Kriesel v. Berryhill

Filing 17

MEMORANDUM-DECISION and ORDER: ORDERED that Plaintiffs motion for judgment on the pleadings (Dkt. No. 9) is DENIED; and it is further ORDERED that Defendants motion for judgment on the pleadings (Dkt. No. 12) is GRANTED; and it is further ORDERED that Defendants unfavorable determination is AFFIRMED; and it is further ORDERED that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED. Signed by Magistrate Judge William B. Carter on 6/21/2018. (khr)

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

5:17-CV-0382
(WBC)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

SEGAR, SCIORTIN LAW FIRM
Counsel for Plaintiff
400 Meridian Centre, Ste. 320
Rochester, NY 14618

ALECIA ELSTON, 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.

William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local
Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 15.).
Currently before the Court, in this Social Security action filed by K. K. (“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. 9, 12.) For the reasons set forth below,
Plaintiff’s motion is denied and Defendant’s motion is granted.
I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1966. (T. 87.) She completed two years of college. (T.
238.) Generally, Plaintiff’s alleged disability consists of low back pain, damaged nerves,
fractured right hip, left shoulder pain, post-traumatic stress disorder (“PTSD”), attention
deficit hyperactivity disorder (“ADHD”), anxiety, memory loss, and asthma. (T. 88.) Her
alleged disability onset date is February 16, 2012. (T. 87.) Her date last insured is
September 30, 2015. (Id.) She previously worked as a coder, in food service, and in
retail. (T. 239.)
B.

Procedural History

On June 26, 2013, Plaintiff applied for a period of Disability Insurance Benefits
(“SSD”) under Title II of the Social Security Act. (T. 87.) Plaintiff’s application was
initially denied, after which she timely requested a hearing before an Administrative Law
Judge (“the ALJ”). On March 24, 2015 and September 8, 2015, Plaintiff appeared
before the ALJ, John P. Ramos. (T. 25-62, 63-86.) On September 18, 2015, ALJ
Ramos issued a written decision finding Plaintiff not disabled under the Social Security
Act. (T. 7-24.) On February 15, 2017, the Appeals Council (“AC”) denied Plaintiff’s
request for review, rendering the ALJ’s decision the final decision of the Commissioner.
(T. 1-4.) Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

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Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 12-19.) First, the ALJ found Plaintiff met the insured status
requirements through September 30, 2015 and Plaintiff had not engaged in substantial
gainful activity since February 16, 2012. (T. 12.) Second, the ALJ found Plaintiff had
the severe impairments of degenerative disc disease of the lumbar spine, status post
neck surgery, asthma, depressive disorder, and obsessive-compulsive disorder. (Id.)
Third, the ALJ found Plaintiff did not have an impairment that meets or medically equals
one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T.
13.) Fourth, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to
perform:
sedentary work as defined in 20 C.F.R. [§] 404.1567(a)1 and she is able to
sit, stand or walk for up to one hour at a time. She can only occasionally
reach overhead with either upper extremity but otherwise has no reaching
limitation. She should avoid exposure to concentrated respiratory irritants
or extremes of temperature and humidity. She should be able to change
positions at will, but she does not need to leave the work area to do so.
[Plaintiff] retains the ability to understand and follow simple instructions and
directions; perform simple tasks with supervision and independently;
maintain attention/concentration for simple tasks; regularly attend to a
routine and maintain a schedule; relate to and interact with others to the
extent necessary to carry out simple tasks, but she should avoid work
requiring more complex interaction or joint efforts with other coworkers to
achieve work goals. [Plaintiff] can handle reasonable levels of simple, workrelated stress, in that she can make decisions directly related to the
performance of simple work and handle usual workplace changes and
interactions associated with simple work.

1
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met. 20 C.F.R. § 404.1567(a).

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(T. 15.) Fifth, the ALJ determined Plaintiff was incapable of performing her past
relevant work; however, there were jobs that existed in significant numbers in the
national economy Plaintiff could perform. (T. 18-19.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes three arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues the ALJ erred in affording more weight to a medical
expert’s opinion over treating source opinions. (Dkt. No. 9 at 8-12 [Pl.’s Mem. of Law].)
Second, Plaintiff argues the ALJ failed to properly evaluate and assess Plaintiff’s
credibility. (Id. at 12-17.) Third, and lastly, Plaintiff argues the ALJ erred in failing to
credit an answer by the vocational expert that resulted in no work Plaintiff could
perform. (Id. at 17-18.)
B.

