Dzierzanowski v. Colvin

Filing 15

DECISION AND ORDER granting # 12 Plaintiff's motion for judgment on the pleadings; denying # 13 Defendant's motion for judgment on the pleadings. This matter is REMANDED to Defendant, pursuant to 42. U.S.C. 405(g) for further proceedings consistent with this Decision and Order. Signed by Chief Judge Glenn T. Suddaby on 2/5/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CHRISTOPHER DZIERZANOWSKI,
Plaintiff,
v.

5:14-CV-1141
(GTS)

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Counsel for Plaintiff
One Park Place
300 S. State Street, Suite 420
Syracuse, NY 10202

HOWARD D. OLINSKY, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

KRISTINA D. COHN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Christopher
Dzierzanowski (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions
for judgment on the pleadings. (Dkt. Nos. 12-13.) For the reasons set forth below, Plaintiff’s
motion for judgment on the pleadings is granted and Defendant’s motion for judgment on the
pleadings is denied.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on April 8, 1968. He completed the 12th grade of high school. Plaintiff
has worked as an assembler and an environmental service aide. Generally, Plaintiff’s alleged
disability consists of diabetes, kidney disease, stomach disorder, vision loss, and depression.
Plaintiff’s alleged disability onset date is November 19, 2009, and his date last insured is
December 31, 2014.
B.

Procedural History

On May 13, 2011, Plaintiff applied for Social Security Disability Insurance Benefits.
Plaintiff’s application was initially denied, after which he timely requested a hearing before an
Administrative Law Judge (“the ALJ”). On November 20, 2012, Plaintiff appeared before the
ALJ, Jennifer Gale Smith. (T. 31-66.) On January 31, 2013, the ALJ issued a written decision
finding Plaintiff not disabled under the Social Security Act. (T. 11-30.) On August 12, 2014, the
Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the final
decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely sought judicial review in this
Court.
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 16-25.) First, the ALJ found that Plaintiff met the insured status
requirements through December 31, 2014, and had not engaged in substantial gainful activity
since November 19, 2009, his alleged onset date. (T. 16.) Second, the ALJ found that Plaintiff’s
diabetes, diabetic retinopathy, depressive disorder, and panic disorder without agoraphobia are
severe impairments, but that Plaintiff’s hypertension, dyslipidemia, staph infection, abdominal
2

pain, stomach problems, status post cataract surgery, chronic kidney disease-stage three, and
diabetic neuropathy are not severe impairments. (T. 16-18.) Third, the ALJ found that Plaintiff’s
severe impairments, alone or in combination, do not meet or medically equal one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (T. 18.) The ALJ considered Listing 9.00.
(Id.) Fourth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”)
to perform a full range of work at all exertional levels. Additionally,
the claimant retains the ability to understand and follow simple
instructions and directions, perform simple and detailed tasks with
supervision and independently, maintain attention and concentration
for tasks, regularly attend to a routine and maintain a schedule, and
relate to and interact appropriately with others, but the claimant should
have no more than occasional contact with co-workers, supervisors,
and the general public. The claimant should avoid exposure to
moving machinery and unprotected heights, and the claimant should
avoid fine, close-up work involving small objects requiring binocular
vision but retains sufficient visual acuity to work with larger objects
and avoid workplace hazards.
(T. 20.) Fifth, the ALJ found that Plaintiff is unable to perform his past relevant work as an
assembler and an environmental service aide. (T. 23.) Sixth, the ALJ found that Plaintiff is not
disabled under the framework of section 204.00 of the Medical-Vocational Guidelines. (T. 24.)
Seventh, and finally, the ALJ found that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform. (T. 24-25.)
D.

