Miller v. Colvin

Filing 14

DECISION AND ORDER denying # 11 Plaintiff's motion for judgment on the pleadings; and granting # 12 Defendant's motion for judgment on the pleading. Defendant's decision denying disability benefits is affirmed, and the Plaintiff's is dismissed. Signed by Chief Judge Glenn T. Suddaby on 8/18/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
MELINDA MAE MILLER,
Plaintiff,
v.

6:15-CV-0552
(GTS)

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

OF COUNSEL:

THE DeHAAN LAW FIRM, P.C.
Counsel for Plaintiff
300 Rabro Drive, Suite 101
Hauppauge, NY 11788

JOHN W. DeHAAN, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

GRAHAM MORRISON, ESQ.
Special Assistant U.S. Attorney

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Melinda Mae Miller
(“Plaintiff”) against the Acting Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions
for judgment on the pleadings. (Dkt. Nos. 11, 12.) For the reasons set forth below, Plaintiff’s
motion is denied and Defendant’s motion is granted.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on November 6, 1963. The highest level of education that she achieved
was completing the ninth grade in high school. Her employment history consists of being a selfemployed daycare worker. Generally, her alleged disability consists of degenerative disc disease,
diabetic peripheral neuropathy, bilateral peripheral vascular disease, claudication,
anxiety/depression/insomnia, fibromyalgia, arthritis, Raynaud’s Disease, chronic sinus problems,
acid reflux, high cholesterol, and obesity. Plaintiff’s alleged disability onset date was originally
December 31, 2006, but was later amended to June 7, 2012.
B.

Procedural History

On June 7, 2012, Plaintiff applied for Supplemental Security Income. (Tr. 119-122.) Her
application was initially denied, after which she timely requested a hearing before an
Administrative Law Judge (“the ALJ”). (Tr. 54-59, 62.) On December 6, 2013, she appeared
before the ALJ, Robert E. Gale. (Tr. 26-52.) On January 30, 2014, the ALJ issued a written
decision finding Plaintiff not disabled under the Social Security Act. (Tr. 11-22.) On March 27,
2015, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the
final decision of the Commissioner. (Tr. 1-6.) Thereafter, Plaintiff timely sought judicial review
in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (Tr. 14-18.) First, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since June 7, 2012 (her application date). (Tr. 16.) Second, the ALJ

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found that Plaintiff had the following two severe impairments: (a) degenerative disc disease, and
(b) diabetes mellitus with peripheral neuropathy. (Tr. 16-17.) Third, the ALJ found that
Plaintiff’s impairments do not meet or medically equal one of the listed impairments located in
20 C.F.R. Part 404, Subpart P, Appendix, 1. (Tr. 17.) In so doing, the ALJ considered the
listings in sections 1.04 and 11.14 (the “Listings”). (Id.) Fourth, the ALJ found that Plaintiff had
the residual functional capacity (“RFC”) to (a) lift/carry 20 pounds on an occasional basis and ten
pounds on a frequent basis, (b) stand for six hours total out of an eight-hour work day for 20-30
minutes at a time, (c) walk for six hours total out of an eight-hour work day for 20-30 minutes at
a time, (d) sit for six hours out of an eight-hour workday, (e) push/pull 20 pounds on an
occasional basis and ten pounds on a frequent basis, and (f) engage in no climbing of ladders,
ropes or scaffolds. (Id.) Fifth, the ALJ found that Plaintiff has no past relevant work. (Tr. 20.)
Sixth, and finally, the ALJ determined that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform, considering her age, education, work experience,
and RFC. (Id.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Generally, Plaintiff makes the following six arguments in support of her motion for
judgment on the pleadings. First, Plaintiff argues that the ALJ failed to fulfill his duty to
adequately develop the record by failing to order a consultative intelligence examination for the
following three reasons: (a) Plaintiff’s cognitive difficulties are sufficiently long-standing and
well documented that a consultative intelligence exam was essential to adequately develop the
record regarding her potential adaptive functioning disability and qualification for benefits under

