Dzencelowcz v. Colvin

Filing 18

DECISION AND ORDER denying # 12 Plaintiff's motion for judgment on the pleadings; and granting # 15 Defendant's motion for judgment on the pleadings. The Defendant' decision denying disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 6/29/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
KELLY DZENCELOWCZ,
Plaintiff,
v.

Case No. 5:15-CV-0329 (GTS)

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

OF COUNSEL:

STANLEY LAW OFFICES
Counsel for Plaintiff
215 Burnet Avenue
Syracuse, NY 13203

JAYA A. SHURTLIFF, 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

MICHELLE L. CHRIST, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Kelly Dzencelowcz
(“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, 15.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is denied and Defendant’s motion for judgment on the pleadings is
granted.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on November 18, 1977. Plaintiff obtained a General Education
Development (“GED”) certificate, and has past work as an assistant manager in a shoe store.
Generally, Plaintiff’s alleged disability consists of depression, degenerative disc disease,
fibromyalgia, and myofascial pain syndrome. Plaintiff’s alleged disability onset date is February
6, 2010.
B.

Procedural History

On May 6, 2011, Plaintiff applied for Disability Insurance Benefits and Supplemental
Security Income. Plaintiff’s application was initially denied, after which she timely requested a
hearing before an Administrative Law Judge (“ALJ”). On July 12, 2013, Plaintiff appeared in a
video hearing before the ALJ, Andrew Henningfeld. (T. 39-68.) On September 27, 2013, the
ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (T.
11-25.) On March 11, 2015, the Appeals Council denied Plaintiff’s request for review, rendering
the ALJ’s decision the final decision of the Commissioner. (T. 1-6.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 14-21.) First, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since February 6, 2010, the alleged onset date.1 (T. 20.) Second, the ALJ found
that Plaintiff’s degenerative disc disease, fibromyalgia, and myofascial pain syndrome are severe
impairments, but that Plaintiff’s depression is not a severe impairment. (Id.) Third, the ALJ
1

Although the ALJ stated that the alleged onset date was February 3, 2010 in this finding, earlier in
the decision and at the hearing, the ALJ stated that the amended alleged onset date was February 6, 2010. (T. 16,
46-47.)

2

found that Plaintiff’s severe impairments, alone or in combination, did not meet or medically
equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (Id.) Fourth, the
ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform
sedentary work2 provided that the work does not require more than
fifteen minutes of standing in any given hour and allows her to
alternate between sitting and standing as needed. Work also must not
involve climbing ladders, ropes, or scaffolds. She cannot stoop or
crawl. Work must be unskilled, defined by regulation and ruling as
work that needs little to no judgment to perform simple duties (20
C.F.R. §§ 404.1568(a), 416.968(a), Social Security Ruling 85-15).
Further, work must not involve hazards such as dangerous moving
mechanical parts or machinery that could cause bodily injury or work
in high, exposed places.
(T. 18.) Fifth, the ALJ found that Plaintiff is unable to perform any past relevant work. (T. 20.)
Sixth, and finally, the ALJ found that there are other jobs that exist in significant numbers in the
national economy that Plaintiff can perform. (Id.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff advances three argument in support of her motion for judgment on
the pleadings. First, Plaintiff argues that the ALJ did not apply the appropriate legal standards in
(1) assessing the medical opinion evidence, (2) evaluating Plaintiff’s fibromyalgia, and (3)
determining the RFC. (Dkt. No. 12, at 1, 9-12 [Pl.’s Mem. of Law].) Second, Plaintiff argues
that the ALJ did not engage in the required evaluation of Plaintiff’s subjective complaints, and
therefore did not follow the relevant legal standards. (Id. at 12-13.) Third, Plaintiff argues that
the Commissioner did not meet her burden at step five, and the vocational expert testimony
cannot provide substantial evidence for a denial of disability benefits in this matter. (Id. at 1315.)
2

Sedentary work requires the abilities to sit for six hours, stand and walk for two hours, and lift or
carry up to ten pounds in an eight-hour workday. 20 C.F.R. §§ 404.1567(a), 416.927(a); SSR 83-10, 1983 WL
31251 (1983).

3

Generally, Defendant advances two arguments in support of her motion for judgment on
the pleadings. First, Defendant argues that substantial evidence supports the ALJ’s RFC finding.
(Dkt. No. 15, at 6-11 [Def.’s Mem. of Law].) Second, Defendant argues that the ALJ properly
found that Plaintiff could perform work in the national economy. (Id. at 11.)
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
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).

