Myers v. Commissioner of Social Security

Filing 13

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Myers' complaint (Dkt. No. 1) is DISMISSED. That the Clerk Close this case. Signed by Senior Judge Gary L. Sharpe on 3/29/2017. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KYLE M. MYERS,
7:15-cv-1388
(GLS)

Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Conboy, McKay Law Firm
307 State Street
Carthage, NY 13619

LAWRENCE D. HASSELER,
ESQ.

FOR THE DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

ELIZABETH D. ROTHSTEIN
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Senior District Judge
1

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Kyle M. Myers challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI), seeking judicial
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering Myer’s arguments, the
Commissioner’s decision is affirmed.
II. Background
On January 24, 2012, Myers filed an application for SSI under the
Social Security Act (“the Act”), alleging an onset date of November 18,
2005. (Tr.1 at 73, 140-46.) After his applications were denied, (id. at 7479), Myers requested a hearing before an Administrative Law Judge (ALJ),
(id. at 80-82), which was held on June 26, 2013, (id. at 47-72). On August
19, 2013, the ALJ issued an unfavorable decision finding Myers not
disabled and denying the requested benefits, (id. at 32-46), which became
the Commissioner’s final determination upon the Appeals Council’s denial
of review, (id. at 1-4).

1

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

2

Myers commenced this action by filing his complaint on November
20, 2015 wherein he sought review of the Commissioner’s determination.
(See generally Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 8, 9.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 10, 11.)
III. Contentions
Myers contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 10 at 12-22.)
First, Myers asserts that the ALJ failed to consider whether his
impairments met or medically equaled the severity of a listed impairment.
(Id. at 12-13.) Next, Myers contends that the ALJ did not identify what
limitations rendered his plantar fasciitis and genetic skin disorders severe.
(Id. at 13.) Third, Myers argues that the ALJ did not adequately support
her residual functional capacity (RFC) determination. (Id. at 13, 17-20.)
Fourth, Myers maintains that the ALJ erred in evaluating medical opinion
evidence. (Id. at 14-17.) Finally, Myers argues that the ALJ erred in her
credibility assessment. (Id. at 20-22.) The Commissioner responds that

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the ALJ’s decision was supported by substantial evidence and that she
correctly assessed Myers’ credibility. (Dkt. No. 11 at 5-17.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
the ALJ. (Dkt. No. 10 at 1-11; Dkt. No. 11 at 2; Tr. at 37-42.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 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 *1-3 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Listed Impairments
Myers contends that the ALJ erred at step three of the sequential

analysis because she did not identify which of the listed impairments she

2

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims.

4

evaluated. (Dkt. No. 10 at 12.) Myers asserts that the ALJ failed to
consider whether his impairments could meet or medically equal any of the
following listings: skin disorders (section 8.00), congenital disorders that
affect multiple body symptoms (section 10.00), special senses and speech
(section 2.00), respiratory system (section 3.00), digestive systems
(section 5.00), and immune system disorders (section 14.00). (Id. at 12.)
The Commissioner, on the other hand, argues that substantial evidence
supports the ALJ’s findings that Myers’ impairments did not meet or
medically equal any of the listed impairments. (Dkt. No. 11 at 5-7.) In
addition, the Commissioner contends that Myers fails to name a specific
listed impairment, or evidence supporting it, within the broad categories of
identified listings. (Id. at 5.)
At step three of the disability evaluation, the ALJ is required to
determine whether the claimant’s impairment(s) meet or equal an
impairment listed in 20 C.F.R. pt. 404, subpt. P, app.1. See 20 C.F.R.
§ 416.920(d). To qualify, the claimant’s impairments must satisfy all of the
medical criteria of the particular listing. See id. § 416.925(c)(3). If the
claimant’s impairments meet a particular listing, such impairment is “severe

