Grogan v. Commissioner of Social Security
MEMORANDUM-DECISION & ORDER: It is Ordered that the Commissioner's 13 Motion for Judgment on the Pleadings is GRANTED, further it is Ordered that Plaintiff's # 12 Motion for Judgment on the Pleadings is DENIED, The # 1 Complaint is therefore DISMISSED. Signed by Magistrate Judge Christian F. Hummel on 3/28/2017. (Attachments: # 1 Unpublished case law) (Copy served upon the pro se plaintiff via regular and certified mail) (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RODNEY C. GROGAN, JR.
CAROLYN M. COLVIN,
ACTING COMMISSIONER OF SOCIAL
Rodney C. Grogan, Jr.
8247 Old Floyd Road
Rome, New York 13440
Plaintiff pro se
Social Security Administration
Office of Regional General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for defendant
GRAHAM MORRISON, ESQ.
CHRISTIAN F. HUMMEL,
U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Rodney C. Grogan Jr. brings this action pursuant to 42 U.S.C. section
405 (g) seeking review of the decision by the acting Commissioner of Social Security
(“Commissioner” or “defendant”) denying his application for disability insurance benefits.
Dkt. No. 1. (“Compl.”). 1 Plaintiff moves for a finding of disability and Commissioner cross
moves for judgment on the pleadings. Dkt. Nos. 12, 13. For the following reasons, the
determination of the Commissioner is affirmed.
Plaintiff was born on December 24, 1971. Social Security Administrative Record/
Transcript (“T.”) at 27. 3 Plaintiff graduated from high school where he took regular
education courses. Id. at 29. Plaintiff resides with his brother in a single-family
residence. Id.at 29. Plaintiff cleans the home and does the laundry. Id at 36. Plaintiff’s
brother does all of the grocery shopping and cooking. Id. at 36. Plaintiff last worked at
Mohawk Electro Technologies, Inc. on April 10, 2012. Id. at 29-30. Plaintiff was
employed there for approximately 20 years. Id. at 30. He began his employment there
as an assembler involved in building components which were placed on circuit boards
which were used in building radios for the military. Id. at 31. Plaintiff worked his way up
to become a supervisor of 20 to 40 people. Id. at 30-31. As a supervisor, plaintiff
trained, hired, and fired employees. Id. at 30. In his supervisory role, plaintiff spent
thirty percent of the workday on his feet. Id. at 31. Plaintiff was terminated from his
position as a result of downsizing. Id. at 32. If the company had not downsized, he
would have continued to work. Id. Plaintiff has not been employed since he was
The parties consented to direct review of this matter by a Magistrate Judge pursuant to 28 U.S.C.
section 636 (c), Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 73, N.D.N.Y. Local Rule 72.2 (b), and
General Order 18. See Dkt. No. 4.
2 Copies of unpublished decisions cited within this Memorandum-Decision and Order have been
provided to plaintiff.
3 The page numbers for citations to the Social Security Administrative Record/Transcript refer to the
pagination provided by Social Security upon submission to the Court, not the header numbers generated
On March 14, 2013, plaintiff protectively filed a Title II application for a period of
disability and disability insurance benefits alleging a disability beginning on January 5,
2012. T. at 142-43. The claim was denied on June 18, 2013. Id. at 45-53. Plaintiff
filed a written request for a hearing. Id. at 67-68. A hearing was held before
Administrative Law Judge (“ALJ”) Robert E. Gale on May 28, 2014. Id. at 22-44. On
November 6, 2014, the ALJ issued a decision denying plaintiff’s application. Id. at 9-16.
Plaintiff’s timely request for review by the Appeals Council was denied, making the
ALJ’s finding the final determination of the Commissioner. Id. at 1-4. Plaintiff
commenced this action on February 29, 2016. See Compl.
A. Standard of Review
In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),
1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990). Rather, the Commissioner's determination will only be reversed if the correct
legal standards were not applied, or it was not supported by substantial evidence.
