Columbel v. Colvin

Filing 13

MEMORANDUM-DECISION AND ORDER that Pltf's 11 motion for judgment on the pleadings is denied; Deft's 12 motion for judgment on the pleadings is granted. Deft's decision denying Pltf disability benefits is affirmed and Pltf's complaint is dismissed. Signed by Magistrate Judge Christian F. Hummel on 7/26/17. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
BILLY G. COLUMBEL,
Plaintiff,

6:16-CV-773
(CFH)

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF PETER M. HOBAICA, LLC
2045 Genesee Street
Utica, New York 13501
Counsel for Plaintiff

B. BROOKS BENSON, ESQ.

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

EMILY M. FISHMAN, ESQ.

CHRISTIAN F. HUMMEL
United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Currently before the Court, in this Social Security action filed by Billy G. Columbel
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. § 405(g), are Plaintiff’s motion for judgment on
the pleadings and Defendant’s cross-motion for judgment on the pleadings. (Dkt. Nos.
11, 12.) For the reasons set forth below, Plaintiff’s motion for judgment on the
pleadings is denied, and Defendant’s motion for judgment on the pleadings is granted.

1

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1958, making him 42 years old at the alleged onset date and
date last insured. (T. at 126). 1 Plaintiff reported obtaining his GED in 1976. The ALJ
found he has past relevant work as a taxi driver and refrigeration mechanic helper.
Generally, Plaintiff alleges disability consisting of a stroke with partial paralysis of his left
side as well as pain in his back and arm. (Id. at 60).

B.

Procedural History

Plaintiff applied for Disability Insurance Benefits on August 16, 2013. Plaintiff’s
application was initially denied on October 17, 2013, after which he timely requested a
hearing before an Administrative Law Judge (“ALJ”). (T. at 64-66, 70). Plaintiff
appeared at a video hearing before ALJ Roxanne Fuller on July 14, 2014. (Id. at 2758). On November 7, 2014, the ALJ issued a written decision finding Plaintiff not
disabled under the Social Security Act. (Id. at 12-23.) On April 26, 2016, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision
of the Commissioner. (Id. at 1-3.)

C.

The ALJ’s Decision

Applying the five-step sequential evaluation, the ALJ found that Plaintiff was
insured for benefits under Title II of the Social Security Act until December 31, 2000. (T.

1

The Administrative Transcript is found at Dkt. No. 8. Citations to the Administrative Transcript will be
referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather than the
page numbers assigned by the Court’s CM/ECF electronic filing system.

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14.) The ALJ found that Plaintiff did not engage in substantial gainful activity during the
period between the alleged onset date of March 21, 2000, and the date last insured.
(Id.) At step two, the ALJ concluded that Plaintiff’s status-post cerebrovascular accident
(“CVA”), dysthymic disorder, and substance abuse were severe impairments. (Id.) At
step three, the ALJ determined that Plaintiff’s severe impairments did not meet or
medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the
“Listings”). (Id. at 14-15.) More specifically, the ALJ considered Listings 4.00
(cardiovascular system), 12.04 (mood disorders), and 12.09 (substance addiction
disorders). (Id.) Before reaching step four, the ALJ found that Plaintiff has the residual
functional capacity (“RFC”) to perform
sedentary work as defined in 20 CFR 404.1567(a) with the
following restrictions: occasional climb ramps or stairs;
occasional climb ladders, ropes, and scaffolds; frequent
reaching and overhead reaching with the left dominant arm;
frequent handling objects, that is gross manipulation with the
left dominant hand; frequent fingering objects, that is fine
manipulation with the left dominant hand; occasional
exposure to moving mechanical parts; occasional operating a
motor vehicle; occasional exposure to unprotected heights;
able to perform simple, routine, repetitive tasks.
(Id. at 16.) At step four, the ALJ found that the above RFC prevented Plaintiff from
performing any of his past relevant work, and that ALJ found that Plaintiff remained able
to perform a significant number of jobs in the national economy, including document
preparer, final assembler of optical goods, and addresser. (Id. at 21-22.) Thus, the
ALJ concluded that plaintiff was not under a disability at the relevant time period.

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D.

Arguments

Generally, Plaintiff asserts six arguments in support of his motion for judgment on
the pleadings. First, Plaintiff argues that the ALJ failed to consider the opinion from
Plaintiff’s treating physician indicating he met Listing 11.04 and failed to appropriately
consider Listing 11.04 at all when assessing whether the effects of Plaintiff’s CVA were
medically disabling. (Dkt. No. 11, at 14-17 [Pl. Mem. of Law].) Plaintiff argues that it is
impossible for this Court to determine whether the ALJ’s adverse Listing of Impairments
finding is supported by substantial evidence based on the ALJ’s lack of clear
explanation. (Id. at 15).
Second, Plaintiff argues that the ALJ failed to afford controlling weight to the
treating physician’s opinion or to provide good reasons for failing to adopt the less-thansedentary restrictions contained in that opinion. (Dkt. No. 11, at 17-19 [Pl. Mem. of
Law].) Plaintiff argues that, in weighing the treating physician’s opinion, the ALJ
improperly ignored evidence contrary to her conclusion. (Id. at 18-19) Plaintiff
additionally argues that the ALJ erred in finding that Plaintiff’s severe mental impairment
was dysthymic disorder, rather than depression. (Id. at 19-20). In addition, he argues
that the ALJ erred in failing to re-contact Dr. Reddy to obtain an opinion regarding
Plaintiff’s mental functioning. (Id.)
Third, Plaintiff argues that the ALJ improperly substituted her own lay opinion for
that of a medical source because there was no opinion or medical evidence to support
the RFC for a range of sedentary work. (Dkt. No. 11, at 20-21 [Pl. Mem. of Law].)
Plaintiff also argues that the ALJ failed to indicate what evidence she relied on when
determining that Plaintiff remained able to perform a range of sedentary work, and failed

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to make specific functional findings, such as the amount of time Plaintiff was able to sit,
stand, and walk. (Id. at 22-23) Fourth, Plaintiff argues that the ALJ failed to provide
sufficient reasons for finding his allegations were not entirely credible. (Id. at 21-22).
Fifth, Plaintiff argues that the ALJ erred in relying on the vocational expert’s testimony
that Plaintiff remained able to do a significant number of other work in the national
economy because the hypothetical used to elicit that testimony did not contain all of the
limitations opined by Plaintiff’s treating physician. (Dkt. No. 11, at 23-24 [Pl. Mem. of
Law].) Finally, Plaintiff argues that the ALJ erred in failing to address his request that
his prior applications be re-opened. (Id. at 24-25)
In response to Plaintiff’s second argument, Defendant argues that the ALJ
properly rejected the treating physician’s opinion because that physician did not treat
Plaintiff until 2010 (ten years after the date last insured) and therefore would not have
been able to render an opinion based on personal knowledge regarding Plaintiff’s
functioning during the relevant period in 2000. (Dkt. No. 12, at 5-6 [Def. Mem. of Law].)
Defendant also argues that the ALJ appropriately rejected this opinion because it was
inconsistent with the evidence of mental and physical functioning from the relevant
period, as the ALJ discussed in the decision. (Dkt. No. 12, at 7-9 [Def. Mem. of Law].)
Defendant argues that the ALJ therefore gave good reasons for rejecting this opinion
and relying instead on the medical evidence, and that the evidence Plaintiff contends
the ALJ ignored was merely Plaintiff’s subjective reports that the ALJ appropriately
found were not credible. (Dkt. No. 12, at 9 [Def. Mem. of Law].)
Second, in response to Plaintiff’s first argument, Defendant argues that the ALJ
was correct in finding that Plaintiff did not meet any Listing despite the treating

