Grogan v. Commissioner of Social Security

Filing 14

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 (Attachments: # 1 Unpublished case law) (Copy served upon the pro se plaintiff via regular and certified mail) (jmb)

Colon v. Astrue, Not Reported in F.Supp.2d (2013)

2013 WL 2245457
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Deevine J. COLON, Plaintiff,
v.
Michael J. ASTRUE, Commissioner
of Social Security, Defendant.
No. 11–CV–210A.
|
May 21, 2013.
Attorneys and Law Firms
Lewis L. Schwartz, Myers Quinn & Schwartz LLP,
Buffalo, NY, for Plaintiff.
Jane B. Wolfe, U.S. Attorney's Office, Buffalo, NY, for
Defendant.

The case is referred back to Magistrate Judge McCarthy
for further proceedings.
SO ORDERED.

REPORT AND RECOMMENDATION
JEREMIAH J. McCARTHY, United States Magistrate
Judge.
INTRODUCTION
This case was referred to me by Hon. Richard J. Arcara
to hear and report in accordance with 28 U.S.C. § 636(b)
(1) [9]. 1 Before me are the parties' cross-motions for
judgment on the pleadings pursuant to Fed.R.Civ.P.
(“Rule”) 12(c) [15][16]. For the following reasons, I
recommend that defendant's motion for judgment on the
pleadings [16] be denied and that plaintiff's motion [15] be
granted in part and denied in part.

ORDER
RICHARD J. ARCARA, District Judge.

BACKGROUND
Plaintiff (d.o.b.8/29/89) received disability benefits as a

*1 The above-referenced case was referred to Magistrate
Judge Jeremiah J. McCarthy, pursuant to 28 U.S.C.
§ 636(b)(1)(B). On April 23, 2013, Magistrate Judge
McCarthy filed a Report and Recommendation,
recommending that defendant's motion for judgment on
the pleadings be denied and that plaintiff's motion for
judgment on the pleadings be granted in part and denied
in part.

minor (T13). 2 He filed an application for continuation of
his entitlement to child's insurance benefits as a disabled
adult child on October 27, 2006 (id). When this claim was
denied (T13, 67–70), he also filed a new application for
Supplemental Security Income benefits (“SSI”) (T13, 89).

The Court has carefully reviewed the Report and
Recommendation, the record in this case, and the
pleadings and materials submitted by the parties, and no
objections having been timely filed, it is hereby

at the hearing by Deborah A. Olszowka, Esq. (T13). 3 On
February 20, 2009, ALJ Straub issued a decision denying
plaintiff's claim (T20). ALJ Straub's determination
became the final decision of the Commissioner when the
Appeals Council denied plaintiff's request for review (T1–

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and
for the reasons set forth in Magistrate Judge McCarthy's
Report and Recommendation, defendant's motion for
judgment on the pleadings is denied and plaintiff's motion
for judgment on the pleadings is granted in part and
denied in part.

On January 27, 2009, a hearing on both claims was held
before Administrative Law Judge William E. Straub on
January 27, 2009 (T13, 22–55). Plaintiff was represented

3). 4

A. THE ADMINISTRATIVE RECORD
1. Medical Evidence
a. Treatment History

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i. Barbara Stouter, M.D.
Dr. Stouter, of the Amherst University Health Center,
treated plaintiff from November 12, 2003 to February
15, 2008 (T141–157, 269–288). In her January 16,
2006 progress notes, Dr. Stouter stated that plaintiff
had “[c]hronic flat feet causing chronic low-grade back
and leg pain” (T146). On November 16, 2006, Dr.
Stouter noted that plaintiff suffered from “depression/
anxiety, [gastroesophageal reflux disease (“GERD”) ] and
medically treated, asthma under good control. Learning
disabled with some unrealistic expectations for his future'
” (T143). Dr. Stouter prescribed Prozac for plaintiff's
depression and anxiety, but noted on December 7, 2006,
that his “[a]nxiety and depression [had not improved] with
low-dose Prozac. Continued weight loss which is very
concerning. Abrasion on his hand secondary to punching
a punching bag” (T282). Dr. Stouter also noted plaintiff's
GERD was “improving with Prevacid” (id.).
*2 On May 23, 2007, Dr. Stouter noted that plaintiff had
stopped taking Prozac and Prevacid (T277). At that time,
plaintiff was “not feeling sad or depressed or suicidal. His
stomach is a lot better today” (id.). Dr. Stouter noted
that plaintiff's asthma is a “little bit worse right now”,
and that he continues to have chronic problems with
his back, knees and legs (id.). Dr. Stouter noted that
“[c]urrently he reads at about a second or third grade
level” (id.). Her February 15, 2008 progress notes indicate
that plaintiff's chronic problems were “Anxiety State Nos,
Depressive Disorder Nec”. “Esophageal Reflux”, and
“unspec asthma w/ acute exacerba” (T269).

ii. Sheila Figliotti, LCSW–R
Ms. Figliotti, a family counselor, provided family
counseling to plaintiff regarding his separation from his
father and his father's death (T159, 297). She counseled
plaintiff from 2002 through January 2008 (T159, 297).
During “the first couple of years ... [plaintiff] had
significant delay in the areas of understanding and
expressing language”, but “he has demonstrated growth
in these areas since high school” (T159).

b. Consultative Examinations
i. Dr. Samuel Balderman, M.D.
Dr. Balderman performed a consultative pediatric
examination of plaintiff on December 18, 2006 (T160–

169). 5 Dr. Balderman noted that plaintiff had a history
of “[d]epression, learning disabilities, and asthma”, has
been treated by a mental health specialist once every two
weeks, and had been in therapy for depression for six years
(T160).
Dr. Balderman reported that plaintiff “relates to the
examiner ... in an age-appropriate way. The child
appeared to have normal attention span for age” (T161).
Dr. Balderman diagnosed plaintiff with depression,
asthma, learning disabilities, and fetal maternal drug
exposure (T163). Dr. Balderman suggested that plaintiff
“avoid environments which trigger active airway disease”,
but noted that “plaintiff has no other physical
limitations” (id ). He also indicated that plaintiff was
“still being treated for depression”, and that his “learning
disabilities appear to be significant” (id ).

ii. Dr. Renee Baskin, Ph.D.
Dr. Baskin completed both a “Child/Adolescent
Psychiatric Evaluation” and a “Child/Adolescent
Intelligence Evaluation” of plaintiff on December 18, 2006
(T170–177). Dr. Baskin reported that plaintiff's attention,
concentration, and his recent and remote memory were
“intact and ageappropriate” (T172). Dr. Baskin estimated
plaintiff's cognitive intellectual functioning “to be in the
below average to borderline range” (id ). She concluded
that his “cognitive difficulties do not preclude his ability
to function in an academic setting” (T176).
Dr. Baskin diagnosed plaintiff with “Learning disorder,
NOS”, “Depressive disorder, NOS”, “Anxiety disorder,
NOS”, “Borderline intellectual functioning”, “asthma”,
“Bone, muscle or joint problem (knees). History of
frequent and severe ear infections. Complaints of leg, knee
and stomach pain' ” (T177).
*3 According to Dr. Baskin, plaintiff “would be
able to attend to, follow and understand ageappropriate directions, complete age-appropriate tasks,
adequately maintain appropriate social behavior, respond
appropriately to changes in the environment, learn in
accordance to cognitive functioning, ask questions and
request assistance in an age-appropriate manner, be aware
of danger and take needed precautions and interact
adequately with peers and adults on a consistent basis”
(Tl 72). Dr. Baskin concluded that, “[t]he results of the
evaluation appear to be consistent with psychiatric and

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Colon v. Astrue, Not Reported in F.Supp.2d (2013)

cognitive problems but, in itself, this does not appear to
be significant enough to interfere with plaintiff's ability to
function on a daily basis” (T176–177).

c. State Agency Review
i. Psychiatric Review and Mental Residual Functional
Capacity
M.S. Rahman, M.D., a state agency reviewing physician,
completed a Psychiatric Review Technique (T230–243)
and a Mental Residual Functional Capacity Assessment
of plaintiff on March 15, 2007 (T244–247). Dr. Rahman
found plaintiff to be “mildly limited” in “restriction of
activities of daily living' ”, had “difficulties in maintaining
social functioning”, and was “moderately limited” “in
maintaining concentration, persistence or pace” (T240).
Dr. Rahman noted that plaintiff did not experience
repeated episodes of deterioration, each of extended
duration (id.).
Dr. Rahman concluded that, “[a]s per psych CE on
12/18/06, his MSE are fairly intact. As per special ed.
teachers [sic ] report on 2/2/07, [plaintiff] has very little
difficulties when the task is easy but when the task is
slightly challenging he attempts to avoid the tasks, he
functions at a much higher rate of independence in the
area of math and struggles in all other academic areas
due to low reading ability. Based on the available MER,
plaintiff appears able to understand and follow simple
directions and perform simple rote tasks in low contact
and low demand settings” (T246).

ii. Physical Residual Functional Capacity
C. deFreitas 6 , a state agency disability analyst, completed
a physical residual functional capacity assessment on
March 16. 2007 (T248–253). Plaintiff's primary diagnosis
was asthma, with a secondary diagnosis of “LD”
and fetal maternal drug exposure (T248). No postural,
manipulative, visual limitations, or communicative
limitations were noted (T249–251).
Plaintiff had the residual functional capacity (“RFC”) to
occasionally lift and/or carry 20 pounds, frequently lift
and/or carry 10 pounds, stand and/or walk (with normal
breaks) for a total of 6 hours in an 8–hour workday,
and sit (with normal breaks) for a total of 6 hours in
an 8–hour workday (T249). It was noted that plaintiff
had a “NORMAL MUSCULOSKELETAL EXAM. NO

CYANOSIS NOR RESP. DISTRESS LUNGS CLEAR
TO AUSCULTATION” (T249).
Due to plaintiffs asthma, it was noted that plaintiff
should avoid concentrated exposure to extreme cold,
extreme heat, wetness, humidity, fumes, odors, dusts,
gases, and poor ventilation. (T251). However, plaintiff
had no limitations regarding noise, vibration, or hazards
(id.). The assessment noted that, “CLMT DID NOT
GIVE ANY SPECIFIC PHYSICAL FUNCTIONAL
LIMITATION” (id.).

2. Educational Records and Testing
a. School Psychologist Jennifer Topolski
*4 Jennifer Topolski 7 of the Niagara Falls City School
District completed an evaluation dated March 3, 2000,
stating that, “[plaintiff] is a ten-year-old fifth grade
student who is currently identified as educationally
handicapped due to a learning disability” (T224). Ms.
Topolski's concluded that plaintiff

“continues to struggle academically ... since his
last evaluation his behavior has improved but
he still has a difficult time sustaining attention.
On the current evaluation, [plaintiff] displayed
borderline to below average ability. He displayed
his intelligence equally through verbal expression
and comprehension and through the manipulation
of concrete nonverbal stimuli. Based on his ability
and scores obtained on the last standardized
achievement test administered [plaintiff] continues
to work significantly below expectancy. [Plaintiff's]
classification appears appropriate. In addition,
[plaintiff] seems to continue to need a small and
structured environment to meet his educational
needs” (T226).
b. Woodcock–McGrew–Werder Mini–Battery of
Achievement
Plaintiff was administered the Woodcock–McGrew–
Werder Mini–Battery of Achievement on January 13,
2006 (Tl 98). Plaintiff's performance on Basic Skills was
noted as “comparable to that of the average individual at
grade 3.7 from the normative sample”, which is “within
the very low range of scores obtained by others at his grade
level” (Tl 98–199). Plaintiff's performance on reading was
noted as “comparable to that of the average individual at

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grade 2.7 from the normative sample”, which is “within
the very low range of scores obtained by others at his
grade level” (id.). Plaintiff's performance on writing was
noted as “comparable to that of the average individual at
grade 2.9 from the normative sample”, which is “within
the very low range of scores obtained by others in his grade
level” (id.). Plaintiff's performance on mathematics was
noted as “comparable to that of the average individual at
grade 6.7 from the normative sample”, which is “within
the low average range of scores obtained by others at his
grade level” (id.).

c. Individualized Education Program Records, Niagara
Falls High School
Plaintiff's January 2, 2007 through January 2, 2008
Individualized Education Program (“IEP”) notes state
that he “has a significant delay in reading comprehension,
math concepts, written expression, which adversely affects
academic performance” (T202), Among his need areas
were to be able to follow oral and written directions (id.).

d. Teacher Questionnaire, Ms. Jones 8
On February 2, 2007, Ms. Jones, a special education
teacher, completed a teacher questionnaire regarding
plaintiff (T178–185). Ms. Jones noted that while plaintiff
was in 12th grade, his current instructional levels were 3rd
grade for reading and written language, and 7th grade for
math (T178). She noted that he “struggles” in all academic
areas other than math “due to his low reading ability”, and
that when a “task is slightly ‘challenging’ he attempts to
avoid tasks” (T179, 180).

e. Certified School Psychologist, Michael Lewis, Ph. D.
*5 On April 16, 2007 plaintiff was seen by Dr. Lewis, who
noted that “[p]revious evaluations indicate low average
cognitive ability with significant deficits in academic
achievement and adaptive behavior. [Plaintiff's] overall
cognitive ability was measured to be in the range of below
average to low average” (T255). Dr. Lewis noted plaintiff
as having “weak academic skills when compared to the
average student his age” ranging “from 5 grade levels
below to 10 grade levels below expectations” (id.).

f. Niagara County Community College (“N.C.C.C.”),
Unofficial Transcript

Plaintiff's unofficial transcript, dated January 14, 2008,
shows a 0.00 GPA for the semester (T292).

3. Vocational Evidence
a. Winship & Associates, Diagnostic Vocational
Evaluation
Plaintiff was referred by Davina Moss–King, Ph.D., from
Vocational and Educational Services for Individuals with
Disabilities (“VESID”) to Winship & Associates for a
Diagnostic Vocational Evaluation on August 18, 2008
(T257–260). Tests measured plaintiff's reading score at the
2.0 grade equivalent (T258).
Rhannon Yuscinsky, M.S. C.R.C., and Lisa Cooper,
MS, CRC, noted that “[w]hen plaintiff initially presented
for his evaluation, he stated an interest in RN, physical
therapy, medical assistant and ambulance driver”, but
that in their opinion “further training would not be an
appropriate direction for [plaintiff]” (T260). Instead, they
recommended
“that [plaintiff] continue in researching his vocational
options. It would appear that a low stressful occupation
that provides a structured environment that utilizes
limited reading and math skills would be best. [Plaintiff]
has shown some interest in the areas of Food Service,
Animal Care and Personal Service. I would recommend
that [plaintiff] go back into his interest test results to
explore the options within those areas. Also, he could
again explore his options within the medical field, but
again, I would encourage him to be realistic as to what
his abilities are to ensure that he chooses a vocational
direction that not only matches with his interests but
that he has the potential to be successful at” (id.).
In a September 18, 2008 addendum, it was noted that
plaintiff wanted to become an ambulance driver, but that
“it became evident that he was naive in regards to the job
duties required of an ambulance driver” (T261). Plaintiff
also discussed other driving positions, such as wheelchair
van driver, stating that he would be having a driver
evaluation in October 2008, and it was noted that this
should provide a “clearer picture” of plaintiff's ability to
work in this capacity (T261).
At this time, plaintiff was employed part-time
as a “security/maintenance worker” with Parkway

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Apartments.
plaintiff,

Counselor

Yuscinsky

concluded

that

“needs to focus on obtaining or maintaining
employment that is within his abilities and offers him
the greatest chance for success. [Plaintiff's] ideas about
returning to college or working for an ambulance
company would likely be setting him up for failure.
It is my opinion that [plaintiff] may be able to work
in the capacity of a driver given that it is structured
and low stress. Besides wheelchair van driver, another
option that [plaintiff] could explore would be shuttle
driver or courier. As stated previously, another option
for [plaintiff] would be to participate in training to earn
his New York State security guard's license to assist him
in feeling more comfortable at his present job” (T262).

b. Davina Moss–King, Ph.D.
*6 On December 23, 2008, Dr. Moss–King completed
a “Medical Assessment of Ability to Do Work–Related
Activities (Mental)” for plaintiff (T290–291) 9 . Dr. Moss–
King rated plaintiff as “good” in his abilities to relate
to coworkers, deal with the public, maintain personal
appearance, behave in an emotionally stable manner,
and demonstrate reliability; plaintiff was rated as “fair”
in his abilities to follow work rules, use judgment,
interact with supervisors, deal with work stresses, function
independently, and relate predictably in social situations;
and plaintiff was rated as “poor or none” in his abilities to
maintain concentration, understand, remember, and carry
out complex job instructions, and understand, remember,
and carry out detailed, but not complex instructions
(T290–291).
Plaintiff's “academic evaluations indicate there are
severe deficits in the area of math, reading which will
interfere w/ his ability to complete a task successfully
in the area of employment.... [Plaintiff] does not handle
stressful situations well and would not be successful
in social situations that are not predictable w/ some
uncertainty” (T290–291). Ms. Moss–King concluded that
“[t]he evaluation results illustrate that [plaintiff] lacks
the skill level & comprehension to successfully train on”
(T291).
According to Dr. Moss–King's January 9, 2009 letter,
plaintiff was attending remedial courses at N.C.C.C.
during the Spring 2009 semester (T289). Dr. Moss–
King also wrote that plaintiff is “currently reading at

a second grade level and will need to receive remedial
assistance to be successful at employment or pursuing
education endeavors”, also noting that he “resigned
from his maintenance position because his health was
compromised” (id.).

c. Driver Evaluation Summary Report, Walter Arbutina
VESID referred plaintiff for a driver evaluation on
November 7, 2008, which concluded that he “appears to
possess the potential to learn to become a safe, defensive
driver. As a first time driver, [plaintiff] would benefit from
proper individualized driver-training services” (T295).

4. Administrative Hearing Conducted On February 20,
2009
a. Mariam Lopez's Testimony
Ms. Lopez, plaintiff's mother, testified that her son had
been living with her all of his life (T28). Plaintiff was on
SSI when he was a child because he was deaf in his left ear,
was a chronic asthmatic, and had behavioral and learning
issues that required speech, occupational, and physical
therapy (T32). She testified that VESID has been involved
with plaintiff since high school and meets with him every
two weeks (T37–38). According to Ms. Lopez, plaintiff is
currently at a “[f]irst grade, second grade level” in terms
of his math and reading (T38–39).
Ms. Lopez testified that plaintiff had stopped working
as a maintenance worker at Parkway Towers after a few
months because “[h]e kept on coughing a lot, getting
asthma. getting sick” (T29), and attributed plaintiff's
illness to the chemicals they were using and to him being
outdoors (id.).
*7 Ms. Lopez testified that plaintiff is a chronic
asthmatic on medication, but that he had been doing okay
when he was in school (T29–30). She stated that plaintiff
has arthritis in his feet, complains about back pains, and
that his feet hurt when he stands or walks too much (T30).
According to Ms. Lopez, plaintiff is depressed and locks
himself in his room most of the time (T31). She testified
that this depression became apparent to her when plaintiff
failed his first semester at N.C.C.C, and when he was told
that he could not be a pediatrician in high school (T31).
Ms. Lopez testified that she has to constantly repeat
herself, tell plaintiff to focus, and remind him of things

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Colon v. Astrue, Not Reported in F.Supp.2d (2013)

or he will forget (T33). She stated that plaintiff assists by
doing dishes, taking out the garbage, and by attempting
to cook and clean (T33). Ms. Lopez testified that plaintiff
does not do a good job, “but he tries” (T34). For example,
Ms. Lopez explained that she sends plaintiff to the grocery
store and gives him a list verbally, but pretty much every
time he has to call and get the list item-by-item because
he forgets. Ms. Lopez also stated that he sometimes loses
grocery money (T35). Ms. Lopez also shops with plaintiff
for his clothing and drives him to school because he does
not have a driver's license (T35, 40). Ms. Lopez stated that
plaintiff recently took the road test and failed (T36–37).
Plaintiff likes to play video games with his friends, hang
out at his house, and occasionally goes to the movies (T39–
41).

b. Plaintiffs Testimony
Plaintiff testified that when he was working for Parkway
Towers he was exposed to chemicals from mopping and
being outside when it was cold, which made him cough
(T43), and quit this job to avoid becoming really ill (id.).
He testified that he has not looked for work since leaving
this job (T43, 44), and that VESID has not made any
suggestions to him about jobs that he might be able to
perform (T43–44).
Plaintiff testified that he took five classes during his
semester at N.C.C.C., but failed every class and earned
no credits (T48–49). He testified that he wanted to be an
ambulance driver, but was unable to write a report, and
that he could not be a security guard because he did not
have an eighth or ninth grade writing and reading level
(T49).
Plaintiff testified that he thought he would be too nervous
to take public transportation by himself, and that he has
never tried to do so (T45). He testified that he was trying
to see if he could get his drivers license with the help of
additional lessons (T50), but stated that he was having
a difficult time focusing while driving, and that it was
confusing for him (id.). He testified that driving makes
him “a little scared”, and that he sometimes forgets to do
things like look in mirrors (T50–51).
Plaintiff testified that he has difficulty focusing in his daily
life. For example, he has a difficult time reading a book on
his own (T51). Plaintiff testified that his difficulty focusing
has resulted in complaints about his job performance (id.).

He testified that he forgets to do things that his boss told
him to do (id ). 10

5. ALJ Straub's Decision
*8 ALJ Straub found that plaintiff had not engaged in
substantial gainful activity since August 28, 2007, due to
the fact that plaintiff resigned from his only job after a few
months, and this work activity did not rise to the level of
substantial gainful activity (T15–16).
ALJ Straub found that since August 28, 2007, plaintiff has
had the following severe impairments: learning disability
and asthma (T16). However, since August 28, 2007,
plaintiff has not had an impairment or combination of
impairments that meets or medically equals one of the
listed impairments in 20 C.F.R. Part 404, Subpart P.
Appendix I (T16–17).
ALJ Straub found plaintiff has the RFC “to perform
a full range of work at all exertional levels but with
the nonexertional limitations: he cannot work in poorly
ventilated areas or areas where he would be exposed
to dust, fumes, humidity, dampness, or temperature
extremes; and he can work only in a job involving simple
directions and simple rote tasks in a low contact and low
demand setting” (T18).
ALJ Straub concluded that considering plaintiff's age,
education, work experience, and RFC, plaintiff is able
to perform jobs that exist in significant numbers in the
national economy (T20). ALJ Straub found that plaintiff's
nonexertional limitations have “little or no effect on the
occupational base of unskilled work at all exertional
levels” and that “a finding of ‘not disabled’ was therefore
appropriate under the framework of section 204.00 in the
Medical Vocational Guidelines” (id.).

ANALYSIS
A. Scope Of Judicial Review
The Social Security Act states that, upon review of
the Commissioner's decision by the district court, “[t]he
findings of the Commissioner ... as to any fact, if
supported by substantial evidence, shall be conclusive ...”
42 U.S.C. § 405(g). Substantial evidence is that which a
“reasonable mind might accept as adequate to support a
conclusion”. Consolidated Edison Co. of New York. Inc.

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Colon v. Astrue, Not Reported in F.Supp.2d (2013)

v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126
(1938).

or her mental or physical ability to do basic work
activities.

Under this standard, the scope of judicial review of
the Commissioner's decision is limited. This Court may
not try the case de novo, nor substitute its findings for
those of the Commissioner. Townley v. Heckler, 748
F.2d 109, 112 (2d Cir.1984). Rather, the Commissioner's
decision is only set aside when it is based on legal
error or is not supported by substantial evidence in the
record as a whole. Balsamo v. Chater, 142 F.3d 75, 79
(2d Cir.1998). If supported by substantial evidence, the
Commissioner's finding must be sustained “even where
substantial evidence may support plaintiff's position and
despite that the Court's independent analysis of the
evidence may differ” from that of the Commissioner.
Martin v. Shalala, 1995 WL 222059, *5 (W.D.N.Y.1995)
(Skretny, J.) (quoting Rosado v. Sullivan, 805 F.Supp. 147,
153 (S.D.N.Y.1992)).

3. If the claimant has a ‘severe impairment,’ the
Commissioner must ask whether, based solely on
medical evidence, claimant has an impairment
listed in Appendix 1 of the regulations. If the
claimant has one of these enumerated impairments,
the Commissioner will automatically consider him
disabled, without considering vocational factors such
as age. education, and work experience.

However, before deciding whether the Commissioner's
determination is supported by substantial evidence, I must
first determine “whether the Commissioner applied the
correct legal standard.” Tejada v. Apfel, 167 F.3d 770, 773
(2d Cir.1999). “Failure to apply the correct legal standards
is grounds for reversal.” Townley, 748 F.2d at 112.

B. The Disability Standard
*9 The Social Security Act provides that a plaintiff will
be considered disabled “if he is unable to engage in any
substantial gainful activity by reason of any medically
detenninable physical or mental impairment which ... has
lasted or can be expected to last for a continuous period
of not less than twelve months.” 42 U .S.C. § 1382c(a)(3)
(A). The impairments must be “of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy ...” 42 U.S.C. § 1382c(a)(3)
(B).
The determination of disability entails a five-step
sequential evaluation process:
1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the
claimant has a ‘severe impairment’ which limits his

4. If the impairment is not ‘listed’ in the regulations,
the Commissioner then asks whether, despite the
claimant's severe impairment, he or she has residual
functional capacity to perform his or her past work.
5. 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.
The Commissioner bears the burden of proof on this
last step, while the claimant has the burden on the
first four steps.
Shaw v. Chater, 221 F.3d 126, 132 (2nd Cir.2000) (citing
DeChirico v. Callahan, 134 F.3d 1177, 1179–80 (2nd
Cir.1998)); see 20 C.F.R. §§ 404.1520, 416.920.
“[R]egulations ... limit the Commissioner's burden at step
five. See 20 C.F.R. 404.1560(c) ... The Commissioner's
step-four RFC determination (with the claimant bearing
the burden of proof) now controls at both steps four and
five.... The Commissioner applies the RFC determination
from step four to meet his burden at step five. Using the
claimant's RFC, the Commissioner must then show at
step five that ‘there is other gainful work in the national
economy which the claimant could perform.’ ” Spain v.
Astrue, 2009 WL 4110294, *3 (E.D.N.Y.2009).
Plaintiff moves for judgment on the pleadings, seeking
“[a]t the very least” that the case be remanded. Plaintiff's
Motion [15–1], p. 24. He argues that ALJ Straub erred
by ignoring the opinion of Dr. Moss–King, failing to
properly evaluate and explain the weight afforded to
the state agency review physician, ignoring certain of
plaintiff's impairments, failing to conduct a function-byfunction RFC analysis, failing to utilize a vocational
expert, and improperly assessing his credibility. Id., pp.
9–24. The Commissioner cross-moves for judgment on
the pleadings, arguing that his determination is supported

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by substantial evidence. Commissioner's Memorandum of
Law [17], pp. 17–25.

C. Plaintiff's Arguments
1. ALJ Straub Erred in Failing to Explain Why he
Afforded No Weight to the Medical Opinion of Dr.
Moss–King
*10 Plaintiff argues that ALJ Straub erred by failing
to consider Dr. Moss–King's opinion because “Dr.
Moss–King is not only a vocational expert, but also a
psychologist by training” and “[a]s such, ... is ... a treating
medical source.” Plaintiff's Reply [18], p. 6; Plaintiff's
Motion [15–1], pp. 9–12. The Commissioner responds
that Dr. Moss–King is not an acceptable medical source
since she was “not providing psychological treatment to
plaintiff; rather, she was functioning in the capacity as a
vocational rehabilitation counselor, as she stated under
her signature”. Commissioner's Reply Memorandum of
Law [19], p. 2.
Even assuming that Dr. Moss–King was acting only in
her capacity as a Vocational Rehabilitation Counselor,
it did not entitle ALJ Straub to disregard her opinion
without explanation. “[A] vocational rehabilitation
counselor ... is not an acceptable medical source under
the regulations” (Deeley v. Astrue, 2011 WL 454505,
*4 n. 1 (N.D.N.Y.2011)), “but is an ‘other source’ as
defined by 20 C.F.R. § 1513(d).” Morris v. Astrue, 2010
WL 3976291, *17 (N.D.Fla.2010), adopted, 2010 WL
3951961 (N.D.Fla.2010). According to Social Security
Ruling (“SSR”) 06–03p, opinions from “other sources”
“are important and should be evaluated on key issues
such as impairment severity and functional effects, along
with the other relevant evidence in the file.” 2006 WL
2329939, *3. “While the opinion[s] [of other sources] do[ ]
not command the same weight as a physician's, [they are]
nevertheless entitled to some consideration.” Marziliano
v. Sullivan, 771 F.Supp. 69, 75 (S.D.N.Y.1991).
“While the Commissioner is thus free to decide that the
opinions of ‘other sources,’ ..., are entitled to no weight
or little weight, those decisions should be explained.”
Sears v. Astrue, 2012 WL 1758843, *3 (D.Vt.2012). See
SSR 06–03P, 2006 WL 2329939 at *6 (“the adjudicator
generally should explain the weight given to opinions
from these ‘other sources,’ or otherwise ensure that the
discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the

adjudicator's reasoning, when such opinions may have
an effect on the outcome of the case”). In evaluating
the opinions of “other sources”, “SSR 06–03p directs
the Commissioner to use the same factors ... as are used
to evaluate the opinions of ‘acceptable medical sources,’
including treating physicians.... These factors include but
are not limited to the length of the treatment relationship,
the frequency of evaluation, and the degree to which the
opinion is supported and consistent with the record.”
Id. (citing 2006 WL 2329939 at *4). In fact, “[b]ased
on the particular facts of a case, such as length of
treatment, it may be appropriate for an ALJ to give more
weight to a non-acceptable medical source than a treating
physician.” Anderson v. Astrue, 2009 WL 2824584, *9
(E.D.N.Y.2009).
*11 I recognize that the ALJ has the discretion to “
‘choose between properly submitted medical opinions' ”
Balsamo, 142 F.3d at 81; see Veino v. Barnhardt, 312 F.3d
578, 588 (2d Cir.2002). However, this decision should be
explained. See Sears, 2012 WL 1758843 at *3. It was an
abuse of discretion for ALJ Straub to entirely ignore Dr.
Moss–King's December 23, 2008 Medical Assessment of
Ability to Do Work Related Activities (T290–291).
The Commissioner appears to argue that this failure
is harmless since Dr. Moss–King's “assessment does
not contradict the ALJ's residual functional capacity
Finding .... that plaintiff was limited to performing jobs
involving simple directions and simple rote tasks in a
low contact and low demand setting”. Commissioner's
Reply Memorandum of Law [19], pp. 2–3. See, e.g.,
Ryan v. Astrue, 650 F.Supp.2d 207, 217 (N.D.N.Y.2009)
(“courts have found harmless error where the ALJ
failed to afford weight to a treating physician when
an analysis of weight by the ALJ would not have
affected the outcome”). However, the RFC reached by
ALJ Straub ignores Dr. Moss–King's assessment that
plaintiff had poor or no ability to maintain attention
and concentration, and that his “severe deficits ... will
interfere w/ his ability to complete a task successfully in
the area of employment” (T290–291), which, if credited by
ALJ Straub, would have resulted in a more limited RFC.
Dr. Moss–King's assessment has a significant bearing
on ALJ Straub's RFC determination since “limitations
to simple, routine tasks or to unskilled work would
not, standing alone, typically suffice to account for
a claimant's moderate limitations in concentration”.
Hudson v. Commissioner of Social Security, 2011 WL

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Colon v. Astrue, Not Reported in F.Supp.2d (2013)

5983342, *10 (D.Vt.2011), adopted, 2011 WL 6002466
(citing Winschel v. Commissioner of Social Security, 631
F.3d 1176, 1180 (11th Cir.2011)). See Bowers v. Astrue,
271 Fed.Appx. 731, 733 (10th Cir.2008) (“Simple work ...
can be ruled out by a vocational expert on the basis of
a serious impairment in concentration and attention”).
Therefore, I recommend that this case be remanded for
the Commissioner to make findings regarding the weight,
if any, to be assigned to Dr. Moss–King's assessment and
to properly analyze the remaining steps of the sequential
evaluation process in light of any changes made to the
weight afforded to this assessment.

