Rodriguez v. Colvin

Filing 21

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Rodriguez's complaint (Dkt. No. 1) is DISMISSED. Signed by Senior Judge Gary L. Sharpe on 2/4/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
VIVIAN M. RODRIGUEZ,

Plaintiff,

6:14-cv-1129
(GLS)

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter M. Hobaica, LLC
2045 Genesee Street
Utica, NY 13501
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Senior District Judge

B. BROOKS BENSON, ESQ.

DAVID L. BROWN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Vivian M. Rodriguez challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking judicial review under 42 U.S.C. §§ 405(g)
and 1383(c)(3). (Compl., Dkt. No. 1.) After reviewing the administrative
record and carefully considering Rodriguez’s arguments, the court affirms
the Commissioner’s decision and dismisses the complaint.
II. Background
On November 20, 2001, an Administrative Law Judge (ALJ) found
that Rodriguez became disabled on July 8, 1998 due to, among other
things, back and shoulder pain, anxiety, and depression, and awarded DIB
and SSI benefits. (Tr.1 at 32, 119, 124, 141.) Subsequently, in September
2007, the Commissioner reviewed Rodriguez’s claim and determined that
her disability continued. (Id.) On May 27, 2011, Rodriguez was informed
that the Commissioner had again reviewed her claim, but this time it was
determined that she was no longer disabled. (Id. at 117-24.) This
determination was affirmed after a disability hearing by a State Agency
1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

2

Disability Hearing Officer. (Id. at 139-49.) At Rodriguez’s request, a
hearing before ALJ Bruce Fein (hereinafter “the ALJ”) was subsequently
conducted. (Id. at 82-110.) On January 29, 2013, the ALJ issued an
unfavorable decision, finding that Rodriguez’s disability had ceased on May
27, 2011. (Id. at 29-50.) This decision became the Commissioner’s final
determination upon the Appeals Council’s denial of review. (Id. at 1-6.)
Rodriguez commenced the present action by filing her complaint on
September 15, 2014 wherein she sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 8, 9.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 14, 18.)
III. Contentions
Rodriguez contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 14 at 820.) Specifically, Rodriguez claims that the ALJ erred when he: (1)
concluded that she experienced medical improvement in her neck and
shoulder impairment; (2) failed to find several of her impairments severe
under the regulations; (3) failed to obtain a functional assessment from any
of her treating physicians; (4) rendered a residual functional capacity
3

(RFC) determination that was not sufficiently specific and without the
support of a medical opinion; (5) evaluated her credibility; and (6)
determined that there is work in the national economy that she can
perform, without the aid of a vocational expert (VE). (Id.) The
Commissioner counters that the appropriate legal standards were used by
the ALJ and his decision is also supported by substantial evidence. (Dkt.
No. 18 at 7-21.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
the ALJ. (Dkt. No. 14 at 1-8; Dkt. No. 18 at 1; Tr. at 34-44.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For
a full discussion of the standard, 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). If the Commissioner
finds that an individual is no longer disabled, as in this case, her benefits
2

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations
governing SSI are omitted.

4

may be terminated. See 42 U.S.C. §§ 423(f)(1), 1382c(a)(4). Such a
termination requires, as relevant here, substantial evidence3 demonstrating
a “medical improvement” which enables the individual to engage in
“substantial gainful activity.” Id. If medical improvement is found to be
related to an individual’s ability to work, then the ALJ is required to carry
out the sequential evaluation process that is used in an initial
determination. See 20 C.F.R. § 404.1594(f)(1)-(8). If the claimant’s
impairments are severe, but do not meet or equal the severity of any
impairment contained in the Listing of Impairments, the individual’s current
RFC must be assessed based on all current impairments. See id.
§ 404.1594(f)(6)-(8). As in an initial determination, the individual’s current
RFC will be compared to her past relevant work in order to determine if she
can perform such work. See id. § 404.1594(f)(7). If the RFC, age,
education and work experience do not permit an individual to perform past
relevant work, a determination will be made as to whether there is other
work in the national economy that she can do. See id. § 404.1594(f)(8). If
such work exists, the claimant’s disability will have ended. See id.

3

“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).

5

VI. Discussion
A.

Medical Improvement
Rodriguez first contends that the ALJ erred in finding that there was

medical improvement in her neck and shoulder conditions since the date of
her most recent favorable medical decision that found that she continued
to be disabled, referred to as the “comparison point decision” (CPD).4 (Dkt.
No. 14 at 8-10.) The Commissioner, on the other hand, argues that
Rodriguez’s treatment records, consultative examinations, and daily
activities since the CPD support the ALJ’s determination that Rodriguez’s
impairments had improved. (Dkt. No. 18 at 7-11.) The court agrees with
the Commissioner.
As noted above, termination of disability benefits can occur “if there
is substantial evidence demonstrating a ‘medical improvement’ which
enables the individual to engage in substantial gainful activity.” Matice v.
Comm’r of Soc. Sec., No. 6:99-CV-1834, 2004 WL 437472, at *3 (N.D.N.Y.
Feb. 11, 2004) (quoting 42 U.S.C. § 1382c(a)(4)). “Medical improvement”
means “any decrease in the medical severity of [the claimant’s]

4

Here, the CPD is the September 2007 determination that Rodriguez continued to be
disabled. (Tr. at 119, 124.)