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physician’s form indicating findings suggestive of Listing 11.04. (Dkt. No. 12, at 11-12
[Def. Mem. of Law].) Defendant argues also that omission of explicit discussion of
Listing 11.04 does not warrant remand because the ALJ conducted a detailed
discussion of the relevant medical evidence related to Plaintiff’s CVA that demonstrates
why Plaintiff did not meet that Listing. (Id.)
Third, in response to Plaintiff’s fourth argument, Defendant argues that the ALJ
properly found Plaintiff’s allegations not entirely credible because the ALJ discussed
substantial medical evidence that was inconsistent with those allegations from the
relevant period, the limited course of treatment for his post-stroke symptoms,
cancellations of mental health appointments during the relevant period, and Plaintiff’s
activities of daily living that were inconsistent with his alleged level of limitation. (Dkt.
No. 12, at 12-14 [Def. Mem. of Law].)
Fourth, in response to Plaintiff’s second argument, Defendant argues that the
ALJ had no legal duty to re-contact Dr. Reddy for a mental functional assessment,
noting that 20 C.F.R. § 404.1512 was amended in 2012 to make the duty to re-contact
treating physicians more discretionary. Further, defendant contends that Dr. Reddy’s
treatment notes failed to show any signs or symptoms which would give rise to a gap in
the record that would require the ALJ to obtain an opinion prior to making the mental
RFC determination. (Dkt. No. 12, at 15-16 [Def. Mem. of Law].)
Fifth, in response to Plaintiff’s third argument, Defendant argues that the ALJ was
not obligated to rely on a medical source opinion when assessing the RFC, and that
there was no error in her failure to explicitly discuss every exertional function in the
RFC. (Dkt. No. 12, at 16-19 [Def. Mem. of Law].) Defendant argues that the medical

6

and other evidence was sufficient for the ALJ to determine that Plaintiff remained able to
perform a range of sedentary work, and that the ALJ was not required to rely on the
treating physician’s contrary opinion because it was inconsistent with the evidence from
the relevant time period. (Dkt. No. 12, at 16-18 [Def. Mem. of Law].)
Sixth, in response to Plaintiff’s fifth argument, Defendant argues that the ALJ
properly relied on the vocational expert’s testimony because she included in the
hypotheticals all of the limitations that were supported by the evidence, and because
she was not required to account for the unsupported limitations contained in the treating
physician’s opinion. (Dkt. No. 12, at 19-20 [Def. Mem. of Law].)
Seventh, in response to Plaintiff’s sixth argument, Defendant argues that the
implicit denial of Plaintiff’s request to re-open his prior application is not subject to
judicial review except in cases where the ALJ constructively re-opened the case or
where the claimant has been denied due process. (Dkt. No. 12, at 20-21 [Def. Mem. of
Law].) Defendant contends that Plaintiff failed to demonstrate a denial of due process
because the medical evidence does not support a finding that Plaintiff was so
incapacitated following the previous decision such that he lacked the ability to exercise
his right of appeal, and, thus, cannot demonstrate denial of due process. (Id.)

II.

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

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

8

have reached a different result upon a de novo review.” Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. The Supreme Court has recognized the validity of this sequential
evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987).
The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age,
education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform. Under the
cases previously discussed, the claimant bears the burden of
the proof as to the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758
F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can

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

III.
A.

ANALYSIS

Treating Physician’s Opinion

The Second Circuit has long recognized the ‘treating physician rule’ set out in 20
C.F.R. § 404.1527(c). “‘[T]he opinion of a claimant’s treating physician as to the nature
and severity of the impairment is given ‘controlling weight’ so long as it is ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the case record.’” Greek v.
Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008)). However, there are situations where the treating physician’s opinion is
not entitled to controlling weight, in which case the ALJ must “explicitly consider, inter
alia: (1) the frequency, length, nature, and extent of treatment; (2) the amount of
medical evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.’” Id. (quoting
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). However, “[w]here an ALJ’s
reasoning and adherence to the Regulations is clear, she is not required to explicitly go
through each and every factor of the Regulation.” Blinkovitch v. Comm’r of Soc. Sec.,
No. 3:15-CV-1196, 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017), adopted by 2017
WL 782901 (N.D.N.Y. Feb. 28, 2017) (citing Atwater v. Astrue, 512 F. App’x 67, 70 (2d
Cir. 2013) (summary order)). After considering these factors, “the ALJ must
‘comprehensively set forth [his] reasons for the weight assigned to a treating physician’s

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opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129). “The failure to
provide ‘good reasons for not crediting the opinion of a claimant’s treating physician is a
ground for remand.’” Id. (quoting Burgess, 537 F.3d at 129-30).
Plaintiff argues that the ALJ failed to analyze the functional restrictions included
in the opinion from treating physician Richard Sullivan, M.D., and failed to provide good
reasons for rejecting that opinion. However, Plaintiff’s allegations are contradicted by
an examination of the ALJ’s decision. The ALJ first noted that she considered Dr.
Sullivan’s August 12, 2014, opinion, stating the following:
Dr. Sullivan noted that he has seen the claimant once every
six months between December 24, 2010 and May 8, 2014.
Based on his observations, he wrote that the claimant was
unable to lift and/or carry more than five pounds in his right
hand, and none at all in his left hand. He referred to the
claimant’s left arm and hand as “useless.” He opined that the
claimant could sit for one hour in an eight-hour day, and stand
and/or walk for no more than 30 minutes of an eight-hour day.
He could only walk six feet without use of a cane due to his
impaired stance and gait. He should never be exposed to
unprotected heights, moving mechanical parts, humidity,
wetness, pulmonary irritants, extreme heat, extreme cold and
vibrations. He would be able to walk one block at a
reasonable pace. Finally, Dr. Sullivan noted, the claimant
[l]acks the mental ability to do any work due to stroke and
narcotics.
(T. 20-21.) This detailed discussion of the limitations Dr. Sullivan opined contradict
Plaintiff’s assertions that the ALJ failed to analyze Dr. Sullivan’s opinion. Additionally,
Plaintiff’s own argument recognizes that the ALJ analyzed this opinion by
acknowledging that the ALJ explicitly afforded it “very little weight” and that the ALJ
provided reasons for rejecting this opinion. (Dkt. No. 11, at 18-19 [Pl. Mem. of Law].)
Plaintiff’s assertion that the ALJ failed to analyze Dr. Sullivan’s opinion is, therefore,
unpersuasive.
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Plaintiff’s argument that the ALJ failed to provide good reasons for rejecting Dr.
Sullivan’s opinion is likewise unpersuasive. As Plaintiff acknowledges, the ALJ cited to
the lack of evidence of use of an assistive device during the relevant period, and
examinations showing relatively normal gait, and generally unremarkable emotional and
mental observations during the relevant period. (Dkt. No. 11, at 18-19 [Pl. Mem. of
Law].) However, the ALJ went even further than the reasons to which Plaintiff objects,
citing also to the fact that Dr. Sullivan did not begin treating Plaintiff until 2010, that his
opinions appeared to be based primarily on evidence from ten or more years after the
date last insured, and that his opined limitations were generally inconsistent with the
evidence from treating and examining physicians during the relevant time period. (T.
21.) The decision shows that the ALJ provided multiple explanations for her rejection of
Dr. Sullivan’s opinion, reasons which also show that the ALJ analyzed this opinion
according to the proper factors. See Greek, 802 F.3d at 375. As the ALJ applied the
appropriate analytical framework when assessing this opinion, the question becomes
whether the reasons the ALJ provided constitute “good reasons.”
This Court finds that the ALJ provided good reasons. Although the Second
Circuit has indicated that “medical evidence generated after an ALJ’s decision cannot
[be] deemed irrelevant solely because of timing,” (a proposition that would logically also
apply to evidence generated after the date last insured where it acts as a cut-off point
for the ALJ’s analysis) it is certainly a relevant factor to consider as part of the larger
analysis. This is particularly true where, as here, the opinion was provided a significant
time – 14 years – after the relevant period had ended and the source providing the
opinion did not have a personal treating or even examining relationship with Plaintiff

