Sauvie v. Commissioner of Social Security
Filing
22
MEMORANDUM-DECISION and ORDER: that Plaintiff's motion for judgment on the pleadings (Dkt. No. 8 ) is Denied; that Defendant's motion for judgment on the pleadings (Dkt. No. 17 ) is Granted; that Defendant's unfavorable determination is Affirmed; and that Plaintiff's Complaint (Dkt. No. 1 ) is Dismissed. Signed by Magistrate Judge William B. Carter on 02/07/2018. (hmr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
MARK A. SAUVIE,
Plaintiff,
v.
7:16-CV-1302
(WBC)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
CONBOY, MCKAY LAW FIRM
Counsel for Plaintiff
307 State St.
Carthage, NY 13619
LAWRENCE HASSELER, 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
DANIELLA CALENZO, ESQ.
William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local
Rule 73.1 and the consent of the parties. (Dkt. Nos. 3, 20.)
Currently before the Court, in this Social Security action filed by Mark A. Sauvie
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-
motions for judgment on the pleadings. (Dkt. Nos. 8, 17.) For the reasons set forth
below, Plaintiff’s motion is denied and Defendant’s motion is granted.
I.
RELEVANT BACKGROUND
A.
Factual Background
Plaintiff was born in 1972. (T. 206.) He completed high school. (T. 314.)
Generally, Plaintiff’s alleged disability consists of depression, disc disease, anxiety,
ulcers, and high blood pressure. (T. 313.) His alleged disability onset date is
September 10, 2012. (T. 168.) His date last insured is December 31, 2017. (T. 309.)
He previously worked as a cashier and cook. (T. 314.)
B.
Procedural History
On June 6, 2013, Plaintiff applied for a period of Disability Insurance Benefits
(“SSD”) under Title II, and Supplemental Security Income (“SSI”) under Title XVI, of the
Social Security Act. (T. 191.) Plaintiff’s applications were initially denied, after which he
timely requested a hearing before an Administrative Law Judge (“the ALJ”). On
February 3, 2015, Plaintiff appeared before the ALJ, F. Patrick Flanagan. (T. 160-190.)
On April 6, 2015, ALJ Flanagan issued a written decision finding Plaintiff not disabled
under the Social Security Act. (T. 79-109.) On September 27, 2016, the Appeals
Council (“AC”) denied Plaintiff’s request for review, rendering the ALJ’s decision the
final decision of the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial
review in this Court.
C.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 85-104.) First, the ALJ found that Plaintiff met the insured
2
status requirements through December 31, 2017 and Plaintiff had not engaged in
substantial gainful activity since September 10, 2012. (T. 85.) Second, the ALJ found
that Plaintiff had the severe impairments of degenerative disc disease of the lumbar
spine, chronic obstructive pulmonary disease (“COPD”), status post right occipital lobe
cerebrovascular accident (“CVA”) with partial left hemianopsia, obesity, depression, and
anxiety. (Id.) Third, the ALJ found that Plaintiff did not have an impairment that meets
or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart
P, Appendix. 1. (T. 87.) Fourth, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform:
light work as defined in 20 C.F.R. [§§] 404.1567(b) and 416.967(b) with
additional limitations. Specifically, [Plaintiff] can lift and carry a maximum
of 20 pounds occasionally and 10 pounds frequently; can stand or walk for
6 hours total in an 8-hour workday; can sit for 6 hours total in an 8-hour
workday; can occasionally climb, stoop, or operate[] foot controls; should
avoid concentrated exposure to fumes, odors, dusts, gases, poor
ventilation, extreme heat, and extreme cold; should avoid working at heights
or around dangerous machinery; is capable of understanding,
remembering, and carrying out simple tasks; should not be exposed to more
than occasional changes in routine work setting or occasional decisionmaking; requires only occasional, superficial contact with supervisors, coworkers, or the public; and can do low stress work defined as no fast-pace
production rate tasks.
(T. 90.) 1 Fifth, the ALJ determined that Plaintiff was incapable of performing his past
relevant work; however, there were jobs that existed in significant numbers in the
national economy Plaintiff could perform. (T. 102-104.)
II.
