Butler v. Colvin

Filing 14

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that the Commissioner's decision denying disability benefits is AFFIRMED; and the Court further ORDERS that the Clerk of the Court shall enter judgment and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 7/20/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
STEVEN LYNN BUTLER, II,
Plaintiff,
vs.

6:15-cv-00455
(MAD)

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
300 South State Street, Suite 420
Syracuse, New York 13202
Attorneys for Plaintiff

HOWARD D. OLINSKY, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for Defendant

KRISTINA D. COHN, AUSA

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Steven Lynn Butler, II, ("Plaintiff") commenced this action on April 15, 2015, pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of a decision of the Commissioner of Social
Security (the "Commissioner") denying Plaintiff's applications for Disability Insurance Benefits
("DIB") and Supplemental Security Income ("SSI"). See Dkt. No. 1.

II. BACKGROUND

Plaintiff's date of birth is August 7, 1981, which made him thirty years old on August 1,
2012, the alleged onset of his disability. See Dkt. No. 9, Administrative Transcript ("T."), at 168.
Plaintiff's formal education culminated in an Associate's Degree in general studies, and he further
completed three semesters toward a Bachelor's Degree in health administration. See id. at 32-34.
Plaintiff has not completed any vocational or specialized training. See id. at 207. In his everyday
living, Plaintiff is able to take care of his personal hygiene, remember to take his medications,
prepare his own meals, launder clothes, clean dishes, walk at a distance of six blocks, collect the
mail, watch television, play video games, and use a computer. See id. at 41, 220-223. He is also
his household's child care provider seven days a week. See id. at 355.
Plaintiff lives with his three sons, who were six, ten, and twelve years old at the time of
the 2013 hearing, and his girlfriend and her daughter. See id. at 40. Although he prefers to be
alone, he spends time with his children. See id. at 224. Plaintiff uses a cane, which he purchased
on his own, if he is planning to walk longer than fifteen to twenty minutes. See id. at 226.
Plaintiff disclosed that he is able to follow spoken and written instructions and that he does not
have any problems getting along with bosses, teachers, police, landlords, and other people in
authority. See id.
Plaintiff's most recent past relevant work includes working at the distribution center for
Family Dollar Services, Inc., in loss prevention from 2006 through July 31, 2012. See id. at 207,
235. Prior to that position, Plaintiff also worked in loss prevention for Pep Boys from 2004
through 2006. See id. at 181-82, 236. In 2003, Plaintiff was an inventory manager at Petsmart,
Inc., and was employed by Martins Foods of South Burlington. See id. at 182, 237. He worked
in retail in 2002, and he made cable wire for Omega Wire, Inc., (reported by Plaintiff as
International Wire) from 2001 through 2002. See id. 181-82, 239. Plaintiff was working for
2

Omega Wire, Inc., when he injured his back at work, which require surgical intervention in 2002.
See id. at 42-43. Plaintiff underwent a lumbar spinal fusion, laminectomy, and diskectomy in
April 2002, which was noted by the surgeons to have been a complicated surgery. See id. at 364,
371-75. He was able to work after he recovered from his surgery up until July 31, 2012 when his
job was outsourced and his physician said he was unable to work. See id. at 44-45.
Plaintiff testified that he was not able to work again due to back pain. See id. at 36. He
claims that he suffers from failed back syndrome and a bulging disc, among other back
conditions, causing back and leg pain, and he also claims that he suffers from anxiety, depression,
insomnia, and migraines, which causes concentration problems and forgetfulness. See id. at 4748, 57-58, 206. Plaintiff's back conditions are medically treated by Dr. Glenn F. Thibault, M.D.,
a primary care physician, Dr. Craig Montgomery, M.D., a neurosurgeon, and Dr. Denny Battista,
M.D., a pain management specialist/orthopedist. See id. at 309-24, 331-33, 336-41, 363-66, 38085. His anxiety, depression, insomnia, and headaches were medically treated by Dr. Thibault.
See id. at 309-24, 363-66.
On December 14, 2012, Plaintiff protectively filed applications for DIB and SSI. See id.
at 168-74, 202. Both applications were denied at the initial level by the state agency pursuant to
20 C.F.R. §§ 404.1503 ; 416.903. See T. at 55, 57-80, 94-103. Plaintiff then requested a hearing
by an administrative law judge. See id. at 102. A video-conference hearing was conducted on
December 5, 2013 before Administrative Law Judge James G. Myles (the "ALJ"). See id. at 2854. The ALJ issued an unfavorable decision to Plaintiff dated December 20, 2013. See id. at 1425. The ALJ made the following determinations: (1) Plaintiff meets the insured status
requirements of the Social Security Act through December 31, 2017; (2) Plaintiff has not engaged
in substantial gainful activity since August 1, 2012, the onset of the alleged disability; (3)
3