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Listing 12.05; (b) the findings made by the Lewis County Department of Social Services and
Plaintiff’s results on the Test of Adult Basic Education (“TABE”) provided a sufficient basis for
the ALJ to order a consultative intelligence exam; and (c) the ALJ disregarded Plaintiff’s three
separate requests for a consultative intelligence exam. (Dkt. No. 11, at 16-19 [Pl.’s Mem. of
Law].)1
Second, Plaintiff argues that the ALJ erred in assessing her mental functioning for the
following two reasons: (a) in making his assessment, the ALJ relied on the treatment notes of
Plaintiff’s podiatrist, which provide no evidence of her overall cognitive capabilities or
impairments; and (b) it is apparent that the ALJ limited his analysis of Plaintiff’s mental
limitations to those related to the side effects of her medications, which does not constitute an
overall assessment of her cognitive abilities. (Id. at 18-19.)
Third, Plaintiff argues that the ALJ failed in his duty to fully develop the record regarding
Plaintiff’s diagnosis of fibromyalgia to determine whether or not it was a severe impairment for
the following three reasons: (a) the ALJ failed to contact Plaintiff’s treating physician for
additional information regarding her fibromyalgia, (b) the ALJ failed to request more information
from Plaintiff regarding her symptoms, and (c) the ALJ failed to order a consultative exam to
further assess the severity and functional effects of Plaintiff’s fibromyalgia. (Id. at 21.)
Fourth, Plaintiff argues that the ALJ did not properly follow the treating physician rule
for the following two reasons: (a) the ALJ failed to consider all of the factors set forth in 20
C.F.R. § 416.927(c)(2) when deciding not to afford the opinion of Plaintiff’s treating physician

1

Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the parties’ respective motion papers.
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controlling weight; and (b) the ALJ incorrectly gave great weight to the consultative examiner’s
opinion that Plaintiff had mild restrictions in prolonged walking and standing. (Id. at 21-26.)
Fifth, Plaintiff argues that the ALJ improperly evaluated her RFC for the following three
reasons: (a) the ALJ completely disregarded the reported side effects from the medication that
Plaintiff was prescribed to treat her neuropathy and the effect they may have had on her mental
capabilities; (b) the ALJ made an improper credibility determination when he found that Plaintiff
was non-compliant with her treatment but failed to consider the fact that she needed prior
authorization for Cymbalta and could not always afford to purchase the drug; and (c) the ALJ’s
RFC failed to account for any of Plaintiff’s cognitive limitations because he refused to order a
consultative intelligence exam. (Id. at 26-29.)
Sixth, and finally, Plaintiff argues that, given her significant non-exertional impairments
resulting from both her medical conditions and the side effects that she experiences from her
prescribed medication, the ALJ erred by not calling a vocational expert to evaluate what jobs
would be available to her. (Id. at 29-30.) Furthermore, Plaintiff argues that the Commissioner
failed to meet her burden of proof at the fifth step of the evaluation process because the ALJ’s
reliance on the Medical Vocational Guidelines (“the Grids”) was inappropriate and testimony
from a vocational expert was required. (Id. at 30-31.)
B.

Defendant’s Arguments

Generally, Defendant makes the following six arguments in opposition to Plaintiff’s
motion for judgment on the pleadings and in support of her own such motion. First, Defendant
argues that the ALJ sufficiently developed the record and was not required to order a consultative
intelligence exam for the following four reasons: (a) Plaintiff’s treatment records did not suggest