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
1
Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. §§
404.1567(b), 416.967(b).
3
A.
Plaintiff’s Arguments
Plaintiff makes two separate arguments in support of his motion for judgment on
the pleadings. First, Plaintiff argues the AC and the ALJ failed to properly evaluate the
opinions of Plaintiff’s primary treating physicians. (Dkt. No. 8 at 15-19 [Pl.’s Mem. of
Law].) Second, and lastly, Plaintiff argues the ALJ failed to support his RFC
determination with substantial evidence. (Id. at 19-21.)
B.
Defendant’s Arguments
In response, Defendant makes one argument. Defendant argues the ALJ
properly evaluated Plaintiff’s RFC. (Dkt. No. 17 at 7-19 [Def.’s Mem. of Law].)
III.
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. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed 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.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
4
“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. See 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. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court has recognized the validity of this
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sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.
2287 (1987). The five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
IV.
ANALYSIS
A. Weighing of the Evidence and RFC Determination
The RFC is an assessment of “the most [Plaintiff] can still do despite [his]
limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a) 2. The ALJ is responsible for
assessing Plaintiff’s RFC based on a review of relevant medical and non-medical
evidence, including any statement about what Plaintiff can still do, provided by any
medical sources. Id. at §§ 404.1527(d), 404.1545(a)(3), 404.1546(c), 416.927(d),
416.945(a)(3), 416.946(c).
In assessing the medical opinion evidence in the record, the ALJ must consider
the following factors: the length, nature and extent of the treatment relationship, relevant
evidence which supports the opinion, the consistency of the opinion with the record as a
2
Effective March 27, 2017, many of the Regulations and SSRs cited herein have been
amended. Nonetheless, because Plaintiff’s social security application was filed before the new
regulations and SSRs went into effect, the Court reviews the ALJ's decision under the earlier regulations
and SSRs.
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whole, and the specialization (if any) of the opinion’s source. 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6).
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 ‘well-supported 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)).
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 to provide ‘good reasons for not crediting the opinion of a claimant's
7
treating physician is a ground for remand.’ ” Greek, 802 F.3d at 375 (quoting Burgess,
537 F.3d at 129-130).
Plaintiff contends that the ALJ erred in his assessment of the medical opinion
evidence in the record. (Dkt. No. 8 at 15-19 [Pl.’s Mem. of Law].) Specifically, Plaintiff
argues: the ALJ erred in affording treating physician, Juan-Diego Harris, M.D.’s opinion
“little weight” because substantial evidence in the record supported the doctor’s opinion;
the ALJ committed legal error in failing to afford treating physician Mariam Asar, M.D.’s
opinion a specific weight; and the ALJ committed legal error in affording greater weight
to non-examining State agency medical consultant T. Bruni, Ph.D. than treating mental
health providers. (Id.)
First, under the substantial evidence standard of review, it is not enough for
Plaintiff to merely disagree with the ALJ’s weighing of the evidence or to argue that the
evidence in the record could support his position. Plaintiff must show that no
reasonable factfinder could have reached the ALJ’s conclusions based on the evidence
in record. See Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012);
see also Wojciechowski v. Colvin, 967 F.Supp.2d 602, 605 (N.D.N.Y. 2013)
(Commissioner’s findings must be sustained if supported by substantial evidence even if
substantial evidence supported the plaintiff’s position); see also Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991) (reviewing courts must afford the Commissioner’s
determination considerable deference and cannot substitute own judgment even if it
might justifiably have reached a different result upon a de novo review). Although
Plaintiff cites to evidence in the record which he contends supported Dr. Harris’s
8
opinion, Plaintiff ultimately fails to prove that no reasonable fact finder could have
reached the ALJ’s conclusion.
In October of 2013, Dr. Harris completed a medical source statement. (T. 603608.) Therein he opined that Plaintiff could occasionally and frequently lift up to ten
pounds; could stand and/or walk less than two hours in an eight hour workday; sit less
than six hours in an eight hour workday; and he was limited in pushing and pulling with
his lower extremities. (T. 603-604.) He opined that Plaintiff should never kneel, crouch,
crawl or stoop; and could occasionally climb and balance. (T. 604.) Dr. Harris indicated
that Plaintiff was limited in his ability to reach and unlimited in his ability to handle,
finger, and feel. (T. 605.) He further opined Plaintiff was limited in his ability to see.
