Comito v. Astrue

Filing 18

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Comito's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 6/5/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DONNA M. COMITO,
Plaintiff,

6:12-cv-22
(GLS)

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter W. Antonowicz
148 West Dominick Street
Rome, NY 13440
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

PETER W. ANTONOWICZ, ESQ.

DENNIS J. CANNING
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278

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The Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social
Security, for defendant Michael J. Astrue, and amend the caption accordingly. See Fed. R.
Civ. P. 25(d).

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Donna M. Comito challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI),2 seeking judicial
review under 42 U.S.C. § 405(g). (See Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Comito’s
arguments, the court affirms the Commissioner’s decision and dismisses
the Complaint.
II. Background
On August 4, 2009, Comito filed an application for SSI under the
Social Security Act (“the Act”), alleging disability since May 8, 2009. (See

2

In her Complaint, Comito appeals the denial of her application for a period of disability
and Disability Insurance Benefits (DIB). (See Compl.) However, Comito applied for SSI and
not for DIB. On various occasions Comito’s counsel has initiated actions before the court
challenging the denial of DIB, using similarly imprecise language. See, e.g., Stelter v. Colvin,
No. 5:12-cv-93, 2013 WL 1703598 at *1 n.2, n.5 (N.D.N.Y. Apr. 19, 2013); Cadrette v. Astrue,
No. 6:11-cv-320, 2012 WL 1416267 at *1 n.1 (N.D.N.Y. Apr. 24, 2012). In the interest of
justice, the court will examine Comito’s claims on the merits. However, the court’s patience
with counsel’s inartful pleading practices has grown thin, and the court’s current ruling should
not be mistaken for an endorsement or condonation of his methods.
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Tr.3 at 71, 107-09.) After her application was denied, (see id. at 72-75),
Comito requested a hearing before an Administrative Law Judge (ALJ),
which was held on July 13, 2010, (see id. at 44-70, 76). On December 14,
2010, the ALJ issued an unfavorable decision denying the requested
benefits, which became the Commissioner’s final determination upon the
Social Security Administration Appeals Council’s denial of review. (See id.
at 1-6, 18-32.)
Comito commenced the present action by filing her Complaint on
January 5, 2012 wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 9, 10.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 14, 15.)
III. Contentions
Comito contends that the Commissioner’s decision was the product
of legal error and is unsupported by substantial evidence. (See Dkt. No.
14 at 8-21.) Specifically, Comito claims that: (1) the residual functional

3

Page references preceded by “Tr.” are to the Administrative Transcript. (See Dkt. No.

10.)
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capacity (RFC) determination is infirm; (2) the Commissioner improperly
evaluated whether her condition met listing 14.02; and (3) her credibility
was improperly assessed. (See id.) The Commissioner counters that the
appropriate legal standards were used by the ALJ and his decision is also
supported by substantial evidence. (See Dkt. No. 15 at 13-24.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 14 at 3-5; Dkt. No. 15 at 2-11.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)4 is well established and will not be repeated here. For
a full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion

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42 U.S.C. § 1383(c)(3) renders section 405(g) of Title 42 applicable to judicial review
of SSI claims.
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A.

Residual Functional Capacity
First, Comito argues that the Commissioner erred in determining her

RFC.5 (See Dkt. No. 14 at 8-15.) Specifically, Comito contends that the
Appeals Council erred in failing to remand based on opinion evidence
submitted to it after the ALJ’s decision. (See id.) The court disagrees.
The Appeals Council shall consider “new and material” evidence if it
“relates to the period on or before the date of the [ALJ] hearing decision.”
20 C.F.R. § 416.1476(b)(1); see Perez v. Charter, 77 F.3d 41, 45 (2d Cir.
1996). The Appeals Council “will then review the case if it finds that the
[ALJ]’s action, findings, or conclusion is contrary to the weight of the
evidence currently of record.” 20 C.F.R. § 416.1470(b). However, even if
“the Appeals Council denies review after considering new evidence, the
[Commissioner]’s final decision necessarily includes the Appeals Council’s
conclusion that the ALJ’s findings remained correct despite the new
evidence.” Perez, 77 F.3d at 45 (internal quotation marks and citation
omitted). Accordingly, the additional evidence becomes part of the
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A claimant’s RFC “is the most [she] can still do despite [her] limitations.” 20 C.F.R.
§ 416.945(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 416.945(a)(3). An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive and must be
affirmed upon judicial review. See id.; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
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administrative record reviewed by the district court. Id. at 45-46.
Here, Comito submitted additional evidence to the Appeals Council,
which was noted by the Appeals Council in its denial of review. (See Tr. at
1-5.) The evidence submitted by Comito included additional treatment
notes from Slocum-Dickson Medical Group and a Medical Source
Statement from treating physician Amy Gorczynski. (See id. at 314-62.) In
Dr. Gorczynski’s opinion, Comito could lift and carry ten pounds
occasionally and five pounds frequently. (See id. at 326.) Further, Comito
could stand and/or walk for three hours and sit for four hours, in an eighthour workday. (See id.) Dr. Gorczynski also opined that Comito would be
off-task for at least twenty-five percent of the day due to her pain. (See id.
at 327.) Presuming, without deciding, that the evidence relating to
Comito’s condition was within the relevant time period,6 the evidence would
not have altered the ALJ’s decision because Dr. Gorczynski’s opinion
deserves little weight, and the additional medical records from SlocumDickson Medical Group were consistent with the evidence before the ALJ.
See Mancuso v. Comm’r of Soc. Sec. Admin., No. 1:06-CV-930, 2008 WL

6
“The Appeals Council shall consider the additional evidence only where it relates to
the period on or before the date of the administrative law judge hearing decision.” See 20
C.F.R. § 416.1470(b).