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a serious impairment regarding her mental faculties; (b) the ALJ noted that there was no
indication that Plaintiff had undergone any psychiatric treatment for any alleged mental
symptoms, Plaintiff denied receiving any counseling or being hospitalized due to her mental
health, and her mental status examinations were all normal; (c) Plaintiff was represented by
counsel throughout the administrative process and, therefore, had the ability to cultivate her own
mental health records and seek a consultative exam; and (d) it was Plaintiff’s burden to provide
the ALJ with evidence regarding her alleged disability. (Dkt. No. 12, at 6-7 [Def.’s Mem. of
Law].)
Second, Defendant argues that the ALJ sufficiently developed the record regarding
Plaintiff’s fibromyalgia and was not required to contact Plaintiff’s treating physician for
additional information because (a) there were no obvious gaps in the administrative record and
the ALJ had a complete medical history of Plaintiff’s fibromyalgia, and (b) the ALJ properly
found that, under SSR 12-2p, no evidence existed to establish that Plaintiff’s fibromyalgia is a
medically determinable impairment. (Id. at 8.)
Third, Defendant argues that the ALJ properly evaluated the opinion of Plaintiff’s treating
physician, Dr. Taylor, for the following three reasons: (a) in his decision, the ALJ thoroughly
summarized Dr. Taylor’s assessment and noted that his opinion was inconsistent with the
evidence as a whole; (b) the ALJ properly found that Dr. Taylor’s opinion was also inconsistent
with the opinion of the consultative examiner, Dr. Pamela Tabb, whose opinion was consistent
with the medical evidence of record; and (c) it is the ALJ’s duty to resolve any conflict in the
evidence and the ALJ properly did so in this case. (Id. at 8-9.)

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Fourth, Defendant argues that the ALJ accounted for the alleged side effects caused by
Plaintiff’s medication because the ALJ specifically stated in his decision that “[t]he claimant
reports that her medication causes a variety of side effects. However, clinical findings do not
show that the claimant has presented for exams with objective signs of continuing difficulties
with these reported side effects.” (Id. at 9.) Furthermore, Defendant argues that nearly all of the
claims regarding side effects were from Plaintiff’s subjective complaints, which were not
corroborated by objective medical evidence. (Id.) Finally, Defendant argues that the ALJ
properly noted that Plaintiff had not attempted to change her medication in response to these
alleged side effects. (Id.)
Fifth, Defendant argues that the ALJ’s credibility determination regarding Plaintiff’s noncompliance with treatment was proper because (a) the fact that Plaintiff had not taken Cymbalta
for several months was factually true and was reflected in Dr. Taylor’s notes, and (b) the ALJ
was cognizant of the fact that Plaintiff had not obtained prior authorization for the drug but
properly noted that there were no indications Plaintiff had pursued authorization for Cymbalta,
which suggested that Plaintiff’s condition was not serious enough to command her attention. (Id.
at 10.)
Sixth, and finally, Defendant argues that the ALJ’s decision not to call a vocational expert
was not error because (a) testimony from a vocational expert is necessary only where a
claimant’s work capacity is significantly diminished by nonexertional limitations, and (b) the
ALJ properly rejected Plaintiff’s claims that she had significant mental limitations. (Id. at 1011.) Furthermore, Defendant argues that she met her burden of proof at step five because the
ALJ properly determined that Plaintiff could perform a nearly full range of light work and,
therefore, Medical-Vocational Rule 202.17 and Rule 202.10 directed that a finding of “not
disabled” was warranted. (Id. at 11.)
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III.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial

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evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.” Valente v.
Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity.
If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without considering
vocational factors such as age, education, and work experience; the
[Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant’s severe impairment, he has
the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner]
then determines whether there is other work which the claimant could
perform. Under the cases previously discussed, the claimant bears the
burden of the proof as to the first four steps, while the
[Commissioner] must prove the final one.

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Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
IV.

ANALYSIS
A.

