Zehr v. Commissioner of Social Security
Filing
13
DECISION AND ORDER: it is ORDERED, that Plaintiff's 11 motion for judgment on the pleadings is DENIED; and Defendant's 12 motion for judgment on the pleadings is GRANTED; and Defendant's decision denying Plaintiff disability benefits is AFFIRMED; and Plaintiff's 1 Complaint is DISMISSED. Signed by Magistrate Judge Therese Wiley Dancks on 11/13/2018. (sg)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
AMBER Z.,
Plaintiff,
v.
5:17-CV-0956
(TWD)
COMM’R OF SOC. SEC.,
Defendant.
____________________________________
APPEARANCES:
OF COUNSEL:
CONBOY, MCKAY, BACHMAN & KENDALL, LLP
407 Sherman Street
Watertown, NY 13601-9990
PETER L. WALTON, 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
ARIELLA R. ZOLTAN, ESQ.
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Amber Z. (“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. 11 and 12.) 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 1982, making her 32 years old at the application date and 34 years
old at the date of the ALJ’s decision. She completed the twelfth grade and has previous work as
a caretaker, cashier, and cleaner. At the initial application level, Plaintiff alleged disability due
to back pain, depression, anxiety, and migraines.
B.
Procedural History
Plaintiff applied for Supplemental Security Income on May 21, 2014. Her application
was initially denied on October 21, 2014, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”). She then appeared before ALJ Marie Greener on March 30,
2016. (T. 264-84.) 1 On May 4, 2016, the ALJ issued a written decision finding Plaintiff was
not disabled under the Social Security Act. (T. 227-43.) On July 3, 2017, the Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. (T. 1-7.)
C.
The ALJ’s Decision
In her decision, the ALJ made the following determinations. (T. 232-38.) First, Plaintiff
has not engaged in substantial gainful activity since May 21, 2014, the application date. (T.
232.) Second, Plaintiff’s lumbar and thoracic degenerative disc disease (“DDD”), right knee
osteoarthritis, and obesity are severe impairments. (T. 223.) Third, Plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the listed
1
The Administrative Transcript is found at Dkt. No. 6. 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
impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”), specifically considering
Listing 1.00 (musculoskeletal system). (T. 234.) Fourth, Plaintiff has the residual functional
capacity (“RFC”) to perform the full range of light work and, specifically, she can lift/carry and
push/pull up to 20 pounds occasionally and up to 10 pounds frequently, can sit for up to six
hours in an eight-hour workday, and can stand/walk for up to six hours. (T. 235.) Fifth, Plaintiff
is unable to perform any past relevant work. (T. 237.) Finally, there are jobs existing in
significant numbers in the national economy Plaintiff can perform. (T. 237-38.) The ALJ
therefore concluded Plaintiff is not disabled.
D.
The Parties’ Briefings on Their Cross-Motions
1.
Plaintiff’s Motion for Judgment on the Pleadings
Plaintiff makes three arguments in support of her motion for judgment on the pleadings
and her general contention that the ALJ’s findings are not supported by substantial evidence.
(Dkt. No. 11 at 13-22. 2) First, Plaintiff argues the ALJ erred in weighing the medical opinions of
record. (Id. at 14-19.) Specifically, Plaintiff contends the opinion of Plaintiff’s treating
orthopedic physician Edward Powell, M.D., should have been given controlling weight because
it is well-supported by medically acceptable clinical and laboratory diagnostic techniques,
including the findings by consultative examiner Jerome Cuyler, M.D., and it is consistent with
other substantial evidence in the case record.
Further, Plaintiff argues consultative examiner Dr. Cuyler’s opinion is vague, making it
difficult to comprehend how it differs from Dr. Powell’s opinion or how Dr. Cuyler’s opined
limitations would be less restrictive than those opined by Dr. Powell. (Id. at 17.) Ultimately,
Page references to documents identified by docket number refer to the page numbers
inserted by the Court’s electronic filing system maintained by the Clerk’s office.
3
2
Plaintiff contends Dr. Cuyler’s opinion is consistent with Dr. Powell’s opinion, Dr. Cuyler’s
examination findings, and the ability to perform less than a full range of sedentary work. (Id.)