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until nearly ten years after the relevant period. See Newbury v. Astrue, 321 F. App’x.
16, 18 n.2 (2d Cir. 2009) (summary order) (citing Pollard v. Halter, 377 F.3d 183, 193
(2d Cir. 2004)). Even though Dr. Sullivan indicated that he had reviewed the relevant
evidence in the record prior to offering his opinion and that his findings applied to that
earlier period forward, lacking is a personal basis for his opinion that Plaintiff had the
opined limitations as early as September 8, 1998. This fact essentially renders Dr.
Sullivan’s opinion more comparable to that of a non-examining reviewing physician for
all purposes relating to the period at issue. The timing of Dr. Sullivan’s opinion and the
dates he treated Plaintiff were therefore particularly relevant considerations in this case.
Nor did the ALJ reject Dr. Sullivan’s opinion solely based on the timing of his
treating relationship and opinion. Rather, she provided several other reasons to support
her decision. A review of Dr. Sullivan’s opinion substantiates the ALJ’s assertion that,
even though Dr. Sullivan indicates he reviewed evidence back to 1998, he appeared to
have relied primarily on evidence from well after the relevant period as the basis for his
opinion. (T. 596-601.) For example, Dr. Sullivan cites specifically to a brain CT from
2005, a CT of Plaintiff’s back from 2005, his personal observations of Plaintiff’s gait and
stance, and his personal observations related to phone calls with Plaintiff, also from
after 2010. (Id.) In his corresponding form that related to Listing 11.04 (which will be
discussed further in another section of this Decision and Order), Dr. Sullivan notes that
“my physical findings are similar to those described in his Sept. 2008 hospital notes,
except his limbs were flaccid then [and] got spastic over time which is the natural
progression.” (Id. at 595.) All of these statements together seem to suggest that Dr.
Sullivan relied heavily on his own observations of Plaintiff and on evidence from multiple

13

years after the relevant period when formulating his opinion. Although the ALJ could
not reject this opinion solely because it and the evidence on which it relied were from a
later time period, the ALJ was entitled to reject evidence from the later period that was
not consistent with the picture of Plaintiff’s limitations present in the evidence from the
relevant period, which she did. (Id. at 21.)
The evidence from the relevant period does not suggest the extent of limitations
Dr. Sullivan opined. On January 28, 2000, Plaintiff presented for treatment after falling
while chasing his daughter, injuring his hip. (T. 520.) Nurse Practitioner (“NP”) Elaine
Trevisani observed that Plaintiff was well-nourished and well-groomed, alert and
oriented, displayed appropriate mood and affect, had a steady gait without ataxia, 2
grossly intact cranial nerves, normal blink and gag reflexes, normal deep tendon
reflexes, equal motor strength in the lower extremities, weaker motor strength and hand
grasp in the left upper extremity, and normal active back range of motion. (Id. at 52223). Plaintiff reported pain in his left hip with full squat and internal rotation. (Id.)

Audiometric testing on March 6, 2000, showed that Plaintiff’s hearing was normal for
speech-range frequencies with mild-to-moderate sensorineural loss in the left ear and
mild loss in the right ear. (Id. at 518.) On March 7, 2000, Plaintiff cancelled an
appointment for a psychiatric evaluation. (Id.)On April 7, 2000, Plaintiff reported various
symptoms of depression, loss of concentration and focus, and inability to read since his
CVA in 1998. (Id. at 515.)

2

“Ataxia describes a lack of muscle control or coordination of voluntary movements, such as
walking or picking up objects.” Ataxia, MAYO CLINIC, http://www.mayoclinic.org/diseasesconditions/ataxia/home/ovc-20311863 (last visited June 22, 2017).

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Arunadevi Reddy, M.D., observed Plaintiff had “noticeable motor impairment” in
his left arm, related well with good eye contact, had no psychomotor abnormality,
reported a depressed mood with a full and appropriate affect, was not delusional, had a
coherent and goal-directed thought process, had intact memory and recall, was able to
perform serial sevens testing, and was able to remember and list the presidents from
Clinton back to Nixon accurately. (T. 516.) Dr. Reddy assessed dysthymic disorder
and discussed starting medication for his mental symptoms. (Id. at 517.) Plaintiff
cancelled psychiatry appointments on May 8 and May 19, 2000. (Id. at 513.) An eye
examination on July 18, 2000, revealed only presbyopia, or far-sightedness typically
caused by aging. (Id. at 512-13.) On August 23, 2000, Plaintiff reported he stopped
taking Serzone for his mood disorder due to severe side effects and was experiencing
increased sensitivity to emotional issues, including tearfulness, nervousness, disturbed
sleep, lack of motivation, low energy levels, and impaired concentration. (Id. at 511.)
Dr. Reddy prescribed Celexa and Trazadone to address these reported symptoms. (Id.)
On September 25, 2000, Plaintiff reported that he was not certain whether Celexa was
improving his symptoms, but Trazadone had been helpful, though he reported he
remained tearful with slight provocation; Plaintiff noted he was currently under a lot of
stress because he was contesting for custody of his daughter in court. (Id. at 509.) On
November 7, 2000, Plaintiff cancelled a psychiatry appointment. (Id. at 508.) On
December 12, 2000, Plaintiff reported fairly regular compliance with Celexa and
Trazadone and that he felt “more in control” since starting Celexa. (Id.) Dr. Reddy
observed on this date that Plaintiff’s mood was neutral, his affect was full-range and

15

appropriate, and his speech was fluent. (Id.) On January 24, 2001, Plaintiff cancelled
another psychiatric appointment. (Id. at 507.)
Much of the rest of Plaintiff’s treatment in 2001 relates to his mental impairments,
and indicates sporadic non-compliance and more cancelled psychiatric appointments.
(T. 497, 500, 503, 505.) An examination on February 16, 2011 showed that Plaintiff’s
left arm was flaccid and he reported it caused him pain. (Id. at 506.) On August 31,
2001, he reported no difficulty swallowing or eating, and NP Trevisani observed that he
had grossly intact neurological functioning, normal deep tendon reflexes, “symmetrical
and strong” motor strength rated at 5/5 in the bilateral upper and lower extremities, no
structural abnormalities with active full range of motion in the back, negative straight leg
raising, intact sensation in the left extremity, and a non-antalgic gait; NP Trevisani noted
weakness in the right hand, which does not appear to be consistent with Plaintiff’s CVA,
which impacted his left side. (Id. at 502.)
None of the above evidence from the relevant period of March 2000 through
December 2000 or even the year following suggests that the significant extent of both
physical and mental restrictions that Dr. Sullivan opined were present between Plaintiff’s
alleged onset date and his date last insured. Thus, ALJ’s finding that Dr. Sullivan’s
opinion was inconsistent with the evidence from the relevant period was reasonable.
This finding, along with the others that the ALJ listed in the decision, constitutes
sufficient good reasons for declining to adopt Dr. Sullivan’s opinion. See Saxon v.
Astrue, 781 F. Supp. 2d 92, 102 (N.D.N.Y. 2011) (“The less consistent an opinion is
with the record as a whole, the less weight it is to be given.”) (citing Stevens v. Barnhart,
473 F. Supp. 2d 357, 362 (N.D.N.Y. 2007)); Otts v. Comm’r of Soc. Sec., 249 F. App’x

16

887, 889 (2d Cir. 2007) (summary order) (noting that an ALJ may reject an opinion from
a treating physician “upon the identification of good reasons, such as substantial
contradictory evidence in the record”) (citing Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir. 2004)); 20 C.F.R. § 404.1527(c)(4) (indicating that the extent that an opinion is
consistent with the record as a whole is one of the factors considered when determining
the amount of weight to which an opinion is entitled). Consequently, there is no merit to
Plaintiff’s assertions that the ALJ failed to properly analyze Dr. Sullivan’s opinion or to
provide good reasons for the weight afforded to that opinion.
As such, the ALJ provided sufficient good reasons supported by substantial
evidence to justify his rejection of Dr. Sullivan’s opinion. Thus, remand is not warranted
on this basis.

B.