6

656679, at *6-7 (N.D.N.Y. Mar. 6, 2008).
Controlling weight will be given to a treating source’s opinion on the
nature and severity of a claimant’s impairments where it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 416.927(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
When a treating source’s opinion is given less than controlling weight, the
ALJ is required to consider the following factors: the length, nature and
extent of the treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. 20 C.F.R. § 416.927(c)(2)-(6).
In this case, Dr. Gorczynski’s assessment is contradicted by
substantial evidence of record. In October 2009, Comito underwent a
consultative examination performed by Dr. Kalyani Ganesh. (See Tr. at
213-16.) The results of Dr. Ganesh’s examination were normal and,
further, Comito reported independence in her activities of daily living and
that her medication helps with her neck pain. (See id. at 213-15.) Based
on this examination, as well as a review of x-rays of Comito’s lumbrosacral
and cervical spine, Dr. Ganesh opined that Comito suffered no gross
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limitations to her ability to sit, stand, walk, or use her upper extremities.
(See id. at 215-18.)
In addition to the results of the consultative exam, treatment notes
from Slocum-Dickson Medical Group, submitted before the ALJ as well as
the Appeals Council, contained numerous physical examinations that
showed benign or normal clinical findings. (See id. at 187-88, 190-91, 19395, 205-07, 252-53, 257-59, 280, 290-92, 304-05, 318-20, 336-38, 35960.) The only remarkable findings contained in the treatment notes before
the ALJ were minor bone spurs of the knees and pigmentation changes on
Comito’s forearm and forehead. (See id. at 254, 257, 291.) A review of
the additional treatment records submitted to the Appeals council reveals
that, on one examination, Comito experienced tenderness in her upper
extremities and soft tissue tender points in her head and neck. (See id. at
332-34.) Further, x-rays of her lumbar and cervical spine revealed stable
degenerative changes. (See id. at 330-31.)
Dr. Gorczynski’s opinion is also inconsistent with evidence of
Comito’s activities of daily living. Notably, Comito maintained part-time
work, cooked and cleaned daily, and shopped weekly. (See id. at 134-38,
318, 332, 359.) In June 2009, Comito reported riding two to three miles on
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an exercise bike, three times a week. (See id. at 300.) Given these
inconsistencies, the court agrees with the Commissioner that Dr.
Gorczynski’s opinions were undeserving of controlling weight, 7 and the
new evidence presented to the Appeals Council provided no basis to
change the ALJ’s decision. (See id. at 2.)
B.

Listing 14.02
Next, Comito alleges that her impairment meets listing 14.02. (See

Dkt. No. 14 at 15-16.) In particular, Comito argues that she “exhibited
extreme fatigue and malaise and at least moderate involvement of a body
system.” (Id. at 16.) Further, she claims that neither the ALJ nor the
Appeals Council examined the evidence “with an eye toward” listing 14.02.
(Id.) The Commissioner counters, and the court agrees, that Comito’s
impairment did not meet listing 14.02. (See Dkt. No. 15 at 22-24.)
If a claimant’s “impairment(s) meets or equals a listed impairment”
and “meets the durational requirement,” she will be found disabled. 20
C.F.R. § 416.920(d). Listing 14.02 deals with an immune system disorder,