Second, Plaintiff argues the ALJ’s RFC finding is not supported by substantial evidence
because the opinions of Dr. Powell and Dr. Cuyler do not support the ALJ’s RFC finding that
Plaintiff can perform light work. (Id. at 19-21.) Plaintiff also asserts the fact that treating
physician Ivan Montalvo-Otano, M.D., would not submit a medical source statement does not
support the ALJ’s inference that this was due to a lack of limitations. (Id.) Plaintiff notes Dr.
Montalvo-Otano explicitly explained that it was his practice’s policy not to do anything about
disability or related paperwork. (Id.)
Third, Plaintiff argues the ALJ erred in failing to procure testimony from a vocational
expert (“VE”) because her disability claim includes both exertional and non-exertional
impairments. (Id. at 21-22.) She claims there is ample evidence to support the diagnosis of
generalized anxiety disorder and major depressive disorder. (Id.) Plaintiff also asserts that,
although a recent assessment indicated her psychiatric and cognitive problems do not appear to
be significant enough alone to interfere with her ability to function on a daily basis, her
combined mental and physical impairments can result in excessive absenteeism and time-off task
as well as an inability to perform at a consistent pace without a reasonable number and length of
rest periods. (Id. at 22.) Thus, there is a question regarding her abilities when combining her
exertional and non-exertional limitations and, therefore, the ALJ was mandated to leave that
assessment to a VE. (Id.)
2.
Defendant’s Motion for Judgment on the Pleadings
Defendant makes several arguments in support of her motion for judgment on the
pleadings. (Dkt. No. 12 at 2, 6-11.) First, Defendant argues the ALJ’s RFC finding is supported
4
by the totality of the evidence, including objective medical studies, Dr. Cuyler’s findings and
opinion, Plaintiff’s own statements regarding her symptoms and daily activities, and treatment
notes from Dr. Powell, neurologist Samah Mohiuddin, M.D., consulting neurologist Ross
Moquin, M.D., and pain management specialists Lynn Barber, N.P., and Dr. Montalvo-Otano.
(Id. at 6-9.) Defendant also contends the ALJ’s RFC determination was consistent with
Plaintiff’s statements in the record regarding her level of functioning, and the RFC for light work
was consistent with Plaintiff’s reported activities. (Id. at 10-11.)
Second, Defendant argues the ALJ properly weighed the medical opinion evidence. (Id.
at 11-15.) Specifically, Defendant contends the ALJ reasonably concluded that Dr. Powell’s
opinion was not consistent with the totality of the evidence, including treatment notes throughout
the record, Plaintiff’s relatively routine treatment course, Plaintiff’s September 2014 statement to
NP Barber that she had been returned to work with lifting limitations, and evidence in the record
that she was working in 2015. (Id. at 12-13.) Therefore, the opinion was not entitled to
controlling weight. (Id.) Defendant also notes Dr. Powell’s opinion is not supported by his own
examination findings and he did not record any clinical findings in a June 17, 2014, treatment
note that supported his restrictive opinion of the same date. (Id. at 13.) Additionally, Dr.
Cuyler’s opinion is not consistent with Dr. Powell’s and the opinion of a consultative examiner
like Dr. Cuyler can constitute substantial evidence in support of the ALJ’s determination if
supported by the evidence of record. (Id. at 14-15.) Thus, Defendant contends Plaintiff has not
shown that remand is warranted to reassess her RFC because the ALJ considered the record as a
whole and reasonably concluded that the totality of the evidence supported an RFC for light
work. (Id. at 15-17.)
