Alpeter v. Commissioner of Social Security

Filing 21

DECISION AND ORDER denying # 14 Plaintiff's motion for judgment on the pleadings; and granting # 18 Defendant's motion for judgment on the pleadings. Defendant's decision denying Plaintiff disability benefits is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 10/4/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
JACQUELINE ALPETER,
Plaintiff,
v.

5:16-CV-1117
(GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

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

STEPHANIE VISCELLI, 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

JUNE L. BYUN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Jacqueline Alpeter
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the
pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 14, 18.) 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. The Commissioner’s decision
denying Plaintiff’s disability benefits is affirmed, and Plaintiff’s Complaint is dismissed.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1957, making her 51 years old at the alleged onset date and 57 years
old at both the date last insured and the date of the ALJ’s decision. Plaintiff reported completing
four years of college and obtaining a Bachelor’s degree. Plaintiff has past work as a library
assistant. Generally, Plaintiff alleges disability due to anxiety, depression, hypothyroidism, and
stiff knees.
B.

Procedural History

Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income on
February 25, 2013, alleging disability beginning June 12, 2009. Plaintiff’s application was
initially denied on May 2, 2013, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). Plaintiff appeared at a hearing before ALJ Marie Greener
on December 1, 2014. On January 6, 2015, the ALJ issued a written decision finding Plaintiff
was not disabled under the Social Security Act. (T. 13-22.) 1 On August 2, 2016, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. (T. 6-8.)
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following eight findings of fact and
conclusions of law. (T. 15-22.) First, the ALJ found Plaintiff was insured for benefits under
Title II until March 31, 2015. (T. 15.) Second, the ALJ found that Plaintiff has not engaged in

1

The Administrative Transcript is found at Dkt. No. 11. Citations to the Administrative
Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein
will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing
system.
2

substantial gainful activity since the alleged onset date. (Id.) Third, the ALJ found that
Plaintiff’s obesity, depression, and anxiety are severe impairments, while hypothyroidism is not
a severe impairment and allegations of knee pain, autism, and a seizure disorder are not
medically determinable impairments. (T. 15-16.) Fourth, the ALJ found that Plaintiff’s severe
impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. § 404,
Subpart P, App. 1 (the “Listings”). (T. 16-17.) Specifically, the ALJ considered Listings 12.04
(affective disorders) and 12.06 (anxiety-related disorders). (Id.) Fifth, the ALJ found that
Plaintiff has the residual functional capacity (“RFC”) to perform
less than the full range of medium work as defined in 20 CFR
404.1567(c) and 416.967(c). She can lift and carry up to 50
pounds occasionally and 25 pounds frequently; sit for six hours in
an eight-hour workday; and stand/walk for six hours in an eighthour workday. She is limited to “low-stress” work, which is
defined as work that requires routine daily tasks and duties in the
same workplace that do not require high production quotas or
multitasking, and which do not require working in tandem or in
conjunction with others. However, the claimant can work in
proximity to others.
(T. 18.) Sixth, the ALJ found that Plaintiff is unable to perform her past work as a library
assistant with the limitations in the above RFC. (T. 20-21.) Seventh, the ALJ found that
Plaintiff had acquired the following skills from her past relevant work: record keeping, filing,
cataloguing information, locating, data entry, and giving information to others. (T. 21.) Eighth,
and last, the ALJ found that Plaintiff remains able to perform a significant number of other jobs
in the national economy, such as tape librarian, returns clerk, and page. (T. 21-22.) The ALJ
therefore concluded that Plaintiff is not disabled.