11

2. ALJ Straub Erred in Evaluating the Opinion of the
State Agency Physician
Plaintiff argues that ALJ Straub did not properly evaluate
the opinion of the state agency physician when he
merely stated, without any explanation, that he afforded
significant weight to their opinions. Plaintiff's Motion [15–
1], p. 13. Defendant responds that this was not erroneous
because “no treating source proffered an opinion which
was inconsistent with the ALJ's residual functional
capacity finding”. Commissioner's Reply Memorandum
of Law [19], p. 5. I disagree.
*12 As discussed above, ALJ Straub was free to credit the
state agency review physician's RFC assessment over the
contradictory assessment of Dr. Moss–King, but had an
obligation to explain his decision for doing so Therefore,
I recommend that the case be remanded on this basis.

3. ALJ Straub Erred in Failing to Assess Plaintiff's
Adjustment Disorder, Depression, and Anxiety
Plaintiff argues that ALJ Straub erred in failing to include
plaintiff's “depression, anxiety, or adjustment disorder
in his short list of impairments, neither as severe or
non-severe”. Plaintiff's Motion [15–1], p. 15. Defendant
responds that “[p]laintiff has not shown that additional
limitations were caused by the other impairments he
claims the ALJ should have found to be severe.”
Commissioner's Reply Memorandum of Law [19], p. 6.
A severe impairment is an impairment or combination
of impairments that “significantly limits [the claimant's]
physical or mental ability to do basic work activities”.
20 C.F.R. § 404.1520(c). “The analysis at this step may
not accomplish more than screening out de minimis
claims. If, however, the disability claim rises above the

de minimis level, then the analysis must proceed to
step three.” Mattei v. Barnhart, 2003 WL 23326027,
*6 (E.D.N.Y.2003) (citing Dixon v. Shalala, 54 F.3d
1019, 1030 (2d Cir.1995)). Nevertheless, “the combined
effect of a claimant's impairments must be considered
in determining disability; the SSA must evaluate their
combined impact on a claimant's ability to work,
regardless of whether every impairment is severe.” Dixon,
54 F.3d at 1031.
The record is replete with references to these additional
impairments. For example. Dr. Baskin diagnosed plaintiff
with depressive disorder and anxiety disorder (T173),
and Dr. Balderman diagnosed plaintiff with depression
(T163). There is also evidence in the record that at least
some of these impairments were more than de minimis. For
example, it was noted that plaintiff had been in therapy for
depression for six years (T160) and was getting counseling
to help with his anger (T142). There were also reports of
plaintiff sleeping excessively (T170), loss of appetite with
significant weight loss (id.), and frequent anger (T32–33).
Notwithstanding these references, ALJ Straub failed
to discuss these impairments in his decision, including
whether they constitute severe impairments or in
combination with his severe impairments exacerbate his
limitations. Therefore, I recommend that the case be
remanded on this basis.

4. Plaintiff's Remaining Arguments
Since the Commissioner fails to directly respond to
plaintiff's arguments that ALJ Straub erred in failing to
perform a function-by-function analysis in reaching his
RFC determination (plaintiff's motion [15–1], pp. 17–18)
and in failing to provide clear reasons for his assessment
of plaintiff's credibility (id., pp. 20–23), I will recommend
that the case be remanded on these grounds as well.

CONCLUSION
*13 For the following reasons, I recommend that the
Commissioner's motion [16] for judgment on the pleadings
be denied, that plaintiff's motion for judgment on the
pleadings [15] be granted in part and denied in part, and
that the case be remanded to the Commissioner for further
proceedings consistent with this opinion.

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Colon v. Astrue, Not Reported in F.Supp.2d (2013)

Unless otherwise ordered by Judge Arcara. any objections
to this Report and Recommendation must be filed with
the clerk of this court by May 10, 2013 (applying the
time frames set forth in Fed.R.Civ.P. (“Rules”) 6(a)(1)
(C), 6(d), and 72(b)(2)). Any requests for extension of this
deadline must be made to Judge Arcara. A party who
“fails to object timely ... waives any right to further judicial
review of [this] decision”. Wesolek v. Canadair Ltd., 838
F.2d 55, 58 (2d Cir.1988); Thomas v. Arn, 474 U.S. 140,
155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

The parties are reminded that, pursuant to Rule 72(b)
and (c) of this Court's Local Rules of Civil Procedure,
written objections shall “specifically identify the portions
of the proposed findings and recommendations to which
objection is made and the basis for each objection ...
supported by legal authority”, and must include “a written
statement either certifying that the objections do not
raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to
the Magistrate Judge”. Failure to comply with these
provisions may result in the district judge's refusal to
consider the objections.

Moreover, the district judge will ordinarily refuse to
consider de novo arguments, case law and/or evidentiary
material which could have been, but were not, presented
to the magistrate judge in the first instance. Patterson–
Leitch Co. v. Massachusetts Municipal Wholesale Electric
Co., 840 F.2d 985, 990–91 (1st Cir.1988).

All Citations
Not Reported in F.Supp.2d, 2013 WL 2245457

Footnotes

1
2
3
4
5
6
7
8
9
10
11

Bracketed references are to CM/EMF docket entries.
“T” refers to the certified transcript.
The hearing transcript identifies plaintiff's attorney as Deborah “Ozoken” (T22).
The Notice of Appeals Council Action is undated (T1–3).
Dr. Balderman described plaintiff as a female, which appears contrary to the other aspects of the record (T160).
It is unclear from the record what qualifications C. deFreitas holds.
It is unclear from the record what qualifications Jennifer Topolski holds.
First name illegible (T185).
For this assessment, plaintiff's ability to function in different areas was rated from unlimited to very good, good (ability to
function in this area is limited but satisfactory), fair (ability to function in this area is seriously limited, but not precluded),
and poor or none (no useful ability to function in this area) (T290).
The remainder of plaintiff's testimony matches his mother's testimony.
Since this may have an impact on whether vocational expert testimony is necessary, 1 have not analyzed plaintiffs
argument (plaintiff's motion [15–1], pp. 18–20) directed at ALJ Straub's failure to utilize a vocational expert. See
Mitchell v. Astrue, 2009 WL 3096717, *23 (S.D.N.Y.2009) (“Limitations in concentration, persistence, and pace constitute
nonexertional limitations under the Commissioner's regulations.... [O]nly if a claimant's nonexertional impairments
‘significantly diminish his ability to work—over and above any incapacity caused solely from exertional limitations—so
that he is unable to perform the full range of employment indicated by the medical vocational guidelines,’ is the testimony
of a vocational expert required”).

End of Document

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10

Holste v. Colvin, Slip Copy (2016)

2016 WL 3945814
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Deborah J. Holste, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner
of Social Security, Defendant.
Case # 15-CV-582-FPG
|
Signed 07/19/2016
Attorneys and Law Firms
Kenneth R. Hiller, Timothy Hiller, Law Offices of
Kenneth Hiller, Amherst, NY, for Plaintiff.
Benil Abraham, Social Security Administration, New
York, NY, for Defendant.

DECISION AND ORDER

On September 30, 2009, the Social Security
Administration (“SSA”) granted Holste Disability
Insurance Benefits (“DIB”) based on a prior application,
but those benefits were terminated in April of 2012. Tr. 1
157. Thereafter, on May 21, 2012, Holste protectively filed
an application for SSI. 2 Tr. 139-49, 161. She alleged that
she had been disabled within the meaning of the Act since
April 1, 2010 due to bipolar disorder, lower back pain,
lumbar disc disease, spinal stenosis, asthma, and arthritis
in her lower back. Id. After her application was denied
at the initial administrative level, a hearing was held
before Administrative Law Judge Timothy M. McGuan
(“the ALJ”) on August 27, 2013 in which the ALJ
considered Holste's application de novo. Tr. 41-57. Holste
appeared at the hearing with her attorney and testified.
Id. Jay Steinbrenner, a Vocational Expert (“VE”), also
appeared and testified. Tr. 51-56. On January 30, 2014,
the ALJ issued a decision finding that Holste was not
disabled within the meaning of the Act. Tr. 21-38. That
decision became the Commissioner's final decision when
the Appeals Council denied Holste's request for review on
May 1, 2015. Tr. 1-4. Holste commenced this action on
June 29, 2015, seeking review of the Commissioner's final
decision. ECF No. 1.

HON. FRANK P. GERACI, JR., Chief Judge
*1 Deborah J. Holste (“Holste” or “Plaintiff”) brings
this action pursuant to the Social Security Act (“the Act”)
seeking review of the final decision of the Commissioner
of Social Security (“the Commissioner”) that denied her
application for Supplemental Security Income (“SSI”)
under Title XVI of the Act. ECF No. 1. This Court has
jurisdiction over this action under 42 U.S.C. §§ 405(g) and
1383(c)(3).
Both parties have moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. ECF Nos. 9, 10. For the reasons stated below,
this Court finds that the Commissioner's decision is
not in accordance with the applicable legal standards.
Accordingly, Plaintiff's motion is GRANTED, the
Commissioner's motion is DENIED, and this matter
is REMANDED to the Commissioner for further
administrative proceedings.

BACKGROUND

LEGAL STANDARD
I. District Court Review
“In reviewing a final decision of the SSA, this Court is
limited to determining whether the SSA's conclusions were
supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012) (internal quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that
a decision by the Commissioner is “conclusive” if it is
supported by substantial evidence. 42 U.S.C. § 405(g).
“Substantial evidence means more than a mere scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Moran
v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal
quotation marks omitted). It is not this Court's function
to “determine de novo whether [the claimant] is disabled.”
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (internal
quotation marks omitted); see also Wagner v. Sec'y of
Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990)
(holding that review of the Secretary's decision is not de
novo and that the Secretary's findings are conclusive if
supported by substantial evidence).

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II. Disability Determination
*2 Determination of whether a claimant is disabled
within the meaning of the Act requires an ALJ to follow
a five-step sequential evaluation. See Bowen v. City of
New York, 476 U.S. 467, 470-71 (1986). At step one,
the ALJ must determine whether the claimant is engaged
in substantial gainful work activity. See 20 C.F.R. §
404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether
the claimant has an impairment, or combination of
impairments, that is “severe” within the meaning of the
Act, meaning that it imposes significant restrictions on
the claimant's ability to perform basic work activities.
20 C.F.R. § 404.1520(c). If the claimant does not have
a severe impairment or combination of impairments, the
analysis concludes with a finding of “not disabled.” If the
claimant does, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's
impairment meets or equals the criteria of a listed
impairment in Appendix 1 of Subpart P of Regulation
No. 4 (the “Listings”) 20 C.F.R. § 404.1520(d). If the
impairment meets or medically equals the criteria of
a Listing and meets the durational requirement (20
C.F.R. § 404.1509), the claimant is disabled. If not,
the ALJ determines the claimant's residual functional
capacity (“RFC”), which is the ability to perform
physical or mental work activities on a sustained
basis, notwithstanding limitations for the collective
impairments. See 20 C.F.R. § 404.1520(e)-(f). The ALJ
then proceeds to step four and determines whether
the claimant's RFC permits him or her to perform
the requirements of his or her past relevant work. 20
C.F.R. § 404.1520(f). If the claimant can perform such
requirements, then he or she is not disabled. If he or
she cannot, the analysis proceeds to the fifth and final
step, wherein the burden shifts to the Commissioner to
show that the claimant is not disabled. To do so, the
Commissioner must present evidence to demonstrate that
the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists
in the national economy” in light of his or her age,
education, and work experience. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see
also 20 C.F.R. § 404.1560(c).

DISCUSSION
I. The ALJ's Decision
The ALJ's decision analyzed Holste's claim for benefits
under the process described above. At step one, the
ALJ found that Holste had not engaged in substantial
gainful activity since May 21, 2012, the application date.
Tr. 26. At step two, the ALJ found that Holste has
the following severe impairments: bipolar disorder, posttraumatic stress disorder, degenerative disc disease, grade
1 to 2 anterolisthesis, mild foraminal narrowing, and
asthma. Tr. 26. At step three, the ALJ found that such
impairments, alone or in combination, did not meet or
medically equal an impairment in the Listings. Tr. 26-28.
Next, the ALJ determined that Holste retained the RFC
to perform light work 3 with the following limitations;
she must be afforded a sit/stand option after 45 minutes;
she can occasionally interact with the general public;
she can occasionally understand, remember, and carry
out complex and detailed tasks; and she must avoid
concentrated exposure to fumes, dust, odors, and extreme
cold and hot temperatures. Tr. 28-31. At step four, the
ALJ relied on the VE's testimony and found that this RFC
prevents Holste from performing her past relevant work
as a truck driver. Tr. 31.
*3 At step five, the ALJ relied on the VE's testimony
and found that Holste is capable of making an adjustment
to other work that exists in significant numbers in
the national economy given her RFC, age, education,
and work experience. Tr. 31-32. Specifically, the VE
testified that Holste could work as a plastic molding
machine operator or a small product assembler. Tr. 32.
Accordingly, the ALJ concluded that Holste was not
“disabled” under the Act. Tr. 32-33.

II. Analysis
Holste argues that the ALJ's RFC determination is
not supported by substantial evidence because it was
rendered without a medical opinion as to her functional
abilities and limitations. ECF No. 9-1, at 11-17. 4 The
Commissioner asserts that the ALJ's RFC determination
is supported by substantial evidence, despite the absence
of a medical opinion, because the medical evidence
reflected minimal functional impairment and thus the
ALJ was able to make a “common sense judgment

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about functional capacity.” ECF No. 10-1, at 11-14.
For the reasons that follow, this Court finds that the
RFC determination was not supported by substantial
evidence, which requires remand of this matter for further
administrative proceedings.
RFC is defined as “what an individual can still do
despite his or her limitations.” Desmond v. Astrue, No.
11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y.
Dec. 20, 2012) (quoting Melville v. Apfel, 198 F.3d 45, 52
(2d Cir. 1999)). To determine a claimant's RFC “the ALJ
considers a claimant's physical abilities, mental abilities,
symptomatology, including pain and other limitations
that could interfere with work activities on a regular and
continuing basis.” Id. (citing 20 C.F.R. § 404.1545(a)).
“An RFC finding will be upheld when there is substantial
evidence in the record to support each requirement listed
in the regulations.” Id. (citation omitted).
“[A]n ALJ is not qualified to assess a claimant's RFC
on the basis of bare medical findings, and as a result an
ALJ's determination of RFC without a medical advisor's
assessment is not supported by substantial evidence.”
Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933,
at *21 (W.D.N.Y. Mar. 6, 2015) (citation omitted). Thus,
even though the Commissioner is empowered to make
the RFC determination, “[w]here the medical findings
in the record merely diagnose [the] claimant's exertional
impairments and do not relate those diagnoses to specific
residual functional capabilities,” the general rule is
that the Commissioner “may not make the connection
himself.” Id. (citation omitted); Jermyn v. Colvin, No. 13CV-5093 (MKB), 2015 WL 1298997, at *19 (E.D.N.Y.
Mar. 23, 2015) (“[N]one of these medical sources assessed
Plaintiff's functional capacity or limitations, and therefore
provide no support for the ALJ's RFC determination.”).
Depending on the circumstances, like when the medical
evidence shows only minor physical impairments, “an
ALJ permissibly can render a common sense judgment
about functional capacity even without a physician's
assessment.” Wilson, 2015 WL 1003933, at *21 (citation
omitted).
Here, the record lacks any medical opinion as to Holste's
ability to engage in work at any exertional level on a
regular and continuous basis in an ordinary work setting.
There is no medical opinion regarding her capacity to
sit, stand, walk, push, lift, and pull, which are necessary
activities for light work. See 20 C.F.R. § 416.967(b).

It appears that the only medical opinion sought was
from reviewing psychiatrist D. Mangold, Ph.D. (“Dr.
Mangold”). Tr. 31, 304-17. Without any explanation,
the ALJ gave “significant weight” to Dr. Mangold's
report that “there was insufficient evidence to render an
opinion. 5 ” Tr. 31 (citing Tr. 304).
*4 The remainder of the ALJ's decision merely
summarizes the medical evidence and cites to treatment
notes that contain bare medical findings and do not
address how Holste's impairments affect her physical
and mental ability to perform work-related functions.
Tr. 29-30. The Commissioner argues that it was
proper for the ALJ to rely on this raw evidence in
making his RFC determination, because the medical
evidence demonstrated that Holste suffered from minimal
impairment and thus the ALJ was able to make a
“common sense judgment about functional capacity.”
ECF No. 10-1, at 11-14. This Court disagrees, because the
record treatment notes contain complex medical findings
(see, e.g., Tr. 240, 242-43, 248-51, 254-68, 270-303, 336-59)
and the ALJ found that Holste had multiple severe
physical and mental impairments (i.e. bipolar disorder,
post-traumatic stress disorder, several back disorders, and
asthma) (Tr. 26). See, e.g., Palascak v. Colvin, No. 1:11CV-0592 (MAT), 2014 WL 1920510, at *9 (W.D.N.Y.
May 14, 2014) (“Given Plaintiff's multiple physical and
mental impairments, this is not a case where the medical
evidence shows ‘relatively little physical impairment’ such
that the ALJ ‘can render a common sense judgment about
functional capacity.’ ”) (citation omitted). Accordingly,
because there is no medical source opinion to support
the ALJ's RFC finding, this Court concludes that it lacks
substantial evidentiary support.
The ALJ also failed to conduct a function-by-function
assessment of Holste's limitations. “The Act's regulations
require that the ALJ include in his RFC assessment a
function-by-function analysis of the claimant's functional
limitations or restrictions and an assessment of the
claimant's work-related abilities on a function-byfunction basis.” Palascak, 2014 WL 1920510, at *10
(internal quotation marks and citation omitted). This
means that 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 crouch.”
Id. (citation omitted); 20 C.F.R. § 416.969a(a); S.S.R.
96-8p, 1996 WL 374184, at *5-6. Remand is not required,
however, simply because the ALJ failed to conduct an

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explicit function-by-function analysis. Cichocki v. Astrue,
729 F.3d 172, 177 (2d Cir. 2013). The ALJ's RFC
determination may nonetheless be upheld when his or
her analysis “affords an adequate basis for meaningful
judicial review, applies the proper legal standards, and
is supported by substantial evidence such that additional
analysis would be unnecessary or superfluous.” Id.
But “[r]emand may be appropriate ... where other
inadequacies in the ALJ's analysis frustrate meaningful
review.” Id. at 177-78 (citation omitted).
Here, the ALJ's RFC assessment simply recites Holste's
testimony and summarizes the medical record without
tying this evidence to the physical and mental functional
demands of light work. Tr. 28-30. As to Holste's back
impairments, for instance, the ALJ sets forth the relevant
medical evidence, but he fails to explain how that evidence
connects to the RFC determination that Holste can
perform light work with a sit/stand option every 45
minutes. Tr. 28, 30. Similarly, the ALJ recites the medical
findings related to Holste's asthma, but he provides no
analysis relating those findings to the RFC determination
that Holste must avoid concentrated exposure to fumes,
dust, odors, and extreme hot and cold temperatures.
Tr. 28, 30. It is unclear to this Court how the ALJ
arrived at his RFC determination, because the ALJ's
summary of the raw medical evidence fails to address
Holste's functional abilities or link that evidence to the
RFC. The ALJ's decision leaves this Court with many
unanswered questions and does not afford an adequate
basis for meaningful judicial review. Accordingly, remand
is required.

Finally, this Court is troubled that the ALJ ultimately
rationalizes his RFC determination by concluding that
“[a]s for the opinion evidence, there are no treating sources
who consider [Holste] to be either physically or mentally
‘disabled[.]’ ” Tr. 31. The SSA's regulations provide that
the Commissioner is responsible for determining whether
a claimant is disabled under the Act. 20 C.F.R. 416.927(d)
(1). In other words, a medical source statement that the
claimant is “disabled” or “unable to work” does not mean
the claimant is automatically disabled, and the lack of
such a statement does not mean the claimant is able to
work. Id. Thus, the ALJ's assertion is unpersuasive and
once again fails to clarify his RFC determination.

CONCLUSION
*5 For the reasons stated, Plaintiff's Motion for
Judgment on the Pleadings (ECF No. 9) is GRANTED,
the Commissioner's Motion for Judgment on the
Pleadings (ECF No. 10) is DENIED, and this matter
is REMANDED to the Commissioner for further
administrative proceedings consistent with this opinion,
pursuant to sentence four of 42 U.S.C. § 405(g). See Curry
v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000). The Clerk of
Court is directed to enter judgment and close this case.
IT IS SO ORDERED.

All Citations
Slip Copy, 2016 WL 3945814

Footnotes

1
2
3

4
5

References to “Tr.” are to the administrative record in this matter.
Holste also applied for DIB, but her application was denied because she did not have the requisite work credits. Tr. 81-83.
Holste does not challenge this denial.
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially
all of these activities. If someone can do light work, [the SSA] determine[s] that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20
C.F.R. § 416.967(b).
Holste advances other arguments that she believes require reversal of the Commissioner's decision. However, because
this Court disposes of this matter based on the improper RFC determination, those arguments need not be reached.
Upon review of Dr. Mangold's report, it appears that there was insufficient evidence to render an opinion because Holste
did not respond to document requests and neither Holste nor her attorney could be reached by telephone. Tr. 316; see

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4

Holste v. Colvin, Slip Copy (2016)

also Tr. 59 (“Failure to Cooperate and Insufficient Medical Evidence” form). In some circumstances, the ALJ may make
a disability determination based on the evidence before him or her “when, despite efforts to obtain additional evidence,
the evidence is insufficient to determine whether [the claimant] is disabled.” 20 C.F.R. § 416.920b(d). If this was the
ALJ's rationale for affording Dr. Mangold's report “significant weight,” he did not say so in his decision. It is also unclear
whether the ALJ took any action to resolve the insufficiency of the record. See 20 C.F.R. § 416.920b(c)(1)-(4) (stating
that, if the record evidence is insufficient to make a disability determination, the ALJ may recontact medical sources,
request additional existing records, ask the claimant to undergo a consultative exam, or ask the claimant or others for
more information). On remand, this Court reminds Holste that she is obligated to provide medical and other evidence to
the SSA upon request. See 20 C.F.R. § 416.916 (stating that the claimant must cooperate with the SSA by providing
available medical or other evidence about his or her impairment).

End of Document

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5

Monroe v. Commissioner of Social Security, --- Fed.Appx. ---- (2017)
2017 WL 213363

KeyCite Yellow Flag - Negative Treatment
Distinguished by Morales v. Colvin, D.Conn., February 3, 2017

Affirmed.

2017 WL 213363
Only the Westlaw citation is currently available.
This case was not selected for
publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY
1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals,
Second Circuit.
Cindy Monroe, Plaintiff–Appellant,
v.
Commissioner of Social
Security, Defendant–Appellee,
16–1042–cv
|
January 18, 2017
Synopsis
Background: Claimant sought judicial review of decision
of Commissioner of Social Security denying her
application for disability insurance benefits. The United
States District Court for the Northern District of
New York, D'Agostino, J., 2016 WL 552364, affirmed.
Claimant appealed.

Holdings: The Court of Appeals held that:
[1] substantial evidence supported ALJ's decision not to
give controlling weight to opinion of claimant's treating
physician, and
[2] substantial evidence supported ALJ's determination of
claimant's residual functional capacity (RFC).

Appeal from a judgment of the United States District
Court for the Northern District of New York
(D'Agostino, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
For Appellant: Scot G. Miller, Esq., Coughlin & Gerhart,
LLP, Binghamton, NY.
For Appellee: Peter W. Jewett, Special Assistant United
States Attorney, for Richard S. Hartunian, United States
Attorney for the Northern District of New York.
PRESENT: PETER W. HALL, CHRISTOPHER F.
DRONEY, Circuit Judges, J. PAUL OETKEN, * District
Judge.
Opinion
*1 Plaintiff–Appellant Cindy Monroe appeals the
decision of the district court affirming the Commissioner
of Social Security's denial of her application for
disability insurance benefits. Monroe protectively filed
an application for disability insurance benefits, claiming
inability to work as a result of her bipolar disorder.
Following exhaustion of administrative procedures, the
district court affirmed the Administrative Law Judge's
(“ALJ”) decision denying benefits because Monroe
maintained a residual functional capacity (“RFC”) to
“perform a full range of work at all exertional levels.”
On appeal, Monroe argues (1) that the ALJ improperly
failed to assign “controlling weight” to Dr. Wolkoff's
medical opinion under the “treating physician” rule and
(2) that the ALJ's RFC determination is not supported by
“substantial evidence.” We assume the parties' familiarity
with the underlying facts, procedural history, and issues
on appeal.
We “conduct a plenary review of the administrative record
to determine if there is substantial evidence, considering
the record as a whole, to support the Commissioner's
decision and if the correct legal standards have been
applied.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.

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1

Monroe v. Commissioner of Social Security, --- Fed.Appx. ---- (2017)
2017 WL 213363

2008) (internal quotation marks omitted). “Substantial
evidence means more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009) (internal quotation marks
omitted). “[I]t is not our function to determine de novo
whether [a plaintiff] is disabled.” Brault v. Soc. Sec.
Admin., Comm'r, 683 F.3d 443, 447 (2d Cir.2012) (per
curiam) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996)).

I. “Treating Physician” Rule
Monroe asserts that the ALJ failed to give “controlling
weight” to Dr. Wolkoff's medical opinion as required by
the Social Security Administration's “treating physician”
rule. See Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.
2000) (the “treating physician” rule mandates that the
medical opinion of a claimant's treating physician is given
controlling weight if it is well supported by medical
findings and not inconsistent with other substantial record
evidence); see also 20 C.F.R. § 404.1527(c)(2) (“If we find
that a treating source's opinion on the issue(s) of the nature
and severity of [the claimant's] impairment(s) is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record, we will give
it controlling weight.”). “While the opinions of a treating
physician deserve special respect, they need not be given
controlling weight where they are contradicted by other
substantial evidence in the record.” Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002) (internal citations omitted);
accord Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004) (“Although the treating physician rule generally
requires deference to the medical opinion of a claimant's
treating physician, the opinion of the treating physician
is not afforded controlling weight where ... the treating
physician issued opinions that are not consistent with
other substantial evidence in the record ....” (internal
citations omitted)). “Genuine conflicts in the medical
evidence are for the Commissioner to resolve.” Veino, 312
F.3d at 588.
*2 When 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 factors. 20 C.F.R. § 404.1527(c). The
ALJ must then “comprehensively set forth [her] reasons
for the weight assigned to a treating physician's opinion.”
Burgess, 537 F.3d at 129.
[1] Here, the administrative record demonstrates that
the ALJ's decision not to give controlling weight to Dr.
Wolkoff's opinion under the “treating physician” rule was
proper considering the substantial evidence contradicting
Dr. Wolkoff's assessment. Not only did the ALJ find
that Dr. Wolkoff's medical source statement contained
internal inconsistencies, but she also determined that
his treatment notes contradicted his RFC assessment. 1
While Dr. Wolkoff's RFC assessment said that Monroe
would be “off task” between thirty and fifty percent of
the time during a typical workday due to her bipolar
disorder, it also described Monroe's mood as “stable
most of [the] time.” Moreover, although Dr. Wolkoff's
treatment notes indicate that Monroe's mood was anxious
and sad on a number of occasions, the ALJ found his notes
more frequently included evaluations describing Monroe's
mood as “stable” or “good” and not suicidal. In fact,
the treatment notes indicate that during one evaluation,
Monroe even expressed that she loved life. Finally, in
assessing Dr. Wolkoff's opinion that Monroe had little
ability to deal with stress or the public and was limited
in behaving in a stable manner in social situations, the
ALJ also determined that the finding was refuted by the
fact that Monroe had engaged in a range of recreational
activities around the same time, including snowmobiling
trips to Ontario and Quebec, horseback riding, fourwheeling, and multiple vacation cruises.
The ALJ comprehensively explained her reasons for
discounting Dr. Wolkoff's medical source statement; in
so doing, she complied with the dictates of the treating
physician rule. See Burgess, 537 F.3d at 129. While Dr.
Wolkoff's medical source statement is supported by some
evidence, the ALJ's decision to disregard his opinion is
nevertheless substantially supported by the record. The
ALJ did not impermissibly “substitute [her] own expertise
or view of the medical proof for the treating physician's
opinion.” Greek v. Colvin, 802 F.3d 370, 376 (2d Cir.
2015). Rather, the ALJ rejected Dr. Wolkoff's opinion
because she found it was contrary to his own treatment
notes. As did the district court, we defer to the ALJ's
well-supported determination. See Veino, 312 F.3d at 588

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2

Monroe v. Commissioner of Social Security, --- Fed.Appx. ---- (2017)
2017 WL 213363

(“Genuine conflicts in the medical evidence are for the
Commissioner to resolve.”).