6

impairment(s) which was present at the time of the most recent favorable
medical decision that [the claimant was] disabled or continued to be
disabled.” 20 C.F.R. § 404.1594(b)(1). “A determination that there has
been a decrease in medical severity must be based on changes
(improvement) in the symptoms, signs and/or laboratory findings
associated with [the claimant’s] impairment(s).” Id.
Here, at the time of the CPD, Rodriguez was found disabled because
her back and shoulder pain, anxiety, and depression resulted in the ability
to perform only less than sedentary work. (Tr. at 34, 119, 124.) At that
time, she had “low back and leg pain with trouble sitting or standing for
long periods[,] trouble concentrating [and] thoughts of suicide and death.”
(Id. at 141.) Also, Rodriguez had “difficulty with sleeping, large crowds,
loud noises, closed places, loss of appetite, and severe depression.” (Id.)
The ALJ based his determination that there had been medical
improvement on Rodriguez’s lack of recent treatment for back pain,
sporadic mental health treatment, benign mental status examinations, as
well as the lack of current evidence of a positive impingement sign in
Rodriguez’s shoulders. (Id. at 39; see, e.g., id. at 321, 397, 399, 402, 444,
618-19, 646.) Rodriguez does not dispute the veracity of these facts, but,
7

instead, argues that her treatment notes from 2012 indicate that she
experienced ongoing neck and shoulder pain. (Dkt. No. 14 at 3-4, 8-9.)
Because the record supports the ALJ’s conclusion that the “symptoms,
signs and/or laboratory findings” associated with Rodriguez’s back and
mental health impairments had decreased since the CPD, his decision that
there had been a medical improvement is supported by substantial
evidence. See 20 C.F.R. § 404.1594(b)(1).
Turning to her neck and shoulder impairment, Rodriguez was
examined by consultative examiner Kaylani Ganesh in May 2011. (Tr. at
402-10.) Rodriguez reported to Dr. Ganesh that she was not receiving any
treatment, had not seen her primary care physician in a while, and was
taking over-the-counter medications. (Id. at 402.) Dr. Ganesh’s
examination revealed full range of motion in Rodriguez’s cervical spine.
(Id. at 404.) Shoulder forward elevation and abduction was limited to 100
degrees, but adduction and internal and external rotation were normal.
(Id.) Rodriguez had 4/5 strength in her upper extremities, 5/5 grip strength
bilaterally, and intact hand and finger dexterity. (Id.) At that time, an x-ray
of Rodriguez’s cervical spine revealed degenerative changes, and a
shoulder x-ray revealed merely that she was status post surgery. (Id. at
8

406, 410.) Based on the foregoing, Dr. Ganesh opined that Rodriguez had
no limitations in her ability to sit, stand, or walk, and was only moderately
limited in her ability to lift, carry, push, pull, and complete overhead
activities. (Id. at 405.) After reviewing Dr. Ganesh’s examination results
as well as Rodriguez’s treatment records, on May 25, 2011, medical
consultant J. Dale opined that Rodriguez was capable of light exertion,
including lifting and carrying twenty pounds occasionally and ten pounds
frequently, with restrictions on repetitive overhead use of her bilateral
upper extremities. (Id. at 425-30.) Thereafter, in September 2011, medical
consultant H. Findlay noted that Rodriguez had not received any treatment
since being notified that the Commissioner had determined her disability
ceased, and concurred with Dr. Dale’s functional assessment. (Id. at 298303.)
The foregoing examination results and medical opinions clearly
support the ALJ’s decision that, since May 27, 2011, Rodriguez was
capable of lifting and carrying twenty pounds occasionally and ten pounds
frequently, continuously handling, fingering, and feeling with her upper
extremities, and continuously reaching in front of her, but could only
occasionally reach overhead with her upper extremities. (Tr. at 39-40.)
9

