Cole v. Berryhill

Filing 11

DECISION and ORDER: Ordered that Plaintiffs 9 motion for judgment on the pleadings is denied; Defendant's 10 motion for judgment on the pleadings is granted; Defendants decision denying Plaintiffs disability benefits is affirmed and Plaintiffs 1 complaint is dismissed. Signed by Magistrate Judge Therese Wiley Dancks on 3/28/2019. (jdp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
JASON C.,
Plaintiff,
v.

6:17-cv-01106
(TWD)

NANCY A. BERRYHILL
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Counsel for Plaintiff
300 South State Street, Suite 420
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.

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

ELIZABETH D. ROTHSTEIN, ESQ.

THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION and ORDER
Plaintiff Jason C. brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his
Title II application for Disability Insurance Benefits and Title XVI application for Supplemental
Security Income (“SSI”). See generally Dkt. No. 9. 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.

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Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a
United States Magistrate Judge. (Dkt. No. 5.) For the reasons discussed below, Plaintiff’s
motion is denied and Defendant’s motion is granted.
I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1971, making him 40 years old at the alleged onset date. (T. 20. 1)
He reported completing high school, and has previous work as a warehouse worker, cab driver,
and night stocker. (T. 215.) At the initial application level, Plaintiff alleged disability due to
chronic back problems, chronic obstructive pulmonary disease (COPD), anxiety, and depression.
(T. 214.)
B.

Procedural History

Plaintiff applied for disability insurance benefits and SSI benefits on October 15, 2014,
alleging disability beginning September 1, 2012. (T. 74.) His application was initially denied on
March 17, 2015, after which he timely requested a hearing before an Administrative Law Judge
(“ALJ”). (T. 60-61, 125-26.) Plaintiff appeared at a video administrative hearing before ALJ
Lisa B. Martin on October 25, 2016. (T. 134.) On December 9, 2016, the ALJ issued a written
decision finding Plaintiff was not disabled under the Social Security Act (“SSA”). (T. 10-22.)
On August 3, 2017, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner. (T. 1-6.)

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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C.

The ALJ’s Decision

The ALJ made the following findings of fact and conclusions of law: (1) Plaintiff met the
insured status requirements of the Social Security Act through September 30, 2014, and did not
engage in substantial gainful activity during the period from his September 1, 2012, alleged onset
date through his date last insured; (2) Plaintiff has severe impairments of cervical, thoracic, and
lumbar scoliosis and disorders, chronic obstructive pulmonary disease, depression, anxiety, and
alcohol abuse; (3) he does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the
“Listings”); (4) he has the residual functional capacity (“RFC”)
to perform the full range of sedentary work as defined in 20 C.F.R.
§§404.1567(a) and 416.967(a), except he needs an opportunity as
often as every 30 minutes to briefly change positions during the
workday for one to two minutes, plus access to normal work breaks
to make position changes for longer periods of time, and he is
precluded from all ladders, ropes, or scaffolds climbing and is
limited to occasional postural motions otherwise, and he is precluded
from all exposure to dangerous work hazards, which include
unprotected and exposed, moving machinery, and he is precluded
from all exposure to extreme heat, humidity, and cold conditions and
to all concentrated pulmonary irritants, and he is limited to work that
is detailed but not complex, does not require fast assembly quota
pace, and does not involve exposure to crowded work settings, and
he is limited to occasional neck flexion/extension (i.e. full movement
of neck up, down, left, right) without associated trunk movement;
and (5) he is unable to perform any past relevant work through the date last insured, but there are
jobs existing in significant numbers in the national economy Plaintiff could perform. (T. 12-21.)
The ALJ concluded that Plaintiff had not been under a disability as defined in the SSA from
September 1, 2012, through the date of the decision. (T. 21.)

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D.

The Parties’ Contentions

Plaintiff argues the ALJ erred in the following ways: (1) she failed to fulfill her
obligation to fully and fairly develop the record regarding Plaintiff’s mental impairments,
resulting in a RFC that is not supported by substantial evidence; and (2) her physical RFC
determination is not supported by substantial evidence because she failed to properly evaluate
the opinion evidence. (Dkt. No. 9 at 15-22. 2)
Defendant contends the ALJ’s decision is supported by substantial evidence and correct
legal standards were applied because: (1) the ALJ correctly assessed Plaintiff’s mental RFC and
had no duty to further develop the record; and (2) the ALJ properly evaluated the medical
opinion evidence. (Dkt. No. 10 at 12-21.)
II.