II. RFC Determination
*3 [2] Monroe makes the related argument that the
ALJ's RFC determination is not supported by substantial
evidence. She specifically contends that, because the
ALJ rejected Dr. Wolkoff's opinion, there was no
competent medical opinion that supported the ALJ's RFC
determination. Where, however, “the record contains
sufficient evidence from which an ALJ can assess the
[claimant's] residual functional capacity,” Tankisi v.
Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013)
(summary order), a medical source statement or formal
medical opinion is not necessarily required, see id.; cf
Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013)
(summary order) (upholding ALJ's RFC determination
where he “rejected” physician's opinion but relied on
physician's findings and treatment notes).
Here, although the ALJ ultimately rejected Dr. Wolkoff's
medical assessment, she relied on Dr. Wolkoff's treatment
notes dating back before the alleged onset date. Not only
do Dr. Wolkoff's notes include descriptions of Monroe's
symptoms, but they also provide contemporaneous
medical assessments of Monroe's mood, energy, affect,
and other characteristics relevant to her ability to perform
sustained gainful activity. The ALJ also considered Dr.
Wolkoff's well-documented notes relating to Monroe's
social activities relevant to her functional capacity
—such as snowmobile trips, horseback riding, and
going on multiple cruise vacations. Because the ALJ
reached her RFC determination based on Dr. Wolkoff's
contemporaneous treatment notes—while at the same
time rejecting his post hoc medical opinion ostensibly
based on the observations memorialized in those notes
—that determination was adequately supported by more
than a mere scintilla of evidence. See Tankisi, 521
Fed.Appx. at 34 (affirming ALJ's RFC determination
based on extensive medical record despite the fact that the
record did not include formal opinions as to claimant's
RFC); cf. 20 C.F.R. § 1527(d)(2) (“Although we consider
opinions from medical sources on issues such ... [as
a claimant's] residual functional capacity ... the final
responsibility for deciding [this] issue[ ] is reserved to the
Commissioner.”).

Likewise, because the ALJ based its RFC determination
on Dr. Wolkoff's years' worth of treatment notes, it
was not necessary for the ALJ to seek additional
medical information regarding Monroe's RFC. See Rosa
v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (“[W]here
there are no obvious gaps in the administrative record,
and where the ALJ already possesses a complete medical
history, the ALJ is under no obligation to seek additional
information.” (internal quotation marks omitted)); see
also Pellam, 508 Fed.Appx. at 90 (2d. Cir. 2013)
(summary order) (concluding that ALJ had no obligation
to supplement record by acquiring additional medical
information where ALJ had all of the claimant's treating
physician's treatment notes and consulting examining
physician's opinion supported ALJ's assessment of RFC).
Finally, we find no merit in Monroe's argument that the
ALJ committed reversible error by concluding that the
state agency psychologist's opinion was “inconsistent”
with that of Dr. Wolkoff's when, in fact, the state
psychologist found there was “insufficient evidence” to
conclude whether a mental impairment existed. As also
concluded by the district court, we agree that any such
error was harmless, since Monroe has not identified
any prejudice and the record establishes that the error
did not affect the ALJ's decision. Cf. Zabala v. Astrue,
595 F.3d 402, 409 (2d Cir. 2010) (“Where application
of the correct legal principles to the record could lead
only to the same conclusion, there is no need to require
agency reconsideration.” (internal quotations marks and
alterations omitted)). The ALJ's decision to give little
weight to Dr. Wolkoff's RFC assessment is grounded in
the substantial evidence contradicting his opinion; the
ALJ's decision does not rest on the misconception that
Dr. Wolkoff's opinion conflicts with that of the state
psychologist.
*4 For all the foregoing reasons, the district
court's order affirming the ALJ's decision denying
Monroe's application for disability insurance benefits is
AFFIRMED.

All Citations
--- Fed.Appx. ----, 2017 WL 213363

Footnotes
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3

Monroe v. Commissioner of Social Security, --- Fed.Appx. ---- (2017)
2017 WL 213363

*
1

Judge J. Paul Oetken, of the United States District Court for the Southern District of New York, sitting by designation.
A medical source statement is “[a] statement about what [the claimant] can still do despite [her] impairment(s) based on
the acceptable medical source's findings on the factors under paragraphs (b)(1) through (b)(5) of [§ 404.1513] (except in
statutory blindness claims).” 20 C.F.R. § 404.1513. An RFC assessment is used to determine if a claimant can do past
relevant work, when the claimant's impairment does not meet or equal a listed impairment under the Commissioner's
regulations. See id. § 404.1520(e). “[R]esidual functional capacity [is] based on all the relevant medical and other evidence
in [the claimant's] case.” Id.

End of Document

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4

Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

2014 WL 4105296
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Katrina Ann PERYEA, Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, Defendant.
No. 5:13–CV–0173 (GTS/TWD).
|
Signed Aug. 20, 2014.
Attorneys and Law Firms
Olinsky Law Group, Howard D. Olinsky, Esq., of
Counsel, Syracuse, NY, for Plaintiff.
Social Security Administration Office of Reg'l Gen.
Counsel—Region II, Amanda J. Lockshin, Esq., of
Counsel, New York, NY, for Defendant.
Hon. Richard S. Hartunian, United States Attorney for
the Northern District of New York, Joanne Jackson,
Special Assistant United States Attorney, of Counsel,
Albany, NY, Office of General Counsel, Social Security
Administration, Stephen P. Conte, Esq., Chief Counsel,
Region II, of Counsel, New York, NY, for Defendant.

DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this action
filed by Katrina Ann Peryea (“Plaintiff”) against
the Social Security Commissioner (“Defendant” or
“Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) seeking Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”), is the Report–
Recommendation of United States Magistrate Judge
Therese Wiley Dancks, issued pursuant to 28 U.S.C. §
636(b) and Local Rule 72.3 of the Local Rules of Practice
for this Court, recommending that the Court affirm the
final decision of the Commissioner denying Plaintiff's
request for DIB and SSI. (Dkt. No. 19.) Plaintiff has
not filed an Objection to the Report–Recommendation,
and the deadline by which to do so has expired. (See
generally Docket Sheet.) After carefully reviewing the

relevant filings in this action, the Court can find no clear
error in the Report–Recommendation: Magistrate Judge
Dancks employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts.
(Dkt. No. 28.) As a result, the Report–Recommendation
is accepted and adopted in its entirety, and the decision of
the Commissioner is affirmed.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks' Report–
Recommendation (Dkt. No. 19) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that the Commissioner's
AFFIRMED; and it is further

decision

is

ORDERED that the Complaint (Dkt. No. 1) is
DISMISSED.

REPORT AND RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge.
This matter was referred to the undersigned for report and
recommendation by the Honorable Glenn T. Suddaby,
United States District Judge, pursuant to 28 U.S.C. §
636(b) and Northern District of New York Local Rule
72.3. This case has proceeded in accordance with General
Order 18 of this Court which sets forth the procedures
to be followed when appealing a denial of Social Security
benefits. Both parties have filed briefs. Oral argument
was not heard. For the reasons discussed below, it is
recommended that the decision of the Commissioner be
affirmed.

I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is thirty-nine years old. (T. at 334.) 1 Plaintiff
was part of a special education program throughout
elementary and high school and received a IEP Diploma.
(T. at 335–36.) Beginning in 1997, Plaintiff worked for
a hospital call center until 2002, utilizing the help of
a job coach for the first two of her five years there.
(T. at 339.) In 2002, Plaintiff was dismissed from that
position for missed work due to illness. (T. at 340.)
Plaintiff later worked briefly as a babysitter, but she quit

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1

Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

doing so for reasons unrelated to her alleged limitations.
(T. at 346–47.) Plaintiff alleges disability due to mild
mental retardation, borderline diabetes, hyperthyroidism,
hyperlipidism, obesity, and an ankle injury. 2 (T. at 333.)
*2 Plaintiff applied for disability insurance benefits and
SSI on May 18, 2010. (T. at 21.) The application was
denied on July 30, 2010. Id. Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). Id. The
hearing was initiated on May 17, 2011, but Plaintiff was
granted a continuance to obtain counsel. (T. at 309, 316.)
A second continuance was granted for the same purpose
on November 3, 2011. (T. at 321.) After the second
continuance, the ALJ ordered a consultative psychiatric
examination, which was conducted by Dr. Noia before the
final hearing. (T. at 209.) The final hearing occurred on
March 15, 2012. (T. at 21.) After this hearing, but before
the record was closed, a second consultative examination
was ordered in error, and performed by Dr. Caldwell. (T.
at 155.) On June 8, 2012, the ALJ made a finding of not
disabled. (T. at 29.) The ALJ's decision became the final
decision of the Commissioner when the Appeals Council
denied Plaintiff's request for review on November 9, 2012.
(Dkt. No. 1.) Plaintiff commenced this action on February
14, 2013. Id.

II. APPLICABLE LAW
A. Standard for Benefits
To be considered disabled, a plaintiff seeking disability
insurance benefits or SSI disability benefits must establish
that he or she 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 twelve
months.” 42 U.S.C. § 1382c(a)(3)(A) (2014). In addition,
the plaintiff's
physical or mental impairment or
impairments [must be] of such
severity that he is not only unable
to do his previous work but cannot,
considering his age, education, and
work experience, engage in any
other kind of substantial gainful
work which exists in the national
economy, regardless of whether such
work exists in the immediate area

in which he lives, or whether a
specific job vacancy exists for him,
or whether he would be hired if he
applied for work.
§ 1382c(a)(3)(B).
Acting pursuant to its statutory rulemaking authority
(42 U.S.C. § 405(a) (2014)), the Social Security
Administration (“SSA”) promulgated regulations
establishing a five-step sequential evaluation process to
determine disability. 20 C.F.R. § 416.920 (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.
Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L.Ed.2d 333
(2003).
At the first step, the agency will find nondisability
unless the claimant shows that he is not working
at a “substantial gainful activity.” [20 C.F.R.] §§
404.1520(b), 416.920(b). At step two, the SSA will find
nondisability unless the claimant shows that he has a
“severe impairment,” defined as “any impairment or
combination of impairments which significantly limits
the claimant's physical or mental ability to do basic
work activities.” [20 C.F.R .] §§ 404.1520(c), 416.920(c).
At step three, the agency determines whether the
impairment which enabled the claimant to survive step
two is on the list of impairments presumed severe
enough to render one disabled; if so, the claimant
qualifies. [20 C.F.R.] §§ 404.1520(d), 416.920(d). If the
claimant's impairment is not on the list, the inquiry
proceeds to step four, at which the SSA assesses whether
the claimant can do his previous work; unless he shows
that he cannot, he is determined not to be disabled.
If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called
“vocational factors” (the claimant's age, education,
and past work experience), and to determine whether
the claimant is capable of performing other jobs
existing in significant numbers in the national economy.
[20 C.F.R.] §§ 404.1520(f), 404.1560(c), 416.920(f),
416.9630(c).
*3 Thomas, 540 U.S. at 24–25 (footnotes omitted).
The plaintiff-claimant bears the burden of proof regarding
the first four steps. Kohler v. Astrue, 546 F.3d 260,
265 (2d Cir.2008) (quoting Perez v. Chater, 77 F.3d
41, 46 (2d Cir.1996)). If the plaintiff-claimant meets

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2

Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

his or her burden of proof, the burden shifts to the
defendantCommissioner at the fifth step to prove that the
plaintiff-claimant is capable of working. Id.

B. Scope of Review
In reviewing a final decision of the Commissioner, a court
must determine whether the correct legal standards were
applied and whether substantial evidence supports the
decision. Featherly v. Astrue, 793 F.Supp.2d 627, 630
(W.D.N.Y.2011) (citations omitted); Rosado v. Sullivan,
805 F.Supp. 147, 153 (S.D.N.Y.1992) (citing Johnson v.
Bowen, 817 F.2d 983, 985 (2d Cir.1987)). A reviewing
court may not affirm an ALJ's decision if it reasonably
doubts whether the proper legal standards were applied,
even if the decision appears to be supported by substantial
evidence. Johnson, 817 F.2d at 986.
A court's factual review of the Commissioner's final
decision is limited to the determination of whether there is
substantial evidence in the record to support the decision.
42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967
(2d Cir.1991). 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. Roat v. Barnhart, 717 F.Supp.2d 241, 248
(N.D.N.Y.2010); Ferraris v. Heckler, 728 F.2d 582, 587
(2d Cir.1984).
“Substantial evidence has been defined as ‘such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.’ “ Williams ex rel. Williams
v. Bowen, 859 F.2d 255, 258 (2d Cir.1988) (citations
omitted). It must be “more than a mere scintilla” of
evidence scattered throughout the administrative record.
Featherly, 793 F.Supp.2d at 630; Richardson v. Perales,
402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). “To determine
on appeal whether an ALJ's findings are supported by
substantial evidence, a reviewing court considers the
whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence
must also include that which detracts from its weight.”
Williams, 859 F.2d at 258 (citations omitted). However,
a reviewing court cannot substitute its interpretation of
the administrative record for that of the Commissioner
if the record contains substantial support for the ALJ's
decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th

Cir.1972); see also Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir.1982).

III. THE ALJ'S DECISION
Here, the ALJ found Plaintiff not disabled at step four
of the five step analysis, because she had a residual
functional capacity (“RFC”) sufficient to perform her past
relevant work at the hospital call center as she had actually
performed it. (T. at 28.)
*4 In the ALJ's decision, he addressed three sources of
medical opinion evidence with regard to Plaintiff's mental
limitations: the opinions of Dr. Nobel, Dr. Noia, and
Dr. Caldwell. (T. at 21–29.) During the initial review of
Plaintiff's application, the SSA conducted a psychiatric
review, and psychiatric consultant Dr. Nobel rendered an
opinion that Plaintiff had a severe cognitive impairment,
but could perform “simple work tasks.” (T. at 193.) Dr.
Noia's consultative examination concluded generally that
Plaintiff was capable of performing simple work. (T. at
213.) Dr. Caldwell, on the other hand, concluded that
Plaintiff's cognitive limitations would make it difficult for
Plaintiff to do simple work. (T. at 300.)
The ALJ relied heavily on the hearing testimony to
determine what weight to give to the conflicting medical
sources. (T. at 23–28.) Both Plaintiff and her mother
testified extensively about Plaintiff's practical capabilities
and limitations. (T. at 331–72.) Both Plaintiff and her
mother testified that she lost the job at the call center
because surgery caused her to miss too much work, and
not because of her mental limitations. (T. at 340, 370.)
Plaintiff testified that if she had been given more time, she
could have continued working at that job. (T. at 341.) Her
mother testified that other than Plaintiff's absences, her
employer had been happy with her work. (T. at 370.) Her
mother also testified that Plaintiff was an able caretaker
of children. (T. at 368.)
In handling conflicting consultative examinations, the
ALJ adopted the opinion of Dr. Noia and gave Dr.
Caldwell's opinion less weight, finding that the latter was
not consistent with the SSA's initial psychological review
findings by Dr. Noble, nor with Plaintiff's presentation
during the hearings. (T. at 27–28.)

IV. THE PARTIES' CONTENTIONS

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Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

Plaintiff claims that the ALJ erred by: (1) failing to make
proper credibility findings as to hearing testimony; (2)
failing to give Dr. Caldwell's medical opinion proper
weight; (3) failing to account for Plaintiff's limitations
to concentration, persistence, and pace in determining
Plaintiff's RFC; and (4) failing to seek vocational
expert testimony in determining whether Plaintiff could
perform her past relevant work as a customer service
representative. (Dkt. No. 11.) Plaintiff seeks remand for
reconsideration of these issues. Id. Defendant contends
that the ALJ's decision applied the correct legal standards
and is supported by substantial evidence and thus
should be affirmed. (Dkt. No. 18.) For the reasons
outlined below, I recommend that the decision of the
Commissioner be affirmed.

V. DISCUSSION
A. Credibility Determinations of Hearing Testimony
The Court reviews an ALJ's findings of fact under a
substantial evidence standard. “It is the function of
the Commissioner, not the reviewing courts, to resolve
evidentiary conflicts and to appraise the credibility of
witnesses, including the claimant.” Aponte v. Sec'y, Dept.
of Health & Human Servs., 728 F.2d 588, 591 (2d Cir.1984)
(citation omitted). In making a credibility determination,
the hearing officer is required to take the claimant's
reports of pain and other limitations into account. 20
C .F.R. § 416.929 (2014). To satisfy the substantial
evidence rule, the ALJ's credibility assessment must be
based on a two-step analysis of pertinent evidence in the
record. 20 C.F.R. § 404.1529 (2014); Genier v. Astrue, 606
F.3d 46, 49 (2d Cir.2010); SSR 96–7p, 1996 WL 374186, at
*5 (S.S.A. July 2, 1996) 3 . The ALJ is required to consider
all of the evidence of record in making his credibility
assessment. Genier, 606 F.3d at 50 (citing 20 C.F.R. §§
404.1529, 404.1545(a)(3) (2014)).
*5 First, the ALJ must consider whether there is an
underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to
produce the claimant's pain or other symptoms. SSR
96–7p. This finding does not involve a determination
as to the intensity, persistence, or functionally limiting
effects of the claimant's pain or other symptoms. Id. If no
impairment is found that could reasonably be expected
to produce pain, the claimant's pain cannot be found to
affect the claimant's ability to do basic work activities.
An individual's statements about his pain are not enough

by themselves to establish the existence of a physical or
mental impairment, or to establish that the individual is
disabled. Id.
Once an underlying physical or mental impairment that
could reasonably be expected to produce the claimant's
pain or other symptoms has been established, the second
step of the analysis is for the ALJ to consider the extent
to which the claimant's symptoms can reasonably be
accepted as consistent with objective medical evidence
and other evidence. Genier, 606 F.3d at 49; see also
Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir.2009)
(finding that claimant's subjective complaints of pain
were insufficient to establish disability because they were
unsupported by objective medical evidence tending to
support a conclusion that he has a medically determinable
impairment that could reasonably be expected to produce
the alleged symptoms); see also SSR 96–7p (“One strong
indication of the credibility of an individual's statements
is their consistency, both internally and with other
information in the case record.”). This includes evaluation
of the intensity, persistence, and limiting effects of the
pain or symptoms to determine the extent to which they
limit the claimant's ability to perform basic work activities.
Genier, 606 F.3d at 49.
The ALJ must consider all evidence of record, including
statements the claimant or others make about her
impairments, her restrictions, daily activities, efforts to
work, or any other relevant statements the claimant makes
to medical sources during the course of examination
or treatment, or to the agency during interviews,
on applications, in letters, and in testimony during
administrative proceedings. Genier, 606 F.3d at 49 (citing
20 C . F.R. § 404.1512(b)(3) (2014)). A claimant's
symptoms can sometimes suggest a greater level of severity
than can be shown by the objective medical evidence
alone. SSR 96–7p. When the objective evidence alone
does not substantiate the intensity, persistence, or limiting
effects of the claimant's symptoms, the ALJ must assess
the credibility of the claimant's subjective complaints
by considering the record in light of the following
symptom-related factors: (1) claimant's daily activities; (2)
location, duration, frequency, and intensity of claimant's
symptoms; (3) precipitating and aggravating factors;
(4) type, dosage, effectiveness, and side effects of any
medication taken to relieve symptoms; (5) other treatment
received to relieve symptoms; (6) any measures taken
by the claimant to relieve symptoms; and (7) any other

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Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

factors concerning claimant's functional limitations and
restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3);
416.929(c)(3).
*6 “An [ALJ] may properly reject [subjective complaints]
after weighing the objective medical evidence in the
record, the claimant's demeanor, and other indicia of
credibility, but must set forth his or her reasons ‘with
sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence.’ “
Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999)
(quoting Gallardo v. Apfel, Civ. No. 96–9435, 1999
U.S. Dist. LEXIS 4085, at *15, 1999 WL 185253, at
*5 (S.D.N.Y. Mar.25, 1999) (citing Aponte, 728 F.2d
at 599; Ferraris, 728 F.2d at 582)). “A finding that
a [claimant] is not credible must ... be set forth with
sufficient specificity to permit intelligible plenary review
of the record. Williams, 859 F.2d at 260–61 (citation
omitted) (finding that failure to make credibility findings
regarding claimant's critical testimony undermines the
Secretary's argument that there is substantial evidence
adequate to support his conclusion that claimant is not
disabled). “Further, whatever findings the ALJ makes
must be consistent with the medical and other evidence.”
Id. at 261 (citation omitted) (“[A]n ALJ must assess
subjective evidence in light of objective medical facts and
diagnoses.”).
“Even where the administrative record may also
adequately support contrary findings on particular issues,
the ALJ's factual findings ‘must be given conclusive effect’
so long as they are supported by substantial evidence.”
Genier, 606 F.3d at 49 (citing Schauer v. Schweiker, 675
F.2d 55, 57 (2d Cir.1982)). An ALJ's evaluation of a
plaintiff's credibility is entitled to great deference if it is
supported by substantial evidence. Murphy v. Barnhart,
Civ. No. 00–9621, 2003 U.S. Dist. LEXIS 6988, at *29–30,
2003 WL 470572, at *10 (S.D.N.Y. Jan.21, 2003) (citing
Bischof v. Apfel, 65 F.Supp.2d 140, 147 (E.D.N.Y.1999);
Bomeisl v. Apfel, Civ. No. 96–9718, 1998 U.S. Dist. LEXIS
11595, at *19, 1998 WL 430547, at *6 (S.D.N.Y. July 30,
1998) (“Furthermore, the ALJ has discretion to evaluate
a claimant's credibility ... and such findings are entitled to
deference because the ALJ had the opportunity to observe
the claimant's testimony and demeanor at the hearing.”)).
Here, Plaintiff contends that the ALJ “failed to
demonstrate how Plaintiff's limited abilities to perform
arithmetic and video games demonstrate her ability to

work a regular and continuing basis (eight hours a day,
five days a week, or equivalent).” (Dkt. No. 11 at 11.)
This argument grossly understates the capabilities and
limitations for which the ALJ accounted in his decision.
The ALJ acknowledges that Plaintiff “has difficulty
balancing a checkbook and gets some assistance from her
mother in understanding letters that come in the mail and
caring for her personal needs,” but that she:
is able to maintain her personal
hygiene, read/write a simple note,
read Harry Potter books with some
difficulty with harder words, do
simple addition and subtraction, use
a microwave to prepare food, do
laundry, help clean, use a computer,
play video games, and socialize with
friends and family.
*7 (T. at 25.) He also notes that she was capable of
babysitting multiple children until at least 2009. Id.
In any case, whether or not the ALJ applied certain facts in
determining whether the Plaintiff was capable of working
eight hours a day for five days a week is a question of RFC
determination, not credibility. Therefore, this argument
will be discussed below. In stating these limitations and
capabilities in the decision, the ALJ has at least made some
determination of the credibility of the source testimony.
Plaintiff's second point, that the ALJ failed to make
a determination of credibility for Plaintiff's mother's
testimony, is equally invalid. The Commissioner argues
that the ALJ need not evaluate the credibility of third
party witnesses, only the claimant. (Dkt. No. 18 at 11.)
This argument is not necessary. The ALJ did evaluate the
credibility of Plaintiff's mother. In his decision, he writes,
“The claimant's mother reports that her daughter has
difficulty remembering things and finishing tasks,” but
that “the statements concerning the intensity, persistence,
and limiting effects of [Plaintiff's symptoms] are not fully
credible to the extent that they are inconsistent with the
evidence of record.” (T. at 26.) Although not explicit, the
second statement clearly encompasses statements made
by Plaintiff's mother as well as those by Plaintiff herself.
Therefore, the ALJ made a ruling that Plaintiff's mother's
testimony was not credible where it was inconsistent with
the evidence of record.

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Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

For the purposes of credibility assessment, the ALJ
followed the proper legal standard by first determining
that Plaintiff's alleged symptoms could be caused by her
underlying medically determinable mental impairment,
and then making findings of credibility on the statements
of the intensity, persistence, and limiting effects of
those symptoms. (T. at 26.) The legal standard does
not require that he find such statements credible, only
that he make a finding of credibility. He has done
so. Insofar as “the report of a consultative examiner
may constitute substantial evidence to support an ALJ's
decision” (Mongeur v. Heckler, 722 F.2d 1033, 1039
(2d Cir.2983)), the credibility findings are supported
by the substantial evidence of Dr. Noia's consultative
examination.

B. Dr. Caldwell's Medical Opinion
Plaintiff objects to the ALJ's decision to accord the
opinion of Dr. Caldwell less weight because it is
inconsistent with other evidence in the record. (Dkt. No.
11 at 8.)
The medical opinions of a treating physician are
given “controlling weight” as long as they are “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques” and are not inconsistent with
other substantial evidence contained in the record. 20
C.F.R. § 404.1527(d)(2) (2012). However, the regulations
differentiate between a “treating relationship” and an
“examining relationship.” 20 C.F.R. § 404.1527(c)(1)-(2).
In fact, an ALJ should not rely heavily on the findings of
consultative physicians after a single examination. Selian
v. Astrue, 708 F.3d 409, 419 (2d Cir.2013).
*8 However, there is no treating source in this case.
Plaintiff has not been tested for her mental impairments
since graduating high school. (T. at 324.) Therefore, the
ALJ was left with only two contradicting consultative
examiners and the State agency medical consultant.
State agency medical consultants are “highly qualified
physicians and psychologists who are also experts in
Social Security disability evaluation.” 20 C.F.R. §§
404.1527(f)(2)(I), 416.927(f)(2)(I). Unlike the opinions of
treating physicians, opinions of State agency medical
consultants are not presumptively entitled to any
particular weight. See 20 C.F.R. §§ 404.1527(f) (2)
(i), 416.927(f)(2)(I) (“Administrative law judges are not
bound by any findings made by State agency medical or

psychological consultants [.]”). However, such opinions
must be evaluated according to the criteria governing
all medical opinions. See 20 C.F.R. §§ 404.1527(f)(2)(ii),
416.927(f)(2)(ii). Moreover, “unless [a] treating source's
opinion is given controlling weight, the administrative law
judge must explain in the decision the weight given to
the opinions of a State agency medical or psychological
consultant[.]” Id.
“An ALJ is entitled to rely upon the opinion of a
State agency medical consultant, since such a consultant
is deemed to be a qualified expert in the field of
social security disability ... Such reliance is particularly
appropriate where, as here, the opinion of the State
agency physician is supported by the weight of the record
evidence, including the medical findings of Plaintiff's
examining and treating physicians.” Hildebrandt v.
Barnhart, No. 06–CV–0166, 2008 U.S. Dist. LEXIS
17973, at *27, 2008 WL 657258, at *9 (N.D.N.Y. March
7, 2008). See also Leach ex. Rel. Murray v. Barnhart, No.
02 Civ. 3561, 2004 U.S. Dist. LEXIS 668, at *26, 2004
WL 99935, at *9 (S.D.N.Y. Jan.22, 2004) (“State agency
physicians are qualified as experts in the evaluation of
medical issues in disability claims. As such, their opinions
may constitute substantial evidence if they are consistent
with the record as a whole.”).
In evaluating a medical opinion, an ALJ must consider:
(1) whether it is a treating or examining relationship; (2)
whether it is supported by the evidence cited; (3) whether
it is consistent with the record as a whole; (4) whether
the opinion was offered by a specialist; and (5) other
factors brought to his attention. 20 C.F.R. § 404.1527(c).
As to the third factor, the opinions of Dr. Noia and Dr.
Nobel are consistent with one another and the rest of
the record, with the exception of Dr. Caldwell's opinion,
which is inconsistent. On the other four factors, the three
medical opinions are roughly equal: none are treating
physicians, and both Noia and Caldwell are examining
physicians; they all support their own opinions with their
own observations; all three specialize in psychology; and
no other factors have been brought to the ALJ's attention.
*9 As to consistency with the record, testimony shows
that Plaintiff was capable of performing her duties at her
previous customer service position independently for three
years before she was dismissed. (T. at 337–41.) Nowhere in
the record has Plaintiff shown any reason that she would
be less able to perform those duties today. In fact, she

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Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

testified that she could have continued at that job if not
for unrelated medical issues that caused her to miss work.
(T. at 341.) Therefore, it is fully within the ALJ's discretion
to assign less weight to Dr. Caldwell's opinion insofar
as it is inconsistent with the record, which shows both
contradictory testimony and two contradictory medical
opinions. “It is up to the agency, and not this court, to
weigh the conflicting evidence in the record.” Clark v.
Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998).
The legal standard indicates that the ALJ is required
to explain the weight he has chosen to give to each
medical opinion. 20 C.F.R. § 416.927(e)(2)(ii). He has
done so. (T. at 26–28.) As above, Dr. Noia's consultative
examination may serve as substantial evidence. Mongeur,
722 F.2d at 1039. It is not sufficient to argue that Dr.
Caldwell's opinion is also substantial evidence, because
“[i]f the court finds that there is substantial evidence to
support the Commissioner's determination, the decision
must be upheld, even if there is substantial evidence for
the plaintiff's position.” Losquadro v. Astrue, No. 11–
CV–1798 (JFB), 2012 U.S. Dist. LEXIS 135703, at *16,
2012 WL 4342069, at *6 (E.D.N.Y. Sept.21, 2012) (citing
Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir.1998); Jones v.
Sullivan, 949 F.2d 57, 59 (2d Cir.1991)).

