Stottlar v. Colvin

Filing 35

DECISION AND ORDER denying # 28 Plaintiff's motion for judgment on the pleadings; and granting # 33 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 3/10/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
TONYA A. STOTTLAR,
Plaintiff,
v.

5:15-CV-0340
(GTS)

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

OF COUNSEL:

IACONIS LAW OFFICE, PLLC
Counsel for Plaintiff
501 Genesee Street
Chittenango, NY 13037

PAUL F. IACONIS, 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

DAVID B. MYERS, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Tonya A. Stottlar,
(“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. 28, 33.) 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 obtained a certificate of general educational development (GED), and has past
work as a cashier and a customer service representative. Generally, Plaintiff’s alleged disability
consists of swollen hands, depression, anxiety, irritable mood, low interest, and passive suicidal
ideation.
B.

Procedural History
i.

Plaintiff’s Application of January 23, 2008

On January 23, 2008, Plaintiff filed an application for Disability Insurance Benefits and
Supplemental Security Income, alleging disability beginning July 4, 2006. (T. 25, 64.)1
Plaintiff’s application was initially denied on May 30, 2008, after which she timely requested a
hearing before an Administrative Law Judge (“ALJ”). (T. 64.) Subject to informal remand, the
application was returned to the State agency level for further development and determination.
(Id.) The State agency determined that Plaintiff’s claim could not be approved and returned it to
the hearing level. (Id.) On January 7, 2010, Plaintiff appeared in a video hearing before the
ALJ, Robert E. Gale. (Id.) On June 7, 2010, the ALJ issued a written decision finding Plaintiff
not disabled under the Social Security Act. (T. 55-77.) On November 13, 2012, the Appeals
Council denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of
the Commissioner. (T. 25.) Thereafter, Plaintiff filed a civil action in the United States District
Court for the Northern District of New York. (Id.) On August 13, 2014, the District Court
denied Plaintiff’s motion for judgment on the pleadings and affirmed the final decision of the
Commissioner. Stottlar v. Colvin, 13-cv-0047, 2014 WL 3956628, at *20 (Aug. 13, 2014).
1

Page citations refer to the page numbers used on CM/ECF rather than the actual page numbers
contained in the parties’ respective motion papers.

2

ii.

Plaintiff’s Application of July 28, 2011

On July 28, 2011, Plaintiff applied for a period of disability and Disability Insurance
Benefits, alleging disability beginning June 8, 2010. (T. 25.) Plaintiff’s application was initially
denied on September 22, 2011, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). (Id.) On March 20, 2013 and August 6, 2013, Plaintiff
appeared in hearings before the ALJ, Jennifer Gale Smith. (T. 374-441.) At the hearing,
Plaintiff amended her alleged onset date to August 4, 2010. (T. 25.) On August 16, 2013, the
ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (T.
16-38.) The ALJ’s decision noted that, because Plaintiff amended her onset date to August 4,
2010, the ALJ’s decision did not disturb the previously adjudicated period discussed above in
Part I.B.i. of this Decision and Order. (Id.) On January 20, 2015, the Appeals Council denied
Plaintiff’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (T. 22-24.) Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 27-38.) First, the ALJ found that Plaintiff last met the insured status
requirements of the Social Security Act on March 31, 2011, and did not engage in substantial
gainful activity during the period from her amended alleged onset date of August 4, 2010,
through her date last insured of March 31, 2011. (T. 27.) Second, the ALJ found that Plaintiff’s
bilateral de Quervain’s tenosynovitis, anxiety, and depression were severe impairments, but that
Plaintiff’s neck and back pain, fibromyalgia, diabetes, hyperlipidemia, pulmonary nodules, and
obesity were not severe impairments during the relevant time period. (T. 27-30.) Third, the ALJ
found that Plaintiff’s severe impairments, alone or in combination, did not meet or medically
3

equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1 (the “Listings”). (T.
30-31.) The ALJ considered Listings 1.02 (major dysfunction of a joint), 12.04 (affective
disorders), and 12.06 (anxiety-related disorders). (Id.)
Fourth, the ALJ found that, through the date last insured, Plaintiff had the residual
functional capacity (“RFC”)
to lift up to ten pounds continuously, eleven to twenty pounds
frequently, and twenty-one to fifty pounds occasionally. The
claimant can sit for six hours in an eight-hour workday and for two
hours at a time without interruption. The claimant can walk for four
hours in an eight-hour workday and for two hours at a time without
interruption. The claimant can stand for two hours in an eight-hour
workday and for two hours without interruption. The claimant can
frequently reach, handle, push, and pull. The claimant can frequently
operate foot pedals with both feet and can frequently climb stairs and
ramps, stoop, kneel, crouch, and balance. The claimant is limited to
simple routine, repetitive tasks with occasional interaction with the
public and occasional supervision.
(T. 31-36.) Fifth, the ALJ found that Plaintiff was unable to perform any past relevant work. (T.
36.) Sixth, and finally, the ALJ found that there were other existing jobs in the national
economy that Plaintiff could have performed through the date last insured. (T. 37-38.)
D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff asserts eight arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the Appeals Council failed to consider her entire letter
memorandum accompanying her request for review of the hearing decision. (Dkt. No. 28, at 2830 [Pl.’s Mem. of Law].) Second, Plaintiff argues that the Appeals Council’s failure to consider
fer entire letter memorandum was a denial of administrative due process. (Id. at 30-32.) Third,
Plaintiff argues that the ALJ failed to develop the record by not recontacting treating
psychiatrist Thomas Schwartz, M.D., to explain any inconsistencies between his treatment notes
4

and his opinion of Plaintiff’s “marked” mental limitations. (Id. at 32-33.) Fourth, Plaintiff
argues that the ALJ committed reversible error by failing to afford adequate weight to all of Dr.
Schwartz’s opinions. (Id. at 33-36.) Fifth, Plaintiff argues that the ALJ erred in weighing the
mental opinion of psychiatrist and medical expert Aaron Satloff, M.D. (Id. at 36-38.) Sixth,
Plaintiff argues that the ALJ erred in weighing the physical opinion of orthopedic surgeon and
medical expert John Axline, M.D. (Id. at 36-38.) Seventh, Plaintiff argues that the ALJ erred in
weighing the physical opinion of treating internist Muftah Kadura, M.D. (Id. at 38-40.) Eighth,
and finally, Plaintiff argues that the ALJ erred in assessing Plaintiff’s credibility. (Id. at 41.)
Generally, Defendant asserts four arguments in support of her motion for judgment on
the pleadings. First, Defendant argues that the letter memorandum from Plaintiff’s counsel is not
new and material evidence. (Dkt. No. 33, at 16-17 [Def.’s Mem. of Law].) Second, Defendant
argues that the ALJ appropriately evaluated Plaintiff’s alleged mental impairments. (Id. at 1822.) Third, Defendant argues that the ALJ properly weighed the evidence regarding Plaintiff’s
alleged physical limitations. (Id. at 22-24.) Fourth, and finally, Defendant argues that the ALJ
properly evaluated Plaintiff’s credibility. (Id. at 24-25.)
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

5

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).

6

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
For the ease of analysis, Plaintiff’s arguments will be reorganized and consolidated

below.

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A.

Whether the ALJ’s Assessment of the Medical Opinion Evidence 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. 33, at 18-24 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.
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 not inconsistent with other
substantial evidence in the record, such as opinions of other medical experts. 20 C.F.R. §
404.1527(c)(2); Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015), 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. Greek, 801 F.3d at 375; 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 frequency, length, nature and extent
of the physician’s treatment, (2) the amount of medical evidence supporting the opinion, (3) the
consistency of the opinion with the remaining medical evidence, and (4) whether the physician is
a specialist. 20 C.F.R. § 404.1527(c); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004)
(listing regulatory factors).
i.

Treating Psychiatrist Dr. Schwartz

On December 9, 2009, Dr. Schwartz provided an opinion of Plaintiff’s mental abilities
and limitations due to her depression, anxiety, and panic. (T. 833-37.) Therein, Dr. Schwartz