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d
464, 467 (2d Cir. 1982). Substantial evidence is "more than a mere scintilla,” meaning
that in the record one can find "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations
omitted)). The substantial evidence standard is "a very deferential standard of review
. . . . [This] means once an ALJ finds facts, we can reject [them] only if a reasonable
factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683
F.3d 443, 448 (2d Cir. 2012) (internal quotation marks omitted). Where there is
reasonable doubt as to whether the Commissioner applied the proper legal standards,
the decision should not be affirmed even though the ultimate conclusion reached is
arguably supported by substantial evidence. Martone v. Apfel, 70 F. Supp. 2d 145,
148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
However, if the correct legal standards were applied and the ALJ's finding is supported
by substantial evidence, such finding must be sustained, "even where substantial
evidence may support the plaintiff's position and despite that the court's independent
analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted).
B. Determination of Disability
"Every individual who is under a disability shall be entitled to a disability . . . benefit
. . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months." Id. § 423(d)(1)(A). A medically-determinable
impairment is an affliction that is so severe that it renders an individual unable to
continue with his or her previous work or any other employment that may be
available to him or her based on his or her age, education, and work experience. Id.
§ 423(d)(2)(A). Such an impairment must be supported by "medically acceptable
clinical and laboratory diagnostic techniques."
Id. § 423(d)(3).
severity of the impairment is "based [upon] objective medical facts, diagnoses or
medical opinions inferable from [the] facts, subjective complaints of pain or disability,
and educational background, age, and work experience." Ventura v. Barnhart, No.
04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing
Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. §
404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers
whether the claimant has a ‘severe impairment' which
significantly limits his [or her] 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 [or her] 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 [or she] has the residual functional
capacity to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her]
past work, the [Commissioner] then determines whether
there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (spacing added). The plaintiff
bears the initial burden of proof to establish each of the first four steps. DeChirico v.
Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the
inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that
the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing
Berry, 675 F.2d at 467).
"In addition, an ALJ must set forth the crucial factors justifying his findings with
sufficient specificity to allow a court to determine whether substantial evidence supports
the decision.” Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y.
2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court
cannot substitute its interpretation of the administrative record for that of the
Commissioner where the record contains substantial support for the ALJ's decision.
See Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If supported by substantial
evidence, the Commissioner's finding must be sustained "even where substantial
evidence may support the plaintiff's position and despite that the court's independent
analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992). The 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) (citation omitted).
C. ALJ Decision
Applying the five-step disability sequential evaluation, the ALJ determined that
plaintiff had not engaged in substantial gainful activity since April 10, 2012, the alleged
onset date. T. at 11. The ALJ found in step two that plaintiff had the severe impairment
of Crohn’s disease. Id. At step three, the ALJ determined that plaintiff did not have an
impairment or combination of impairments that met or medically equated to the severity
of one of the listed impairments in 20 C.F.R. Part 4, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526). Id. at 12. The ALJ then concluded that plaintiff
has the residual functional capacity (“RFC”) to perform the full range of light work as
defined in 20 C.F.R. § 404.1567(b). Id.
At step four, the ALJ determined that plaintiff is capable of performing past relevant
work as a supervisor of electronics production (DOT #726.130-010). T at 14. The ALJ
concluded that plaintiff’s past work as a supervisor of electronics production does not
require the performance of work related activities which are precluded by plaintiff’s
residual functional capacity. Id. Therefore, the ALJ determined that plaintiff “has not
been under a disability, as defined in the Social Security Act, from April 10, 2012,
through the date of this decision. Id. at 15.
Plaintiff contends that the Commissioner’s decision is not based on substantial
evidence because: (1) the ALJ failed to obtain the testimony of a vocational expert;
(2) the ALJ erred in not finding plaintiff’s Crohn’s disease, reflux disease, osteoarthritis,
joint pain and skin cancer to be severe impairments; (3) the ALJ failed to properly
assess the medical opinions; (4) the ALJ failed to apply the treating source rule to Nurse
Practitioner Deanna Brady; (5) the ALJ failed to perform a function-by-function analysis;
and (6) the ALJ erred in failing to consider his good work history in assessing his
credibility. See generally Dkt. No. 12. Defendant first argues that because the ALJ
properly determined that the plaintiff has the ability to perform his past work, the burden
never shifted to the Commissioner; thus, it was not necessary for the ALJ to elicit expert
vocational testimony. Defendant next argues that the ALJ provided valid reasoning at
step two for determining that plaintiff’s osteoarthritis was not a severe impairment.