Listing 11.04

“Plaintiff has the burden of proof at step three to show that her impairments meet
or medically equal a Listing.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y.
2009) (citing Naegele v. Barnhart, 433 F. Supp. 2d 319, 324 (W.D.N.Y. 2006)). “To
meet a Listing, Plaintiff must show that her medically determinable impairment satisfies
all of the specified criteria in a Listing.” Id. (citing 20 C.F.R. § 404.1525(d)). “If a
claimant’s impairment ‘manifests only some of those criteria, no matter how severely,’
such impairment does not qualify.” Id. (quoting Sullivan v. Zebley, 493 U.S. 521, 530
(1990)). Additionally, a court may be able to uphold an ALJ’s finding that a claimant
does not meet a Listing even where the decision lacks an express rationale for that

17

finding if the determination is supported by substantial evidence. Id. at 273 (citing Berry
v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982)).
The requirements of Listing 11.04 are as follows:
11.04 – Central Nervous System Vascular Accident
With one of the following more than 3 months post-vascular
accident:
A. Sensory or motor aphasia resulting in ineffective speech or
communication; or
B. Significant and persistent disorganization of motor function
in two extremities, resulting in sustained disturbance of gross
and dexterous movements, or gait and station (see 11.00C). 3
20 C.F.R. § 404, Subpart P, App. 1, §11.04 (2014).
Plaintiff argues that the combination of the ALJ’s failure to discuss both Listing §
11.04 specifically and the form in which Dr. Sullivan suggested that Plaintiff had
symptoms to meet the criteria of that Listing was an erroneous omission that prevents
this Court from determining whether the Step Three finding is supported by substantial
evidence. (Dkt. No. 11, at 14-17 [Pl. Mem. of Law].) Although Plaintiff is correct that
the ALJ did not specifically discuss Listing § 11.04 or specifically address this other form
from Dr. Sullivan and erroneously discussed Listing § 4.00, such omissions do not
automatically entitle Plaintiff to a remand. (T. 14-16.)
In terms of the ALJ’s alleged failure to discuss Dr. Sullivan’s “Listing opinion,” this
Court finds that the reasons the ALJ provided for affording very little weight to Dr.
Sullivan’s functional opinion also reasonably apply to this additional part of Dr. Sullivan’s

3

11.00C indicates that persistent disorganization of motor functioning can be “in the form of
paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances,” and that
“[t]he assessment of impairment depends on the degree of interference with locomotion and/or
interference with the use of fingers, hands, and arms.” 20 C.F.R. § 404, Subpart P, App. 1, §11.00C
(2014).

18

opinion. As noted previously, Dr. Sullivan’s whole opinion, including the form that asks
questions related to the criteria of Listing 11.04, appears to be based primarily on
evidence from well after the date last insured, a fact that weakens its probative value for
assessing Plaintiff’s functioning in March to December of 2000. Additionally, the
symptoms that Dr. Sullivan notes on this form are inconsistent with the evidence from
the relevant time period. For example, the evidence from 2000 and 2001 detailed
previously does not reveal any objective evidence of any speech difficulties, let alone
the “severe speech impairment” that Dr. Sullivan opined. (T. 516, 594.) Although
Plaintiff is noted to have left-sided weakness or flaccidness of the left arm on some
occasions, other examinations showed relatively normal motor strength. (Id. at 502,
506, 516, 523.) Thus, the rationale provided for the weight the ALJ afforded to Dr.
Sullivan’s functional opinion also applies to the other pages included with that opinion,
whether or not the ALJ explicitly stated as much. See Coleman v. Comm’r of Soc. Sec.,
No. 5:14-CV-1139, 2015 WL 9685548, at *5 (N.D.N.Y. Dec. 11, 2015) (holding that “‘an
ALJ is not required to discuss in depth every piece of evidence contained in the record,
so long as the evidence of record permits the Court to glean the rationale of an ALJ’s
decision.’”) (quoting LaRock ex. rel. M.K. v. Astrue, No. 10-CV-1019, 2011 WL
1882292, at *7 (N.D.N.Y. Apr. 29, 2011)). Because it can be reasonably inferred that
the ALJ would have weighed or intended to weigh the Listing-specific opinion the same
way she weighed the more specific functional opinion contained in the same exhibit
based on the reasons she provided, any error in failing to explicitly discuss the Listing
opinion is at most harmless. See Blabac v. Comm’r of Soc. Sec., No. 3:08-CV-0849,
2009 WL 5167650, at *9 (N.D.N.Y. Dec. 18, 2009) (collecting cases which indicate

19

harmless error where the opinions that the ALJ failed to weigh either did not conflict with
the ALJ’s findings or written consideration of the opinions would not have changed the
outcome of the ALJ’s decision).
Further, although the ALJ erroneously included listing § 4.00, Cardiovascular
System, rather than § 11.04 and referred to Plaintiff’s “post cardiovascular accident” and
receiving treatment for a “right-sided cardiovascular accident,” a review of the decision
in its entirely reveals that the ALJ was aware that Plaintiff suffered strokes, not
cardiovascular attacks. (T. 14, 17). The ALJ directly refers to plaintiff’s “history of two
strokes and one endarterectomy” and that he “Alleged disability due to a stroke.” (Id. at
15, 17). Further, the ALJ’s review of Plaintiff’s alleged symptoms accurately reflects the
symptoms Plaintiff alleged and her review of the medical records also reflects her
understanding that Plaintiff suffered strokes, rather than heart attacks. (Id. at 17-20).
Thus, the ALJ’s error, although careless and perhaps reflecting a misunderstanding of the term
“cardiovascular,” is untimately harmless.

Additionally, Plaintiff’s arguments assume that Dr. Sullivan’s notations regarding
symptoms meeting the criteria of the Listing were an accurate assessment of his
condition, but that is not the case given the lack of evidence supporting Dr. Sullivan’s
statements within the relevant period, the ALJ reasonably determined otherwise with
regard to his condition in 2000. Plaintiff does not point to any evidence that shows he
actually suffered from sensory or motor aphasia that caused ineffective speech or
communication more than three months after his CVA, and this Court did not find any
such evidence in the treatment record. Although Dr. Sullivan checked boxes indicating
that Plaintiff had significant and persistent disorganization of motor functioning in his left
arm and left leg that resulted in sustained disturbance of the relevant functioning of
20

those extremities, the medical evidence does not corroborate those statements. Even if
Plaintiff could arguably show evidence of sufficiently impaired functioning in his left arm
at the relevant time period, the medical record does not show that he also experienced
Listing-level symptoms in his left leg, since the evidence from the relevant time period
shows primarily steady or non-antalgic gait, normal lower extremity motor strength, and
no suggestion of a need to use an ambulatory aid. The ALJ was not required to accept
Dr. Sullivan’s statements that Plaintiff met the criteria of the Listing at face value, but
was instead required to assess the relevant evidence as a whole, which is precisely
what she did here.
Plaintiff’s argument that the ALJ’s lack of explicit discussion of Listing 11.04
prevents this Court from being able to determine whether the Step Three finding is
supported by substantial evidence is also not persuasive given the significant and
detailed discussion of the evidence that the ALJ provided in the written decision. (T. 1720.) The ALJ provided a thorough consideration of the evidence particularly related to
the effects of Plaintiff’s CVA from which this Court is able to glean that the ALJ did not
find symptoms severe enough to meet the criteria of Listing 11.04. See Barringer v.
Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 78 (N.D.N.Y. 2005) (“Where ‘the evidence of
record permits [the court] to glean the rationale of an ALJ’s decision, [the ALJ is not
required to explain] why he considered articular evidence unpersuasive or insufficient to
lead him to a conclusion of disability.’”) (quoting Mongeur v. Heckler, 722 F.2d 1033,
1040 (2d Cir. 1983)). It is clear from the evidence in the record, including that which the
ALJ explicitly discussed in the decision, that Plaintiff did not have the requisite findings
necessary to show he met Listing 11.04. As this Court is able to determine that the

21

ALJ’s Step Three finding is supported by substantial evidence despite the lack of an
explicit finding, remand is not appropriate. See Rockwood, 614 F. Supp. 2d at 273

C.