The Parties’ Briefings on Their Cross-Motions

Plaintiff makes seven arguments in support of his motion for judgment on the pleadings.
First, Plaintiff argues that the ALJ erred in assessing the joint opinion of Plaintiff’s mental
limitations from treating therapist, Jackqueline Marella, L.C.S.W., and supervising psychiatrist,
Golam Mohiuddin, M.D. (Dkt. No. 12, at 10-13 [Pl.’s Mem. of Law].) Second, Plaintiff argues
that the ALJ failed to reconcile the RFC with the opinions of consultative psychiatric examiner,

3

Christina Caldwell, Psy.D., and State agency psychiatric consultant, R. Altmansberger, M.D. (Id.
at 13-15.) Third, Plaintiff argues that the ALJ failed to obtain a medical source statement from
treating ophthalmologist, John Sveen, M.D., and that the ALJ’s RFC finding as to Plaintiff’s
visual limitations was unsupported by substantial evidence. (Id. at 15-18.) Fourth, Plaintiff
argues that the ALJ erred in determining that Plaintiff had no exertional limitations. (Id. at 1820.) Fifth, Plaintiff argues that the ALJ erred in evaluating Plaintiff’s credibility. (Id. at 20-22.)
Sixth, Plaintiff argues that the ALJ’s step five determination was unsupported by substantial
evidence. (Id. at 22-24.) Seventh, and finally, Plaintiff argues that the Appeals Council erred
when it denied review and determined that additional evidence submitted by Plaintiff did not
provide a basis for changing the ALJ’s decision. (Id. at 24-25.)
Defendant makes five arguments in support of her motion for judgment on the pleadings.
First, Defendant argues that the ALJ properly assessed the medical opinions of record in
formulating the RFC. (Dkt. No. 13, at 5-9 [Def.’s Mem. of Law].) Second, Defendant argues that
Plaintiff was not required to obtain a medical source statement from treating ophthalmologist, Dr.
Sveen. (Id. at 8-9.) Third, Defendant argues that the ALJ properly evaluated Plaintiff’s
credibility. (Id. at 9-12.) Fourth, Defendant argues that the ALJ properly relied upon the
Medical-Vocational Rules at step five. (Id. at 12-14.) Fifth, Defendant argues that the Appeals
Council properly evaluated the new evidence submitted by Plaintiff because the ALJ’s decision
was not contrary to the weight of the evidence in the current record. (Id. at 14-15.)
II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
4

F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived
of the right to have her disability determination made according to the correct legal principles.”);
accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d
Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.” Valente v.
Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
5

B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. § 404.1520. The Supreme
Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482
U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the claimant has an
impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education,
and work experience; the [Commissioner] presumes that a claimant who
is afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to perform his past
work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform. Under the cases previously discussed, the
claimant bears the burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
A.

Whether the ALJ Erred in Assessing the Joint Opinion of Treating
Therapist, Ms. Marella, and Supervising Psychiatrist, Dr. Mohiuddin

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 5-8 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
6

It is the duty of the ALJ to formulate a plaintiff’s RFC. 20 C.F.R. § 404.1545. RFC is
defined as
what an individual can still do despite his or her limitations . . . .
Ordinarily, RFC is the individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and
continuing basis, and the RFC assessment must include a discussion
of the individual’s abilities on that basis. A regular and continuing
basis means 8 hours a day, for 5 days a week, or an equivalent work
schedule.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, at *2).
“In assessing a claimant’s RFC, the ALJ must consider all of the relevant medical and other
evidence in the case record to assess the claimant’s ability to meet the physical, mental, sensory
and other requirements of work.” Domm v. Colvin, 12-CV-6640, 2013 WL 4647643, at *8
(W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. § 404.1545[a][3]-[4]). The ALJ must consider all
of the relevant evidence, including medical opinions and facts, physical and mental abilities,
non-severe impairments, and the plaintiff’s subjective evidence of symptoms. 20 C.F.R. §
404.1545(b)-(e).
The ALJ must consider RFC assessments made by acceptable medical sources and may
consider opinions from other sources, such as therapists and social workers, to show how a
claimant’s impairments may affect his or her ability to work. 20 C.F.R. § 404.1513(c)(d).
Finally, an ALJ’s RFC determination “must be set forth with sufficient specificity to enable [the
Court] to decide whether the determination is supported by substantial evidence.” Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Under the “treating physician’s rule,” controlling weight is given to a plaintiff’s treating
physician’s opinion when (1) the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques, and (2) the opinion is consistent with other substantial
7