Whether the ALJ Failed to Adequately Develop the Record

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12, at 6-8 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
“Since Social Security proceedings are non-adversarial, the ALJ must objectively
investigate the facts and develop the arguments both for and against granting benefits.” Hall ex
rel. M.M. v. Astrue, 11-CV-6317, 2012 WL 2120613, at *4 (W.D.N.Y. June 11, 2012) (internal
quotation marks omitted). “It is the ALJ’s duty to develop the administrative record even if a
claimant is represented by counsel.” Hall, 2012 WL 2120613, at *4. “Encompassed in this duty
is the requirement that an ALJ assemble the claimant’s complete medical history and re-contact
treating physicians or obtain consultative examinations where the information received is
inadequate to determine whether the claimant is disabled.” Williams v. Colvin, 98 F. Supp. 3d
614, 633-34 (W.D.N.Y. 2015).
“While the ALJ has an affirmative obligation to develop the administrative record, her
duty to do so is not without limit.” Colon-Torres v. Colvin, 12-CV-1591, 2014 WL 296845, at *2
(N.D.N.Y. Jan. 27, 2014) (Sharpe, J.). “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 her determination based upon that evidence.” Colon-

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Torres, 2014 WL 296845, at *2. “Consistent with that notion, where there are no ‘obvious gaps’
in the record, the ALJ is not required to seek additional information.” Id. “Moreover, the ALJ is
afforded discretion in determining whether a consultative intelligence exam is warranted. . . . As
with development of the record generally, ‘[a] consultative examination is unnecessary if the
record contains sufficient information on which to base the decision.’” Id. (quoting Hall, 2012
WL 2120613, at *4); see also Tankisi v. Comm’r, 521 F. App’x 29, 32 (2d Cir. 2013) (stating that
“[i]t can be reversible error for an ALJ not to order a consultative examination when an
examination is required for an informed decision. . . . However, an ALJ is not required to order a
consultative examination if the facts do not warrant or suggest the need for it”).
1.

The ALJ Did Not Err in Declining to Order a Consultative
Intelligence Exam

As discussed above in Part II.A. of this Decision and Order, Plaintiff argues that the ALJ
failed to fully develop the record when he neglected to order a consultative intelligence exam
because there was record evidence suggesting that she might have a mental disability that meets
Listing 12.05. In support of this argument, Plaintiff points to her results on the TABE exam and
her “documented cognitive problems in school, work, and during the [administrative] hearing.”
(Dkt. No. 11, at 19 [Pl.’s Mem. of Law].) However, the Court finds these arguments to be
unpersuasive for the two reasons discussed below.
First, “Plaintiff bears the burden of establishing mental impairments.” Haskins v.
Comm’r, 05-CV-0292, 2008 WL 5113781, at *7 (N.D.N.Y. Sept. 11, 2008) (Treece, M.J.). In
this regard, the ALJ correctly noted that Plaintiff did not demonstrate that she has a medically
determinable mental impairment. (Tr. 17.) Furthermore, Plaintiff testified at the administrative
hearing that she has not received any mental health treatment or counseling. (Tr. 41-42.) Nor
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did Plaintiff submit evidence regarding her IQ or her educational records. Although Plaintiff
submitted her test results from the TABE exam (Tr. 194-95), which was used by the Lewis
County Department of Social Services in its assessment of her disability, the scores are not dated
and, as Plaintiff correctly notes, the ALJ was not required to follow the decision of other
governmental agencies in his disability determination. (Dkt. No. 11, at 18 [Pl.’s Mem. of Law].)
Second, there is substantial record evidence that Plaintiff did not suffer work-related
functional limitations resulting from a possible mental impairment. Specifically, the ALJ
considered Plaintiff’s reported activities of daily living (Tr. 18-20), which reveal that she is able
to perform some household tasks, such as cooking, cleaning, doing laundry, providing care for
her dog, and mowing the lawn for 20 minutes at a time. (Tr. 156-58, 254, 285, 304.)
Furthermore, Plaintiff does not have any problems with her personal care; and she can pay bills,
count change, and handle her savings account. (Tr. 156-57, 159.) Plaintiff also indicated that
she can follow spoken and written instructions, she socializes daily, and she does not have a
problem getting along with others. (Tr. 160, 162.). Accordingly, the ALJ properly acted within
his discretion when deciding not to order a consultative intelligence exam because the record
evidence did not suggest that an examination was necessary. See Serianni v. Astrue, 07-CV0250, 2010 WL 786305, at *5 (N.D.N.Y. Mar. 1, 2010) (“An ALJ is not obligated to send a
litigant for a consultative examination if the facts do not warrant or suggest the need for such an
examination.”) (Mordue, J.); see also Haskins, 2008 WL 5113781, at *7 n.5 (finding no duty to
order consultative intelligence evaluation where evidence did not support work-related functional
limitations resulting from a possible mental impairment); Gorman v. Colvin, 14-CV-0103, 2015
WL 1383823, at *4 (N.D.N.Y. Mar. 25, 2015) (McAvoy, J.) (“Plaintiff fails to point to evidence