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enough to prevent a person from doing any gainful activity.” Id.
§ 416.925(a).
Here, the ALJ concluded that she “ha[d] considered all listed
impairments associated with the symptoms reported by [Myers, and] [t]he
criteria to satisfy them is not met or medically equalled.” (Tr. at 39.) In
making this finding, the ALJ did not explicitly reference any listing,
however, the ALJ’s discussion at steps two and four demonstrate that her
step three determination is supported by substantial evidence.3 See Berry
v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982) (holding that an ALJ’s step
three determination may be upheld despite “the absence of an express
rationale” where “other portions of the ALJ’s decision and . . . clearly
credible evidence [show] that h[er] determination was supported by
substantial evidence”).
At step two, the ALJ found that Myers’ congenital ichthyosis was a
severe impairment. (Tr. at 37.) Nevertheless, the ALJ determined that this
impairment did not qualify under the listings at step three. (Id. at 39.) To
meet the criteria of ichthyosis, a claimant must have “extensive skin lesions
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).

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that persist for at least [three] months despite continuing treatment as
prescribed.” 20 C.F.R. pt. 404, subpt. P, app.1 § 8.02. According to the
listings, extensive skin lesions must cause severe limitations to a
claimant’s gross and fine motor skills in both hands, the motion of at least
two extremities, or the ability to ambulate both feet. See id. § 8.00(C)(1).
Indeed, Myers was diagnosed with congenital ichthyosis by Daniel
Pisaniello, his treating physician, (Tr. at 327), and his skin condition is well
documented, (Id. at 327-29, 344, 371). However, this condition has not
caused severe limitations to his mobility. The ALJ noted that Dr. Pisaniello
reported in his medical source statement that Myers could continuously lift
and carry boxes up to ten pounds, walk for one hour without interruption,
continuously use both hands to finger and handle items, and frequently use
both feet. (Id. at 362-64.) Additionally, the ALJ relied on the medical
opinion of Robi Rosenfeld, the consultative examiner who evaluated
Myers. (Id. at 38-39.) Dr. Rosenfeld reported that Myers presented with
intact hand dexterity and grip strength of 5/5 bilaterally as well as normal
physical findings in his extremities. (Id. at 346-47.) Accordingly, Myers
does not meet the listing requirements for ichthyosis.

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Myers also contends that the ALJ erred by not finding his
impairments met listing 2.00 for special senses and speech. (Dkt. No. 10
at 12.) The record indicates, and the ALJ identified, that Myers has some
visual and hearing impairments. (Tr. at 37-38, 311-15, 316-17.) Regarding
his vision, Myers presented with 20/20 vision in both eyes, but was
prescribed ointment and artificial tears for his dry eyes. (Id. at 316-17.)
This impairment does not meet the criteria for any of the visual listings.
See 20 C.F.R. pt. 404, subpt. P, app.1 §§ 2.02-2.04. Similarly, Myers’
hearing loss does not satisfy the criteria of the listings. Although Myers
had documented hearing loss, he still presented with a normal hearing
range of 15 decibels bilaterally. (Tr. at 314.) Consequently, Myers does
not meet listing 2.10. See 20 C.F.R. pt. 404, subpt. P, app.1 § 2.10.
In addition, Myers asserts that the ALJ erred in finding that he did not
meet a respiratory listing. See id. § 3.00. The ALJ noted that Myers has
been diagnosed with asthma according to Dr. Pisaniello’s treatment notes
and Dr. Rosenfeld’s evaluation. (Tr. at 37, 40.) To meet the requisite
severity for the asthma listing, the claimant must, among other things, have
three hospitalizations within a twelve-month period. See 20 C.F.R. pt. 404,

