Blaisdell v. Commissioner of Social Security

Filing 14

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Blaisdell's complaint (Dkt. No. 1) is DSIMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 9/28/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JESSE CLINTON BLAISDELL,

Plaintiff,

5:15-cv-321
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Law Offices of Steven R. Dolson
126 North Salina Street, Suite 3B
Syracuse, NY 13202
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
Senior District Judge

STEVEN R. DOLSON, ESQ.

HEETANO SHAMSOONDAR
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Jesse Clinton Blaisdell challenges the Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB), seeking
judicial review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Blaisdell’s
arguments, the court affirms the Commissioner’s decision and dismisses
the complaint.
II. Background
In July 2013, Blaisdell filed an application for DIB under the Social
Security Act, alleging disability since April 2, 2011. (Tr.1 at 66, 142-48.)2
After his application was denied, (id. at 83-87), Blaisdell requested a
hearing before an Administrative Law Judge (ALJ), which was held on
June 20, 2014, (id. at 27-65, 95-96). On September 3, 2014, the ALJ
issued an unfavorable decision denying the requested benefits. (Id. at 1026.) This became the Commissioner’s final determination upon the

1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 7.)

2

Blaisdell also filed an application for Supplemental Security Income in July 2013, (Tr.
at 149-59), but in his complaint, he only appeals the ALJ’s decision denying DIB. (Compl. at
1.)

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Appeals Council’s denial of review. (Id. at 1-6.)
Blaisdell commenced the present action by filing his complaint on
March 18, 2015 wherein he sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 6, 7.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 9, 12.)
III. Contentions
Blaisdell contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 9 at 36.) Specifically, Blaisdell claims that the ALJ erred in: (1) applying the
treating physician rule to determine his residual functional capacity (RFC);
and (2) evaluating his credibility. (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. 12 at 6-14.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
the ALJ. (Dkt. No. 9 at 1-2; Dkt. No. 12 at 2; Tr. at 15-23.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
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42 U.S.C. § 405(g) 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.

Evaluating Medical Opinions
Blaisdell first alleges that the ALJ erred in affording only “some

weight” to the opinion of treating rheumatologist Hom Neupane. (Dkt. No.
9 at 3-4.) According to Blaisdell, this opinion is entitled to controlling
weight. (Id. at 3.) Further, Blaisdell argues that the ALJ’s RFC
determination3 is not supported by substantial evidence4 because it fails to
incorporate the limitations contained in Dr. Neupane’s opinion, or those

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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 evidence 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).
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“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).

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contained in the opinion of one-time consultative examiner, Kalyani
Ganesh. (Id. at 4.)5 The Commissioner counters, and the court agrees,
that the ALJ properly evaluated the opinions of Drs. Neupane and Ganesh,
and rendered an RFC determination that is supported by substantial
evidence. (Dkt. No. 12 at 6-12.)
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 416.927(c). Controlling
weight will be given to a treating source’s opinion on the nature and
severity of a claimant’s impairments where it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 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 what weight to
assign a medical opinion: the length, nature and extent of the treatment
relationship; the frequency of examination; evidentiary support offered;
consistency with the record as a whole; and specialization of the examiner.

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Blaisdell does not contest the ALJ’s evaluation of his mental healthcare providers or
her findings with respect to his mental impairments. (See generally Dkt. No. 9.)

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20 C.F.R. § 404.1527(c)(2)-(6). Importantly, the ALJ must provide “‘good
reasons’ for the weight given to the treating source’s opinion.’” Petrie v.
Astrue, 412 F. App’x 401, 407 (2d Cir. 2011) (citations omitted).
“Nevertheless, where ‘the evidence of record permits [the court] to glean
the rationale of an ALJ’s decision,’” it is not necessary that the ALJ “‘have
mentioned every item of testimony presented to h[er] or have explained
why [s]he considered particular evidence unpersuasive or insufficient to
lead h[er] to a conclusion of disability.’” Id. (citation omitted).
1.