4

“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).
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, 416.920.
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
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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
For the ease of analysis, Plaintiff’s arguments are reorganized below.
A.

Whether the ALJ Erred in Assessing the Medical Opinion Evidence of
Record in Determining the RFC

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. 15, at 6-11 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
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). “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. §§

6

404.1545[a][3]-[4], 416.945[a][3]-[4]). The ALJ must consider 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), 416.945(b)-(e). The ALJ must consider RFC
assessments made by acceptable medical sources and may consider opinions from other sources,
such as nurse practitioners, to show how a claimant’s impairments may affect his or her ability to
work. 20 C.F.R. §§ 404.1513(c)(d), 416.913(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 afforded 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 evidence in the record, such as opinions of other medical experts. 20 C.F.R. §§
404.1527(c)(2), 416.927(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). Regulations require an ALJ
to set forth his or her reasons for the weight afforded to a treating physician’s opinion. Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000).
When controlling weight is not afforded to the opinion of a treating physician, or when
assessing a medical opinion from another source, the ALJ should consider the following factors
to determine the proper weight to afford the opinion: (1) the source’s examination relationship
and treatment relationship with the plaintiff, including the length, nature, and extent of the
treatment relationship, if applicable, (2) the opinion’s supportability, (3) the opinion’s
consistency with the record as a whole, (4) the source’s specialization, if any, and (5) other
factors, such as the source’s knowledge of disability programs and familiarity with the case
7

record. 20 C.F.R. § 404.1527(c), 416.927(c)(2); Halloran, 362 F.3d at 32 (listing regulatory
factors).
In formulating a plaintiff’s RFC, an ALJ is not required strictly to adhere to the entirety
of one medical 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, 12CV-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).
Here, the ALJ found that Plaintiff has the RFC to perform sedentary work with additional
limitations set forth above in Part I.C. of this Decision and Order. (T. 18-19.) For the reasons
set forth below, the Court finds that the ALJ’s RFC determination was supported by substantial
evidence, including the opinions of (1) treating physician and pain specialist, Raymond Alcuri,
M.D., and treating nurse practitioner, Mark Profetto, F.N.P., (2) treating orthopedist, Warren
Wulff, M.D., and (3) independent examining orthopedic surgeon, Marc Bergeron, M.D. (T. 41620, 428, 438, 456-57, 564.) Moreover, the ALJ’s assessment of the opinion evidence, including
the opinion of State agency consultative examiner, Kalyani Ganesh, M.D., was supported by
substantial evidence. (T. 16-19.)
8

i.

Treating Physician and Pain Specialist, Raymond Alcuri, M.D., and
Treating Nurse Practitioner, Mark Profetto, F.N.P.

On December 15, 2011, Dr. Alcuri diagnosed Plaintiff with low back pain, lumbar
degenerative disc disease, muscle spasms, and myofascial pain syndrome. (T. 457.) Dr. Alcuri
observed that Plaintiff had a limited range of motion of the lumbar spine, tenderness to palpation
along the bilateral lumbar paraspinal muscles of the bilateral sacroiliac joints, and 16 of 18
positive fibromyalgia tender points. (T. 456.) Dr. Alcuri opined that Plaintiff had a limited
ability to sit, stand, or walk for long periods of time, and had a limited ability to bend at the
lumbar spine. (Id.) Dr. Alcuri opined that Plaintiff should be allowed to change positions (sit,
stand, and walk) as needed, could not push, pull or lift more than ten pounds, and could not
bend, stoop or crawl. (Id.)
On April 26, 2013, Mr. Profetto from Dr. Alcuri’s office submitted a statement indicating
that Plaintiff’s limitations of function still existed and persisted to the same degree as outlined in
Dr. Alcuri’s opinion of December 15, 2011. (T. 564.) The ALJ afforded considerable weight to
Dr. Alcuri’s opinion and Mr. Profetto’s statement confirming the same, reasoning that Dr. Alcuri
has been Plaintiff’s pain management specialist since 2010. (T. 18.)
ii.

Treating Orthopedist, Warren Wulff, M.D.

On February 4, 2010, five weeks after Plaintiff’s injury, Dr. Wulff noted that Plaintiff
had returned to work on light duty, but reported that she was challenged even working with
restrictions. (T. 428.) Dr. Wulff gave Plaintiff an out-of-work slip due to her reported pain in
the thoracic spine and right hip. (Id.) On May 18, 2010, Dr. Wulff opined that Plaintiff was
capable of performing sedentary work. (T. 438.) However, Dr. Wulff noted that Plaintiff
reported that she would need to remain out of work because her employer did not have sedentary
work available for her. (Id.)
9

iii.