Next, defendant contends that the ALJ properly applied the treating source rule in
evaluating the testimony of nurse practitioner Deanna Brady. Lastly, defendant argues
that it was not necessary for the ALJ to perform a function-by-function analysis as the
ALJ’s rationale could be gleaned from his decision. See generally Dkt. No. 13.
1. Vocational Expert Testimony
Plaintiff contends that the ALJ erred in failing to call a vocational expert. Dkt. No. 12
at 8-11. 4 Plaintiff argues that “[t]he vocational expert[’s] personal attendance at the
[a]dministrative hearing is [an] important part of a fair [and] impartial hearing on the
claimants work related limitations.” Id. at 10. Defendant contends that, once the ALJ
determined at step four that plaintiff was not disabled, he was not required to proceed to
step five to consider the vocational factors of age, education, and work experience. Dkt.
No. 13 at 6 (citing 20 C.F.R. §§ 404.1520(b), 404.1560). Thus, defendant argues at
step four, the burden was on plaintiff to show an inability to perform his past relevant
work. Dkt. No. 13 at 6.
Plaintiff bears the burden of proof to establish each of the first four steps. DeChirico
v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1988). “A disability claimant bears the
When citing to plaintiff’s brief and other documents within the Record (with the exception of the Social
Security Administrative Transcript/Record), the Court uses the page numbers generated by CM/ECF.
burden of proving that she cannot return to her past relevant work, either as it is
performed in the national economy, or as she actually performed.” Peryea v. Comm’r of
Soc. Sec., No. 5:13-CV-0173 (GTS/TWD), 2014 WL 4105295, at *10 (N.D.N.Y. Aug. 20,
2014) (citing 20 C.F.R. §§ 404.1520(f), 416.920(f)) (additional citation omitted). If
plaintiff satisfies his burden of proof on steps one to four, the burden shifts to the
Commissioner to prove, at step 5, that the plaintiff is still able to engage in gainful
employment somewhere. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996); Stratton v.
Colvin, 51 F. Supp. 3d 212, 216 (N.D.N.Y. 2014).
Here, the ALJ determined that plaintiff could perform light work without any
limitations. T. at 12-14. In reaching that conclusion, the ALJ gave great weight to the
opinions of Dr. Robert Pavelock and consultative examiner Dr. Tanya PerkinsMwantuali. See id. On April 19, 2011, Dr. Pavelock examined plaintiff and noted that
he was on Remicade and “doing extremely well.” Id. at 323. When Dr. Pavelock
examined plaintiff on April 23, 2013, he noted that plaintiff could stand and/or walk
without limitation. Id. at 274-76. Dr. Pavelock found no limitations on plaintiff’s ability to
sit. Id at 271. Dr. Pavelock concluded that plaintiff could occasionally lift and carry 25
pounds, and could push and pull a maximum 40 pounds. Id.
On June 10, 2013, plaintiff was seen by Dr. Perkins-Mwantuali for an internal
medicine consultative examination. T. at 273-76. Plaintiff advised Dr. PerkinsMwantuali that he could walk for four miles and stand for twenty minutes before back
pain required him to sit. Id. at 273. On examination, Dr. Perkins-Mwantuali found that
plaintiff’s “cervical spine shows full flexion, extension, lateral flexion and full rotary
movements bilaterally.” Id. at 275. He further noted that plaintiff had full range of
motion of the hips, knees, and ankles bilaterally. Id. at 275. Dr. Perkins-Mwantuali
found no objective limitations on examination. Id. at 276.
Here, the ALJ’s determination that plaintiff could perform light work without any
additional limitations is, in view of the medical records of Dr. Pavelock and Dr. PerkinsMwantuali, supported by substantial medical evidence in the record. “[T]he mere
existence of a nonexertional impairment does not automatically require the production
of a vocational expert nor preclude reliance on the guidelines.” Bapp v. Bowen, 802
F.2d 601, 603 (2d Cir. 1986). A vocational expert is only needed where a plaintiff meets
the burden at step four and shows that he or she cannot perform his or her past relevant
work. Wells v. Colvin, 87 F. Supp. 3d 421, 436-37 (W.D.N.Y. 2015). As the objective
medical evidence demonstrates that plaintiff’s work capacity was not significantly
diminished by non-exertional limitations, the testimony of a vocational expert was not
required. Vargas v. Astrue, No. 09 civ. 6606 (BSJ/DF), 2011 WL 9518014, at *14
(S.D.N.Y. Nov. 8, 2011). Accordingly, the ALJ did not err in failing to obtain the
testimony of a vocational expert.