Plaintiff's severe impairments include status-post lumbar spinal fusion and laminectomy with
scarring, nerve damage with radiculopathy, obesity, depression, and anxiety; (4) Plaintiff does not
have an impairment or combination of impairments that meet or medically equal the severity of a
Listed Impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listed Impairment(s)"); (5)
Plaintiff has the residual functional capacity ("RFC") to perform routine, unskilled work at the
sedentary work level as defined in 20 C.F.R. 404.1567(a) and 416.967(a), except that Plaintiff can
occasionally crouch, balance, stoop, kneel, and crawl and should avoid ladders, ropes, and
scaffolds as well as loud noise, vibration, and pulmonary irritants; (6) Plaintiff is not capable of
performing any past relevant work; and (7) considering Plaintiff's age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform. See id. Therefore, the ALJ concluded that Plaintiff was not under a
disability, as defined in the Social Security Act, from August 1, 2012 through the date of the
ALJ's decision. See id. at 24.
Plaintiff timely filed a request for a review of the ALJ's decision with the Appeals
Council, see id. at 265-69, and, in a notice dated February 20, 2015, the request was denied
rendering the ALJ's decision the Commissioner's final decision, see id. at 1-5. Plaintiff then
commenced this action for judicial review of the denial of his claims by the filing of a complaint
on April 15, 2015. See Dkt. No. 1. Both parties have moved for judgment on the pleadings. See
Dkt. Nos. 11, 12. The Court orders that the Commissioner's decision is affirmed.

III. DISCUSSION
A. Standard of Review
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);
4

Brault v. Soc. Sec. Admin., 683 F.3d 443, 447 (2d Cir. 2012); Pratts v. Chater, 94 F.3d 34, 37 (2d
Cir. 1996). The Court must examine the administrative transcript as a whole to determine
whether the decision is supported by substantial evidence and whether the correct legal standards
were applied. See Brault, 683 F.3d at 447; Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d
Cir. 2009); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "A court may not affirm an
ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if it
appears to be supported by substantial evidence." Barringer v. Comm'r of Soc. Sec., 358 F. Supp.
2d 67, 72 (N.D.N.Y. 2005) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). The
Second Circuit has explained that upholding a determination based on the substantial evidence
standard where the legal principals may have been misapplied "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." Johnson, 817 F.2d at 986. However, if the record is such that the
application of the correct legal principles "could lead to only one conclusion, there is no need to
require agency reconsideration." Id.
"Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has
been defined to be "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotation
marks omitted). If supported by substantial evidence, the Commissioner's factual determinations
are conclusive, and the court is not permitted to substitute its analysis of the evidence. See
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982) ("[The court] would be derelict in [its]
duties if we simply paid lip service to this rule, while shaping [the court's] holding to conform to
our own interpretation of the evidence"). In other words, this Court must afford the
Commissioner's determination considerable deference, and may not substitute "its own judgment
5

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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984). This very deferential standard of review means that "once an ALJ finds facts, [the Court]
can reject those facts 'only if a reasonable factfinder would have to conclude otherwise.'" Brault,
683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)).
B.

Analysis
Plaintiff contends that the ALJ's determination denying his disability applications should

be remanded back to the Commissioner for the following reasons: (1) Plaintiff met the criteria for
a Listed Impairment under § 1.04 Disorders of the Spine; (2) Plaintiff's medical condition of
migraines is a severe impairment; (3) the RFC is not supported by substantial evidence because
the treating physician rule was not properly applied and the proper weight was not assigned to a
consultative examiner; (4) the credibility determination is not supported by substantial evidence
because the ALJ failed to properly analyze the factors related to Plaintiff's pain and other
symptoms; and (5) the step-five determination is not supported by substantial evidence because
the hypothetical the ALJ posed to the vocational expert was incomplete. See Dkt. No. 11 at 1427.
1. Five-step analysis
For purposes of both DIB and SSI, a person is disabled when he is unable "to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C.
§ 1382c(a)(3)(A).
The Social Security Administration regulations outline the
five-step, sequential evaluation process used to determine whether a
6