RELEVANT LEGAL STANDARD
A.

Standard for Benefits 3

To be considered disabled, a plaintiff seeking SSI benefits must establish that she or he is
“unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which 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). In addition, the plaintiff’s physical or mental impairments [must be] of such

Page references to the parties’ briefs identified by docket number are to the numbers assigned by the
Court’s CM/ECF electronic docketing system.

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While SSI has special economic eligibility requirements, the requirements for establishing disability
under Title XVI, 42 U.S.C. § 1382c(a)(3) (SSI) and Title II, 42 U.S.C. § 423(d) (Social Security
Disability Insurance) are identical so that “decisions under these sections are cited interchangeably.”
Donato v. Sec’y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir. 1982) (citation omitted).

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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 a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. § 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). Under the five-step evaluation process, the decision
maker determines:
(1) whether the claimant is currently engaged in substantial
gainful activity; (2) whether the claimant has a severe impairment
or combination of impairments; (3) whether the impairment meets
or equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a “residual functional capacity”
assessment, whether the claimant can perform any of his or her
past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). “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 (2003). The plaintiff-claimant bears the burden of proof regarding the first four
steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 1996) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). If the plaintiff-claimant meets his or her burden of proof, the burden of proof
shifts to the defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is
capable of working. Id.
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B.

Standard for 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). A reviewing
court may not affirm the 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 v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
A court’s factual review of the Commissioner’s final decision is limited to 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
her or 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);
Farraris v. Heckler, 728 F.2d 582, 587 (2d. Cir. 1984). “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) (internal quotation marks and citation omitted). Where evidence is deemed
susceptible to more than one rational interpretation, the ALJ’s conclusion must be upheld. See
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial

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evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). 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. Rutherford, 685 F.2d at 62.
III.

ANALYSIS
A.

Residual Functional Capacity

A claimant’s RFC is the most he can do despite his limitations. 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). “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 eight hours a day, for five days a week, or an equivalent
work schedule.” Pardee v. Astrue, 631 F.Supp. 2d 200, 210 (N.D.N.Y. 2009) (citing Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (internal quotation marks omitted)).
It is the ALJ’s job to determine a claimant’s RFC, and not to simply agree with a
physician’s opinion. 20 C.F.R. §416.946(c). In assessing a claimant’s RFC, the ALJ must
consider “all of the relevant medical and other evidence.” Id. § 416.945(a)(3)-(4). In formulating
the claimant’s RFC, the ALJ will afford weight to the medical opinion evidence in the record.
The relevant factors considered in determining what weight to afford an opinion include the
length, nature and extent of the treatment relationship, relevant evidence which supports the
opinion, the consistency of the opinion with the record as a whole, and the specialization (if any)
of the opinion’s source. 20 C.F.R. § 404.1527(c)(1)-(6). The RFC must be supported by
substantial evidence in the record. See 42 U.S.C. § 405(g). “Ultimately, ‘[a]ny impairment7

related limitation created by an individual’s response to demands of work . . . must be reflected
in the RFC assessment.’” Hendrickson v. Astrue, No. 11-CV-0927 (ESH), 2012 WL 7784156, at
*3 (N.D.N.Y. Dec. 11, 2012) (quoting SSR 85-15, 1985 WL 56857, at *8).
The ALJ must “‘carefully consider’ all the evidence presented by claimants regarding
their symptoms, which fall into seven relevant factors including ‘daily activities’ and the
‘location, duration, frequency, and intensity of [their] pain or other symptoms.’” Del Carmen
Fernandez v. Berryhill, No. 18-CV-326 (JPO), 2019 WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019)
(citing 20 C.F.R. § 416.929(c); Social Security Ruling (SSR) 16-3p, Titles II and XVI:
Evaluation of Symptoms in Disability Claims, 81 FR 14166-01 at 14169-70, 2016 WL 1020935
(Mar. 16, 2016)).
In SSR 16-3p, 81 FR at 14167, the Commissioner eliminated the use of the term
“credibility” from the “sub-regulatory policy” because the regulations themselves do not use that
term. Instead, symptom evaluation tracks the language of the regulations. The evaluation of
symptoms involves a two-step process. First, the ALJ must determine, based upon the objective
medical evidence, whether the medical impairments “could reasonably be expected to produce
the pain or other symptoms alleged . . . .” 20 C.F.R. § 416.929(a), (b).
If so, at the second step, the ALJ must consider “‘the extent to which [the claimant’s]
alleged functional limitations and restrictions due to pain or other symptoms can reasonably be
accepted as consistent with the [objective medical evidence] and other evidence to decide how
[the claimant's] symptoms affect [her] ability to work.’” Barry v. Colvin, 606 F. App’x 621, 623
(2d Cir. 2015) (citing inter alia 20 C.F.R. § 404.1529(a)); Genier v. Astrue, 606 F.3d 46, 49 (2d
Cir. 2010) (alterations in original).