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during the relevant period showing that her intellectual capacity precluded her from engaging in
simple, routine, and repetitive unskilled work activities, and therefore the ALJ had no duty to
order a consultive intellectual evaluation”).
2.

The ALJ Did Not Fail to Fulfill His Duty to Fully Develop the Record
Regarding Plaintiff’s Fibromyalgia

Plaintiff argues that the ALJ failed to fulfill his duty to fully develop the record by
obtaining additional information regarding her diagnosis of fibromyalgia as required by SSR 122p. (Dkt. No. 11, at 19-20 [Pl.’s Mem. of Law].) Under SSR 12-2p, fibromyalgia is considered a
medically determinable impairment if there is a physician diagnosis of fibromyalgia and he
provides evidence meeting either the 1990 American College of Rheumatology Criteria for
Classification of Fibromyalgia or the 2010 American College of Rheumatology Preliminary
Diagnostic Criteria. SSR 12–2p, 2012 WL 3104869, at *2 (July 25, 2012). These two diagnostic
regimes establish two different sets of specific medical findings necessary for a fibromyalgia
diagnosis, either of which is sufficient to establish the impairment.2 Id., at *2-3.
However, a “mere diagnosis of fibromyalgia without a finding as to the severity of
symptoms and limitations does not mandate a finding of disability.” Rivers v. Astrue, 280 F.
2

The first set of criteria requires (1) a “history of widespread pain-that is, pain in
all quadrants of the body (the right and left sides of the body, both above and below the waist)
and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)–that has
persisted . . . for at least 3 months” and (2) “[a]t least 11 positive tender points on physical
examination . . . found bilaterally (on the left and right sides of the body) and both above and
below the waist” and (3) “[e]vidence that other disorders that could cause the symptoms or signs
were excluded.” SSR 12-2p, 2012 WL 3104869, at *2-3.
The second set of criteria requires “all three of the following criteria,” including (1) “[a]
history of widespread pain,” (2) “[r]epeated manifestations of six or more [fibromyalgia]
symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or
memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable
bowel syndrome,” and (3) “[e]vidence that other disorders that could cause these repeated
manifestations of symptoms, signs, or co-occurring conditions were excluded.” Id. at *3.
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App’x 20, 22 (2d Cir. 2008); see also SSR 12-2p, 2012 WL 3017612, at *2 (“We cannot rely
upon the physician’s diagnosis alone.”). Nor can a physician’s diagnosis be “inconsistent with
the other evidence in the person’s case record.” SSR 12-2p, 2012 WL 3017612, at *2.
Nonetheless, “denying a fibromyalgia-claimant’s claim of disability based in part on a perceived
lack of objective evidence is reversible error.” Campbell v. Colvin, 13-CV-0451, 2015 WL
73763, at *6 (N.D.N.Y. Jan. 6, 2015) (Sharpe, C.J.) (emphasis added). “Thus, absence of
medically-acceptable clinical and laboratory diagnostic findings (beyond clinical signs and
symptoms necessary for a diagnosis) is a legally-improper basis for rejecting medical source
opinion.” Campbell, 2015 WL 73763, at *6 (emphasis added).
Here, the ALJ found that “the claimant has not demonstrated, through objective medical
evidence, that her fibromyalgia is a medically determinable impairment.” (Tr. 17.) The ALJ did
not elaborate further regarding the basis for this determination but instead cites Plaintiff’s
medical records from Dr. Taylor and SSR 12-2p. (Id.) A review of these medical records from
April 16, 2012, to July 22, 2013, indicate that, on March 22, 2013, Plaintiff was diagnosed with
fibromyalgia. (Tr. 297.) The record further indicates that Plaintiff suffered from “[l]ower back
pain, muscle aches, pain localized to one or more joints, and joint stiffness localized to one or
more joints.” (Tr. 298.) Plaintiff was prescribed Cymbalta to treat her fibromyalgia. (Tr. 300.)
The medical records from Plaintiff’s subsequent visits in April, May, and June 2013 continue to
refer to Plaintiff’s diagnosis of fibromyalgia and prescription medication for muscle relaxants to
treat muscle spasms. (Tr. 293, 289, 282.) However, none of the records from Plaintiff’s
diagnosing physician provide the basis for her diagnosis (nor does the record as a whole suggest
that Plaintiff’s symptoms would meet either of the two sets of diagnostic criteria discussed above
in note 2 of this Decision and Order).