claimant is disabled: (1) whether the claimant is currently engaged
in substantial gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the
impairment meets or equals the severity of the specified
impairments in the Listing of Impairments; (4) based on a "residual
functional capacity" assessment, whether the claimant can perform
any of his or her past relevant work despite the impairment; and (5)
whether there are significant numbers of jobs in the national
economy that the claimant can perform given the claimant's residual
functional capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d 117, 120
(2d Cir. 2008)); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v).
2. Severe impairments
At step two, the medical severity of a plaintiff's impairment is evaluated. A Plaintiff must
have a "severe medically determinable " impairment. 20 C.F.R. §§ 404.1520; 416.920. The
"severity regulation", states:
If you do not have any impairment or combination of impairments
which significantly limits your physical or mental ability to do basic
work activities, we will find that you do not have a severe
impairment and are, therefore, not disabled. We will not consider
your age, education, and work experience.
20 C.F.R. §§ 404.1520(c); 416.920(c), see Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987). The
phrase "basic work activities" are "the abilities and aptitudes necessary to do most jobs" and
include
[p]hysical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling... seeing, hearing,
and speaking . . . [u]nderstanding, carrying out, and remembering
simple instructions . . . [u]se of judgment . . . [r]esponding
appropriately to supervision, co-workers and usual work situations .
. . [d]ealing with changes in a routine work setting.

20 C.F.R. §§ 404.1521(b), 416.921(b); see Bowen, 482 U.S. at 141.

7

The purpose of the severity regulation was to create a "threshold determination of the
claimant's ability to perform basic, generically defined work functions, without at this stage
engaging in the rather more burdensome medical-vocational analysis required by [42 U.S.C.] §
423(d)(2)(A)." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995). In Bowen v. Yuckert, the
Supreme Court upheld this regulation to screen out de minimis claims – those claims where there
are "slight abnormalities that do not significantly limit any 'basic work activity.'" Bowen, 482 U.S.
at 158 (O'Connor, J. concurring). Plaintiff contends that the ALJ erred when he did not include
migraines among his severe impairments at step two of the disability analysis. See Dkt. No. 11 at
17-18.
Plaintiff directs the Court to the records of Dr. Thibault where Plaintiff made subjective
complaints of headaches. See Dkt. No. 11 at 18. The Court finds that the record is void of
medically determinable evidence that Plaintiff suffered from migraines and, therefore, the medical
evidence supports the ALJ's determination that Plaintiff's migraines did not meet the severity
threshold, singly or in combination. During the period of August 2012 through March 2013, Dr.
Thibault notes that Plaintiff complains of headaches intermittently, but he does not diagnose
Plaintiff with migraines. See T. at 309-26, 263-66. On November 20, 2012, Dr. Thibault records
that Plaintiff gave a history of "migraines" twice a year but described a headache that "waxes and
wanes." Id. at 313. Further, Plaintiff complained of "sinusitis with occasional sinus headaches"
to Dr. Montgomery, a neurosurgeon, but did not mention headaches or migraine symptoms again
throughout his treatment from September 2012 through January 2013. See id. at 336-41, 380-85.
Plaintiff did not mention headaches or symptoms of migraine to his pain management physician,
Dr. Battista, or his previous primary care provider, Dr. Sarah Shiraz, M.D. See id. at 330-33, 27089.
8

