Bush v. Colvin

Filing 17

DECISION AND ORDER denying # 10 Plaintiff's motion for judgment on the pleadings; and granting # 15 Defendant's motion for judgment on the pleadings. Defendant's decision denying Plaintiff disability benefits is affirmed. Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 10/13/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
STEVEN BUSH JR.,
Plaintiff,
v.

7:16-CV-1007
(GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

LEGAL AID SOCIETY OF NORTHEAST NY
Counsel for Plaintiff
55 Colvin Avenue
Albany, NY 12206

VICTORIA M. ESPOSITO, 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

SUSAN J. REISS, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Steven Bush Jr.
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the
pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 10, 15.) For the
reasons set forth below, Plaintiff’s motion for judgment on the pleadings is denied, and
Defendant’s motion for judgment on the pleadings is granted. The Commissioner’s decision
denying Plaintiff’s disability benefits is affirmed, and Plaintiff’s Complaint is dismissed.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born in 1982, making him 26 years old at the alleged onset date, 30 years
old at the application filing date, and 32 years old at the date of the ALJ’s decision. Plaintiff
reported obtaining his GED. The ALJ found he does not have past relevant work. Generally,
Plaintiff alleges disability due to acid reflux, bipolar disorder, depression, back problems, and
anger issues.
B.

Procedural History

Plaintiff applied for Disability Insurance Benefits on January 29, 2013, and Supplemental
Security Income on January 30, 2013, alleging disability beginning October 15, 2008. Plaintiff’s
applications were initially denied on June 12, 2013, after which he timely requested a hearing
before an Administrative Law Judge (“ALJ”). Plaintiff appeared at a video hearing before ALJ
John P. Ramos on November 20, 2014. On December 3, 2014, the ALJ issued a written decision
finding Plaintiff was not disabled under the Social Security Act. (T. 30-43.) 1 On June 16, 2016,
the Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner. (T. 1-3.)
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following seven findings of fact and
conclusions of law. (T. 32-43.) First, the ALJ found Plaintiff was insured for disability benefits
under Title II until December 31, 2010. (T. 32.) Second, the ALJ found that Plaintiff has not

1

The Administrative Transcript is found at Dkt. No. 9. 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.
2

engaged in substantial gainful activity since the alleged onset date. (Id.) Third, the ALJ found
that Plaintiff’s bipolar disorder and history of seizure disorder are severe impairments, while his
cervical and lumbar spine impairment, acid reflux, migraines, knee impairment, intellectual
functioning, and drug and alcohol abuse are not severe impairments. (T. 33-34.) Fourth, the
ALJ found that Plaintiff’s severe impairments do not meet or medically equal one of the listed
impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (T. 35-36.) Specifically, the
ALJ considered Listings 11.02 (convulsive epilepsy), 11.03 (non-convulsive epilepsy), and 12.04
(affective disorders). (Id.) Fifth, the ALJ found that Plaintiff has the residual functional capacity
(“RFC”) to perform
a full range of work at all exertional levels, but should avoid working
at unprotected heights; climbing ladders, ropes, or scaffolds; and
working in close proximity to dangerous machinery or moving
mechanical parts of equipment. He retains the ability to understand
and follow simple instructions and directions; perform simple tasks
and occasionally more complex tasks with intermittent supervision
and independently; maintain attention/concentration for simple
tasks; regularly attend to a routine and maintain a schedule; relate to
and interact with other coworkers to the extent necessary to carry
out simple tasks; complete simple tasks without need for frequent
supervision; handle reasonable levels of simple work-related stress
in that he can make decisions directly related to the completion of
simple and occasionally more complex tasks and handle usual work
place occurrences and interactions associated with unskilled and
semiskilled work.
(T. 37.) Sixth, the ALJ found that Plaintiff does not have past relevant work. (T. 42.) Seventh,
and finally, the ALJ found that Plaintiff remains able to perform a significant number of other
jobs in the national economy pursuant to the Medical-Vocational Guidelines because his nonexertional limitations would not significantly erode the occupational base for unskilled work at
all exertional levels. (T. 42-43.) The ALJ therefore concluded that Plaintiff is not disabled.

3

D.