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Under these circumstances, Plaintiff correctly notes that SSR 12-2p provides that the
Commissioner may take one or more actions to resolve any insufficiency in the evidence in order
to determine whether a claimant has a medically determinable impairment of fibromyalgia. SSR
12-2p, 2012 WL 3017612, at *4. However, “this provision does not heighten an ALJ’s already
existing duty to develop the record nor does it alleviate the claimant’s burden to show the
existence of medically determinable impairments[.]” Miller v. Colvin, 13-CV-2315, 2015 WL
8967188, at *4 (D. Or. Dec. 14, 2015); see also Bauman v. Colvin, 15-CV-0066, 2015 WL
4660106, at *3 (W.D. Wash. Aug. 4, 2015) (stating that, “[a]lthough the SSR cited by Plaintiff
provides that an ALJ may further develop the record regarding fibromyalgia, she has not
established that the ALJ breached her duty to do so in this case”). While it may have been
preferable (for the sake of thoroughness) for the ALJ to have made additional efforts to determine
the basis for Plaintiff’s diagnosis, the Court finds that there were no obvious gaps in the record
requiring him to do so.
Specifically, although Plaintiff argues that the ALJ should have sought additional
information regarding her diagnosis, she fails to articulate what this evidence consists of and
whether it was missing from the record. Indeed, Plaintiff’s counsel indicated at the
administrative hearing that the record could be closed. (Tr. 50.) Once again, Plaintiff bears the
burden at Steps One through Four. See Hamilton v. Colvin, 15-CV-0859, 2016 WL 2757975, at
*5 (D. Or. May 12, 2016) (stating that “the ALJ’s duty to develop the record was not triggered
because the medical evidence was not ambiguous. Although there are multiple references to an
apparent past diagnosis in the medical record of Plaintiff as having fibromyalgia, the record does
not contain evidence sufficient to establish either of the criteria under SSR 12-2P”).

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Furthermore, Plaintiff has failed to show that, had the ALJ found her fibromyalgia to be a
medically determinable impairment, he would have found additional limitations on her ability to
work. It appears from the ALJ’s decision that he considered all of the medical opinions and
records submitted by Plaintiff in formulating her RFC. (Tr. 16-21.) Accordingly, even if the
ALJ did err in not fully developing the record with respect to Plaintiff’s fibromyalgia, such an
error was harmless because he considered her symptoms during the subsequent steps. See
Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (finding alleged step-two error
harmless because ALJ considered impairments during subsequent steps); Snyder v. Colvin, 13CV-0585, 2014 WL 3107962, at *5 (N.D.N.Y. July 8, 2014) (“[W]hen an administrative law
judge identifies some severe impairments at Step 2, and then proceeds through sequential
evaluation on the basis of combined effects of all impairments, including those erroneously found
to be non severe, an error in failing to identify all severe impairments at Step 2 is harmless.”).
B.