Plaintiff contends that the ALJ erred at step two “when he failed to find multiple
ailments not only Crohn’s Disease but Osteoarthritis to be a severe impairment, and
Reflux Disease, Skin Cancer. (SSR 85-28 and 20 C.F.R. § 404.1520(c).” Dkt. No. 12 at
10. Defendant contends that the ALJ provided proper reasoning at step two for his
determination that plaintiff’s osteoarthritis is not a severe impairment. Dkt. No. 13 at 7.
Defendant did not address plaintiff’s arguments regarding reflux disease and cancer in
her brief. See generally Dkt. Nos. 12, 13. Defendant argues that any error at step two
is harmless as the ALJ continued with the sequential analysis. Dkt. No. 13 at 8.
At step two, the ALJ found that plaintiff has a severe impairment of Crohn’s
disease. T. at 11. As the Crohn’s disease causes more than minimal limitations in
plaintiff’s ability to perform basic work activities, the ALJ determined that it is a severe
impairment. Id. The ALJ specifically addressed plaintiff’s allegations of joint pain. Id.
(citing Exhs. 2E at 2, 19E at 1). The ALJ noted that at the consultative examination,
plaintiff demonstrated full range of motion of the ankles knees, hips and back. T. at 11.
The ALJ also cited to consultative examiner Dr. Perkins-Mwantuali’s report that that
plaintiff’s “joints were stable and non-tender, and he had a 5/5 strength bilaterally in the
upper and lower extremities.” Id. at 11-12. Further, on examination, plaintiff had full
range of motion in his ankles, knees, hip, and back; a normal exam of the back, hips,
knees, feet, and ankles; and plaintiff walked with a normal gait without an assistive
device. Id. The ALJ referred to the fact that plaintiff told Dr. Perkins-Mwantuali that he
could walk four miles, and that he could cook and clean daily, do laundry, maintain his
personal care, watch television, listen to the radio, read, and exercise. Id. at 13. The
record also contains an examination by Dr. Smiley, one of plaintiff’s treating physicians,
who found “no synovitis in the small joints of the hand, wrists, elbows, shoulders. In the
lower extremity there was a normal exam of the low back both hips both knees both feet
and both ankles the patient walked with a normal gait without any assistive device.” Id.
at 354. The ALJ further noted that, at the hearing, plaintiff testified that he was able to
“lift fifty pounds once and twenty-five pounds on an occasional basis.” Id. at 13.
Based on his review of the medical records, and plaintiff’s hearing testimony, the
ALJ determined that plaintiff’s joint pain or osteoarthritis is not a severe impairment
because it “does not cause more than minimal limitations in the claimant’s ability to
perform basic work activities.” T. at 12. The Court agrees with the Commissioner that
there is substantial evidence in the record, in the form of objective medical evidence
and plaintiff’s own reports, which supports the finding of the ALJ that plaintiff’s
osteoarthritis is not a severe impairment. Accordingly, the ALJ committed no error in
concluding that plaintiff’s joint pain/osteoarthritis to be nonsevere.
Plaintiff next contends that the ALJ erred in not finding his reflux disease is a severe
impairment. Dkt. No. 12. It is noteworthy that, while plaintiff raises this objection to the
decision of the ALJ, in his brief he fails to make any reference to any medical record or
hearing testimony which supports his position. 5 The Court has carefully reviewed the
transcript of the administrative hearing. See T. at 22-44. The Court has been unable to
find any testimony to support plaintiff’s claim that his reflux disease causes more than
minimal impact on his ability to perform basic work activities. Id. Plaintiff testified, after
identifying his impairments as Crohn’s disease and osteoarthritis that he did not have
any other medical condition which is significant because it affects his ability to work in a
regular, full-time basis. Id. at 32-34. Further, the Court has reviewed closely the
medical records which were received in evidence at the time of plaintiff’s hearing before
the ALJ. Id. at 245-548. A March 1, 2012 treatment record from the Mohawk Valley
Endoscopy Center notes that plaintiff should “follow an antireflux regimen indefinitely.”
