Farrell v. Commissioner of Social Security

Filing 19

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Farrell's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 8/16/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JUDY A. FARRELL,
Plaintiff,

7:12-cv-418
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Conboy, McKay Law Firm
307 State Street
Carthage, NY 13619
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

LAWRENCE D. HASSELER,
ESQ.

VERNON NORWOOD
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Judy A. Farrell challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB), seeking judicial
review under 42 U.S.C. § 405(g). (See Compl., Dkt. No. 1.)1 After
reviewing the administrative record and carefully considering Farrell’s
arguments, the court affirms the Commissioner’s decision and dismisses
the Complaint.
II. Background
On August 7, 2007, Farrell filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since August 15, 2006.
(See Tr.2 at 90, 125-32.) After her application was denied, (see id. at 9295), Farrell requested a hearing before an Administrative Law Judge (ALJ),
which was held on April 21, 2010, (see id. at 46-89, 98). On July 7, 2010,
the ALJ issued an unfavorable decision denying the requested benefits,
which became the Commissioner’s final determination upon the Social

1

Because no application for Supplemental Security Income (SSI) appears in the record
and it is otherwise clear that Farrell’s request for review pertains only to her application for
DIB, the court ignores the mistaken reference to SSI in her complaint. (See Compl. ¶ 2.)
2

Page references preceded by “Tr.” are to the Administrative Transcript. (See Dkt. No.

9.)
2

Security Administration Appeals Council’s denial of review. (See id. at 1-6,
14-34.)
Farrell commenced the present action by filing her Complaint on
March 7, 2012 wherein she sought review of the Commissioner’s
determination. (See generally Compl.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 8, 9.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 14, 17.)
III. Contentions
Farrell contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (See Dkt. No. 14 at 924.) Specifically, Farrell claims that the ALJ: (1) improperly assessed the
severity of her chronic obstructive pulmonary disorder (COPD) and
migraine headaches; (2) failed to apply the treating physician rule; (3)
erred in evaluating her credibility; (4) failed to properly apply the psychiatric
review technique; (4) improperly determined her residual functional
capacity (RFC); and (5) made a step five determination that was
unsupported by substantial evidence. (See id.) The Commissioner
counters that the appropriate legal standards were used by the ALJ and his
3

decision is also supported by substantial evidence. (See Dkt. No. 17 at 1524.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (See
Dkt. No. 14 at 1-8; Dkt. No. 17 at 2-12.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Severity Determination
Farrell first contends that the ALJ failed to properly assess the

severity of her COPD and chronic migraines. (See Dkt. No. 14 at 9-11.)
According to Farrell, the ALJ should not have considered the fact that she
continues to smoke because “there is no medical opinion which asserts
4

that her smoking has caused or exacerbated” her COPD. (Id. at 10.) In
addition, Farrell argues that her testimony coupled with emergency room
treatment records from September 2002 and April and June 2006
demonstrate that her headaches have more than a minimal impact on her
ability to work. (See id. at 11.) The court disagrees.
A claimant has the burden of establishing that she has a “severe
impairment,” which is “any impairment or combination of impairments
which significantly limits [her] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c); see Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003). As pertinent here, basic work activities are
“the abilities and aptitudes necessary to do most jobs,” including “functions
such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling” as well as “[u]nderstanding, carrying out, and
remembering simple instructions.” 20 C.F.R. § 404.1521(b)(1), (3). “The
‘mere presence of a disease or impairment, or establishing that a person
has been diagnosed or treated for a disease or impairment’ is not, itself,
sufficient to deem a condition severe.” Bergeron v. Astrue, No. 09-CV1219, 2011 WL 6255372, at *3 (N.D.N.Y. Dec. 14, 2011) (quoting
McConnell v. Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y.
5