evidence in the record, such as opinions of other medical experts. 20 C.F.R. § 404.1527(c)(2);
Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004); Brogan-Dawley v. Astrue, 484 F.
App’x 632, 633-34 (2d Cir. 2012). When controlling weight is not given to the opinion of a
treating physician, or when assessing other medical opinions, the ALJ should consider the
following factors to determine the proper weight: (1) the frequency of the examinations and the
length, nature and extent of the treatment relationship; (2) the evidence in support of the opinion;
(3) the opinion’s consistency with the record as a whole; and (4) whether the opinion is from a
specialist. 20 C.F.R. § 404.1527(c); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
Regulations require an ALJ to set forth the reasons for the weight assigned to a treating
physician’s opinion. Shaw, 221 F.3d at 134. When controlling weight is not given to the
opinion of a treating physician, an ALJ’s failure to explain the weight given to the opinion of
other treating sources or a State agency medical consultant is legal error. Richardson v.
Barnhart, 443 F. Supp. 2d 411, 425 (W.D.N.Y. 2006); see also Stytzer v. Astrue, 07-CV-0811,
2010 WL 3907771, at *7 (N.D.N.Y. Sept. 30, 2010) (“Unless the treating source’s opinion is
given controlling weight, the administrative law judge must explain in the decision the weight
given to the opinions of a State agency medical or psychological consultant or other program
physician or psychologist, as the administrative law judge must do for any opinions from treating
sources, nontreating sources, and other nonexamining sources who do not work for [the
agency].”); Dioguardi v. Comm’r of Soc. Sec., 445 F. Supp. 2d 288, 295 (W.D.N.Y. 2006)
(finding that, because the ALJ failed to afford the treating physician’s opinion controlling
weight, the opinion of the consultative examiner “takes on particular significance”).

8

In December 2012,1 treating therapist, Ms. Marella, and supervising psychiatrist, Dr.
Mohiuddin from Arise Child and Family Services (“Arise”) jointly opined that Plaintiff would
be “unable to meet competitive standards” in his abilities to (1) maintain attendance and be
punctual within customary, usually strict tolerances, (2) complete a normal workday and
workweek without interruptions from psychologically based symptoms, and (3) perform at a
consistent pace without an unreasonable number and length of rest periods. (T. 771.) Ms.
Marella and Dr. Mohiuddin opined that Plaintiff would be “seriously limited, but not precluded”
in his ability to deal with normal work stress. (Id.)
The ALJ afforded the opinion very little weight, reasoning that Ms. Marella is a nonacceptable medical source and that Dr. Mohiuddin stated that he had never examined Plaintiff.
(T. 23.) Additionally, the ALJ reasoned that the opinion is not consistent with the treatment
notes from Arise, which showed that Plaintiff’s anger outbursts were improving and that Plaintiff
generally got along well with others. (T. 23.) The ALJ noted that Plaintiff received mental
health counseling at Arise throughout 2010, 2011, and 2012. (T. 17.) The ALJ noted that, upon
initial evaluation at Arise in 2010, Plaintiff was diagnosed with “major depression, single
episode, moderate without psychotic features, in remission,” and was assessed with a global
assessment of functioning (“GAF”) score of 60, indicating moderate psychological symptoms.2
(T. 17.) The ALJ further noted that a July 23, 2012, treatment record observed that Plaintiff’s
“outbursts have significantly decreased . . . he gets a little irritable from time to time but really
nowhere near the intensity or frequency as they were before.” (T. 19.)
1

The medical source statement was signed by Ms. Marella on December 6, 2012, and by Dr.
Mohiuddin on December 18, 2012. (T. 772.)

2

A GAF score of 51 to 60 indicates moderate symptoms (i.e., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social occupational, or school functioning (i.e., few friends,
conflicts with peers or co-workers.) Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).