Accordingly, the only evidence of migraines is Plaintiff's intermittent complaints to one of
his treating physicians about "waxing and waning" headaches. See id. at 313. If there is no
evidence of a medically determinable impairment, an individual does not have a severe
impairment at step two of the disability analysis. See SSR 96-4P, 1996 WL 374187, *1 (July 2,
1996) ("Policy Interpretation Ruling Titles II and XVI: Symptoms, Medically Determinable
Physical and Mental Impairments, and Exertional and Nonexertional Limitations"). It is a
longstanding policy of the Social Security Administration that "[a] 'symptom' is not a 'medically
determinable physical or mental impairment' and no symptom by itself can establish the existence
of such an impairment." Id. (stating that "[n]o symptom or combination of symptoms can be the
basis for a finding of disability, no matter how genuine the individual's complaints may appear to
be"). Here, there was evidence of Plaintiff's symptoms, but there was no medically determinable
evidence that Plaintiff suffered from migraines.
3. Listed impairment
At step three of the disability analysis, a plaintiff who meets or medically equals one of
the Listed Impairments in 20 C.F.R. Part 404, Subpt. P, App. 1 ("Listed Impairments"), is
"conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019,
2022 (2d Cir. 1995). Plaintiff contends that the ALJ failed to properly evaluate her claim under
the Listed Impairments of § 1.04A (Disorders of the Spine) of 20 C.F.R. Part 404, Subpt. P, App.
1 ("§ 1.04A"). See Dkt. No. 11 at 14-17. In his evaluation of Plaintiff's claim under the Listed
Impairment of § 1.04, the ALJ stated that the evidence
fails to establish an impairment that is accompanied by signs that
are reflective of listing-level severity. Also, none of the claimant's
treating or examining physicians of record has reported any of the
necessary clinical, laboratory, or radiographic findings specified
therein.
9

T. at 17.
Section 1.04A of the Listed Impairments provides for a disability where there is a disorder
of the spine that results in the compromise of a nerve root or the spinal cord and
A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine).
In evaluating this listed impairment, the threshold criteria of the Regulation requires a disorder of
the spine, which includes spinal stenosis, that results in the compromise of a nerve root or the
spinal cord . See id.; Otts v. Comm'r of Soc. Sec., 249 Fed. Appx. 887, 888-89 (2d Cir. 2007).
Plaintiff argues that the radiographic evidence in the record establishes this criteria. See Dkt. No.
11 at 16. In support of this contention, Plaintiff reiterates the findings on the radiology test
results. See id.
Plaintiff's pain management specialist, Dr. Battista, reviewed the Lumbar MRI scan and
stated that there was "mild stenosis." See T. at 330. However, the medical evidence from
Plaintiff's treating neurosurgeon, Dr. Montgomery, supports the ALJ's determination. Dr.
Montgomery interpreted the radiology and stated that the testing, which included an EMG nerve
conduction study, CT scan, and MRI scan, shows no evidence of ongoing nerve root compression
or damage, adequate decompressive laminectomy, no evidence of continued compression or bony
abnormalities or fractures, and no hardware failure. See id. at 338. As a result, the medical
evidence demonstrates that Plaintiff does not meet the threshold criteria of a spinal stenosis that
resulted in the compromise of a nerve root or spinal cord. Accordingly, there is substantial
medical evidence supporting the ALJ's determination that Plaintiff's disorder of the spine does not
meet or medically equal the listed impairment under § 1.04A. Although the ALJ could have
10

provided further detail in support of his determination at this step, the medical evidence in
support of the ALJ's finding together with the lack of medical evidence to the contrary permits the
Court to affirm that Plaintiff did not meet or medically equal a listed impairment. See, e.g., Otts,
249 Fed. Appx. at 889.
4. Evaluating Opinion Evidence
Plaintiff contends that the RFC is not supported by substantial evidence because the
treating physician rule was not properly applied to Dr. Thibault's opinion and the proper weight
was not assigned to consultative examiner, Dr. Christina Caldwell, Psy. D. See Dkt. No. 11 at 1924. Specifically, Plaintiff argues that Dr. Thibault's opinion should have been accorded
controlling weight because he is "the treating source of record most able to provide a detailed,
longitudinal picture of Plaintiff's medical impairments." Dtk. No. 11 at 20. However, the medical
evidence cited by Plaintiff includes his subjective complaints to Dr. Thibault and the ordering of
diagnostic testing. See id. at 20. Dr. Thibault's medical opinions about the severity of Plaintiff's
impairments and symptoms can be entitled to "controlling weight" when the opinions are
"well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are]
not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §
404.1527(c)(2); see also 20 C.F.R. § 404.1527(a)(2); Martin v. Astrue, 337 Fed. Appx. 87, 89 (2d
Cir. 2009) ("Although the final responsibility for deciding issues relating to disability is reserved
to the Commissioner, . . . an ALJ must give controlling weight to a treating physician's opinion on
the nature and severity of the [plaintiff's] impairment when the opinion is well-supported by
medical findings and not inconsistent with other substantial evidence."); Williams v. Comm'r of
Soc. Sec., 236 Fed. Appx. 641, 643-44 (2d Cir. 2007) (noting that inconsistent evidence can be in
the form of opinions of other medical experts).
11