8

opined that Plaintiff had “marked” limitation in her ability to make judgments on complex workrelated decisions; and interact appropriately with the public and supervisors; and had “moderate”
limitation in her ability to understand, remember, and carry out complex instructions; interact
appropriately with coworkers; and respond appropriately to usual work situations and changes in
a routine work setting.2 (T. 835-36.) Dr. Schwartz further opined that Plaintiff had “mild”
limitation in her ability to make simple work-related decisions; and had no limitation in her
ability to understand, remember, and carry out simple instructions.3 (Id.) Dr. Schwartz indicated
that Plaintiff’s limitations were present since March 2006. (T. 833.)
On October 20, 2011, Dr. Schwartz opined that Plaintiff could not work in any high
stress setting which required intense interpersonal or group activity due to her significant anxiety
and depression. (T. 716.) Dr. Schwartz further opined that Plaintiff likely could not work in a
physically intensive environment due to her “physical disability with her hands.” (Id.)
On April 10, 2013, Dr. Schwartz opined that Plaintiff was “unable to meet competitive
standards” in her ability to maintain attention for two-hour segments; maintain regular
attendance and be punctual; work in coordination with or in proximity to others without being
unduly distracted; complete a normal workday without interruptions from psychologically based
symptoms; perform at a consistent pace without unreasonable rest periods; accept instructions
and respond appropriately to criticism from supervisors; get along with coworkers or peers
without unduly distracting them or exhibiting behavioral extremes; deal with normal work stress;
deal with the stress of semiskilled and skilled work; interact appropriately with the general

2

The assessment form stated that “marked” indicated serious limitation in the area and a substantial
loss in the ability to function effectively. (T. 835.) “Moderate” indicated more than a slight limitation in the area,
but the individual is still able to function satisfactorily. (Id.)
3

The assessment form stated that “mild” indicated a slight limitation in the area, but the individual
can generally function well. (T. 835.)

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public; maintain socially acceptable behavior; and adhere to basic standards of neatness and
cleanliness. (T. 961-62.) Dr. Schwartz further opined that Plaintiff was “seriously limited, but
not precluded” in her ability to remember work-like procedures; sustain an ordinary routine
without special supervision; respond appropriately to changes in a routine work setting; and be
aware of normal hazards and take appropriate precautions. (Id.) Finally, Dr. Schwartz opined
that Plaintiff was “limited but satisfactory” in her ability to understand, remember, and carry out
very short and simple instructions; make simple work-related decisions; and ask simple
questions or request assistance. (Id.)
ii.

Psychiatrist and Medical Expert Dr. Satloff

On March 29, 2013, Dr. Satloff provided an opinion of Plaintiff’s ability to perform
work-related mental activities. (T. 939-41.) Therein, Dr. Satloff opined that Plaintiff had
“marked” limitation in making judgments on complex work-related decisions; and interacting
appropriately with the public and supervisors; and had “moderate” limitation in understanding,
remembering, and carrying out complex instructions; interacting with coworkers; and responding
appropriately to usual work situations and changes in a routine work setting.4 (T. 939-40.) Dr.
Satloff further opined that Plaintiff had “mild” limitation in making judgments on simple workrelated decisions; and had no limitation understanding, remembering, and carrying out simple
instructions.5 (Id.)

4

The assessment form stated that “marked” indicated serious limitation in the area and a substantial
loss in the ability to function effectively. (T. 939.) “Moderate” indicated more than a slight limitation in the area,
but the individual is still able to function satisfactorily. (Id.)
5

The assessment form stated that “mild” indicated a slight limitation in the area, but the individual
can generally function well. (T. 939.)

10

In determining Plaintiff’s mental RFC, the ALJ afforded “great” weight to Dr. Satloff’s
opinion and Dr. Schwartz’s opinions from December 2009 and October 2011, reasoning that
these opinions were largely consistent with the objective medical evidence and one another.6 (T.
33-34.) However, the ALJ afforded “limited” weight to Dr. Schwartz’s opinion that Plaintiff
was not able to work in a physically intensive environment, reasoning that Dr. Schwartz did not
treat Plaintiff’s physical conditions and his opinion did not provide a function by function
assessment of Plaintiff’s physical abilities and limitations. (T.33.) Additionally, the ALJ
afforded “limited” weight to Dr. Schwartz’s April 2013 opinion, reasoning that the highly
restrictive opinion was contradicted by his own treatment notes. (T. 34.)
For example, the ALJ noted that while Dr. Schwartz described Plaintiff’s depression as
severe to moderate in August 2010, his subsequent treatment notes indicated that her depressive
symptoms improved such that her condition was described as mild. (Id.) The ALJ further noted
that, in November 2010, Plaintiff reported that her depression was well controlled with
medication, her anxiety was improving with medication, and Dr. Schwartz observed that
Plaintiff’s mental functioning was largely within normal range. (Id.) In November 2010, Dr.
Schwartz also observed that Plaintiff’s affect was much brighter and reactive, her thought
processes were fully organized, her thought content was normal, and her attention and
concentration were intact. (T. 669.) Finally, the ALJ noted that Dr. Schwartz routinely assessed
Plaintiff with Global Assessment of Functioning (“GAF”) scores of 60, indicating only moderate

6

For example, the ALJ noted that Dr. Satloff’s opinion reflected the functional limitations identified
in Dr. Schwartz’s December 2009 opinion. (T. 33.)