3

D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff makes three arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the RFC finding is not supported by substantial evidence
because the ALJ did not rely on any opinion evidence from a physician to guide the assessment.
(Dkt. No. 14, at 4-7 [Pl. Mem. of Law].) Plaintiff additionally argues that the ALJ erred in
failing to afford great weight to an opinion from her treating therapist rather than relying on the
opinion of a non-examining State Agency psychological consultant. (Dkt. No. 14, at 5-7 [Pl.
Mem. of Law].)
Second, Plaintiff argues that the credibility finding is not consistent with the applicable
legal precedent because the ALJ failed to apply any of the required regulatory factors and
“merely used boilerplate language.” (Dkt. No. 14, at 7-8 [Pl. Mem. of Law].)
Third, Plaintiff argues that the Step Five finding is not supported by substantial evidence
because it was based on a hypothetical question that did not accurately and completely describe
Plaintiff’s limitations. (Dkt. No. 14, at 8-9 [Pl. Mem. of Law].)
Generally, Defendant makes three arguments in support of her motion for judgment on
the pleadings. First, Defendant argues that the RFC finding is supported by substantial evidence.
(Dkt. No. 18, at 5-11 [Def. Mem. of Law].) More specifically, Defendant argues that the ALJ
properly afforded little weight to the therapist’s opinion because she was not an acceptable
medical source according to the regulations and her opined limitations were not supported by the
other evidence in the record, including the opinions from the consultative examiner and State
Agency psychological consultant. (Dkt. No. 18, at 7-11 [Def. Mem. of Law].)
Second, Defendant argues that the ALJ properly considered credibility according to the
regulations by citing to Plaintiff’s reported daily activities, work activity after the alleged onset
4

date, and Plaintiff’s ability to provide focused and articulate responses at the hearing. (Dkt. No.
18, at 11-13 [Def. Mem. of Law].)
Third, Defendant argues that the Step Five finding is supported by substantial evidence
because substantial evidence supports the limitations the ALJ included in the hypothetical
question to the vocational expert, whose testimony provided the basis for the Step Five finding.
(Dkt. No. 18, at 13 [Def. Mem. of Law].)
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).
5

“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
6

impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of the proof as
to the first four steps, while the [Commissioner] must prove the final
one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
A.

Whether the ALJ Properly Weighed the Opinion Evidence

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 18, at 5-11 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.
§ 404.1527(c). “‘[T]he opinion of a claimant’s treating physician as to the nature and severity of
the impairment is given ‘controlling weight’ so long as it is ‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). However, there are situations
where the treating physician’s opinion is not entitled to controlling weight, in which case the
ALJ must “explicitly consider, inter alia: (1) the frequency, length, nature, and extent of
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.’”
7

Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). However,
“[w]here an ALJ’s reasoning and adherence to the Regulations is clear, she is not required to
explicitly go through each and every factor of the Regulation.” Blinkovitch v. Comm’r of Soc.
Sec., No. 3:15-CV-1196, 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017), report and
recommendation adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017)) (citing Atwater v.
Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)). After considering these factors, “the ALJ must
‘comprehensively set forth [his] reasons for the weight assigned to a treating physician’s
opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129). “The failure to provide
‘good reasons for not crediting the opinion of a claimant’s treating physician is a ground for
remand.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-30).
The factors for considering opinions from non-treating medical sources are the same as
those for assessing treating sources, with the consideration of whether the source examined the
claimant or not replacing the consideration of the treatment relationship between the source and
the claimant. See 20 C.F.R. § 404.1527(c)(1)-(6). Additionally, when weighing opinions from
sources who are not considered “medically acceptable sources” 2 under the regulations, the ALJ
must consider the same factors as used for evaluating opinions from medically acceptable
sources. Saxon v. Astrue, 781 F. Supp. 2d 92, 104 (N.D.N.Y. 2011) (citing Canales v. Comm’r
of Soc. Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2010)); SSR 06-03p, 2006 WL 2329939.
As an initial matter, Plaintiff’s cursory argument that the RFC is “comprised solely of the
[ALJ]’s own lay opinion” is clearly contradicted by the ALJ’s notations that she afforded great

2

Medically acceptable sources are noted to include the following: licensed physicians;
licensed or certified psychologists; licensed optometrists; licensed podiatrists; and qualified
speech-language pathologists. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
8