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Third, Defendant asserts the ALJ’s Step Five determination is supported by substantial
evidence. (Id. at 17-22.) The ALJ’s exclusive reliance on the Medical-Vocational Guidelines at
Step Five was proper where a claimant’s non-exertional limitations do not significantly erode the
range of work permitted by her exertional limitations. (Id. at 17-18.) The ALJ determined
Plaintiff was able to perform a full range of light work without any additional exertional or nonexertional limitations and was therefore permitted to rely on the Medical-Vocational Guidelines
at Step Five to conclude there are jobs existing in significant numbers in the national economy
that Plaintiff can perform. (Id.) The ALJ properly considered Plaintiff’s mental impairments
and determined that her generalized anxiety disorder and major depressive disorder were not
severe and did not cause functional limitations that interfered with her ability to perform basic
work activity. (Id. at 18-20.) Even if Plaintiff’s mental impairments did cause greater
limitations than those assessed by the ALJ, the medical opinion evidence in the record shows that
Plaintiff was able to perform unskilled work which indicates the ALJ would still be able to rely
on the Medical-Vocational Guidelines and Rule 202.20 would still direct a finding of not
disabled. (Id. at 18, 20-22.)
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
6
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).
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.
7
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
A.
Substantial Evidence Supports the ALJ’s Analysis of the Opinion Evidence
and Plaintiff’s RFC
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.
§ 416.927(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)
8
(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.’”
Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). 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. 20
C.F.R. §§ 416.927(c)(1)-(6).
RFC is defined as “‘what an individual can still do despite his or her limitations . . . .
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in
an ordinary work setting on a regular and continuing basis.’” Pardee v. Astrue, 631 F. Supp. 2d
200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). “In
making a residual functional capacity determination, the ALJ must consider a claimant’s
physical abilities, mental abilities, symptomology, including pain and other limitations which
could interfere with work activities on a regular and continuing basis.” Pardee, 631 F. Supp. 2d
at 210 (citing 20 C.F.R. § 404.1545(a)). “Ultimately, ‘[a]ny impairment-related limitations
created by an individual’s response to demands of work . . . must be reflected in the RFC
assessment.’” Hendrickson v. Astrue, 11-CV-0927 (ESH), 2012 WL 7784156, at *3 (N.D.N.Y.
Dec. 11, 2012) (quoting Social Security Ruling (“SSR”) 85-15, 1985 WL 56857, at *8).
“An ALJ should consider ‘all medical opinions received regarding the claimant.’” Reider
v. Colvin, 15-CV-6517, 2016 WL 5334436, at *5 (W.D.N.Y. Sept. 23, 2016) (quoting Spielberg
9
v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005)). “The ALJ is not permitted to substitute
his own expertise or view of the medical proof for the treating physician’s opinion or for any
competent medical opinion.” Greek, 802 F.3d at 375 (citing Burgess, 537 F.3d at 131). In
assessing a plaintiff’s RFC, an ALJ is entitled to rely on opinions from both examining and nonexamining State agency medical consultants because these consultants are qualified experts in
the field of social security disability. See Frey ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d
Cir. 2012) (summary order) (“The report of a State agency medical consultant constitutes expert
opinion evidence which can be given weight if supported by medical evidence in the record.”);
Little v. Colvin, 14-CV-0063 (MAD), 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26, 2015)
(“State agency physicians are qualified as experts in the evaluation of medical issues in disability
claims. As such, their opinions may constitute substantial evidence if they are consistent with
the record as a whole.”) (internal quotation marks omitted). The RFC determination “must be set
forth with sufficient specificity to enable [the Court] to decide whether the determination is
supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
In June 2014, treating physician Dr. Powell noted Plaintiff’s chronic back pain and that
conservative treatment failed to that point. (T. 498.) He indicated he talked with her at length
about weight loss and its continuing impact upon the progression of her DDD. (Id.) Dr. Powell
also noted Plaintiff was likely not a surgical candidate and referred her to pain management.
(Id.) He opined a moderate-to-marked impairment of 66 percent, indicating she was not to lift or
carry anything over 10 pounds, should not stand or walk longer than 10 minutes, should not sit
longer than 30 minutes, and should do no bending, stooping, or climbing. (T. 499.) The ALJ
afforded little weight to Dr. Powell’s opinion because, although he was a treating source, the
extent of the restrictions he identified was inconsistent with the objective medical evidence
10
contained in progress notes. (T. 236, 496-99, 501.) The ALJ noted musculoskeletal
examinations generally revealed some lumbar range of motion deficits but without neurological
abnormalities and that Plaintiff’s treatment was limited to conservative measures. (Id.)