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subpt. P, app.1 § 3.03(B). Here, the ALJ explicitly found that Myers had
not required hospitalization for his asthma. (Tr. at 38, 344.) Again, Myers
does not meet the listing criteria.
Myers also has documented hypertension for which he is prescribed
antihypertensive medication of lisinopril and hyrdochlorothiazide. (Id. at
325, 327, 330-31, 345, 347.) In finding that Myers’ hypertension was
medically managed, the ALJ relied on treatment records by Dr. Pisaniello
indicating that Myers’ headaches subsided after medication. (Id. at 39.)
To meet the listing for chronic pulmonary hypertension, a claimant must
have a mean pulmonary artery pressure equal or greater than 40 mm Hg.
See 20 C.F.R. pt. 404, subpt. P, app.1 § 3.09. Here, Myers did not present
medical records that tested his mean pulmonary artery pressure. See
Naegele v. Barnhart, 433 F. Supp. 2d 319, 324 (W.D.N.Y. 2006) (“It must
be remembered that [the claimant] has the burden of proof at step 3 that
[he] meets the [l]isting requirements.”). Therefore, Myers cannot meet the
listing for this respiratory impairment.
Myers also asserts that he meets the listing for digestive system
disorders. (Dkt. No. 10 at 12.) Myers had intestine surgeries at birth which

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required a gastric feeding tube and a lung biopsy. (Tr. at 344.) However,
Myers does not identify anything in the record which indicates that he
continues to suffer from the effects from these surgeries. (Id.) Myers
points out that he complained of severe diarrhea and was previously
treated at the Lewis County Hospital Emergency Room between January
2007 and November 2009. (Dkt. No. 10 at 6-7 (citing Tr. at 198, 215-38,
255-300, 337).) Without more, however, Myers does not meet the criteria
of any of the conditions listed under digestive system disorders. See 20
C.F.R. pt. 404, subpt. P, app.1 § 5.00; Naegele, 433 F. Supp. 2d at 324.
Next, Myers contends that he meets the listing for immune system
disorders. (Dkt. No. 10 at 12.) All immune system disorders require a
marked limitation in at least one of three areas: activities of daily living;
social functioning; or difficulties in completing tasks. See 20 C.F.R. pt.
404, subpt. P, app.1 § 14.00(I)(4). A claimant has a marked limitation
when “the signs and symptoms of [his] immune system disorder interfere
seriously with [his] ability to function.” Id. § 14.00(I)(5). When making her
RFC determination, the ALJ considered Myers’ hearing testimony. (Tr. at
40-41.) There, Myers testified that he goes camping with his friends,

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occasionally helps with chores including lawn care, snow removal, and
grocery shopping, and completed a one-year certificate program at a state
college. (Id. at 51-52, 56-57.) Myers’ engagement in these activities
demonstrate that he does not suffer from a marked limitation in any of the
listed areas. Consequently, he does not satisfy the listing requirements for
immune system disorder.
Finally, Myers argues that his impairments meet listing 10.00:
congenital disorders that affect multiple body symptoms. (Dkt. No. 10 at
12.) This listing evaluates whether a claimant has non-mosaic Down
syndrome. See 20 C.F.R. pt. 404, subpt. P, app.1 § 10.00. Nothing in the
record suggests that Myers has Down syndrome and the ALJ did not err by
failing to find Myers met this listing. See Naegele, 433 F. Supp. 2d at 324.
B.

Severity Limitation
Next, Myers argues that the ALJ failed to identify what limitations

render his congenital ichthyosis and bilateral plantar fasciitis severe. (Dkt.
No. 10 at 12-13.) The court disagrees.
An ALJ will find an impairment severe if it significantly limits the
claimant’s physical or mental ability to do basic work activities. See 20