If an ALJ refuses to assign a plaintiff's treating physician's opinion controlling weight, he
or she must state a good reason for that determination. See Saxon v. Astrue, 781 F. Supp. 2d 92,
102 (N.D.N.Y. 2011). The "[f]ailure to provide 'good reasons' for not crediting the opinion of a
claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (quoting Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). The regulations list factors the
ALJ should consider when evaluating the appropriate weight to assign to medical opinions,
including a treating source's opinion that is not assigned controlling weight. See 20 C.F.R. §§
404.1527(c); 416.927(c). The factors include (1) the frequency of the examination and the length,
nature and extent of the treatment relationship; (2) the evidence in support of the treating
physician's opinion; (3) the consistency of the opinion with the record as a whole; (4) whether the
opinion is from a specialist; and (5) other factors brought to the Social Security Administration's
attention that tend to support or contradict the opinion. See 20 C.F.R. §§ 404.1527(c);
416.927(c); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). A treating physician's opinion can
be contradicted by other substantial evidence, such as opinions of other medical experts. See
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)); Veino
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). The less consistent an opinion is with the record
as a whole, the less weight it is to be given. Otts v. Comm'r of Soc. Sec., 249 Fed. Appx. 887, 889
(2d Cir. 2007).
Dr. Thibault completed a medical source statement on November 21, 2013. See T. at 36870. This medical source statement was based upon his medical treatment of Plaintiff for fourteen
months. See id. at 368. Dr. Thibault opined that Plaintiff suffers from post-laminectomy pain
syndrome and that his prognosis is fair, but Dr. Thibault notes that Plaintiff "has been lost to
medical care here since March 2013." Id. at 368. Dr. Thibault opines that Plaintiff (1) can sit for
12

thirty minutes at a time before needing to get up, (2) can stand for forty-five minutes at one time
before needing to sit or move, (3) can sit, stand, or walk for a total of two hours in an eight hour
workday, (4) requires the use of a cane, (5) can never stoop/bend, crouch/squat, climb ladders, or
climb stairs and can only occasionally twist, (6) requires a thirty minute break every hour, and (7)
will be off task more than twenty percent of the time, among other findings. See id. at 368-70.
The ALJ stated that Dr. Thibault's assessment of plaintiff's limitations are "widely
inconsistent with the record of evidence" and contradicted by Plaintiff's testimony about his daily
activities and abilities. See id. at 22-23. The ALJ discussed Plaintiff's pain management
specialist/orthopedist's medical findings that Plaintiff had a normal gait with a normal heel-andtoe walk, normal lower extremity muscle tone, normal paraspinous muscle tone, no muscle
spasm, no mid-line spinous or paraspinous tenderness, no sciatic notch tenderness, and painless
active range of motion with mild restriction on flexion and lateral bending and moderate
restriction on extension. See id. at 331-32. The ALJ also discussed Dr. Montgomery's findings
that Plaintiff has some chronic damage to the left L5-S1 region but that there is no evidence of
nerve root compression or damage and there is no evidence of continued compression or bony
abnormalities or fractures. See id. at 338. The ALJ considered the assessment performed by Dr.
Tanya Perkins-Mwantuali, M.D., in consultation, who found that Plaintiff walked with a normal
gait, performed a full squat, walked on his heels and toes without difficulty, had full muscle
strength bilaterally in all extremities, and did not appear to be in acute distress. See id. at 354-57.
The ALJ compared Plaintiff's activities of daily living with Dr. Thibault's medical source
statement and found that there were significant inconsistencies. See id. at 21. Specifically,
Plaintiff provides childcare to the collective four minor children in his household, plays video
games, and performs self care, cooking, cleaning, and shopping. See id. at 21.
13