Plaintiff’s Mental Impairment and ALJ’s Duty to Re-Contact Physician

This Court has recognized that “[i]n furtherance of the duty to develop the record,
an ALJ may re-contact medical sources if the evidence received from the treating
physician or other medical sources is inadequate to permit a reasoned disability
determination and additional information is needed to resolve the question.” Crysler v.
Astrue, 563 F. Supp. 2d 418, 432 (N.D.N.Y. 2008) (citing 20 C.F.R. § 404.1512(e)).
“Remand is necessary if the ALJ fails to attempt to contact the treating physician to
properly determine her RFC.” Smith v. Astrue, 896 F. Supp. 2d 163, 176 (N.D.N.Y.
2012). However, there is no obligation to re-contact a treating physician where the
evidence of record is “adequate to permit the ALJ to make a disability determination.”
Carvey v. Astrue, 380 F. App’x 50, 53 (2d Cir. 2010) (summary order) (citing Perez v.
Chater, 77 F.3d 41, 47-48 (2d Cir. 1996)); see also 20 C.F.R. § 404.1520b (indicating
that the Commissioner may re-contact a treating physician “[i]f the evidence is
consistent, but we have insufficient evidence to determine whether you are disabled, or
if after weighing the evidence we determine we cannot reach a conclusion about
whether you are disabled”).
Plaintiff’s argument that the ALJ erred in failing to find Plaintiff’s depression to be
a severe impairment rather than dysthymic disorder is unpersuasive. (Dkt. No. 11, at 19
[Pl. Mem. of Law].) Plaintiff does not explain how the characterization of Plaintiff’s
mood disorder in any way impacted the ALJ’s analysis or consideration of the functional

22

effects of that disorder. Although Plaintiff argues that the characterization was
important because dysthymic disorder “is not a Listing category,” Plaintiff’s argument
ignores the fact that Listing 12.04 covers all mood disorders, and dysthymic disorder is
a form of depression. 4 Plaintiff’s argument also ignores the fact the ALJ did explicitly
analyze Plaintiff’s mental symptoms under Listing 12.04, as she would have been
required to do even if she had characterized Plaintiff’s mood disorder as depression.
(Id. at 15-16.) Additionally, the treatment notes from Dr. Reddy during the relevant time
period indicate that sources assessed Plaintiff specifically with dysthymic disorder. (Id.
at 497, 503, 505, 508-09, 511, 517.) Plaintiff has not shown that there was any error in
the ALJ’s characterization of his mental impairment.
Plaintiff also argues that the ALJ was required to “contact Dr. Reddy to obtain an
RFC as to his mental impairments” rather than “dismissing” his mental complaints. (Dkt.
No. 11, at 19-20 [Pl. Mem. of Law].) However, given the ALJ’s thorough discussion of
the mental treatment evidence from the relevant period, her analysis of Listing 12.04,
and her inclusion of a limitation for simple, routine, and repetitive tasks, it is clear that
the ALJ did not ignore Plaintiff’s mental impairments. Plaintiff essentially argues that
the ALJ was not able to make a determination as to whether Plaintiff was disabled or
the extent of limitations he experienced as a result of his mental impairments without
the guidance of an opinion from Dr. Reddy. However, contrary to those arguments,
there was sufficient evidence in the record from which the ALJ could have reasonably
made those determinations. See Janes v. Colvin, No. 6:15-CV-1518, 2017 WL 972110,

4

See Persistent Depressive Disorder (Dysthymia), MAYO CLINIC,
http://www.mayoclinic.org/diseases-conditions/persistent-depressive-disorder/home/ovc-20166590 (last
visited July 25, 2017).

23

at *3 (N.D.N.Y. Mar. 10, 2017) (“the ALJ need not seek additional information from a
given provider when the record contains notes from the provider that are adequate for
the ALJ to determine the claimant’s disability.”) (citing Merritt v. Colvin, 142 F. Supp. 3d
266, 270 (N.D.N.Y. 2015)); Carvey, 380 F. App’x at 53. Notably, the ALJ discussed the
treatment notes from Dr. Reddy, which showed fairly mild mental symptoms. For
instance, on April 7, 2000, Dr. Reddy observed Plaintiff related well with good eye
contact, had no psychomotor abnormality, reported a depressed mood with a full and
appropriate affect, was not delusional, had a coherent and goal-directed thought
process, had intact memory and recall, was able to perform serial sevens testing, and
was able to remember and accurately list presidents in office from Clinton back to
Nixon. (T. 516.) Plaintiff reported continuing symptoms on September 25, 2000, but
noted he had also been under greater stress recently due to court proceedings seeking
custody of his daughter. (Id. at 509.) On December 12, 2000, Dr. Reddy noted that
Plaintiff reported feeling more in control since starting Celexa for his mood disorder, and
the mental status examination from this date was unremarkable. (Id. at 508.) Plaintiff
continued to report that his depression symptoms were controlled in 2001 until he
stopped taking his medications. (Id. at 497, 503, 505.) The ALJ also noted several
appointments scheduled with Dr. Reddy that Plaintiff cancelled. (Id. at 18-19.)
The evidence from Dr. Reddy indicates that Plaintiff’s depressive symptoms were
fairly mild and improved when he was compliant with his medication. There is nothing
in the medical evidence from the relevant time period which substantiates greater
mental-related limitations than the ALJ accounted for in the RFC. Because Dr. Reddy’s
treatment notes provide more than sufficient evidence to allow the ALJ to determine the

24

issue of disability related to Plaintiff’s mental functioning within the relevant time period,
there was no gap in the record that would have necessitated the ALJ to re-contact Dr.
Reddy for a functional opinion. See Janes, 2017 WL 972110, at *3; Carvey, 380 F.
App’x at 53. Additionally, Plaintiff’s representative requested additional time at the
hearing to attempt to obtain a statement from Dr. Reddy. The ALJ granted this request,
but Plaintiff did not submit any statement from Dr. Reddy during that extension period,
nor is there any indication he sought the ALJ’s assistance in obtaining one. (T. 30.)
Plaintiff cannot now fault the ALJ for the absence of a statement from Dr. Reddy
because his own attempts to obtain such a statement were unsuccessful for reasons he
does not explain and he did not request the ALJ’s assistance.
For all the above reasons, the ALJ did not commit reversible err in his analysis of
Plaintiff’s mental impairment or in assessing Plaintiff’s mental functioning without an
opinion from Dr. Reddy. Accordingly, remand is not warranted on this basis.

D.

RFC Determination

Residual functional capacity 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.’” Pardee v. Astrue, 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). “In making a residual functional capacity
determination, the ALJ must consider a claimant’s physical abilities, mental abilities,
symptomology, including pain and other limitations which could interfere with work
activities on a regular and continuing basis.” Id. (citing 20 C.F.R. § 404.1545(a)).

25

“Ultimately, ‘[a]ny impairment-related limitations created by an individual’s response to
demands of work . . . must be reflected in the RFC assessment.’” Hendrickson v.
Astrue, No. 5:11-CV-0927, 2012 WL 7784156, at *3 (N.D.N.Y. Dec. 11, 2012) (quoting
SSR 85-15, 1985 WL 56857, at *8).
The Second Circuit has recognized that “[t]he ALJ is not permitted to substitute
his own expertise or view of the medical proof for the treating physician’s opinion or for
any competent medical opinion.” Greek, 802 F.3d at 375 (citing Burgess, 537 F.3d at
131). However, there is no legal requirement that the ALJ rely on a medical opinion in
every case to formulate the RFC; rather, the ALJ has the responsibility of reviewing all
the evidence before her, resolving inconsistencies, and making a determination
consistent with the evidence as a whole. See Bliss v. Colvin, No. 3:13-CV-1086, 2015
WL 457643, at *7 (N.D.N.Y. Feb. 3, 2015) (“It is the ALJ’s sole responsibility to weigh all
medical evidence and resolve material conflicts where sufficient evidence provides for
such.”); Petell v. Comm’r of Soc. Sec., No. 7:12-CV-1596, 2014 WL 1123477, at *10
(N.D.N.Y. Mar. 21, 2014) (same); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)
(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”). “[I]t
is the province of the ALJ to consider and resolve conflicts in the evidence as long as
the decision rests upon ‘adequate findings supported by evidence having rational
probative force.’” Camarata v. Colvin, No. 6:14-CV-0578, 2015 WL 4598811, at *9
(N.D.N.Y. July 29, 2015) (quoting Galiotti v. Astrue, 266 F. App’x 66, 67 (2d Cir. 2008)
(summary order)).
Plaintiff argues that the ALJ’s finding that Plaintiff could perform a range of
sedentary work was improper because there was no medical opinion in the record that