The Parties’ Briefings on Their Cross-Motions

Generally, Plaintiff makes five arguments in support of his motion for judgment on the
pleadings. First, Plaintiff argues that the RFC finding is not supported by substantial evidence.
(Dkt. No. 10, at 19-21 [Pl. Mem. of Law].) More specifically, Plaintiff argues that the ALJ erred
in relying on two opinions that pre-dated a worsening in Plaintiff’s physical and mental
conditions. (Dkt. No. 10, at 19-20 [Pl. Mem. of Law].) Plaintiff argues that these stale opinions
are inconsistent with the other opinion evidence in the record. (Dkt. No. 10, at 19-21 [Pl. Mem.
of Law].) Plaintiff argues that, in terms of the conflicting opinions, the ALJ either improperly
rejected or failed to reconcile affording significant weight to them while declining to adopt the
extent of the opined limitations. (Dkt. No. 10, at 20-21 [Pl. Mem. of Law].)
Second, Plaintiff argues that the ALJ should have afforded controlling weight to the
opinion from treating psychiatrist Nedim Hukovic, Ph.D., which would result in a finding of
disability pursuant to Listing 12.04. (Dkt. No. 10, at 21-22 [Pl. Mem. of Law].)
Third, Plaintiff argues that the ALJ erred in failing to obtain testimony from a vocational
expert at Step Five. (Dkt. No. 10, at 22-23 [Pl. Mem. of Law].) More specifically, Plaintiff
argues that the inclusion in the RFC of non-exertional limitations for avoiding heights, climbing,
and working around machinery or moving parts, as well as the mental restrictions, triggered the
ALJ’s duty to consult a vocational expert rather than rely on the Medical-Vocational Guidelines.
(Dkt. No. 10, at 23 [Pl. Mem. of Law].)
Fourth, Plaintiff argues that the credibility finding is not supported by substantial
evidence because the ALJ misinterpreted Plaintiff’s reported daily activities and erred in using
them as evidence that Plaintiff was not as limited as alleged. (Dkt. No. 10, at 23-24 [Pl. Mem. of
Law].)
4

Fifth, and last, Plaintiff argues that the ALJ erred in failing to find his back impairment to
be a severe impairment, or, alternatively, that the ALJ erred in failing to consider the effects of
this impairment on Plaintiff’s functioning whether or not it was severe. (Dkt. No. 10, at 25 [Pl.
Mem. of Law].)
Generally, Defendant makes four arguments in support of her motion for judgment on the
pleadings. First, in response to Plaintiff’s first and fourth arguments, Defendant argues that the
RFC finding was supported by substantial evidence. (Dkt. No. 15, at 5-17 [Def. Mem. of Law].)
More specifically, Defendant argues that, when assessing Plaintiff’s physical functioning, the
ALJ properly relied on the opinions from treating physician John Carthy, M.D., and physician
assistant (“PA”) Ashley Ryan, asserting that more recent treatment evidence would not have
altered these sources’ opinions. (Dkt. No. 15, at 5-9 [Def. Mem. of Law].) Defendant further
argues that the ALJ properly relied on Plaintiff’s daily activities that were inconsistent with his
allegations, and properly explained why he chose not to adopt all of the limitations opined by the
physical consultative examiner. (Dkt. No. 15, at 10-12 [Def. Mem. of Law].) In terms of the
mental RFC, Defendant argues that the ALJ properly relied on the opinions from Dr. Carthy and
PA Ryan because more recent evidence does not show that consideration of such evidence would
have altered their opinions. (Dkt. No. 15, at 12-14 [Def. Mem. of Law].) Defendant further
argues that the ALJ properly accounted for the limitations in the opinion from the mental
consultative examiner and further properly cited Plaintiff’s reported daily activities and the
opinion of the non-examining State Agency psychologist as support for his findings. (Dkt. No.
15, at 14-17 [Def. Mem. of Law].)
Second, in response to Plaintiff’s second argument, Defendant argues that the ALJ
properly afforded less weight to the opinion from Dr. Hukovic because it was contradicted by the
5

other evidence in the record. (Dkt. No. 15, at 17-18 [Def. Mem. of Law].) Defendant further
argues that the ALJ was not required to afford special deference to Dr. Hukovic’s opinion that
Plaintiff met Listing 12.04, and that this opinion was nonetheless not supported by the evidence.
(Dkt. No. 15, at 18-19 [Def. Mem. of Law].)
Third, in response to Plaintiff’s third argument, Defendant argues that the ALJ properly
relied on the Medical-Vocational Guidelines at Step Five because there was no evidence that the
non-exertional limitations would impose a significant effect on Plaintiff’s ability to perform the
occupational base of unskilled work at all exertional levels. (Dkt. No. 15, at 20-21 [Def. Mem.
of Law].)
Fourth, in response to Plaintiff’s fifth argument, Defendant argues that the ALJ’s finding
that Plaintiff’s back impairment was non-severe is supported by substantial evidence. (Dkt. No.
15, at 9-10 [Def. Mem. of Law].)
II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an
individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d
856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the
correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615
6

F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a
mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:

7

First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of the proof as
to the first four steps, while the [Commissioner] must prove the final
one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
A.