Independent Examining Orthopedic Surgeon, Marc Bergeron, M.D.

Dr. Bergeron examined Plaintiff twice and provided an assessment of her work-related
limitations and abilities. (T. 416-20.) On April 11, 2011, Dr. Burgeron diagnosed Plaintiff with
low back pain and dysfunction of the right sacroiliac joint with radiation to the right lower
extremity proximally. (T. 420.) Dr. Burgeron indicated that Plaintiff had some evidence of
radiculopathy by history and had a negative root tension sign. (Id.)
Dr. Burgeron opined that Plaintiff could perform “work that would be almost exclusively
sedentary in nature” and would allow her to sit, stand, and walk as tolerated. (T. 425.) Dr.
Burgeron further opined that Plaintiff could not stand or walk in combination for more than 20
minutes per hour, could not push, pull, lift or carry more than 15 pounds, and could not crawl,
stoop, or work at heights or on ladders. (Id.)
iv.

State Agency Medical Examiner Kalyani Ganesh, M.D.

On September 11, 2012, Dr. Ganesh diagnosed Plaintiff with fibromyalgia and noted that
she had a history of a bulging disc in the lower back and degenerative disc disease. (T. 492.)
Upon examination, Dr. Ganesh observed that Plaintiff had 16 fibromyalgia tender points, and
seven control points. (T. 491.) Dr. Ganesh opined that Plaintiff had “no gross limitation” in
sitting, standing, or walking, and had a “mild to moderate limitation” in lifting, carrying,
pushing, and pulling.” (Id.) Dr. Ganesh opined that Plaintiff could sit, stand, and walk for eight
hours at one time and for eight hours in an eight-hour workday. (T. 494.) Dr. Ganesh opined
that Plaintiff could lift and carry up to ten pounds continuously, up to 20 pounds frequently, and
up to fifty pounds occasionally in an eight-hour workday, and was limited to frequent pushing,
pulling, balancing, and occasional stooping. (T. 493, 495-96.)

10

In sum, the ALJ noted that Dr. Alcuri, Dr. Wulff, and Dr. Bergeron opined that Plaintiff
could perform at least a limited range of sedentary work, and Dr. Ganesh opined that Plaintiff
could perform medium work. (T. 17.) The ALJ afforded little weight to Dr. Ganesh’s opinion,
reasoning that “it is apparent from his report and assessment that he largely disregarded
complaints of pain and several external indicators of pain he found during the physical exam.”
(Id.) The ALJ afforded considerable weight to the opinions of Dr. Alcuri, Dr. Bergeron, and Dr.
Wulff, reasoning that the opinions were “largely consistent with one another and reasonably
consistent with the totality of the evidence.” (Id.)
First, Plaintiff argues that the ALJ erred in relying on Dr. Alcuri’s opinion because his
opinion that Plaintiff could not stoop is inconsistent with sedentary work. (Dkt. No. 12, at 9-10
[Pl.’s Mem. of Law].) However, the ALJ’s RFC determination explicitly stated that Plaintiff
could not stoop. (T. 18.) Moreover, the vocational expert testified that there was other
sedentary work that Plaintiff could perform that did not require stooping. (T. 19.) Therefore,
Plaintiff’s argument is without merit.
Second, Plaintiff argues that the ALJ erred in relying on the Workers’ Compensation
ratings provided by Dr. Alcuri and Dr. Wulff because (1) the Workers’ Compensation disability
percentages “pertain only to the limitations resulting from the work-related injury while Social
Security takes all impairments into consideration,” and (2) there is “no correlation between the
legal standards relevant to New York State Workers’ Compensation and the federal Social
Security Disability program.” (Dkt. No. 12, at 10-11 [Pl.’s Mem. of Law].)
However, the ALJ properly explained that “the impairment rating alone does not provide
much insight into Claimant’s exertional and non-exertional capacities, but the physical
assessments from Drs. Alcuri and Wulff provide some context as to what the percentages might
11