weight to the opinion from consultative examiner Elke Lorensen, M.D., considerable weight to
the opinion from State Agency psychological consultant R. Nobel, Ph. D., some weight to the
opinion from examining physician Robert Kohlbrenner, Ph. D., and her implicit acceptance of
the opinion from consultative examiner Dennis Noia, Ph. D. (T. 19-20.) All of these sources are
medical professionals and acceptable medical sources and the ALJ used their opinions as
guidance, along with the rest of the evidence in the record, when crafting the RFC. Plaintiff’s
assertion that the ALJ improperly relied on her own lay opinion is therefore unsupported.
The true crux of Plaintiff’s argument is that the ALJ should have afforded greater weight
to the opinion from her therapist Kathleen Cerro, L.C.S.W., related to Plaintiff’s mental
functioning rather than relying on the opinion of a non-examining source. (Dkt. No. 14, at 5-7
[Pl. Mem. of Law].) Plaintiff fails to provide any clear reasons why Ms. Cerro’s opinion was
entitled to greater weight other than conclusory statements that her opinion was “well supported
by the substantial evidence of record.” (Dkt. No. 14, at 5 [Pl. Mem. of Law].) However,
Plaintiff’s argument is not persuasive in light of the substantial evidence supporting the ALJ’s
finding.
On August 6, 2014, Ms. Cerro opined that Plaintiff had marked limitations in areas of
understanding and memory including remembering locations and procedures, and understanding
and remembering even simple instructions; in areas of concentration and persistence including
carrying out even simple instructions, maintaining attention and concentration for extended
periods, performing to a schedule, maintaining regular attendance, being punctual within
customary tolerances, sustaining a routine without special supervision, working in coordination
with or proximity to others without being distracted, making work-related decisions, and
completing a workday or workweek without interruption from psychological symptoms; in the
9

area of social interaction including asking questions and requesting assistance, accepting
instructions and responding appropriately to criticism, and getting along with coworkers without
distracting them or exhibiting behavioral extremes; and in the area of adaptation including
responding appropriately to changes in work setting, setting realistic goals, and making plans
independently of others. (T. 312-13.) Ms. Cerro also indicated that Plaintiff would miss work
one or more times per month on average because that “is her history” and would be off-task 20
percent or more of the workday because she had been easily distracted at all her jobs. (T. 310.)
The ALJ afforded little weight to Ms. Cerro’s opinion, noting that the evidence suggested
that, while Plaintiff had impairment in certain areas of mental functioning, she also had good
functioning in other areas, and finding this opinion inconsistent with Plaintiff’s high IQ and
history of college-level education as well as with her ability to provide focused and articulate
answers to questions during the hearing. (T. 20.)
Substantial evidence supports the ALJ’s finding that the evidence did not substantiate the
level of restrictions Ms. Cerro opined. Notably, although Ms. Cerro’s treatment notes indicate
Plaintiff’s variously reported symptoms of depressed mood, low self-esteem, feelings of
helplessness, anxious feelings, fear, worry thoughts, negative self-reliance, and preoccupations,
they do not contain objective mental status examinations. (T. 199-233.) On November 22, 2011,
Ms. Cerro did note that Plaintiff avoided eye contact and had a tense posture, restricted affect,
pessimistic mood, gaps in insight, and was only able to do simple decision-making, but she also
noted that Plaintiff was on Citalopram for depression and reported good self-care and social
functioning abilities. (T. 194, 196.) Examinations from primary care and other physicians often
noted normal mental status findings. (T. 276, 323, 356, 361.) Consultative examiner Dr. Noia
observed normal thought processes, calm mood, a relaxed and comfortable appearance with a
10

congruent affect, and that she was oriented and had intact attention, concentration and memory,
intellectual functioning estimated in the average range, and good insight and judgment. (T. 290.)
Treating and examining sources also noted that Plaintiff reported that Citalopram controlled her
depression symptoms well. (T. 321, 361, 364, 372.) Additionally, the treatment evidence as a
whole does not substantiate the extensive difficulties with attention, concentration, and carrying
out tasks that Ms. Cerro opined. After multiple examinations in August and September 2011,
Dr. Kohlbrenner noted that while expectations to work quickly under pressure would
significantly interfere with Plaintiff’s capacity to perform at normal levels, she interacted in an
appropriate manner, put forth good effort on all tasks during the testing, was engaged and
appropriate, and was able to complete the administered testing. (T. 432-33.) Dr. Kohlbrenner
also noted that Plaintiff displayed an average ability to attend and concentrate when listening and
in her short-term auditory memory. (T. 432.) On April 10, 2013, Dr. Noia observed intact
attention, concentration, and memory. (T. 290.) On August 25, 2014, Plaintiff reported to
Michael Picciano, M.D., that her concentration was good. (T. 321.) The above constitutes
substantial evidence to support the ALJ’s finding that Ms. Cerro’s opinion was not consistent
with the level of functioning documented in the medical treatment records. Inconsistency or lack
of support from the evidence can constitute a good reason for rejecting an opinion. See Saxon,
781 F. Supp. 2d at 102 (“The less consistent an opinion is with the record as a whole, the less
weight it is to be given.”) (citing Stevens v. Barnhart, 473 F. Supp. 2d 357, 362 (N.D.N.Y.
2007)); Otts v. Comm’r of Soc. Sec., 249 F. App’x 887, 889 (2d Cir. 2007) (noting that an ALJ
may reject an opinion from a treating physician “upon the identification of good reasons, such as
substantial contradictory evidence in the record”) (citing Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004)); 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (indicating that the extent that an
11