Id. at 294. The Faxton-St. Luke’s Healthcare medical records from July 9, 2012 indicate
that plaintiff came in for worsening reflux. Id. at 249. A physical examination was
Defendant fails to address this issue in her memorandum of law. Dkt. No. 13.
conducted which indicated that plaintiff was in no acute distress. Id. at 251. Plaintiff
was directed to try Nexium, an over-the-counter acid reflux medication, to address his
reflux. Id. at 252. Beyond these spare medical records where plaintiff sought reflux
treatment and providers recommended conservative remedies, there is nothing in
plaintiff’s medical records, or in the transcript of the hearing testimony, which supports
plaintiff’s claim that his reflux disease constitutes a severe impairment.
Plaintiff next appears to contend that his skin cancer constitutes a severe impairment
and that the ALJ improperly failed to consider this impairment. Dkt. No. 12 at 7, 10, 19.
First, plaintiff makes merely a passing reference to skin cancer in his brief. Id. Plaintiff
alleges that the Remicade which he takes for his Crohn’s disease “can cause the
cancers that [he] has experienced.” Id. at 15. Plaintiff fails to point to anything in the
record which supports that claim. Further, although plaintiff raises this issue, he does
not point to any medical record or trial testimony which supports his position that skin
cancer causes any limitations, let alone limitations that cause more than a mild impact
on his ability to perform basic work activities. See generally Dkt. No. 12. In the
absence of such evidence plaintiff has failed to meet his burden of proving that his skin
cancer constitutes a severe impairment. 42 U.S.C. § 423(d)(5)(A).
3. Weighing Medical Testimony
a. Dr. Robert Pavelock and Dr. Tanya Perkins-Mwantuali
Plaintiff alleges that the ALJ erred in according “great weight” to the opinions of
treating gastroenterologist Dr. Robert Pavelock, and consultative examiner Dr. Tanya
Perkins-Mwantuali. Dkt. No. 12 at 15-16. Plaintiff contends that Dr. Pavelock’s
opinions are incomplete as he refused to complete the proper disability forms. Id. at 15.
Plaintiff further contends that should also have given less weight to Dr. Pavelock’s
opinion as he “was avoiding the fact he kept the claimant on the Crohn’s medication
Remicade infusions for eleven years when that in fact is to [sic] long of a time period,
adding that the claimant had allergies to this medication and being on this medication
can cause the cancers the claimant has experienced.” Id. at 15. In addition, plaintiff
argues that Dr. Pavelock’s treatment of plaintiff, as well as Dr. Perkins-Mwantuali’s
consultative examination occurred over year prior to the hearing before the ALJ. Id. As
such, plaintiff contends those sources should not be considered in addressing the
plaintiff’s RFC, and that the ALJ as required to re-contact Dr. Pavelock to obtain an
Although an “‘ALJ cannot arbitrarily substitute his own judgment for competent
medical opinion’ he remains ‘free to choose between properly submitted medical
opinions’ and to rely on those opinions in reaching his disability determination.” Kessler
v. Colvin, 48 F. Supp. 3d 578, 597 (S.D.N.Y. 2014) (internal citation omitted). Although
a treating physician's opinion is not binding on the Commissioner, the opinion must be
given controlling weight when it is well supported by medical findings and not
inconsistent with other substantial evidence in the record. Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002); 20 C.F.R. § 416.927(d). Where the treating physician's opinion
is contradicted by other substantial evidence, the ALJ is not required to give the opinion
controlling weight. Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004). The ALJ
must, however, properly analyze the reasons that the report is rejected. Id. An ALJ
may not arbitrarily substitute his or her own judgment for competent medical opinion.
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). As the Second Circuit set forth,
[w]hen controlling weight is not given to a treating
physician's assessment, the ALJ must consider the
following factors to determine the weight to give the
opinion: (1) the length of treatment relationship and
frequency of examination; (2) the nature and extent
of the treatment relationship; (3) the evidence in
support of the opinion; (4) the opinion's consistency
with the record as a whole; (5) whether the opinion
is that of a specialist; and (6) any other relevant
Monroe v. Comm'r of Soc. Sec., No. 16-1042-CV, __ F. App’x __, 2017 WL 213363, at
*2 (2d Cir. Jan. 18, 2017) (summary order) (citing 20 C.F.R. § 404.1527(c));
McBrayer v. Sec. Health & Human Servs., 712 F.2d 795, 799 (2d Cir. 1983) (additional
Here, the ALJ gave great weight to the opinions of Dr. Pavelock, plaintiff’s
treating physician. T. at 12-14. The ALJ found Dr. Pavelock’s opinions regarding
plaintiff’s limitations to be “consistent with treatment notes” and diagnostic testing. Id.
at 12-13. In his decision, the ALJ specifically noted that in April 2013, Dr. Pavelock
found that plaintiff can “occasionally lift/carry twenty-five pounds; stand/walk without
limitation; and push/pull up to forty pounds.” Id. at 13. He further opined that plaintiff
did not have any other limitations or conditions which were significant to his recovery.