Mar. 27, 2008)). Indeed, when “medical evidence establishes only a slight
abnormality or a combination of slight abnormalities,” a finding of “not
severe” is warranted. SSR 85-28, 1985 WL 56856, at *3 (1985); see 20
C.F.R. § 404.1521(a).
Here, the ALJ determined that, although Farrell had been diagnosed
with COPD, it was not a severe impairment under the regulations because
it was controlled by medication. (See Tr. at 20.) The ALJ further explained
that, upon examination by consultative examiner Brij Sinah, Farrell’s chest
was clear to auscultation and percussion and there was no wheeze or
rhonchi heard. (See id. at 20, 304.) In addition, a pulmonary function test
administered in October 2007 revealed only mild obstruction. (See id. at
20, 305, 308.) Finally, the ALJ noted that Farrell continues to smoke half
of a pack of cigarettes a day, despite her alleged breathing difficulties.
(See id. at 20, 74.)
Contrary to Farrell’s argument that no medical source opined that
smoking caused or exacerbated her COPD, in May 2005 she was
diagnosed with acute COPD exacerbation and counseled to stop smoking
and in August 2009 she was diagnosed with COPD secondary to tobacco
use. (See id. at 319-22, 469, 473.) Moreover, an ALJ can properly
6

consider a claimant’s failure to quit smoking as impacting on the credibility
of her complaints of disabling respiratory problems. See Goff v. Astrue,
No. 09-CV-1392, 2012 WL 1605574, at *11 (N.D.N.Y. May 8, 2012).
However, “a claimant’s failure to quit smoking will generally be an
unreliable basis on which to rest a credibility determination,” due to the
addictive nature of smoking. Id. at *11-12 (internal quotation marks and
citations omitted). Nevertheless, the ALJ’s consideration of Farrell’s failure
to quit smoking, along with all the other evidence of record, is not a basis
for remand. Indeed, throughout the relevant time period, upon
examination, Farrell’s lungs were clear, spirometry testing in July 2005
showed no objective evidence of COPD, chest x-rays in June and
September 2006 revealed that her lungs were clear and no acute disease
was identifiable, and, in October 2008, Farrell reported occasional
shortness of breath “when she really exerts herself.” (Tr. at 480; see id. at
257, 268, 304-05, 456, 460, 466, 468-72, 474-81, 498, 516, 542, 551, 554,
575, 585, 588.) Thus, substantial evidence3 supports the ALJ’s conclusion
that Farrell’s COPD did not significantly limit her physical ability to do basic

3

“Substantial evidence is defined as more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept to support a conclusion.” Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted).
7

work activities.
With respect to her migraine headaches, the ALJ also determined
that they were not severe due to a lack of medical evidence that they
significantly limited Farrell’s ability to work. (See id. at 20.) In fact, the
medical evidence during the relevant period was largely devoid of
complaints or exam findings with respect to headaches. Although Farrell
testified that she continued to suffer headaches two to three times per
month, and that she seeks emergency room care when they last longer
than two days, (see id. at 78), the record does not contain any emergency
room treatment notes during the relevant time period related to Farrell’s
headaches. Thus, the court affirms the ALJ’s step two findings.
B.

Treating Physician Rule
Next, Farrell argues that the ALJ failed to afford the proper weight to

the opinions of her treating sources. (See Dkt. No. 14 at 11-14.)
Specifically, Farrell contends that the ALJ was required to accept the
opinions of her workers’ compensation treatment provider Shara Peets and
her treating physician Bedros Bakirtzian that she could not work. (See id.)
Again, the court disagrees.
Controlling weight will be given to a treating source’s opinion on the
8

nature and severity of a claimant’s impairments where it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
When a treating source’s opinion is given less than controlling weight, the
ALJ is required to consider the following factors: the length, nature and
extent of the treatment relationship; the frequency of examination;
evidentiary support offered; consistency with the record as a whole; and
specialization of the examiner. 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ
must provide “‘good reasons’ for the weight given to the treating source’s
opinion.’” Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011) (citations
omitted). “Nevertheless, where ‘the evidence of record permits [the court]
to glean the rationale of an ALJ’s decision,’” it is not necessary that the
ALJ “‘have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.’” Id. (citation omitted).
Here, the record contains treatment notes from Dr. Bakirtzian from
September 2006 through May 2007. (See id. at 294-98.) During this time,
Farrell was neurologically intact with respect to sensation and muscle
9