Nevertheless, Rodriguez argues that it was error for the ALJ to rely on
such evidence because treatment records from 2012, after Dr. Ganesh’s
examination took place and the foregoing medical opinions were rendered,
“demonstrate an objective basis . . . for [Rodriguez]’s complaints of pain,
numbness and tingling[,] and functional difficulties in the neck, arms and
hands.” (Dkt. No. 14 at 9.) According to Rodriguez, she failed to receive
treatment for her neck and shoulder impairments in 2011 because she was
addressing her cardiac problems, and “once those were addressed, she
was in a position to begin treatment again in 2012.” (Id.)
Despite Rodriguez’s contention, considering all of the medical
evidence of record, the ALJ’s decision that she was able to perform light
work5 despite her cervical and shoulder impairments is supported by
substantial evidence. Notably, in April 2012, treating physician Adnan
Cemer’s examination of Rodriguez was benign with no pain or tenderness
in her neck, and full range of motion in her left arm with no instability,
atrophy, or weakness. (Tr. at 470-72.) Rodriguez reported to Dr. Cemer

5

Light work requires lifting no more than twenty pounds at a time with frequent lifting or
carrying of up to ten pounds. See 20 C.F.R. § 404.1567(b). Further, “the full range of light
work requires standing or walking, off and on, for a total of approximately [six] hours of an
[eight]-hour workday.” SSR 83-10, 1983 WL 31251, at *6 (1983).

10

that physical therapy had helped her shoulder pain, and she “occasionally”
took an over the counter pain reliever to deal with the continuing pain. (Id.
at 470.) Subsequently, in May 2012, Rodriguez complained to treating
physician Michael McNulty of cervical pain that radiated to her shoulders
and arms, but she denied any weakness or tingling in her arms. (Id. at
499.) On examination, there was tenderness in her neck and her range of
motion was decreased by ten percent. (Id. at 500.) She had moderate
tenderness in her left rotator cuff and abduction was decreased twenty
degrees. (Id.) However, flexion and external rotation of her shoulder were
within normal limits, and she had 5/5 strength in her shoulders, elbows,
wrists, and fingers grip. (Id.) Although these clinical findings provide some
support for Rodriguez’s subjective complaints of pain, Rodriguez reported
to Dr. McNulty that she was independent in her activities of daily living and
could comfortably lift ten pounds, but had difficulty doing tasks that
required her to lift her left arm above her head. (Id. at 499.) These
statements support the ALJ’s RFC determination, which accounted for
Rodriguez’s reduced ability to reach overhead. (Id. at 40.)
In September 2012, Rodriguez again complained to Dr. McNulty of
neck pain that radiated into her shoulders. (Id. at 571.) Rodriguez
11

reported that her current medications provided only mild relief of her
symptoms, but, in the past, physical therapy had provided moderate relief.
(Id.) Dr. McNulty’s examination revealed tenderness in her cervical spine
and a “mildly reduced” range of motion. (Id. at 572.) Rodriguez again had
full strength in her shoulders, elbows, wrists, and fingers grip, however
sensory testing was reduced. (Id.) Dr. McNulty reviewed an MRI taken in
August 2012, which revealed multilevel degenerative changes with central
canal and neural foraminal narrowing, but no cord impingement. (Id. at
572, 618-19.) In addition, an electromyography and nerve conduction
velocity test revealed no evidence of peripheral neuropathy of her median
or ulnar nerves, but possible C7 denervation not correlated with paraspinal
activity. (Id. at 573, 584.) Again, while these findings offer some support
for Rodriguez’s contention that her neck and shoulder impairments caused
pain as well as limitations in her ability to function, they do not compel the
conclusion that she could not perform light work. Importantly, “whether
there is substantial evidence supporting the appellant’s view is not the
question,” instead, the court must “decide whether substantial evidence
supports the ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58,
59 (2d. Cir. 2013). Here, it is clear from the ALJ’s decision that he
12

considered all of the examination results, medical opinions, and
Rodriguez’s own statements with respect to her shoulders and neck, (Tr. at
35, 41-43), and his determination that Rodriguez’s neck and shoulder
impairments no longer prevented her from performing light work is
supported by substantial evidence.
Because the ALJ’s RFC determination, discussed further below, is
supported by substantial evidence, the ALJ did not err in concluding that
Rodriguez’s medical improvement is related to her ability to do work. See
20 C.F.R. § 404.1594(b)(3) (declaring that medical improvement is related
to a claimant’s ability to work if there has been a decrease in the severity of
the impairments present at the time of the most recent favorable medical
decision and an increase in the claimant’s functional capacity); infra Part
VI.D.
B.

Severity Determination
Next, Rodriguez contends that remand is required here because the