11

symptoms.7 (T. 34.) The ALJ noted that by August 2011, after Plaintiff’s date last insured, Dr.
Schwartz assessed that Plaintiff’s depression was nearing remission and assigned her a GAF
score of 70, indicating only mild symptoms.8 (Id.)
The Court rejects Plaintiff’s argument that the ALJ should have afforded controlling
weight to all of Dr. Schwartz’s opinions for the following four reasons. First, it is the duty of the
ALJ, not a medical source, to formulate a plaintiff’s RFC. 20 C.F.R. § 404.1545. Accordingly,
an ALJ is not required 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, 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).

7

The GAF “rates overall psychological functioning on a scale of 0-100 that takes into account
psychological, social, and occupational functioning.” Zabala v. Astrue, 595 F.3d 402, 405 n.1 (2d Cir. 2010). A
GAF score of 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or
co-workers.) American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.
rev. 2000) (“DSM-IV”).
8

A GAF score of 61 to 70 indicates some mild symptoms (e.g., depressed mood and mild insomnia)
or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the
household), but the individual is generally functioning pretty well and has some meaningful interpersonal
relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.
rev. 2000) (“DSM-IV”).

12

Second, an ALJ is not required to afford controlling weight to a treating physician’s
opinion where, as here, the treating physician’s opinion conflicted with his own treatment notes.
See Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir. 2013) (finding that an ALJ was not required
to afford controlling weight to a physician’s opinion that conflicted with his own treatment
notes). Third, an ALJ is not required to afford controlling weight to a treating physician’s
opinion where, as here, “the treating physician issued opinions that are not consistent with other
substantial evidence in the record, such as the opinions of other medical experts.” Halloran, 364
F.3d at 32; Burgess, 537 F.3d at 128. In this case, Dr. Schwartz’s highly restrictive opinion from
April 2013 conflicted with his own treatment notes and the opinion of medical expert Dr. Satloff.
Fourth, the ALJ properly applied the regulations in evaluating Dr. Schwartz and Dr.
Satloff’s opinions. As discussed above, the ALJ considered Dr. Schwartz and Dr. Satloff’s
professional credentials, Dr. Schwartz’s treating relationship with Plaintiff and treatment notes,
and the consistency of Dr. Schwarz and Dr. Satloff’s opinions with other medical evidence in the
record pursuant to 20 C.F.R. § 404.1527(c). (T. 30-36.) Where, as here, an ALJ’s reasoning and
adherence to the regulations are clear, the ALJ is not required to review 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 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”).
Next, the Court turns to Plaintiff’s argument that the ALJ improperly relied on Dr.
Satloff’s opinion because he did not review Plaintiff’s complete medical record. (Dkt. No. 28, at
36-38 [Pl.’s Mem. of Law].) More specifically, Plaintiff argues that Dr. Satloff did not review
medical evidence from after Plaintiff’s date last insured on March 31, 2011, including Dr.