Defendant’s Arguments

In response, Defendant makes three arguments. First, Defendant argues
substantial evidence supports the ALJ’s RFC finding. (Dkt. No. 12 at 9-20 [Def.’s Mem.
of Law].) Second, Defendant argues the ALJ properly considered Plaintiff’s credibility in
assessing her RFC. (Id. at 20-23.) Third, and lastly, Defendant argues the ALJ
properly denied Plaintiff’s claim at step five. (Id. at 24-25.)
III.

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. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the

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Commissioner’s determination will only be reversed 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.”); 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. See 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

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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. See 20 C.F.R. §
404.1520. The Supreme Court has recognized the validity of this sequential evaluation
process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The
five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
IV.

ANALYSIS
A. ALJ’s Weighing of the Medical Opinion Evidence and RFC
Determination
Plaintiff argues the ALJ committed legal error because he ignored Plaintiff’s

treating physician’s opinion and instead afforded significant weight to the opinion of nonexamining medical expert. (Dkt. No. 9 at 11 [Pl.’s Mem. of Law].)

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The Second Circuit has long recognized the ‘treating physician rule’ set out in 20
C.F.R. § 404.1527(c) 2. “ ‘[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 ‘wellsupported 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)).
Here, the ALJ afforded “great weight” to the opinion of non-examining medical
expert Louis Fuchs, M.D., “some weight” to examining medical consultant Kalyani
Ganesh, M.D., and “little weight” to the opinions of treating sources, Aaron Biano, M.D.
and Suzanne Volcko, N.P. (T. 16-17.) Plaintiff contends the ALJ erred as a matter of
law in affording more weight to the opinion of a non-examining medical source than the
opinion of a treating source. (Dkt. No. 9 at 8-12 [Pl.’s Mem. of Law].) In support of her
argument, Plaintiff relies on the holding in Havas v. Bowen, 804 F. 2d 783, 786 (2d Cir.
1986), in which the Court stated “the opinions of nonexamining medical personnel
cannot in themselves constitute substantial evidence overriding the opinions of
examining physicians.” (Id. at 11.)
As a matter of law, the ALJ did not err in affording more weight to a nonexamining medical expert’s opinion than a treating source’s opinion. Since Havas, the
Second Circuit has held that the opinion of a treating physician is not binding if it is

2
Effective March 27, 2017, many of the Regulations cited herein have been amended, as
have SSRs. Nonetheless, because Plaintiff’s social security application was filed before the new
Regulations and SSRs went into effect, the Court reviews the ALJ's decision under the earlier
Regulations and SSRs.

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contradicted by substantial evidence, and a consulting physician report may constitute
such evidence. Even “nonexamining sources” may “override treating sources' opinions,
provided they are supported by evidence in the record.” Netter v. Astrue, 272 F. App'x
54, 55-56 (2d Cir. 2008) (citing Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993)); see
Snyder v. Colvin, 667 F. App’x. 319, 320 (2d Cir. 2016) (“The opinion of a treating
physician is not binding if it is contradicted by substantial evidence, and a consulting
physician report may constitute such evidence.”); see Camille v. Colvin, 652 F. App’x.
25 (2d Cir. 2016) (ALJ was permitted to conclude that consultative examiner’s opinion
was more reliable than treating source’s opinion); see Heagney-O'Hara v. Comm'r of
Soc. Sec., 646 F. App’x. 123, 126 (2d Cir. 2016); see Fox v. Colvin, 589 F. App’x. 35,
36 (2d Cir. 2015) (“[the treating source] assessment is contradicted by other substantial
record evidence, including the testimony of the plaintiff and the opinions of other
medical experts”); see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see
also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
Further, it is well settled under the Regulations that an ALJ is entitled to rely upon
the opinions of both examining and non-examining State agency medical consultants,
since such consultants are deemed to be qualified experts in the field of social security
disability. See 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(e). Therefore, the
ALJ did not commit legal error in affording more weight to the opinion of a non-treating
source than a treating source.
Here, the ALJ’s physical RFC determination was supported by Dr. Fuchs’s
medical opinion and other substantial evidence in the record as outlined herein.