Dr. Pavelock’s findings are consistent with those of the consultative examiner
Dr.Perkins-Mwantuali. An ALJ is entitled to rely upon the opinions of an examining
state agency medical consultant as “such consultants are deemed to be qualified
experts in the field of social security disability.” House v. Comm’r of Soc. Sec., 32 F.
Supp. 3d 138,151-52 (N.D.N.Y. 2012). Based on her June 10, 2013 examination of
plaintiff, Dr. Perkins-Mwantuali noted that plaintiff cooks, cleans, and does laundry
seven times a week. T. at 274. He showers daily and is able to dress himself. Id. He
regularly reads and exercises. Id. Dr. Perkins-Mwantuali found that plaintiff’s gait was
normal and he walked without an assistive device. Id. He was able to get on and off
the examination table without assistance. Id. On examination, Dr. Perkins-Mwantuali
found that plaintiff’s “cervical spine shows full flexion, extension, lateral flexion and full
rotary movements bilaterally.” Id. at 275. Plaintiff had full range of motion in the
shoulders, elbows, forearms, wrists, fingers, hips, knees and ankles bilaterally. Id. Dr.
Perkins-Mwantuali found that plaintiff’s Crohn’s disease is controlled by medication. Id.
at 276. Dr. Perkins-Mwantuali noted “no objective limitations found on exam.” Id.
The ALJ’s decision to give great weight to the opinions of Dr. Pavelock and Dr.
Perkins-Mwantuali is supported by substantial medical evidence in the record. Each of
the doctors’ opinions is based upon their observations and diagnostic testing which is
contained in the medical record. It is the responsibility of the ALJ to assess the
credibility of witnesses and to determine what weight to give to their testimony.
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). Here, the ALJ assessed all of the
medical testimony and properly weighed that evidence in deciding to give great weight
to the opinions of Dr. Pavelock and Dr. Perkins-Mwantuali.
Insofar as plaintiff argues that the ALJ should not have considered Dr. Pavelock’s
opinion because it was from over a year ago, and then, contradictorily suggests that the
ALJ as required to contact Dr. Pavelock to obtain a “complete opinion about the
claimant’s RFC,” an ALJ is only required to re-contact a medical source when there is a
gap in the medical record. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999).
Plaintiff offers no argument, nor any supporting evidence, that his conditions have
substantially changed beyond the medical opinions and treatment notes contained
within the record. Thus, there is no evidence of an “obvious gap” in the medical record
that would preclude an informed decision. Id.
Finally, plaintiff’s opinion as to whether it was proper to continue him on
Remicade for a substantial period of time despite apparent significant medical risks is
little more than disagreement with Dr. Pavelock’s treatment recommendations, which is
not a relevant consideration in determining the weight to accord to a physician’s opinion.
See 20 C.F.R. § 404.1527(c).
b. Deanna Brady, MS, FNP-C
Plaintiff contends that the ALJ did not give proper weight to the opinion of Deanna
Brady, MS, FNP-C. Dkt. No. 12 at 12. The ALJ gave “little weight” to the opinion of Ms.
Brady. T. at 14.
Ms. Brady completed a medical source statement on May 2, 2014. T. at 370-72.
She opined that plaintiff has limitations due to pain from his Crohn’s disease and
arthritis. Id. at 372. Ms. Brady found that plaintiff can sit for thirty minutes at one time
and stand for forty-five minutes at one time. Id. at 370. She provided that plaintiff would
be required to be employed in position which would allow him to sit, stand, or walk at
any time. Id. Ms. Brady concluded that plaintiff would be able to occasionally lift less
than 10 pounds and rarely lift 10 pounds. Id. at 371. He would never be able to lift
more than 20 pounds. Id. Plaintiff would rarely be able to stoop, climb ladders or climb
stairs. Id. He would never be able to crouch or squat. Id.