9

First, the ALJ correctly noted that a social worker is not an acceptable medical source
under the regulations. 20 C.F.R. § 404.1513(a). An ALJ may consider a social worker’s opinion
as an “other source” opinion to show the severity of a plaintiff’s impairments and how the
impairments affect his or her ability to work. 20 C.F.R. § 404.1513(a), (c)-(d). However, an
opinion from a social worker is not a medical opinion that is entitled to any particular weight
under the regulations. 20 C.F.R. § 404.1513(a), 404.1527(b).
Second, the ALJ properly applied the regulations in evaluating Ms. Marella and Dr.
Mohiuddin’s opinion. As discussed above, the ALJ considered Ms. Marella and Dr.
Mohiuddin’s respective professional credentials, examination notes, treating and examining
relationship with Plaintiff, and cited inconsistencies between their opinion and other medical
evidence in the record pursuant to 20 C.F.R. § 404.1527(c). (T. 17-23.) Where, as here, an
ALJ’s reasoning and adherence to the regulations are clear, the ALJ is not required to review
explicitly each and every factor of the regulation. Atwater v. Astrue, 512 F. App'x 67, 70 (2d
Cir. 2013) (holding that, where a plaintiff challenged the ALJ’s failure to review explicitly each
factor provided for in 20 C.F.R. § 404.1527[c], “no such slavish recitation of each and every
factor [was required] where the ALJ's reasoning and adherence to the regulation [was] clear”).
For these reasons, the ALJ’s assessment of the opinion of Ms. Marella and Dr.
Mohiuddin was supported by substantial evidence, and remand is not required on this basis.
B.

Whether the ALJ Failed to Reconcile the RFC with the Opinions of
Consultative Psychiatric Examiner, Dr. Caldwell, and State Agency
Psychiatric Consultant, Dr. Altmansberger

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 5-7 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
10

On November 9, 2011, consultative examiner, Dr. Caldwell, assessed Plaintiff with
depressive disorder and panic disorder without agoraphobia. (T. 296.) Dr. Caldwell opined that,
despite some limitations in his ability to deal with stress, Plaintiff could follow and understand
simple instructions and directions, perform simple tasks independently, maintain attention and
concentration, maintain a regular schedule, learn new tasks, perform complex tasks
independently, make appropriate decisions, and relate adequately with others. (T. 22-23.)
On November 14, 2011, State agency psychiatric consultant, Dr. Altmansberger, opined
that Plaintiff was “capable of performing unskilled, entry-level work in a low-contact setting.”
(T. 23.) Dr. Altmansberger rated Plaintiff’s abilities in twenty areas of mental functioning. (T.
512-13.) Dr. Altmansberger opined that Plaintiff was “not significantly limited” in 15 out of 20
areas of mental functioning, was “moderately limited” in five areas, and identified no areas in
which he was “markedly limited.” (T. 512-13.)3
The ALJ determined that Plaintiff has the mental RFC to understand and follow simple
instructions and directions, perform simple and detailed tasks, maintain attention and
concentration, regularly attend to a routine and maintain a schedule, appropriately relate to and
interact with others, but that Plaintiff should have no more than occasional contact with coworkers, supervisors, and the general public. (T. 20.) In assessing Plaintiff’s mental RFC, the
ALJ afforded great weight to the opinion from Dr. Caldwell because of her programmatic
expertise, her examination of Plaintiff, and the consistency of her opinion with the longitudinal

3

Dr. Altmansberger opined that Plaintiff was “moderately limited” in the abilities to (1) perform
activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, (2) work in
coordination with or in proximity to others without being distracted by them, (3) complete a normal workday and
workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an
unreasonable number and length of rest periods, (4) accept instructions and respond appropriately to criticism from
supervisors, and (5) respond appropriately to changes in the work setting. (T. 512-13.)

11

medical evidence in the record. (T. 23.) Additionally, the ALJ afforded significant weight to the
opinion of Dr. Altmansberger due to his programmatic expertise and the relative consistency of
his opinion with the overall evidence. (Id.)
Plaintiff seems to argue that the ALJ failed to explain why she did not adopt the entirety
of Dr. Caldwell and Dr. Altmansberger’s opinions. (Id. at 13.) (Dkt. No. 12, at 13 [Pl.’s Mem.
of Law].) However, an ALJ is not required to adhere strictly to the entirety of a source’s
opinion. See Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) (“Although the ALJ's
conclusion may not perfectly correspond with any of the opinions of medical sources cited in his
decision, he was entitled to weigh all of the evidence available to make an RFC finding that was
consistent with the record as a whole.”); Zongos v. Colvin, 12-CV-1007, 2014 WL 788791, at *9
(N.D.N.Y. Feb. 25, 2014) (finding that it was within the ALJ’s discretion to afford weight to a
portion of a treating physician’s opinion but not to another portion). Further, an ALJ is not
required “explicitly to reconcile every conflicting shred of medical testimony.” See Miles v.
Harris, 645 F.2d 122, 124 (2d Cir. 1981) (finding that the ALJ was not required to reconcile two
apparently inconsistent medical opinions; it was sufficient that the ALJ noted that he carefully
considered the exhibits presented in evidence in reaching his decision).
Accordingly, the ALJ did not err in assessing the opinions from Dr. Caldwell and Dr.
Altmansberger in determining Plaintiff’s RFC. Therefore, remand is not required on this basis.
C.