ALJ failed to find her coronary artery disease, depressive disorder,
breathing difficulties, and “abdominal complaints” severe under the
regulations. (Dkt. No. 14 at 16-20.) The Commissioner counters, and the
court agrees, that the ALJ’s severity determination was legally sufficient
13

and supported by substantial evidence, and, at most, any error was
harmless, as the ALJ considered all of Rodriguez’s impairments, severe
and nonsevere, in determining her RFC. (Dkt. No. 18 at 17-22.)
After finding that medical improvement related to the claimant’s
ability to do work has been shown, an ALJ must determine whether all the
claimant’s “current impairments in combination are severe.” 20 C.F.R.
§ 404.1594(f)(6). A finding of not severe is appropriate when an
impairment, or combination of those impairments, “does not significantly
limit [the claimant’s] physical or mental ability to do basic work activities.”
Id. § 404.1521(a). Basic work activities are “the abilities and aptitudes
necessary to do most jobs,” including: “[p]hysical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling,” as well as “[u]nderstanding, carrying out, and remembering
simple instructions; [u]se of judgment; [r]esponding appropriately to
supervision, co-workers and usual work situations; and [d]ealing with
changes in a routine work setting.” Id. § 404.1521(b). “The ‘mere
presence of a disease or impairment, or establishing that a person has
been diagnosed or treated for a disease or impairment’ is not, itself,
sufficient to deem a condition severe.” Bergeron v. Astrue, No. 09-CV14

1219, 2011 WL 6255372, at *3 (N.D.N.Y. Dec. 14, 2011) (quoting
McConnell v. Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y.
Mar. 27, 2008)). The failure to find an impairment severe may be deemed
harmless error, particularly where the disability analysis continues and the
ALJ later considers the impairment in his RFC determination. See Tryon v.
Astrue, No. 5:10-CV-537, 2012 WL 398952, at *4 (N.D.N.Y. Feb. 7, 2012);
see also Plante v. Astrue, No. 2:11-CV-77, 2011 WL 6180049, at *4 (D. Vt.
Dec. 13, 2011).
In this case, the ALJ determined that, among other things,
Rodriguez’s degenerative disc disease of the cervical spine was a severe
impairment. (Tr. at 34.) On the other hand, he concluded that her
depressive disorder, atypical chest pain, respiratory impairments, and
diverticulitis were not severe. (Id. at 34-35.) Because the ALJ found that
Rodriguez suffered from at least one severe impairment, he continued the
sequential evaluation, and assessed her current RFC. (Id. at 40-43.) In
making his RFC determination, the ALJ specifically considered Rodriguez’s
chest pain, mental impairments, breathing difficulties, and abdominal pain.
(Id.) For the reasons that follow, the ALJ’s determination with respect to
the severity of these impairments and the functional limitations they caused
15

is supported by substantial evidence. Moreover, because the ALJ
considered these impairments in making his RFC determination, any legal
error made in determining their severity is harmless. See Tryon, 2012 WL
398952, at *4 (explaining that the failure to find an impairment severe may
be deemed harmless error, particularly where the disability analysis
continues and the ALJ later considers the impairment in his RFC
determination).
Rodriguez complains that the ALJ failed to specifically consider,
when discussing the severity of her chest pain, the twenty-nine percent left
ventricular ejection fraction and the more than fifty percent blockage of one
of her arteries noted in her treatment records, which findings meet some of
the criteria for listing 4.02, pertaining to chronic heart failure, and 4.04
pertaining to ischemic heart disease. (Dkt. No. 14 at 16-17.) Rodriguez
asserts that, even though the evidence may not show that she meets all
the requirements for these listings, the fact that she meets certain criteria
evinces the need for the ALJ to have sought the opinion of a cardiologist to
determine the functional limitations caused by her coronary artery disease.
(Id. at 17.)
Rodriguez’s argument is meritless. The ALJ clearly explained his
16

reasons for finding her chest pain to be a nonsevere impairment, and his
reasoning is supported by substantial evidence. (Tr. at 36.) Specifically, in
August 2011, Rodriguez was treated in the emergency room with
complaints of chest pain, (id. at 243-48), and hospitalized overnight for
what was diagnosed as atypical chest pain. (Id. at 264-65, 267.) At that
time, a chest x-ray revealed no acute cardiopulmonary disease, an
echocardiogram revealed preserved left ventricular function with an
ejection fraction estimated at sixty percent, and normal valvular function,
and a nuclear stress test revealed apical ischemia and left ventricular
ejection fraction of twenty-nine percent. (Id. at 271-73, 276.) Thereafter,
Rodriguez began treatment with cardiologist Matthew Thomas, whose
examinations revealed no clinical findings. (Id. at 487, 493, 498.) Dr.
Thomas ordered a cardiac catheritization, the results of which were
“negative,” revealing angiographically functionally insignificant coronary
artery disease, normal left ventricular function with an ejection fraction
estimated at sixty percent, and normal resting hemodynamics. (Id. at 28990, 487.) By November 2011, Dr. Thomas noted that Rodriguez’s chest
pain had been resolved with medication, recommended she quit smoking,
and concluded that her next follow up appointment need not occur for a
17