26

indicated an ability to perform sedentary work with the additional identified limitations.
(Dkt. No. 11, at 20-21 [Pl. Mem. of Law].) However, Plaintiff’s argument appears to be
premised on the assumption that, because Dr. Sullivan provided the only functional
opinion present in the record, the ALJ was required to accept the limitations Dr. Sullivan
opined. This is not an accurate assessment of the law related to the ALJ’s duty to
weigh opinion evidence and formulate the RFC. Rather, as noted above, it is the ALJ’s
responsibility to formulate the RFC based on a consideration of all the evidence before
her. See Bliss, 2015 WL 457643, at *7; Petell, 2014 WL 1123477, at *10.
Contrary to Plaintiff’s assertion that the ALJ “never explains” why she rejected Dr.
Sullivan’s opinion that Plaintiff was limited to sitting and walking one hour total in an
eight-hour work day, the ALJ provided a multitude of reasons, which are supported by
substantial evidence, for declining to rely on Dr. Sullivan’s opinion, as already detailed
above. (T. 20-21.) The complete lack of evidentiary support for the severe restrictions
outlined in Dr. Sullivan’s opinion show that the ALJ did not substitute her own lay
opinion for that of a physician, but instead reasonably determined that the opinion was
not supported by the evidence from the relevant time period.
Notably, Plaintiff does not make any specific arguments indicating how the ALJ’s
finding of sedentary work with the additional restrictions was unreasonable or
contradicted by relevant evidence in the record. The ALJ included a detailed discussion
of the medical evidence from the relevant time period related to the effects of Plaintiff’s
CVA, and it is this discussion that shows the ALJ’s analysis and the evidence she relied
on when formulating the RFC. (T. 17-20.) Additionally, the ALJ included the following:
Overall, based on his physical demonstrations, I find that the
claimant was capable of sedentary work activity during the
27

period at issue, with only occasional climbing and frequent but
not constant reaching, overhead reaching, gross manipulation
and fine manipulation with the left dominant extremities.
These limitations accommodate his status post two
cardiovascular accident, including weakness and difficulty
walking. I also find that based on his alleged pain, fatigue,
and headaches, he may not have only occasional exposure
to moving mechanical parts, unprotected heights, and the
operation of a motor vehicle.
Further, based on his
demonstrations of mental impairment but considering his
cognitive shortcomings, I find that the claimant is limited to
simple, routine, and repetitive tasks.
(T. 20.) This explanation, along with the discussion of the evidence, provides sufficient
indication as to the bases for the limitations included in the RFC for this Court to
determine that the ALJ’s RFC is supported by substantial evidence. Coleman, 2015 WL
9685548, at *5; Barringer, 358 F. Supp. 2d at 78 (“Where ‘the evidence of record
permits [the court] to glean the rationale of an ALJ’s decision, [the ALJ is not required to
explain] why he considered articular evidence unpersuasive or insufficient to lead him to
a conclusion of disability.’”) (quoting Mongeur, 722 F.2d at 1040). 5
Plaintiff also relatedly argues that the ALJ erred in failing to include a more
detailed function-by-function assessment of Plaintiff’s exertional abilities rather than
simply limiting Plaintiff to sedentary work. (Dkt. No. 11, at 22-23 [Pl. Mem. of Law].)
The Second Circuit has found that the failure to provide a function-by-function analysis
is not a per se ground for remand, noting that “[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,

5

Although the ALJ indicates that plaintiff suffered two cardiovascular accidents, as indicated supra,
because the ALJ considered the relevant medical records and plaintiff’s alleged symptoms, this error is
harmless.

28

[] remand is not necessary merely because an explicit function-by-function analysis was
not performed.” Cichocki v. Astrue, 729 F.3d 172, 176-77 (2d Cir. 2013) (collecting
cases from other circuit courts that have declined to adopt a per se rule). The Second
Circuit noted that remand might be appropriate “where an ALJ fails to assess a
claimant’s capacity to perform relevant functions, despite contradictory evidence in the
record, or where other inadequacies in the ALJ’s analysis frustrate meaningful review.”
Cichocki, 729 F.3d at 177 (citing Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001)).
In this case, there is no contradictory medical evidence in the record related to
the relevant period that suggests Plaintiff’s capabilities to stand, walk, sit, lift, carry,
push, or pull were more limited than accounted for by the basic exertional definition of
sedentary work. 6 Plaintiff has not pointed to any medical evidence from the relevant
period that suggests an inability to perform the basic requirements of sedentary work
and this Court did not find any such evidence in its review. Because there is no such
contradictory evidence, the ALJ appears to have applied the correct legal standards and
her RFC finding is supported by substantial evidence, the ALJ’s failure to include a
more detailed analysis does not necessitate remand. For all the above reasons, the
RFC determination is supported by substantial evidence. Accordingly, remand is not
warranted on this basis.

6

The regulations indicate that “[s]edentary work involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which 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.” 20 C.F.R. § 404.1567(a). SSR 83-10 elaborates that
occasionally is defined as “occurring from very little up to one-third of the time,” and that sedentary work
therefore requires an ability to stand or walk no more than two hours in an eight-hour workday and to sit
approximately six hours total in an eight-hour workday. SSR 83-10, 1983 WL 31251, at *5.

29

E.

Credibility Determination

In determining whether a claimant is disabled, the ALJ must also make a
determination as to the credibility of the claimant’s allegations. “‘An administrative law
judge may properly reject claims of severe, disabling pain 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.’” Schlichting v. Astrue,
11 F. Supp. 3d 190, 205 (N.D.N.Y. 2012) (quoting Lewis v. Apfel, 62 F. Supp. 2d 648,
651 (N.D.N.Y. 1999)). The Second Circuit recognizes that “‘[i]t is the function of the
[Commissioner], not [reviewing courts], to resolve evidentiary conflicts and to appraise
the credibility of witnesses, including the claimant,’” and that “[i]f there is substantial
evidence in the record to support the Commissioner’s findings, ‘the court must uphold
the ALJ’s decision to discount a claimant’s subjective complaints of pain.’” Schlichting,
11 F. Supp. 3d at 206 (quoting Carroll v. Sec’y of Health and Human Servs., 705 F.2d
638, 642 (2d Cir. 1983); Aponte v. Sec’y, Dep’t of Health and Human Servs., 728 F.2d
588, 591 (2d Cir. 1984)). Due to the fact that the ALJ has the benefit of directly
observing a claimant’s demeanor and “other indicia of credibility,” the ALJ’s credibility
assessment is generally entitled to deference. Weather v. Astrue, 32 F. Supp. 3d 363,
381 (N.D.N.Y. 2012) (citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999)).
Plaintiff argues that the ALJ failed to conduct an adequate assessment of his
credibility as required by the regulations, asserting that “all the ALJ offers is the
conclusory statement without support or discussion that Plaintiff’s symptoms as he

30

described them are ‘not entirely credible’ [] and ‘less than fully credible.’” (Dkt. No. 11,
at 21-22 [Pl. Mem. of Law].) However, as with Plaintiff’s assertions that the ALJ failed to
analyze or provide reasons for rejecting Dr. Sullivan’s opinion, Plaintiff’s assertions
regarding the absence of a specific credibility analysis are contradicted by the decision.
The ALJ devoted multiple paragraphs to her explanation of why she found
Plaintiff’s allegations to be not credible. (T. 19-20.) She indicated that (1) she found
Plaintiff’s allegations regarding his physical and mental limitations were inconsistent
with the medical evidence from the relevant time period, (2) there was a lack of
treatment to corroborate the severity he alleged, (3) Plaintiff cancelled multiple
appointments, (4) Plaintiff’s mental condition was observed to improve with medication
compliance, and (5) Plaintiff’s reported activities of daily living were inconsistent with the
extent of limitation alleged. (Id.) These statements, in conjunction with the ALJ’s
broader discussion of the medical treatment evidence, constitute “reasons set forth with
sufficient specificity” as required by the applicable legal standards for making a
credibility assessment in a Social Security disability hearing determination. Contrary to
Plaintiff’s assertions, the ALJ conducted an appropriate credibility analysis, and these
provided reasons are supported by substantial evidence, particularly a lack of objective
evidence of severe limitations in the treatment notes from the relevant time period,
Plaintiff’s many cancelled appointments with Dr. Reddy, and notations of improvement
of his mental symptoms when he remained compliant with his medications, all of which
have been discussed in greater detail in previous sections of this Decision and Order.
Given the fact that the ALJ provided specific reasons supported by substantial
evidence to support her adverse credibility finding, this Court sees no reason to depart

31

from the ALJ’s findings, which are generally entitled to deference on appeal. See
Weather, 32 F. Supp. 3d at 381. For all the above reasons, the credibility determination
is supported by substantial evidence, and remand is not warranted on this basis.