Dr. Neupane

Dr. Neupane began treating Blaisdell in January 2013 for rheumatoid
arthritis and fibromyalgia. (Tr. at 397.) According to the July 2013 physical
RFC questionnaire completed by Dr. Neupane, these impairments caused
Blaisdell aches, pain, joint stiffness, poor sleep, and a decreased ability to
do regular activities. (Id.) Specifically, he opined that Blaisdell could,
among other things, sit for only ten minutes and stand for only ten minutes
at a time, and, in total in an eight-hour work day, sit for less than two hours
and stand/walk for less than two hours. (Id. at 399.) According to Dr.
Neupane, Blaisdell needed a job that permitted shifting positions at will,
and required ten-minute-long unscheduled breaks approximately every
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thirty minutes. (Id.) Dr. Neupane also opined that Blaisdell could use his
left hand, fingers, and arm for only ten percent of an eight-hour work day to
twist, manipulate, and reach, and his right hand, fingers, and arm for only
eighty percent of the work-day. (Id. at 400.)
The ALJ considered Dr. Neupane’s opinion in its entirety. (Id. at 20.)
She noted that he had treated Blaisdell on only three occasions prior to
completing the questionnaire. (Id.) She also noted that the “extreme
limitations in [Blaisdell’s] functioning” indicated on the questionnaire were
“inconsistent with Dr. Neupane’s own treatment notes where he
recommends that [Blaisdell] do more in terms of physical activity.” (Id.)
Further, the ALJ noted that Blaisdell’s admitted ability to use the computer,
send text messages on his cellular telephone, and complete college
courses, “undercuts Dr. Neupane’s opinion regarding [Blaisdell’s] restricted
use of his hands.” (Id.) Finally, the ALJ concluded that “the substantial
medical evidence of record does not fully support [Dr. Neupane’s] opinion.”
(Id.)
Based on the foregoing analysis, the ALJ afforded Dr. Neupane’s
opinion “only some weight.” (Id.) Such analysis, which included a
discussion of the length and extent of the treating relationship between Dr.
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Neupane and Blaisdell, the evidentiary support offered for Dr. Neupane’s
opinion, and the consistency of his opinion with the record as a whole,
clearly satisfied the ALJ’s obligation under the regulations to consider the
relevant factors for weighing treating physician opinions. See Courtney v.
Colvin, No. 6:12-cv-1157, 2013 WL 5218455, at *3 (N.D.N.Y. Sept. 16,
2013) (explaining that an ALJ does not err in failing to discuss every factor
under the regulations, as long as her decision makes clear that she
properly applied 20 C.F.R. § 404.1527(c)); see also SSR 06-03p, 71 Fed.
Reg. 45,593, 45,596 (Aug. 9, 2006) (“Not every factor for weighing opinion
evidence will apply in every case.”). In addition, the ALJ undertook a
thorough discussion of the medical and testimonial evidence of record
which suggested limitations less severe than those articulated by Dr.
Neupane. (Tr. at 18-20.) Thus, contrary to Blaisdell’s assertion, (Dkt. No.
9 at 3-4), the ALJ properly followed the treating physician rule and her
assessment of Dr. Neupane’s opinion is legally sound.
2.

Dr. Ganesh

Dr. Ganesh examined Blaisdell in August 2013. (Tr. at 407-10.) Her
physical examination was largely benign, although Blaisdell exhibited
reduced range of motion in his lumbar spine and absent deep tendon
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reflexes bilaterally. (Id. at 409.) Dr. Ganesh opined that Blaisdell suffered
no limitation in his ability to sit, stand, or walk. (Id. at 410.) According to
Dr. Ganesh, Blaisdell suffered only a “mild to moderate limitation” in his
ability to lift, carry, push, and pull. (Id.) The ALJ gave this opinion “only
some weight” because Dr. Ganesh was a one-time examiner and “[t]he
record demonstrates that [Blaisdell] experiences pain that limits him more
than the limitations opined to by Dr. Ganesh.” (Id. at 20.)
According to Blaisdell, because the ALJ did not adopt the opinion of
either Dr. Ganesh or Dr. Neupane, the ALJ improperly substituted her
opinion for that of competent medical opinion and rendered an RFC
determination that is unsupported by substantial evidence. (Dkt. No. 9 at
3-4.) However, “while an ALJ is required to support her RFC determination
with medical evidence, she is not required to adopt a physician’s RFC
assessment outright.” Fancher v. Colvin, No. 3:12-cv-1505, 2014 WL
409080, at *5 (N.D.N.Y. Feb. 3, 2014) (citing Soto v. Astrue, No.
08-CV-6352T, 2009 WL 1765200, at *6 (W.D.N.Y. June 22, 2009)); see
Reyes v. Astrue, No. 3:09-CV-0285, 2010 WL 786253, at *7 (N.D.N.Y.
Feb. 26, 2010) (finding no error where the ALJ did not fully adopt the RFC
determination of the state agency review physician, but, instead,
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“synthesized the findings, examined the medical records from the relevant
time period, considered [the claimant’s] subjective complaints, and
rendered a detailed RFC determination”).
Here, the ALJ concluded that, with respect to his physical
impairments, Blaisdell retained the RFC to perform sedentary work, with up
to moderate noise, as long as he has a sit/stand option that allows him to
change position every forty minutes for up to five minutes without leaving
his work station. (Tr. at 17.) Further, the ALJ determined that Blaisdell can
tolerate occasional hazzards, frequently handle and finger, occasionally
stoop, crouch, climb, kneel, crawl, and balance on narrow, slippery, or
moving surfaces. (Id.) Additionally, the ALJ found that Blaisdell requires
up to three short, unscheduled breaks lasting less than five minutes, in
addition to his regularly scheduled breaks. (Id.) This RFC determination is
supported by the following evidence: (1) treatment notes that evince some
relief of Blaisdell’s back pain after surgery, (id. at 298, 314); (2)
recommendations from several treatment providers that Blaisdell remain or
become more active, (id. at 255, 288-89, 306, 489); (3) the prescription of
conservative treatment for his arthritis, (id. at 345-46); (4) minimal clinical
findings on several examinations, (id. at 305, 409, 500, 529); and (5)
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Blaisdell’s reported activities, including doing yard work, obtaining his
associates degree in accounting, and working part-time twenty to thirty
hours a week, subsequent to his alleged onset date, (id. at 345, 570-72,
587, 599). Based on the foregoing medical and other evidence before her,
it was reasonable for the ALJ to conclude that, while Blaisdell suffered from
physical limitations, they were not so severe as to be disabling. Thus, the
ALJ’s explanation for failing to wholly adopt the overly restrictive opinion of
Dr. Neupane or the far less restrictive opinion of Dr. Ganesh is supported
by substantial evidence, and, in applying the appropriate legal standards to
evaluate these medical opinions, the ALJ arrived at an RFC determination
that is supported by substantial evidence. See McIntyre v. Colvin, 758
F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one
rational interpretation, the Commissioner’s conclusion must be upheld.”);
Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d. Cir. 2013) (“[W]hether
there is substantial evidence supporting the appellant’s view is not the
question,” instead, the court must “decide whether substantial evidence
supports the ALJ’s decision.”).
B.