C. Concentration, Persistence, and Pace
The RFC can only be established when there is substantial
evidence of each physical requirement listed in the
regulations. Whittaker v. Comm'r of Soc. Sec., 307
F.Supp.2d 430, 440 (N.D.N.Y.2004) (citation omitted).
An RFC assessment must first identify the individual's
functional limitations or restrictions and assess his or
her work related abilities on a function-byfunction
basis. 20 C.F.R. §§ 404.1545, 416.945 (2012). Each
finding must be considered separately and the ALJ must
specify the functions Plaintiff is capable of performing;
conclusory statements regarding Plaintiff's capacities are
not sufficient. Roat, 717 F.Supp.2d at 267 (citation
omitted); SSR 96–8p, 1996 WL 374184, at *5 (S.S.A.
July 2, 1996) 4 . Each assessment must include a narrative
discussion describing how the evidence supports each
conclusion, citing specific medical facts and non-medical
evidence. SSR 96–8p.
Here, Plaintiff argues that the ALJ failed to account for
his own finding that Plaintiff suffers from “moderate
limitations in concentration, persistence, or pace” when

determining her RFC. (Dkt. No. 11 at 10.) Plaintiff
appears to be suggesting that this specific language should
appear in the ALJ's RFC analysis.
*10 During Step Three, the ALJ must consider whether a
claimant's mental impairment is sufficiently severe to meet
the requirements of listing 12.05. 20 C.F.R. § 404.1501
etseq. pt. 404P, app. 1 (2012). If a claimant's disability
meets listing 12.05, then the claimant is disabled. If not,
then the process proceeds to step four. Because Plaintiff
has an IQ between sixty and seventy, the requirements to
find disability are at least two of the following:
(1) marked restriction of activities of daily living; or
(2) marked difficulties
functioning; or

in

maintaining

social

(3) marked difficulties in maintaining concentration,
persistence, or pace; or
(4) repeated episodes of decompensation, each of
extended duration.
Id. In the ALJ's analysis, he determined that Plaintiff's
impairment in (3) was only “moderate,” one step lower
than the required level of “marked.” (T. at 25.) The other
three were all “mild” or nonxistent. Id.
These determinations are strictly for the purposes of a
step two and step three analysis of the severity of the
impairment, and as the ALJ notes in his decision, “the
mental [RFC] assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed
assessment by itemizing various functions contained
in the broad categories found in ... the Listing of
Impairments.” (T. at 25.) There is no requirement that an
ALJ use the same language from step two or three in the
RFC analysis, so the absence of the words “concentration,
persistence, or pace” in the ALJ's RFC assessment is not
per se error. On the contrary, such a statement would be
merely a conclusory statement about Plaintiff's abilities,
and would thus be insufficient. Roat, 717 F.Supp.2d at
267.
However, an ALJ is required to consider all symptoms
and the extent to which said symptoms can be reasonably
accepted as consistent with the objective medical evidence
and other evidence. 20 C.F.R. §§ 404.1529, 416.929. If
it can be shown that the itemized evidence which led to
the finding of a moderate limitation on “concentration,

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Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

persistence, or pace” was ignored during the RFC
assessment, then this would be error. This is not the case.
Specifically, the ALJ made his determination based on the
psychological analysis performed by Dr. Nobel, the State
agency medical consultant, who also found “moderate
difficulties in maintaining concentration, persistence or
pace.” (T. at 26.) Nevertheless, Dr. Nobel believed in
spite of this determination that Plaintiff was capable of
simple work. (T. at 193.) Therefore, the same evidence that
supports the ALJ's finding of a moderate limitation on
concentration, persistence or pace also supports a finding
of not disabled. The ALJ did consider these factors, and
Plaintiff's argument is without merit.

D. Past Relevant Work
To satisfy the statutory definition of disability, the
claimant must be not only unable to do their previous
work but also unable to engage in any other kind of
substantial gainful work which exists in the national
economy. 42 U.S.C. § 1382c(a)(3)(B). At step four of the
five step process the ALJ asks whether the claimant can
perform former relevant work. 20 C.F.R. §§ 404.1520(f),
416.920(f) (2014). A disability claimant bears the 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 it. 20 C.F.R. §§ 404 .1520(f),
416.920(f); see Diaz v. Shalala, 59 F.3d 307, 315 (2d
Cir.1995) (denying a claim where the plaintiff retained
the ability to perform her former job as a seamstress).
“[E]ven if the claimant cannot work the equivalent of 8
hours a day, for 5 days a week, ‘[p]art-time work that was
substantial gainful activity, performed within the past 15
years, and lasted long enough for the person to learn to do
it constitutes past relevant work, and an individual who
retains the RFC to perform such work must be found not
disabled.’ ” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999)
(citing SSR 96–8p at *8).
*11 Past relevant work, especially part-time work, is not
relevant unless it was substantial gainful activity. Id. at
53–54. “[P]roper assessment of whether past work was
substantial gainful activity requires evaluation of, inter
alia, how well the claimant performed her duties, whether
those duties were minimal and made little or no demand
on her, what her work was worth to the employer, and
whether her income was tied to her productivity. Id. at 54.
Here, Plaintiff argues that the ALJ's errors in determining
credibility and RFC make his determination that Plaintiff

can still perform her past relevant work unsupported by
substantial evidence. (Dkt. No. 11 at 12.) As discussed
above, the ALJ committed no error with regard to
credibility. The only remaining possible source of error
is Plaintiff's earlier claim that the ALJ did not assess
Plaintiff's capability to work on a “regular and continuing
basis,” that is, “eight hours a day, five days a week, or
equivalent.” Id. at 11.
First, the SSR that Plaintiff cites, which explains that
RFC should be assessed with regard to working “eight
hours a day, five days a week, or equivalent,” also
goes on to say that a part time job that falls short of
this schedule may still be considered past relevant work
if it was substantial gainful activity and the claimant
worked there long enough to learn how to do the job.
SSR 96–8p at *8. The mere fact that the ALJ did
not reference a “regular and continuing basis” is not
necessarily fatal. Furthermore, the ALJ's analysis was
concerned specifically with Plaintiff's job at the hospital
call center, which she testified was a full time job and
which she remained at long enough to be able to work
independently. (T. at 338–39.) Therefore, the ALJ was
considering Plaintiff's RFC with regard to a job which
had a full time schedule, and he determined her RFC
was sufficient for her to perform the job as she actually
performed it. (T. at 28.) He also determined that for
the final three years of her time in that position, it
was “substantial gainful activity” because she worked
independently, full time, and her limitations did not
impair her. Id.
Plaintiff then argues that the testimony of a vocational
expert is required because Plaintiff has alleged nonexertional impairments which limit her range of work
beyond her exertional impairments (here, there are no
exertional impairments). (Dkt. No. 11 at 12.) Plaintiff
is incorrect. A vocational expert or other vocational
evidence is only required at step five of the five step
analysis once the Plaintiff has met her burden through step
four. Butts v. Barnhart, 388 F.3d 377, 383–84 (2d Cir.2004)
(quoting Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir.1999)).
Plaintiff was found not disabled at step four, and thus
vocational expert testimony was never needed.
The Commissioner argues repeatedly that Plaintiff has
not met her burden. (Dkt. No. 18 at 1–2, 5, 9, 12.) This
is correct. Plaintiff bears the burden of proving that she
can no longer perform her past relevant work at the

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Peryea v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2014)

hospital call center as she actually performed it. 20 C.F.R.
§§ 404.1520(f), 416.920(f). Plaintiff worked independently
for three years at that job, and the record is devoid of
any indication that her mental limitations have in any way
worsened since she was dismissed. The job still exists under
a different name. (T. at 338.) There is no medical evidence
of any accident or deterioration that might indicate a
worsening of her mental state, and nowhere in the record
has Plaintiff described any change in her capabilities
since 2002, when she was fired. The only accident which
occurred since then was Plaintiff's ankle injury in 2003,
the same year as the alleged onset date in her application,
and the ALJ ruled out Plaintiff's claims with regard to that
injury as unsupported by medical evidence. (T. at 27.) In
fact, both the Plaintiff and her mother testified that her
employers were happy with her work and that she could
have continued at that job if not for missed time due to
surgery. (T. at 341, 370.) Plaintiff has failed to meet her
burden.

I recommend that the final decision of the Commissioner
be affirmed.

*12 The ALJ utilized proper legal standards at all stages
of his analysis, and the finding of not disabled is supported
by substantial evidence. For the reasons outlined above,

All Citations

WHEREFORE, it is hereby
RECOMMENDED, that
Commissioner be affirmed.

the

decision

of

the

Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir.1993) (citing Small v. Sec'y of Health
and Human Servs., 892 F.2d 15 (2d Cir.1989)); 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72.

Dated: July 15, 2014.

Not Reported in F.Supp.3d, 2014 WL 4105296

Footnotes

1
2

3
4

All citations to the record on appeal refer to the transcript. (Dkt. No. 9.)
The ALJ found that only Plaintiff's mild mental retardation qualified as a “severe impairment.” (T. at 23–24.) Plaintiff's
argument points to error in (1) the ALJ's consideration of psychiatric evidence; (2) the ALJ's failure to hear evidence from
a vocational expert for Plaintiff's mental limitations; and (3) the ALJ's credibility determinations. (Dkt. No. 11.) At no point
in these arguments does Plaintiff dispute the finding of the ALJ that only the mental limitation is at issue. Therefore, this
Court does not review that finding.
There is no Lexis citation for this source.
There is no Lexis citation for this source.

End of Document

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9

Vargas v. Astrue, Not Reported in F.Supp.2d (2011)
2011 WL 9518014

2011 WL 9518014
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Carlos M. VARGAS, Plaintiff,
v.
Michael J. ASTRUE, Commissioner
of Social Security, Defendant.
No. 09 Civ. 6606(BSJ)(DF).
|
Nov. 8, 2011.

REPORT AND RECOMMENDATION

was in a special education program until the ninth grade,
when he was forced to leave school because of learning
difficulties and bad behavior. (Id. at 28, 77.) Plaintiff has
always lived with his grandmother. (Id. at 27.) He has two
children, both of whom reside with their mother. (Id.)
Prior to leaving school, Plaintiff had been assessed
for his learning disabilities at least twice. In a May
30, 2001 psychological evaluation, School Psychologist
Zari Brasero reported that Plaintiff was “resistive
and uncooperative” and refused to complete the tasks
requested by the examiner. (Id. at 119.) The report
also indicates that Plaintiff appeared to be “inattentive
and disruptive and confrontational with adults” and
was functioning below grade level because of “excessive
absences and frequent class cutting.” (Id. at 120.) At the
time Plaintiff left school, his grade point average was
51.76. (Id. at 77.)

DEBRA FREEMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES,
U.S.D.J.:
INTRODUCTION
Plaintiff Carlos M. Vargas, Jr. (“Plaintiff”) seeks review
of the final decision of Administrative Law Judge
Mark Hecht (the “ALJ”) in favor of Defendant,
the Commissioner of Social Security (“Defendant” or
the “Commissioner”), denying Plaintiff Supplemental
Security Income (“SSI”) benefits under the Social Security
Act (the “Act”) on the ground that Plaintiff's impairments
did not constitute a disability for the purposes of the
Act. Defendant has moved pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure for judgment on the
pleadings affirming the decision of the ALJ (Dkt.10), and
Plaintiff has cross-moved for judgment on the pleadings
reversing the ALJ's decision (Dkt.12).
For the reasons set forth below, I respectfully recommend
granting Defendant's motion for judgment on the
pleadings and denying Plaintiff's cross-motion.

BACKGROUND 1
A. Plaintiff's Personal and Employment History
Plaintiff was born on May 18, 1987 and was 18 years old

A second evaluation completed a week later on June
7, 2001 reports a change in Plaintiff's attitude but
similar results in educational capacity. (Id. at 122.) In
that evaluation, Educational Evaluator Doris Fuentes
described Plaintiff as “a polite, compliant young man”
and wrote that he was “attentive during the entire testing
session.” Ms. Fuentes reported that he “worked diligently
to complete all of the tasks that were presented .” (Id.) The
report concludes that, although Plaintiff had been in the
ninth grade, his reading skills were at the lower fifth grade
level, his writing skills at the lower second grade level, and
his math skills at the lower sixth grade level. (Id. at 125.)
At the time of the hearing, Plaintiff had worked at four
separate jobs since leaving school. (Id. at 28–31.) Most
recently, he had worked in construction, installing sheet
rock. (Id. at 29.) In his hearing before the ALJ, he testified
that, after working for four months, he left that job on
his own accord in January 2007 because of pain in his
hands and legs from bone tumors. (Id. at 29, 31.) Plaintiff
testified that, since high school, he had also worked in a
factory “putting stuff in [a] machine (id. at 30),” he had
worked as an “Elderly Aide” in a Senior Citizen Center
(id. at 30, 141), and he had also done office work. (Id. at
30.) He reported difficulty in each of these positions due
to either nervousness or an inability to stand because of
swelling in his legs. (Id.) At the time of his hearing before
the ALJ, Plaintiff was 21 years old and had not worked in
a year and a half. (Id. at 31.)

on the date he alleges his disability began. 2 (R. at 11.) He
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B. Plaintiff's Medical History
1. Medical Records
*2 Plaintiff's initial disability report indicates that
Plaintiff claimed that multiple osteochondromatosis, 3
asthma, and a learning disability limited his ability to
work. (Id. at 140.)Plaintiff's medical records show that
he was treated in the emergency room for his asthma on
May 22, 2007. (Id. at 172.) During that visit, the attending
registered nurse reported that Plaintiff was “complaining
of shortness of breath” and exhibiting “lungs with
wheezing” and “mild respiratory distress.” (Id.) The
attending doctor ordered an “asthma protocol” and
continued monitoring. (Id.) For his asthmatic condition,
Plaintiff has been proscribed albuterol, asmacort, and
prenisone. (Id. at 144.)
Plaintiff's medical records also contain a handwritten
letter from Dr. Jyothi Kudakandira of Martin Luther
King Jr. Health Center, confirming that Plaintiff
had multiple osteochondromatosis. (Id. at 185.) Dr.
Kudakandira's note explains that, as a result of
“pain in the lower limbs due to the bony tumor
(swelling),” Plaintiff required a cane “most of the time he
walk[ed].” (R. at 185.)

2. Consultative Examinations
a. Dr. Barbara Akresh
On October 24, 2007, Dr. Barbara Akresh, an SSA
consultative physician, conducted an examination of
Plaintiff. (Id. at 176.) Dr. Akresh noted that Plaintiff had
pain in his right ankle and both knees that prevented
him from walking more than 10 blocks or two flights
of steps without experiencing pain and swelling. (Id.)
Plaintiff informed Dr. Akresh that he had been told
about a tumor on his left leg “which should have
some surgery.” (Id.) He had not consulted with his
orthopedist, however, since 2004—three years earlier. (Id.)
In examining Plaintiff's extremities, Dr. Akresh reported
“several abnormalities,” including bony prominences on
Plaintiff's arms and legs, and deformities on his hands and
feet. (Id. at 179.) Although Plaintiff's deformities included
shortened fingers on both hands, his hand and finger
dexterity was intact and his “grip strength” was reported
as “5/5 bilaterally.” 4 (Id.)

Dr. Akresh observed that Plaintiff had a “normal gait,”
yet could not walk on his toes or heels. (Id. at 178.)
Plaintiff used a cane that his doctor had given him four
years before the exam, but Dr. Akresh noted that his
“[g]ait with and without [the] device [was][the] same.” (Id.)
Dr. Akresh opined that the “cane [was] not medically
necessary at least for short distances,” and noted that
Plaintiff needed no help in rising from his chair, nor in
changing for the exam. (Id.)
During the examination, Plaintiff reported that, since
childhood, he had a history of asthma, which was
“exacerbated by exposure to smoke, pollens, change of
season, or if he had an upper respiratory infection.” (Id.
at 176.) Plaintiff had never been hospitalized for this
condition. (Id.) He had, however, been hospitalized for a
“left thoracotomy and rib resection” at the age of two, as
well as for a fractured left leg in 2002. (Id.) At some point
Plaintiff also suffered a fractured right forearm, but he was
not hospitalized for that injury. (Id.) Dr. Akresh's report
indicates that Plaintiff smoked cigarettes and marijuana.
(Id. at 177.) Plaintiff reported that, since 2003, he had
smoked marijuana three times a week and had smoked
up to a pack of cigarettes per day. (Id.) Plaintiff told Dr.
Akresh that he had been drinking since 2003, and, at the
time of the examination, he reported drinking a quart of
beer or liquor twice a week. (Id.)
*3 Dr. Akresh reported that, in Plaintiff's daily life,
Plaintiff had “moderate limitations in his ability to lift and
carry heavy objects or stand for any length of time.” (Id.
at 180.) According to Dr. Akresh, Plaintiff was able to
help his grandmother shop and did “a little cleaning once
a week.” (Id. at 176.) When shopping, however, Plaintiff
did not carry groceries. (Id.) Plaintiff reported that he was
able to shower and dress himself, and that he went out and
socialized with friends. (Id.) Dr. Akresh advised Plaintiff
to follow up with his physicians because of his asthmatic
condition and limitations in mobility. (Id. at 180.)

b. Dr. Edward Hoffman
Psychologist Dr. Edward Hoffman examined Plaintiff as
part of an SSA consultative intelligence evaluation on
December 14, 2007. (Id. at 186.) In assessing Plaintiff's
behavior, Dr. Hoffman described plaintiff as having a
pleasant demeanor and maintaining good eye contact. (Id.
at 187.) Dr. Hoffman indicated, though, that Plaintiff was
unable to follow test directions well and demonstrated
below average attention and concentration. (Id.) In the

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course of the examination, Dr. Hoffman administered
the Wechsler Adult Intelligence Scale, Third Edition
(WAIS–III), a standardized intelligence test. (Id.) On this
assessment, Plaintiff scored a 70 on the “Verbal Scale IQ,”
a 63 on the “Performance Scale IQ,” and a 64 on the
“Full Scale IQ.” (Id.) Dr. Hoffman noted that scores of
this nature in the verbal and performance areas indicated,
respectively, that Plaintiff was “borderline mentally
deficient” and had “deficient ranges of intelligence.” (Id.)
Dr. Hoffman reported that, in Plaintiff's daily activities,
Plaintiff cooked, did laundry, shopped, and took public
transportation by himself. (Id. at 187–88.) According to
Dr. Hoffman's report, Plaintiff was also able to shower
independently, select his clothes in the morning, and use
the telephone (id. at 188), although he was not able
to manage his funds independently (id. at 189). Dr.
Hoffman opined that, in totality, these characteristics
were evidence of “adequate adaptive functioning and
socialization skills.” (Id. at 188.)
Dr. Hoffman's report appears to be somewhat
inconsistent with respect to Plaintiff's ability to follow
directions and maintain attention (compare “Behavioral
Observation,” noting that “[Plaintiff] was not able
to follow test directions well. His attention and
concentration were below average” (id. at 187), with
“Medical Source Statement,” noting that “[v]ocationally,
[Plaintiff] appears to be able to understand and follow
simple and complex directions ... He can maintain
attention and concentration for rote tasks” (id. at 188)),
although it is unclear whether the different sections of
the report that touch on this subject relate to different
evaluative tests or call for different criteria to be applied.
*4 The “Medical Source Statement” portion of Dr.
Hoffman's report indicates abilities not mentioned in
other parts of the report. For example, Dr. Hoffman
reported there that Plaintiff could “perform simple tasks
independently” and that he could “regularly attend to a
routine, and maintain a schedule.” (Id.) Additionally, Dr.
Hoffman reported that Plaintiff could “learn new rote
tasks,” as well as “relate to other people appropriately”
and “make simple decisions.” (Id.) In the course of the
examination, Plaintiff told Dr. Hoffman that he smoked
marijuana every day and used cocaine twice a month,
but that he did not have a history of alcoholism. (Id.
at 186.) Overall, Dr. Hoffman diagnosed Plaintiff with
“cannabis abuse with learning problems,” mild mental

retardation, asthma, and bone disease. (Id. at 188.) Dr.
Hoffman recommended that Plaintiff enter a substance
abuse program and “be encouraged to study for his
GED and that his grandmother be involved with him in
family counseling.” (Id.) Dr. Hoffman stated that, with
“continued intervention and support,” Plaintiff would
find “symptom relief and maximize his abilities.” (Id.)

c. Dr. E. Kamin
On January 4, 2008, Plaintiff was given a Psychiatric
Review by SSA psychologist Dr. E. Kamin. (Id. at 190–
207.) In evaluating the Section 12.05 criteria for mental
retardation, 5 Dr. Kamin diagnosed Plaintiff as exhibiting
mild mental retardation (id. at 194), although Dr. Kamin's
report appears to evince conflicting opinions as to whether
Plaintiff satisfied the criteria of that section. At the top
of page five of the “Psychiatric Review Technique,” Dr.
Kamin checked boxes listing the requirements for Section
12.05, suggesting that Plaintiff met the requirements
under this section. Dr. Kamin, however, also checked the
box indicating “[a] medically determinable impairment
is present that does not precisely satisfy the diagnostic
criteria above.” (Id.)
In the “Summary Conclusions” portion of Dr. Kamin's
“Mental Residual Functional Capacity Assessment,” Dr.
Kamin indicated that Plaintiff was “Not Significantly
Limited” in 17 of the categories listed, and only
“Moderately Limited” in three of the categories. (Id.
at 204–05.) In the report's “Remarks” section, Dr.
Kamin also opined that, although Plaintiff had difficulty
following the test directions, he was “able to maintain
attention/concentration” and could understand simple
instructions to complete tasks. (Id. at 205–06.) Dr. Kamin
further wrote that Plaintiff showed “adequate adaptive
function and socialization skills” and that his impairments
were “severe but do not meet or equal [the] listing
level.” (Id. at 206.) Ultimately, Dr. Kamin found that
Plaintiff was able to “do entry level [substantial gainful
activity].” (Id.)

C. Procedural History
1. Plaintiff's Application for Benefits
Plaintiff filed an application for Supplemental Security
Income on September 4, 2007 (id. at 60), in which he
claimed that the onset date of his disability was June 15,
2005 (id.). Based on Dr. Kamin's evaluation, as described

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above, the Social Security Administration (“SSA”) denied
Plaintiff's application on January 16, 2008. (See id. at
40–43.) The SSA determined that Plaintiff's condition
was not severe enough to keep him from working, and
that the medical evidence and other relevant information
demonstrated that Plaintiff could perform light work at
a job involving simple tasks. (Id. at 43.) Subsequently,
Plaintiff requested a hearing on the matter before an
Administrative Law Judge. (Id. at 44–46.)

2. The Administrative Hearing
*5 On November 18, 2008, Plaintiff appeared pro se
before the ALJ. (Id. at 24.) After confirming that Plaintiff
understood the hearing and review process (id. at 24–26),
the ALJ questioned him about his level of independence.
(Id. at 27.) Plaintiff testified that he had always lived
with his grandmother and had never lived alone. (Id.) He
also indicated that he was unmarried, but had two small
children who lived with their mother. Plaintiff stated that
he was able to use public transportation by himself, but
did not drive. (Id. at 27–28.)
The ALJ then questioned Plaintiff about his education
and employment background. (Id. at 28.) Plaintiff testified
that he had completed the ninth grade, but had then been
“kicked out” of school for “behavior” when he was about
17 years old. (Id.) During his schooling, Plaintiff had been
placed in special education classes. (Id.) At the time of the
hearing, Plaintiff had not attended school in four years.
(Id.) During that period, he had worked at the four jobs
noted above, but, at the time of his hearing, he had not
worked for a year and a half. (Id . at 28–31.)
The ALJ next asked Plaintiff about his drug use. (Id. at
31–32.) Plaintiff testified that he used marijuana four or
five times a month for the pain he experienced. (Id. at 32.)
He also admitted to using cocaine. (Id.) When asked how
he payed for the drugs, Plaintiff said that his friends would
give drugs to him. (Id.)
The ALJ also questioned Plaintiff about his medical
history. (Id. at 33.) Plaintiff stated that he was born
with a bone condition that caused him to have pain in
his extremities. (Id.) When asked where, specifically, he
experienced the pain, he stated, “[i]t's in my ankles, my
knees, all the long bones, my arms, my hands.” (Id.)
Plaintiff testified that he was prescribed Tylenol for his
pain, but it did not really help him. (Id.) The ALJ then
questioned Plaintiff regarding his history of asthma. (Id.

at 34.) Plaintiff stated that he was affected by it when the
weather was changing and that he had last received asthma
treatment about a year previously. (Id.)
Finally, the ALJ asked about Plaintiff's physical
limitations. (Id.) Plaintiff testified that, while he did not
have difficulty sitting in one place, he did have trouble
standing for more than an hour. (Id. at 34–35.) Plaintiff
stated that he used a cane “once in a while,” when his legs
swelled up, but that he had not used one on the day of the
hearing because he had taken the train. (Id. at 35.) Plaintiff
estimated that he could lift or carry about 15 pounds. (Id.)
He also testified that he was able to go grocery shopping
by himself and that he played video games to occupy
himself. (Id.) When asked by the ALJ whether he could
work in a position similar to those he had held before,
Plaintiff said he could not because the standing would
cause his legs to swell. (Id . at 36.) When asked, however,
whether he could work in a job sitting down that would
not require him to lift more than 10 pounds, Plaintiff
responded, “Yeah. I could find, get a job like that.” (Id.
at 36–37.)
*6 At the end of the hearing, Plaintiff mentioned that
doctors had “found a bone that's up there in [his] head,”
which was causing him headaches. (Id. at 37.) Although
these headaches were not severe, Plaintiff testified that
he experienced them “most of the time.” (Id.) There does
not appear to be any additional information in the record
concerning this particular condition.

3. The ALJ's Decision
By Notice of Decision dated January 23, 2009, the
ALJ affirmed the Social Security Administration's initial
denial of benefits, finding that Plaintiff was not disabled
within the meaning of the Act and pertinent regulations.
(Id. at 8–21.) In particular, the ALJ found that, while
Plaintiff might not have been able to perform any of his
past relevant work, he nonetheless retained the residual
functional capacity to perform sedentary work, as defined
in 20 C.F.R. 416.967(a). (Id. at 13–14.)
In his written decision, the ALJ found that Plaintiff's
“medically determinable mental impairment of borderline
mental deficiency and mentally deficient range of
intelligence does not cause more than minimal limitation
in the claimant's ability to perform basic mental work
activities and is therefore nonsevere.” (Id. at 13.) The
ALJ supported this finding by noting that Plaintiff

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had demonstrated no limitations in daily living, social
functioning, concentration, or decompensation. (Id.)
Specifically, the ALJ pointed to Plaintiff's ability to
carry out basic activities such as cooking, doing laundry,
shopping, using public transportation independently, and
caring for his personal hygiene. (Id.)
Moreover, the ALJ accepted the conclusions of the
SSA examiners, detailed above, concerning the extent
of Plaintiff's physical limitations. (Id. at 20.) While
the ALJ found that Plaintiff exhibited symptoms of
physical challenges, the ALJ further found that Plaintiff's
“statements concerning the intensity, persistence and
limiting effects of these symptoms were not credible to
the extent they were inconsistent with the above residual
functional capacity assessment.” (Id. at 15.) Based on
the opinions of the examiners, the ALJ determined that
Plaintiff had retained the capacity to perform the demands
of the full range of sedentary work. (Id. at 21.) Ultimately,
based on Plaintiff's residual functional capacity, as well
as his age, education, and work experience, the ALJ
concluded that the applicable Medical–Vocational Rule
201.24 directed the finding that Plaintiff was not disabled.
(Id.)

D. The Motions Before This Court
Currently before the Court are the parties' cross-motions
for judgment on the pleadings. In his moving papers,
Defendant argues that the ALJ's determination that
Plaintiff was not disabled was supported by substantial
evidence and that the determination must therefore be
upheld. (See generally Def. Mem.; Reply Memorandum
of Law in Opposition to Plaintiff's Cross–Motion for
Judgment on the Pleadings and in Further Support of the
Commissioner's Motion for Judgment on the Pleadings,
dated Jul. 21, 2010 (“Def. Reply Mem.”) (Dkt.15).)
Plaintiff, for his part, argues that the record lacks
substantial evidence to support the ALJ's determination.
(See generally Plaintiff's Memorandum of Law in
Opposition to Defendant's Motion for Judgment on the
Pleadings and in Support of his Motion for Judgment on
the Pleadings, dated Jun. 4, 2010 (“Pl.Mem.”) (Dkt.13);
Plaintiff's Reply Memorandum of Law in Support of
His Motion for Judgment on the Pleadings, dated Aug.
16, 2010 (“Pl. Reply Mem.”) (Dkt.16).) In particular,
Plaintiff contends that (1) the ALJ failed to make a
proper assessment of the listing requirements for mental
retardation under 20 C.F.R. Pt. 404, Subpt. P, App. 1,
12.05(C) (Pl. Mem., at 10–14; Pl. Reply Mem., at 1–5); (2)

the ALJ failed to develop the record (Pl. Mem., at 15–18;
Pl. Reply Mem., at 6–9); and (3) the Commissioner failed
to meet his burden of proof that Plaintiff was capable of
performing other work in the national economy, and, in
connection with determining whether the Commissioner
had met this burden, the ALJ did not evaluate whether
Plaintiff's severe nonexertional impairments significantly
diminished his ability to work. (Pl. Mem., at 18–21; Pl.
Reply Mem., at 11–13.)

DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Standard of Review
*7 Judicial review of a decision of the Commissioner is
limited. The Commissioner's decision is final, provided
that the correct legal standards are applied and findings
of fact are supported by substantial evidence. 42 U.S.C. §
405(g); Shaw v. Chater, 221 F .3d 126, 131 (2d Cir.2000).
“ ‘Where an error of law has been made that might have
affected the disposition of the case, this [C]ourt cannot
fulfill its statutory and constitutional duty to review the
decision of the administrative agency by simply deferring
to the factual findings of the ALJ.’ “ Townley v. Heckler,
748 F.2d 109, 112 (2d Cir.1984) (citation omitted). Thus,
the Court must first ensure that the ALJ applied the
correct legal standards. See Tejada v. Apfel, 167 F.3d 770,
773 (2d Cir.1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d
Cir.1987).
The Court must then determine whether the
Commissioner's decision is supported by substantial
evidence. See Tejada, 167 F.3d at 773. Substantial
evidence “means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation
omitted). The Court must consider the record as a whole
in making this determination, but it is not for this Court to
decide de novo whether the plaintiff is disabled. See Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002) (“Where
the Commissioner's decision rests on adequate findings
supported by evidence having rational probative force,
we will not substitute our judgment for that of the
Commissioner.”); Schaal v. Apfel, 134 F.3d 496, 501 (2d
Cir.1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d
Cir.1997). The Court will uphold the Commissioner's
decision upon a finding of substantial evidence, even

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where contrary evidence exists. See Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir.1990) (“Where there is substantial
evidence to support either position, the determination is
one to be made by the factfinder.”); see also DeChirico v.
Callahan, 134 F.3d 1177, 1182–83 (2d Cir.1998) (affirming
an ALJ decision where substantial evidence supported
both sides).

B. The Five–Step Procedure for Evaluating a Claim of
Disability
To be entitled to benefits under the Act, a plaintiff
must establish that he or she has a “disability.” See
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). The
term “disability” is defined in the Act as an “inability 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); Balsamo, 142 F.3d at 79.
Moreover,
[a]n individual shall be determined
to be under a disability only if his
physical or mental impairment or
impairments are of such severity
that he is not only unable to
do his previous work but cannot,
considering his age, education, and
work experience, engage in any
other kind of substantial gainful
work which exists in the national
economy, regardless of whether such
work exists in the immediate area
in which he lives, or whether a
specific job vacancy exists for him,
or whether he would be hired if he
applied for work.
*8 42 U.S.C. § 423(d)(2)(A); see also 42 U.S.C. § 1382c(a)
(3) (B).
In evaluating a disability claim, the ALJ must follow the
five-step procedure set out in the regulations governing the
administration of Social Security benefits. See 20 C.F.R.
§ 404 .1520 (2010); Diaz v. Shalala, 59 F.3d 307, 311 n.
2 (2d Cir.1995); Berry v. Schweiker, 675 F.2d 464, 467
(2d Cir.1982) (per curiam). First, the ALJ must determine
whether the claimant is engaged in substantial gainful

activity. 20 C.F.R. §§ 404.1520(a) (4)(i), 416.920(a)(4)(i). If
not, the second step requires the ALJ to consider whether
the claimant has a “severe” impairment or combination
of impairments that significantly limit his or her physical
or mental ability to do basic work activities. Id. §§
404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). If the claimant
does suffer from such an impairment, then the third step
requires the ALJ to determine whether this impairment
meets or equals a listed impairment in Appendix 1 of the
regulations. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If
the claimant's impairment meets or equals one of those
listed, the claimant is presumed to be disabled “without
considering [the claimant's] age, education, and work
experience.” Id. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)
(iii), (d). If the presumption does not apply, then the fourth
step requires the ALJ to determine whether the claimant
is able to perform his or her “past relevant work.” Id.
§§ 404.1520(a)(4)(iv), 416.920(a)(4) (iv). Finally, if the
claimant is unable to perform his or her past relevant
work, the fifth step requires the ALJ to determine whether
the claimant is capable of performing “any other work”
that exists in the national economy. Id. §§ 404.1520(a)(4)
(v), (g), 416.920(a)(4)(v), (g).
In making a determination by this process, the ALJ must
consider four sources of evidence: “ ‘(1) the objective
medical facts; (2) diagnoses or medical opinions based on
such facts; (3) subjective evidence of pain or disability
testified to by the claimant or others; and (4) the claimant's
educational background, age, and work experience.’ “
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983)
(per curiam)).
Under the procedure set out in the governing regulations,
“[t]he claimant bears the initial burden of showing that
his impairment prevents him from returning to his prior
type of employment.” Berry, 675 F.2d at 467 (citation
omitted); see 20 C.F.R § 404.1520. Once it has been
determined that the claimant cannot perform his past
relevant employment, the Commissioner then has “the
burden of proving that the claimant still retains a residual
functional capacity to perform alternative substantial
gainful work which exists in the national economy.” Rosa
v. Callahan, 168 F .3d 72, 77 (2d Cir.1999) (quoting
Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986)); see
also Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir.1984)
(“The burden of proving disability is on the claimant.
However, once the claimant has established a prima facie

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case by proving that his impairment prevents his return
to his prior employment, it then becomes incumbent upon
the [Commissioner] to show that there exists alternative
substantial gainful work in the national economy which
the claimant could perform, considering his physical
capability, age, education, experience and training.”)
(citation omitted)).

C. The ALJ's Obligation To Develop a Complete
Record
*9 Because a hearing on disability benefits is a
non-adversarial proceeding, the ALJ generally has an
affirmative duty to develop the administrative record.
Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996) (citing
Echevarria v. Secretary of Health & Human Services, 685
F.2d 751, 755 (2d Cir.1982)). The Secretary's regulations
describe this duty by stating that, “[b]efore we make a
determination that you are not disabled, we will develop
your complete medical history ... [and] will make every
reasonable effort to help you get medical reports from
your own medical sources when you give us permission
to request the reports.” 20 C.F.R. § 404.1512(d); see also
20 C.F.R. § 416.912(d). Failure to develop the record
may be a ground for remand. Snell v. Apfel, 177 F.3d
128, 133 (2d Cir.1999). Additionally, if the information
obtained from the medical sources is insufficient to make
a disability determination or the Commissioner is unable
to seek clarification from treating sources, the regulations
provide that the Commissioner should ask the claimant to
attend one or more consultative evaluations. 20 C.F.R. §§
404.1512(f), 416.912(f).

II. THE ALJ'S DECISION
A. The ALJ's Application of the Five–Step Procedure
In this case, the ALJ, after proceeding through each of
the steps listed above, determined that Plaintiff was not
disabled. First, the ALJ found, and it is undisputed,
that Plaintiff had not engaged in substantial gainful
work activity since the alleged onset date of his claimed
disability, September 4, 2007. (R. at 13.) Second, while the
ALJ found that Plaintiff's mental retardation was “mild”
and “nonsevere,” the ALJ concluded that Plaintiff's
multiple osteochondromatosis, combined with his mild
mental retardation, as well as his asthma, created a “severe
impairment.” (Id.) 6 Third, the ALJ found that, despite
Plaintiff's medically determinable mental impairment,
Plaintiff did not have an impairment or combination of

impairments that met or equaled one of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.
at 14.) As this meant that Plaintiff was not presumed to be
disabled, the ALJ was required to continue to the fourth
and fifth steps of the analysis. At the fourth step, the ALJ
determined that Plaintiff did not have any past relevant
work. (Id. at 20.) Fifth, with the burden shifted to the
Commissioner to demonstrate that Plaintiff retained the
residual functional capacity to perform substantial gainful
work existing in the national economy, the ALJ found that
Plaintiff had the functional capacity to perform the full
range of sedentary work under 20 C.F.R. § 404.967(a). (Id.
at 14–20.)
Plaintiff now argues that the ALJ erred at step three,
or alternatively, at step five. At step three, Plaintiff
argues that the ALJ did not properly assess the evidence
concerning Plaintiff's deficits in adaptive functioning
and altogether failed to evaluate whether Plaintiff met
the requirements for the listed impairment of mental
retardation, as set out in 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.05(C). Plaintiff contends that the evidence of
record shows that he met the listing of Section 12.05(C),
and thus should have been presumed disabled. (Pl. Mem.,
at 12–14; Pl. Reply Mem., at 1–5 .) Plaintiff further argues
that, even if he did not meet the impairment listing, the
ALJ also erred at the fifth step of his analysis because
the evidence in the record was insufficient to justify a
finding that Plaintiff was actually capable of performing
sedentary work. (Pl. Mem., at 15–21; Pl. Reply Mem., at
6–9, 11–13.) For the reasons discussed below, this Court
finds that the ALJ's conclusion at step three was supported
by substantial evidence, and that the evidence in the
record further supports the ALJ's finding that Plaintiff
was capable of performing sedentary work.

B. Review of the ALJ's Decision
*10 Given that the ALJ followed the five-step procedure
set forth in the Social Security regulations, this Court's
review is limited to determining whether, in the course
of following that procedure, the ALJ correctly applied
the relevant legal principles, and whether his decision was
supported by substantial evidence.

1. Substantial Evidence Supports the ALJ's Decision at
Step Three.
As noted above, the third step in the disability assessment
requires an ALJ to determine whether a claimant's

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impairment meets or equals a listed impairment in
Appendix 1 of the regulations. 20 C.F.R. §§ 404.1520(a)(4)
(iii), 416.920(a)(4)(iii). If, at this step, the ALJ finds that
the claimant meets the listing requirement, he is presumed
disabled. (See id.)
Plaintiff claims that, in this case, the ALJ failed to
consider whether Plaintiff's impairment met or equaled
the listed impairment of “mental retardation,” as set forth
in Section 12.05 of the regulatory listings. Section 12.05
provides the diagnostic description of mental retardation,
and states:
Mental retardation: Mental retardation refers to
significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment
before age 22.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon
others for personal needs (e.g. toileting, eating,
dressing, or bathing) and inability to follow
directions, such that the use of standardized measures
of intellectual functioning is precluded;
Or
B. A valid verbal, performance, or full scale IQ of 59 or
less;
Or
B. A valid verbal, performance, or full scale IQ of
60 through 70 and a physical or other mental
impairment imposing an additional and significant
work-related limitation of function;
Or
D. A valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning;
or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or

4. Repeated episodes of decompensation, each of
extended duration.
20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.05. Plaintiff
specifically argues that he met the criteria of Subsection
C of this listed impairment. To establish disability under
Subsection 12.05(C), Plaintiff would have had to first
make a threshold showing—as would be necessary,
regardless of which subsection of the listing may be
implicated—that he had (a) “significantly subaverage
general intellectual functioning,” (b) “with deficits
in adaptive functioning,” (c) that manifested “before
age 22.” Then, under the particular requirements of
Subsection C, he would have had to go on to show that he
had (1) an IQ score between 60 and 70; and (2) a “physical
or other mental impairment imposing an additional and
significant work-related limitation of function.” Id.
*11 The only Section 12.05(C) criterion that is at
issue here is the requirement that Plaintiff have had
“deficits in adaptive functioning,” which, as noted
above, is part of the threshold requirement that applies
generally to all parts of Section 12.05. The parties do
not appear to dispute that Plaintiff had “significantly
subaverage general intellectual functioning,” and, as
Plaintiff's application for benefits, as well as his hearing
before the ALJ, both preceded Plaintiff's 22nd birthday,
it is obvious that, to the extent Plaintiff suffered from any
disability at that time, the disability had manifest “before
age 22 .” Further, there is little dispute that, based on
the record, Plaintiff met the additional severity criteria of
Subsection C. First, the IQ testing in the record placed
him with both sub-test and aggregate scores of between 60
and 70 (R. at 187), and, second, even the ALJ appears to
have accepted that Plaintiff's bone condition resulted in an
additional and significant work-related limitation (see R.
at 14 (finding Plaintiff limited to sedentary work) 7 ).
The parties do contest, though, whether the ALJ made the
necessary finding as to Paintiff's “adaptive functioning,”
and Plaintiff essentially argues that, even if the ALJ made
an adverse finding on this factual question, such a finding
is not supported by substantial evidence in the record. In
support of his arguments, Plaintiff first notes that, while
the ALJ's “Findings of Fact and Conclusions of Law”
include a statement that Plaintiff did not meet one of the
listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1
(R. at 14), the ALJ never specifically mentioned Section
12.05 (or Subsection 12.05(C)) in his decision, nor did he,

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at step three, provide an explicit analysis of the criteria of
that listing (see R. at 14). (Pl. Mem., at 11.) As for the
evidentiary record on the question of whether Plaintiff had
“deficits in adaptive functioning,” Plaintiff highlights the
medical diagnoses of “mild mental retardation” contained
in the record (see R. at 188, 194), as well as Plaintiff's
educational records (R. at 75–117), his testimony that he
lived with his grandmother, rather than with his children
(R. at 27), and the records that show that, since leaving
school in 2003, Plaintiff had never earned more than $300
in any year (R. at 73, 77). (Pl. Mem., at 12–13.) According
to Plaintiff, these portions of the record all reveal that
Plaintiff had deficits in day-to-day adaptive functioning.
(See id.) To the extent the record evinces any conflict on
the subject (as in the seeming inconsistency in Dr. Kamin's
evaluation, noted supra, at 8–9), Plaintiff argues that this
would merely show that remand would be necessary to
clarify the resulting confusion. (Pl. Mem., at 15–18.)
Defendant, on the other hand, asserts that the ALJ
made the necessary finding regarding Plaintiff's adaptive
functioning, and argues that the ALJ's finding against
Plaintiff on this issue was, in fact, supported by substantial
evidence in the record and thus should not be disturbed.
(Def. Mem., at 13–14.) In particular, Defendant contends
that the references to Plaintiff's “adequate adaptive
functioning” that appear in the medical reports of Drs.
Hoffman and Kamin (see R. 188, 204–05) are sufficient
evidence to support the denial of disability benefits (Def.
Mem., at 103–14). On a more detailed level, Defendant
points to several references in the reviewing physicians'
reports that attest to Plaintiff's ability to cope with
common life demands. (Def. Reply Mem., at 3.)
*12 Defendant, in this instance, has the better argument.
First, although it is true that the ALJ never refered to
Section 12.05 at step three of his analysis (or elsewhere in
his decision), he did refer—at step two of his analysis—
to Section 12.00 of the listings, an over-arching provision
that, inter alia, requires evaluation of the same “adaptive
functioning” criterion at issue here. (See R. at 13 (citing
20 CFR, Part 404, Subpart P, Appendix 1).) At step
two, with reference to Section 12.00, the ALJ made an
explicit finding that Plaintiff “show[ed] adequate adaptive
functioning.” (Id.) 8 In situations where the ALJ's analysis
contains enough information to enable this Court to
determine whether he made the requisite findings, his
failure to invoke an applicable standard does not, in
itself, require remand. Cf. O'Connor v. Astrue, 2009

U.S. Dist. LEXIS 94554, at *8–10 (W.D.N.Y. Oct. 9,
2009) (where ALJ did not employ the applicable medical
improvement review standard, the court analyzed the
ALJ's decision in its entirety to ascertain whether he
determined that the plaintiff had experienced medical
improvement (citing Lewis v. Barnhart, 201 F.Supp.2d
918, 932 (N.D.Ind.2002))). Here, although the ALJ
never expressly stated whether he had considered Listing
12.05(C), his findings at step two nonetheless demonstrate
the inapplicability of that listing.
As to whether the record contains substantial evidence
to support the ALJ's finding that Plaintiff had adequate
adaptive functioning, the Court notes that, while the
Commissioner has not defined the term “deficits in
adaptive functioning” see Ali v. Astrue, No. 09 Civ.
2123(JG), 2010 WL 889550, *5 (E.D.N.Y. Mar. 8,
2010), courts have analyzed adaptive functioning to
mean “a claimant's effectiveness in areas such as social
skills, communication, and daily living skills,” West
v. Commissioner of Social Security Administration, 240
Fed. Appx. 692, 698 (6th Cir.2007). At step two, not
only did the ALJ find that Plaintiff showed “adequate
adaptive functioning and socialization skills,” but the
ALJ specifically found that Plaintiff had no limitation in
activities of daily living. (R. at 13.) He stated that Plaintiff
“is able to cook, do laundry, and shop independently. He
can travel with public transportation independently. He
reads the newspaper and cares for his personal hygiene
without any assistance.” (Id.) The ALJ also found that
Plaintiff had no limitations in social functioning or in
concentration, persistence, or pace. (Id.) Finally, the
ALJ found that Plaintiff had experienced no episodes
of decompensation of extended duration. (Id.) These
findings are supported by substantial evidence in the
record, including the reports of Drs. Kamin (R. at 200,
206) and Hoffman (R. at 187–88), and Plaintiff's own
testimony at the hearing (R. at 28, 35). 9
Finally, the Court notes that, although, on his evaluation
form, Dr. Kamin checked a box indicating that Plaintiff
had “[s]ignificantly subaverage general intellectual
functioning with deficits in adaptive functioning” (R. at
194), this doctor ultimately concluded, in his own words,
that Plaintiff “can read the newspaper, can take the bus
and subway independently, [is] able to do his [activities
of daily living], cook, clean, shop independently[,] ...
has friends, pla[ys] video games, [and] shows adequate
adaptive function and socialization skills ...” (R. at 206).

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Thus, Dr. Kamin found that Plaintiff's impairments did
“not meet or equal [the] listing level.” (Id.) While the way
in which Dr. Kamin filled out the form may have led
to some minor confusion, his ultimate, detailed findings
regarding Plaintiff's adaptive functioning could not be
more clear. In any event, as discussed above, this Court
must uphold the Commissioner's decision upon a finding
of substantial evidence, even where contrary evidence
exists. (See supra, at 14.)
*13 Overall, this Court finds that the ALJ fulfilled
his duty to develop the administrative record and that
substantial evidence supports the ALJ's finding that
Plaintiff did not have “deficits in adaptive functioning.”
This, in turn, supports the ALJ's conclusion, at step three,
that Plaintiff had not demonstrated that he met or equaled
a listed impairment. Accordingly, I recommend that the
Court uphold the ALJ's finding at step three.

2. Substantial Evidence Also Supports the ALJ's
Determination, at Step Five, That Plaintiff Could
Perform Sedentary Work.
Plaintiff's second argument is that, even if Plaintiff did
not meet the listing requirements of 12.05(C), the ALJ
nonetheless erred in concluding that Plaintiff was capable
of performing sedentary work because Defendant did
not meet its burden of proof on this point, at step five
of the five-step analysis. (See Pl. Mem., at 183.) Under
the procedure set out in the Commissioner's regulations,
once it has been determined that a claimant cannot
perform his or her past relevant employment, the burden
shifts to the Commissioner to demonstrate that the
claimant is capable of performing any other work. See
20 C.F.R. § 404.1520; see also Mimms, 750 F.2d at 185
(“[O]nce the claimant has established a prima facie case
[of disability] by proving that his impairment prevents
his return to his prior employment, it then becomes
incumbent upon the [Commissioner] to show that there
exists alternative substantial gainful work in the national
economy which the claimant could perform, considering
his physical capability, age, education, experience and
training.”) (citations omitted). In determining whether
the Commissioner has met this burden of proof, the
ALJ, under appropriate circumstances, may rely on the
Medical–Vocational Guidelines contained in Appendix 2
of 20 C.F.R. Part 404, Subpart P, commonly referred to
as the “grid.” See Zorilla v. Chater, 915 F.Supp. 662, 667
(S.D.N.Y.1996).

The grid “takes into account the claimant's residual
functional capacity in conjunction with the claimant's
age, education and work experience. Based on these
factors, the grid indicates whether the claimant can engage
in any other substantial gainful work which exists in
the national economy.” Id. As a general matter, the
result listed in the grid is “dispositive on the issue of
disability.” Id. (citation omitted). If, however, a claimant's
nonexertional impairments “significantly” limit the range
of work permitted by a claimant's exertional limitations,
then application of the grid “will not accurately determine
disability status because [it] fail[s] to take into account
claimant's nonexertional impairments.” Bapp v. Bowen,
802 F.2d 601, 605 (2nd Cir.1986) (internal citation
and quotations omitted). “[W]here the claimant's work
capacity is significantly diminished beyond that caused
by his exertional impairment[,] the application of the
grid[ ] is inappropriate.” (Id. at 605–06.) “Significantly
diminish[ed]” means “the additional loss of work capacity
beyond a negligible one or ... one that so narrows a
claimant's possible range of work as to deprive him of a
meaningful employment opportunity.” (Id. at 606.) While
the grid is not dispositive in cases where the claimant has
nonexertional limits, it may still serve as a framework to
guide the ALJ's decision. 20 C.F.R. § 404.1569a(d); see
also Paulino v. Astrue, 08 Civ. 02813(CM)(AJP), 2010 U.S.
Dist. LEXIS 77070, *29, 85–88 (S.D.N.Y. July 30, 2010)
(using grid as framework and finding that substantial
evidence supported the ALJ's finding of no disability
at step five, in spite of ALJ's finding at step two that
claimant had the “severe impairments [of] lumbar spine
disorder, right ankle derangement, mental retardation,
and depression”).
*14 When evaluating a claimant with nonexertional
limitations, the ALJ must also consider whether the
range of work that a claimant could perform is so
“significantly diminished” as to require the introduction
of vocational testimony. Bapp, 802 F.2d at 606. In
other words, if an ALJ determines that nonexertional
limitations significantly diminish a claimant's ability to
perform the full range of work suggested by the grid,
then the ALJ should require the Commissioner to present
either the testimony of a vocational expert or other
similar evidence regarding the existence of jobs in the
national economy for an individual with the claimant's
limitations. Bapp, 802 F.2d at 603. “[T]he mere existence
of a nonexertional impairment does not automatically
require the production of a vocational expert nor preclude

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reliance on the guidelines.” Id. Rather, “application of the
grid guidelines and the necessity for expert testimony must
be determined on a case by case basis.” Id., at 605.
Here, Plaintiff argues that the ALJ already found that
Plaintiff's mild mental retardation and asthma, both
nonexertional limitations, were “severe impairments.” (Pl.
Reply Mem., at 11.) Yet the ALJ's actual finding,
to which Plaintiff cites, was that “[t]he claimant
has the following severe impairment: The claimant
has multiple osteochondromatosis and mild mental
retardation. Asthma (20 CFR 416.921 et seq.).” (R. at 13.)
Thus, the ALJ found only that Plaintiff's bone condition,
in combination with his mild mental retardation and
asthma, created a severe impairment; 10 indeed, the ALJ
expressly found that Plaintiff's mild mental retardation,
by itself, did not cause more than “minimal limitation in
[Plaintiff's] ability to perform basic mental work activities
and [was] therefore nonsevere.” (R. at 13 (emphasis
added).) As for Plaintiff's asthma, the ALJ noted that
Plaintiff smoked up to a pack of cigarettes a day and
smoked marijuana at least three times a week and, at
times, every day (R. at 17, 18)—evidence that suggested
that Plaintiff's asthma was also not severe. In the end,
the ALJ apparently accepted Dr. Akresh's conclusion that
there were “mild limitations in [Plaintiff's] ability to be
exposed to allergens secondary to his asthma.” (R. at 18.)
Overall, the ALJ's decision shows that he determined that
Plaintiff's nonexertional limitations were only “mild” or
“minimal,” and, as described above (see supra at 3–9),
the record contains substantial evidence to support this
determination.
As the Court has no basis to set aside the ALJ's supported
findings that Plaintiff's nonexertional limitations were
“minor” or “minimal,” there is also no basis for the
Court to conclude that these limitations “significantly
diminished” Plaintiff's ability to perform the full range
of work suggested by the grid. See Bapp, 802 F.2d at
606. Given the ALJ's findings that Plaintiff's mild mental
retardation did not “cause more than minimal limitation

in [Plaintiff's] ability to perform basic mental work
activities” (R. at 13), and that Plaintiff's asthma created
only “mild limitations” (R. at 18), it was appropriate for
the ALJ to rely on the grids. Further, for the same reason,
testimony from a vocational expert was not necessary. In
accordance with the grid, substantial evidence supports a
finding of “no disability” at step five.

CONCLUSION
*15 For the forgoing reasons, I respectfully recommend
granting Defendant's motion for judgment on the
pleadings (Dkt.10) and denying Plaintiffs cross-motion
(Dkt.12).
Pursuant to 28 U.S.c. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from service of this Report to
file written objections. See also Fed.R.Civ.P. 6. Such
objections, and any responses to objections, shaH be
filed with the Clerk of Court, with courtesy copies
delivered to the chambers of the Honorable Barbara S.
Jones, United States Courthouse, 500 Pearl Street, Room
1920, New York, N.Y. 10007, and to the chambers of
the undersigned, United States Courthouse, 500 Pearl
Street, Room 525, New York, N.Y. 10007. Any requests
for an extension oftime for filing objections should
be directed to Judge Jones. FAILURE TO OBJECT
WITHIN FOURTEEN (14) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL
PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn, 474 U.S. 140, 155 (1985); IUE AFL–CIO Pension
Fund v. Herrmann, 9 F.3d 1049, 1054 (2d CiT.1993); Frank
v. Johnson, 968 F.2d 298,300 (2d Cir.1992); Wesolek v.
Canadair Ltd., 838 F.2d 55,58 (2d CiT.1988); McCarthy v.
Manson, 714 F .2d 234,237–38 (2d Cir.1983).

All Citations
Not Reported in F.Supp.2d, 2011 WL 9518014

Footnotes

1
2

The background facts set forth herein are taken from the administrative record (referred to herein as “R.”), which includes,
inter alia, Plaintiff's medical records and the transcript of the November 18, 2008 hearing held before the ALJ, at which
Plaintiff testified.
Plaintiff initially filed his claim on September 4, 2007, alleging disability beginning on June 15, 2005.

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3

4
5

6
7

8

9

10

This condition is characterized by a presence of multiple benign tumors “consisting of projecting adult bone capped
by cartilage projecting from the lateral contours of endocondral bones.” (See Memorandum of Law in Support of the
Commissioner's Motion for Judgment on the Pleadings, dated May 6, 2010 (“Def.Mem.”) (Dkt.11) at 4 n. 2. (citing
Dorland's Illustrated Medical Dictionary 1333 (30th ed.2003)).) “Endocondral bones” are bones, like the long bones
of the arms and legs, that develop in, and replace, cartilage. See http://www.medterms.com/script/main/art. asp?
articlekey=10372.
The Medical Research Council (“MRC”) recommends the use of a 0–5 scale for measuring muscle strength; a grade of 5/5
means that the muscle contracts normally against full resistance. See http:// www.medicalcriteria.c om/site/index.php?
option=com.content & view =article & id=238#neuromrc & catid=64#neurology & Itemid=80 & lang=en.
Section 12.05 in the appendix of 20 C.F.R. Pt. 404, subpart P, provides a diagnostic description and four sets of criteria
for mental retardation. If a claimant's impairment satisfies the diagnostic description in the introductory paragraph and
any one of the four sets of criteria, an impairment will meet the listing. 20 C.F.R. Pt. 404, Subpt. P, App. 1; see also
infra, at 19–20.
The second heading under the ALJ's “Findings of Fact and Conclusions of Law” specifically states that “[t]he claimant has
the following severe impairment: The claimant has multiple osteochondromatosis and mild mental retardation. Asthma
(20 CFR 416 .921 et seq.).” (Id.)
The ALJ's statement, at step two of his analysis, that “[t]he claimant has the following severe impairment: The claimant has
multiple osteochondromatosis and mild mental retardation. Asthma” (R. at 13 (emphasis added)), also likely means that
the ALJ considered the osteochondromatosis to be a “significant impairment,” within the meaning of Section 12.05(C).
See Baneky v. Apfel, 997 F.Supp. 543, 547 (S.D.N.Y.1998) (“[T]he correct legal standard for determining whether an
“additional” impairment is “significant” within the meaning of Section 12.05(C) is whether the “additional” impairment is
“severe” within the meaning of 20 C.F.R. Section 404.1520(c).”)
In this regard, the ALJ stated that he had considered the “four broad functional areas set out in the disability regulations
for evaluating mental disorders [ ] in section 12.00C of the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix
1)” (R. 13.), which include activities of daily living, social functioning, concentration, persistence or pace, and episodes
of decompensation. 20 CFR, Part 404, Subpart P, Appendix 1, 12.00(1)(C).
Defendant specifically points to the reports of Drs. Hoffman and Kamin, who each found that Plaintiff demonstrated
“adequate adaptive functioning and socialization skills.” (Def. Reply Mem., at 3 (citing R. at 188, 206).) In addition,
Defendant emphasizes that “[t]he physicians who evaluated [P]laintiff properly relied on [P]laintiff's ability to: (1) take
public transportation independently, (2) go to the library, (3) go grocery shopping, (4) take care of personal care activities,
(5) shop for clothes, (6) do household chores, (7) handle money, and (8) get along with others.” (Pl. Reply Mem., at 3–
4 (citing R. at 27–28, 35, 147–53).)
See the ALJ's statements of the “Applicable Law”: “At step two, the undersigned must determine whether the claimant
has a medically determinable impairment that is “severe” or a combination of impairments that is “severe.” (R. at 12
(emphasis added).)