F.

Reliance on Vocational Expert and ALJ’s Step Five Finding

Although the claimant has the general burden to prove he has a disability under
the definitions of the Social Security Act, the burden shifts to the Commissioner at Step
Five “‘to show there is other work that [the claimant] can perform.’” McIntyre v. Colvin,
758 F.3d 146, 150 (2d Cir. 2014) (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445
(2d Cir. 2012)). “An ALJ may rely on a vocational expert’s testimony regarding a
hypothetical as long as ‘there is substantial record evidence to support the
assumption[s] upon which the vocational expert based his opinion’ [] and [the
hypothetical] accurately reflect[s] the limitations and capabilities of the claimant
involved.” Id. at 151 (quoting Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir.
1983); citing Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981)). “If a hypothetical
question does not include all of a claimant’s impairments, limitations, and restrictions, or
is otherwise inadequate, a vocational expert’s response cannot constitute substantial
evidence to support a conclusion of no disability.” Pardee, 631 F. Supp. 2d at 211 (citing
Melligan v. Chater, No. 94-CV-944S, 1996 WL 1015417, at *8 (W.D.N.Y. Nov. 14,
1996)).
Plaintiff’s sole argument related to the ALJ’s reliance on the vocational expert’s
testimony is that the hypothetical questions provided did not include the limitations that
Dr. Sullivan opined. (Dkt. No. 11, at 23-24 [Pl. Mem. of Law].) However, as already

32

detailed, the ALJ provided good reasons for choosing to afford very little weight to Dr.
Sullivan’s opinion and her rejection of that opinion is supported by substantial evidence.
Because the ALJ found Dr. Sullivan’s opined limitations were not supported by the
evidence, she was not obligated to include those limitations in the hypothetical question
to the vocational expert. Accordingly, the ALJ properly relied on the vocational expert’s
testimony to support the Step Five determination, and remand is not warranted on this
basis.

G.

Denial of Plaintiff’s Request to Re-Open Prior Applications

“Where a claimant seeks to reopen a claim where a final decision has been
rendered, the Commissioner may refuse such as request under the doctrine of res
judicata.” Saxon, 781 F. Supp. 2d at 99 (citing Dunn v. Astrue, No. 08-CV-0704, 2010
WL 376390, at *3 (W.D.N.Y. Jan. 27, 2010)). “The Commissioner’s decision not to
reopen a prior determination is not a final decision for the purposes of § 405(g), and
thus federal courts lack jurisdiction to review the administrative decision not to reopen a
previous claim for benefits.” Id. (citing Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.
2003)). “There are two circumstances in which the federal courts may review the
Commissioner’s decision not to reopen a disability application: (1) where the
Commissioner has constructively reopened the case; and (2) “where the claimant has
been denied due process.” Id. (quoting Byam, 336 F.3d at 179). Although an ALJ can
be deemed to have constructively reopened an application where he reviews the entire
record and renders a decision on the merits, “[a] matter is not constructively reopened
when the ALJ merely discusses prior proceedings and evidence to describe a claimant’s

33

background.” Id. (citing Grant v. Shalala, No. 93-CV-0124, 1995 WL 322589, at *7
(W.D.N.Y. Mar. 13, 1995)).
Plaintiff does not allege that the ALJ constructively reopened his prior
applications. However, it is worth noting that the ALJ indeed did not provide any
indication that she constructively reopened Plaintiff’s previous application. First, the
ALJ in this case did not obtain the file that was submitted for that prior application, and
Plaintiff acknowledges that his prior application file had been destroyed, and, therefore,
could not have been obtained. See Saxon, 781 F. Supp. 2d at 99 (finding that the ALJ
could not have constructively reopened the plaintiff’s prior decision because the ALJ did
not obtain the prior file) (citing Owens v. Apfel, No. 98-CV-4379, 2004 WL 2725083, at
*3 (S.D.N.Y. Nov. 24, 2004)). Second, the ALJ explicitly indicates in the written decision
that she found Plaintiff “was not under a disability within the meaning of the Social
Security Act from March 21, 2000, through the date last insured.” (T. 12, 23.) Since
Plaintiff reported that his previous applications were denied on March 20, 2000, the
ALJ’s decision indicates that she did not intend her findings to apply for any time period
covered by the previous applications. (Dkt. No. 11, at 24 [Pl. Mem. of Law].) Therefore,
this Court does not have the ability to review the ALJ’s decision not reopen Plaintiff’s
prior applications on the first exception to the lack of jurisdiction.
The appropriate question then is whether the ALJ’s actions denied Plaintiff due
process. Plaintiff argues that the ALJ’s lack of explanation for the implicit denial of his
request for reopening violated his rights because the evidence shows that he had an
impairment that prevented him from being able to pursue his appeal of those prior
decisions within the appropriate time period. (Dkt. No. 11, at 24-25 [Pl. Mem. of Law].)

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In support of this argument, Plaintiff cites Hope v. Astrue, No. 08-CV-0978, 2010 WL
3118581 (N.D.N.Y. Apr. 15, 2010) for the proposition that remand is required when
there is “insufficient consideration by the ALJ of Plaintiff’s request to reopen.” (Dkt. No.
11, at 25 [Pl. Mem. of Law].) In Hope, this Court found that the plaintiff had raised a
colorable constitutional due process claim by showing that she was mentally
incapacitated during the time period in which to appeal to the prior application decision,
a finding that was sufficient to confer jurisdiction to review the denial of reopening. See
Hope, 2010 WL 3118581, at *2. Plaintiff essentially argues that his impairments
prevented him from being mentally competent and rendered him unable to appeal the
previous unfavorable decisions and, thus, he has raised a colorable due process claim. 7
(Dkt. No. 11, at 24-25 [Pl. Mem. of Law].) However, as will be discussed below, the
mere existence of some mental limitation is not sufficient to show mentally incapacity or
to raise a colorable due process violation.
“An individual ‘suffering from mental illness raises a colorable constitutional claim
when he asserts that his mental illness precluded him from litigating his claim because it

7

Notable differences exist between Hope and Plaintiff’s claim. Most importantly, Hope involved
unique factual circumstances, namely that the ALJ in the decision on appeal had found the plaintiff
disabled all the way back to April 11, 1980, the onset date that the plaintiff had alleged in her prior
application (and thereby implicating the period covered by the prior application). In Plaintiff’s claim, the
ALJ did not find him disabled at any point and expressly considered only the period following the final
Agency decision on the prior applications. Cf. Hope, 2010 WL 3118581, at *1-2; see T. 12, 23.
Additionally, in Hope, the Court noted that the medical evidence substantiated the presence of the
plaintiff’s mental impairment from the time of her prior application, including objective observations on
examinations and documentation of “specific mental disorders and cognitive, social, and emotional
impairments.” See Hope, 2010 WL 3118581, at *2. By contrast, in Plaintiff’s case, it is not entirely clear
when he filed is prior application, but the evidence from the time his CVAs occurred in 1998 and evidence
from early 2000 does not contain much indication of cognitive or mental deficits to substantiate Plaintiff’s
allegations that he had a sufficiently particularized mental impairment during the period covered by the
prior application. See, e.g., T. 520-23, 526-584. Due to these differences, Hope is not dispositive here
and does not require a different finding.