Whether the ALJ’s Findings Related to Plaintiff’s Back Impairment Are
Supported By Substantial Evidence

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 9-11 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
At Step Two of the sequential evaluation process, the ALJ must determine whether the
claimant has a severe impairment that significantly limits his physical or mental abilities to do
basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities include
8

walking, standing, sitting, lifting, carrying, pushing, pulling, reaching, handling, seeing, hearing,
speaking, understanding, remembering and carrying out simple instructions, using judgment, and
responding appropriately to supervision, co-workers and usual work situations. Taylor v. Astrue,
32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (citing Gibbs v. Astrue, No. 07-CV-10563, 2008 WL
2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. § 404.1521(b)(1)-(5)). “Although the
Second Circuit has held that this step is limited to ‘screening out de minimis claims’ [], 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, by itself, sufficient to render a condition severe.” Taylor, 32
F. Supp. 3d at 265 (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995); Colvin v.
Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)). Overall, the claimant retains the burden of
presenting evidence to establish severity. Taylor, 32 F. Supp. 3d at 265 (citing Miller v. Comm’r
of Soc. Sec., No. 7:05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July 16, 2008)).
This Court has also indicated that the failure to find a specific impairment severe at Step
Two is harmless where the ALJ concludes there is at least one other severe impairment, the ALJ
continues with the sequential evaluation, and the ALJ provides explanation showing he
adequately considered the evidence related to the impairment that is ultimately found non-severe.
Fuimo v. Colvin, 948 F. Supp. 2d 260, 269-70 (N.D.N.Y. 2013) (citing Dillingham v. Astrue, No.
09-CV-0236, 2010 WL 3909630 (N.D.N.Y. Aug. 24, 2010), report and recommendation adopted
by 2010 WL 3893906 (N.D.N.Y. Sept. 30, 2010)); see also Reices-Colon v. Astrue, 523 F. App’x
796, 798 (2d Cir. 2013) (finding that any error in failing to find plaintiff’s anxiety and panic
disorder severe at Step Two would be harmless because the ALJ found other severe impairments
present, continued through the sequential evaluation process, and specifically considered
plaintiff’s anxiety and panic attacks at those subsequent steps).
9

Plaintiff argues that, in finding his back impairment non-severe and failing to consider
this impairment when assessing his functional limitations, the ALJ ignored imaging of Plaintiff’s
cervical spine and the opinion from consultative examiner Justine Magurno, M.D. (Dkt. No. 10,
at 25 [Pl. Mem. of Law].) However, as Defendant notes in her memorandum, the medical and
other evidence supports the ALJ’s findings. (Dkt. No. 15, at 9-11 [Def. Mem. of Law].)
Plaintiff’s argument that the ALJ ignored spinal imaging studies is clearly contradicted
by the decision. When explaining why he found Plaintiff’s cervical and lumbar spine
impairments to be non-severe, the ALJ cited to a December 2012 lumbar spine x-ray that showed
no acute disease, a December 2013 CT scan of the lumbar spine that showed a chronic L5
endplate deficit but no acute disease, and imaging of Plaintiff’s cervical spine from December
2013 that showed only mild degenerative changes, mild disc bulging and protrusion, and mild
central canal stenosis. (T. 33.) Although the ALJ did not explicitly discuss an additional
imaging study of the thoracic spine from December 17, 2013, that study showed only mild
degenerative changes similar to the other studies. (T. 599.) It is therefore clear that, contrary to
Plaintiff’s argument, the ALJ properly considered the objective imaging of Plaintiff’s spine when
making his determination.
The ALJ also indicated other medical evidence that supported his finding, such as noting
that examinations revealed minimal positive clinical findings with no evidence of positive
neurological findings, decreased range of motion, or weakness. (T. 33.) This assertion, while
general, is supported by the record. It appears that Plaintiff had not sought treatment for back
pain until January 2013, when he reported low back pain, spasms, and a transient numbness in
his body after shoveling snow. (T. 351.) He was noted to be in no acute distress and the
physical examination did not reveal musculoskeletal abnormalities. (Id.) At a mental health
10

appointment on February 4, 2013, he was noted to guard his back when sitting down and to
change positions slowly. (T. 342.) On February 27, 2013, he was observed to have tenderness
over the left paraspinal area and left lumbosacral joint, and he was instructed to continue Mobic
for pain relief. (T. 350.) He did not seek any treatment for physical issues again until December
17, 2013, when he reported suffering a fall and temporary paralysis after a seizure episode. (T.
590.) He was observed to have minimally decreased strength in the lower extremities, subjective
sensory loss, and tenderness in the cervical and lumbar spine but there was no evidence of a
cervical spinal injury and he was noted to ambulate without assistance. (T. 591, 594, 597.) He
reported low back pain at a mental health examination on September 10, 2014, but indicated he
had not yet scheduled an appointment for physical therapy. (T. 622.) Based on the lack of
treatment and the fact that there are minimal objective findings that would suggest a significant
impairment in Plaintiff’s functioning, the ALJ’s conclusion that the medical evidence did not
show a severe spinal impairment is supported by substantial evidence.
Additionally, as the ALJ noted throughout the decision, the record contains numerous
references to Plaintiff’s activities that are inconsistent of his allegations of a severe spinal
impairment. (T. 37-39.) Among the activities the ALJ highlighted were repairing cars in 2009,
doing manual labor at his home, carrying wood, working as a landscaper, hauling trash, raking
the lawn, and using a sledgehammer to change a tire on his vehicle in 2010, working on a car and
using a hammer in 2011, doing various jobs such as landscaping in 2012, shoveling snow,
driving, bicycling, camping and fishing in 2013, and working on his driveway and around his
house and garage, riding an all-terrain vehicle, rescuing two dogs and winterizing his home, and
using a push mower in 2014. (Id.) Substantial evidence therefore supports the ALJ’s assertion