strength, but she suffered reduced range of motion of her back and straight
leg raising was, at times, positive on the right. (See id.) On September 6,
2006, Dr. Bakirtzian advised that Farrell was to continue to remain off
work, until the results of an EMG study were obtained. (See id. at 298.)
Thereafter, the EMG study revealed normal results, however, Dr.
Bakirtzian continued to advise that Farrell “remain off work.” (Id. at 29596.)
In making his determination, the ALJ considered the opinions of
various treating sources, including Dr. Bakirtzian, that Farrell was
“disabled, temporarily disabled, partially disabled, disabled from her regular
work, could not return to work, or should remain off work.” (Id. at 26
(internal citation marks omitted).) However, the ALJ correctly noted that
these are opinions on issues reserved to the Commissioner, as opposed to
opinions on the nature or severity of Farrell’s impairments, and, therefore,
he failed to grant them “any special significance.” (Id.); see 20 C.F.R.
§ 404.1527(d). Although, the ALJ did not specifically mention the opinion
of Dr. Peets that Farrell should “[c]ontinue no work,” the ALJ is not required
to discuss all of the evidence submitted and a failure to do so does not
indicate that the evidence was not considered. (Tr. at 543); see Craig v.
10

Apfel, 212 F.3d 433, 436 (8th Cir. 2000). Moreover, one week after opining
that Farrell should remain off work, and prior to Farrell’s alleged onset
date, Dr. Peets advised that Farrell could “return to level [one] work with no
twisting or prolonged standing.” (Tr. at 544.) Thus, Farrell’s arguments
with respect to the opinions of Drs. Bakirtzian and Peets are without merit.
Contrary to Farrell’s arguments, the opinions of several medical
sources support the ALJ’s determination that she was not disabled. (See
Dkt. No. 14 at 13.) In addition to Dr. Peets’ June 28, 2006 opinion that
Farrell could return to work with some limitations, physician Louis Benton
opined in February 2007 that Farrell “could return to a light sedentary
work,” but could not bend from the lumbar spine and could not lift more
than fifteen pounds. (Tr. at 444; see id. at 544.) Further, in February
2008, physician Neal Zirn opined that Farrell was “able to perform
sedentary work with the following restrictions: sitting no more than [twenty]
minutes at a time, with breaks as necessary for comfort; no repetitive
bending or twisting; and no lifting over ten pounds.” (Id. at 438.) Finally, in
June 2008, treating physician Karinka Romanowska opined that Farrell
could do sedentary work. (See id. at 427.)
C.

Credibility Determination
11

Farrell next argues that the ALJ failed to properly evaluate her
subjective allegations of pain and disabling symptoms as required by the
Regulations. (See Dkt. No. 14 at 14-17.) According to Farrell, the ALJ
erred because he failed to: (1) note treatment records which corroborate
her complaints of side effects caused by her medications, including those
in April 2007 that indicate that she stopped taking Darvocet and Flexeril
because she was sensitive to it; (2) consider all of the evidence relating to
her depression and anxiety; (3) consider that she required the ability to
change positions during the administrative hearing; and (3) properly
evaluate the testimony of her brother. (See id. at 16-17.) The
Commissioner counters, and the court agrees, that the ALJ properly
evaluated Farrell’s credibility.
Once the ALJ determines that a claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” he “must evaluate the intensity and persistence of
those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
12

quotation marks and citations omitted). In performing this analysis, the
ALJ “must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg.
34,483, 34, 485 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
§ 404.1529(c)(3)(i)-(vi)).
In this case, the ALJ concluded that Farrell’s statements concerning
the intensity, persistence, and limiting effects of her symptoms were not
credible, although he credited Farrell’s complaints that “she experiences
some pain with prolonged standing and/or walking and heavy lifting.” (Tr.
at 23.) The ALJ also considered the testimony of Farrell’s brother as to her
back pain and its effect on her daily activities. (See id. at 82-86.) The ALJ
concluded that Farrell’s brother was “partially credible.” (Id. at 23.) In
making his credibility determinations, the ALJ considered Farrell’s reported
13

daily activities, her training to become a medical transcriptionist, the
medical evidence of record, including the opinion evidence, and the
treatment she received for her impairments, including medications. (See
id. at 23-27.)
Contrary to Farrell’s contentions, (see Dkt. No. 14 at 15-16), the ALJ
considered the relevant factors under 20 C.F.R. § 404.1529(c), and,
further, “[f]ailure to expressly consider every factor set forth in the
regulations is not grounds for remand where the reasons for the ALJ’s
determination of credibility are sufficiently specific to conclude that he
considered the entire evidentiary record.” Judelsohn v. Astrue, No. 11-CV388S, 2012 WL 2401587, at *6 (W.D.N.Y. June 25, 2012) (internal
quotation marks and citation omitted); see Oliphant v. Astrue, No. 11-CV2431, 2012 WL 3541820, at *22 (E.D.N.Y. Aug. 14, 2012) (stating that the
20 C.F.R. § 404.1529(c)(3) factors are included as “‘examples of
alternative evidence that may be useful [to the credibility inquiry], and not
as a rigid, seven-step prerequisite to the ALJ’s finding’” (quoting Snyder v.
Barnhart, 323 F. Supp. 2d 542, 546 (S.D.N.Y. 2004))).
Although there is evidence that Farrell experienced side effects of
her medications, as the ALJ properly pointed out, in September 2009 it
14