year and a half. (Id. at 487.) There are no further cardiology treatment
notes of record.
Based on the foregoing, the ALJ’s conclusion that Rodriguez’s chest
pain was nonsevere is supported by substantial evidence, and the failure to
discuss certain specific clinical findings does not require remand. See
Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011) (explaining that it is
not necessary that the ALJ “have mentioned every item of testimony
presented to him or have explained why he considered particular evidence
unpersuasive or insufficient to lead him to a conclusion of disability”
(internal quotation marks and citation omitted)). In making his RFC
determination, the ALJ considered Rodriguez’s complaints of chest pain,
but noted that they were transient and, thus, concluded that they did not
cause any functional limitations. (Id. at 41.) This too, is supported by the
foregoing substantial evidence. Moreover, as discussed below, see infra
Part VI.C, because there were no “obvious gaps” in the record with respect
to Rodriguez’s chest pain, the ALJ was not obligated to seek additional
information from her treatment providers. Rosa v. Callahan, 168 F.3d 72,
79 n.5 (2d Cir. 1999).
Next, Rodriguez complains that the ALJ erred in failing to find her
18

depressive disorder severe. (Dkt. No. 14 at 17-19.) According to
Rodriguez, the ALJ should have further developed the record regarding her
post-traumatic stress disorder (PTSD) symptoms and obtained a medical
source statement form her treating psychiatrist. (Id.) Instead, Rodriguez
argues, the ALJ improperly relied on the opinion of consultative examiner
Jeanne Shapiro. (Id.) Again, the court finds Rodriguez’s arguments
meritless, and concludes that the ALJ properly considered Rodriguez’s
mental impairments in making his severity determination. (Tr. at 37-38.)
After concluding that Rodriguez suffers a medically determinable
mental impairment, (id. at 34, 37), the ALJ evaluated Rodriguez’s mental
impairments in the four broad categories of functioning and determined
that she suffered no limitations in activities of daily living; mild limitations in
social functioning; mild difficulties in concentration, persistence, or pace;
and had experienced no episodes of decompensation, (id. at 38). See 20
C.F.R. § 404.1520a(c)(3). These conclusions were supported by the
medical source statement of Dr. Shapiro as well as medical consultants T.
Andrews and C. Butensky, who reviewed the medical evidence of record in
May and September 2011, respectively. (Id. at 314, 316, 397-401, 421,
423); see Baszto v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y. 2010)
19

(“[A]n 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.”).
Further, the ALJ noted that Rodriguez had received no mental health
treatment from 2007 until April 2012, and on her most recent examination
of record, in November 2011, it was noted that she was “doing better[,]
[h]er mood ha[d] improved. She sle[pt] better. She [was] not as irritable.
She [was] more open and cooperative. She d[id] not have the short
temper she used to . . . . She admit[ed] to noticing a change in herself.
Atvian [was] helping and she only use[d] it as needed.” (Id. at 37, 645.)
Upon examination her affect was appropriate, mood euthymic, thought
process intact and logical, memory intact, insight and judgment fair, and
impulse control good. (Id. at 645-46.)
Because the ALJ had before him all of Rodriguez’s mental health
treatment records, as well as medical opinions detailing the functional
limitations caused by such impairments, he was under no duty to seek a
medical source statement from a treating mental health provider before
making his determination. See Pellam v. Astrue, 508 F. App’x 87, 90 (2d
Cir. 2013). The foregoing evidence clearly supports the ALJ’s severity
20

determination with respect to Rodriguez’s mental health. Further, when
making his RFC determination, the ALJ conducted a function-by-function
assessment of Rodriguez’s ability to perform the mental demands of work,
which assessment was also supported by such evidence. (Id. at 40.)
Rodriguez also claims that the ALJ erred in failing to discuss whether
her “breathing difficulties” constituted a severe impairment. (Dkt. No. 14 at
19.) On the contrary, the ALJ discussed such problems, noting that she
denied a history of chronic obstructive pulmonary disorder or asthma to Dr.
Ganesh, and, moreover, pulmonary function tests performed in May 2011
were normal. (Tr. at 35, 402, 404.) Additionally, in his RFC determination,
the ALJ concluded that Rodriguez must avoid concentrated exposure to
respiratory irritants. (Id. at 40.) Thus, not only did the ALJ discuss the
severity of Rodriguez’s breathing difficulties, he considered this nonsevere
impairment in reaching his RFC determination.
Finally, Rodriguez argues that the ALJ erred in finding her abdominal
complaints to be nonsevere without requesting a functional assessment
from her treating physician. (Dkt. No. 14 at 19-20.) According to
Rodriguez, the ALJ’s conclusion that her abdominal problems were not
long-lasting enough to be severe under the regulations was speculative
21

and unsupported by her treatment records. (Id.) Despite Rodriguez’s
objections, the ALJ’s conclusion that her abdominal problems do not
significantly limit her ability to do basic work activities, and are, thus,
nonsevere, is supported by substantial evidence. (Tr. at 35-36.) In
determining her RFC, the ALJ considered Rodriguez’s complaints of
abdominal pain, noted that they were transient, and concluded that they
did not cause any functional limitations. (Id. at 41.) This too is supported
by substantial evidence.
In particular, as the ALJ pointed out, although Rodriguez reported a
history of diverticulitis to her treating physician in February 2012, her
treatment notes since May 2011 indicate only a diagnosis of diverticulosis.6
(Id. at 35, 364-66, 467.) Indeed, Rodriguez’s treatment records, including
a colonoscopy and a CT scan, (id. at 511, 605), indicate no evidence of
diverticulitis.7 In May 2012, Rodriguez reported “some crampy abdominal
6