(Id.)
In treatment notations dated February 18, 2014, Dr. Harris provided functional
limitations similar to those he outlined in his medical source statement. (T. 625.) He
also indicated that Plaintiff must alternate sitting and standing “on a regular basis.” (Id.)
In September of 2014, Dr. Harris completed another medical source statement. (T.
669-674.) Dr. Harris provided the same exertional and non-exertional limitations as in
his October 2013 statement. (Id.) However, in September of 2014, Dr. Harris opined
Plaintiff had no limitations in his ability to see. (T. 671.)
The ALJ afforded Dr. Harris’s opinions “little weight.” (T. 96.) The ALJ reasoned
that the opinions were not well supported by objective medical evidence. (Id.) In
support of his determination the ALJ cited numerous examinations and notations in the
record. The ALJ outlined the physical exam performed by consultative examiner Nader
Wassef, M.D. and Plaintiff’s testimony regarding activities of daily living which the ALJ
9
concluded would require greater postural and manipulative functioning than Dr. Harris
opined Plaintiff could perform. (Id.)
Indeed, Dr. Wassef noted on examination that Plaintiff could walk on his heels
and toes; could fully squat; needed no help changing for the exam or getting on and off
the exam table; and was able to rise from a chair. (T. 560.) Dr. Wassef also noted
Plaintiff had full strength in his upper and lower extremities; no muscle atrophy; intact
hand and finger dexterity; and full grip strength. (T. 561.) On examination Plaintiff had
tenderness in his lumbar spine, but full range of motion. (T. 560.) Plaintiff had full
range of motion in his cervical spine and all upper and lower extremities. (Id.) As
indicated by the ALJ, Dr. Wassef’s contemporary findings were not consistent with Dr.
Harris’s assessment that Plaintiff could not perform sedentary work or various postural
activities. The ALJ also noted that Plaintiff denied side-effects from medications which
did not support Dr. Harris’s statement that Plaintiff was unable to function at a
productive level due to medication side-effects. (T. 96.) Therefore, the ALJ properly
concluded Dr. Harris’s opinions were inconsistent with the record and the ALJ cited to
substantial evidence in the record to support his determination.
Second, Plaintiff argues the ALJ failed to assign Dr. Asar’s opinion weight and
that Dr. Asar’s opinion was supported by consultative examiner, Brett Hartman, Psy.D.’s
opinion. (Dkt. No. 8 at 18 [Pl.’s Mem. of Law].) Where an ALJ’s reasoning can be
“discern[ed] with ease” the ALJ did not err in failing to afford a medical opinion specific
weight. Curtis v. Colvin, 11-CV-1001, 2013 WL 3327957, at *5 (N.D.N.Y. July 2, 2013);
see Camille v. Colvin, 652 F.App’x 25, 28 (2d Cir. 2016) (“Although the ALJ did not
describe in detail her rationale [for affording weight to an opinion], we can infer from the
10
decision that she attributed great weight to the opinion because she found it most
consistent with the record as a whole.”).
Here, although the ALJ did not afford Dr. Asar’s opinion specific weight, the ALJ
stated that he did not afford her opinion “controlling weight” because the limitations
imposed were “not supported by the few chronically positive clinical findings on mental
status exams . . . and [were] inconsistent with substantial evidence, including [Plaintiff’s]
daily activities.” (T. 100.) The ALJ also stated that Dr. Asar’s opinion could not be
afforded controlling weight because it was inconsistent with objective medical evidence
that supported an overall positive response to treatment, abstinence from drugs and
alcohol, and medication management of his condition without the need for more
intensive treatment. (T. 101.) The ALJ supported his determination with evidence in
the record concerning Plaintiff’s treatment and testimony regarding activities of daily
living. (T. 100-101.) The ALJ also stated in his thorough decision that he relied
primarily on the opinions of Drs. Bruni and Hartman in formulating his mental RFC
determination. (T. 101.) Therefore, although the ALJ did not afford Dr. Asar’s opinion a
specific weight, he committed no error because the ALJ’s decision made clear that he
afforded the opinion less than controlling weight. It is further clear from the ALJ’s
decision that he relied on the opinions of Drs. Bruni and Hartman, as well as Plaintiff’s
treatment notations and activities of daily living, in formulating his mental RFC.