was noted that, despite continuing low back pain, Farrell was doing well on
Lidocane patches. (See Tr. at 24, 468.) In addition, in May 2007 it was
noted that muscle relaxants gave Farrell some relief, in May 2008 it was
noted by Farrell’s treating psychiatrist that Farrell had “[b]etter control over
[her] pain and muscular discomfort thanks to her community physician,”
and in November 2008 she was “[m]anaging her pain on the Flexeril and
the Darvocet.” (Id. at 294, 356, 463.) As discussed below, the ALJ
properly developed the record with respect to Farrell’s mental health
treatment and his determination that the results of her mental status
examinations did not support her claims is supported by substantial
evidence. See infra Part VI.D-E. Finally, although the ALJ did not mention
that Farrell changed positions between sitting and standing during the
administrative hearing, the court again notes that he is not required to
discuss all of the evidence before him and a failure to do so does not
indicate that the evidence was not considered. (See Tr. at 56, 82); Craig,
212 F.3d at 436. Moreover, the ALJ included Farrell’s need to alternate
positions in his RFC determination. (See Tr. at 22.) Ultimately, the court
concludes that the ALJ properly weighed “the objective medical evidence in
the record, [Farrell’s] demeanor, and other indicia of credibility,” and,
15

therefore, his credibility determination is affirmed. Lewis v. Apfel, 62 F.
Supp. 2d 648, 651 (N.D.N.Y. 1999) (internal quotation marks and citation
omitted).
Turning to the testimony of Farrell’s brother, “[i]n considering
evidence from ‘non-medical sources’ . . . such as spouses, parents,
friends, and neighbors,” an ALJ should “consider such factors as the
nature and extent of the relationship, whether the evidence is consistent
with other evidence, and any other factors that tend to support or refute the
evidence.” SSR 06-03p, 71 Fed. Reg. 45,593, 45,596 (Aug. 9, 2006).
However, “there is a distinction between what an adjudicator must consider
and what the adjudicator must explain in the disability determination or
decision.” See id. In his decision, the ALJ “generally should explain the
weight given to opinions from these ‘other sources’” and, if he “determines
that an opinion from such a source is entitled to greater weight than a
medical opinion from a treating source, the adjudicator must explain the
reasons” for that determination. (See id.) Here, it is clear that the ALJ
considered the testimony of Farrell’s brother and discounted it due to the
objective medical evidence, opinion evidence, Farrell’s activities of daily
living, and the nature of her treatment. (See Tr. at 23-27.) Accordingly,
16

the ALJ applied the appropriate legal standards in assessing the testimony
of Farrell’s brother.
D.

Psychiatric Review Technique
Farrell also claims that the ALJ failed to properly apply the special

technique required for the evaluation of mental impairments. (See Dkt. No.
14 at 17-20.) In particular, Farrell contends that the ALJ failed to properly:
(1) evaluate the symptoms, signs, and findings which substantiate the
presence of a mental impairment; (2) rate the degree of functional
limitation with respect to the four broad areas required under the
Regulations; and (3) determine her mental RFC.4 (See id.) This argument
is unavailing.
An ALJ’s evaluation of a claimant’s mental impairments must reflect
his application of the “special technique” set out in 20 C.F.R. § 404.1520a,
which necessitates his consideration of “four broad functional areas” that
include: “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” 20 C.F.R.
§ 404.1520a(c)(3). The first three areas are rated on a five-point scale:

4

As Farrell repeats her arguments with respect to the mental RFC determination in her
subsequent challenge to the RFC determination as a whole, the court discusses this argument
separately. See infra Part VI.E.
17