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The ALJ must provide specific reasons for the determination. Cichocki v. Astrue, 534 F.
App’x 71, 76 (2d Cir. 2013). However, the failure to specifically reference a particular relevant
factor does not undermine the ALJ’s assessment as long as there is substantial evidence
supporting the determination. Id. See also Del Carmen Fernandez, 2019 WL 667743 at *11
(citing Rousey v. Comm’r of Soc. Sec., 285 F. Supp. 3d 723, 744 (S.D.N.Y. 2018)).
B.

The ALJ’s Duty To Develop the Administrative Record and the Sufficiency
of the Evidence Supporting the Mental RFC

Plaintiff argues that the absence from the record of mental health treatment records from
Community Health and Behavioral Services (“CHBS”) and Mental Health Connections, where
Plaintiff received treatment, resulted in an RFC that was not supported by substantial evidence,
and thus led to an erroneous Step Five determination. (Dkt. No. 9 at 16-18.) For reasons
explained below, the Court finds Plaintiff’s argument unpersuasive and further finds that the
mental RFC is supported by substantial evidence.
1.

Record Evidence Regarding Plaintiff’s Mental Health
Treatment at CHBS and Mental Health Connection

According to Plaintiff, the record reveals that he reported to Nurse Practitioner (“NP”)
Jennifer Schrader on April 14, 2014, that he had recently started seeing an unnamed psychologist
for depression and anxiety. Id. at 16; T. 369. On July 14, 2014, Plaintiff told Ms. Schrader that
he had recently switched from CHBS to Mental Health Connections for his anxiety. (Dkt. No. 9
at 16; T. 358.) At his October 28, 2014, appointment with NP Schrader, Plaintiff told her that he
was going to a mental health provider for depression. (T. 352.) On May 22, 2015, NP Schrader
noted that Plaintiff, whose anxiety and depression were well controlled with medication, was
going to Mental Health Connections. (Dkt. No. 9 at 16; T. 588.) On October 16, 2015, Plaintiff
told NP Schrader he had been discharged from Mental Health Connections for failing to show up

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for multiple appointments because he was homeless and had been stuck in Syracuse. (Dkt. No.
10 at 6; T. 581.) When asked at his October 25, 2016, hearing whether he was undergoing any
mental health treatment for depression or anxiety, Plaintiff testified he was seeing his primary
care physician who had prescribed Zoloft, and he was trying to get into a clinic. (T. 43.)
At a consultative psychiatric examination on February 13, 2015, Plaintiff informed
psychologist Jeanne A. Shapiro, Ph.D., that he started in treatment at Mental Health Connections
late the year before and was seeing a counselor, Walt, there every three to four weeks and Dr.
Robert Sharpe once a month. (Dkt. No. 9 at 17; T.511.) Plaintiff told Dr. Shapiro he had
previously been in treatment with Rick Paulsen and Dr. Hudyncia at CHBS. Id. The record does
not include records from either CHBS or Mental Health Connections. Plaintiff concedes that the
state agency had attempted to obtain records from Mental Health Connections, but no records
were provided. (Dkt. No. 9 at 16.)
2.