Plaintiff further asserts that the ALJ erred in his assessment of Dr. Asar’s opinion
because Dr. Hartman’s opinion “clearly supports” her assessment. (Dkt. No. 8 at 18
[Pl.’s Mem. of Law].) In February 2014, Dr. Asar opined Plaintiff had “marked” or
“extreme” limitations in all areas of mental functioning. (T. 610-612.) The form
11
completed by Dr. Asar defined “marked” as a “serious limitation . . . there is substantial
loss in the ability to effectively function.” (T. 610.) The form defined “extreme” as a
“major limitation . . . there is no useful ability to function.” (Id.) In January of 2015, Dr.
Asar opined that Plaintiff had “marked” limitations in all areas of mental functioning. (T.
699-700.) Dr. Hartman opined Plaintiff could follow and understand simple directions,
and perform simple tasks. (T. 575.) He further opined Plaintiff had a “mild difficulty”:
maintaining attention and concentration; learning new tasks; performing complex tasks
independently; and making appropriate decisions. (Id.) He opined Plaintiff had
“moderate problems”: maintaining a regular schedule; relating adequately with others;
and dealing appropriately with the normal stressors of life. (Id.)
Whereas Dr. Asar essentially opined that Plaintiff was incapable of performing
the basic mental demands of work, Dr. Hartman’s opinion supported the determination
that Plaintiff could perform those demands. Basic mental work activities include the
ability to: understand, carry out, and remember simple instructions; use judgment;
respond appropriately to supervision, co-workers and usual work situations; and deal
with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b)(3)-(6), 416.921(b)(3)(6). Further, moderate limitations in mental functioning do not necessarily preclude the
ability to perform basic work activities. See Zabala v. Astrue, 595 F.3d 402, 410 (2d
Cir. 2010); see Whipple v. Astrue, 479 F. App’x. 367, 370 (2d Cir. 2012) (consultative
examiners' findings that plaintiff's depression caused moderate limitations in social
functioning ultimately supported the ALJ's determination that plaintiff was capable of
performing work that involved simple tasks and allowed for a low-stress environment);
Saxon v. Colvin, No. 13-CV-165, 2015 WL 3937206, at *6 (W.D.N.Y. June 26, 2015)
12
(“The ALJ considered the functional limitations suggested by the medical evidence,
including plaintiff's moderate limitation in the ability to learn new tasks, perform complex
tasks, make appropriate decisions, relate adequately with others, and deal with stress.
These limitations are incorporated into the RFC, which limits plaintiff to simple routine
tasks in a low stress, low contact environment.”). Although the ALJ afforded Dr.
Hartman’s opinion “some weight,” his opinion was consistent with the ALJ’s mental RFC
determination. Therefore, contrary to Plaintiff’s contention, the ALJ properly assessed
Dr. Asar’s opinion and ultimately, Dr. Hartman’s opinion supported the ALJ’s mental
RFC determination.
Plaintiff asserts, without citation to the record, that the ALJ erred in his conclusion
that Plaintiff’s treatment indicated he had no problems socializing. (Dkt. No. 8 at 18
[Pl.’s Mem. of Law].) Plaintiff misstates the ALJ’s conclusion and the record, and
essentially asks this court to reweigh the evidence. Here, contrary to Plaintiff’s
assertion, the ALJ did not determine that Plaintiff had “no problems” socializing. The
ALJ determined that “the record does not support more than moderate difficulties
maintaining social functioning.” (T. 100.) Indeed, the RFC accounted for any social
limitations by limiting Plaintiff to “superficial contact with supervisors, co-workers, or the
public.” (T. 90.) A review of the record indicates that the ALJ did not misstate Plaintiff’s
treatment; and further, the ALJ relied on other evidence in the record to support this
determination, such as Plaintiff’s testimony regarding his activities and observation by
medical professionals. (T. 100.)