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On June 17, 2015, after reviewing the medical evidence in the record, Dr. Fuchs
completed a Medical Source Statement of Ability to Do Work-Related Activities
(Physical) form. (T. 832-840.) After the receipt of additional medical evidence, Dr.
Fuchs completed another form on July 2, 2015. (T. 843-852.)
Dr. Fuchs opined Plaintiff was capable of lifting and carrying up to ten pounds
continuously, 11 to 20 pounds occasionally, and never more than 20 pounds. (T. 832,
843.) He opined Plaintiff could sit for one hour at a time, stand for one hour at a time,
and walk for one hour at a time. (T. 833, 844.) He opined Plaintiff could, in an eight
hour workday, sit for eight hours, stand for three hours, and walk for three hours. (T.
833, 844.) Dr. Fuchs provided citation to the medical record to support his opined
limitations. (T. 844.)
Dr. Fuchs indicated Plaintiff could occasionally reach overhead and continuously
reach in all other directions, handle, finger, feel, push and pull. (T. 845.) 3 He opined
Plaintiff could continuously use her feet. (T. 834, 845.) Dr. Fuchs opined Plaintiff could
occasionally: climb stairs and ramps; balance; stoop; kneel; crouch; and crawl. (T. 835,
847.) Dr. Fuchs opined Plaintiff could occasionally tolerate: unprotected heights;
humidity and wetness; extreme cold; and extreme heat. (T. 836, 846.) He opined
Plaintiff could frequently tolerate operating a motor vehicle and continuously tolerate
moving mechanical parts. (Id.)
Plaintiff contends Dr. Fuchs’s testimony acknowledging that Plaintiff was on
potent pain medication, and his failure to take into account Plaintiff’s subjective

3

In his earlier opinion, Dr. Fuchs indicated Plaintiff could frequently reach overhead
bilaterally and continuously reach in all other directions, handle, finger, feel, and push/pull. (T. 834.)

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complaints of pain, undermines his medical opinion. (Dkt. No. 9 at 10 [Pl.’s Mem. of
Law].) Dr. Fuchs reviewed the record, which included Plaintiff’s medications and
complaints of pain, and provided the medical opinion outlined above. Dr. Fuchs testified
at the hearing that he based his limitations on the objective medical evidence in the file.
(T. 32-34.)4 Overall, Dr. Fuchs provided a medical opinion, based on his review of
medical evidence in the record. The ALJ determined Dr. Fuch’s opinion was supported
by substantial evidence in the record and ultimately adopted his opinion in formulating
his RFC determination. In addition, for reasons further discussed herein, the ALJ
properly evaluated Plaintiff’s testimony regarding the limiting effects of her symptoms,
such as pain, in formulating his RFC determination.
Consultative examiner, Dr. Ganesh examined Plaintiff and opined Plaintiff had
“no limitation sitting and the use of the upper extremities.” (T. 458.) Dr. Ganesh further
stated Plaintiff “states she cannot stand or walk without the cane”; however, he was
unable to comment on the need for the cane. (Id.)
No treating source completed a medical source statement; however, providers
made statements within treatment notations regarding Plaintiff’s work status. On May 2,
2013, Plaintiff’s treating nurse practitioner, Ms. Volcko, stated Plaintiff “cannot perform

4

Dr. Fuchs was questioned by Plaintiff’s counsel:
Q:
Now with respect to pain, obviously, that’s very subjective, and you have never
met [Plaintiff] before. [ . . . ] Did you consider that increasing pain in her levels of pain when
you indicated that she could sit for eight hours in an eight-hour day?
A:
Yes, because as you stated, pain is subjective. I’m going on the objective
physical examinations.
Q:
Okay. So you did not, in your filling out of the medical source statements, and
the fact that you said that she could sit for eight hours in an eight-hour day, that didn’t take
into account, or put to the side, if you will, would be her own complaints of pain and how bad
it is or isn’t.
A:
That’s correct. I base it more on the objective physical examinations.
(T. 33-34.)