As a result, the ALJ concluded that Dr. Thibault's opinion is not supported by the medical
evidence of Plaintiff's treating physicians who are specialists in neurosurgery and orthopedic pain
management and that Plaintiff's subjective complaints are contradicted by his everyday activities.
The ALJ acknowledged that Dr. Thibault is a treating physician, and he properly considered the
regulatory factors before assigning the opinion less than controlling weight. See id. at 22. The
Court finds that there was no legal error committed by the ALJ in assigning less than controlling
weight to Dr. Thibault's opinion. Further, the Court further finds that the ALJ's assessment of Dr.
Thibault's opinion is supported by substantial evidence.
Plaintiff next argues that the ALJ improperly assigned "significant weight" to the stateagency assessments while assigning "some weight" to Dr. Caldwell, a consultative psychiatric
examiner. See Dkt. No. 11 at 23-24. Contrary to Plaintiff's contention, the ALJ did not "reject[]
every examining medical opinion of record (treating and consultative) in favor of the nonexamining assessments of state-agency officials." Id. at 23. The ALJ is required to consider a
state agency consultant's findings of fact regarding the severity of an individual's impairment as
an expert opinion because these consultants "are highly qualified physicians and psychologists
who are experts in the evaluation of the medical issues in disability claims under the Act." SSR
96-6P, 1996 WL 374180, *1-2 (July 2, 1996) ("Policy Interpretation Ruling Titles II and XVI:
Consideration of Administrative Findings of Fact by State Agency Medical and Psychological
Consultants and Other Program Physicians and Psychologists at the Administrative Law Judge
and Appeals Council Levels of Administrative Review; Medical Equivalence").
In this case, the ALJ notes that the state-agency assessments are consistent with his
findings that Plaintiff spends time socializing with his family everyday and lives with his
girlfriend. See T. at 18. The ALJ accepted Dr. Caldwell's opinion that Plaintiff's attention,
14

concentration, recent memory, and remote memory were intact and that he is capable of following
and understanding simple direction and instructions. See id. at 21. The ALJ also noted that
Plaintiff is able to maintains a driver's license even though he claims to have stopped driving
shortly before the hearing. See id.
The ALJ found that Dr. Caldwell's opinion – that Plaintiff is limited in performing simple
tasks independently, performing complex tasks independently, making appropriate decisions,
relating adequately with others, and appropriately dealing with stress – is not supported by the
record. See id. The ALJ specifically cites to Plaintiff's activities of daily living that are
inconsistent with these findings, including providing childcare to the four children in his
household seven days a week, playing video games, and caring for himself and the household as
contrary to Dr. Caldwell's limitations. A state agency psychological consultant can be entitled to
greater weight than an examining psychologist where that consultant's opinion is based on a
review of a complete record compare to the limited information that was available to an
examining source. See SSR 96-6P, 1996 WL 374180, at *3. Here, Dr. Caldwell examined
Plaintiff without the benefit of the medical evidence or the record. In comparison, Dr. J.
Echevarria, a psychiatrist, was able to review all the medical evidence in the file, including Dr.
Caldwell's report before he concluded that Plaintiff "retains the capacity to perform [substantial
gainful activity], psychiatrically." T. at 63.
Further, the records from Dr. Thibault are also inconsistent with Dr. Caldwell's stated
limitations. Dr. Thibault found that Plaintiff's anxiety was controlled, and, although his mood and
affect were anxious, his thought processes and content did not demonstrate any impairment. See
id. at 364. Consequently, the Court finds that Plaintiff properly evaluated and assigned weight to
the state-agency psychiatric opinion and Dr. Caldwell's medical source statement.
15

5. Credibility Analysis
Plaintiff contends that the ALJ failed to properly evaluate the credibility factors listed in
20 C.F.R. §§ 404.1529(c)(3)(i)-(iv), 416.929(c)(3)(i)-(iv) and discussed in SSR 96-7P, 1996 WL
374186 (July 2, 1996) ("Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms
in Disability Claims: Assessing the Credibility of an Individual's Statements"). See Dkt. No. 11 at
24-27. Specifically, Plaintiff claims that the ALJ improperly relied on his observations of
Plaintiff from the hearing and that the ALJ improperly characterized Plaintiff's activities of daily
living. See id. As a result, the credibility finding is not supported by substantial evidence
according to Plaintiff. See id. at 26.
An ALJ assesses a plaintiff's subjective symptoms using a two-step process. See 20
C.F.R. §§ 404.1529(c)(1), 404.1545(a)(3), (e); SSR 96-7P, 1996 WL 374186, at *1. At the first
step, the ALJ must determine whether a plaintiff has an underlying impairment that is established
by acceptable clinical diagnostic techniques and could reasonably cause a plaintiff's symptoms.
See SSR 96-7P, 1996 WL 374186, at *2. If an impairment is shown, the ALJ "must evaluate the
intensity, persistence, and limiting effects of the [plaintiff's] symptoms to determine the extent to
which the symptoms limit the [plaintiff's] ability to do basic work activities." See id. at *2.
"When the objective medical evidence alone does not substantiate the claimant's alleged
symptoms, the ALJ must assess the credibility of the claimant's statements considering the details
of the case record as a whole." Wells v. Colvin, 87 F. Supp. 3d 421, 431 (N.D.N.Y. 2015); see
also Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999).
The entire case record includes a plaintiff's history, laboratory findings, a plaintiff's
statements about symptoms, statements and information provided by treating and non-treating
physicians, and statements from other people that describe how the symptoms affect a plaintiff.
16