“[n]one, mild, moderate, marked, and extreme.” Id. § 404.1520a(c)(4). “[I]f
the degree of limitation in each of the first three areas is rated ‘mild’ or
better, and no episodes of decompensation are identified, then the [ALJ]
generally will conclude that the claimant’s mental impairment is not
‘severe.’” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (quoting 20
C.F.R. § 404.1520a(d)(1)). If the claimant’s mental impairment is deemed
severe, the ALJ must determine whether the impairment meets or equals
the severity of a mental disorder listed in section 12.00 of the Listing of
Impairments in 20 C.F.R. part 404, subpart P, appendix 1. See 20 C.F.R.
§ 404.1520a(d)(2).
Here, the ALJ determined that Farrell suffered mild restrictions in
activities of daily living, mild difficulties in maintaining social functioning,
mild difficulties in maintaining concentration, persistence and pace, and no
episodes of decompensation. (See Tr. at 22.) The ALJ based his decision
on the results of mental status examinations, gaps in Farrell’s treatment
history, and the opinion of state agency review psychiatrist R. Weiss. (See
id. at 20-22.)
Farrell argues that the ALJ should have obtained the treatment
records referred to by physician Vinay Das in his review of her medical
18

conditions. (See Dkt. No. 14 at 18-19; Tr. at 455-62.) Dr. Das noted that
Farrell had been treated at St. Lawrence Psychiatric Center in the
Ogdensburg Mental Health Clinic beginning in October 1999 and was
diagnosed with depressive disorder, nonspecific type, and anxiety disorder.
(See Tr. at 455.) However, the administrative record only contains
treatment notes from this facility beginning in September 2007. (See id. at
356-69, 539-41.) Notably, while the ALJ has an affirmative obligation to
develop the administrative record, his duty to do so is not without limit.
See Guile v. Barnhart, No. 5:07-cv-259, 2010 WL 2516586, at *3 (N.D.N.Y.
June 14, 2010); see also 20 C.F.R. § 404.1512(d) (stating that generally, a
complete record contains a “medical history for at least the [twelve] months
preceding the month in which” the claimant files her application). In this
case, not only did the Social Security Administration, prior to the hearing,
request and secure medical reports from St. Lawrence Psychiatric Center,
and have Farrell examined by a consulting physician, but the ALJ granted
counsel’s request at the administrative hearing and held the record open
for two weeks for the submission of additional medical reports, including
mental health treatment notes. (See id. at 49-50, 356-69, 539-41, 299301.) Following the hearing, through a May 26, 2010 letter, the ALJ
19

notified Farrell that he had not yet received any such additional evidence
and the record would be held open for ten more days. (See id. at 212.)
On July 7, 2010, the ALJ rendered his decision, noting that all additional
records submitted by Farrell were included in the record and considered in
making his determination. (See id. at 17.) These additional records did
not include any mental health treatment notes. (See id. at 555-82.)
Based on the foregoing, this court is satisfied that the ALJ fulfilled his
duty to develop the record. See Jordan v. Commissioner of Social
Security, 142 F. App’x 542, 543 (2d Cir. 2005); Pagan v. Astrue, No.
11-CV-825, 2012 WL 2206886, at *8 (N.D.N.Y. June 14, 2012). Farrell
appears to be arguing that the ALJ should have sought medical records for
the eight years preceding her application. (See Dkt. No. 14 at 18.)
Besides the fact that the Regulations do not require such an extensive
history, see 20 C.F.R. § 404.1512(d), the record here was sufficiently
robust for the ALJ to make a disability determination without requesting
additional records. In particular, the record contains mental status
examinations conducted during the relevant period which revealed that
Farrell was alert, oriented, and appropriately dressed, with normal
psychomotor activity and good eye contact. (See Tr. at 357, 539.)
20