ALJ’s Duty to Develop the Administrative Record

Although the claimant has the general burden of proving that he or she has a disability
within the meaning of the Social Security Act, “‘the ALJ generally has an affirmative obligation
to develop the administrative record’” due to the non-adversarial nature of a hearing on disability
benefits. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2014) (quoting Melville v. Apfel, 198
F.3d 45, 52 2d Cir. 1999)). “‘It is the ALJ’s duty to investigate and develop the facts and
develop the arguments both for and against the granting of benefits.’” Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009) (quoting Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir.
2009)). An “ALJ must make every reasonable effort to help [the claimant] obtain medical
reports from the claimant’s medical sources so long as permission is granted to request such

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reports.” Hart v. Comm'r of Soc. Sec., 07-CV-1270 (DNH), 2010 WL 2817479, at *5 (N.D.N.Y.
July 16, 2010) (quoting 20 C.F.R. § 404.1512(d)) (quotation marks omitted).
An ALJ has an affirmative duty to develop the administrative record even where the
claimant is represented by counsel; however, the duty is not unlimited. See Dutcher v. Astrue,
No. 09-CV-1161 (LEK/VEB), 2011 WL 1097860, at *5 (N.D.N.Y. Mar. 7, 2011) (citing Pratts
v. Chater, 94 F.3d 34. 37 (2d Cir. 1996)). “Generally, additional evidence or clarification is
sought when there is a conflict or ambiguity that must be resolved, when the medical reports lack
necessary information, or when the reports are not based on medically acceptable clinical and
laboratory diagnostic techniques.” Janes v. Colvin, 15-CV-1528 (GTS), 2017 WL 972110, at *4
(N.D.N.Y. Mar. 10, 2017), aff’d 710 F. App’x 33 (2d Cir. 2018) (citing 20 C.F.R. § 404.1520b;
Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998)). The ALJ is not required to seek additional evidence when the evidence already in the
record is “adequate for [the ALJ] to make a determination as to disability.” Perez v. Chater, 77
F.3d 41, 48 (2d Cir. 1996). The “[m]ere absence of some medical records” is insufficient to
show that the ALJ failed in her duty or that reversible error occurred. Mauzy v. Colvin, No. 5:12CV-866 (GLS/ESH), 2014 WL 582246, at *7 (N.D.N.Y. Feb. 13, 2013) (“The Commissioner’s
implementing regulations recognize that further development of the record is unnecessary, and
administrative law judges may make determinations based upon existing evidence when it is
consistent and sufficient to determine whether a claimant is disabled.”) (citing 20 C.F.R. §§
404.1520(b)(a), 416,920b(a)).
An ALJ has taken reasonable steps to complete the medical record when she asks
claimant’s attorney at a hearing if the medical records before her are complete, and the attorney
answers affirmatively. Orts v. Astrue, No. 5:11-CV-0512 LEK/ESH, 2013 WL 85071, at *3

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(N.D.N.Y. Jan. 7, 2013); see Streeter v. Comm'r of Soc. Sec., No. 5:07–CV–858 (FJS), 2011 WL
1576959, *4 (N.D.N.Y. Apr. 26, 2011) (holding that an ALJ had satisfied her duty to develop the
record when “the ALJ specifically asked Plaintiff's counsel, during the hearing, if the medical
records were complete, to which Plaintiff's counsel responded affirmatively”).
3.

The ALJ Took Reasonable Steps to Ensure the Record was
Developed in Accordance with Proper Legal Standards

In a pre-hearing March 6, 2016, letter, Plaintiff and his counsel were advised that “if
there is more evidence you want the [ALJ] to see, please submit it as soon as possible,” and
directing the attorney to “please contact us immediately” if assistance was needed in gathering
evidence. (T. 127.) Counsel was also informed that “[i]f a physician, expert, or other witness is
not cooperating with the production of documents important to your client’s case, you may ask
the ALJ to issue a subpoena that requires a person to submit documents or testify at your client’s
hearing.” Id. There is no claim by Plaintiff that assistance was requested in obtaining medical
records or other evidence regarding Plaintiff’s mental impairments in response to the letter.
In an April 18, 2016, letter, Plaintiff and his attorney were reminded that “[i]t is the
claimant’s responsibility to provide medical evidence showing that [he] has an impairment(s)
and how severe it is during the time [he] alleges disability,” and urging submission of all medical
records “not in the file.” (T. 257-58.)
The ALJ asked Plaintiff’s counsel at the commencement of the October 25, 2016,
hearing, “[A]t this point, is there anything else that you’re aware of we need to add to the
record?” (T. 33.) Plaintiff’s counsel stated “The record is complete.” Id. Plaintiff’s counsel
immediately followed that statement up by providing one exception to the completeness of the
record, citing a note written the week prior by Dr. McNulty referring Plaintiff to a back surgery
specialist at Upstate Medical. Id. The ALJ gave Plaintiff’s counsel ten (10) days to submit this
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note. (T. 34.) Plaintiff’s counsel did not identify any mental health impairment records that he
believed were necessary to complete the record or request that the record be left open to submit
any such records, although both the ALJ and counsel questioned Plaintiff regarding his claims of
depression and anxiety at the hearing. (T. 42-44, 48-49.)
Given Plaintiff’s counsel’s affirmative response to the completeness of the record, the
failure to raise any concern regarding the treatment notes from two mental health clinics Plaintiff
visited in 2014 and 2015 until this appeal, and the substantial evidence supporting the ALJ’s
mental RFC, as discussed below, the Court cannot find any legal error in the ALJ’s failure to
request or obtain the records Plaintiff claims were necessary to fully develop the record. 4
4.