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C.F.R. § 416.920(c). Basic work activities are “the abilities and aptitudes
necessary to do most jobs,” including: “[p]hysical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling” as well as “[u]nderstanding, carrying out, and remembering
simple instructions; [u]se of judgment; [r]esponding appropriately to
supervision, co-workers and usual work situations; and [d]ealing with
changes in a routine work setting.” Id. § 416.921(b). At step two of the
analysis, the ALJ screens out de minimis claims. See Dixon v. Shalala, 54
F.3d 1010, 1019 (2d Cir. 1995).
Here, as discussed above, the ALJ reviewed evidence supporting
Myers’ skin condition that he has had since birth. (Tr. at 37-38.) The
treatment notes of Dr. Pisaniello indicated that the condition resulted in
ulcers, thin skin, and pruritis to his lower legs. (Id. at 325, 327-29, 333.)
Dr. Pisaniello also observed that Myers had ichthyosis over his entire body.
(Id. at 327.) In determining Myers’ RFC, the ALJ noted that Myers testified
that his skin condition caused him to bruise easily and affected his skin
internally with a lack of moisture and externally with dry skin. (Id. at 41);
see Berry, 675 F.2d at 469 (noting a court may look to other portions of an

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ALJ’s decision to find that his determination was supported by substantial
evidence). Additionally, the ALJ noted that Myers had sought treatment at
the Mayo Clinic for his skin condition. (Tr. at 41.) Accordingly, “the
evidence of record permits [the court] to glean the rationale of [the] ALJ’s
decision” in finding Myers’ congenital ichthyosis to be severe. Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983). Moreover, at step two, there
is no basis for remand where the ALJ failed to explain how the severe
impairment limits a claimant’s ability to perform basic work activities. This
is particularly true in this case because the ALJ continued with the
sequential analysis and, therefore, any error is harmless. See generally
Tryon v. Astrue, No. 5:10-CV-537, 2012 WL 3988952, at *3 (N.D.N.Y. Feb.
7, 2012).
Similarly, the ALJ did not commit legal error in evaluating Myers’
bilateral plantar fasciitis. The court is able to glean from the record the
ALJ’s rationale for concluding that Myers’ bilateral plantar fasciitis is a
severe impairment. See Mongeur, 722 F.2d at 1040. The ALJ relied on
the treatment notes of Mark Schug, Myers’ treating podiatrist. (Tr. at 396400.) Dr. Schug noted that Myers presented with extreme tightness in his

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Achilles heels, had difficulty moving his ankle to ninety degrees, had
calluses over the soles of both feet, and a lesion on the sole of his left
arch. (Id. at 397.) Dr. Schug found Myers had severe discomfort along the
plantar fascia of both of his feet and prescribed stretching exercises and
insoles to alleviate the pain. (Id. at 397-98.) As with Myers’ congenital
ichthyosis, the court finds no basis for remand because the ALJ failed to
explain how Myers’ bilateral plantar fasciitis limits his ability to perform
basic work activities.
C.

Medical Evidence
Next, Myers asserts that the ALJ erred by substituting her opinion for

that of a medical examiner. (Dkt. No. 10 at 14-15.) Additionally, Myers
contends that the ALJ failed to give controlling weight to Dr. Pisaniello, his
treating physician. (Id. at 15-17.) The Commissioner counters that the
ALJ’s findings are supported by medical evidence and the ALJ properly
weighed Dr. Pisaniello’s opinion. (Dkt. No. 11 at 7-17.)
Medical opinions, regardless of the source, are evaluated by
considering several factors outlined in 20 C.F.R. § 416.927(c). Controlling
weight will be given to a treating physician’s opinion that is “well-supported

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by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” Id. § 416.927(c)(2);
see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Unless
controlling weight is given to a treating source’s opinion, the ALJ is
required to consider the following factors in determining the weight
assigned to a medical opinion: whether or not the source examined the
claimant; the existence, length and nature of a treatment relationship; the
frequency of examination; evidentiary support offered; consistency with the
record as a whole; and specialization of the examiner. See 20 C.F.R.
§ 416.927(c). 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), and cannot “arbitrarily substitute his own
judgment for competent medical opinion,” Balsamo v. Chater, 142 F.3d 75,
81 (2d Cir. 1998) (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