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Notably, the other regulatory factors indicate that Dr. Gorczynski’s opinion should be
afforded little weight. See 20 C.F.R. § 416.927(c). Specifically, it appears that she only
examined Comito on two occasions and offered no clinical or laboratory findings to support her
opinion. (See Tr. at 307-09, 311-13, 327.)
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namely, systemic lupus erthyematosus (SLE). See 20. C.F.R. pt. 404,
subpt. P, app. 1, § 14.02. SLE is “a chronic inflammatory disease that can
affect any organ or body system,” including an individual’s respiratory,
cardiovascular, renal, blood, skin, neurologic, mental, or immune systems.
Id. § 14.00(D)(1). To meet listing 14.02(A), a claimant must demonstrate
that she suffers from SLE accompanied by the “[i]nvolvement of two or
more organs/body systems, with: [o]ne of the organs/body systems
involved to at least a moderate level of severity; and [a]t least two of the
constitutional symptoms or signs (severe fatigue, fever, malaise, or
involuntary weight loss).” Id. § 14.02(A). Alternatively, a claimant can
meet lisitng14.02(B) if they suffer from “[r]epeated manifestations of SLE,
with at least two of the constitutional symptoms or signs (severe fatigue,
fever, malaise, or involuntary weight loss)” as well as marked limitations in
either their activities of daily living, social functioning, or ability to complete
tasks in a timely manner due to deficiencies in concentration, persistence,
or pace. Id. § 14.02(B).
Comito’s claim that the ALJ failed to discuss listing 14.02 is flatly
incorrect. (See Dkt. No. 14 at 16; Tr. at 25.) The ALJ “placed specified
emphasis” on the listing and found that Comito’s lupus was stable, had not
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affected multiple body systems, and had not presented with repeated
manifestations. (Tr. at 25.) Comito provides no citation to the record for
her assertion that she suffered extreme fatigue and malaise or that her
SLE included moderate involvement of a body system. (See Dkt. No. 14 at
16.) In any event, to satisfy listing 14.02(A) there must be involvement of
at least two body systems or organs. See 20 C.F.R. pt. 404, subpt. P, app.
1, § 14.02(A).
Despite Comito’s conclusory allegation to the contrary, (see Dkt. No.
14 at 15-16), the record as a whole demonstrates that the ALJ’s listing
assessment is supported by substantial evidence8 and is, thus, conclusive,
(See Tr. at 25); 42 U.S.C. § 405(g). The medical evidence of record does
not indicate that Comito’s SLE involved multiple body systems or organs,
with one such body system or organ involved to a moderate level of
severity. (See Tr. at 187-88, 190-91, 193-95, 205-07, 252-53, 257-59, 280,
290-92, 304-05, 311-12, 318-20, 332-34, 336-38, 359-60.) Indeed, the
record contains numerous physical exams which revealed normal results.
(See id.) Consultative examiner Kristen Barry opined that Comito “appears

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“Substantial evidence is defined as more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept to support a conclusion.” Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).
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to have some normal anxieties, but nothing extreme,” and could handle
stressors “fairly adequately.” (Id. at 222.) State agency review psychiatrist
H. Tzetzo opined that Comito suffered no limitations in her activities of
daily living, mild limitations in her social functioning, and mild limitations in
her concentration, persistence and pace. (See id. at 234.) Based on his
review of the record, Tzeto concluded that Comito’s mental impairment did
not cause any significant restrictions and was, therefore, not severe. (See
id. at 236.) Prior to her alleged onset date, Comito’s SLE was described
as “unchanged” and “quiet.” (Id. at 191, 195, 305.) In June 2009, one
month after Comito’s alleged onset date, her SLE was described as
“improved.” (Id. at 188.) Thereafter, her SLE was repeatedly described in
treatment notes as “unchanged” and “relatively quiet.” (Id. at 206, 258,
291, 319, 337-38, 360.)
C.

Credibility Determination
Finally, Comito contends that “the Commissioner improperly

evaluated [her] allegations of disabling pain and symptoms.” (Dkt. No. 14
at 16-21.) According to Comito, the ALJ: (1) misstated her abilities;9 (2)

9

Notably, Comito does not cite any specific misstatements that the ALJ made
regarding her abilities, but, rather, argues that “the ALJ’s recitation of [her] abilities does not
reflect any familiarity with [her] testimony or the paperwork that she completed in support of
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“failed to even consider [her] statements regarding her limitations;” and (3)
overstated the significance of certain activities of daily living. (Id. at 18-19.)
The Commissioner argues that the ALJ’s credibility determination is
supported by substantial evidence. (See Dkt. No. 15 at 14-16.) Again, the
court agrees with the Commissioner.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” he “must evaluate the intensity and persistence of
those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the
ALJ “must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg.
34,483, 34,485 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
this application.” (Dkt. No. 14 at 18.)
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precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
§ 416.929(c)(3)(i)-(vi)).
Here, the ALJ determined that Comito’s statements concerning the
intensity, persistence, and limiting effects of her symptoms were not
credible to the extent that they were inconsistent with his RFC assessment.
(See Tr. at 26.) The ALJ explained that the objective medical evidence did
not support Comito’s claims of “experienc[ing] headaches four to five times
a week, [and] difficulty with climbing stairs and with prolonged periods of
walking and sitting.” (Id. at 25-26.) The ALJ noted that Comito failed to
complain of headaches to her medical providers. (See id. at 26.) Further,
the ALJ reviewed Comito’s activities of daily living and concluded that they
were “atypical for someone with allegedly disabling symptoms.” (Id.) The
ALJ also noted inconsistencies between Comito’s hearing testimony and
her responses on a Function Report. (See id. at 26, 63-64, 139.) Lastly,
the ALJ observed that Comito stopped working because she was
terminated, rather than because of her impairments, and she continued to
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look for work after her alleged onset date. (See id. at 26, 52-53, 187, 205,
219.)
In sum, the ALJ’s determination that Comito’s subjective complaints
were not credible to the extent that they suggested impairment greater
than the ability to perform “the full range of light work” is supported by
substantial evidence. (Id. at 25.)
D.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Comito’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
June 5, 2013
Albany, New York

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