11

that Plaintiff’s activities throughout the period showed his spinal impairment did not impose
significant work-related limitations.
Plaintiff’s argument that the ALJ ignored Dr. Magurno’s opinion is also contradicted by
the decision. The ALJ discussed Dr. Magurno’s examination findings and opinion, but afforded
her opinion minimal weight, finding it appeared to be based in part on Plaintiff’s subjective
allegations of chronic pain and was inconsistent with the other opinions in the record and
Plaintiff’s documented activities. (T. 39.) The ALJ also noted that Plaintiff’s presentation at the
examination with Dr. Magurno was inconsistent with his presentation to treatment providers,
which had typically shown less significant symptoms. (Id.) Therefore, contrary to Plaintiff’s
argument, the ALJ did not ignore Dr. Magurno’s opinion, but rather explicitly indicated that it
was not entitled to any significant weight for multiple enumerated reasons. Because the ALJ
properly explained his rationale for declining to rely on Dr. Magurno’s opinion, it does not serve
as evidence to undermine the ALJ’s finding that Plaintiff’s back impairment was not severe.
Based on the above, substantial evidence supports the ALJ’s finding that Plaintiff’s back
impairment was not a severe impairment. Additionally, even if that finding was in error, it
would be harmless because the decision makes clear that the ALJ continued through the
sequential evaluation and appropriately considered the evidence related to Plaintiff’s back
impairment throughout that evaluation. Fuimo, 948 F. Supp. 2d at 269-70. Remand is not
merited on this basis.

12

B.

Whether the Weight Afforded to the Opinion Evidence is Supported By
Substantial Evidence and Consistent with Applicable Legal Standards

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 5-19 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
The Second Circuit has long recognized the ‘treating physician rule’ set out in 20 C.F.R.
§§ 404.1527(c) and 416.927(c). “‘[T]he opinion of a claimant’s treating physician as to the
nature and severity of the impairment is given ‘controlling weight’ so long as it is ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record.’” Greek v. Colvin, 802 F.3d
370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).
However, there are situations where the treating physician’s opinion is not entitled to controlling
weight, in which case the ALJ must “explicitly consider, inter alia: (1) the frequency, length,
nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3)
the consistency of the opinion with the remaining medical evidence; and (4) whether the
physician is a specialist.’” Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418
(2d Cir. 2013)). However, “[w]here an ALJ’s reasoning and adherence to the Regulations is
clear, she is not required to explicitly go through each and every factor of the Regulation.”
Blinkovitch v. Comm’r of Soc. Sec., No. 3:15-CV-1196, 2017 WL 782979, at *4 (N.D.N.Y. Jan.
23, 2017), report and recommendation adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017)
(citing Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013)). After considering these factors,
“the ALJ must ‘comprehensively set forth [his] reasons for the weight assigned to a treating
physician’s opinion.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129). “The failure
13

to provide ‘good reasons for not crediting the opinion of a claimant’s treating physician is a
ground for remand.’” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-30). The
factors for considering opinions from non-treating medical sources are the same as those for
assessing treating sources, with the consideration of whether the source examined the claimant
replacing the consideration of the treatment relationship between the source and the claimant.
See 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
Plaintiff argues broadly that the RFC finding is not supported by substantial evidence
based on the ALJ’s erroneous reliance on opinions from treating physician Dr. Carthy and PA
Ryan, and his erroneous rejection of other contrary opinions, particularly that from treating
psychiatrist Dr. Hukovic. (Dkt. No. 10, at 19-22 [Pl. Mem. of Law].)
Dr. Carthy provided multiple opinions between April 2009 and March 2011, all of which
indicated there was no evidence of limitations in Plaintiff’s ability to walk, stand, sit, see, hear,
speak, and climb. (T. 368, 375, 400, 406, 413.) In the opinion from December 15, 2009, Dr.
Carthy additionally opined that Plaintiff was very limited (defined as able to perform for one to
two hours per day) in his ability to lift, carry, push, pull, bend, and use his hands as a result of a
contemporaneous and temporary shoulder sprain. (T. 399-400.) The ALJ afforded great weight
to these physical functional opinions, noting Dr. Carthy’s treating relationship and finding they
were consistent with the evidence in the record. (T. 38.) Some of these opinions also noted that
there was no evidence of limitations in Plaintiff’s ability to perform mental demands such as
remembering, understanding and carrying out instructions, making simple decisions, interacting
appropriately, maintaining socially appropriate behavior, maintaining basic standards of hygiene
and grooming, and functioning in a work setting at a consistent pace. (T. 268, 375, 400.) The