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unpersuasive or insufficient to lead him to a conclusion of disability.’”
Petrie, 412 F. App’x at 407 (citation omitted).
First, Myers contends that the ALJ improperly attributed his fatigue to
a lack of conditioning without a citation to supporting medical evidence.
(Dkt. No. 10 at 14; Tr. at 41.) However, the record supports the ALJ’s
assessment. In 2007, Myers underwent diagnostic DNA testing where
doctors could not ascribe his fatigue to a heart or muscle problem and
instead opined that “[d]e-conditioning could be involved.” (Tr. at 370.)
Consistent with this assessment, Myers indicated in his function report that
he experienced fatigue immediately following physical activity such as
climbing one flight of stairs. (Id. at 185-86.) Accordingly, substantial
evidence supports the ALJ’s assessment, and she did not substitute her
own judgment for that of a medical professional. Cf. Balsamo, 142 F.3d at
81.
Additionally, the ALJ properly weighed the medical opinion evidence.
The ALJ afforded little weight to Dr. Pisaniello’s opinion, Myers’ treating
physician, who opined that Myers could not perform any full time work or
engage in any strenuous work. (Tr. at 41, 367.) Dr. Pisaniello’s restrictive

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opinion, however, is inconsistent with his own treatment notes, Myers’
reported activities of daily living, and Dr. Rosenfeld’s report.
In his treatment notes, Dr. Pisaniello found that Myers’ hypertension
and pulmonary functioning improved when he took his blood pressure
medication and used a bronchodilator. (Id. at 324, 325, 327, 329-30, 337,
392, 394.) Furthermore, at a visit on March 31, 2011, Myers denied that
he experienced symptoms related to his hypertension including chest pain
or shortness of breath, and during several visits, Dr. Pisaniello observed
that he was not in acute respiratory distress. (Id. at 324, 332, 337, 339,
394.) Myers also reported to Dr. Pisaniello that he enrolled in a one-year
college program in which he attended classes four days a week. (Id. at
325.) While he was in high school, Myers notified Dr. Pisaniello that he
played basketball during his free periods which were up to three times per
day. (Id. at 329.) Although Myers’ mother stopped him from playing
basketball when his skin ulcers opened, he continued to participate in gym
class. (Id.)
Dr. Pisanello’s restrictive opinion is also inconsistent with Myers’ own
functional report. Although Myers reported that he experiences fatigue

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when he stands for extended periods, he is nonetheless able to perform
light housework such as laundry, feeding his cats, and some cleaning.
(Id. at 182, 184.) Myers also reported that he completed errands including
shopping for food, clothing, and car parts between one and two times per
week. (Id. at 183.) Additionally, in his disability report, Myers stated that
he stopped working at a business that he started, not because he was
disabled, but because he did not generate enough sales. (Id. at 169.)
Finally, Dr. Pisanello’s opinion is inconsistent with Dr. Rosenfeld’s
findings from a May 2012 medical examination of Myers. (Id. at 344-47.)
Dr. Rosenfeld opined that Myers had a moderate limitation for heavy lifting
because of his low back pain and should avoid respirator irritants because
of his asthma. (Id. at 347.) He noted that Myers complained of fatigue and
attributed it to muscle aches. (Id. at 344.) However, Dr. Rosenfeld found
that Myers had full range of motion in his shoulders, elbows, and wrists as
well as his hips, knees, and ankles. (Id. at 346.) In addition, he noted that
Myers’ joints were stable and not tender, and there was no indication of
muscle atrophy. (Id. at 346-47.) Furthermore, Dr. Rosenfeld observed that
Myers had normal gait, could walk on his heels and toes without difficulty,