Credibility
Blaisdell also argues that the ALJ legally erred in making her
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credibility determination. (Dkt. No. 9 at 4-6.) In particular, Blaisdell
contends that the ALJ failed to properly engage in the two-step process of
evaluating credibility when she “failed to specify which symptoms [his]
impairments could or could not be expected to cause” and “failed to
provide a specific discussion of [his] credibility or lack thereof.” (Id. at 5-6.)
According to Blaisdell, these failures prevent meaningful review of the
ALJ’s decision. (Id. at 6.) The court disagrees.
Blaisdell is correct that, in analyzing credibility, the ALJ must first
determine whether the claimant has medically determinable impairments,
“which could reasonably be expected to produce the pain or other
symptoms alleged.” 20 C.F.R. § 404.1529(a); SSR 96-7p, 61 Fed. Reg.
34,483, 34,484-85 (July 2, 1996). 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. See 20 C.F.R.
§ 404.1529(c); SSR 96-7p, 61 Fed. Reg. at 34,485. 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,”
SSR 96-7p, 61 Fed. Reg. at 34,485, an ALJ will consider the factors listed
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in 20 C.F.R. § 404.1529(c)(3)(i)-(vii)6 in making her credibility
determination. Notably, “[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
[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-CV2431, 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 determined that Blaisdell’s “medically determinable
impairments could reasonably be expected to cause some of the alleged
symptoms” but were “not totally disabling” and only required the restrictions
contained in her RFC determination. (Tr. at 19.) The ALJ then went on to
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The listed factors are: (i) claimant’s daily activities; (ii) location, duration, frequency,
and intensity of claimant’s symptoms; (iii) precipitating and aggravating factors; (iv) type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (v) other
treatment received to relieve symptoms; (vi) any measures taken by the claimant to relieve
symptoms; and (vii) any other factors concerning claimant’s functional limitations and
restrictions due to symptoms. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii).

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explain that the medical evidence did not fully support Blaisdell’s
allegations7 because it revealed that he experienced some relief from
treatment, was encouraged by his treatment providers to remain active,
and was able to walk, perform yard work, climb stairs, and reach above his
head. (Id. at 19-20, 255, 288-89, 298, 314, 306, 345, 489, 531.) The ALJ
added that Blaisdell’s “many activities establish a greater capacity than
alleged.” (Id. at 21.) Specifically, the ALJ noted that his ability to “use the
computer, text on his phone, and complete college courses” undercuts his
allegations that he cannot use his hands, and his search for part-time work
in the accounting field is inconsistent with his alleged anxiety around
people with whom he is not familiar. (Id. at 18, 20.) Indeed, the record
supports the ALJ’s foregoing conclusions. Blaisdell testified that he was
able to attend college courses full-time, beginning one month after his
alleged onset date, and obtained an associates degree in accounting with
a 3.4 grade point average. (Id. at 586-88.) He also testified that he
worked part-time as a tax preparer while completing his course work. (Id.
at 570-72, 597-99.) Further, he testified that he can lift twenty pounds,

7

The ALJ noted Blaisdell’s allegations that he has difficulty standing, sitting, walking,
climbing stairs, kneeling, reaching overhead, using his hands, and concentrating, and isolates
himself from others. (Tr. at 18, 213-16, 593, 601.)

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type on the computer, and send text messages, (id. at 585, 586), and is
looking for part-time work in the accounting field, (id. at 588, 592). Finally,
Blaisdell testified that, along with other family, he helps care for his late
niece’s three-month old twins. (Id. at 579-80.)
Ultimately, the ALJ explicitly acknowledged consideration of the 20
C.F.R. § 404.1529 factors, (id. at 18), 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,
the ALJ’s conclusion that Blaisdell’s subjective complaints were not
credible to the extent that they suggested impairment greater than the
ability to perform less than the full range of sedentary work contemplated in
the ALJ’s RFC determination, (Tr. at 17-18), is supported by substantial
evidence.
C.

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

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Blaisdell’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.
September 28, 2016
Albany, New York

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