In August 2014, consultative examiner Dr. Cuyler noted Plaintiff appeared to be in mild
distress and was barely able to stand without using chairs and a table for leverage. (T. 588.) She
had an abnormal gait, could not walk on her heels or toes, and could only squat 25 degrees. (T.
588.) She limped with her stance favoring her right foot and she was using the table as an
assistive device. (Id.) However, she needed no help changing for the exam or getting on and off
the exam table. (Id.) Upon examination, she had pain on flexion although she had full range of
motion in her neck and she was only able to bend at the waist to 45 degrees. (T. 589.) Straight
leg raise testing was positive at 40 degrees bilaterally in both the lying and sitting position and
range of motion was positive in both hips. (Id.) She had full range of motion bilaterally in the
elbows, wrists, hands, and ankles while the range of motion in her shoulders, back, and knees
was limited. (Id.) She also had full strength in the upper and lower extremities with intact hand
and finger dexterity. (T. 590.)
Dr. Cuyler diagnosed lumbosacral radiculopathy and thoracic radiculopathy by history,
pain in the right hip and right knee by history, right heel spurs by history, anxiety and depression
by history, and severe tendonitis in the right foot by history. (Id.) He opined that Plaintiff had
mild-to-moderate difficulty in sitting, standing, walking, climbing stairs, bending, lifting,
carrying, and kneeling. (Id.) The ALJ indicated that she afforded more weight to Dr. Cuyler’s
opinion, noting that although his findings were more significant than what was generally
reflected in progress notes from the period at issue, the mild-to-moderate limitations he identified
11
were consistent with Plaintiff’s level of care and her acknowledged activities of daily living
including child care, meal preparation, driving, and cleaning. (T. 237, 274-275, 428-431.)
Plaintiff argues the ALJ erred in weighing the medical opinions of record and the RFC
determination is not supported by substantial evidence. (Dkt. No. 11 at 14-21.) The Court finds
these arguments unpersuasive for the following reasons.
First, contrary to Plaintiff’s contentions, the ALJ’s analysis of the opinion evidence
indicates sufficient consideration of both Dr. Powell and Dr. Cuyler’s opinions and the medical
evidence of record. (T. 235-37.) The ALJ adequately summarized the evidence of record
including the medical evidence, opinions, and Plaintiff’s alleged limitations. (T. 235-37.)
Further, the ALJ provided sufficient explanation of her RFC analysis, including multiple reasons
for the weight afforded to each medical opinion. Ferraris, 728 F.2d at 587 (2d Cir. 1984). The
ALJ was also entitled to rely on Dr. Cuyler’s examining opinion in determining Plaintiff’s RFC.
Frey ex rel. A.O., 485 F. App’x at 487.
Second, although Plaintiff contends the ALJ did not properly consider the regulatory
factors when assessing Dr. Powell’s opinion, the ALJ’s decision indicates otherwise. (Dkt. No.
11 at 19.) The ALJ noted she had considered the opinion evidence in accordance with the
requirements of 20 C.F.R. § 416.927, and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. (T. 235.) The
ALJ explicitly acknowledged Dr. Powell was a treating source, but noted the extent of the
restrictions he identified were not consistent with the objective medical evidence contained in his
progress notes. (T. 236, 496-99, 501.) Although the ALJ did not explicitly list each of the
regulatory factors when assessing this opinion, her overall decision indicates she adequately
considered the factors and supported her reasoning with sufficient analysis.
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Third, the ALJ’s RFC determination is further supported by her analysis discussing her
conclusion that the medical evidence was not fully supportive of Plaintiff’s alleged functional
limitations. For example, the ALJ noted that, while x-rays and MRIs from the relevant period
revealed right knee osteoarthritis, multilevel lumbar disc bulges and degenerative changes with
some nerve involvement and thoracic disc bulges without nerve involvement, examinations of
record generally indicated morbid obesity, tenderness, and limitation in range of motion without
deficits in sensation or strength. (T. 236, 486-501, 581-86, 592-678, 720-42, 764-75, 831-95.)