Further, her thoughts were coherent and well-organized, speech was
spontaneous, relevant, and goal directed, intelligence was average, and
insight, judgment, and impulse control were good. (See id.) In addition,
Farrell’s scores on intelligence testing were within the average range. (See
id. at 300-01.)
Next, Farrell contends that the ALJ erred in failing to adopt Dr. Weiss’
opinion that Farrell suffered moderate difficulties in her concentration,
persistence, and pace. (See Dkt. No. 14 at 19-20.) As the ALJ explained,
at a consultative examination conducted by licensed psychologist Richard
Williams in September 2007, Farrell’s mental control was good on days-ofthe-week-backwards and while subtracting serial threes. (See Tr. at 21,
300.) Further, her attention and concentration, immediate memory, and
delayed recall were good. (See id.) In addition, treating psychiatrist
Michael Camillo noted in August 2007 and December 2009 that Farrell’s
attention and concentration were good, and memory was intact. (See id. at
357-59, 539.) The court also notes that Farrell reported watching
television and playing computer games daily, and reading weekly. (See id.
at 174-75, 200-01.) Thus, substantial evidence supports the ALJ’s
determination that Farrell suffered only “mild difficulties in maintaining
21

concentration, persistence or pace.” (Id. at 22.)
E.

RFC Determination
Next, Farrell contends that the ALJ improperly determined her RFC.

(See Dkt. No. 14 at 21-23.) According to Farrell, because she suffers from
depression and COPD, the ALJ should have included nonexertional
limitations related to her mental health conditions, as well as environmental
restrictions, in his RFC determination. (See id. at 21-22.) In addition,
Farrell claims that the ALJ did not acknowledge the medical evidence
suggesting she suffers limitations in her ability to bend, lift more than ten
pounds, and sit more than twenty minutes. (See id. 22-23.) On the other
hand, the Commissioner argues that the ALJ properly assessed Farrell’s
RFC. (See Dkt. No. 17 at 18-20.) The court agrees with the
Commissioner.
A claimant’s RFC “is the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,
an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
With respect to mental health impairments, the ALJ must, among other
things, engage in a more detailed assessment of various functions
22

contained in the broad categories found in paragraphs B and C of the adult
mental disorders listings in section 12.00 of the Listing of Impairments.
See SSR 96-8p, 61 Fed. Reg. 34,474, 34,477 (July 2, 1996). An ALJ’s
RFC determination must be supported by substantial evidence in the
record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive
and must be affirmed upon judicial review. See id.; Perez v. Chater, 77
F.3d 41, 46 (2d Cir. 1996).
Here, the ALJ determined that Farrell retained the RFC to lift and/or
carry fifteen pounds occasionally and ten pounds frequently, and, in an
eight-hour day, sit for six hours and stand and/or walk for four to six hours,
as long as she has the ability to occasionally change positions. (See Tr. at
22.) According to the ALJ, Farrell could push and/or pull fifteen pounds
occasionally and ten pounds frequently, and did not suffer any postural,
manipulative, communicative, or environmental limitations. (See id.)
As discussed previously, substantial evidence supports the ALJ’s
decision that Farrell’s depression and anxiety are not severe impairments.
In the decision, the ALJ specifically stated that, in determining the RFC, he
considered the entire record and his assessment “reflect[ed] the degree of
limitation [he] found in the ‘paragraph B’ mental function analysis.” (Id. at
23

22.) The ALJ thoroughly discussed Farrell’s mental health impairments,
noting that she did not treat with Dr. Camillo between August 2008 and
December 2009, and, when she returned to his care, Dr. Camillo noted
that Farrell was doing well, was training to be a medical transcriptionist,
and did not want any medication. (See id. at 20-21, 539.) The ALJ also
considered the opinion of Dr. Weiss that Farrell could understand,
remember, and carry out simple instructions, make simple decisions, and
interact appropriately with co-workers and supervisors, as well as the
opinion of Dr. Williams that Farrell would be able to learn and perform
many types of jobs. (See id. at 21, 301, 386-89.) Furthermore, the ALJ
noted Farrell’s reported ability to interact with others, shop, cook, clean, do
laundry, and care for her personal hygiene. (See id. at 23, 171-74.) The
ALJ concluded that, although Farrell alleged limitations due to, among
other things, depression and back pain, he found her credible only “to the
extent she experiences some pain with prolonged standing and/or walking
and heavy lifting.” (Id. at 23.) Ultimately, the ALJ properly considered
Farrell's alleged mental health limitations and substantial evidence
supports his decision to omit such limitations from the RFC determination.
With respect to Farrell’s physical RFC, as previously discussed, the
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objective medical evidence, as well as the opinion of Dr. Das, supports the
ALJ’s conclusion that COPD did not limit Farrell’s ability to work. (See id.
at 24, 257, 268, 304-05, 456, 460, 466, 468-72, 474-81, 498, 516, 542,
551, 554, 575, 585, 588.) Turning to the ALJ’s failure to include postural
limitations in the RFC determination, although Dr. Benton opined that
Farrell could not bend from the lumbar spine, Dr. Zirn merely opined that
she could not repetitively bend. (See id. at 436, 444.) Further, on
examination by Dr. Sinha, Farrell’s gait and stance were normal, her squat
was full, she could walk on her heels and toes, rise from a chair without
difficulty, change for the exam, and get on and off the exam table without
help. (See id. at 303.) She had full range of motion of her cervical and
lumbar spine and straight leg raising was negative. (See id. at 304.)
Moreover, the inability to bend on a repetitive basis is not inconsistent with
the ALJ’s ultimate determination that Farrell could perform unskilled
sedentary to light work, with the need to occasionally alternate positions.
(See id. at 28); SSR 85-15, 1985 WL 56857 at *7 (1985) (explaining that,
“if a person can stoop occasionally (from very little up to one-third of the
time) in order to lift objects, the sedentary and light occupational base is
virtually intact”); SSR 96-9p, 61 Fed. Reg. 34,478, 34,481-82 (July 2, 1996)
25