mean for Social Security disability determination purposes.” (T. 28.) Notably, in addition to
providing Workers’ Compensation ratings, Dr. Alcuri and Dr. Wulff provided more detailed
physical assessments and opinions that Plaintiff could perform at least a limited range of
sedentary work. (T. 438, 457.) 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, 2013 WL 4647643, at *8. The ALJ must consider all
of the relevant evidence, including medical opinions and a plaintiff’s physical and mental
abilities. 20 C.F.R. §§ 404.1545(b)-(e), 416.945(b)-(e). Therefore, the ALJ did not err in
considering the opinions of Dr. Alcuri and Dr. Wulff.
Third, Plaintiff argues that the ALJ erred in evaluating her fibromyalgia by considering
the lack of objective medical evidence and intermittent nature of Plaintiff’s symptoms. (Dkt.
No. 12, at 11-12 [Pl.’s Mem. of Law].) The Court recognizes that objective clinical findings are
not always required to find an applicant disabled by pain. Campbell v. Colvin, 13-CV-041, 2015
WL 73763, at *6 (N.D.N.Y. Jan. 6, 2015) (citing, inter alia, Donato v. Sec. of Dep’t of Health &
Human Servs., 721 F.2d 414, 418-19 [2d. Cir.]) Moreover, reviewing courts have recognized
that fibromyalgia can be a disabling impairment that no objective test can conclusively confirm.
Campbell, 2015 WL at *6 (citing, inter alia, Lisa v. Sec. of Dep’t of Health & Human Servs.,
940 F.2d 40, 44-45 (2d Cir. 1991); Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003).
However, here, every medical opinion of record indicated that Plaintiff could perform at least a
limited range of sedentary work. (T. 16-19.)
When a person alleges fibromyalgia, longitudinal records reflecting ongoing medical
evaluation and treatment from acceptable medical sources are especially helpful in establishing
both the existence and severity of the impairment. SSR 12-2P, 2012 WL 3104869, at *5 (July

12

25, 2012). Here, the ALJ specifically stated that he viewed the medical records “as a whole.”
While the ALJ discussed the lack of objective medical evidence and intermittent nature of
Plaintiff’s symptoms, these were not the only factors that he considered in assessing the severity
of Plaintiff’s fibromyalgia and the resulting functional limitations. (T. 16-20.) Rather, the ALJ
properly determined that Plaintiff’s fibromyalgia was a severe impairment and included
limitations in the RFC based on the medical opinions of record. (Id.)
Finally, the ALJ properly applied the regulations in assessing the medical opinions of
record by citing the sources’ professional credentials, treating or examining relationship with
Plaintiff, and examination notes, and the consistency of the opinions with other medical evidence
in the record pursuant to 20 C.F.R. §§ 404.1527(c), 416.927(c). (T. 16-19.) 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 plaintiff challenged 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 evidence and RFC determination
were supported by substantial evidence, and remand is not required on this basis.
B.

Whether the ALJ’s Credibility Assessment 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. 16, at 17-20 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.

13

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 (citing SSR 96-7p, 1996 WL 374186, at *2 [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. 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.
Rockwood, 614 F. Supp. 2d at 271 (citing §§ 404.1529[c][3], 416.929[c][3]). 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
14

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 noted that Plaintiff alleged that her degenerative disc disease,
fibromyalgia, and myofascial pain syndrome caused “a disabling level of pain.” (T. 16.)
Although the ALJ determined that Plaintiff’s degenerative disc disease, fibromyalgia, and
myofascial pain syndrome were severe medically determinable impairments, the ALJ cited
evidence that was inconsistent with Plaintiff’s allegations of disabling symptoms. (T. 20.)
Plaintiff argues that the ALJ did not make “an explicit finding” regarding Plaintiff’s
credibility, which Plaintiff argues “is problematic, particularly in a case involving fibromyalgia.”
(Dkt. No. 12, at 12-13 [Pl.’s Mem. of Law].) Regarding the Commissioner’s evaluation of
fibromyalgia, SSR 12-2P provides that “FM [fibromyalgia] which we determined to be an MDI
[medically determinable impairment] satisfies the first step of our two-step process for
evaluating symptoms” pursuant to SSR 96-7p. SSR 12-2P, 2012 WL 3104869, at *5.
Accordingly, the ALJ satisfied the first step by determining that Plaintiff’s fibromyalgia was a
severe medically determinable impairment. (T. 20.) Moreover, as discussed below, the ALJ
satisfied the second step by discussing the inconsistencies that he considered in assessing the
allegations of Plaintiff’s symptoms and determining that Plaintiff is not as limited as alleged. (T.
16-19.)
First, the ALJ considered the intensity of Plaintiff’s alleged symptoms and the measures
that she took to relieve her symptoms. (T. 16-17.) The ALJ noted that Plaintiff alleged that her
degenerative disc disease, fibromyalgia, and myofascial pain syndrome cause a disabling level of
pain. (T. 16.) The ALJ noted that Plaintiff has a history of pain management, and has tried
chiropractic therapy, acupuncture, injections, and various pain medications. (Id.) However, the
15