As a result of these impairments, Ms. Brady concluded that plaintiff is going to
experience “good days” and “bad days.” T. at 372. She opined that plaintiff symptoms
are severe enough that they will constantly interfere with the attention and concentration
required to perform even simple work tasks. Id. Ms. Brady concluded that plaintiff
would miss approximate four days of work every month as a result of his impairments
and necessary medical treatment. Id. Ms. Brady found plaintiff’s prognosis to be
“guarded.” Id. at 370.
The ALJ determined that Ms. Brady’s conclusions were unsupported by plaintiff’s
medical records. T. at 14. He determined that her conclusion that plaintiff’s arthritis is a
severe impairment is based on a misreading of plaintiff’s treatment notes. Id. While
Ms. Brady cited issues with plaintiffs Crohn’s disease, and the resultant pain, the ALJ
found the Crohn’s disease was controlled by medication and noted the plaintiff did not
claim any limitations in his ability to sit, stand and walk. Id. The ALJ found that plaintiff
was able to maintain an extensive list of daily activities which are in direct contrast to
the limitations found by Ms. Brady. Id. The ALJ specifically referenced a May 7, 2014
medical record from Dr. Alan Smiley which indicates in the history section that that
plaintiff “could do all of his activities of daily living.” T. at 288.
First, the Court notes that while Brady is not an “acceptable medical source” under
the regulations, her opinion must be evaluated. Colon v. Astrue, No.11-CV-210A, WL
2245457, at *10 (W.D.N.Y. May 21, 2013). In his decision, the ALJ properly considered
Brady’s opinion along with plaintiff’s medical records. T. at 14. The ALJ observed that
Ms. Brady acts as plaintiff’s “primary care provider” but noted that she “does not have
the professional expertise and specialization of Dr. Pavelock.” Id. The ALJ noted that
Ms. Brady’s opinions are inconsistent with the medical evidence and with the opinions
of Dr. Pavelock and Dr. Perkins-Mwantuali and that she does not have the “professional
expertise and specialization of Dr. Pavelock.” Id.
Where the opinion of an unacceptable medical source conflicts with, or is
unsupported by, objective medical evidence, an ALJ may properly decline to accord it
weight. See generally Genier v. Astrue, 298 F. App’x 105, 108 (2d Cir. 2008). Here,
the Court finds that the ALJ provided the required reasoning for giving Ms. Brady’s
opinion little weight. The ALJ explained his assessment of the weight provided to Ms.
Brady’s opinion in great detail. T. at 14. He provided a detailed review of Ms. Brady’s
opinion and concluded that the medical opinions and objective medical evidence of
record did not support the substantial limitations suggested by Ms. Brady. Id. The ALJ
observed that plaintiff’s treatment notes did not support Ms. Brady’s limitations. Id. The
ALJ referred to the fact that plaintiff reported no limitations in his abilities to sit, stand, or
walk, and has been able to maintain “an extensive list of daily activities that is in direct
contrast to nurse practitioner Brady’s limitations.” Id. The ALJ observed that “one of
the more recent reports in the record” explicitly stated that plaintiff could “do all his
activities of daily living.” Id.
The Court agrees that substantial evidence contradicts Ms. Brady’s findings of
significant limitations. Plaintiff himself testified being capable of greater abilities than
those opined by Ms. Brady – he stated that he could lift fifty pounds at one time if he
“really, really tried,” and twenty pounds occasionally. T. at 13, 40. He reported that he
is able to clean; cook himself meals; take care of his personal care; interact with family,
friends, and neighbors; walk a quarter to a half of a mile; and does not use any assistive
devices. Id. at 29, 37, 38. Further, he lost his job not due to his disability, but because
he was terminated. Id. at 32. Although he can drive, he does not because he cannot
afford auto insurance. Id. at 36-37. Moreover, despite the fact that Ms. Brady provided
primary care to plaintiff, the ALJ did not commit err by failing to give her opinion less
weight because she is not an acceptable medical source. See Genier v. Astrue, 298 F.
App’x 105, 108 (2d Cir. 2008).