See 20 C.F.R. §§ 404.1529(c)(1), 404.1545(a)(3), (e); SSR 96-7P, 1996 WL 374186, at *1.
Factors that are relevant to a plaintiff's symptoms include (1) the plaintiff's daily activities, (2)
location, duration, frequency, and intensity of symptoms, (3) precipitating and aggravating
factors, (4) medications and their side effects, (5) treatment received, (6) measures used to
alleviate symptoms, (7) and other factors concerning functional limitations and restrictions due to
the alleged symptoms. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii). The ALJ
found that Plaintiff had underlying, medically determinable impairments that could reasonably be
expected to produce Plaintiff's alleged symptoms. See T. at 22. However, the ALJ found that
Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms
were not fully credible. See id. Contrary to Plaintiff's contention, the Court finds that the ALJ
properly evaluated Plaintiff's credibility.
Plaintiff argues that the ALJ's observation that Plaintiff did not appear to be in any
obvious distress was improper. See Dkt. No. 11 at 26. Indeed, the ALJ noted in his decision that
Plaintiff "did not appear to be in any obvious distress" at the hearing but acknowledged that his
observation "is only a snapshot of the entire mosaic." See T. at 22. The observations of a
plaintiff's physical demeanor during a hearing is expressly designated as evidence pursuant to the
Social Security Regulations. See 20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3); Schaal v. Apfel,
134 F.3d 496, 502 (2d Cir. 1998). "In instances where the individual attends an administrative
proceeding conducted by the adjudicator, the adjudicator may also consider his or her own
recorded observations of the individual as part of the overall evaluation of the credibility of the
individual's statements." SSR 96-7P, 1996 WL 374186, at *5.
The Second Circuit has found that an ALJ's lay observation that a claimant does not
appear to be in distress during a hearing is entitled to limited weight and that it is not an error for
17

an ALJ to weight his or her observation in determining credibility. See Schaal, 134 F.3d at 502
(stating that there is no per se legal error where the ALJ considers a claimant's physical demeanor
in the credibility analysis). In this case, the ALJ's observation of Plaintiff's physical demeanor
has been recorded in the transcript so it is evidence within the record. See T. at 36. The ALJ's
decision acknowledges the limited value of his observation when he describes it as a "snapshot of
the entire mosaic." Id. at 21. The ALJ further lays out the medical evidence to support his
credibility findings, including the findings from Dr. Perkins-Mwantuali and Dr. Thibault. See id.
He considered Plaintiff's activities of daily living, including caring for his children, completing
household chores, and past and planned medical treatment, including pain medications and nerve
stimulator. See id. at 19-22. The Court finds that the ALJ did not err in considering the
documented observations of Plaintiff during the hearing and that the credibility determination is
supported by substantial evidence in the record.
6. Vocational expert
Plaintiff lastly contends that the vocational expert's opinion, i.e., considering Plaintiff's
age, education, work experience, and RFC, jobs exist in significant numbers in the national
economy that Plaintiff can perform, is not supported by substantial evidence. See Dkt. No. 11 at
26-27. This argument is based upon his contentions that the expert opinions of his treating
physician and the consultative physician were not appropriately weighed in the RFC
determination and that the credibility finding was not supported by substantial evidence. See Dkt.
No. 11 at 26-27. As discussed in this decision, the Court finds that the ALJ properly weighed the
expert opinions and properly assessed Plaintiff's credibility. Accordingly, Plaintiff's repetitive
arguments are rejected. See Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 319 (W.D.N.Y. 2013)
(citing Wavercak v. Astrue, 420 Fed. Appx. 91, 95 (2d Cir. 2011).
18

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the Parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the Commissioner's decision denying disability benefits is AFFIRMED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment and close this case; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED
Dated: July 20, 2015
Albany, New York

19