14

ALJ afforded significant weight to these mental opinions, noting Dr. Carthy’s treating
relationship and finding they were consistent with the evidence in the record. (T. 40.)
On June 22, 2010, PA Ryan opined that there was no evidence of limitations in any
physical or mental abilities. (T. 387.) The ALJ afforded her physical opinion great weight and
her mental opinion significant weight because they were consistent with the evidence of record
and Dr. Carthy’s opinion. (T. 38, 40.)
In terms of Plaintiff’s physical functioning, Plaintiff argues that the ALJ erred in relying
on the “stale” opinions from Dr. Carthy and PA Ryan over Dr. Magurno’s opinion because more
recent treatment evidence showed increased seizure activity and a back injury that those remote
sources had not considered. (Dkt. No. 10, at 19-20 [Pl. Mem. of Law].) However, as already
discussed in relation to the severity of Plaintiff’s back impairment, the ALJ provided sufficient
reasons supported by substantial evidence for affording minimal weight to Dr. Magurno’s
opinion. See Dailey v. Comm’r of Soc. Sec., No. 5:14-CV-1518, 2016 WL 922261, at *5
(N.D.N.Y. Feb. 18, 2016) (noting that “[a]n ALJ may provide less weight to a treating source’s
opinion if that opinion is based on plaintiff’s subjective complaints and not on objective medical
evidence”) (citations omitted); see also Saxon v. Astrue, 781 F. Supp. 2d 92, 102 (N.D.N.Y.
2011) (“The less consistent an opinion is with the record as a whole, the less weight it is to be
given.”) (citing Stevens v. Barnhart, 473 F. Supp. 2d 357, 362 (N.D.N.Y. 2007)). Additionally,
as Defendant notes, there is nothing in the physical treatment evidence from after early 2011 that
would render the conclusions of Dr. Carthy and PA Ryan invalid or stale. Based on the evidence
previously discussed in section III.A. and the other treatment evidence showing only sporadic

15

complaints of knee and shoulder pain, the ALJ’s decision to rely on the opinions of Dr. Carthy
and PA Ryan related to Plaintiff’s physical functioning is supported by substantial evidence. 2
In terms of Plaintiff’s mental functioning, the ALJ not only relied on the opinions from
Dr. Carthy and PA Ryan as noted above, but also afforded significant weight to the opinions
from consultative examiner Dennis Noia, Ph.D., and State Agency psychological consultant H.
Ferrin. (T. 40-41.) On June 6, 2013, after conducting an examination that showed good
grooming and hygiene, normal posture, lethargic motor behavior, appropriate eye contact, fluent
but monotonous speech, adequate language, flat affect, neutral mood, intact attention and
concentration, mild-to-moderately impaired memory, and estimated borderline intellectual
functioning, Dr. Noia opined that Plaintiff had no limitations in understanding and following
simple instructions and directions, performing simple tasks, and performing some complex tasks;
mild limitations maintaining attention and concentration for tasks, attending a routine,
maintaining a schedule, learning new tasks, and making appropriate decisions; moderate-to-

2

There is also a May 7, 2010, opinion from Alecia Van Wagner, D.O., though there is no
indication that the ALJ discussed or weighed this opinion in the decision. (T. 388-89.) Dr. Van
Wagner opined that there was no evidence of limitations in any physical or mental ability other
than a limitation to climbing for one to two hours per day and no driving or operating equipment.
(T. 389.) In the RFC, the ALJ found that Plaintiff should avoid climbing ladders, ropes and
scaffolds and working in proximity to dangerous machinery or moving mechanical parts of
equipment. (T. 37.) Consequently, although the ALJ did not explicitly consider this opinion, he
did reasonably account for the limitations it opines in the RFC, a fact which renders any error in
failing to explicitly discuss it harmless. See Blabac v. Comm’r of Soc. Sec., No. 3:08-CV-0849,
2009 WL 5167650, at *9 (N.D.N.Y. Dec. 18, 2009) (collecting cases which indicate harmless
error where the opinions that the ALJ failed to weigh either did not conflict with the ALJ’s
findings or written consideration of the opinions would not have changed the outcome of the
ALJ’s decision); Ryan v. Astrue, 650 F. Supp. 2d 207, 217 (N.D.N.Y. 2009) (finding harmless
error where the ALJ improperly discounted the treating physician’s opinion, but still included the
opined limitations from that opinion in the RFC, so remand would serve no purpose).
.