The Record Evidence was Sufficient for the ALJ to Make a Determination
as to the Mental RFC, and the Mental RFC is Supported by Substantial
Evidence

In determining Plaintiff’s RFC, the ALJ considered, based on medical evidence in the
file, that Plaintiff’s anxiety and depression had been well-controlled with conservative methods
including medication and therapy. (T. 17-18.) The ALJ specifically referenced NP Schrader’s
May 22, 2015, note in which she reported that Plaintiff’s anxiety and depression were “WELL
CONTROLLED WITH MEDICATION DOES GO TO MENTAL HEALTH CONNECTION,”
and described his anxiety, depression, and sleep disturbances as “CHRONIC, INTREMITTENT
(sic) – UNCHANGED.” (T. 588.) The ALJ also referenced NP Schrader’s May 18, 2016, note
in which she reported that Plaintiff’s anxiety was “WELL CONTROLLED ON MEDICATION
– HE IS CONTINUING TO TAKE ZOLOFT.” (T. 576.)

Plaintiff’s argument regarding the ALJ’s failure to develop the record with respect to Plaintiff’s mental
health treatment was not raised by Plaintiff’s counsel in his March 6, 2017, letter to the Appeals Council
setting forth Plaintiff’s arguments and statements of the ALJ’s errors. (T. 226-27.)
4

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Finding the opinion of Dr. Shapiro to be consistent with Plaintiff’s history of
conservative mental treatment as revealed in the medical records, the ALJ gave it great weight.
(T. 19, 511-15.) As noted by the ALJ in her decision, Plaintiff, who told Dr. Shapiro he was
depressed at times, complained of lethargy and lack of motivation. (T. 13, 512.) Nonetheless,
Plaintiff reported being able to maintain his personal hygiene, perform household chores,
manage money, and use public transportation, leading Dr. Shapiro to conclude that his mental
impairments were not significant enough to interfere with his ability to function on a daily basis.
(T. 13; 512, 514.)
Dr. Shapiro also had found that Plaintiff appeared to have no limitations in understanding
and following simple instructions and directions and performing simple or complex tasks;
maintaining attention and concentration for tasks; learning new tasks; and attending to a routine
and maintaining a schedule. (T. 19, 514.) According to Dr. Shapiro, Plaintiff appeared to have
only mild limitations regarding his ability to make decisions and cope with stress, and he
appeared to be able to relate to and interact well with others. Id. The Court also notes that
during the evaluation, Plaintiff told Dr. Shapiro he was unable to work at that time because of his
back, with no mention of his mental impairments as an impediment to working. (T. 511.)
The ALJ considered Plaintiff’s subjective complaints of concentration deficits and
experiencing increased anxiety in crowds in conjunction with her consideration of Dr. Shapiro’s
findings that there no limitation in his ability to concentrate and that he was able to relate and
interact well with others. (T. 19.) As a result, in the RFC the ALJ limited Plaintiff to detailed,
but not complex, tasks that did not involve a fast assembly quota pace. Id. The ALJ also limited
Plaintiff to no exposure to crowded work settings. Id.