Diverticulosis, a common condition found in about half of all people over the age of
sixty, occurs when small, bulging pouches, called diverticula, develop in the digestive tract.
See Nat’l Inst. of Diabetes and Digestive and Kidney Diseases, Diverticulosis and Diverticulitis,
https://www.nlm.nih.gov/medlineplus/diverticulosisanddiverticulitis.html (last visited Jan. 28,
2016). This condition is often unaccompanied by any symptoms, although it sometimes
causes mild cramps, bloating or constipation. Id.
7

Diverticulitis occurs when diverticula become inflamed or infected, commonly causing
abdominal pain. See Nat’l Inst. of Diabetes and Digestive and Kidney Diseases, Diverticulosis
and Diverticulitis, https://www.nlm.nih.gov/medlineplus/diverticulosisanddiverticulitis.html (last
visited Jan. 28, 2016).

22

pain” prior to bowel movements which was relieved after defecation. (Tr. at
620.) Her treating gastrologist noted that her abdominal pain, diarrhea,
and dysphagia had improved, advised she take Omeprazole to treat her
reflux symptoms and eat a high fiber diet, and discharged her for follow up
as needed. (Id. at 622.) In September 2012, she complained of “some
abdominal bloating and cramps.” (Id. at 574.) Rodriguez’s physical
examination at this time was benign, she was prescribed Prilosec, and a
lactose tolerance test was ordered. (Id. at 574-76.) Overall, the ALJ’s
characterization of Rodriguez’s complaints of abdominal pain as transient
is supported by the record and, thus, his determination will not be
disturbed. (Id. at 41.)
C.

Development of the Record
Next, Rodriguez argues that the ALJ failed to obtain a functional

assessment of her abilities from any treating physician, as required under
the regulations. (Dkt. No. 14 at 10-11.) Rodriguez contends that, because
she appeared pro se at the administrative hearing, the ALJ was under a
heightened duty to develop a complete medical history. (Id.) The court
disagrees.
Although the ALJ has an affirmative obligation to develop the
23

administrative record, and, in fact, a “heightened duty” to develop the
record when a claimant proceeds pro se, Echevarria v. Sec’y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (internal quotation marks
and citations omitted), this duty is not without limit, see Guile v. Barnhart,
No. 5:07-cv-259, 2010 WL 2516586, at *3 (N.D.N.Y. June 14, 2010); see
also 20 C.F.R. § 404.1512(d) (stating that generally, a complete record
contains a “medical history for at least the [twelve] months preceding the
month in which” the claimant files her application). Indeed, if all of the
evidence received is consistent and sufficient to determine whether a
claimant is disabled, further development of the record is unnecessary, and
the ALJ may make his determination based upon that evidence. See 20
C.F.R. § 404.1520b(a). Consistent with that notion, where there are no
“obvious gaps” in the record, the ALJ is not required to seek additional
information. Rosa, 168 F.3d at 79 n.5.
As noted above, see supra Part VI.B, here, the record was
sufficiently robust for the ALJ to make a disability determination. In
particular, the ALJ had Rodriguez’s treatment records dating back to 1996.
(See generally Tr. at 321-42, 357-96, 443-65, 466-550, 558-622, 623-88.)
In addition, the ALJ had mental and physical functional assessments from
24

both examining and non-examining physicians, which he used to determine
Rodriguez’s RFC. (Id. at 298-317, 343-44, 397-430.) Given these
circumstances, the ALJ did not have “any further obligation to supplement
the record by acquiring a medical source statement from one of the
treating physicians.” Pellam, 508 F. App’x at 90 n.2 (explaining that the
lack of a treating source statement will not, by itself, necessarily render the
record incomplete).
D.

RFC Determination
Rodriguez also argues that the ALJ’s RFC determination is infirm.