End of Document

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12

Ventura v. Barnhart, Not Reported in F.Supp.2d (2006)
2006 WL 399458

2006 WL 399458
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Julian VENTURA, Plaintiff,
v.
Jo Anne BARNHART, Commissioner
of Social Security Defendant.
No. 04 Civ. 9018(NRB).
|
Feb. 21, 2006.
Attorneys and Law Firms
Julian Ventura, New York, NY, for Plaintiff pro se.
John E. Gura, United States Attorney's Office, New York,
NY, for Defendants.

MEMORANDUM AND ORDER
BUCHWALD, J.
*1 Plaintiff Julian Ventura (“plaintiff”) brings this
action pursuant to Section 1631(c)(3) of the Social
Security Act (“the Act”), 42 U.S.C. § 1383(c)(3),
challenging a final decision of the Commissioner of
Social Security (“defendant” or the “Commissioner”)
denying his application for disability insurance benefits.
Defendant has moved for judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth
below, defendant's motion is granted.

BACKGROUND
On November 12, 2002, plaintiff filed an application
for Supplemental Security Income (“SSI”) disability
insurance benefits in which he alleged to have been
disabled since May 1, 2000. Tr. 52-54. 1 This application
was denied on December 24, 2002, Tr. 37-38, 40-43,
after which plaintiff requested a hearing before an
administrative law judge (“ALJ”). Tr. 44-45. The hearing
was held on April 22, 2004 before ALJ Mark S.
Sochaczewsky. Tr. 22-36. On June 10, 2004, the ALJ
issued a decision concluding that plaintiff was not

disabled. Tr. 10-21. Specifically, the ALJ found that
while plaintiff had medically determinable impairments
that cause “some degree of work related functional
limitations”, Tr. 18, he retained the residual functional
capacity (“RFC”) 2 to perform the requirements of his
past relevant work under 20 C.F.R. § 416.945. Tr.
19-20. This decision became the final decision of the
Commissioner when the Appeals Council denied review
on August 12, 2004. Tr. 3-7. This action followed. 3

FACTS
Plaintiff was born on March 15, 1958, in the Dominican
Republic and was forty-six years old at the time of the
April 2004 hearing. Tr. 17, 52. Plaintiff came to the United
States in 1977 and currently lives in upper Manhattan. Tr.
25-26, 37. Plaintiff indicated that he was educated through
the second or third grade and could not read or speak
English. Tr. 26, 55.
Plaintiff's relevant past work experience consists of
working at a fabric-cutting factory and a restaurant. Tr.
27-28. Plaintiff worked for four years as a floor-person at
a fabric-cutting factory, where he passed on work from
one person to another. Tr. 27-28. This position required
plaintiff to walk or stand for most of the workday and
carry objects weighing about ten pounds. Tr. 28, 57. Prior
to this job, plaintiff worked as a cleaner at a restaurant,
where he lifted no heavy objects. Tr. 28. 4

A. Plaintiff's Impairments
Plaintiff suffers from hepatitis B, hypertension, and
hypercholesterolemia. Tr. 20, 80. At the hearing, plaintiff
testified that he experienced severe back and shoulder
pain and abdominal swelling due to hepatitis. Tr. 29, 32.
Plaintiff testified that he was not taking any medication
for pain although previously he had taken pain medication
for one month, which relieved his pain for four to five
hours. Tr. 29-30. Plaintiff indicated that his hypertension
was controlled by medication but that he did not take any
medication for his hepatitis. Tr. 29, 104, 106.
*2 Plaintiff testified that he spent his days lying down or
watching television and did not cook, clean, shop, or do
any housework. Tr. 33. He further testified that he could
lift five to ten pounds, walk two to three blocks, stand for

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2006 WL 399458

about a half-hour, and sit for twenty to thirty minutes. Tr.
34.

B. Medical Evidence
On January 5, 2001, plaintiff was admitted to Bronx
Lebanon Hospital for one day of testing after blood
tests revealed abnormal liver function tests (“LFT's”).
Tr. 73-75. Plaintiff's reported medical history included
hepatitis B and C. Tr. 73. A liver biopsy revealed increased
iron deposits but the examining physician ruled out
“hemochromatosis/ siderosis (primary or secondary iron
overload) .” Tr. 75. The physician suggested “further
evaluation (iron studies) and clinical correlation,” Tr. 75,
and gave a principal diagnosis of abnormal LFT's. Tr. 74.
On June 13, 2002, an abdominal sonogram detected a
mildly inhomogeneous liver. Tr. 76-77. Plaintiff's other
structures were “grossly within normal limits.” Tr. 76.
In a report dated November 16, 2002, plaintiff's
treating physician, Dr. Echevarria, gave a diagnosis
of hypertension, hypercholesterolemia, and abnormal
LFT's. Tr. 80. Dr. Echevarria observed that plaintiff was
asymptomatic in his last visit in September 2002 and that
he had no complaints prior to that visit. Tr. 81, 84. She
further opined that plaintiff had no limitations in lifting,
carrying, standing, walking, sitting, pushing, or pulling.
Tr. 83.
On December 2, 2002, plaintiff was examined by
Dr. Antonio De Leon, a consulting internal medicine
physician. Tr. 87-90. Dr. De Leon's impression was
hypertension and chest pains. Dr. De Leon noted that
the plaintiff's abdomen was soft and non-tender, with
no masses, organomegaly, 5 or external hernia. Tr. 87.
Dr. De Leon observed that plaintiff's station and gait
were normal, and that he had no difficulty transferring
from a seated to standing position or getting on and off
the examination table. Id. Plaintiff was able to tandem
walk and to walk on the balls and heels of his feet. Tr.
88. Dr. De Leon also found that plaintiff's extremities
exhibited no abnormalities. Tr. 87. Plaintiff's spine and
joints had full range of motion without any evidence
of deformities, swelling, warmth, or tenderness. Tr. 88.
Plaintiff's heart tones were regular; no murmurs or
gallops were detected. Tr. 87. A neurological examination
revealed normal motor power, sensation, and reflexes. Tr.
88. The electrocardiogram (“EKG”) was unremarkable.

Tr. 88-90. He concluded that the plaintiff had no
limitations in sitting, and only mild limitations in lifting,
carrying, walking, and standing due to hypertension and
chest pains. Tr. 88.
On December 16, 2002, Dr. David Daly, a state agency
medical consultant, reviewed the medical evidence and
concluded that the plaintiff did not have a severe
impairment or any exertional limitations. Tr. 91. He also
advised against purchasing an exercise stress test given the
absence of objective evidence of coronary artery disease.
Id.
*3 An abdominal MRI taken on January 21, 2003
showed that plaintiff's liver was normal in size, contour,
and signal intensity. Tr. 98. In addition, the pancreas,
adrenal glands, and spleen were normal. Id.
In a September 2, 2003 report, 6 Dr. Animita Saha
assessed plaintiff's ability to perform work-related
activities. Tr. 99-102. Dr. Saha opined that plaintiff's
ability to lift and carry was limited to ten pounds. Tr. 99.
In addition, plaintiff's ability to push, pull, reach and to
perform gross manipulations was limited due to shoulder
pain. Tr. 100-101. However, Dr. Saha concluded that
plaintiff was not limited in his ability to stand, walk, or sit.
Tr. 99-100. He further opined that plaintiff could climb,
balance, kneel, and stoop occasionally but that he could
not crouch or crawl. Id.

DISCUSSION
Standard of Review
Under the Act, a person is entitled to Social Security
disability benefits when he or she is unable “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 twelve months.” 42 U.S.C. § 423(d)(1)
(A), 1382c(a)(3)(A); Melville v. Apfel, 198 F.3d 45, 50
(2d Cir.1999). Such a “physical or mental impairment”
must be supported by “medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)
(3), 1382c(a)(3)(D). Determinations of severity are based
on objective medical facts, diagnoses or medical opinions
inferable from these facts, subjective complaints of pain
or disability, and educational background, age, and work

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experience. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d
Cir.1983); Fishburn v. Sullivan, 802 F.Supp. 1018, 1023
(S.D.N.Y.1992).
The scope of judicial review in this context is limited.
The Commissioner's decision is deemed conclusive unless
it is not supported by substantial evidence in the record
or is based on an erroneous legal standard. 42 U.S.C. §
405(g); see Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999);
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998).
Substantial evidence has been defined as “more than a
mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)); Schaal v. Apfel, 134 F .3d 496,
501 (2d Cir.1998). If substantial evidence supports the
Commissioner's decision, then it must be upheld, even
if substantial evidence also supports the contrary result.
See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990)
(“Where there is substantial evidence to support either
position, the determination is one to be made by the
factfinder.”).
To facilitate our review of the Commissioner's findings,
we will briefly summarize the standard that applies to
plaintiff's claim.

The Five-Step Analysis
The Second Circuit has established a five-step analysis
to be followed by the Commissioner for determining
whether a plaintiff is eligible for disability benefits under
20 C.F.R. § 404.920(a)(4). First, the Commissioner should
consider whether the plaintiff is currently engaged in
substantial gainful activity. If he is not, the Commissioner
next should consider whether the plaintiff has a “severe
impairment” which significantly limits his physical or
mental ability to do basic work activities. If the plaintiff
has such an impairment, the third step requires the
Commissioner to determine whether the impairment is
listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 of the
regulations (“Appendix 1”). If the impairment is listed,
disability is presumed, and the plaintiff is considered
unable to perform substantial gainful activity. Otherwise,
the Commissioner must proceed to the fourth step and
determine whether the plaintiff retains the RFC to
perform his past work. If he is unable to perform his
past work, the final step requires the Commissioner to
determine whether there is other work within the national
economy which the plaintiff is qualified to perform. 20
C.F.R. § 416.920(a)(4); DeChirico v. Callahan, 134 F .3d

1177, 1179-80 (2d Cir.1998) (citing Berry v. Schweiker, 675
F.2d 464, 467 (2d Cir.1982).
*4 For each of the first four steps, the plaintiff bears the
burden of proof; the Commissioner bears the burden of
proof on only the last step. DeChirico, 134 F.3d at 1180
(citing Berry, 675 F.2d at 467); see also Melville, 198 F.3d
at 51.

The ALJ's Findings
The ALJ denied plaintiff's claim at the fourth step of
the above analysis. The ALJ determined that, while
the plaintiff suffered from a severe impairment or
combination of impairments, he retained the RFC to
return to his past work. Accordingly, the ALJ ruled that
plaintiff was not disabled within the meaning of the Act.
At step one, the ALJ found that plaintiff had not engaged
in substantial gainful activity since November 12, 2002.
Tr. 17, 20.
At step two, the ALJ examined whether plaintiff had
an impairment or combination of impairments defined
as “severe” under 20 C.F.R. § 416.920(c). 7 Tr. 18,
20. Based on medical evidence in the record, the
ALJ determined that plaintiff's hepatitis, hypertension,
and hypercholesterolemia qualified as severe within the
meaning of the regulations. Id.
However, at step three, the ALJ found that plaintiff's
impairments did not meet or medically equal one of the
listed impairments in Appendix 1. Tr. 18, 20. As required
by the five-step analysis framework, the ALJ proceeded to
step four to determine whether plaintiff retained the RFC
to perform the requirements of his past relevant work.
After examining plaintiff's medical history in the record,
the ALJ concluded that plaintiff's impairments, while
causing some functional limitations, did not “prevent him
from doing at least light work” as defined by 20 C.F.R. §
416.967(b). 8 Tr. 19-20. Specifically, the ALJ found that
plaintiff had a “residual functional capacity to lift and
carry objects weighing up to [twenty] pounds occasionally
and [ten] pounds frequently, and sit, stand and/or walk
for up to six hours each, with normal breaks, in an eight
hour workday.” Tr. 20. Moreover, the ALJ found that
plaintiff's subjective allegations of his limitations were not
credible to the extent alleged. Tr. 20. Lastly, the ALJ
examined plaintiff's previous work, and determined that

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his “past relevant work as a floorperson did not require
the performance of work-related activities precluded by
his residual functional capacity.” Id. 9
Accordingly, the ALJ concluded that plaintiff was not
eligible for disability insurance benefits under the Act. Tr.
21.

Review of the ALJ's Findings
Based on our review of the record, we find substantial
evidence to support the ALJ's determination that plaintiff
was capable of light work and therefore, not disabled
within the meaning of the Act.
Plaintiff's cumulative medical records demonstrate that
his various conditions did not, even in combination, result
in functional limitations so severe as to prevent him
from performing his past work. Plaintiff's hypertension
could only be characterized as mild 10 and was controlled
by medication. 11 Tr. 29. In addition, although plaintiff
alleged that he experienced abdominal swelling due
to hepatitis, no laboratory or physical examinations
corroborated his allegations. An abdominal sonogram in
June 2002 detected a mildly inhomogeneous liver but it
appears that no follow-up treatment was required. Tr.
76-77. An abdominal MRI taken 6 months later showed
that plaintiff's liver was normal in size, contour, and
signal intensity. Tr. 98. In addition, Dr. Echevarria, who
had been treating plaintiff since July 2001, reported that
plaintiff exhibited no symptoms during his last visit in
September 2002 and that he had no complaints prior to
that visit. Tr. 81, 84. Dr. De Leon also did not find any
abnormalities in plaintiff's EKG or during his physical
examination. Finally, plaintiff's claims of severe back
and shoulder pain and migraine headaches were further
unsubstantiated by medical evidence. In short, plaintiff
failed to carry his burden of proving that his impairments
were severe enough to constitute a disability under the
Act.

A. Plaintiff's Residual Functional Capacity
*5 Substantial evidence supports the ALJ's finding
that plaintiff retained the RFC to perform light work.
Specifically, the ALJ concluded that plaintiff was able to
“sit, stand and walk for up to six hours (with normal
breaks) in an eight hour workday, and lift, carry, push
and/or pull objects weighing up to 10 pounds frequently

and 20 pounds occasionally.” Tr. 18. This finding is
supported by Dr. Echevarria's opinion that plaintiff had
no work-related limitations, Tr. 83-84, as well as Dr.
De Leon's conclusion that plaintiff had no limitations
in sitting and only mild limitations in lifting, carrying,
walking, and standing. Tr. 88. 12
The ALJ did consider Dr. Saha's evaluation that plaintiff's
lifting or carrying ability was limited to objects weighing
less than ten pounds. Tr. 19, 99-100. However, the
ALJ decided against assigning controlling weight to
the opinion of Dr. Saha, a treating source, because it
was not supported by any clinical findings or other
medical evidence, and because it was inconsistent with the
opinion of Dr. Echevarria, another treating source. Tr.
19. We find that the ALJ's decision in this regard was
not erroneous. Regulations provide that, in evaluating
medical source opinions about a claimant's impairment,
the Commissioner gives controlling weight to opinions
from treating sources only if they are well supported by
medically acceptable clinical and laboratory diagnostic
techniques and are not inconsistent with other substantial
evidence of record. 20 C.F.R. § 416.927(d)(2); Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir.1999). The record
confirms that Dr. Saha's assessment was not supported by
clinical or laboratory diagnostic findings, Tr. 99-102, and
was inconsistent with the opinions of two other medical
sources and objective medical evidence. Therefore, the
ALJ's treatment of Dr. Saha's assessment comported with
the relevant regulations.
Moreover, Dr. Saha's opinion is not wholly inconsistent
with the ALJ's conclusion that plaintiff could perform his
past work because, according to plaintiff's testimony, his
job involved mostly standing and moving objects weighing
“about” ten pounds. Tr. 28. Although Dr. Saha found
that plaintiff was limited in his ability to lift and carry,
he opined that plaintiff had no limitations with respect to
walking or standing. Tr. 99.
In assessing plaintiff's RFC, the ALJ also evaluated the
credibility of plaintiff's subjective complaints of pain but
found them to be generally unsupported by the evidence.
Tr. 19. When evaluating subjective allegations of pain,
the ALJ must assess whether medical evidence shows
“the existence of a medical impairment ... which could
reasonably be expected to produce the pain or other
symptoms alleged.” 42 U.S.C. § 423(d)(5)(A). If there is
“conflicting evidence about a [plaintiff's] pain, the ALJ

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must make credibility findings.” Snell, 177 F.3d at 135. As
a fact-finder, the ALJ can accept or reject testimony, but
the ALJ's findings must be consistent with the evidence.
See Williams on Behalf of Williams v. Bowen, 859 F.2d
255, 260-61 (2d Cir.1988). When the alleged symptoms
suggests greater severity of impairment than the objective
medical evidence alone, the ALJ considers all the evidence
submitted, and considers “the extent to which there are
any conflicts between [claimant's] statements and the rest
of the evidence.” 20 C.F.R. § 416.929(c)(4).
*6 In assessing the credibility of plaintiff's subjective
pain, the ALJ noted that plaintiff had used pain
medication in the past for one month, which relieved his
symptoms for four to five hours, but had discontinued
its use for no apparent reason. Tr. 19, 30. The ALJ also
reviewed the medical evidence which failed to locate the
cause of pain plaintiff alleged. Based on our review of
the record, we find substantial evidence in support of the
ALJ's credibility finding. Accordingly, the ALJ properly
discounted plaintiff's subjective allegations of pain.

B. Past Relevant Work
Pursuant to the Social Security Act, plaintiff bears the
burden of demonstrating that “his physical or mental
impairment or impairments are of such severity that
he is ... unable to do his previous work....” 42 U.S.C.
1382c(a)(3)(B); See Parker v. Harris, 626 F.2d 225, 230
(2d Cir.1980). At his hearing, plaintiff testified that his
most recent job required that he walk or stand for most
of the workday and carry objects weighing about ten

pounds. 13 Tr. 27-28. However, plaintiff has produced
virtually no evidence to support his contention that he
was unable to perform his past work in the fabriccutting factory. Instead, the medical evidence in the
record strongly supports the contrary finding by the
ALJ. Although plaintiff is undeniably hampered by his
difficulty with the English language and his pro se status,
his statement that he “can't work,” Tr. 35, is simply not
enough to refute the substantial evidence that supports
the ALJ's determination. Based upon our review of the
record, we find that plaintiff has failed to meet his burden,
and moreover, that the ALJ's findings are supported by
substantial evidence. 14

CONCLUSION
Because we find that substantial evidence in the record
supports the Commissioner's determination that plaintiff
is not disabled and because the Commissioner did not
apply an erroneous legal standard, we hereby affirm the
decision to deny plaintiff benefits. Defendant's motion for
judgment on the pleadings is granted. The Clerk of the
Court is respectfully requested to close this case.
SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2006 WL 399458

Footnotes

1
2
3

4

“Tr.” refers to the administrative transcript filed with defendant's answer in accordance with 42 U.S.C. § 405(g).
The term “residual functional capacity” is defined as the most an individual can still do after considering the effects of
physical and/or mental limitations on the individual's ability to perform work-related tasks. 20 C.F.R. § 416.945.
Plaintiff's complaint includes a new allegation that he suffered a stroke and underwent surgery in 2004. Compl. 1. The
subject of this review is the ALJ's decision which found that plaintiff was not disabled from his application date of November
12, 2002 through the date of the ALJ's decision of June 10, 2004. An SSI claim remains in effect only through the date
of the ALJ's decision. 20 C.F.R. § 416.330. Despite our affirmance of the Commissioner's decision, nothing prevents
plaintiff from reapplying for benefits in the future, if he remains covered, on the ground that his medical condition has
changed since the Commissioner's last determination. See 20 C.F.R. § 416.330(b).
There are several inconsistencies in the record with respect to plaintiff's background and work history. At the April 2004
hearing, plaintiff testified that he worked at the fabric-cutting factory for four years. Tr. 27-28. In his initial application for
benefits, plaintiff stated he had worked at a textile factory from 1997 to 1999. Tr. 57. In addition, although his application
indicates that plaintiff lifted 25-50 pounds in this position, Tr. 57, he testified that he only lifted ten pounds. Tr. 27-28.
Finally, plaintiff stated on the application that he had completed the eighth grade, Tr. 62, but he testified that he had
completed only the third grade. Tr. 26. These inconsistencies do not affect our conclusion that the ALJ's findings were
based on substantial evidence.

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5
6

7
8

9

10
11
12
13
14

Organomegaly is an enlargement of the internal organs. Dorland's Illustrated Medical Dictionary, 1190, 1831, 1832 (28th
ed.1994).
Although the date on the record is actually listed as Sept. 2, 2004, Tr. 102, we note that this must be mistaken because
the ALJ's decision, citing Dr. Saha's report, was issued on June 10, 2004. Tr. 10. Furthermore, the “Recent Medical
Treatment” form submitted by plaintiff to the state agency indicates that Dr. Saha prescribed plaintiff three medications
on Dec. 1, 2003.
An impairment is not severe if it does not significantly limit an individual's physical or mental ability to do basic work
activities. 20 C.F.R. 416.920(c).
Light work requires lifting no more than twenty pounds at a time with frequent lifting and carrying of objects weighing up
to ten pounds. Even though the weight lifted may be very little, a job is in the light category when it involves a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.
20 C.F.R. § 416.967(b).
Because the ALJ found plaintiff was capable of performing his past relevant work, he did not need to determine whether,
based on plaintiff's age, education, work skills, and functional capacity, he could perform other types of work. However,
the ALJ proceeded to the final step of the five-step evaluation and determined that plaintiff was a younger individual with a
limited education. Tr. 19-20. These factors, in combination with plaintiff's RFC for light work, corresponded to Rule 202.16
of the medical-vocational guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2, which directs a finding that an individual with
this profile is not disabled. Tr. 20; 20 C.F.R. § 416.969.
Mild (stage 1) hypertension is characterized by a systolic reading of 140-159 or a diastolic reading of 90-99. The Merck
Manual of Diagnosis and Therapy, 1633 tbl.199-2 (17th ed.1999). Plaintiff's blood pressure readings of 110/90, Tr. 80,
and 120/90, Tr. 87, therefore are indicative of only mild hypertension.
Dr. Echevarria prescribed plaintiff Norvasc, Toprol, and Lotensin to treat hypertension. Tr. 61, 81. Plaintiff testified that
medications controlled his hypertension. Tr. 29.
Dr. De Leon's conclusion was itself substantiated by a normal neurological examination and his observations of plaintiff
having no difficulty performing basic movements. Tr. 87-88.
As we noted earlier, supra n. 4, plaintiff's testimony directly contradicted his statement in his application that he lifted
or carried objects weighing 25-50 pounds. Tr. 57. We see no reason why the ALJ was not entitled to rely on plaintiff's
testimony.
Even if we were to reverse this portion of the ALJ's decision, we still would not reverse the Commissioner's decision to
deny plaintiff benefits because the ALJ found that plaintiff was able to perform other jobs existing in significant numbers
in the national economy. Tr. 19-20. The ALJ reached this conclusion by applying the medical-vocational guidelines listed
at 20 C.F.R. Pt. 404, Subpt. P, App. 2. Id.; see supra n. 9. Reliance on medical-vocational guidelines has been affirmed
by the Supreme Court. Heckler v. Campbell, 461 U.S. 458, 467 (1983).

End of Document

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6

Walters v. Astrue, Not Reported in F.Supp.2d (2013)
2013 WL 598331, 187 Soc.Sec.Rep.Serv. 184

2013 WL 598331
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Sandra A. WALTERS, Plaintiff,
v.
Michael J. ASTRUE, Commissioner
of Social Security, Defendant.
No. 11–CV–640 (VEB).
|
Feb. 15, 2013.
Attorneys and Law Firms
Karen S. Southwick, Olinsky Law Group, Syracuse, NY,
for Plaintiff.
Sixtina Fernandez, John M. Kelly, Social Security
Administration, Office of Regional General Counsel, New
York, NY, for Defendant.

DECISION AND ORDER
VICTOR E. BIANCHINI, United States Magistrate
Judge.
I. INTRODUCTION
*1 In April of 2007, Plaintiff Sandra A. Walters applied
for supplemental security income (“SSI”) benefits and
disability insurance benefits (“DIB”) under the Social
Security Act. Plaintiff alleges that she has been unable
to work since April of 2005 due to physical impairments.
The Commissioner of Social Security denied Plaintiff's
applications.
Plaintiff, by and through her attorneys, Olinsky Law
Group, Karen S. Southwick, Esq., of counsel, bring
this action seeking judicial review of the Commissioner's
decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)
(3). The parties, by and through their respective counsel,
consented to the jurisdiction of a United States Magistrate
Judge on February 10, 2012. (Docket No. 15).

II. BACKGROUND
The relevant procedural history may be summarized as
follows:
On April 24, 2007, and April 26, 2007, Plaintiff applied for
SSI benefits and DIB, alleging that she had been unable
to work since April 15, 2005. (T at84–85, 93, 106, 514). 1
The applications were denied initially and Plaintiff timely
requested a hearing before an Administrative Law Judge
(“ALJ”). A hearing was held in Syracuse, New York, on
December 23, 2009, before ALJ Robert E. Gale. Plaintiff
appeared with her attorney and testified. (T at 10).
On March 26, 2010, ALJ Gale issued a written decision
finding that Plaintiff was not disabled within the meaning
of the Social Security Act during the relevant time period
and denying Plaintiff's claims for benefits. (T at 7–18). The
ALJ's decision became the Commissioner's final decision
on April 8, 2011, when the Appeals Council denied
Plaintiff's request for review. (T at 1–4).
Plaintiff, by and through her attorneys, timely
commenced this action by filing a Complaint on June
8, 2011. (Docket No. 1). The Commissioner interposed
an Answer on November 30, 2011. (Docket No. 8).
The parties, through their respective attorneys of record,
consented to the jurisdiction of a United States Magistrate
Judge on February 10, 2012. (Docket No. 16). Plaintiff
filed a Brief on March 2, 2012. (Docket No. 16). The
Commissioner filed a Brief on May 16, 2012. (Docket No.
20).
Plaintiff requests that this case be remanded for the
calculation of benefits. The Commissioner agrees that a
remand is warranted, but argues that the remand should
be for the purpose of rehearing and reconsideration of
certain issues (as opposed to the calculation of benefits).
Pursuant to General Order No. 18, issued by the Chief
District Judge of the Northern District of New York on
September 12, 2003, this Court will proceed as if both
parties had accompanied their briefs with a motion for
judgment on the pleadings. 2
For the reasons set forth below, the Commissioner's
motion is granted, Plaintiff's motion is denied, and this
case is remanded for further administrative proceedings.

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III. DISCUSSION
A. Legal Standard
A court reviewing a denial of disability benefits 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) (“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.”); see Grey
v. Heckler, 721 F.2d 41, 46 (2d Cir.1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir.1979).
*2 “Substantial evidence” is evidence that amounts to
“more than a mere scintilla,” and it 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, 28 L.Ed.2d
842 (1971). Where evidence is deemed susceptible to
more than one rational interpretation, the Commissioner's
conclusion must be upheld. See Rutherford v. Schweiker,
685 F.2d 60, 62 (2d Cir.1982).
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). 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).
The Commissioner has established a five-step sequential
evaluation process to determine whether an individual is
disabled as defined under the Social Security Act. See 20
C.F.R. §§ 416.920, 404.1520. The United States Supreme

Court recognized the validity of this analysis in Bowen
v. Yuckert, 482 U.S. 137, 140–142, 107 S.Ct. 2287, 96
L.Ed.2d 119 (1987), and it remains the proper approach
for analyzing whether a claimant is disabled. 3
While the claimant has the burden of proof as to the first
four steps, the Commissioner has the burden of proof on
the fifth and final step. See Bowen, 482 U.S. at 146 n. 5;
Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984).
The final step of the inquiry is, in turn, divided into two
parts. First, the Commissioner must assess the claimant's
job qualifications by considering his or her physical
ability, age, education, and work experience. Second, the
Commissioner must determine whether jobs exist in the
national economy that a person having the claimant's
qualifications could perform. See 42 U.S.C. § 423(d)(2)
(A); 20 C.F.R. §§ 416.920(g); 404.1520(g); Heckler v.
Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d
66 (1983).

B. Analysis
1. Commissioner's Decision
The ALJ determined that Plaintiff met the insured status
requirements of the Social Security Act through December
31, 2010, and had not engaged in substantial gainful
activity since April 15, 2005, the alleged onset date. (T at
12).
The ALJ found that Plaintiff had the following
impairments considered “severe” under the applicable
Social Security Regulations (the “Regulations”): tarsal
tunnel syndrome and lumbar radiculopathy. (T at 12).
However, the ALJ determined that Plaintiff's medically
determinable impairments did not meet or equal one of the
impairments listed in Appendix I of the Regulations (the
“Listings”). (T at 13).
*3 After reviewing the medical evidence, the ALJ
concluded that Plaintiff retained the residual functional
capacity to perform sedentary work as defined in 20
C.F.R. § 404.1567(a) and 416.967(a), except that she was
limited to occasional bending. (T at 13–17). The ALJ
found that Plaintiff could perform her past relevant work
as a clerk, as that job did not require the performance
of work-related duties precluded by Plaintiff's residual
functional capacity. (T at 17).

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Accordingly, the ALJ determined that Plaintiff had not
been under a “disability,” as that term is defined under the
Act, from the alleged onset date (April 15, 2005) through
the date of the ALJ's decision (March 26, 2010), and was
therefore not entitled to benefits. (T at 18). As noted
above, the ALJ's decision became the Commissioner's
final decision on April 8, 2011, when the Appeals Council
denied Plaintiff's request for review. (T at 1–4).