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In sum, the ALJ had no duty to further develop the record with respect to Plaintiff’s
mental impairments, and the RFC is supported by substantial evidence as it relates to Plaintiff’s
mental impairments. Moreover, because the Court has determined that the mental RFC was
supported by substantial evidence with respect to Plaintiff’s mental impairments, he cannot
successfully challenge the ALJ’s Step Five determination based upon the inadequacy of the RFC.
See Tiffany C. v. Com’r of Soc. Sec., No. 5:17-CV-878 (FJS/DJS), 2018 WL 4610676, at *6
(N.D.N.Y. June 20, 2018) (“Where, as here, the RFC determination is supported by substantial
evidence . . . an attempt to bootstrap the same argument into Step Five should be rejected” and
“relying on [the] RFC as the basis for question to the VE was not error.”) (citations omitted).
C.

Sufficiency of the Evidence Supporting the Physical RFC
Plaintiff

Plaintiff argues that the ALJ erroneously failed to provide any explanation for rejecting
certain manipulative limitations identified by Dr. Michael McNulty, a treating physician at
Slocum Dickson Hospital, whose opinion she gave partial weight. (Dkt. No. 9 at 18; T. 18-19.)
The two manipulative limitations alleged to have been rejected are Plaintiff’s inability to hold his
head in a static position more than occasionally, and the limitation in Plaintiff’s ability to reach.
(Dkt. No. 9 at 19-20.) Plaintiff also argues that because examining consultative physician, Dr.
Lorensen, noted that Plaintiff did not have scoliosis or abnormality in the thoracic spine when
every imaging study and treatment note contradicted that finding, the doctor’s physical
examination was inconsistent with the entirety of the record. (Dkt. No. 9 at 21-22.) For reasons
explained below, the Court finds that the ALJ followed proper legal standards, and that the
physical RFC is supported by substantial evidence.

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1.

Treating Physician Rule

The treating physician rule in effect at the time relevant to Plaintiff’s claim provides that
“an ALJ should defer ‘to the views of the physician who has engaged in the primary treatment of
the claimant,’” but need only assign those opinions “controlling weight” if they are “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and . . . not
inconsistent with other substantial evidence in [the] case record.” Cichocki v. Astrue, 534 F.
App’x 71, 74 (2d Cir. 2013) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003); 20 C.F.R. § 404.1527(c)(2). When the ALJ “do[es] not give the treating source’s opinion
controlling weight,” she is required to apply the factors listed in 20 C.F.R. §§ 404.1527(c)(2),
including “(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.” Selian v. Astrue, 708 F.3d 409, 418 (2d
Cir. 2013)); 20 C.F.R. §§ 404.1527(c), 416.927(c).
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., 15-CV-1196, 2017 WL 782979 (GTS/WBC), at *4 (N.D.N.Y. Jan. 23,
2017) (citing Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)). After considering these
factors, “the ALJ must ‘comprehensively set forth [her] reasons for the weight assigned to a
treating physician’s opinion.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting
Burgess, 537 F.3d at 129.

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2.

Static Neck Position

In his medical source statement, Dr. McNulty opined that Plaintiff could look down
(sustained flexion of neck), turn head right or left, look up, and hold head in static position
“occasionally.” (T. 644.) The Court finds Plaintiff’s claim that the ALJ, without explanation,
rejected Dr. McNulty’s opinion with respect to Plaintiff’s limitation in holding his head in a
static position to be without merit. As noted in Defendant’s Brief, the ALJ clearly stated that the
RFC limited Plaintiff to “occasional neck flexion” because of his history of cervical pain, and
that such limitation “sufficiently accommodate[d]” Plaintiff’s impairments. (Dkt. No 10 at 19;
T. 19.) Moreover, as discussed in Defendant’s Brief, the ALJ noted in her decision that a 2016
x-ray of Plaintiff’s cervical spine showed no instability (Dkt. No. 20 at 19; T. 16, 648), and
Plaintiff reported that his daily activities included watching television and using the computer.
(T. 514.) Thus, the Court agrees with Defendant that the ALJ did not err in omitting the
limitation from her RFC. (Dkt. No. 10 at 19.) See McGannon v. Colvin, No. 5:12-CV-359
(GLS), 2013 WL 1296383, at *2 (N.D.N.Y. Mar. 28, 2013) (“Dr. Schaeffer’s opinion that
McGannon could only occasionally hold his head in a static position . . . is contradicted by,
among other things, McGannon’s testimony that he is able to watch television all day.”)
3.