16

marked limitations in dealing with stress; and was able to relate to and interact moderately well
with others. (T. 472.)
On June 11, 2013, Dr. Ferrin found moderate limitations in Plaintiff’s abilities to
understand, remember and carry out detailed instructions, perform activities within a schedule,
maintain regular attendance and be punctual within customary tolerances, complete a normal
workday or workweek without interruptions from psychologically based symptoms and perform
at a consistent pace without an unreasonable number and length of rest periods, interact
appropriately with the general public, and respond appropriately to changes in the work setting.
(T. 123-24.) Dr. Ferrin opined that, overall, Plaintiff was able to understand and remember
instructions, sustain attention and concentration for tasks, engage in routine interactions with coworkers and supervisors, and cope with basic changes and make routine decisions. (T. 125.)
Plaintiff argues that the ALJ erred in failing to reconcile affording significant weight to
Dr. Noia’s opinion with declining to incorporate all of his opined limitations into the RFC. (Dkt.
No. 10, at 21 [Pl. Mem. of Law].) However, Plaintiff’s argument on this issue is unavailing for
multiple reasons. First, the ALJ is not required to adopt the totality of any opinion, but rather
must make a finding based on the evidence in the record as a whole. See Kitka v. Comm’r of
Soc. Sec., No. 5:15-CV-0060, 2016 WL 825259, at *9 (N.D.N.Y. Feb. 9, 2016) (“There is no
requirement that the ALJ accept every limitation in the opinion of a consultative examiner.”)
(citing Pellam v. Astrue, 508 F. App’x 87, 89 (2d Cir. 2013)). Second, Plaintiff fails to elucidate
how the RFC fails to account for Dr. Noia’s opinion. The only limitation that Dr. Noia rated as
more than mild was the moderate-to-marked limitation in the ability to deal with stress, and the
ALJ appears to have reasonably accounted for this limitation by limiting Plaintiff to semi-skilled
work with the ability to handle “simple work-related stress.” (T. 37, 472.) Plaintiff does not
17

provide persuasive evidence as to why the ALJ should have interpreted the moderate-to-marked
limitation in a more limiting manner. In any event, where evidence is subject to more than one
reasonable interpretation, this Court is bound to uphold the ALJ’s interpretation. See Hart v.
Astrue, 32 F. Supp. 3d 227, 235 (N.D.N.Y. 2012) (“To the extent Dr. Magsino’s opinion is
capable of more than one reasonable interpretation, this Court must defer to the interpretation of
the ALJ and may not substitute its own opinion.”); Brouillette v. Astrue, 901 F. Supp. 2d 328,
333 (N.D.N.Y. 2012) (“If the evidence is deemed susceptible to more than one rational
interpretation, then the Commissioner’s conclusion must be upheld.”). Because it appears the
ALJ reasonably accounted for Dr. Noia’s opinion, he did not fail to reconcile an inconsistency in
his rationale. Additionally, Plaintiff’s argument that the ALJ failed to reconcile also affording
significant weight to Dr. Ferrin’s opinion despite Dr. Ferrin discounting parts of Dr. Noia’s
opinion is likewise unpersuasive, as the ALJ nonetheless included greater limitations than
outlined in Dr. Ferrin’s opinion. There was no harmful error in the ALJ’s decision to afford
significant weight to either of these opinions.
Relatedly, there was no error in the ALJ’s reliance on the opinions from Dr. Carthy and
PA Ryan related to Plaintiff’s mental functioning despite their being rendered in the earlier
portion of the relevant period because it is clear that the ALJ accounted for any worsening
present in the later treatment notes by including significant mental limitations in the RFC. Since
it is the ALJ’s duty to make a determination based on all the evidence rather than discrete
opinions, there was no error in the ALJ’s decision to partially rely on these opinions while
finding greater mental limitations were warranted.
Plaintiff lastly argues that the ALJ erred in failing to afford controlling weight to the
opinions from treating psychiatrist Dr. Hukovic, citing to selected evidence that he asserts
18

supports Dr. Hukovic’s conclusions. (Dkt. No. 10, at 21-22 [Pl. Mem. of Law].) However,
Plaintiff’s conclusory assertions that Dr. Hukovic’s opinions, including his opinion that Plaintiff
met the criteria of Listing 12.04, were consistent with the evidence are in fact themselves not
consistent with the evidence.
On August 1, 2014, Dr. Hukovic opined Plaintiff had an extreme limitation in his ability
to respond appropriately to pressures in a usual work setting, marked limitations in his abilities to
understand, remember and carry out detailed instructions, interact appropriately with the public,
supervisors and co-workers and respond appropriately to changes in a routine work setting, and
moderate limitations in his abilities to understand, remember and carry out simple instructions
and make judgments on simple work-related decisions. (T. 573-74.) Dr. Hukovic also
completed a form in which he indicated Plaintiff displayed symptoms of depressive and manic
syndrome along with marked limitations related to social functioning, concentration and task
performance, and adapting to the workplace. (T. 578-80.) The ALJ afforded limited weight to
Dr. Hukovic’s opinions, finding they were inconsistent with clinical findings, Plaintiff’s reported
activities, and the other opinions. (T. 41.)
The ALJ provided sufficient good reasons for declining to afford controlling weight to
Dr. Hukovic’s opinion because the evidence as a whole does not support the extent of limitations
he opined. See Otts v. Comm’r of Soc. Sec., 249 F. App’x 887, 889 (2d Cir. 2007) (noting that an
ALJ may reject an opinion from a treating physician “upon the identification of good reasons,
such as substantial contradictory evidence in the record”) (citing Halloran v. Barnhart, 362 F.3d
28, 32 (2d Cir. 2004)). Although the treatment evidence does show Plaintiff experienced mental
limitations as a result of his impairment, it does not establish the severity Dr. Hukovic opined or
that Plaintiff reported. Notably, although Plaintiff was observed to have depressed or irritable
19