13

Schwartz’s subsequent treatment records and April 2013 opinion. (Id.) Plaintiff also
acknowledges, however, that “the analysis of disability has to be relevant to the date prior to the
date last insured.” (Id., at 38.)
As an initial matter, a medical consultant’s failure to consider the complete medical
record does not necessarily compel rejection of the medical consultant’s opinion “or the ALJ's
finding relying thereon.” Libertore v. Colvin, 15-CV-1483, 2016 WL 7053443, at * 7 (N.D.N.Y.
Dec. 5, 2016) (citing Abar v. Colvin, 15-CV-0095, 2016 WL 1298135, at *6 (N.D.N.Y. Mar. 31,
2016)); accord Atiyeh v. Comm’r, 16-CV-0392, 2017 WL 74717, at *5 (N.D.N.Y. Jan. 6, 2017);
Camille v. Colvin, 104 F. Supp 3d 329, 343-44 (W.D.N.Y. May 19, 2015), aff’d, 652 F. App’x
25, 28-29 (2d Cir. 2016) (finding that the ALJ did not err in assigning great weight to a medical
consultant’s opinion where the subsequent treatment notes not reviewed by the consultant were
not materially different from the medical records reviewed by the consultant).
Here, Dr. Satloff properly reviewed Plaintiff’s complete medical record for the relevant
period. Moreover, as discussed above, the ALJ properly (1) considered Dr. Schwartz’s treatment
records even after Plaintiff’s date last insured, (2) noted that the treatment records at issue
showed that Plaintiff’s mental impairments had improved (with only “mild” symptoms indicated
by August 2011), and (3) determined that Dr. Schwartz’s April 2013 opinion was only entitled to
“limited” weight. (T. 34.) Because Plaintiff’s later mental treatment records not reviewed by
Dr. Satloff indicated that her mental impairments and symptoms had generally improved, the
Court cannot conclude that Dr. Satloff would have assessed greater mental restrictions had he
reviewed the complete record, or that the ALJ’s reliance on Dr. Satloff’s opinion was harmful to
Plaintiff. Atiyeh, 2017 WL 74717, at *5.
For these reasons, the Court finds that substantial evidence supports the ALJ’s
assessment of Dr. Schwartz and Dr. Satloff’s opinions, and remand is not required on this basis.
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iii.

Treating Internist Dr. Kadura

On May 10, 2011, Dr. Kadura provided an assessment of Plaintiff’s work-related
physical abilities and limitations due to back pain, bilateral carpal tunnel syndrome, neck pain,
and anxiety. (T. 714-15.) Dr. Kadura opined that Plaintiff could walk for two to four hours,
stand for two to four hours, and sit for one to two hours in an eight-hour workday. (T. 715.) Dr.
Kadura further opined that Plaintiff was “severely limited” (or could perform one to two hours)
of the following activities: lifting/carrying, pushing/pulling, bending/squatting, using her hands,
and climbing stairs. (Id.) Dr. Kadura opined that Plaintiff had “some limitations” (or could
perform two to four hours) of the following activities: walking, standing, climbing stairs, and
using public transportation. (Id.) Finally, Dr. Kadura opined that Plaintiff had no limitation (or
could perform more than four hours) of the following mental activities: understanding and
remembering simple and complex instructions, maintaining attention and concentration,
interacting appropriately with others, maintaining socially appropriate behavior, maintaining
basic standards of personal hygiene and grooming, making simple decisions, and performing
simple tasks. (Id.)
iv.

Orthopaedic Surgeon and Medical Expert Dr. Axline

On April 3, 2013, Dr. Axline reviewed Plaintiff’s medical records from the relevant
period and provided an opinion of her work-related physical abilities and limitations. (T. 14853.) Dr. Axline opined that Plaintiff could sit for two hours at a time, and for six hours in an
eight-hour workday; stand for two hours at a time, and for four hours in an eight-hour workday;
and walk for two hours at a time, and for four hours in an eight-hour workday. (T. 949.) Dr.
Axline opined that Plaintiff could lift and carry up to 50 pounds occasionally, and lift and carry

15

up to twenty pounds frequently during an eight-hour workday.9 (T. 948.) Dr. Axline opined that
Plaintiff had no limitation using her hands to reach, handle, finger, feel, and push/pull; and could
frequently use her feet to operate foot controls. (T. 950.) Finally, Dr. Axline further opined that
Plaintiff could frequently be exposed to unprotected heights, loud noise, extreme cold and
extreme heat; and could occasionally operate a motor vehicle, and be exposed to vibrations, dust,
odors, fumes, and pulmonary irritants. (T. 952.)
In assessing Plaintiff’s physical RFC, the ALJ afforded “significant” weight to Dr.
Axline’s opinion, reasoning that he reviewed all of the medical records, and his specialty as an
orthopedic surgeon could reasonably be expected to give him insight into the limitations
imposed by Plaintiff’s musculoskeletal impairment. (T. 32.) The ALJ further noted that, as a
medical expert with the Social Security Administration, Dr. Axline had knowledge of the
disability program. (Id.) The ALJ afforded “limited” weight to the physical opinion from
Plaintiff’s treating internist, Dr. Kadura, reasoning that it was not consistent with the objective
medical evidence of record. (T. 33.)
For example, the ALJ noted while Dr. Kadura’s opinion stated that Plaintiff had bilateral
carpal tunnel syndrome, an October 2005 nerve conduction study showed that Plaintiff was
negative for carpal tunnel syndrome bilaterally. (Id.) The ALJ further noted that diagnostic
images of Plaintiff’s cervical and thoracic spine in September 2011were normal, and an
EMG/nerve conduction study of the upper extremities in February 2011 also yielded normal
results. (Id.) The ALJ noted that, upon physical examinations, Plaintiff had normal muscle
strength her upper limbs, symmetric deep tendon reflexes, and a normal sensory exam. (Id.)