Whether the ALJ Failed to Properly Follow the Treating Physician Rule

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12, at 8-10 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
The opinion of a treating source will be given controlling weight if it “is well supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. § 416.927(c)(2); Greek v. Colvin,
802 F.3d 370, 375 (2d Cir. 2015).
The following factors must be considered by the ALJ when deciding how much weight
the opinion should receive, even if the treating source is not given controlling weight: “(i) the

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frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the
evidence in support of the opinion; (iii) the opinion’s consistency with the record as a whole; and
(iv) whether the opinion is from a specialist.” 20 C.F.R. § 416.927(c)(2)(i)-(iv). Finally, the ALJ
is also required to set forth his reasons for the weight he assigns to the treating physician’s
opinion. Id.; see also SSR 96-2p, 1996 WL 374188 (July 2, 1996); Shaw v. Chater, 221 F.3d
126, 134 (2d Cir. 2000) (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 [2d Cir.
1998]). “Failure to provide ‘good reasons’ for not crediting the opinion of a claimant’s treating
physician is a ground for remand.” Reyes v. Colvin, 13-CV-4683, 2015 WL 337483, at *14
(S.D.N.Y. Jan. 26, 2015).
As discussed above in Part II.A. of this Decision and Order, Plaintiff argues that the ALJ
failed to consider all of the required factors in 20 C.F.R. § 416.927(c)(2). “Although the ALJ is
required to explicitly consider all of the factors, the ALJ is not required to explicitly ‘address or
recite’ each factor in his decision.” Reyes, 2015 WL 337483, at *16; see also Marquez v. Colvin,
12-CV-6819, 2013 WL 5568718, at *12 (S.D.N.Y. Oct. 9, 2013) (“Although the ALJ did not
explicitly recite the factors, his decision nonetheless adequately considered each factor.”). “If it
is unclear whether the ALJ explicitly considered all of the factors, the court may search the
record to assure that the treating physician rule has not been traversed, but only when the ALJ
gives good enough reasons to allow the court to engage in such an inquiry.” Reyes, 2015 WL
337483, at *16 (citing Halloran v. Barnhart, 362 F.3d 28, 32 [2d Cir. 2004]).
In the present case, the ALJ’s reasoning in his decision, along with the facts in the record,
reasonably allow the Court to conclude that he considered the treating physician rule even though
he did not explicitly recite each factor. Specifically, the ALJ discussed Dr. Taylor’s opinion at

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length as well as the reasons why he found Dr. Taylor’s opinion to be inconsistent with the
record as a whole. (Tr. 19-20.) It is also readily apparent from the medical source statements
and medical records, which were cited to by the ALJ, that Dr. Taylor is an internist and that
Plaintiff was under his care for several years. (Id.) Accordingly, the Court finds that the ALJ
considered each factor under 20 C.F.R. § 416.927(c)(2) and that his decision to afford Dr.
Taylor’s opinion less weight was supported by substantial evidence for the reasons stated by the
ALJ. (Id.) Nor did the ALJ err by assigning greater weight to the consultative examiner’s
opinion. See Suarez v. Colvin, 102 F. Supp. 3d 552, 577 (S.D.N.Y. 2015) (“It is well-settled that
a consulting physician’s opinion can constitute substantial evidence supporting an ALJ’s
conclusions. . . . Moreover, an ALJ may give greater weight to a consultative examiner’s opinion
than a treating physician’s opinion if the consultative examiner’s conclusions are more consistent
with the underlying medical evidence.”) (collecting cases).
C.