(Dkt. No. 14 at 12-13, 15-16.) In particular, Rodriguez alleges that the
RFC determination is not sufficiently specific and based on the ALJ’s own
opinion, as opposed to that of a competent medical professional. (Id.)
Again, the court disagrees.
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1); see also id. § 404.1594(b)(4). 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. § 404.1545(a)(3). An ALJ’s RFC determination must be
supported by substantial evidence in the record. See 42 U.S.C. § 405(g).
25

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).
Here, the ALJ determined that, as of May 27, 2011, Rodriguez
retained the ability to lift and carry twenty pounds occasionally and ten
pounds frequently, sit for six hours and walk or stand for six hours in an
eight-hour work day, occasionally engage in postural activities,
continuously handle, finger, feel, and reach in front of her with her upper
extremities, and perform the mental demands of unskilled work.8 (Tr. at
40.) Further, the ALJ concluded that Rodriguez could only occasionally
reach overhead with her upper extremities, and should avoid concentrated
exposure to respiratory irritants. (Id.) Thus, Rodriguez’s assertion that the
ALJ failed to specify the functions she could perform, (Dkt. No. 14 at 1213), is plainly untrue.
In making his RFC decision, the ALJ relied on the medical opinions
of Drs. Shapiro and Ganesh. (Tr. at 43.) Rodriguez argues that Dr.

8

The ALJ provided an explicit function-by-function analysis of Rodriguez’s mental
abilities, and those abilities meet the requirements for unskilled work. (Tr. at 40); see SSR
96–9p, 61 Fed. Reg. 34,478, 34,483 (July 2, 1996) (explaining that the mental activities
generally required by competitive, remunerative, unskilled work are: understanding,
remembering, and carrying out simple instructions; making simple work-related decisions,
responding appropriately to supervision co-workers and usual work situations, and dealing with
changes in a routine work setting).

26

Ganesh’s opinion was too vague for the ALJ to rely on in rendering his
RFC decision because she did not specify the number of hours which she
believed Rodriguez could stand and walk in a work day, or state that
Rodriguez could occasionally stoop. (Dkt. No. 14 at 15.) However, Dr.
Ganesh’s opinion clearly states that Rodriguez suffers no limitations in her
ability to sit, stand, or walk. (Tr. at 405.) In Dr. Ganesh’s opinion, the only
limitations that Rodriguez suffers pertain to her ability to use her upper
extremities. (Id.) This opinion was clearly not so vague as to prevent the
ALJ to bridge the gap between Rodriguez’s impairments and the functional
limitations for walking or stooping. See Curry v. Apfel, 209 F.3d 117, 123
(2d Cir. 2000), superceded by statute on other grounds, 20 C.F.R.
§ 404.1560(c)(2); see also Kinder v. Colvin, No. 13-CV-06368, 2014 WL
4184820, at *7 (W.D.N.Y. Aug. 21, 2014). Moreover, medical consultants
Dale and Findlay specifically opined that Rodriguez was capable of
standing and walking for six hours a day and stooping occasionally. (Tr. at
299-300, 426-27.) Dr. Dale specifically opined that Rodriguez was capable
of the demands of light work, except that she had limitations on the
overhead use of her upper extremities and respiratory restrictions. (Id. at
427.) Accordingly, Rodriguez’s assertion that the ALJ’s determination that
27

she could perform light work “was nowhere supported by medical evidence
in the record,” (Dkt. No. 14 at 15), is also untenable.
E.

Credibility Determination
According to Rodriguez, the ALJ failed to sufficiently set forth his

reasons for rejecting her testimony as to her pain and limitations. (Dkt. No.
14 at 14-15.) The Commissioner disagrees and argues that the ALJ
appropriately discussed Rodriguez’s daily activities, inconsistent
statements, and types of medications. (Dkt. No. 18 at 14-15.) The court
agrees with the Commissioner that there is no reason to disturb the ALJ’s
credibility assessment.
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
28

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)
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.
§ 404.1529(c)(3)(i)-(vi)).
Despite Rodriguez’s claims to the contrary, it is readily apparent that
the ALJ considered all of the record evidence and the appropriate factors
in finding her “statements concerning the intensity, persistence and limiting
effects of [her] symptoms . . . not credible.” (Tr. at 41-42.) As the
Commissioner points out, (Dkt. No. 18 at 16), the ALJ explained, in detail,
his reasons for discounting Rodriguez’s testimony, including that she failed
to see any treatment providers for a long period of time and only returned
to more regular medical treatment after the continuing disability review was
commenced in 2011. (Tr. at 41); see SSR 96-7p, 61 Fed. Reg. at 34,487
(“[T]he individual’s statements may be less credible if the level or frequency
29

of treatment is inconsistent with the level of complaints.”). The ALJ also
considered Rodriguez’s daily activities including her ability to care for her
young grandson, volunteer at her church, attend church three times a
week, take the Medicaid bus, and participate in an orientation program as
a prerequisite for GED classes. (Tr. at 41.) Additionally, the ALJ found
that Rodriguez’s complaints with respect to her inability to hold onto
objects were not supported by objective clinical findings. (Id.) Further, the
ALJ noted inconsistencies in her testimony and her statements to her
treatment providers, the lack of side effects from her medications, and her
poor work history. (Id.)
Although the ALJ did not undertake a step-by-step exposition of the
factors articulated in 20 C.F.R. § 404.1529(c), “[f]ailure to expressly
consider every factor set forth in the regulations is not grounds for remand
where the reasons for the ALJ’s determination of credibility are sufficiently
specific to conclude that he considered the entire evidentiary record.”
Judelsohn v. Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6 (W.D.N.Y.
June 25, 2012) (internal quotation marks and citation omitted); see
Oliphant v. Astrue, No. 11-CV-2431, 2012 WL 3541820, at *22 (E.D.N.Y.
Aug. 14, 2012) (stating that the 20 C.F.R. § 404.1529(c)(3) factors are
30