The ALJ also noted that, although abnormalities and positive straight leg raise tests were noted
intermittently, Plaintiff’s treatment history was limited to physical therapy, medication, and pain
injections. (T. 236, 486-91, 496, 675.) While Plaintiff sought emergency care for back pain
approximately eight times between January 2014 and September 2015, she was only prescribed
medication and discharged the same day in all instances. (T. 236, 503, 515, 687, 743, 745, 762,
811, 824.) Finally, the ALJ noted that Dr. Moquin concluded in January 2016 that there was no
indication for back surgery, but recommended Plaintiff pursue bariatric surgery to address
obesity. (T. 236, 896-97.)
It was within the ALJ’s purview to weigh the evidence of record and resolve any
conflicts therein. See Bliss v. Colvin, 13-CV-1086 (GLS/CFH), 2015 WL 457643, at *7
(N.D.N.Y. Feb. 3, 2015) (“It is the ALJ’s sole responsibility to weigh all medical evidence and
resolve material conflicts where sufficient evidence provides for such.”); accord Petell v.
Comm’r of Soc. Sec., 12-CV-1596 (LEK/CFH), 2014 WL 1123477, at *10 (N.D.N.Y. Mar. 21,
2014). The ALJ provided sufficient reasoning for the conclusions she drew related to the
medical and opinion evidence and her explanation is supported by the Court’s review of the
evidence cited by the ALJ. This Court will not now reweigh that evidence. See Warren v.
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Comm’r of Soc. Sec., 15-CV-1185 (GTS/WBC), 2016 WL 7223338, at *9 (N.D.N.Y. Nov. 18,
2016) (“When applying the substantial evidence test to a finding that a plaintiff was not disabled,
the Court ‘will not reweigh the evidence presented at the administrative hearing . . . nor will it
determine whether [the applicant] actually was disabled. [Rather], [a]bsent an error of law by the
Secretary, [a] court must affirm her decision if there is substantial evidence [in the record] to
support it.’”), Report and Recommendation adopted by 2016 WL 7238947 (N.D.N.Y. Dec. 13,
2016) (quoting Lefford v. McCall, 916 F. Supp. 150, 155 (N.D.N.Y. 1996)); Vincent v. Shalala,
830 F. Supp. 126, 133 (N.D.N.Y. 1993) (“[I]t is not the function of the reviewing court to
reweigh the evidence.”) (citing Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 642
(2d Cir. 1983)); Lewis v. Colvin, 122 F. Supp. 3d 1, 7 (N.D.N.Y. 2015) (noting that it is not the
role of a court to “re-weigh evidence” because “a reviewing court ‘defers to the Commissioner’s
resolution of conflicting evidence’ where that resolution is supported by substantial evidence)
(quoting Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012); citing Lamay v.
Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)).
Fourth, Plaintiff’s arguments suggest Dr. Cuyler’s opinion was vague, making it difficult
to determine how it actually differs from Dr. Powell’s opinion, and therefore the ALJ substituted
her own opinion for the competent medical opinion of Dr. Powell. (Dkt. No. 11 at 17.) The
Court does not find support for either of these arguments. “Vague” terminology in a consultative
opinion does not render the opinion necessarily useless. Monroe v. Comm’r of Soc. Sec., 15-CV1235 (GTS/WBC), 2016 WL 7971330, at *7-8 (N.D.N.Y. Dec. 29, 2016), Report and
Recommendation adopted by 2017 WL 318838 (N.D.N.Y. Jan. 23, 2017)) (noting that, even
where a “consultative examiner’s opinion may use terminology that, on its face, is vague, such
language does not render the consultative examiner’s opinion useless in all situations” so long as
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it is “well supported by his extensive examination” or it can be made “more concrete” by “the
facts in the underlying opinion and other opinion evidence in the record”) (citing Zongos v.
Colvin, 12-CV-1007 (GLS/ESH), 2014 WL 788791, at *10 (N.D.N.Y. Feb. 25, 2014); Waldau v.
Astrue, 11-CV-0925 (GLS), 2012 WL 6681262, at *4 (N.D.N.Y. Dec. 21, 2003); Davis v.
Massanari, 00-CV-4330, 2001 WL 152495, at *8 (S.D.N.Y. Nov. 29, 2001)). The ALJ’s
analysis represents a careful consideration of the medical evidence and the two opinions of
record relating to Plaintiff’s physical limitations.