opinion is consistent with the record as a whole is one of the factors considered when
determining the amount of weight to which an opinion is entitled).
Plaintiff’s argument that the ALJ should not have relied on Dr. Nobel’s opinion because
it was based on a review of incomplete medical records is not persuasive. (Dkt. No. 14, at 5-7
[Pl. Mem. of Law].) Plaintiff argues that Dr. Nobel’s opinion cannot be reliable evidence to
support the ALJ’s findings because it was completed almost two years prior to the ALJ’s
decision, yet Plaintiff does not explain how this is fatal to Dr. Nobel’s opinion, particularly as he
had the opportunity to review the treatment records from Ms. Cerro, the primary source of
mental health treatment. The initial decision shows that Dr. Nobel was able to consider records
from Psychological Healthcare (where Ms. Cerro treated Plaintiff) and CNY Family Care as well
as Dr. Noia’s examination and opinion. (T. 29-30.) Additionally, Plaintiff’s argument that this
opinion was stale ignores the fact that she alleged disability back to 2009 and Dr. Nobel did not
review the record and render an opinion until 2013, suggesting he would be able to offer an
opinion about a significant portion of the relevant time period. Notably, although the ALJ
afforded considerable weight to Dr. Nobel’s opinion, she included limitations beyond the
capacity for semi-skilled work that Dr. Nobel opined based on consideration of all the evidence,
and Plaintiff has not pointed to any evidence which suggests she would be further limited to
unskilled work contrary to Dr. Nobel’s opinion. (T. 18-20.) The ALJ did not rely solely on Dr.
Nobel’s opinion, but rather based the findings on a consideration of all the evidence in the
record. The fact that Dr. Nobel did not review all the evidence is therefore not fatal because the
decision clearly shows that the ALJ accounted for the evidence as a whole, including the
opinions from other physicians, rather than merely adopting Dr. Nobel’s opinion. There was
therefore nothing improper about the ALJ’s consideration of Dr. Nobel’s opinion.
12

Plaintiff’s attempts to establish consistency between Ms. Cerro’s opinion and the opinion
from Dr. Noia are also not persuasive. Plaintiff asserts that Dr. Noia opined a marked limitation
in the ability to handle stress, which Plaintiff alleges is consistent with an inability to handle
stress in the workplace. (Dkt. No. 14, at 6-7 [Pl. Mem. of Law].) However, as Defendant notes,
Dr. Noia did not opine a marked limitation in the ability to handle stress. (Dkt. No. 18, at 9-10
[Def. Mem. of Law].) Rather, Dr. Noia opined that Plaintiff would have “moderate to marked
limitations (when pressured to perform) regarding her ability to deal with stress.” (T. 291.) Not
only did Dr. Noia not opine a marked limitation in this area, he also qualified this limitation by
noting she would only experience the opined level of restriction when pressured to perform,
suggesting that her restriction would not be so extensive in lower-demand situations. Defendant
is correct that Dr. Noia’s examination does not support Plaintiff’s interpretation for marked
limitations, as Dr. Noia noted Plaintiff was relaxed and comfortable during the evaluation and
she had intact attention, concentration, and memory other than some noted limitations in
performing math-related tasks that was due to weak arithmetic skills rather than an inability to
handle the stress of answering the questions. (T. 290.) Plaintiff’s argument that Dr. Noia’s
opinion was consistent with the range of disabling limitations opined by Ms. Cerro is not
supported by Dr. Noia’s findings or his actual opinion. Notably, the ALJ accounted for this
moderate to marked limitation by limiting Plaintiff to low stress work with only routine tasks and
duties in an unchanging workplace that would not require high production quotas or multitasking
and which would not require her to work in tandem with others. (T. 18.) Plaintiff neglects to
show how the detailed RFC limitation fails to account for Dr. Noia’s concerns about Plaintiff’s
limited ability to handle stress when pressured to perform, as it eliminates exposure to work
situations where Plaintiff would experience such pressure.
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For the above reasons, the ALJ’s findings regarding the opinion evidence and the RFC
are supported by substantial evidence. Remand is not warranted on this basis.
B.