Accordingly, the Court finds that the ALJ did not commit error and according little
weight to Ms. Brady’s findings based on the record before him as a significant
limitations which she opined were not supported by substantial evidence in the record.
5. Function-by-Function Analysis
Plaintiff argues that the ALJ erred in failing to perform a function-by-function analysis
of his abilities and limitations. Dkt. No. 12 at 16-17. Defendant contends that given the
detailed analysis of plaintiff’s functional limitations and restrictions, which is supported
by substantial evidence, and the application of proper legal standards, a function-byfunction analysis is unnecessary. Dkt. No. 13 at 10. The Court agrees with the
Pursuant to the Social Security Regulations, an ALJ's
assessment of the claimant's RFC must include a functionby-function analysis of the claimant's functional limitations or
restrictions and an assessment of the claimant's workrelated abilities on a function-by-function basis. With regard
to physical limitations, this means the ALJ must make a
function by function assessment of the claimant's ability to
sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, or
Walters v. Astrue, No. 11-CV-640 (VEB), 2013 WL 598331, at *3 (N.D.N.Y. Feb. 15,
2013) (citations omitted).
However, remand is not required simply because the ALJ failed to conduct a
function-by-function analysis. Holste v.Colvin, No. 15-CV-582 (FPG), 2016 WL
3945814, at *4 (W.D.N.Y. July 19, 2016). This Court has previously concluded that an
“ALJ's failure to provide a function-by-function analysis might constitute harmless error,
provided that the absence of the analysis did not frustrate meaningful review of the
ALJ's overall RFC assessment.” Goodale v. Astrue, 32 F. Supp. 3d 345, 357 (N.D.N.Y.
2012); see also Warthan v. Comm’r of Soc. Sec., No. 16-CV-36 (GTS), 2017 WL 79975,
at *11 (N.D.N.Y. Jan. 9, 2017).
The ALJ’s determination “affords an adequate basis for meaningful judicial
review, applies the proper legal standards, it is supported by substantial evidence such
that additional analysis would be unnecessary or superfluous.” Cichocki v. Astrue, 729
F.3d 172, 177 (2d. Cir. 2013). Thus, although a function-by-function analysis would
have been preferable, given the detailed decision of the ALJ, the Court finds that the
ALJ’s failure to conduct a function-by-function analysis does not warrant remand.
Plaintiff contends that the ALJ erred in assessing his credibility by failing to consider
his good work history. Dkt. No. 12 at 15. The Court would note that, contrary to
plaintiff’s argument, the ALJ specifically addressed plaintiff’s good work history in his
decision. T. at 19. The decision clearly states that the ALJ noted that “claimant worked
as a supervisor, electronics production (DOT #726.130-010) from February 1994 until
April 2012. This includes 13 years of work at the substantial gainful activity level.” T. at
14. The ALJ’s explicit reference to plaintiff’s 13 years of employment at the same
location reflects his recognition of plaintiff’s good work history. Id.
Although it appears true that plaintiff had a good work history, and “a good work
history may be deemed probative of credibility,’ it remains ‘just one of many factors’
appropriate considered in assessing credibility.’” Campbell v. Astrue, 465 F. App’x 4, 7
(2d Cir. 2012) (quoting Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998)). Thus, a
claimant’s good work history is not, alone, sufficient to accord substantial credibility to a
claimant. Therefore, an ALJ’s decision not to exclusively rely on a claimant’s good work
history is not reversible error. Campbell, 465 F. App’x at 7 (citing Wavercak v. Astrue,
420 F. App’x 91, 94 (2d Cir. 2011)).
Accordingly, the ALJ did not commit legal error as he properly considered the
plaintiffs good work history, and his decision not to rely solely on plaintiff’s good work
history in assessing his credibility does not amount to reversible error.
Having reviewed the administrative transcript and the ALJ’s findings, for the reasons
stated herein, the Court concludes that the Commissioner’s determination is supported
by substantial evidence.
WHEREFORE, for the reasons stated above, it is hereby
ORDERED, that the Commissioner’s motion for judgment on the pleadings (Dkt.
No. 13) be GRANTED, and it is further
ORDERED, that plaintiff’s motion for judgment on the pleadings (Dkt. No. 12) be
DENIED, and it is
ORDERED, that copies of this Decision and Order be served on the parties.
IT IS SO ORDERED.
Dated: March 28, 2017
Albany, New York
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