2. Remand
“Sentence four of Section 405(g) provides district courts
with the authority to affirm, reverse, or modify a decision
of the Commissioner ‘with or without remanding the
case for a rehearing.’ “ Butts v. Barnhart, 388 F.3d
377, 385 (2d Cir.2002) (quoting 42 U.S.C. § 405(g)).
Remand is “appropriate where, due to inconsistencies in
the medical evidence and/or significant gaps in the record,
further findings would ... plainly help to assure the proper
disposition of [a] claim.” Kirkland v. Astrue, No. 06 CV
4861, 2008 WL 267429, at *8 (E.D.N.Y. Jan.29, 2008).

limitations or restrictions and an assessment of the
claimant's work-related abilities on a function-byfunction 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 crouch.
20 C.F.R. § 404.1513(c)(1); §§ 404.1569a(a), 416.969a(a);
Martone v. Apfel, 70 F.Supp.2d 145, 150 (N.D.N.Y.1999).
Once the function-by-function analysis is completed, the
RFC may be expressed in terms of exertional levels
of work, e.g., sedentary, light, medium, heavy, and
very heavy. Hogan v. Astrue, 491 F.Supp.2d 347, 354
(W.D.N.Y.2007).
*4 The ALJ in this case did not provide a functionby-function analysis with regard to Plaintiff's physical
RFC. Rather, he simply expressed the RFC in terms of
an exertional level of work (i.e. sedentary work). (T at
13). The Second Circuit has not yet decided whether the
failure to provide a function-by-function assessment of a
claimant's RFC is per se grounds for a remand.

In the Second Circuit a remand for the sole purpose
of calculating benefits is the appropriate remedy if
“the record provides persuasive proof of disability and
a remand for further evidentiary proceedings would
serve no purpose.” Parker v. Harris, 626 F.2d 225,
235 (2d Cir.1980); see also Butts v. Barnhart, 388 F.3d
377, 385–86 (2d Cir.2004) (remand for calculation of
benefits warranted where there is “no apparent basis to
conclude that a more complete record might support the
Commissioner's decision....”) (quoting Rosa v. Callahan,
168 F.3d 72, 83 (2d Cir.1999)); Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir.1987) (remand for calculation of benefits
appropriate where record “compel[s] but one conclusion
under the ... substantial evidence standard.”).

At least three circuit courts of appeal have concluded
that a function-by-function analysis is desirable, but not
an absolute requirement if the rationale for the ALJ's
RFC assessment can be readily discerned. See Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir.2005) (“Preparing
a function-by-function analysis for medical conditions
or impairments that the ALJ found neither credible nor
supported by the record is unnecessary.”); Depover v.
Barnhart, 349 F.3d 563, 567 (8th Cir.2003) (an ALJ does
not fail in his or her duty to assess a claimant's RFC on
a function-by-function basis merely because the ALJ does
not address all areas regardless of whether a limitation is
found); Delgado v. Comm'r of Soc. Sec., 30 F. App'x 542,

a. ALJ's Failure to Provide Function–by–Function
Assessment
The Commissioner acknowledges that the ALJ's decision
was deficient and concedes that a remand is necessary
(Docket No. 20, at p. 2). In particular, as the
Commissioner recognizes, the ALJ erred by failing
to provide a function-by-function assessment of the
Plaintiff's residual functional capacity (“RFC”).

District courts in the Second Circuit have reached
conflicting conclusions. See, e.g., Wood v. Comm'r of
Soc. Sec., No. 06–CV–157, 2009 WL 1362971, at *6
(N.D.N.Y. May 14, 2009) (collecting cases); McMullen v.
Astrue, 05–CV–1484, 2008 WL 3884359, at *6 (N.D.N.Y.
Aug.18, 2008); Brown v. Barnhart, No. 01–CV–2962,
2002 WL 603044, at *5–7 (E.D.N.Y.Apr.15, 2002) (“In
sum, because the ALJ did not properly apply the legal
standard in Social Security Ruling 96–8p for assessing
residual functional capacity, I cannot properly conclude
that his finding that the claimant retained the residual
functional capacity to do her past work was supported

Pursuant to the Social Security Regulations, an ALJ's
assessment of the claimant's RFC must include a
function-by-function analysis of the claimant's functional

547 (6th Cir.2002). 4

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Walters v. Astrue, Not Reported in F.Supp.2d (2013)
2013 WL 598331, 187 Soc.Sec.Rep.Serv. 184

by substantial evidence.”); Matejka v. Barnhart, 386
F.Supp.2d 198, 208 (W.D.N.Y.2005) (“The ALJ's decision
did not address the plaintiff's ability to sit, stand, or
walk ... Since the ALJ failed to make a function-byfunction analysis of plaintiff's RFC, his determination
that she had the RFC for sedentary work is not supported
by substantial evidence.”); but see Casino–Ortiz v. Astrue,
2007 WL 2745704, at *13 (S.D.N.Y. Sept.21, 2007)
(sustaining ALJ's decision, notwithstanding failure to
provide function-by-function analysis); Novak v. Astrue,
No. 07 Civ. 8435, 2008 WL 2882638, at *3 & n.
47 (S.D.N.Y. July 25, 2008) (“The A.L.J. must avoid
perfunctory determinations by considering all of the
claimant's functional limitations, describing how the
evidence supports her conclusions, and discussing the
claimant's ability to maintain sustained work activity,
but she need not provide a narrative discussion for each
function.”); but see Martin v. Astrue, No. 05–CV–72, 2008
WL 4186339, at *16 (N.D.N.Y. Sept. 9, 2008) (declining
to remand, despite finding that the ALJ grouped the
functions in his function-by-function analysis because
“treating the activities separately would not have changed
the result of the RFC determination”).
*5 This Court has concluded that, in limited
circumstances, the ALJ's failure to provide a functionby-function analysis might constitute harmless error, 5
provided the absence of the analysis does not frustrate
meaningful review of the ALJ's overall RFC assessment
See Goodale v. Astrue, No. 11–CV–821, 2012 WL 6519946,
at *7 (N.D.N.Y. Dec. 13, 2012). However, with that
said, this Court has also taken great care to emphasize
that the function-by-function assessment is an important
regulatory requirement (which, ultimately, is designed to
ensure that careful consideration is given to any and all
of the claimant's work-related limitations) that should not
(and, indeed, may not) be lightly set aside or in any way
treated casually. See Desmond v. Astrue, No. 11–CV–0818,
2012 WL 6648625, at *6 n. 8 (N.D.N.Y. Dec. 20, 2012).
In the present case, the ALJ's failure to provide a functionby-function assessment frustrates meaningful review and
requires a remand. Social Security Ruling 96–9p provides,
in pertinent part, as follows:
The ability to perform the full
range of sedentary work requires
the ability to lift no more than 10
pounds at a time and occasionally to

lift or carry articles like docket files,
ledgers, and small tools. Although
a sedentary job is defined as
one that involves sitting, a certain
amount of walking and standing
is often necessary in carrying out
job duties. Jobs are sedentary if
walking and standing are required
occasionally and other sedentary
criteria are met. “Occasionally”
means occurring from very little up
to onethird of the time, and would
generally total no more than about
2 hours of an 8–hour workday.
Sitting would generally total about
6 hours of an 8–hour workday.
Unskilled sedentary work also
involves other activities, classified as
“nonexertional,” such as capacities
for seeing, manipulation, and
understanding, remembering, and
carrying out simple instructions.
Dr. Carrie Jones, Plaintiff's treating physician, opined that
Plaintiff was “appropriate for a sedentary position and
occasional 10 pounds lifting restriction.” (T at 379, 417).
However, Dr. Jones did not feel that Plaintiff could return
to her “prior position.” (T at 379).
Dr. John Cambareri, Plaintiff's treating orthopedic
surgeon, indicated that Plaintiff could perform “light duty
work” and was “temporarily disabled from her job.” (T at
239). Dr. Martin Schaeffer, a treating physician, opined
that Plaintiff was limited to “no weights greater than 10–
pounds and no repetitious type bending or lifting ....” (T
at 476).
The ALJ afforded “great weight” to these opinions. 6 (T
at 17). However, the ALJ appears not to have realized that
the treating providers did not expressly indicate whether,
for example, Plaintiff could sit for prolonged periods or
engage in the occasional walking or standing necessary
to perform sedentary work. Although Dr. Jones and Dr.
Cambareri used generic descriptions related to Plaintiff's
RFC (“sedentary” and “light duty” respectively), it is
not clear how they defined those terms and there is no
indication as to whether the doctors' definitions are coextensive with the definitions found in the Social Security
Regulations.

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*6 This is precisely the sort of gap the function-byfunction requirement is designed to avoid. In other words,
by requiring the ALJ to carefully consider each of the
various functional limitations, the function-by-function
requirement works to prevent the ALJ from making
assumptions, reaching conclusions not supported by the
evidence, or otherwise failing to recognize gaps in the
medical record.
Dr. Myra Shayevitz, the consultative examiner, opined
that “sitting in a prolonged manner is uncomfortable”
for Plaintiff and “there may be limitations which
are significant in any prolonged sitting, standing, or
walking.” (T at 440). The ALJ discounted this assessment
as inconsistent with the treating physicians' opinions. (T at
17). However, for the reasons outlined above, the treating
physicians did not actually provide functional assessments
concerning prolonged sitting, standing, or walking. The
general references to “sedentary” or “light duty” work
were not sufficient grounds upon which to discount
other evidence, including the opinion of a consultative
examiner, indicating limitations inconsistent with the
requirements of sedentary work. Before discounting Dr.
Shayevitz's opinion, 7 the ALJ should have re-contacted
the treating physicians and requested clarification of their
opinions concerning Plaintiff's functional limitations.
After further development of the record in this regard, the
ALJ should be sure to perform the function-by-function
assessment required under the Regulations.

b. Past Relevant Work
In addition, as the Commissioner acknowledges, the ALJ's
past relevant work analysis was flawed. “[I]n the fourth
stage of the SSI inquiry, the claimant has the burden
to show an inability to return to her previous specific
job and an inability to perform her past relevant work
generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d
Cir.2003) (citing SSR 82–62). A claimant is not disabled
if she can perform her past relevant work, either as she
actually performed it, or as it is generally performed in
the national economy. See SSR 82–61; Jock v. Harris, 651
F.2d 133, 135 (2d Cir.1981) (noting that “the claimant has
the burden to show an inability to return to her previous
specific job and an inability to perform her past relevant
work generally”).

“Determination of the claimant's ability to perform
past relevant work requires a careful appraisal of
(1) the individual's statements as to which past work
requirements can no longer be met and the reason(s)
for his or her inability to meet those requirements; (2)
medical evidence establishing how the impairment limits
ability to meet the physical and mental requirements
of the work; and (3) in some cases, supplementary or
corroborative information from other sources such as
employers, the Dictionary of Occupational Titles, etc., on
the requirements of the work as generally performed in the
economy.” Speruggia v. Astrue, No. 05–CV–3532, 2008
WL 818004, at *12–*13 (E.D.N.Y. Mar.26, 2008).
*7 In this case, the ALJ found that Plaintiff was capable
of performing her past relevant work as a clerk. (T at
17). The ALJ's finding is supported by two sentences
of text. In the first sentence offered in support of his
find, the ALJ referenced the Dictionary of Occupational
Titles (“DOT”) and noted that the DOT identifies clerk
positions at the sedentary level that begin with a specific
vocational preparation (“SVP”) score of 2. 8 In the second
sentence, the ALJ summarily stated that a comparison of
Plaintiff's RFC and “the physical and mental demands of
this work” indicate that Plaintiff is able to perform the
work as it is generally performed. (T at 17).
However, the DOT lists numerous different types of
“clerk” with differing exertional and non-exertional
demands (e.g. shipping and receiving clerk, stock clerk,
administrative clerk, file clerk, production clerk, sales
clerk, data entry clerk, railroad-maintenance clerk). The
ALJ did not identify which of the clerk positions he
considered and which of the positions had physical
and mental demands consistent with Plaintiff's RFC.
Moreover, Plaintiff provided a description of the work
requirements of her past relevant work as a clerk (T
at 118), but the ALJ's conclusory, two-sentence decision
does not indicate whether he considered the exertional
and nonexertional demands of Plaintiff's work as actually
performed.
The ALJ's analysis at step four clearly did not satisfy the
applicable standard, which requires “a careful appraisal
of (1) the individual's statements as to which past work
requirements can no longer be met and the reason(s)
for his or her inability to meet those requirements; (2)
medical evidence establishing how the impairment limits
ability to meet the physical and mental requirements

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2013 WL 598331, 187 Soc.Sec.Rep.Serv. 184

of the work; and (3) in some cases, supplementary or
corroborative information from other sources such as
employers, the Dictionary of Occupational Titles, etc., on
the requirements of the work as generally performed in the
economy.” SSR 82–62. A remand for reconsideration and
clarification on this point is therefore necessary.

c. Remand for Rehearing and Further Development of
the Record
For the foregoing reasons, this Court has no hesitancy in
granting the Commissioner's motion requesting remand.
This Court finds that a remand for rehearing is
appropriate, as opposed to a remand solely for the
purpose of calculating benefits.
As noted above, courts should remand for development
of the evidence (as opposed to solely for calculation and
payment of benefits), “[w] here there are gaps in the
administrative record or the ALJ has applied an improper
legal standard.” Rosa v. Callahan 168 F.3d 72, 82–83
(2d Cir.1999) (quotation omitted); see also Williams v.
Apfel, 204 F.3d 48, 50 (2d Cir.1999) (holding “a remand
for further proceedings is the appropriate remedy when
an erroneous step four determination has precluded any
analysis under step five”).
*8 This Court finds that a remand for calculation of
benefits, which is appropriate only where the record
“compel[s] but one conclusion under the ... substantial
evidence standard,” Johnson v. Bowen, 817 F.2d 983,
986 (2d Cir.1987), is not warranted here. Itis possible
that, upon further development of the record and
reconsideration, the ALJ may conclude that Plaintiff
is not disabled. Two of her treating physicians found
her capable of performing some work (described in
one instance as “sedentary” and in another as “light
duty”). It may be the case that the treating physicians'
definitions of those terms and assessments of Plaintiff's
limitations do support a finding that Plaintiff was not
disabled within the meaning of the Social Security Act
during the relevant time period. As such, a remand for

reconsideration (as opposed to calculation of benefits)
is the appropriate remedy. See Rodriguez v. Astrue, No.
11–Civ–7720, 2012 WL 4477244, at *42 (S.D.N.Y. Sep't
28, 2012) (“Depending on the nature of any additional
evidence procured by the ALJ to fill gaps in the record
and his supplemental findings, it is certainly possible that
he may defensibly conclude that plaintiff is not disabled.
Hence we recommended that the court order remand for
reconsideration rather than calculation of benefits.”).

III. CONCLUSION
For the foregoing reasons, this case is remanded to
the Commissioner for further administrative proceedings
pursuant to sentence four of Section 405(g).

IV. ORDERS
It is hereby ORDERED that the Commissioner's motion
for judgment on the pleadings, which requests a remand
for rehearing and reconsideration, is GRANTED; and it
is further
ORDERED, that Plaintiff's motion for judgment on the
pleadings is DENIED to the extent it requests a remand
solely for the calculation of benefits; and it is further;
ORDERED, that this case is remanded to the
Commissioner of Social Security for further proceedings
consistent with this Decision and Order; and it is further
ORDERED, that the Clerk of the Court shall enter
judgment accordingly.

SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2013 WL 598331, 187
Soc.Sec.Rep.Serv. 184

Footnotes

1
2
3

Citations to “T” refer to the Administrative Transcript. (Docket No. 9).
General Order No. 18 provides, in pertinent part, that “[t]he Magistrate Judge will treat the proceeding as if both parties
had accompanied their briefs with a motion for judgment on the pleadings .”
This five-step process is detailed as follows:

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2013 WL 598331, 187 Soc.Sec.Rep.Serv. 184

4

5
6

7

8

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 has 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.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d
Cir.1999); 20 C.F.R. §§ 416.920, 404.1520.
The Third Circuit and Seventh Circuit have reached similar conclusions, albeit in unpublished decisions. See Bencivengo
v. Comm'r of Soc. Sec., 251 F.3d 153 (3d Cir.2000)) (“Although SSR 96–8p requires a ‘function-by-function evaluation’
to determine a claimant's RFC, case law does not require the ALJ to discuss those capacities for which no limitation
is alleged.”); Zatz v. Astrue, 346 F. App'x 107, 111 (7th Cir.2009) (“[A]n ALJ need not provide superfluous analysis of
irrelevant limitations or relevant limitations about which there is no conflicting medical evidence.”).
Several courts have recognized the general applicability of the harmless error rule to the review of disability denial claims.
See, e.g., Duvergel v. Apfel, No. 99 Civ. 4614, 2000 WL 328593, at *11 (S.D.N.Y.Mar.29, 2002); Walzer v. Chater, 93
Civ. 6240, 1995 WL 791963 at *9 (S.D.N.Y.Sept.26, 1995).
Under the “treating physician's rule,” the ALJ must give controlling weight to the treating physician's opinion when the
opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31–
32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000).
Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless
give it “extra weight” under certain circumstances. In this regard, the ALJ should consider the following factors when
determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length
of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship,
(3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are
brought to the attention of the court. C.F.R. § 404.1527(d)(1)-(6); see also de Roman, 2003 WL 21511160, at *9; Shaw,
221 F.3d at 134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503
(2d Cir.1998).
It is well settled that an ALJ is entitled to rely upon the opinions of both examining and non-examining State agency
medical consultants, since such consultants are deemed to be qualified experts in the field of social security disability. See
20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(f)(2), 416.912(b) (6), 416.913(c), and 416.927(f)(2); see also Leach
ex. Rel. Murray v. Barnhart, No. 02 Civ. 3561, 2004 WL 99935, at 9 (S.D.N.Y.Jan.22, 2004) (“State agency physicians
are qualified as experts in the evaluation of medical issues in disability claims. As such, their opinions may constitute
substantial evidence if they are consistent with the record as a whole.”).
SVP “is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information,
and develop the facility needed for average performance in a specific job—worker situation. An SVP of 2 means anything
beyond a short demonstration, up to and including one month.” Reynolds v. Comm'r of Social Security, No. 11–CV–778,
2012 2050410, at *5 n. 2 (N.D.N.Y. June 6, 2012).

End of Document

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7

Warthan v. Commissioner of Social Security, Slip Copy (2017)
2017 WL 79975

2017 WL 79975
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Sandra J. Warthan, Plaintiff,
v.
Commissioner of Social Security, Defendant.
7:16-CV-0036 (GTS)
|
Signed 01/09/2017
Attorneys and Law Firms
CONBOY, McKAY, BACHMAN & KENDALL, LLP,
407 Sherman Street, OF COUNSEL: PETER L.
WALTON, ESQ., Watertown, NY 13601, Counsel for
Plaintiff.
U.S. SOCIAL SECURITY ADMIN., OFFICE OF
REG'L GEN. COUNSEL—REGION II, 26 Federal
Plaza, Room 3904, OF COUNSEL: TOMASINA
DiGRIGOLI, ESQ., Special Assistant U.S. Attorney,
New York, NY 10278, Counsel for Defendant.

DECISION and ORDER
GLENN T. SUDDABY, Chief United States District
Judge
*1 Currently before the Court, in this Social Security
action filed by Sandra J. Warthan (“Plaintiff”) against
the 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, 15.) 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 in 1970. The highest level of education
that she achieved was completing the sixth grade
in school. Plaintiff's employment history consists of
working as a factory-line assembler, stock clerk, and
cashier. Generally, Plaintiff's alleged disability consists

of post-traumatic stress disorder (“PTSD”), depression,
anxiety, mild arthritis, stomach tremors, fibromyalgia,
degenerative disc disease, and joint problems. Plaintiff's
alleged disability onset date is May 31, 2005.

B. Procedural History
On August 25, 2010, Plaintiff applied for Supplemental
Security Income and Social Security Disability Insurance.
(Tr. 291-294.) Plaintiff's application was initially denied
on December 20, 2010, after which she timely requested
a hearing before an Administrative Law Judge (“the
ALJ”). (Tr. 136-141, 144.) On December 15, 2011,
Plaintiff appeared before the ALJ, Marie Greener. (Tr.
80-109.) On February 27, 2012, the ALJ issued a
written decision finding Plaintiff not disabled under the
Social Security Act. (Tr. 112-131.) Thereafter, Plaintiff
filed a request for review, and, on July 23, 2013,
the Appeals Council remanded the case. (Tr. 132-35.)
Specifically, the Appeals Council instructed the ALJ
to reexamine the following five issues: (1) the severity
of Plaintiff's fibromyalgia; (2) the vocational evidence
regarding the extent to which Plaintiff's limitations erode
the occupational base for light work; (3) the issue of
disability; (4) Plaintiff's subjective complaints; and (5)
Plaintiff's maximum residual functional capacity. (Id.)
On July 9, 2014, Plaintiff appeared before the ALJ for
a second hearing. (Tr. 45-79.) On September 18, 2014,
the ALJ issued a written decision that was once again
unfavorable to Plaintiff. (Tr. 17-44.) On December 7,
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 her decision, the ALJ made the following
six findings of fact and conclusions of law. (Tr. 17-34.)
First, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since May 31, 2005, her
alleged onset date. (Tr. 23.) Second, the ALJ found
that Plaintiff had the following three severe impairments:
(1) an affective disorder (variously characterized), (2)
an anxiety disorder (variously characterized), and (3)
cervical spine degenerative changes. (Tr. 23-26.) 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.

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Warthan v. Commissioner of Social Security, Slip Copy (2017)
2017 WL 79975

26-28.) In so doing, the ALJ considered the listings in
Sections 12.04 and 12.06 (the “Listings”) and the criteria
in Paragraphs B and C. (Id.) Fourth, the ALJ found that
Plaintiff had the residual functional capacity (“RFC”) to
perform unskilled light work in a low-stress environment
and that she should be limited to routine daily tasks,
which do not significantly change in pace or location on
a daily basis, and that do not require fast-paced work
and more than short interactions with supervisors, coworkers, and no more than occasional interaction with
the public. (Tr. 28.) Fifth, the ALJ found that Plaintiff
is unable to perform any past relevant work. (Tr. 36.)
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. (Tr. 36-38.)

II. THE PARTIES' BRIEFINGS
A. Plaintiff's Arguments
*2 Generally, Plaintiff makes the following five
arguments in support of her motion for judgment on the
pleadings.
First, Plaintiff argues that the ALJ failed to properly
assess the severity of her symptoms of fibromyalgia. (Dkt.
No. 11, at 15-17 [Pl.'s Mem. of Law].) 1 Specifically,
Plaintiff argues that the ALJ failed to find that her
widespread physical pain constituted a severe impairment
because (a) the medical evidence of record clearly
shows that she complained of such pain since 2006,
(b) she treated with Dr. Andrew Hillburger, M.D., a
neurlogist, and at North Country Neurology, P.C., for
her fibromyalgia for several years, (c) it was noted
multiple times that fibromyalgia was believed to be the
source of her pain, and (d) none of her many care
providers have questioned her diagnosis of fibromyalgia.
(Id. at 16.) Plaintiff further argues that, although she
was referred to a rheumatologist, she could not afford
to see a specialist, which prevented her from receiving
an “official” diagnosis. (Id.) Nevertheless, Plaintiff argues
that her well-documented symptoms demonstrate that her
fibromyalgia is more than a de minimis claim and, by
failing to recognize the full extent of her symptoms, the
ALJ failed to adequately consider her limitations. (Id. at
17.)
Second, Plaintiff argues that the ALJ failed to properly
assess her subjective complaints of pain and disabling

symptoms by failing to consider the seven statutory
factors under 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)
(3). (Id. at 17-18.) Specifically, Plaintiff argues that the
ALJ (a) noted that Plaintiff had a Global Assessment
Functioning (“GAF”) score of 65 but neglected to discuss
much-lower scores at which she was consistently assessed,
(b) found that Plaintiff's representations that she has “pain
all over” were not supported by record evidence even
though she treated with multiple doctors and was referred
to a specialist for such pain, (c) improperly construed
Plaintiff's “poor earnings record” and work history as
an unwillingness to work even though Plaintiff testified
that she made multiple attempts to return to work, and
(d) misconstrued Plaintiff's testimony that she cares for
a significant other who is physically disabled to mean
that, not only are Plaintiff's activities of daily living not
compromised, but she is also able to care for another's
daily needs. (Id. at 18-19.) Plaintiff further argues that
her credibility is supported by her longitudinal medical
record, which demonstrates her persistent and long-term
attempts to obtain relief from her symptoms. (Id. at 19.)
Third, Plaintiff argues that the ALJ's RFC assessment
is not supported by substantial evidence because the
ALJ failed to (a) assess Plaintiff's function-by-function
abilities, and (b) properly represent the evidence regarding
the nature and extent of Plaintiff's limitations. (Id.
at 19-22.) Specifically, Plaintiff argues that the ALJ
incorrectly found that her GAF score of 50 was
inconsistent with the “marked” limitations assessed by
her treating providers. (Id. at 21.) Furthermore, Plaintiff
argues that, although the ALJ consistently noted in her
decision that she was described as “pleasant and affable,”
the record demonstrates that she had several issues
dealing with her treating providers, including, among
other things, feeling overwhelmed and losing her temper.
(Id.)
*3 Fourth, Plaintiff argues that the ALJ failed to
properly analyze and review the medical evidence of
record in determining her mental RFC assessment at
each of the five steps outlined in 20 C.F.R. § 404.1520a.
(Id. at 22.) Specifically, at the first step (§ 404.1520a[b]
[1] ), Plaintiff argues that the ALJ failed to specify or
evaluate any of the medical evidence that supports the
presence of her mental impairments, even though the
ALJ still found them to be “severe.” (Id. at 22-23.)
At the second step (§ 404.1520a[c][2] ), Plaintiff argues
that the ALJ failed to rate the degree of her functional

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limitation and otherwise skipped this step. (Id. at 23.) At
the third step (§ 404.1520a[c][3] ), commonly known as the
“special technique,” Plaintiff argues that the ALJ made
findings that are not consistent with the opinions of her
treating physicians, which indicated that she had marked
limitations in all relevant areas, and that the ALJ cited
inaccurate facts and relied on her own opinion to support
her findings. (Id.) At the fourth step (§ 404.1520a[d] [2] ),
Plaintiff argues that, had the ALJ properly considered
the medical evidence instead of misconstruing the record
and relying on her own opinion, she would have made
findings consistent with those made by Plaintiff's treating
physicians. (Id. at 24.) At the fifth step, Plaintiff argues
that the ALJ's mental RFC assessment is contrary to the
medical evidence of record because there is insufficient
evidence to support the ALJ's finding that Plaintiff's sole
mental limitation is the need for low stress work. (Id. at
24-25.)
Fifth, and finally, Plaintiff argues that the ALJ failed
to properly follow the treating physician rule when she
gave “little weight” to the medical source statements made
by nurse Ann Bates, NPP, Dr. Steven Fogelman, M.D.,
and Dr. Maritza Santana, M.D., regarding Plaintiff's
mental limitations. (Id. at 25-26.) As an initial matter,
Plaintiff argues that these medical source statements were
consistent with several other medical opinions of record.
(Id.) Nevertheless, even if the opinions are inconsistent,
Plaintiff argues that the ALJ failed to consider the
opinions in light of the eight regulatory factors under
20 C.F.R. § 416.927(c) in order to determine how much
weight they should have been accorded. (Id. at 26-27.)

B. Defendant's Arguments
Generally, Defendant makes the following five 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 properly evaluated
the severity of Plaintiff's symptoms of fibromyalgia.
(Dkt. No. 15, at 8 [Def.'s Mem. of Law].) Specifically,
Defendant argues that the ALJ's evaluation is supported
by the opinions of consultative physician Roberto Rivera,
M.D., who found no trigger points related to pain
after examining Plaintiff in November of 2010. (Id. at
9.) Similarly, Defendant argues that Dr. Hillburger's
“guess” that Plaintiff “probably does have fibromyalgia
although most of her laboratories are normal” does not
constitute a formal diagnosis of fibromyalgia, especially

when Dr. Hillburger did not find any trigger points
during three examinations between July 2007 and April 8,
2008. (Id.) Furthermore, Defendant argues that, although
consultative physician Dr. Elke Lorenson, M.D., found
two trigger points during a physical examination of
Plaintiff in September of 2013, this is well short of the
requirement under SSR 12-2p that a claimant have at
least 11 trigger points before he/she is considered to have
fibromyalgia. (Id.)
Second, Defendant argues that the record evidence
supports the ALJ's determination that Plaintiff's
subjective complaints were not entirely credible for the
following three reasons: (1) despite Plaintiff's allegations
of pain, there was no indication that she was taking
pain medication; (2) although Plaintiff complained of
headaches occurring six to nine times per month, she
admitted that her headaches lasted for only forty-five
minutes; and (3) Plaintiff's complaints were inconsistent
with her activities and lifestyle including being able to
make the bed, wash dishes, cook, do laundry, walk
the dog, read books, engage in woodcrafting, watch
television, take care of her pets, manage her money, use
public transportation, and drive to familiar places. (Id. at
11.)
Third, Defendant argues that the ALJ's RFC assessment
is supported by substantial evidence because (a) the
ALJ's finding that Plaintiff retained the physical ability
to perform work at all exertional levels was supported by
the opinions of Dr. Lorenson and Dr. Rivera, who both
made many normal physical findings, and (b) the ALJ's
RFC assessment with respect to Plaintiff's mental abilities
is supported by the opinions of consultative psychologist,
Dr. Dennis Noia, Ph.D., who made many normal mental
status findings, and state agency psychiatric consultant,
Dr. Zenaida Mata, M.D., who found that Plaintiff
retained the ability to perform unskilled work with limited
exposure to the general public on a sustained basis. (Id. at
12-13.)
*4 Fourth, Defendant argues that the ALJ properly
evaluated Plaintiff's mental impairments and correctly
concluded that she did not meet the Listing requirements
of Sections 12.04 and 12.06. (Id. at 14.) More specifically,
Defendant argues that the ALJ properly applied the
special technique to determine the severity of Plaintiff's
mental impairments and that her findings were supported
by Dr. Malta's opinion who likewise found that Plaintiff

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did not have any marked limitations in the areas identified
under Paragraph B. (Id. at 14-15.)
Fifth, and finally, Defendant argues that the ALJ properly
evaluated the medical opinions of record. Specifically,
Defendant argues that the ALJ discussed the opinions
of nurse Bates and Dr. Fogelman, who opined that
Plaintiff had marked limitations in all areas of mental
functioning except for interacting with the public, which
they rated a mild limitation. (Id. at 16.) However,
Defendant argues that it was appropriate for the ALJ
to assign little weight to their opinions because (a) the
ALJ expressed doubt regarding whether there was an
actual treatment relationship between Plaintiff and Dr.
Fogelman (given that the treatment notes indicated that,
except for one occasion, Plaintiff saw only nurse Bates),
(b) their assessment was not consistent with the clinical
evidence of record that consistently described Plaintiff as
pleasant and affable, and (c) their assessment was also
inconsistent with the many benign mental status findings
reported by Dr. Jeanne Shapiro, Ph.D., and Dr. Noia.
(Id. at 16-17.) In addition, Defendant argues that the
ALJ discussed the opinion of Dr. Santana who found
that Plaintiff had marked limitations in her ability to
interact appropriately with others. (Id. at 17.) Once again,
however, the ALJ appropriately gave little weight to this
opinion because it was based on only one evaluation of
Plaintiff on December 12, 2011, and Dr. Santana reported
many benign mental findings such as noting that Plaintiff
was alert, fully oriented, pleasant, cooperative, verbally
spontaneous, had good eye contact, fair concentration,
and good insight and judgment. (Id.)