ALJ noted that at least one physician found that Plaintiff’s treatment was “excessive.” (T. 1617.)
Second, the ALJ considered evidence suggesting that Plaintiff exaggerated her
symptoms. (T. 17.) For example, the ALJ noted that even on the days when Plaintiff rated her
pain as being in the extreme range (i.e., eight to ten on a ten-point scale), her treating sources
noted that “she did not appear to be in acute distress.” (Id.) The ALJ further noted that, on two
separate occasions, Plaintiff tested positive on the Waddell’s maneuver, a test used to detect
overreaction to stimuli. (Id.)
Third, the ALJ considered inconsistencies in Plaintiff’s reports regarding her symptoms
and activities of daily living. (T. 17.) The ALJ noted that, at the hearing, Plaintiff testified that
she spent most of her day in bed and could not do anything. (Id.) Yet, the ALJ noted that
Plaintiff also reported that she was able to prepare simple meals, visit other people’s homes, use
a computer daily, drive, and manage her finances. (Id.)
Fourth, the ALJ considered medical opinion evidence that was inconsistent with
Plaintiff’s allegations of disabling symptoms. (T. 16-19.) The ALJ explained that, given the
conflicting evidence of Plaintiff’s disabling symptoms, he “relied in large measure on the
medical opinions in assessing the extent of Claimant’s limitations.” (T. 17.) The ALJ noted that
Dr. Alcuri, Dr. Wulff and Dr. Bergeron opined that Plaintiff could perform at least a limited
range of sedentary work, and Dr. Ganesh opined that Plaintiff could perform medium work, as
discussed above in Part III.A. of this Decision and Order. (Id.)
Accordingly, the Court finds that the ALJ’s credibility assessment is supported by
substantial evidence. When the evidence of record “permits us to glean the rationale of an ALJ’s
decision, we do not require that he have mentioned every item of testimony presented to him or
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have explained why he considered particular evidence unpersuasive or insufficient to lead him to
a conclusion of disability.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983). Here, the
ALJ complied with the Regulations and articulated the inconsistencies he considered in
discrediting Plaintiff’s allegations of disabling impairments.
For these reasons, the ALJ’s credibility analysis was supported by substantial evidence,
and remand is not necessary on this basis.
C.

Whether the ALJ’s Step Five Determination 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. 15, at 11 [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 is other work that exists in significant numbers in the national economy that a plaintiff
can perform based on the plaintiff’s RFC, age, education, and past relevant work. Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). The Commissioner can usually establish that there
is other work that a 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 the
plaintiff’s 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]). 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

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603.) A plaintiff’s range of potential employment is significantly limited when the plaintiff
“suffers from the additional loss of work capacity beyond a negligible one or, in other words,
one that so narrows a claimant’s possible range of work as to deprive him of a meaningful
employment opportunity.” Baldwin, 2009 WL 4931363, at *27.
Here, the ALJ provided a hypothetical to the vocational expert that included Plaintiff’s
abilities and restrictions set forth in the RFC to determine whether Plaintiff could perform other
existing work in the national economy. (T. 19.) The vocational expert testified that, based on
Plaintiff’s RFC, age, education, and work experience, Plaintiff could perform jobs that exist in
significant numbers in the national economy, including the surveillance system monitor,
document preparer, and call-out operator positions. (Id.)
Plaintiff essentially argues that the ALJ erred in relying on vocational expert testimony
that was in response to a hypothetical that did not accurately represent Plaintiff’s limitations.
(Dkt. No. 12, at 13-15 [Pl.’s Mem. of Law].) As discussed in Part III.A. of this Decision and
Order, the ALJ’s RFC determination was supported by substantial evidence, including the
opinions of Dr. Alcuri, Dr. Bergeron, and Dr. Wulff. Because the Court finds no error in the
ALJ’s RFC assessment, we conclude that the ALJ did not err in posing a hypothetical question to
the vocational expert that was based on the RFC. Dumas, 712 F.2d at 1553-54 (approving a
hypothetical question to a vocational expert that was based on an assumption supported by
substantial evidence in the record).
For these reasons, the ALJ’s step five determination was supported by substantial
evidence, and remand is not necessary on this basis.

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ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 15) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: June 29, 2016
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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