9

The assessment form defined “occasionally” as very little up to one-third of an eight-hour
workday, and “frequently” as from one-third to two-thirds of an eight-hour workday. (T. 948.)

16

Finally, the ALJ noted that Dr. Kadura’s restrictive opinion did not identify any abnormal
clinical findings to support the restrictive functional limitations he assessed. (Id.); 20 C.F.R. §
404.1527(c)(3) (stating that, the more a medical source presents evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight will be afforded to the
opinion).
Plaintiff argues that the ALJ erred in weighing Dr. Kadura’s opinion and improperly
relied on Dr. Axline’s opinion because he did not receive the complete record. (Dkt. No. 28, at
39-40 [Pl.’s Mem. of Law].) More specifically, Plaintiff argues that Dr. Axline did not review
records documenting Plaintiff’s history, diagnoses and treatment of de Quervain’s tenosynovitis,
and Dr. Kadura’s opinion rendered on May 10, 2011. (Id., at 39.) Defendant correctly notes that
the evidence that Dr. Axline did not review was from outside of the relevant period, and Dr.
Axline properly reviewed Plaintiff’s medical records from the period under review. (T. 31.)
As discussed above, reviewing courts have found that a medical consultant’s failure to
consider the complete medical record did not necessarily compel rejection of the medical
consultant’s opinion “or the ALJ's finding relying thereon.” Libertore, 2016 WL 7053443, at *
7(citing Abar v. Colvin, 15-CV-0095, 2016 WL 1298135, at *6; accord Atiyeh, 2017 WL 74717,
at *5; Camille, 652 F. App’x at 28-29 (2d Cir. 2016) (finding that the ALJ did not err in
assigning great weight to a medical consultant’s opinion where the subsequent treatment notes
not reviewed by the consultant were not materially different from the medical records reviewed
by the consultant).
Here, Dr. Axline noted Plaintiff’s history of suspected bilateral wrist tenosynovitis, and
observed that all exams were normal by October 2009. (T. 955.) Dr. Axline specifically cited
an October 2011 examination of Plaintiff’s wrists that exhibited no effusions or inflammation

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and an “only minimally positive” Finklestein test. (Id.) (citing T. 804.) The same medical
record noted that Plaintiff could flex and extend her wrist joints with minimal discomfort and
radially and ulnar deviate her wrists with no significant pain, and Plaintiff had normal hand grip
bilaterally, full strength in her bilateral upper limbs, and a grossly normal sensory exam. (Id.)
Moreover, a review of the subsequent treatment records that Plaintiff cited indicates that, while
some of the records referenced Plaintiff’s history of bilateral wrist pain, none of the records
indicated a definitive diagnosis of de Quervain’s tenosynovitis or noted abnormal diagnostic or
clinical findings upon examination of Plaintiff’s wrists. (T. 707-13, 906-12.)
Therefore, the Court is not persuaded by Plaintiff’s argument that the ALJ erred in
relying on Dr. Axline’s opinion because the subsequent treatment notes regarding Plaintiff’s
bilateral wrist pain that were not reviewed by Dr. Axline were not materially different from the
medical records that Dr. Axline reviewed. See Camille, 652 F. App’x at 28-29 (finding that the
ALJ did not err in assigning great weight to a medical consultant’s opinion where the subsequent
treatment notes not reviewed by the consultant were not materially different from the medical
records reviewed by the consultant).
Moreover, the ALJ properly applied the regulations in evaluating Dr. Axline and Dr.
Kadura’s opinions. As discussed above, the ALJ considered Dr. Axline and Dr. Kadura’s
professional credentials, Dr. Kadura’s treating relationship with Plaintiff and treatment notes, Dr.
Axline’s specialty as an orthopedic surgeon and his disability program knowledge, and the
consistency of Dr. Axline and Dr. Kadura’s opinions with other medical evidence in the record
pursuant to 20 C.F.R. § 404.1527(c). (T. 30-36.) Where, as here, an ALJ’s reasoning and
adherence to the regulations are clear, the ALJ is not required to review each and every factor of
the regulation. Atwater, 512 F. App'x at 70.
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For these reason, the Court finds that the ALJ’s assessment of the medical opinion
evidence was supported by substantial evidence. Therefore, remand is not required on this issue.
B.