Whether the ALJ’s RFC Determination that Plaintiff Had No Exertional
Limitations Was Supported by Substantial Evidence

After carefully considering the matter, the Court answers this question in the affirmative,
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 11, at 5-9 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.

12

The ALJ determined that Plaintiff has the RFC to perform a full range of work at all
exertional levels.4 (T. 20.) The Court finds that the ALJ’s RFC finding that Plaintiff had no
exertional limitations was supported by substantial evidence, including the medical opinion of
Plaintiff’s physical limitations provided by consultative examiner, Dr. Ganesh. (T. 489-91.)
On November 2, 2011, Dr. Ganesh diagnosed Plaintiff with diabetes, diabetic
retinopathy, status post cataract surgery, history of depression and anxiety, and high blood
pressure. (T. 492.) Dr. Ganesh opined that Plaintiff had no gross physical limitation to sitting,
standing, walking, or the use of his upper extremities. (Id.) Upon examination, Dr. Ganesh
observed that Plaintiff had a normal gait and stance, could walk on heels and toes without
difficulty, had full range of motion of the cervical and lumbar spine, and had full range of motion
and full strength in the upper and lower extremities. (T. 490-91.) Dr. Ganesh observed that
Plaintiff’s hand and finger dexterity was intact with full grip strength bilaterally, and a
neurological exam was normal. (T. 21, 491.)
An ALJ is entitled to rely on the opinions of both examining and non-examining State
agency medical consultants, because those consultants are deemed to be qualified experts in the
field of social security disability. 20 C.F.R. § 404.1512(b)(6), 404.1513(c), 404.1527(e); see
also Little v. Colvin, 14-CV-63, 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015) (“State
agency physicians are qualified as experts in the evaluation of medical issues in disability
claims. As such, their opinions may constitute substantial evidence if they are consistent with
the record as a whole.”); Cobb v. Comm’r, 2014 WL 4437566, at *6 (N.D.N.Y. Sept. 9, 2014).

4

Exertional limitations include a claimant’s ability to walk, stand, lift, carry, push, pull, reach, and
handle. 20 C.F.R. § 404.1569a(b).

13

For these reasons, the ALJ’s determination that Plaintiff had no exertional limitations
was supported by substantial evidence, and remand is not required on this basis.
D.

Whether the ALJ’s RFC Determination of Plaintiff’s Visual Abilities and
Limitations Was Supported by Substantial Evidence

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 12, at 15-18 [Pl.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
The ALJ has an affirmative duty to develop a claimant’s complete medical history. 20
C.F.R. § 404.1512(d); Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). By
statute, an ALJ is required to develop a claimant’s complete medical history for at least twelve
months before an application for benefits was filed, “but also to gather such information for a
longer period if there [is] reason to believe that the information [is] necessary to reach a
decision.” DeChirico v. Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998). This duty exists “[e]ven
when a claimant is represented by counsel,” due to the “non-adversarial nature of a benefits
proceeding.” DeChirico, 134 F.3d at 1184; Lamay, 562 F.3d at 509.
Recontacting medical providers is necessary when the ALJ cannot make a disability
determination based on the evidence of record. 20 C.F.R. § 404.1420b(c)(1). Additional
evidence or clarification is sought when there is a conflict or ambiguity that must be resolved,
when the medical reports lack necessary information, or when the reports are not based on
medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §
404.1420b(c)(1)-(4); Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d
496, 505 (2d Cir. 1998). However, reviewing courts hold that an ALJ is not required to seek
additional information absent “obvious gaps” in the administrative record that preclude an
informed decision. Rosa, 168 F.3d at 79 n.5; see also Hart v. Comm’r, 07-CV-1270 2010 WL
2817479, at *5 (N.D.N.Y. July 16, 2010).
14