Reaching

In his medical source statement, Dr. McNulty opined that Plaintiff could only
“occasionally” reach with his arms, including overhead. (T. 644.) Dr. Lorensen found Plaintiff
had moderate restrictions in reaching. (T. 509.) The Court finds that the ALJ did not, as
Plaintiff argues, either fail to provide an explanation for rejecting the reaching limitation in the

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RFC, or substitute her own medical judgment as to the restriction for those of Dr. McNulty and
Dr. Lorensen.
The ALJ accepted those of Dr. McNulty’s opinions on Plaintiff’s limitations which she
found to be consistent with Plaintiff’s history of back and neck problems, i.e., that he required
sedentary work with the opportunity to change positions, and only occasional neck flexion and
extension. (T. 15, 19.) However, as the ALJ stated in her decision, she “did not find any
objective basis for any manipulative limitations,” which included reaching. (T. 19.) The ALJ
may reject portions of a medical opinion not supported by objective evidence of record and
accept those opinions that are supported by substantial evidence. See Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002.) Generally, the more consistent a medical opinion is with the
record as a whole, the more weight it will be given. See 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4), 416.927(c)(4).
The ALJ explained that she rejected Dr. McNulty’s manipulation limitations because the
limitations were not supported by the record which showed that Plaintiff’s physical examinations
consistently revealed normal grip and arm strength. (T. 19.) The Court finds that the ALJ’s
finding is supported by substantial evidence. In January 2013, Plaintiff was found by neurologist
Dr. Soults to have full strength in the deltoids, biceps, and triceps. (T. 332.) In October 2013,
Dr. Soults found that Plaintiff had full motor strength and full range of motion and was totally
asymptomatic. (T. 337.) In February 2015, Dr. Lorensen observed in examining Plaintiff that he
had full arm and grip strength. T. 508-09.) In August and October of 2016, Dr. McNulty noted
that Plaintiff had full movement of his shoulders and elbows. (T. 604, 647.) As argued by
Defendant, the repeated, consistent observations of normal strength in Plaintiff’s hands and arms
undermine Dr. McNulty’s opinions. (Dkt. No. 18.) See Woodmancy v. Colvin, 577 F. App’x 72,

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75 (2d Cir. 2014) (ALJ properly assigned little weight to a treating physician’s opinion that was
contradicted by unremarkable findings).
Inasmuch as there is substantial evidence in the medical records supporting the ALJ’s
findings with regard to Plaintiff’s manipulation limitations, including reaching, the Court rejects
Plaintiff’s argument that because Dr. McNulty’s reaching restrictions are consistent with
consultative examiner Dr. Lorensen’s opinion that Plaintiff had moderate restrictions in reaching,
the ALJ erred in finding the manipulation limitations had no objective basis in the record. See
Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013) (“substantial evidence supported the ALJ’s
decision not to adopt many of the [consultative examiner’s] conclusions,” including the
“relatively vague” opinion that the claimant had “moderate to severe limitations[s].”).
4.

Scoliosis

Plaintiff correctly points out that, contrary to the imaging of Plaintiff’s spine and
Plaintiff’s medical records, Dr. Lorensen found that Plaintiff did not have scoliosis. (Dkt. No. 9
at 21-22; T. 508.) Plaintiff appears to argue that because the finding is contrary to the consistent
finding of scoliosis in the medical records, all of Dr. Lorensen’s findings are called into question
and should be disregarded. (Dkt. No. 21-22.) However, Plaintiff has not pointed to any
evidence that relates Plaintiff’s scoliosis to the functional capabilities or limitations that he
contends render him disabled. See Kain v. Colvin, No. 14-CV-650S, 2017 WL 2059806, at *3
(W.D.N.Y. May 15, 2017) (“[D]espite the three years of medical records around Plaintiff’s
complaints and diagnoses, and numerous imaging reports, nothing from Plaintiff’s treating
sources related this date to her functional capabilities or limitations”).

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D.

Step Five

Because, as with the ALJ’s mental RFC, the Court has determined that the physical RFC
is supported by substantial evidence, Plaintiff cannot successfully challenge the ALJ’s Step Five
determination based upon the inadequacy of the RFC. See Tiffany C., 2018 WL 4610676, at *6.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 10) is
GRANTED; and it is further
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.

Dated: March 28, 2019
Syracuse, New York

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