Whether the ALJ Was Required to Recontact Dr. Schwartz

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. 33, at 18-22 [Def.’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, and for a longer period when there is reason
to believe that additional information is necessary to reach a decision. DeChirico v. Callahan,
134 F.3d 1177, 1184 (2d Cir. 1998). This duty exists even 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. § 404.1520b(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. §
404.1520b(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 Aldrich v. Astrue, 08-CV-0402, 2009 WL
19

3165726, *7 (N.D.N.Y. Sept. 28, 2009) (“A treating physician is recontacted only in situations
when the evidence received from the treating physician or other medical sources is inadequate
for the ALJ to determine whether Plaintiff is disabled.”).
Here, in addition to Dr. Schwartz’s opinions and treatment notes, the record also contains
psychiatrist and medical expert Dr. Satloff’s function by function mental opinion discussed
above in Part III.A.ii. of this Decision and Order. (T. 939-41.) Because the record evidence was
adequate to permit the ALJ to make a disability determination, the ALJ was not required to
recontact Dr. Schwartz. See Carvey v. Astrue, 389 F. App’x 50, 53 (2d Cir. 2010) (“Because the
record evidence was adequate to permit the ALJ to make a disability determination, we identify
no merit in . . . [the plaintiff’s] claim that the ALJ was obligated sua sponte to recontact the
treating physicians.”); Tankisi v. Comm’r, 521 F. App’x 29, 34 (2d Cir. 2013) (“Given the
specific facts of this case, including a voluminous medical record assembled by the claimant’s
counsel that was adequate to permit an informed finding by the ALJ, we hold that it would be in
appropriate to remand on the ground that the ALJ failed to request medical opinions in assessing
residual functional capacity.”).
For these reasons, the Court finds that the ALJ was not required to recontact Dr.
Schwartz, and remand is not required on this basis.
C.

Whether the ALJ’s Credibility Analysis 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. 33, at 24-25 [Def.’s Mem.
of Law].) To those reasons, the Court adds the following analysis.

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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.
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. (citing § 404.1529[c][3][i]-[vii]). Further, “[i]t is the role of the Commissioner, not the
reviewing court, ‘to resolve evidentiary conflicts and to appraise the credibility of witnesses,’

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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]).
Throughout the decision, the ALJ articulated the inconsistencies that she considered in
assessing the allegations of Plaintiff’s symptoms, and in determining that Plaintiff is not as
limited as alleged, including medical opinion evidence, clinical and objective medical evidence,
and the treatment that Plaintiff sought to relieve her alleged symptoms. (T. 30-36.)
First, the ALJ considered medical opinion evidence that was inconsistent with Plaintiff’s
allegations of disabling symptoms, including the mental opinion of Dr. Satloff and the physical
opinion of Dr. Axline discussed above in Part III.A. of this Decision and Order. (Id.) Second,
the ALJ considered clinical and objective medical evidence that was inconsistent with Plaintiff’s
allegations of disabling symptoms, and Plaintiff’s treatment for her alleged mental and physical
impairments. (Id.)
Regarding Plaintiff’s mental impairments, the ALJ noted that Plaintiff alleged that she
was disabled due to depression, anxiety, irritable mood, low interest, and passive suicidal
ideation; and reported that she was easily distracted. (T. 28.) However, the ALJ found that
Plaintiff’s allegations of disabling mental symptoms were contradicted by her normal mental
status examinations and her improvement with mental health treatment including medication.
(T. 34-36.) For example, the ALJ noted that by November 2010, Plaintiff reported that her
depression was well controlled with medication, her anxiety was improving with medication,
and treating psychiatrist Dr. Schwartz observed that Plaintiff’s mental functioning was largely
within normal range. (T. 34.) The ALJ further noted that, while Plaintiff complained of