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 (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).
*5 “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 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).

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 the
determination 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

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

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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.
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 nondisability can be made, the SSA will not review the claim
further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).

IV. ANALYSIS
For the ease of analysis, Plaintiff's arguments will be
reorganized and consolidated below.

A. Whether the ALJ Erred at Step Two by Failing
to Find that Plaintiff's Fibromyalgia Is a Severe
Impairment

After carefully considering the matter, the Court answers
this question in the negative for the reasons stated by
Defendant in her memorandum of law. (Dkt. No. 15, at
8-9 [Def.'s Mem. of Law].) To those reasons, the Court
adds the following analysis.
The claimant bears the burden of presenting evidence
establishing severity at step two of the disability analysis.
Briggs v. Astrue, 09-CV-1422, 2011 WL 2669476, at *3
(N.D.N.Y. Mar. 4, 2011) (Bianchini, M.J.), adopted,
2011 WL 2669463 (N.D.N.Y. July 7, 2011) (Scullin, J.).
A severe impairment is one that significantly limits the
plaintiff's physical and/or mental ability to do basic work
activities. 20 C.F.R. § 404.1520(c); see also 20 C.F.R. §
404.1521(a) (noting that an impairment is not severe at
step two if it does not significantly limit a claimant's ability
to do basic work activities).
*6 The Regulations define “basic work activities” as
the “abilities and aptitudes necessary to do most jobs,”
examples of which include the following: (1) physical
functions such as walking, standing, lifting, pushing,
pulling, reaching, carrying, or handling; (2) capacities for
seeing, hearing, and speaking; (3) understanding, carrying
out, and remembering simple instructions; (4) using
judgment; (5) responding appropriately to supervision,
co-workers and usual work situations; and (6) dealing
with changes in a routine work setting. 20 C.F.R. §
404. 1521(b). “Severity” is determined by the limitations
imposed by an impairment, and not merely its by
diagnosis. The mere presence or diagnosis of a disease
or impairment is not, by itself, sufficient to deem a
condition severe. Hamilton v. Astrue, 12-CV-6291, 2013
WL 5474210, at *10 (W.D.N.Y. Sept. 30, 2013).
An ALJ should make a finding of “ ‘not severe’ ... if the
medical evidence establishes only a ‘slight abnormality’
which would have ‘no more than a minimal effect on
an individual's ability to work.’ ” Rosario v. Apfel, 97CV-5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19,
1999). Although an impairment may not be severe by
itself, the ALJ must also consider “the possibility of
several such impairments combining to produce a severe
impairment....” SSR 85-28, 1985 WL 56856, at *3. The
Second Circuit has held that the step two analysis “may
do no more than screen out de minimis claims.” Dixon v.
Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). If the disability
claim rises above a de minimis level, then the ALJ must

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undertake the remaining analysis of the claim at step three
through step five. Dixon, 54 F.3d at 1030.
Often, when there are multiple impairments and the ALJ
finds some but not all of them severe, an error in the
severity analysis at step two may be harmless because the
ALJ continued with the sequential analysis and did not
deny the claim based on the lack of a severe impairment
alone. Tryon v. Astrue, 10-CV-0537, 2012 WL 398952,
at *3 (N.D.N.Y. Feb. 7, 2012) (D'Agostino, J.). This
is particularly true because the regulations provide that
combined effects of all impairments must be considered,
regardless of whether any impairment, if considered
separately, would be of sufficient severity. 20 C.F.R. §§
404.1523, 416.923; Dixon, 54 F.3d at 1031.
As an initial matter, the Court agrees with
Defendant that Plaintiff failed to proffer sufficient
evidence demonstrating that her fibromyalgia is a
medically determinable impairment. 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.
*7 Granted, 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 Fed.Appx. 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. However, “denying a fibromyalgia-claimant's claim of
disability based in part on a perceived lack of objective
evidence is reversible error.” Campbell v. Colvin, 13CV-0451, 2015 WL 73763, at *6 (N.D.N.Y. Jan. 6,
2015) (Sharpe, C.J.) (emphasis added). This is because
“a growing number of courts, including our own, have
recognized that fibromyalgia is a disabling impairment
and that there are no objective tests which can conclusively
confirm the disease.” Green-Younger v. Barnhart, 335

F.3d 99, 108 (2d Cir. 2003) (internal quotation marks
omitted). Indeed, “[fibromyalgia's] cause or causes are
unknown, there is no cure and, of greatest importance to
disability law, its symptoms are entirely subjective. There
are no laboratory tests for the presence or severity of
fibromyalgia.” Cabibi v. Colvin, 50 F. Supp. 3d 213, 233
(E.D.N.Y. 2014) (internal quotation marks omitted).
In the present case, the ALJ found that Plaintiff was
never formally diagnosed with fibromyalgia because Dr.
Hillburger “guessed” that Plaintiff “probably did have
fibromyalgia” based upon her complaints of having pain
“throughout her body” even though her “laboratories
are normal[,]” and he did not find any positive trigger
points over the course of three examinations. (Tr.
23, 404-05.) Similarly, the ALJ noted that Plaintiff's
other “primary care providers do not appear to have
examined the claimant to confirm the presence of
11/18 ... trigger points.” (Tr. 23.) The ALJ further noted
that Dr. Lorenson found two positive trigger points;
however, this is well short of the eleven trigger points
required for a formal diagnosis (under the 1990 American
College of Rheumatology Criteria for Classification of
Fibromyalgia). (Id.)
Despite the lack of objective evidence to support Plaintiff's
claim of fibromyalgia, the ALJ also considered Plaintiff's
subjective complaints of pain, which she found to be
not entirely credible. 3 The ALJ found that, although
Plaintiff complained of disabling pain and discomfort,
she was still able to engage in many activities of daily
living, such as cooking and cleaning two to three times
a week (depending on pain), shopping once a week,
showering five to six times a week, read, watch television,
do woodcrafting, and care for a significant other who is
disabled. (Tr. 30, 95.) See Poupore v. Astrue, 566 F.3d 303,
307 (2d Cir. 2009) (finding that the plaintiff's activities,
including childcare, watching television, reading, using
the computer, and occasional vacuuming, washing dishes,
and driving, supported the ALJ's determination that the
plaintiff's alleged symptoms were not disabling); Rivera
v. Harris, 623 F.2d 212, 216 (2d Cir. 1980) (finding that
the plaintiff's report that she could “cook, sew, wash and
shop, so long as she did these chores slowly and takes an
afternoon rest” supported the ALJ's determination that
the plaintiff's alleged symptoms were not disabling.); but
see Brosnahan v. Barnhart, 336 F.3d 671, 677 (8th Cir.
2003) (“[I]n the context of a fibromyalgia case, ... the
ability to engage in activities such as cooking, cleaning,

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and hobbies, does not constitute substantial evidence of
the ability to engage in substantial gainful activity.”).
The ALJ also found that there is “no indication that the
claimant was taking pain medication currently, despite her
allegations of constant, daily disabling pain.” (Tr. 30.)
*8 Based upon the foregoing, the ALJ properly
determined that Plaintiff failed to satisfy her burden that
she received a formal diagnosis of fibromyalgia that was
supported by objective tests and/or that her subjective
complaints of pain constitute a severe impairment under
the regulations. In any event, even if the Court were to
find that the ALJ erred in determining that Plaintiff's
fibromyalgia was not severe, she considered the limiting
effects of all of Plaintiff's impairments later in her RFC
analysis. (Tr. 28-30.) See Reices-Colon v. Astrue, 523
Fed.Appx. 796, 798 (2d Cir. 2013) (finding alleged steptwo error harmless because ALJ considered impairments
during subsequent steps); Snyder v. Colvin, 13-CV-0585,
2014 WL 3107962, at *5 (N.D.N.Y. July 8, 2014) (Sharpe,
C.J.) (“[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's Assessment of Plaintiff's Mental
Impairments Is Supported by Substantial Evidence
After carefully considering the matter, the Court answers
this question in the affirmative for the reasons stated by
Defendant in her memorandum of law. (Dkt. No. 15, at
14-15 [Def.'s Mem. of Law].) To those reasons, the Court
adds the following analysis.
In addition to the typical five-step analysis outlined in
20 C.F.R. § 404.1520, the ALJ must apply a “special
technique” at the second and third steps to evaluate
alleged mental impairments. See Kohler v. Astrue, 546
F.3d 260, 265 (2d Cir. 2008). The Second Circuit has
explained as follows:
This technique requires the reviewing authority to
determine [at step two] first whether the claimant
has a “medically determinable mental impairment.”
20 C.F.R. § 404.1520a(b)(1). If the claimant is
found to have such an impairment, [at step three]
the reviewing authority must “rate the degree of
functional limitation resulting from the impairment(s)

in accordance with paragraph (c),” Id. § 404.1520a(b)
(2), which specifies four broad functional areas: (1)
activities of daily living; (2) social functioning; (3)
concentration, persistence, or pace; and (4) episodes
of decompensation. Id. § 404.1520a(c)(3). According
to the regulations, if the degree of limitation in each
of the first three areas is rated “mild” or better, and
no episodes of decompensation are identified, then the
reviewing authority generally will conclude that the
claimant's mental impairment is not ‘severe’ and will
deny benefits. Id. § 404.1520a(d)(1). If the claimant's
mental impairment is severe, the reviewing authority
will first compare the relevant medical findings and
the functional limitation ratings to the criteria of
listed mental disorders in order to determine whether
the impairment meets or is equivalent in severity
to any listed mental disorder. Id. § 404.1520a(d)(2).
If so, the claimant will be found to be disabled.
If not, the reviewing authority will then assess the
claimant's residual functional capacity [in step four]. Id.
§ 404.1520a(d)(3).
Kohler, 546 F.3d at 265-66.
Moreover, the regulations “require the ALJ's written
decision to reflect application of the technique, and
explicitly provide that the decision ‘must include a specific
finding as to the degree of limitation in each of the
functional areas described in paragraph (c) of this section.’
” Id. at 266 (quoting 20 C.F.R. § 404.1520a[e][2] ). “If the
ALJ fails to provide specific findings regarding the degree
of limitation in each of the four functional areas, then
the reviewing court will be unable to determine whether
‘there is substantial evidence for the ALJ's conclusion
that [the Plaintiff's] impairment, while severe, was not
as severe as any listed disabling condition,’ and the case
should be remanded.” Fait v. Astrue, 10-CV-5407, 2012
WL 2449939, at *5 (E.D.N.Y. June 27, 2012) (alteration
in original) (quoting Kohler, 546 F.3d at 267-88).
*9 Here, the ALJ made specific findings as to the degree
of limitation in each of the functional areas and gave an
explanation for each of her conclusions. (Tr. 27.) Because
the ALJ did not find that Plaintiff's mental impairments
cause at least two “marked” limitations, or one “marked”
limitation and repeated episodes of decompensation, she
found that the Paragraph B criteria was not satisfied. (Tr.
28.) Similarly, the ALJ found that the Paragraph C criteria
was not met. (Id.)

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As discussed above in Part II.A. of this Decision
and Order, Plaintiff argues that the ALJ's findings are
inconsistent with the opinions of several medical sources,
including the opinions of nurse Bates, Dr. Fogelman,
and Dr. Santana, who opined that Plaintiff had marked
limitations in almost all functional areas. However, the
Court finds that the ALJ's decision to accord these
assessments little weight was supported by substantial
evidence. Specifically, with respect to the joint opinion
of nurse Bates and Dr. Fogelman, the ALJ noted that
there was no evidence that Dr. Fogelman ever examined
Plaintiff or reviewed her progress notes. (Tr. 32.) Indeed,
at the most recent administrative hearing, the ALJ noted
that she did not see any evidence in the record indicating
that Dr. Fogelman personally met with Plaintiff. (Tr. 49,
59.) In response, Plaintiff stated that “I've never heard
that name before” and her attorney clarified that Dr.
Fogelman was nurse Bates' supervising physician and
that Dr. Fogelman had countersigned her records. (Tr.
49.) Accordingly, the ALJ properly found that the joint
opinion was not entitled to any additional weight. 20
C.F.R. 416.927(c); 20 C.F.R. 404.1527(c).
In any event, the ALJ properly found that the joint
opinion was not fully consistent with the clinical evidence
of record because (a) although Plaintiff presented as
depressed and anxious, she also presented as happy
and in a “good” mood, (b) even when Plaintiff was
found to be angry or depressed, nurse Bates consistently
described her as “pleasant and affable” and she was able
to fully participate in her treatment, (c) the consultative
psychiatric examinations performed by Drs. Noia and
Shapiro documented that Plaintiff presented with good
social skills, logical and coherent thinking, and with intact
attention/concentration and recent/remote memory skills,
(d) Plaintiff consistently received a GAF score of 50,
which is on the borderline between serious and moderate
symptoms or serious and moderate limitations, 4 and (e)
the joint opinion does not discuss Plaintiff's ability to
perform a wide range of activities of daily living. (Tr. 32.)
With regard to Dr. Santana's opinion, Dr. Santana opined
that Plaintiff had marked limitations in her abilities
to interact appropriately with others and manage work
stress. (Tr. 586.) It was proper for the ALJ to accord this
opinion little weight because (a) Dr. Santana's assessment
was based on only one evaluation of Plaintiff without
any evidence of a follow-up evaluation, (b) Dr. Santana
initially checked the boxes for moderate limitations but

then changed them to marked without any explanation,
and (c) Dr. Santana's opinion that Plaintiff is markedly
limited in interacting with others is not supported by her
notes from her examination of Plaintiff nor by the record
as a whole. (Tr. 32-33.) See Fiducia v. Comm'r of Soc. Sec.,
13-CV-0285, 2015 WL 4078192, at *4 (N.D.N.Y. July 2,
2015) (Mordue, J.) (finding that a marked limitation in
interacting with others does not establish that the plaintiff
is disabled, particularly where the ALJ limited the plaintiff
to occasional interaction with the public and coworker).
*10 Finally, the Court finds that the ALJ properly
gave little weight to the assessment from Carthage Area
Behavioral Health Center, which noted several marked
and extreme limitations, for the reasons discussed by
the ALJ. (Tr. 31.) Although Plaintiff argues that the
ALJ's determination is inconsistent with the opinions of
Drs. Noia and Shapiro, Plaintiff fails to specify what
parts of their opinions are inconsistent. Nevertheless, the
Court has reviewed their respective treatment notes and
finds that Dr. Noia's opinion is not inconsistent with
the ALJ's determination (Tr. 704) and finds that the
ALJ properly gave Dr. Shapiro's opinion little weight
(Tr. 33). Accordingly, for the foregoing reasons, the
Court finds that the ALJ's assessment of Plaintiff's mental
impairments is supported by substantial evidence.

C. Whether the ALJ Violated the Treating Physician
Rule
After carefully considering the matter, the Court answers
this question in the negative for the reasons stated by
Defendant in her memorandum of law. (Dkt. No. 15, at
15-18 [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), 404.1527(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 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

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the opinion is from a specialist.” 20 C.F.R. §§ 416.927(c)(2)
(i)-(iv), 404.1527(c)(1)-(5). “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 v. Colvin, 13-CV-4683, 2015 WL 337483,
at *16 (S.D.N.Y. Jan. 26, 2015); 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]). 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, 2015 WL 337483, at *14.
Here, the ALJ's reasoning in her decision, along with the
facts in the record, reasonably allow the Court to conclude
that she considered the treating physician rule even though
she did not explicitly recite each factor. (Tr. 26, 31-36.)
Furthermore, the Court finds that the ALJ gave proper
weight to the opinions of nurse Bates, Dr. Fogelman, and
Dr. Santana, for the reasons discussed above in Part IV.B.
of this Decision and Order and for the reasons stated by
Defendant in her memorandum of law. (Dkt. No. 15, at
16-18 [Def.'s Mem. of Law].) See also Schlichting v. Astrue,
11 F. Supp. 3d 190, 204 (N.D.N.Y. 2012) (Suddaby, J.)
(“[C]onflicts in evidence ... are for the Commissioner to
resolve.... Where, as here, the Commissioner's decision
‘rests on adequate findings supported by evidence having
rational probative force, [the Court] will not substitute
[its] judgment for that of the Commissioner.’ ”) (quoting
White v. Comm'r, 06-CV-0564, 2008 WL 3884355, at *11
[N.D.N.Y. Aug. 18, 2008] [Kahn, J.] ). Accordingly, the
Court finds that the ALJ did not traverse the treating
physician rule.

D. Whether the ALJ's RFC Assessment Is Supported
by Substantial Evidence

*11 After carefully considering the matter, the Court
answers this question in the affirmative for the reasons
stated by Defendant in her memorandum of law (Dkt.
No. 15, at 12-14 [Def.'s Mem. of Law] ) as well as for
the reasons discussed above in Parts IV.B. and IV.C. of
this Decision and Order. To those reasons, the Court adds
the following point regarding Plaintiff's alleged physical
impairments and the ALJ's determination that she can
perform light work.
RFC is defined as
what an individual can still do
despite his or her limitations ...
Ordinarily, RFC is the individual's
maximum remaining ability to
do sustained work activities in
an ordinary work setting on a
regular and continuing basis, and
the RFC assessment must include
a discussion of the individual's
abilities on that basis. A regular
and continuing basis means 8 hours
a day, for 5 days a week, or an
equivalent work schedule.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting
SSR 96-8p, 1996 WL 374184, at *2). “In assessing a
claimant's RFC, the ALJ must consider all of the relevant
medical and other evidence in the case record to assess
the claimant's ability to meet the physical, mental, sensory
and other requirements of work.” Domm v. Colvin, 12CV-6640, 2013 WL 4647643, at *8 (W.D.N.Y. Aug. 29,
2013) (citing 20 C.F.R. § 404.1545[a][3]-[4] ). The ALJ
must consider all of the relevant evidence, including
medical opinions and facts, physical and mental abilities,
non-severe impairments, and the plaintiff's subjective
evidence of symptoms. 20 C.F.R. § 404.1545(b)-(e).
The ALJ must consider RFC assessments made by
acceptable medical sources and may consider opinions
from other non-medical sources to show how a claimant's
impairments may affect his ability to work. 20 C.F.R. §
404.1513(c)(d). Finally, an ALJ's RFC assessment “must
be set forth with sufficient specificity to enable [the Court]
to decide whether the determination is supported by
substantial evidence.” Ferraris v. Heckler, 728 F.2d 582,
587 (2d Cir. 1984)
Here, Plaintiff argues that the ALJ failed to assess
Plaintiff's function-by-function abilities, resulting in an

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RFC assessment that is not supported by substantial
evidence. However, the Second Circuit has stated that
an explicit function-by-function analysis is unnecessary
“[w]here an ALJ's analysis at Step Four regarding a
claimant's functional limitations and restrictions affords
an adequate basis for meaningful judicial review,
applies the proper legal standards, and 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).
The ALJ's RFC assessment in the present case limited
Plaintiff to unskilled light work. (Tr. 28.) Light work
requires the ability to sit for six hours, stand or walk for
six hours, lift up to 20 pounds at a time, and frequently lift
or carry up to ten pounds during an eight-hour workday.
20 C.F.R. §§ 404.1567(b), 416.967(b); SSR 83-10, 1983
WL 31251 (1983). In making this assessment, the ALJ
gave “considerable weight” to the opinion of consultative
examiner, Dr. Elke Lorenson, who opined that Plaintiff
“can lift and carry up to 20 pounds frequently, sit for
8 hours at a time for a total of 8 hours in an 8 hour
workday, stand for 8 hours at a time for a total of
8 hours in an 8 hour workday, walk for 8 hours at
a time for a total of 8 hours in an 8 hour workday,
can occasionally reach, and frequently push/pull with the
upper extremities, can continuously handle, finger and feel
with the upper extremities, occasionally engage in postural
activities such as stair climbing and should avoid working
with unprotected heights.” (Tr. 36.) The ALJ noted that
she did not give any weight to Dr. Lorenson's opinion
that Plaintiff should be limited to occasional reaching for
the reasons explained in her decision. (Id.) The ALJ also
gave “some weight” to Dr. Rivera's opinion that Plaintiff
has no limitations in sitting, standing, walking and lifting.
(Tr. 35.) Finally, the ALJ discussed her reasoning for not
giving equal or greater weight to the opinions of other
treating sources regarding Plaintiff's impairments. (Tr.
31-35.)
*12 The Court finds that the ALJ's analysis affords an
adequate basis for meaningful judicial review, applies the
proper legal standards, and is supported by substantial
evidence such that a function-by-function analysis would
be unnecessary or superfluous. See Bayliss v. Barnhart,
427 F.3d 1211, 1217 (9th Cir. 2005) (“Preparing a
function-by-function analysis for medical conditions or
impairments that the ALJ found neither credible nor
supported by the record is unnecessary.”) Furthermore,

the Court notes that it was proper for the ALJ to
rely on the opinions of consultative examiners, such as
Drs. Lorenson and Rivera, which constitute substantial
evidence. 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).

E. Whether the ALJ Failed to Properly Assess
Plaintiff's Subjective Complaints of Pain and Disabling
Symptoms
After carefully considering the matter, the Court answers
this question in the negative for the reasons stated by
Defendant in her memorandum of law. (Dkt. No. 15, at
9-11 [Def.'s Mem. of Law].) To those reasons, the Court
adds the following analysis.
A plaintiff's allegation of pain is “entitled to great weight
where ... it is supported by objective medical evidence.”
Rockwood v. Astrue, 614 F. Supp. 2d 252, 270 (N.D.N.Y.
2009) (Mordue, C.J., adopting Report-Recommendation
of Bianchini, M.J.) (quoting Simmons v. U.S. R.R. Ret.
Bd., 982 F.2d 49, 56 [2d Cir. 1992]). However, the ALJ “is
not required to accept [a plaintiff's] subjective complaints
without question; he may exercise discretion in weighing
the credibility of the [plaintiff's] testimony in light of the
other evidence in the record.” Montaldo v. Astrue, 10CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15
2012). “When rejecting subjective complaints, an ALJ
must do so explicitly and with sufficient specificity to
enable the Court to decide whether there are legitimate
reasons for the ALJ's disbelief.” Rockwood, 614 F. Supp.
2d at 270.
“The ALJ's credibility assessment must be based on a two
step analysis of pertinent evidence in the record. First, the
ALJ must determine whether the claimant has medically
determinable impairments, which could reasonably be
expected to produce the pain or other symptoms alleged.”
Id., at 271.
Second, if medically determinable
impairments are shown, then the
ALJ must evaluate the intensity,
persistence, and limiting effects

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of the symptoms to determine
the extent to which they limit
the claimant's capacity to work.
Because an individual's symptoms
can sometimes suggest a greater
level of severity of impairment than
can be shown by the objective
medical evidence alone, an ALJ
will consider the following factors
in assessing a claimant's credibility:
(1) claimant's daily activities;
(2) location, duration, frequency,
and
intensity
of
claimant's
symptoms; (3) precipitating and
aggravating factors; (4) type,
dosage, effectiveness, and side
effects of any medication taken
to relieve symptoms; (5) other
treatment received to relieve
symptoms; (6) any measures taken
by the claimant to relieve symptoms;
and (7) any other factors concerning
claimant's functional limitations and
restrictions due to symptoms.
Id. (citing §§ 404.1529[c][3][i]-[vii], 416.929[c][3][i]-[vii] ).
Further, “[i]t is the role of the Commissioner, not the
reviewing court, ‘to resolve evidentiary conflicts and
to appraise the credibility of witnesses,’ including with
respect to the severity of a claimant's symptoms.” Cichocki
v. Astrue, 534 Fed.Appx. 71, 75 (2d Cir. 2013) (quoting
Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638,
642 [2d Cir. 1983]).
Here, the ALJ found that Plaintiff's medically
determinable impairments could reasonably be expected
to cause the alleged symptoms, but that Plaintiff's
statements regarding the intensity, persistence and
limiting effects of these symptoms are not entirely credible.
(Tr. 29.) Throughout her decision, the ALJ articulated
the inconsistencies that she considered in assessing the
allegations of Plaintiff's symptoms, and in determining
that Plaintiff is not as limited as alleged. Specifically, the
ALJ considered (a) inconsistencies in Plaintiff's statements
regarding her alleged symptoms and limitations, (b) the
measures that Plaintiff took to relieve her symptoms,
(c) inconsistencies in Plaintiff's reports regarding her
symptoms and activities of daily living, and (d) medical
opinion evidence that was inconsistent with Plaintiff's
allegations of disabling symptoms. (Tr. 29-30.) For

example, the ALJ noted that there was no evidence
that Plaintiff was taking pain medication, “despite her
allegations of constant, daily disabling pain.” (Tr. 30.)
Indeed, Plaintiff testified at the first administrative
hearing that she does not currently take pain medication
but will use ibuprofen as needed. (Tr. 90.) Although
Plaintiff argues that she uses a transcutaneous electrical
nerve (“TENS”) unit 5 to help with her pain, she testified
that the TENS unit was her fiance's and, therefore, it was
not actually prescribed to her. (Tr. 91.)
*13 Plaintiff correctly argues that a longitudinal medical
record demonstrating persistent, long-term attempts to
obtain relief from symptoms will strongly indicate
credibility regarding her alleged symptoms. See Somogy
v. Comm'r of Soc. Sec., 366 Fed.Appx. 56, 64 (11th
Cir. 2010) (“Somogy's complaints of disabling pain are
bolstered by evidence that she made numerous visits to
her doctors over the course of several years, underwent
numerous diagnostic tests, and was prescribed numerous
medications.”). However, on balance, the ALJ properly
exercised her discretion in finding Plaintiff's subjective
complaints to be not entirely credible in light of the
numerous inconsistencies between her complaints and the
objective evidence as well as the other record evidence.
(Tr. 29-30.) See also Carroll v. Sec'y of Health and
Human Servs., 705 F.2d 638, 642 (2d Cir. 1982) (“The
findings of the Secretary as to any fact, if supported
by substantial evidence, shall be conclusive.”). Similarly,
Plaintiff's argument that the ALJ failed to explicitly
evaluate her complaints in light of the seven statutory
factors noted above is also unpersuasive. “Because the
ALJ thoroughly explained his credibility determination
and the record evidence permits us to glean the rationale
of the ALJ's decision, the ALJ's failure to discuss those
factors not relevant to his credibility determination does
not require remand.” Cichocki, 534 Fed.Appx. at 76. Here,
the ALJ complied with the Regulations and articulated
the inconsistencies that she considered in discrediting
Plaintiff's allegations of disabling impairments.
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. 15) is GRANTED; and it is further

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ORDERED that Defendant's decision denying disability
benefits is AFFIRMED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED.

All Citations
Slip Copy, 2017 WL 79975

Footnotes

1
2

3
4

5

Page citations refer to the page numbers used on CM/ECF rather than the actual page numbers contained in the parties'
respective motion papers.
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.
For the reasons discussed below in Part IV.E. of this Decision and Order, the Court finds that the ALJ's credibility
determination was proper.
“GAF is a scale that indicates a clinician's overall opinion of an individual's psychological, social, and occupational
functioning.” Marvin v. Colvin, 12-CV-1779, 2014 WL 1293509, at *2 (N.D.N.Y. Marc. 31, 2014) (Sharpe, C.J.). “GAF
scores of forty-one to fifty indicate that the individual has serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” Marvin, 2014 WL 1293509, at *2 (internal quotation marks omitted).
“A TENS Unit sends an electrical current through the skin for pain control. The unit is usually connected to the skin using
two or more electrodes. A typical battery-operated TENS unit is able to modulate pulse width, frequency and intensity.”
Stephenson v. Colvin, 14-CV-8132, 2016 WL 153091, at *4 n.18 (S.D.N.Y. Jan. 12, 2016).

End of Document

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