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prevented him from proceeding from one administrative level to another.” Hope, 2010
WL 3118581, at *3 (quoting Byam, 336 F.3d at 182) (citations and quotations omitted).
However, in order to invoke jurisdiction, based on a due
process claim of mental incapacity, a plaintiff must show “a
particularized allegation of mental impairment plausibly of
sufficient severity to impair comprehension. A claim of
constitutionally defective notice , . . . cannot invoke federal court
jurisdiction merely upon a generalized allegation, ... that the
claimant was too confused to understand available
administrative remedies.”
Id. (quoting Stieberger v. Apfel, 134 F.3d 37, 40-41 (2d Cir. 1997)); see also Byam, 336
F.3d at 182 (noting that “Steinberger made clear [] that a claimant’s argument that she
was so impaired as to be unable to pursue administrative remedies requires more than
a ‘generalized allegation’ of confusion; it requires a ‘a particularized allegation of mental
impairment plausibly of sufficient severity to impair comprehension’”). A claimant’s
allegations of his mental impairment are not sufficient to establish a colorable
constitutional claim; rather, the claimant “must furnish evidence establishing a mental
impairment for the time period surrounding the applications they wish to reopen.” Hope,
2010 WL 3118581, at *3 (citing Byam, 336 F.3d at 183).
Although SSR 91-5p is generally applicable in a situation where a court has the
jurisdiction to review a denial of reopening, it provides guidance applicable to this
situation. It provides that, in cases where a claimant’s mental incapacity prevented him
from timely requesting review of an adverse determination for benefits, this mental
incapacity can provide good cause for allowing the claimant to request an extension of
time to appeal that determination (or, more relevant to this case, to reopen the previous
application) regardless of how much time has passed since the previous determination.
See SSR 91-5p, 1991 WL 208067, at *1-2 (SSA July 1, 1991). SSR 91-5p states:
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When a claimant presents evidence that mental capacity
prevented him or her from timely requesting review of an
adverse determination, decision, or dismissal, or review by a
Federal district court, and the claimant had no one legally
responsible for prosecuting the claim [] at the time of the prior
administrative action, SSA will determine whether or not good
cause exists for extending the time to request review. If the
claimant satisfies the substantive criteria, the time limits in the
reopening regulations do not apply; so that, regardless of how
much time has passed since the prior administrative action,
the claimant can establish good cause for extending the
deadline to request review of that action.
The claimant will have established mental incapacity for the
purpose of establishing good cause when the evidence
establishes that he or she lacked the mental capacity to
understand the procedures for requesting review.
In determining whether a claimant lacked the mental capacity
to understand the procedures for requesting review, the
adjudicator must consider the following factors as they existed
at the time of the prior administrative action: [(1)] inability to
read or write; [(2)] lack of facility with the English language;
[(3)] limited education; [(4)] any mental or physical condition
which limits the claimant’s ability to do things for him/herself
Id. at *2 (emphasis added). The main standard of medical incapacity in SSR 91-5p is
similar to the standard expressed in Hope regarding when a claimant has shown a
colorable constitutional due process claim, as both require that there be a mental
impairment that prevents the claimant from being able to navigate the appeals process
due a lack of comprehension of that process. Considering Hope and the relevant
guidance from SSR 91-5p together, in order to raise a colorable due process violation
based on his mental functioning, Plaintiff was required to show that he suffered from a
mental or other impairment that plausibly rendered him unable to understand and
follow through with the appeals process due to impaired comprehension around the
relevant time period for appeal. See id.; Hope, 2010 WL 3118581, at *3.

37

Plaintiff, however, has not made such a showing. 8 Plaintiff lists a host of
allegations of mental deficits including speech impairment, difficulty with words and
understanding, loss of ability to read, write and spell, poor memory, poor concentration,
and poor judgment; however, as noted above, Plaintiff’s allegations themselves are not
sufficient to raise a constitutional due process claim without evidence to establish the
presence of a mental impairment during the applicable time period. (Dkt. No. 11, at 24
[Pl. Mem. of Law]); see Hope, 2010 WL 3118581, at *3 (citing Byam, 336 F.3d at 183).
The medical evidence from the time period surrounding the decision on his previous
application does not substantiate Plaintiff’s allegations of mental symptoms that would
have prevented him from understanding the procedures for requesting review of that
decision. On January 28, 2000, Plaintiff’s mood and affect were noted to be
appropriate and no other objective observations were made regarding his mental or
intellectual functioning. (T. 522-23.) Plaintiff cancelled a scheduled psychiatric
evaluation on March 7, 2000. (Id. at 518.) On April 7, 2000, he reported a host of
symptoms related to depression as well as inability to read and write since his stroke
and poor concentration and focus, but on examination Dr. Reddy observed that he
related well with good eye contact, had no psychomotor abnormality, reported a
depressed mood with a full and appropriate affect, was not delusional, had a coherent
and goal-directed thought process, had intact memory and recall, was able to perform
serial sevens testing, and was able to remember and list the presidents from Clinton

8

As noted, Plaintiff reported that the final Agency decision on his prior application was rendered on
March 20, 2000. (Dkt. No. 11, at 24 [Pl. Mem. of Law].) Therefore, his deadline to appeal that decision to
the Appeals Council would have been May 19, 2000. See 20 C.F.R. § 404.968(a)(1) (indicating that a
request for appeals of an ALJ’s decision to the Appeals Council should me made “[w]ithin 60 days after
the date you receive the notice of the hearing decision or dismissal”). This is the time period that must be
assessed for evidence of mental incapacity.

38

back to Nixon accurately. (T. 516.) Plaintiff then cancelled two subsequent
appointments with Dr. Reddy on March 8, 2000, and March 19, 2000. (Id. at 513-14.)
The medical evidence during the time of Plaintiff’s 60-day window to appeal the
unfavorable decision on his previous application simply does not substantiate the
severely limiting mental and cognitive symptoms Plaintiff alleged were affecting him.
Notably, Dr. Reddy’s April 2000 examination was squarely within the appeal period and
showed intact memory and recall, ability to perform serial sevens, and the ability to
recall a number of recent presidents correctly. These findings do not suggest an
individual who plausibly had a mental impairment that would render him unable to
comprehend the procedures for requesting review of that prior unfavorable decision or
otherwise unable to proceed due to incapacitation.
Additionally, the evidence from 1998 and early 2000 does not indicate a specific
diagnosis that shows cognitive or mental impairment. Notably, on January 28, 2000,
NP Trevisani notes in her assessment section that Plaintiff complained of a number of
symptoms related to his CVAs, but these did not include any particular indication of
cognitive or mental disorders or effects. (T. 523.) The only mental-related notation is
that NP Trevisani indicated that she was sending him for a psychological consult to
“[rule out] depression.” 9 (Id.) Dr. Reddy did diagnose dysthymic disorder on April 7,
2000, but, as already discussed, his observations on the examination were mostly
unremarkable and showed fairly intact cognitive functioning. (Id. at 516.) The
evidence, therefore, does substantiate “‘a particularized allegation of mental

9

As already discussed multiple times throughout this Decision and Order, the record from March
2000 onward is replete with cancellations of appointments with Dr. Reddy, something which, as the ALJ
noted in the decision, raises questions as to the level of severity of Plaintiff’s depression symptoms. (T.
20, 505, 507-08, 513-14, 518.)

39

impairment plausibly of sufficient severity to impair comprehension’” during the time
period related to Plaintiff’s prior application and during the regulatory time period he
had to appeal. Hope, 2010 WL 3118581, at *3 (quoting Stieberger 134 F.3d at 40-41).
The medical evidence from the relevant time period does not substantiate
Plaintiff’s allegations that his impairments incapacitated him to the extent that he would
plausibly have been unable to comprehend the procedures for requesting review, or
that they otherwise prevented him from proceeding from one administrative level to
another as a result of deficient mental or cognitive functioning. Thus, Plaintiff has not
shown a colorable constitutional due process claim stemming from a mental
impairment during the time period relevant to appealing his prior unfavorable decisions.
Absent the presence of a potential due process violation, this Court lacks the
jurisdiction to review the ALJ’s implicit denial of Plaintiff’s request to reopen his prior
applications under the second applicable exception. Accordingly, the ALJ’s implicit
denial of Plaintiff’s request to reopen his application was not a denial of his due
process rights, and this Court therefore does not have the jurisdiction to review the
Commissioner’s decision to decline to reopen Plaintiff’s earlier applications.

IV. CONCLUSION
WHEREFORE, for the reasons stated herein, it is
ORDERED, that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) is
DENIED; and it is further
ORDERED, that Defendant’s motion for judgment on the pleadings (Dkt. No. 12)
is GRANTED; and it is further

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ORDERED, that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
IT IS SO ORDERED.
Dated: July 26, 2017
Albany, New York

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