included as “‘examples of alternative evidence that may be useful [to the
credibility inquiry], and not as a rigid, seven-step prerequisite to the ALJ’s
finding’” (quoting Snyder v. Barnhart, 323 F. Supp. 2d 542, 546 (S.D.N.Y.
2004))). Here, the ALJ explicitly acknowledged consideration of the 20
C.F.R. § 404.1529 factors, (Tr. at 40), and it is evident from his thorough
discussion that his credibility determination was legally sound.
F.

VE Testimony
Finally, Rodriguez asserts that the ALJ erred in concluding that she

could perform the full range of light work, without consulting a VE. (Dkt.
No. 14 at 11-12.) According to Rodriguez, because she suffers mental,
manipulative, cardiac, and respiratory impairments, which cause
nonexertional limitations, the testimony of a VE was required. (Id.) The
court disagrees.
In making his ultimate disability determination, the ALJ must consider
whether the claimant can do any other, less demanding work existing in the
national economy. See 20 C.F.R. §§ 404.1560(c), 404.1594(f)(8); White v.
Sec’y of Health & Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). To make
such a determination, an ALJ may rely on the Medical-Vocational
Guidelines, referred to as “the grids,” found in 20 C.F.R. pt. 404, subpt. P,
31

app. 2, as long as the claimant’s age, education, work experience, and
RFC coincide with the criteria of a rule contained in those Guidelines. See
20 C.F.R. §§ 404.1569, 404.1594(b)(5); see also Calabrese v. Astrue, 358
F. App’x 274, 275 n.1 (2d Cir. 2009). However, “if a claimant’s
nonexertional impairments ‘significantly limit the range of work permitted by
h[er] exertional limitations’ then the grids obviously will not accurately
determine disability status because they fail to take into account claimant’s
nonexertional impairments.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.
1986) (quoting Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)).
In that case, the ALJ should consult with a VE before making a
determination as to disability. See id.
Here, the ALJ determined that, beginning on May 27, 2011,
Rodriguez could perform the full range of unskilled light work. (Tr. at 40,
44.) Based on this RFC, as well as Rodriguez’s age, education, and work
experience, the ALJ consulted the grids and concluded that, as of that
date, Rodriguez was not disabled. (Id. at 44.) As noted above, the ALJ’s
RFC determination, which included the ability to occasionally engage in
postural activities and occasionally reach overhead with her upper
extremities, as well as the need to avoid concentrated exposure to
32

respiratory irritants, was supported by substantial evidence. See supra
Part VI.D. In making his ultimate determination of disability, the ALJ
considered Rodriguez’s nonexertional limitations, and concluded that they
had little to no effect on the occupational base of light work, noting that her
ability to work at waist or table level was unimpaired and her ability to
manipulate fine and gross objects was essentially intact. (Tr. at 44.) This
conclusion is supported by Social Security Ruling 83-14, which explains
that unskilled light work requires gross use of the hands to grasp, hold, and
turn objects. See 1983 WL 31254, at *4 (1983). Further, Ruling 85-15
provides that a restriction to only occasional postural movements, such as
stooping, kneeling, crouching, crawling, climbing, and balancing, ordinarily
has a minimal impact on the light occupational base. See 1985 WL 56857,
at *6-7 (1985). This ruling further advises that, where an individual has a
medical restriction to avoid excessive amounts of dust, the impact on the
broad world of work would be minimal. See id., at *8. In addition to these
physical nonexertional restrictions, the ALJ considered Rodriguez’s mental
nonexertional restrictions and concluded that she retained the ability to
perform the full range of unskilled work. (Tr. at 44.) Thus, the ALJ
concluded that her mental impairments did not significantly limit the light
33

occupational base. See id., at *4.
Ultimately, because the ALJ determined that Rodriguez had the
ability to perform light work and that her nonexertional impairments did not
significantly impact her abilities in that regard, he was not required to seek
testimony from a VE. See Kessler v. Colvin, 48 F. Supp. 3d 578, 599
(S.D.N.Y. 2014) (holding that the ALJ did not err in relying on the grids to
determine that the claimant was not disabled, where the ALJ concluded
that a limited ability to reach overhead did not significantly impact the
claimant’s ability to perform light work).
G.

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
Rodriguez’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.

34

IT IS SO ORDERED.
February 4, 2016
Albany, New York

35