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prolonged positions (sitting, standing, walking etc.) [,] no heavy lifting [,] cannot maintain
gainful employment due to mental and physical health issues at this time.” (T. 362.) In
April 2015, Dr. Bianco noted Plaintiff was “on total disability” until the next visit. (T.
819.) Dr. Bianco noted in August 2015, “[u]nfortuantely [Plaintiff] has not noted a huge
symptomatically since [her] surgery. Unfortunately given the extent of the symptoms
prior to surgery she may not note significant improvement.” (T. 877.)
Plaintiff asserts the ALJ “ignored” the statements by Dr. Biano and Ms. Volcko;
however, the ALJ considered these statements and afforded them some weight. (T.
17.) Although the ALJ afforded Dr. Fuchs’s opinion great weight, his RFC determination
was ultimately more restrictive. Indeed, the ALJ’s RFC for less than sedentary work is
consistent with Ms. Volcko’s statement, that Plaintiff should avoid prolonged sitting,
standing, and walking and avoid heavy lifting. In addition, Dr. Biano’s statement that
Plaintiff was on total disability and Ms. Volcko’s statement that Plaintiff was disabled,
are findings reserved to the Commissioner and not entitled to any weight. 20 C.F.R. §
404.1527(d); see Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating
physician's statement that the claimant is disabled cannot itself be determinative.”).
Although Plaintiff asserts the ALJ erred in his treatment of these statements, Plaintiff
fails to show how affording greater weight to the statements would result in a more
restrictive RFC.
Overall, the ALJ applied the correct legal standard in formulating his RFC
determination. The ALJ did not commit legal error in affording more weight to a nonexamining medical expert over treating source opinions. The ALJ noted Dr. Fuchs’s
opinion was consistent with clinical findings, he reviewed the record, and he had

11

program and professional expertise. (T. 16.) The ALJ also took statements made by
Plaintiff’s treating providers into consideration; however, the ALJ was not required to
weigh statements regarding Plaintiff’s ultimate disability. Overall, the statements made
by Plaintiff’s treating providers regarding work restrictions were not inconsistent with the
ALJ’s RFC for less than sedentary work. Therefore, the ALJ’s RFC determination is
upheld.
B. ALJ’s Credibility Determination
In determining plaintiff’s RFC, the ALJ must also make a determination as to the
credibility of the plaintiff’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

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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)).
The ALJ must employ a two-step analysis to evaluate the claimant's reported
symptoms. See 20 C.F.R. § 404.1529. First, the ALJ must determine whether, based
on the objective medical evidence, a plaintiff’s medical impairments “could reasonably
be expected to produce the pain or other symptoms alleged.” Id. § 404.1529(a).
Second, if the medical evidence establishes the existence of such impairments, the ALJ
must evaluate the intensity, persistence, and limiting effects of those symptoms to
determine the extent to which the symptoms limit the claimant's ability to do work. See
id. At this second step, the ALJ must consider: (1) the plaintiff’s daily activities; (2) the
location, duration, frequency, and intensity of the plaintiff’s pain or other symptoms; (3)
precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side
effects of any medication the plaintiff takes or has taken to relieve her pain or other
symptoms; (5) other treatment the plaintiff receives or has received to relieve her pain
or other symptoms; (6) any measures that the plaintiff takes or has taken to relieve her
pain or other symptoms; and (7) any other factors concerning plaintiff’s functional
limitations and restrictions due to his pain or other symptoms. Id. § 404.1529(c)(3)(i)(vii).
Where an ALJ’s reasoning and adherence to the Regulations is clear, he is not
required to explicitly go through each and every factor of the Regulation. Atwater v.
Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (plaintiff challenged ALJ’s failure to review
explicitly each factor provided for in 20 C.F.R. § 404.1527(c), the Court held that “no