mood on many occasions, he was routinely observed to have a fairly normal thought process,
preserved ability to focus, preserved memory, and the ability to answer questions in a relevant
and goal-directed manner. (T. 342, 346, 481-82, 488-89, 493, 496, 498, 500, 507, 511, 514-16,
518-20, 523, 526, 528, 536, 540, 552, 560, 567, 571, 610, 616, 625, 630.) Additionally, specific
notations and the record as a whole show that Plaintiff’s symptoms improved to an appreciable
extent with medication compliance and participation in anger management groups where he
learned coping strategies that he was able to apply successfully to his life. (T. 363, 498-99, 513,
529, 538, 542, 545, 547, 614, 616.)
Nor do Plaintiff’s daily activities suggest he was as limited as Dr. Hukovic opined. The
mental health treatment notes are filled with reports that Plaintiff was engaged in activities such
as housework, making artwork, caring for a duck and two dogs, seeking custody of his son, and
engaging in meaningful relationships including a marriage that he ended voluntarily because he
believed he had cheated on his wife. (T. 540, 542, 545, 558, 565, 624, 629.) Contrary to his
testimony that he did not deal well with people and did not handle group therapy well, the
evidence also shows that Plaintiff participated well in group and even reported enjoying it
because it got him out of the house and around people he could relate to. (T. 486, 513, 543,
614.) Plaintiff indicated in a written function report that he had been able to care for his son
during the summer, occasionally took care of his mother’s dog, performed self-care, baked from
scratch, prepared meals daily, mowed the lawn, did laundry, occasionally gardened, cleaned in
the house, went outside whenever the weather permitted, walked, drove, and rode a bicycle to go
places alone, shopped once per month, paid his own bills, drew daily, and occasionally worked
on small engines. (T. 284-87.) These activities are not consistent with the significant level of
mental restriction Dr. Hukovic opined.
20

Lastly, as already detailed, the other opinion evidence all indicated mental limitations of
a far lesser severity than Dr. Hukovic’s opinions. This lack of consistency with the evidence
from the other treating, examining, and non-examining sources further supports the ALJ’s
decision to afford less weight to Dr. Hukovic’s opinion. Because the reasons the ALJ identified
are supported by substantial evidence, the ALJ did not err in declining to afford controlling
weight to Dr. Hukovic’s opinion. See Greek, 802 F.3d at 375.
For all the above reasons, the ALJ’s findings related to the opinion evidence are
supported by substantial evidence. Further, the evidence as a whole provides substantial support
for the RFC finding. Remand is not warranted on this basis.
C.

Whether the Credibility Finding is Supported By Substantial Evidence

After careful consideration, the Court answers this question in the affirmative for the
following reasons.
In determining whether a claimant is disabled, the ALJ must also make a determination
as to the credibility of the claimant’s allegations. “‘An administrative law judge may properly
reject claims of severe, disabling pain after weighing the objective medical evidence in the
record, the claimant’s demeanor, and other indicia of credibility, but must set forth his or her
reasons with sufficient specificity to enable us to decide whether the determination is supported
by substantial evidence.’” Schlichting v. Astrue, 11 F. Supp. 3d 190, 205 (N.D.N.Y. 2012)
(quoting Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999)). The Second Circuit
recognizes that “‘[i]t is the function of the [Commissioner], not [reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant,’” and
that “[i]f there is substantial evidence in the record to support the Commissioner’s findings, ‘the
court must uphold the ALJ’s decision to discount a claimant’s subjective complaints of pain.’”
21