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and required no assistance getting on or off the examination table. (Id. at
345.) Consistent with Myers’ own functional report, Dr. Rosenfeld noted
that Myers cooks several times per week, occasionally completes chores
such as cleaning, laundry, and shopping, and socializes with his friends.
(Id.)
Accordingly, the ALJ correctly applied the treating physician rule
because Dr. Pisanello’s restrictive opinion was inconsistent with other
substantial evidence. Cf. 20 C.F.R. § 416.927(c)(2); Halloran, 362 F.3d at
32. Moreover, the ALJ explicitly stated that the she assigned little weight
to his opinion because it “is not supported by the medical evidence of
record in which there is no listing of impairments that could cause the
profound limitations stated.” (Tr. at 41.) She, instead, attributed greater
weight to Dr. Rosenfeld’s opinion in part because of his expertise in Social
Security disability evaluations and his examination of Myers. See 20
C.F.R. § 416.927(c)(1), (e)(2)(i). Therefore, there is no reversible legal or
evidentiary error in the ALJ’s decision to afford little weight to Myers’
treating physician.
D.

RFC Determination

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Next, Myers contends that the ALJ erred in evaluating his RFC
because she did not perform a function-by-function assessment of his
abilities. (Dkt. No. 10 at 17-20.) The Commissioner counters that the
ALJ’s RFC determination is supported by substantial evidence and she set
forth the rationale for her determination. (Dkt. No. 11 at 12-13.)
A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 416.945(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. § 416.945(a)(3).
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 found that Myers could perform the full range of
sedentary work with respiratory limitations to account for his asthma. (Tr.
at 41.) Although the ALJ did not provide a function-by-function analysis of
Myers’ physical capabilities, she examined relevant factors as discussed
above, see supra Part VI.C, and her decision is supported by substantial

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evidence. While the ALJ could have provided further clarification with
respect to Myers’ capabilities, this shortcoming does not amount to legal
error. See Cichocki v. Astrue, 729 F.3d 172, 177-78 (2d Cir. 2013) (finding
failure to conduct a function-by-function analysis is not legal error where
the court can still engage in meaningful judicial review of the ALJ’s
determination).
E.

Credibility
Finally, Myers disputes the ALJ’s assessment of his credibility

because he contends that the ALJ failed to support her findings and apply
the requisite factors. (Dkt. No. 10 at 20-22.) The Commissioner opposes
and argues that the ALJ applied the correct legal standard to evaluate
Myers’ credibility. (Dkt. No. 11 at 13-13-17.) Again, the court agrees with
the Commissioner.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” she “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

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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
quotations 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, 1996 WL
374186, at *4 (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.
1:10CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20
C.F.R. §§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)-(vi)).
Here, the ALJ found that Myers suffered from medically determinable
impairments, but concluded his statements about the limitations arising
from such impairments were not credible. (Tr. at 41.) In making this
assessment, the ALJ determined that Myers’ allegations of pain were not
supported by the medical evidence. (Id.) Specifically, she found that his

22

activities of daily living suggest a greater functional capacity as he testified
that he goes camping every weekend with friends and rides all-terrain
vehicles. (Id.) Furthermore, the ALJ found that, despite his complaints,
Myers never received treatment for back pain and his plantar fasciitis is
managed with orthotics and exercise. (Id.) In addition, the ALJ noted that
Myers testified that he may be able to work at a desk job for no more than
ninety minutes per day, however, he had previously attended day-long
college classes with breaks in between. (Id.) The ALJ also considered
that Myers was able to occasionally help with outdoor chores such as lawn
care and snow removal for up to thirty minutes and play basketball for brief
amounts of time. (Id.)
Although the ALJ did not engage in an analysis of each factor
articulated in 20 C.F.R. § 416.929(c) to assess Myers’ credibility, “[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 [s]he considered the entire evidentiary
record.” Judelsohn v. Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6
(W.D.N.Y. June 25, 2012) (internal quotation marks and citation omitted).

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Here, the ALJ acknowledged the two-step process to assess Myers’
credibility, and it is evident from her thorough discussion that the
determination was legally sound. Moreover, as discussed above, see
supra Part VI.C, the ALJ’s determination that Myers’ subjective complaints
are not credible is supported by substantial evidence.
F.

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.
V.Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Myers’ 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.
IT IS SO ORDERED.
March 29, 2017
Albany, New York

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