Here, the ALJ determined that Plaintiff’s diabetic retinopathy was a severe impairment,
and that Plaintiff should avoid close-up work involving small objects requiring binocular vision
but retains sufficient visual acuity to work with larger objects and avoid workplace hazards. (T.
16, 20.) However, the ALJ did not cite a medical opinion of Plaintiff’s work-related visual
abilities and limitations in support of her RFC determination.
Social Security regulations define medical opinions as “statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about the nature and
severity of . . . [a plaintiff’s] impairment(s), including . . . [a plaintiff’s] symptoms, diagnosis and
prognosis, what . . . [a plaintiff] can still do despite impairment(s), and . . . [a plaintiff’s]
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).
To be sure, the ALJ noted that on, November 9, 2011, consultative examiner, Dr. Ganesh,
performed vision testing that showed that Plaintiff had 20/30 bilateral vision on a Snellen chart
at 20 feet. (T. 21.) However, the record does not contain an assessment of Plaintiff’s workrelated visual abilities and restrictions from Dr. Ganesh or any other acceptable medical source.
“The ALJ is not permitted to substitute his own expertise or view of the medical proof for
the treating physician's opinion or for any competent medical opinion.” Greek v. Colvin, 802
F.3d 370, 375 (2d Cir. 2015); accord, Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
Moreover, an ALJ cannot assess a plaintiff’s RFC based on the ALJ’s own interpretation of the
medical evidence. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (holding that an “ALJ
cannot arbitrarily substitute his own judgment for competent medical opinion”); accord, House
v. Astrue, 11-CV-915, 2013 WL 422058, at *4 (N.D.N.Y. Feb. 1, 2013) (holding that remand
was necessary where there was no medical source opinion supporting the ALJ’s RFC
determination).
15

Here, The ALJ’s RFC determination regarding Plaintiff’s visual limitations and abilities
was not supported by substantial evidence, because the record was insufficient to support such
an RFC. Accordingly, remand is required for the ALJ to obtain a consultative visual
examination or a medical source statement from an acceptable medical source regarding
Plaintiff’s visual limitations.
E.

Whether the ALJ Erred in Assessing Plaintiff’s Credibility

After carefully considering the matter, the Court answers this question in the negative,
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 5-16 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
A plaintiff’s allegation of pain is “entitled to great weight where . . . it is supported by
objective medical evidence.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009)
(quoting Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 [2d Cir. 1992]). However, the ALJ “is
not required to accept [a plaintiff’s] subjective complaints without question; he may exercise
discretion in weighing the credibility of the [plaintiff’s] testimony in light of the other evidence
in the record.” Montaldo v. Astrue, 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15
2012). “When rejecting subjective complaints, an ALJ must do so explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s
disbelief.” Rockwood, 614 F. Supp. 2d at 270.
“The ALJ’s credibility assessment must be based on a two step analysis of pertinent
evidence in the record. First, the ALJ must determine whether the claimant has medically
determinable impairments, which could reasonably be expected to produce the pain or other
symptoms alleged.” Id., at 271.

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Second, if medically determinable impairments are shown, then the
ALJ must evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which they limit the
claimant’s capacity to work. Because an individual’s symptoms can
sometimes suggest a greater level of severity of impairment than can
be shown by the objective medical evidence alone, an ALJ will
consider the following factors in assessing a claimant’s credibility:
(1) claimant’s daily activities; (2) location, duration, frequency, and
intensity of claimant’s symptoms; (3) precipitating and aggravating
factors; (4) type, dosage, effectiveness, and side effects of any
medication taken to relieve symptoms; (5) other treatment received
to relieve symptoms; (6) any measures taken by the claimant to
relieve symptoms; and (7) any other factors concerning claimant’s
functional limitations and restrictions due to symptoms.
Id. Further, “[i]t is the role of the Commissioner, not the reviewing court, ‘to resolve evidentiary
conflicts and to appraise the credibility of witnesses,’ including with respect to the severity of a
claimant’s symptoms.” Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (quoting Carroll
v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 [2d Cir. 1983]).
Here, the ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause his alleged symptoms, but that his statements regarding the
intensity, persistence and limiting effects of his symptoms are not fully credible. (T. 21.) In
assessing Plaintiff’s allegations, the ALJ determined that Plaintiff’s complaints are not supported
by the evidence of record, including medical evidence and examination notes as well as
Plaintiff’s activities and certification that he was able to perform work throughout 2011 in order
to collect unemployment benefits. (T. 21-23.)
First, the ALJ found that Plaintiff’s allegations of disabling symptoms were not well
supported by the medical evidence of record. (T. 21-22.) The ALJ noted that, on November 9,
2011, Dr. Ganesh observed that Plaintiff had a normal gait and stance, could walk on heels and
toes without difficulty, had full range of motion of the lower and upper extremities, and had