(indicating that only an ability to stoop occasionally is required in most
unskilled sedentary positions, and other postural limitations would not
usually erode the occupational base of sedentary work). Ultimately, the
ALJ’s RFC determination is supported by the objective medical evidence
as well as the opinion evidence, including the opinion of Dr. Romanowska
that Farrell could perform sedentary work. (See id. at 427.)
F.

Other Work
Finally, Farrell argues that testimony from a vocational expert (VE)

was required to establish whether there are jobs that she can perform in
the national economy. (See Dkt. No. 14 at 23-24.) However, as the
Commissioner points out, because Farrell’s nonexertional limitations do not
significantly narrow the range of work which she is capable of performing,
the ALJ was entitled to rely on the Medical-Vocational Guidelines to
determine whether such other work exists. (See Dkt. No. 17 at 22-24.)
In making a step-five ruling, an ALJ may rely on the MedicalVocational Guidelines found in 20 C.F.R. pt. 404, subpt. P, App. 2, as long
as the claimant’s age, education, work experience, and RFC coincide with
the criteria of a rule contained in those Guidelines. See 20 C.F.R.
§ 404.1569; see also Calabrese v. Astrue, 358 F. App’x 274, 275 n.1 (2d
26

Cir. 2009). However, “if a claimant’s nonexertional impairments
‘significantly limit the range of work permitted by his exertional limitations’
then the grids obviously will not accurately determine disability status
because they fail to take into account claimant’s nonexertional
impairments.” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (quoting
Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)). In that case,
the ALJ should consult with a VE before making a determination as to
disability. See id. Notably, “the mere existence of a nonexertional
impairment does not automatically require the production of a [VE] nor
preclude reliance on the guidelines.” Id. at 603. Instead, exclusive
reliance on the grids will only be deemed inappropriate where the
nonexertional impairments “significantly limit the range of work permitted
by his exertional limitations.” Id. at 605 (emphasis added) (internal
quotation marks and citation omitted).
As discussed above, the ALJ’s determination with respect to Farrell’s
RFC and credibility is sound and supported by substantial evidence. Thus,
Farrell’s arguments with respect to limitations resulting from her mental
health impairments and recurrent renal lithiasis are without merit. (See
Dkt. No. 14 at 23-24.) Although the ALJ determined that Farrell would
27

need to alternate between sitting and standing occasionally, he further
determined that this limitation would no more than minimally limit her ability
to perform unskilled sedentary jobs. (See Tr. at 28.) As the opinions of
Drs. Benton, Peets, and Romanowska did not indicate that Farrell must
alternate between sitting and standing, the ALJ’s determination that this
nonexertional limitation did not significantly erode the occupational base of
sedentary to light work was supported by substantial evidence. (See id. at
427, 444, 544); Williams v. Comm’r of Soc. Sec., No. 7:07-CV-908, 2010
WL 2401280, at *8 (N.D.N.Y. June 10, 2010). Thus, consultation with a VE
was not required by the Regulations. See Bapp, 802 F.2d at 605-06.
G.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Farrell’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
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IT IS SO ORDERED.
August 16, 2013
Albany, New York

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