Whether the Credibility Finding is Supported By Substantial Evidence

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 18, at 11-13 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
In determining whether a claimant is disabled, the ALJ must also make a determination
as to the credibility of the claimant’s allegations. “‘An administrative law judge may properly
reject claims of severe, disabling pain after weighing the objective medical evidence in the
record, the claimant’s demeanor, and other indicia of credibility, but must set forth his or her
reasons with sufficient specificity to enable us to decide whether the determination is supported
by substantial evidence.’” Schlichting v. Astrue, 11 F. Supp. 3d 190, 205 (N.D.N.Y. 2012)
(quoting Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999)). The Second Circuit
recognizes that “‘[i]t is the function of the [Commissioner], not [reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant,’” and
that “[i]f there is substantial evidence in the record to support the Commissioner’s findings, ‘the
court must uphold the ALJ’s decision to discount a claimant’s subjective complaints of pain.’”
Schlichting, 11 F. Supp. 3d at 206 (quoting Carroll v. Sec’y of Health and Human Servs., 705
F.2d 638, 642 (2d Cir. 1983); Aponte v. Sec’y, Dep’t of Health and Human Servs., 728 F.2d 588,
591 (2d Cir. 1984)). Due to the fact that the ALJ has the benefit of directly observing a
claimant’s demeanor and “other indicia of credibility,” the ALJ’s credibility assessment is
generally entitled to deference. Weather v. Astrue, 32 F. Supp. 3d 363, 381 (N.D.N.Y. 2012)
(citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999)).
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Plaintiff argues that the ALJ failed to apply any of the required regulatory factors for
assessing credibility outlined in 20 C.F.R. §§ 404.1529 and 416.929, and instead “merely used
boilerplate language that is becoming too common in ALJ decisions.” (Dkt. No. 14, at 8 [Pl.
Mem. of Law].) However, the ALJ’s decision clearly shows that she did more than just rely on
inadequate boilerplate language. The ALJ found Plaintiff’s allegations about the intensity,
persistence, and limiting effect of her symptoms were not credible because they were
unsupported by the evidence, were inconsistent with her range of reported daily activities, and
because she had work activity after the date she alleged she became disabled. (T. 18-19.) The
ALJ’s discussion in the decision therefore shows that she did consider pertinent regulatory
factors and she provided specific reasons to indicate the basis for her finding. Schlichting, 11 F.
Supp. 3d at 205.
The ALJ’s notation that Plaintiff’s allegations of limitations were inconsistent with the
objective evidence is supported by substantial evidence. As already discussed above, the
treatment notes suggest that Plaintiff’s depression was generally improved by prescribed
medication and examinations did not substantiate the difficulties with attention, concentration,
and memory that she alleged prevented her from working. (T. 290, 321, 361, 364, 372, 432-33.)
The generally negative or mild physical findings on examinations also do not support the alleged
level of physical restriction. (T. 264, 276, 286, 323, 326, 330, 356, 361, 364.) This reason
therefore supports the adverse credibility finding. See Wojciechowski v. Colvin, 967 F. Supp. 2d
602, 612-13 (N.D.N.Y. 2013) (acknowledging that the ALJ is permitted to question a claimant’s
credibility if it is inconsistent with the medical evidence).
The ALJ’s citation to Plaintiff’s reported daily activities also provides a proper basis for
the credibility finding. See Rockwood v. Astrue, 614 F. Supp. 2d 252, 271 (N.D.N.Y. 2009)
15