Third, Plaintiff asserts that the ALJ committed legal error in affording more weight
to non-examining State agency consultant, Dr. Bruni than treating provider, Dr. Asar.
13
(Dkt. No. 8 at 18-19 [Pl.’s Mem. of Law].) However, it is well settled that an ALJ is
entitled to rely upon the opinions of both examining and non-examining State agency
medical consultants, since such consultants are deemed to be qualified experts in the
field of social security disability. See 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c),
404.1527(e); 416.912(b)(6), 416.913(c), 416.927(e). The Second Circuit has
consistently recognized that opinions from consultative examiners, including nonexamining consultants, may constitute substantial evidence in support of a RFC and
may be afforded more weight than a plaintiff’s treating source. See Heagney-O'Hara v.
Comm'r of Soc. Sec., 646 F. App'x 123, 126 (2d Cir. 2016) (ALJ properly afforded more
weight to non-treating source than treating source because the non-treating source’s
opinion was consistent with the objective medical evidence in the record); Monette v.
Colvin, 654 F. App’x 516, 518 (2d Cir. 2016) (“The greater weight accorded by the ALJ
to the opinion of the consultative psychologist is also consistent with the record at large
and the applicable regulations.”); Snyder v. Colvin, 667 F. App’x 319 (2d Cir. 2016)
(“The opinion of a treating physician is not binding if it is contradicted by substantial
evidence, and a consulting physician report may constitute such evidence.”) (internal
citation omitted). Indeed, the ALJ specifically outlined his reasoning for affording more
weight to the non-examining State agency medical consultant and one-time examining
psychologist than Plaintiff’s treating providers. (T. 101.) Therefore the ALJ did not
commit per se remandable error in affording more weight to the opinion of a nonexamining consultative examiner than to the opinion of a treating source.
In formulating his mental RFC determination the ALJ relied primarily on the
findings of Dr. Bruni. (T. 98.) Also, as stated herein, Dr. Hartman’s opinion supported
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the mental RFC. The ALJ reasoned that Dr. Bruni’s opinion was entitled to significant
weight because it was “generally supported by the objective medical evidence from
various treating and examining sources,” including evidence received after Dr. Bruni
conducted his review. (Id.) Dr. Bruni reviewed Plaintiff’s record on September 24,
2013. (T. 198.) He opined Plaintiff had a severe psychiatric impairment that resulted in
significant functional limitations; however, Plaintiff could still perform the basic mental
demands of work. (T. 203.) Dr. Bruni opined Plaintiff could understand and remember
simple instructions and procedures; could sustain a normal workday and workweek and
maintain consistent pace; had “some difficulty” interacting with co-workers and
supervisors, but was able to relate and respond in a socially adequate manner; and
could adapt to changes in a routine work setting and could use appropriate judgment to
make work-related decisions. (Id.) The ALJ outlined in great detail evidence in the
record to support his determination to afford significant weight to Dr. Bruni’s opinion. (T.
98-101.) The ALJ relied on mental status examinations by treating and examining
sources which generally showed few positive findings. (Id.) Therefore, the ALJ did not
commit legal error in affording more weight to a non-examining source than a treating
source. Further, the ALJ’s determination was supported by substantial evidence in the
record.
The ALJ did not err in weighing the medical opinion evidence in the record and
the ALJ’s weight determinations are upheld. Further, because the ALJ did not err in his
assessment of the medical opinion evidence in the record, and the ALJ provided a
thorough analysis of all of the medical and non-medical evidence and provided ample
15
reasoning to support his RFC determination, the RFC determination was proper and
supported by substantial evidence in the record.
Plaintiff appears to argue that the ALJ’s RFC determination was faulty because
the ALJ did not perform a function by function analysis. (Dkt. No. 8 at 20 [Pl.’s Mem. of
Law].) However, the Second Circuit has held that the failure to explicitly engage in a
function-by-function analysis as part of the RFC assessment does not constitute a per
se error requiring remand. See Chichocki v. Astrue, 729 F.3d 172, 174 (2d Cir. 2013).
