the ALJ determines that the claimant suffers from a
“medically determinable impairment[ ] that could reasonably be expected to
produce the [symptoms] alleged,” he “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
20

substantiated by the objective medical evidence, the ALJ must engage in a
credibility inquiry.” Id. (internal quotation marks and citations omitted). In
performing this analysis, the 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-CV-444, 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 Jackson’s medically determinable
impairments could reasonably be expected to cause the symptoms
alleged, but that Jackson’s “statements concerning the intensity,
persistence, and limiting effects of his symptoms are not fully credible.”
(Tr. at 28-29.) In making his determination, the ALJ first noted that
Jackson’s allegations of disabling symptomology were undermined by the
infrequency with which he sought medical attention, the nonaggressive
21

treatment he was afforded, (id. at 29, 313-23), and the unremarkable
clinical findings of Dr. Prezio, (id. at 29, 276-80). Additionally, Jackson’s
own statements regarding his “wide range of independent daily activities”
further compromised his credibility, as he claimed to be able to mow the
lawn, attend to all personal care independently, occasionally take walks,
travel, prepare meals, help with laundry and cleaning, grocery shop,
perform minimal house repairs, and visit with his grandchildren. (Id. at 29,
68-72, 209-12, 276.)
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
specific to conclude that 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
22

finding’” (quoting Snyder v. Barnhart, 323 F. Supp. 2d 542, 546 (S.D.N.Y.
2004))). Accordingly, taken as a whole, the ALJ’s credibility determination
is not “patently unreasonable,” and the court declines to remand on that
basis. Pietrunti v. Director, Office of Workers’ Comp. Programs, 119 F.3d
1035, 1042 (2d Cir. 1997) (“Credibility findings of an ALJ are entitled to
great deference and therefore can be reversed only if they are patently
unreasonable.” (internal quotation marks and citation omitted)).
D.

Step Five Determination
Finally, relying primarily on arguments regarding the ALJ’s

inadequate RFC determination, Jackson contends that the ALJ erred at
step five when he failed to seek the opinion of a VE. (Dkt. No. 16 at 2021.) Jackson is incorrect.
In making his ultimate disability determination, the ALJ must consider
whether the claimant can do any other, less demanding work existing in the
national economy. See 20 C.F.R. §§ 404.1520(g), 404.1560(c); White v.
Sec’y of Health & Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). To make
such a determination, an ALJ may rely on the Medical-Vocational
Guidelines, referred to as “the grids,” found in 20 C.F.R. pt. 404, subpt. P,
app. 2, as long as the claimant’s age, education, work experience, and
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RFC coincide with the criteria of a rule contained in those Guidelines. See
20 C.F.R. § 404.1569; see also Calabrese v. Astrue, 358 F. App’x 274, 275
n.1 (2d Cir. 2009). However, “if a claimant’s nonexertional impairments
‘significantly limit the range of work permitted by his exertional limitations’
then the grids obviously will not accurately determine disability status
because they fail to take into account claimant’s nonexertional
impairments.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (quoting
Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)). In that case,
the ALJ should consult with a VE before making a determination as to
disability. See id.
Here, as discussed above, the ALJ properly determined that Jackson
retains the physical RFC to “lift and/or carry [twenty] pounds occasionally;
lift and/or carry [ten] pounds frequently; stand and/or walk for a total of six
hours; and sit for a total of six hours,” and also “retains the ability to
communicate adequately with supervisors, co-workers, and the public.”
(Tr. at 27-31); see supra Part VI.B. In determining whether Jackson could
perform the full range of light work, the ALJ considered Jackson’s age,
education, work experience, and RFC, along with his nonexertional
limitation—hearing loss—which, the ALJ found, “does not appreciably
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affect the potential unskilled light work occupational base.” (Id. at 31-32.)
Thus, the ALJ concluded that, under the Guidelines, Jackson is not
disabled. (Id.) Accordingly, because the ALJ’s RFC determination was
supported by substantial evidence, and Jackson’s nonexertional limitations
do not “significantly limit the range of work permitted by his exertional
limitations,” consultation with a VE was not required by the regulations.
Bapp, 802 F.2d at 605-06 (internal quotation marks and citation omitted).
E.

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

the ALJ’s decision as it correctly applies the relevant legal standards and is
supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Jackson’s 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.

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August 20, 2015
Albany, New York

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