Whether the ALJ Improperly Evaluated Plaintiff’s RFC

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12, at 9-10 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
As discussed above in Part II.A. of this Decision and Order, Plaintiff argues that the ALJ
failed to properly consider the reported side effects of Plaintiff’s medication on her ability to
work and mischaracterized some of the medical evidence in finding that she was non-compliant
with her treatment. “Social Security Regulations provide that the RFC assessment must be based
on all of the relevant evidence in the case record, including, for example, the side effects of
medication.” May v. Colvin, 13-CV-6011, 2014 WL 3546297, at *9 (W.D.N.Y. July 10, 2014)

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(citing SSR 96-8p); see also 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00(G) (“In cases
where overt symptomatology is attenuated by the use of such drugs, particular attention must be
focused on the functional limitations that may persist. We will consider these functional
limitations in assessing the severity of your impairment.”).
Here, Plaintiff acknowledges that the ALJ considered her claim regarding the alleged side
effects of her medication.3 (Dkt. No. 11, at 27 [Pl.’s Mem. of Law].) Specifically, the ALJ stated
as follows:
The claimant reports that her medication causes a variety of side
effects. However, clinical findings do not show that the claimant
has presented for exams with objective signs of continuing
difficulties with these reported side effects. . . . There is no
indication that her medications have been changed as a result of
these reported side effects or that she has undergone psychiatric
treatment for her reported mental symptoms.
(Tr. 19.) Plaintiff takes issue with this determination, arguing that her reported side effects are
well documented in the record, citing (a) her testimony at the administrative hearing regarding
the side effects she experiences after taking medication to treat her neuropathy, (b) the
information she provided in a disability form where she stated that she experiences “memory
loss, anxiety, nervousness, [and] dizziness,” and (c) medical records documenting that she has
complained to Dr. Taylor regarding these side effects. (Dkt. No. 11, at 27 [Pl.’s Mem. of Law].)

3

Indeed, the ALJ cites the same medical records that Plaintiff does when
discussing her alleged side effects in his decision, indicating that he did consider them. (Tr. 18,
19.) In any event, “[a]n ALJ’s failure to cite specific evidence does not indicate that such
evidence was not considered.” Brault v. Comm’r, 683 F.3d 443, 448 (2d Cir. 2012). When, as
here, “the evidence of record permits us to glean the rationale of an ALJ’s decision, we do not
require that he 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.” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983).
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While Plaintiff is correct that her subjective complaints are well documented, the ALJ
also properly determined that her continuing difficulties with these side effects have not been
corroborated by objective medical evidence. Similarly, the objective medical evidence does not
reveal that these alleged side effects limit Plaintiff’s ability to function. Accordingly, the ALJ
properly considered the alleged side effects caused by Plaintiff’s medication and his
determination is supported by substantial evidence. See Peguero v. Barnhart, 05-CV-5799, 2006
WL 2570607, at *4 (S.D.N.Y. Sept. 6, 2006) (finding that the ALJ’s assessment of Plaintiff’s
limitations was proper, in part because, despite Plaintiff’s subjective complaints of side effects,
“none of the medical records submitted by [Plaintiff] indicate[d] that he was suffering from
side-effects of the medications he was taking”); Browne v. Comm’r, 131 F. Supp. 3d 89, 102
(S.D.N.Y. 2015) (“Browne’s argument that the ALJ failed to consider the side effects of his
medication is without merit, especially since Browne points to no treatment record in which a
medical professional indicates that the side effects of Browne’s medications limit his ability to
function.”). Finally, because the Court has found that the ALJ properly considered the side
effects of Plaintiff’s medication and that his determination was supported by substantial
evidence, the Court need not consider Plaintiff’s argument regarding the ALJ’s credibility
determination with respect to her alleged non-compliance with her medication.
D.

Whether the ALJ Erred By Failing to Consult a Vocational Expert

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12, at 10-11 [Def.’s Mem. of
Law].) To those reasons, the Court merely adds that, because the ALJ’s RFC determination was
supported by substantial evidence, which did not include non-exertional limitations, the ALJ was
not required to consult a vocational expert.

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ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: August 17, 2016
Syracuse, New York
______________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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