Finally, Plaintiff’s argument pertaining to the lack of a medical source statement from
pain management specialist Dr. Montalvo-Otano is similarly unsupported. (Dkt. No. 11 at 21.)
Rather than representing an inference of a lack of limitations, the ALJ’s notation indicates that
Dr. Montalvo-Otano declined to complete a medical source statement consistent with disability
even though Plaintiff and her father threatened legal action against the doctor. (T. 237, 872.)
Indeed, the treatment notes indicate that it was communicated to Plaintiff and her father that it
was company policy not to do any paperwork about disability or functional assessments and that,
in response, she was noted as “quite aggressive and verbally assaultive to staff.” (T. 872-73,
876, 891.)
For the reasons outlined above, the ALJ’s analysis of the medical opinions and the
resulting RFC are supported by substantial evidence. Remand is therefore not required on this
basis.
B.
Substantial Evidence Supports the Step Five Finding
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)). “If a claimant has non-exertional limitations that ‘significantly
15
limit the range of work permitted by his exertional limitations,’ the ALJ is required to consult
with a vocational expert.” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v.
Bowen, 802 F.2d 601, 605 (2d Cir. 1986)). “However, the ‘mere existence of a non-exertional
impairment does not automatically . . . preclude reliance on the [Medical-Vocational]
guidelines.’” Zabala, 595 F.3d at 410-11 (quoting Bapp, 802 F.2d at 603). “A non-exertional
impairment ‘significantly limits a claimant’s range of work when it causes an additional loss of
work capacity beyond a negligible one or, in other words, one that so narrows a claimant’s
possible range of work as to deprive him of a meaningful employment opportunity.’” Zabala,
595 F.3d at 410-11 (quoting Bapp, 802 F.2d at 605-06).
After determining the RFC, the ALJ found Plaintiff is unable to perform any past relevant
work. (T. 237-38.) The ALJ then found Plaintiff could perform other jobs existing in significant
numbers in the national economy based on an RFC for the full range of light work and MedicalVocational Rule 202.21. (T. 238.) Plaintiff argues the ALJ erred in failing to procure VE
testimony because there is a question regarding her abilities when combining her exertional and
non-exertional limitations. (Id.) (Dkt. No. 11 at 21-22.) The Court disagrees.
First, the mere existence of Plaintiff’s alleged mental impairments including generalized
anxiety disorder, major depressive disorder, and learning disorder do not necessarily preclude the
ALJ’s reliance on the Medical-Vocational Guidelines. Zabala, 595 F.3d at 410-11 (quoting
Bapp, 802 F.2d at 603). Second, the ALJ’s analysis of Plaintiff’s mental impairments at Steps
Two and Three indicate careful consideration of the applicable medical and opinion evidence of
record. (T. 232-34.) The ALJ found Plaintiff’s medically determinable mental impairments to
be non-severe and indicated that they caused no more than mild limitation in any of the first
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three functional areas and no episodes of decompensation of extended duration. (T. 234.) The
Court’s review of the record supports this assessment. (See, e.g., T. 543-80, 679-83, 966-68.)
Second, Plaintiff’s arguments pertaining to her alleged mental limitations fail to articulate
a harmful error committed by the ALJ in her analysis of these limitations or her consideration of
the applicable medical and opinion evidence of record pertaining to non-exertional limitations.
(Dkt. No. 11 at 21-22.) Rather, Plaintiff summarily states that her combined impairments can
result in excessive absenteeism and time-off-task in a competitive work setting, but, within her
argument, points to no support in the record for such a statement. (Id. at 22.) The ALJ provided
sufficient explanation for her findings regarding Plaintiff’s medically determinable mental
impairments and, again, this Court declines any invitation to reweigh the evidence before the
ALJ. Warren v. Comm’r of Soc. Sec., 2016 WL 7223338, at *9. For the above reasons, the
Court finds that the ALJ’s Step Five finding is supported by substantial evidence. Remand is
therefore not required on this basis.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) 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 decision denying Plaintiff disability benefits is
AFFIRMED, and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: November 13, 2018
Syracuse, New York
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