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such slavish recitation of each and every factor [was required] where the ALJ's
reasoning and adherence to the regulation [was] clear”).
Here, the ALJ determined Plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms; however, her statements
concerning the intensity, persistence and limiting effects of those symptoms was not
entirely credible. (T. 16.) Plaintiff asserts she was entitled to be believed because the
record contained no substantial evidence to support a finding she lacked credibility.
(Dkt. No. 9 at 16 [Pl.’s Mem. of Law].) She further contends that due to her good work
history the ALJ was required to afford substantial credibility to her claim that she is
unable to work. (Id. at 16-17.)
The ALJ did not commit legal error and his credibility determination was
supported by substantial evidence in the record. Plaintiff asserts her subjective
complaints were consistent with the medical and other evidence in the record; however,
under the substantial evidence standard of review, it is not enough for Plaintiff to merely
disagree with the ALJ’s weighing of the evidence or to argue that the evidence in the
record could support her position. Plaintiff must show that no reasonable factfinder
could have reached the ALJ’s conclusions based on the evidence in record. See Brault
v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); see also Wojciechowski
v. Colvin, 967 F.Supp.2d 602, 605 (N.D.N.Y. 2013) (Commissioner’s findings must be
sustained if supported by substantial evidence even if substantial evidence supported
the plaintiff’s position).
In making his credibility determination, the ALJ noted Plaintiff’s daily activities,
treatment Plaintiff received including surgery, and outlined Plaintiff’s testimony

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regarding precipitating and aggravating factors. (T. 12-16.) The ALJ further outlined
objective medical evidence in the record which he determined was inconsistent with
Plaintiff’s statements. (T. 16-17.)
Although the ALJ did not specifically address Plaintiff’s work history in his
credibility analysis, the ALJ was aware of Plaintiff’s good work history. Plaintiff provided
testimony regarding her past work at both hearings and her work history was outlined in
the record. (T. 44-53, 68-73, 228-232, 239.) Further, although the ALJ did not
specifically refer to Plaintiff’s work history, such admission did not undermine his
credibility assessment because substantial evidence supported the ALJ’s determination.
Wavercak v. Astrue, 420 F. App’x. 91, 94 (2d Cir. 2011) (“That Wavercak's good work
history was not specifically referenced in the ALJ's decision does not undermine the
credibility assessment, given the substantial evidence supporting the ALJ's
determination.”). Therefore, the ALJ’s credibility determination was not the product of
legal error and was supported by substantial evidence in the record.
C. ALJ’s Step Five Determination
Although the plaintiff has the general burden to prove she 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, 758 F.3d
at 150 (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). At step
five in the sequential evaluation, the ALJ is required to perform a two part process to
first assess Plaintiff's job qualifications by considering her physical ability, age,
education, and work experience, and then determine whether jobs exist in the national
economy that Plaintiff could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §

15

404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d
66 (1983). The second part of this process is generally satisfied by referring to the
applicable rule of the Medical-Vocational Guidelines set forth at 20 C.F.R. Part 404,
Subpart P, Appendix 2 (commonly called “the Grids” or the “Grid”). See Bapp v. Bowen,
802 F.2d 601, 604 (2d Cir.1986).
“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)).
Plaintiff argues the ALJ erred in failing to adopt the vocational expert (“VE”)
response to a hypothetical that included the need for a walker to ambulate. (Dkt. No. 9
at 17 [Pl.’s Mem. of Law].) Plaintiff is correct in her assertion that had the ALJ adopted
the hypothetical posed at the hearing which included the need to use a walker to
ambulate, there would be no jobs in the national economy Plaintiff could perform and
she would thus be found disabled. (T. 57-58.) However, the ALJ did not adopt that
hypothetical.
Here, the ALJ posed a hypothetical to the VE that was based on his RFC
determination for less than sedentary work. (T. 55-56.) The VE testified that a person
with Plaintiff’s vocational factors and the hypothetical RFC could perform the
occupations of addresser (DOT 209.587-010), final assembler (DOT 713.687-018), and
sorter (DOT 521.687-086). (T. 57.) As stated herein, the ALJ’s RFC determination was

16

supported by substantial evidence in the record. Because the ALJ did not err in his
RFC assessment, the ALJ did not err in posing a hypothetical question to the VE that
was based on that assessment. See Dumas v. Schweiker, 712 F.2d 1545, 1553–54 (2d
Cir.1983) (approving a hypothetical question to a vocational expert that was based on
substantial evidence in the record). Therefore, the ALJ’s step five determination is
upheld.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12) is
GRANTED; and it is further
ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated:

June 21, 2018

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