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intact hand and finger dexterity with full grip strength bilaterally. (T. 21.) The ALJ noted that
Plaintiff testified that he is limited by diabetic neuropathy, yet extensive treatment notes
throughout the record showed minimal complaints related to the impairment. (Id.) Additionally,
the ALJ noted that medical evidence showed that Plaintiff does not always follow recommended
medical treatment. (Id.)
Second, the ALJ found that Plaintiff’s complaints of disabling symptoms and limitations
are inconsistent with his daily activities. (T. 21-22.) The ALJ noted that Plaintiff testified that
he is often fatigued and has difficulty concentrating, yet a June 2012, treatment note from Arise
indicated that Plaintiff’s concentration was good, he enjoyed playing poker on the computer at
night, and he felt like he had enough energy to do the things he liked to do during the day. (Id.)
The ALJ noted that Plaintiff testified that diabetic retinopathy was his most significant medical
condition, yet he also testified that he watched football and television shows. (T. 21.)
Finally, the ALJ found that Plaintiff’s allegations of disabling symptoms were
inconsistent with his certification that he was able to work in order to collect unemployment
benefits in 2011. (T. 22.) Plaintiff argues that the ALJ “overlooked” Plaintiff’s strong work
history in the credibility analysis. (Dkt. No. 13, at 5-16 [Def.’s Mem. of Law]). However, the
ALJ acknowledged that Plaintiff had a “good work history,” but reasoned that Plaintiff’s
complaints of disabling symptoms were not supported by his certifications that he was able to
perform work in order to collect unemployment benefits throughout 2011. (T. 22.)
An ALJ may consider a plaintiff’s work history in assessing a plaintiff’s credibility. 20
C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186, at *5 (July 2, 2006). Additionally, “Courts in
the Second Circuit have held that an ALJ may consider evidence that the claimant received
unemployment benefits and/or certified that he was ready, willing, and able to work during the
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time period for which he claims disability benefits as adverse factors in the ALJ’s credibility
determination.” Felix v. Astrue, 11-CV-3697, 2012 WL 3043203, at *10 (E.D.N.Y. July 24,
2012); accord, House v. Comm’r,09-CV-0913, 2012 WL 1029657, at *12 (N.D.N.Y. Feb. 29,
2012), Frawley v. Colvin, 13-CV-1567, 2014 WL 6810661, at *11 (N.D.N.Y. Dec. 2, 2014.)
For these reasons, the ALJ properly evaluated Plaintiff’s credibility. However, for the
reasons discussed above in Part III.D. of this Decision and Order, this matter is being remanded
for the ALJ to obtain additional medical evidence. Accordingly, remand is also required for a
credibility analysis in light of any new medical evidence obtained.
F.

Whether the ALJ’s Determination at Step Five of the Sequential Analysis
Was Supported by Substantial Evidence

After carefully considering the matter, the Court answers this question in the negative in
part for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 12, at 18-20 [Def.’s
Mem. of Law].) To those reasons, the Court adds the following analysis.
At step five of the sequential process, the burden shifts to the Commissioner to establish
that there are a significant number of jobs in the national economy that a plaintiff can perform
based on his or her RFC, age, education, and past relevant work. 20 C.F.R. § 404.1512(g),
404.1560(c); Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). The ALJ can usually establish
that there is other work that Plaintiff can perform, by reliance on the Medical-Vocational
guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the
Grids.” Baldwin v. Astrue, 07-CV-6958, 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009).
When a plaintiff suffers from nonexertional limitations that significantly limit his
employment opportunities, exclusive reliance on the Grids is inappropriate. Baldwin, 2009 WL
4931363, at *27 (citing Bapp v. Bowen, 802 F.2d 601, 605 [2d Cir. 1986]); accord, Wanzo v.