(noting that a claimant’s daily activities is one factor the ALJ should consider in assessing
credibility) (citing 20 C.F.R. §§ 416.929(c)(3)(i)-(vii)). The ALJ noted that Plaintiff reported
being able to cook, clean, do laundry, shop, care for her personal needs, care for her children, go
to church, and socialize with friends. (T. 19.) At the hearing, Plaintiff testified she did
housecleaning, cooked for herself and her children, cared for pet guinea pigs, walked down the
block to visit an elderly neighbor, did laundry, shopped with assistance from her family, read,
watched movies, and took photographs. (T. 485-87.) Plaintiff did note that she was able to do
these all these things because she could do them at her own pace, which prevented her from
getting anxious or overwhelmed. (T. 486.) In a written function report, Plaintiff noted she cared
for her disabled husband and assisted her autistic teenage son, cared for three pet guinea pigs,
performed personal care without limitations, made food daily, could do house and yard work
with breaks during prolonged tasks, occasionally walked outside, spent time with family, went to
church, shopped in stores several times a week with family members, watched movies or
television, read, and listened to music (T. 136-40.) Contrary to Plaintiff’s suggestions, the ALJ
was permitted to consider whether Plaintiff’s daily activities were consistent with the extent of
limitations she alleged; indeed, it is one of the factors the regulations explicitly require the
Agency to consider when assessing credibility. See Rockwood, 614 F. Supp. 2d at 271; 20
C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The range of reported activities as a whole does not
support Plaintiff’s reports of disabling deficits in concentration, persistence, pace, attention, and
memory. See Morris v. Comm’r of Soc. Sec., No. 12-CV-1795, 2014 WL 1451996, at *8
(N.D.N.Y. Apr. 14, 2014) (“The issue is not whether Plaintiff's limited ability to undertake
normal daily activities demonstrates her ability to work. Rather, the issue is whether the ALJ

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properly discounted Plaintiff's testimony regarding her symptoms to the extent that it is
inconsistent with other evidence.”) This reason also supports the ALJ’s credibility finding.
For the above reasons, the credibility finding was based on a proper application of the
required analysis and is supported by substantial evidence. Remand is not warranted on this
basis.
C.

Whether the Step Five Finding is Supported By Substantial Evidence

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 18, at 13 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
Although the claimant has the general burden to prove he has a disability under the
definitions of the Social Security Act, the burden shifts to the Commissioner at Step Five “‘to
show there is other work that [the claimant] can perform.’” McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014) (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). “An
ALJ may rely on a vocational expert’s testimony regarding a hypothetical as long as ‘there is
substantial record evidence to support the assumption[s] upon which the vocational expert based
his opinion’ [] and [the hypothetical] accurately reflect[s] the limitations and capabilities of the
claimant involved.” McIntyre, 758 F.3d at 151 (quoting Dumas v. Schweiker, 712 F.2d 1545,
1553-54 (2d Cir. 1983); citing Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)). If a
hypothetical question does not include all of a claimant’s impairments, limitations, and
restrictions, or is otherwise inadequate, a vocational expert’s response cannot constitute
substantial evidence to support a conclusion of no disability.” Pardee v. Astrue, 631 F. Supp. 2d
200, 211 (N.D.N.Y. 2009) (citing Melligan v. Chater, No. 94-CV-944S, 1996 WL 1015417, at
*8 (W.D.N.Y. Nov. 14, 1996)).
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Plaintiff argues that the Step Five finding is not supported by substantial evidence
because the vocational expert’s testimony that the ALJ relied on to support that finding was
based on a hypothetical question that did not “accurately and completely describe Plaintiff’s
limitations.” (Dkt. No. 14, at 9 [Pl. Mem. of Law].) As this Court has already concluded that the
ALJ did not err in weighing the opinion evidence, formulating the RFC, or assessing Plaintiff’s
credibility, Plaintiff’s argument that errors in those findings resulted in an incomplete
hypothetical question to the vocational expert is likewise meritless.
For the above reasons, the Step Five finding is supported by substantial evidence, and
remand is not warranted on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 18) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: October 4, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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