Schlichting, 11 F. Supp. 3d at 206 (quoting Carroll v. Sec’y of Health and Human Servs., 705
F.2d 638, 642 (2d Cir. 1983); Aponte v. Sec’y, Dep’t of Health and Human Servs., 728 F.2d 588,
591 (2d Cir. 1984)). Due to the fact that the ALJ has the benefit of directly observing a
claimant’s demeanor and “other indicia of credibility,” the ALJ’s credibility assessment is
generally entitled to deference. Weather v. Astrue, 32 F. Supp. 3d 363, 381 (N.D.N.Y. 2012)
(citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999)).
Plaintiff argues that the ALJ’s use of his reported daily activities as a basis for
undermining the credibility of his allegations was erroneous because the evidence did not show
that Plaintiff engaged in those activities for sustained periods that would be comparable to
holding a job. (Dkt. No. 10, at 23-24 [Pl. Mem. of Law].) However, as already noted in the
preceding sections of this Decision and Order, Plaintiff reported and demonstrated the ability to
perform significant activities that are inconsistent with his reports of disabling anger issues and
concentration deficits in particular. The issue is not whether the ALJ was able to point to
evidence that showed Plaintiff remained capable of working at the level of the RFC, but rather
whether Plaintiff’s reported activities were inconsistent with his other allegations. See Morris v.
Comm’r of Soc. Sec., No. 12-CV-1795, 2014 WL 1451996, at *8 (N.D.N.Y. Apr. 14, 2014)
(“The issue is not whether Plaintiff's limited ability to undertake normal daily activities
demonstrates her ability to work. Rather, the issue is whether the ALJ properly discounted
Plaintiff's testimony regarding her symptoms to the extent that it is inconsistent with other
evidence.”). Consequently, those inconsistencies between Plaintiff’s activities of daily living
and the extent of his allegations were a proper consideration when assessing credibility.
In addition to Plaintiff’s daily activities, the ALJ also cited factors such as notations of
non-compliance with seizure medication, improvement in mental symptoms with medication and
22

treatment, and inconsistencies between his allegations and the medical treatment evidence and
opinions. (T. 39-41.) These are all proper considerations for assessing credibility, and Plaintiff
does not challenge that the ALJ’s rationale related to these provided reasons is supported by the
evidence. See 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 96-7p, 1996 WL 374186 (July 2,
1996) 3; Rockwood v. Astrue, 614 F. Supp. 2d 252, 271 (N.D.N.Y. 2009). As this Court finds
these reasons to be a reasonable interpretation of the evidence, it must defer to the ALJ’s
credibility assessment. The ALJ provided multiple reasons in support of his finding that
Plaintiff’s allegations were not entirely credible. Consequently, the credibility finding is
consistent with the applicable legal standards and supported by substantial evidence. Remand is
not merited on this basis.
D.

Whether the Findings at Step Five are Supported By Substantial Evidence

After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendant’s memorandum of law. (Dkt. No. 15, at 20-21 [Def. Mem. of Law].)
To those reasons, this Court adds the following analysis.
Although the claimant has the general burden to prove he has a disability under the
definitions of the Social Security Act, the burden shifts to the Commissioner at Step Five “‘to
show there is other work that [the claimant] can perform.’” McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014) (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). “If a
claimant has non-exertional limitations that ‘significantly limit the range of work permitted by
his exertional limitations,’ the ALJ is required to consult with a vocational expert.” Zabala v.

3

SSR 96-7p was more recently superseded by SSR 16-3p, but that new provision has an
effective date of March 28, 2016. See SSR 16-3p, 2016 WL 1119029 (March 16, 2016). Since
the ALJ’s decision was rendered on December 3, 2014, SSR 96-7p was the rule in place at the
time of that determination and is therefore the ruling applicable to this review.
23

Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.
1986)). “However, the ‘mere existence of a non-exertional impairment does not automatically . .
. preclude reliance on the [Medical-Vocational] guidelines.’” Zabala, 595 F.3d at 410-11
(quoting Bapp, 802 F.2d at 603). “A non-exertional impairment ‘significantly limits a claimant’s
range of work when it causes an additional loss of work capacity beyond a negligible one or, in
other words, one that so narrows a claimant’s possible range of work as to deprive him of a
meaningful employment opportunity.’” Zabala, 595 F.3d at 410-11 (quoting Bapp, 802 F.2d at
605-06).
Plaintiff argues that the ALJ was required to consult a vocational expert because it was
unclear how the non-exertional postural, environmental, and mental limitations included in the
RFC would impact the occupational base of unskilled work at all exertional levels. (Dkt. No. 10,
at 23 [Pl. Mem. of Law].) However, Defendant is correct that the ALJ provided sufficient
explanation as to how he determined these specific limitations would not have a significant
impact on the occupational base. (Dkt. No. 15, at 20-21 [Def. Mem. of Law].) In particular, the
ALJ noted that SSR 96-6p indicated that unskilled sedentary work did not usually require
working in high exposed places or with moving mechanical parts or machinery, that SSR 83-14
indicated that an inability to climb ladders or scaffolding would not be significant at any
exertional level, and that SSR 85-15 indicated that Plaintiff’s RFC would allow him to perform
the basic mental demands of unskilled work. (T. 42-43.) Because these Social Security Rulings
provided sufficient guidance for the ALJ to determine whether the occupational base would be
significantly eroded by the non-exertional limitations, the Step Five finding is supported by
substantial evidence and there was no legal requirement for the ALJ to consult a vocational
expert. Remand is not merited on this basis.
24

ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 15) is
GRANTED; and it is further
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: October 13, 2017
Syracuse, New York
______________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

25