22

concentration deficits, Dr. Schwartz regularly noted that Plaintiff’s attention and concentration
were intact. (Id.)
Regarding Plaintiff’s physical impairments, the ALJ noted that Plaintiff alleged that she
was disabled due to swollen hands; and complained of pain in her wrists, hands, neck, and lower
back. (T. 28-29.) However, the ALJ found that Plaintiff’s allegations of disabling physical
symptoms were contradicted by medical evidence from the relevant period, including normal
diagnostic images of Plaintiff’s cervical and thoracic spine and normal EMG/nerve conduction
studies, and the limited treatment that Plaintiff sought for her bilateral de Quervain’s
tenosynovitis. (T. 36.) Notably, a plaintiff may be deemed less credible “if the level or
frequency of treatment is inconsistent with the level of complaints.” SSR 96-7p, 1996 WL
174186, at *8 (July 2, 1996); accord, Sickles v. Colvin, 12-CV-0774, 2014 WL 795978, at *22
(N.D.N.Y. Feb. 27, 2014) (finding that the ALJ properly cited Plaintiff’s conservative treatment
as a reason for discounting Plaintiff’s credibility).
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 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 that she considered in
discrediting Plaintiff’s allegations of disabling impairments. Accordingly, the Court finds that
the ALJ’s credibility assessment is supported by substantial evidence. Moreover, the ALJ
appropriately used her discretion as fact-finder to determine that Plaintiff’s statements were not
credible. Mimms v. Heckler, 750 F. 2d 180, 186 (2d Cir. 1984.)

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“The findings of the Secretary as to any fact, if supported by substantial evidence, shall
be conclusive.” Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1982).
“It is the function of the Secretary, not the reviewing courts, to resolve evidentiary conflicts and
to appraise the credibility of witnesses, including the claimant.” Aponte v. Sec’y of Health and
Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (quoting Carroll, 705 F.2d at 642) (internal
quotation marks and alterations omitted). Accordingly, the Court must uphold an ALJ’s
credibility determination where, as here, it is supported by substantial evidence. Aponte, 728
F.2d at 591. For the foregoing reasons, remand is not required on this basis
D.

Whether the Appeals Council Erred in Considering Plaintiff’s Letter Brief

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. 33, at 24-25 [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), 404.976(b)(1); HALLEX I–3-3-6, 1993 WL 643129 (Dec. 27, 2012);
Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). The Appeals Council will evaluate the entire
record, including any 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-CV-0828, 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).

24

Here, Plaintiff argues that the Appeals Council’s failure to consider the entire letter
memorandum accompanying her request for review was a denial of administrative due process
and constitutes reversible error. (Dkt. No. 28, at 28-32 [Def.’s Mem. of Law].) Plaintiff notes
that only one page of her timely submitted 15-page letter memorandum was included in the
administrative record and identified in the Appeals Council’s denial of Plaintiff’s request for
review. (Id. at 29) (referencing T. 17). Plaintiff appears to argue that the case law contained in
the balance of her letter memorandum constitutes “new and material evidence” that the Appeals
Council was required to consider in conjunction with the administrative record. (Id. at 29.)
Plaintiff further argues that it was clear that additional language followed the first page of her
letter memorandum, and administrative due process required the Appeals Council to contact
Plaintiff’s representative and provide the opportunity to correct the submission. (Id. at 30-31.)
As an initial matter, Plaintiff identified no authority supporting the proposition that it is
the Appeals Council's responsibility to ensure that litigants have filed their briefs or other
documents in full. In any event, the Court agrees with Defendant that case law cannot be
considered new and relevant evidence because it is not “relevant to the claimant’s condition
during the time period for which benefits were denied.” Pollard v. Halter, 377 F.3d 183, 193
(2d Cir. 2004) (“New evidence is ‘material’ if it is both (1) ‘relevant to the claimant’s condition
during the time period for which benefits were denied and’ (2) ‘probative.’”) Pollard v. Halter,
377 F.3d 183, 193 (2d Cir. 2004) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988).
Therefore, the Court finds that remand is not required on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 28) is
DENIED; and it is further
25

ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 33) 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: March 10, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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