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Comm’r, 05-CV-1521, 2008 WL 3925542, *4 (N.D.N.Y. Aug. 20, 2008). However, “the mere
existence of a non-exertional limitation does not automatically preclude reliance on the
guidelines.” Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010) (citing Bapp, 802 F.2d at
603.) “A plaintiff’s range of potential employment is significantly limited when he suffers from
the ‘additional loss of work capacity beyond a negligible one or, in other words, one that so
narrows a [plaintiff’s] possible range of work as to deprive him of a meaningful employment
opportunity.’” Baldwin, 2009 WL 4931363, at *27 (quoting Bapp, 802 F.2d at 606).
Here, the ALJ did not obtain the opinion of a vocational expert in determining whether
there are jobs in the national economy that Plaintiff can perform. Instead, the ALJ determined
that there are jobs in the national economy that Plaintiff can perform, relying solely on the
Medical-Vocational guidelines. (T. 24.) The ALJ found that Plaintiff’s ability to perform work
has been compromised by nonexertional limitations, however the ALJ found that these
limitations have little or no effect on the occupational base of unskilled work at all exertional
levels. (T. 25.)
For the reasons discussed in Part III.D. of this Decision and Order, this matter is being
remanded for the ALJ to obtain additional medical evidence and reassess Plaintiff’s visual
limitations in the RFC. Accordingly, remand is required for the ALJ to reassess her decision at
step five in light of any new medical evidence obtained. Upon remand, the ALJ must also
reevaluate whether the range of work Plaintiff can perform based on his combined nonexertional
limitations is “so significantly diminished as to require the introduction of vocational testimony.”
Bapp, 802 F.2d at 606.

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G.

Whether the Appeals Council Failed to Consider New and Material Evidence

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 13, at 14-15 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
If new and material evidence is submitted, the Appeals Council shall consider the
additional evidence only when it relates to the period on or before the date of the ALJ’s decision.
20 C.F.R. § 404.970(b); HALLEX I–3-3-6, 1993 WL 643129 (Dec. 27, 2012); Perez v. Chater,
77 F.3d 41, 45 (2d Cir. 1996). If additional evidence relates to the relevant period, the Appeals
Council shall evaluate the entire record, including the new and material evidence submitted, if it
finds that the ALJ’s action, findings, or conclusion is contrary to the weight of the evidence
currently of record. 20 C.F.R. § 404.970(b); HALLEX I–3-3-6; Paradise v. Comm’r, 13-CV0828, 2014 WL 4384230, at *2 (N.D.N.Y. Sept. 3, 2014). The weight of the evidence means
that it is “more likely than not” that the totality of the evidence, including the additional
evidence, would change the ALJ’s actions, findings, or conclusion. HALLEX I-3-9-4, 2013 WL
643197 (Mar. 8, 2013).
Here, Plaintiff submitted mental health treatment notes from Arise, dated October 23,
2012, through January 20, 2013. (T. 4.) The Appeals Council declined to review the case
because, even with the additional evidence submitted, the ALJ’s decision was not contrary to the
weight of the evidence. (T. 778-83.) The additional evidence was duplicative of evidence
already contained in the record and considered by the ALJ. As discussed above in Part III.A. of
this Decision and Order, the record contains Plaintiff’s treatment records from Arise from 2010
through 2012. (T. 23.) The ALJ noted that Plaintiff was assessed with a GAF score of 60 upon
his initial evaluation at Arise, indicating moderate psychological symptoms, that Plaintiff’s anger
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outbursts had improved with treatment, and that Plaintiff generally got along well with others.
(T. 17, 19, 23.) Based on the medical evidence of record, the ALJ’s RFC limited Plaintiff to no
more than occasional contact with co-workers, supervisors, and the general public. (T. 20.)
For these reasons, the Appeals Council properly concluded that the additional evidence
submitted did not provide a basis for changing the ALJ’s decision. However, this matter is being
remanded for the reasons discussed above in Part III.D. of this Decision and Order.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
DENIED; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated: February 5, 2016
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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