In formulating his RFC determination the ALJ thoroughly outlined the medical record,
including opinions from treating sources and non-treating sources. (T. 90-101.) Plaintiff
then essentially reiterates his previous argument that had the ALJ properly weighed
treating source opinions a finding of disabled would be warranted. (Dkt. No. 8 at 20-21
[Pl.’s Mem. of Law].) For the reasons already stated herein, the ALJ’s weighing of the
medical opinion evidence was proper.
B. AC Determination
Plaintiff argues that the AC erred in its determination denying Plaintiff’s request
for review. (Dkt. No. 8 at 15-16 [Pl.’s Mem. of Law].) On June 4, 2015, Plaintiff
requested review and submitted additional medical evidence to the AC. (T. 378-382.)
Essentially, the AC received two batches of evidence. One batch of evidence was
included in the administrative record (T. 702-819); and the AC ultimately determined the
evidence did not provide a basis for changing the ALJ’s decision (T. 2). The AC
determined the second batch of evidence was “about a later time”; and was not made
part of the administrative record. (T. 2.)
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Regarding the first batch of evidence, the AC stated that they considered this
evidence and concluded that the ALJ’s “actions, findings, or conclusions” were not
contrary to the weight of the evidence in the record. (T. 2.) This additional evidence
submitted by Plaintiff was included in the administrative transcript. (T. 702-819.)
The AC then acknowledged that it received medical records from Canton
Potsdam Hospital dated August 10, 2015, Kejian Tang, M.D. dated April 21, 2015, and
Magendra Thakur dated May 6, 2015. (T. 2.) The AC concluded that these records
were about a later time and did not affect the decision about whether Plaintiff was
disabled beginning on or before April 6, 2015. (Id.) Therefore, the above listed records
were not included in the administrative transcript. (Id.) Plaintiff did not submit the
additional evidence from 2015 to this Court. 3
Plaintiff argues that the AC erred in its review of the medical records received
subsequent to the ALJ’s April 2015 decision. (Dkt. No. 8 at 15-16 [Pl.’s Mem. of Law].)
Plaintiff asserts that once the evidence was “[made] part of the Record, the [AC] was
obligated to review the evidence and make a factual determination as to whether the
evidence was relevant to an evaluation of Plaintiff’s functional limitations prior to April 6,
2015.” (Id.) Of note, Plaintiff does not argue that the AC erred in its determination that
this evidence was indeed not related to the relevant period. Further, Plaintiff does not
argue that the addition evidence received, and included in the record, would have
altered the ALJ’s determination.
3
When a plaintiff wishes to support an appeal with new evidence, such evidence must be
accompanied by a legal memorandum setting forth an argument for the acceptance of the new evidence
based upon the three-part showing required by the regulations. N.D.N.Y. General Order 18 at 3.
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Plaintiff argument is without merit. First, Plaintiff fails to provide any legal
authority to support his assertion that the AC was obligated to make a factual
determination regarding evidence dated after the ALJ’s hearing decision. (Dkt. No. 8 at
15 [Pl.’s Mem. of Law].) Second, Plaintiff argues that the AC was obligated to review
the evidence because it was made part of the record. (Id.) However, contrary to
Plaintiff’s assertion, the evidence was not made part of the record and Plaintiff did not
submit the evidence to this Court.
If the AC determines that additional evidence does not relate to the period on or
before the date of the ALJ’s hearing decision, the AC must explain why it did not accept
the additional evidence and advise Plaintiff of his right to file a new application. 20
C.F.R. §§ 404.970(c), 416.1470(c). Here, the AC’s decision indicated that they received
all the additional evidence Plaintiff submitted and provided an explanation of their
treatment of the evidence. (T. 2.) The AC proceeded to advise Plaintiff of his right to
file a new application. (Id.) Therefore, the AC complied with the requirements of 20
C.F.R. §§ 404.970(c) and 416.1470(c).
Overall, the ALJ properly weighed the medical opinion evidence in the record and
his RFC determination was proper and supported by substantial evidence. Further,
Plaintiff’s argument that the AC erred in their review is without merit. Therefore, the
ALJ’s determination is upheld.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 8) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 17) is
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GRANTED; and it is further
ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Date: February 7, 2018
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