McCracken v. Astrue

Filing 16

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiff's motion for judgment on the pleadings is GRANTED; and the Court further ORDERS that Defendant's motion for judgment on the pleadings is DENIED; and theCourt further ORDE RS that the Commissioners decision denying disability benefits is REVERSED and this matter is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g),3 for further proceedings; and the Court further ORDERS that the Clerk of the Court shall enter judgment and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 5/13/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
LAURA MCCRACKEN,
Plaintiff,
vs.

8:12-cv-193
(MAD)

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

INSLER & HERMANN, LLP
560 White Plains Road
Tarrytown, New York 10591
Attorneys for Plaintiff

LEWIS B. INSLER, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Attorney for Defendant

BENIL ABRAHAM, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Laura McCracken brings the above-captioned action pursuant to 42 U.S.C. §
405(g), seeking a review of the Commissioner of Social Security's decision to deny her
application for Disability Insurance Benefits ("DIB"). Presently before the Court are the parties'
respective motions for judgment on the pleadings. See Dkt. Nos. 13, 14.
II. BACKGROUND

On November 18, 2008, Plaintiff filed an application for DIB, alleging a disability onset
date of December 20, 2007. Dkt. No. 10, Administrative Transcript ("T."), at 278-81. On April
7, 2009, Plaintiff's application was denied, T. 143, 161-65, and on July 28, 2010, Plaintiff and her
counsel appeared at a requested hearing before Administrative Law Judge ("ALJ") Roberto
Lebron, T. 33-81. ALJ Lebron issued a decision denying Plaintiff's claims for benefits on
September 24, 2010. T. 147-53 ("First Decision").
In the First Decision, the ALJ found at step one that Plaintiff had not engaged in
substantial gainful activity since December 20, 2007. T. 149. At step two, the ALJ concluded
that Plaintiff suffered from Crohn's disease and depressive disorder, which qualified as severe
impairments within the meaning of the Social Security Regulations (the "Regulations"). Id. At
the third step of the analysis, the ALJ determined that Plaintiff's impairments did not meet or
equal the severity of any impairment listed in Appendix 1 of the Regulations. T. 149-50. In
reaching this conclusion, the ALJ found that Plaintiff's mental impairment did not satisfy the
paragraph B or C criteria under listings 12.04 and 12.06 of 20 C.F.R. Part 404, Subpt. P, App. 1.
The ALJ's discussion of the paragraph B criteria was limited, and the ALJ failed to discuss the
paragraph C criteria in any detail. T. 150. The ALJ then found that Plaintiff had the residual
functional capacity ("RFC") to perform a full range of light work. Id. In so doing, the ALJ found
that Plaintiff's medically determinable impairments could reasonably be expected to cause the
alleged symptoms, but found her subjective complaints regarding those impairments to be not
credible. T. 151. The ALJ considered medical records from treating physician Dr. Kenneth
Svensson, but did not describe the weight given to such evidence. T. 151. Similarly, the ALJ
considered the opinions of consultative examiner Dr. Nabila Salama, but did not describe the
weight given to Dr. Salama's opinions. Id. The ALJ last considered the opinions of treating
2

source Dr. Annetta Kimball, who had seen Plaintiff on a monthly basis since March 23, 2006. Dr.
Kimball's opinion that Plaintiff was capable of low stress jobs was given controlling weight. Id.
At step four, the ALJ concluded that Plaintiff was unable to perform any past relevant work. T.
152. At step five, relying on the medical-vocational guidelines set forth in the Regulations, 20
C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff had the RFC to perform jobs
existing in significant numbers in the national economy. T. 152. Therefore, the ALJ concluded
that Plaintiff was not under a disability as defined by the Social Security Act. Id. Thereafter,
Plaintiff requested review by the Appeals Council, which review was granted in a December 7,
2010, order. T. 158-60 ("Remand Order").
In the Remand Order, the Appeals Council vacated the First Decision and remanded the
case for the resolution of a number of issues. As an initial matter, the Appeals Council found that
the First Decision did not contain an adequate evaluation of the treating source opinion submitted
by Dr. Kimball. The First Decision indicated that the ALJ gave controlling weight to Dr.
Kimball's opinion. However, the ALJ failed to adopt Dr. Kimball's opinion in its entirety, as is
required when a treating source's opinion is given controlling weight. T. 158. The Remand Order
further noted that the ALJ failed to provide a sufficient rational for the "B" and "C" criteria used
to evaluate whether Plaintiff's mental impairment met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. Moreover, the ALJ's First Decision did not
account for Plaintiff's mental limitations in the RFC assessment. T. 158-59. Finally, the Remand
Order stated that the First Decision failed to consider the requisite factors in evaluating the
intensity, persistence, and limiting effects of Plaintiff's subjective complaints. T. 159.
The Appeals Council further ordered that, upon remand, the ALJ would address these
issues by way of the following instructions. The ALJ was instructed to "[g]ive further
3

consideration to the claimant's maximum residual functional capacity during the entire period at
issue and provide rationale with specific references to evidence of record in support of assessed
limitations." T. 159. Specifically, the ALJ was instructed to evaluate the treating source opinion
in accordance with the relevant Regulations, and explain the weight given to such opinion
evidence. The ALJ was also instructed to "[f]uther evaluate the claimant's mental impairment"
and her subjective complaints in accordance with the Regulations. Finally, the ALJ was
instructed,
[i]f warranted by the expanded record, [to] obtain supplemental
evidence from a vocational expert to clarify the effect of the
assessed limitations on the claimant's occupational base[.] The
hypothetical questions should reflect the specific
capacity/limitations established by the record as a whole. The
[ALJ] will ask the vocational expert to identify examples of
appropriate jobs and to state the incidence of such jobs in the
national economy[.]
T. 159.
On remand, ALJ Lebron held another hearing on February 7, 2011. T. 103-42.
Thereafter, on April 18, 2011, the ALJ issued another unfavorable decision. T. 8-17, 89-98
("Second Decision"). In the Second Decision, the ALJ found at step one that Plaintiff had not
engaged in substantial gainful activity since December 20, 2007. T. 10. At step two, the ALJ
concluded that Plaintiff suffered from Crohn's disease, which qualified as a severe impairment
within the meaning of the Regulations. Id. The ALJ also concluded that Plaintiff's mental
impairments of depression, anxiety were non-severe impairments. In reaching this conclusion,
the ALJ considered the paragraph B criteria in detail and found that Plaintiff's "medically
determinable mental impairment causes no more than 'mild' limitation in any of the first three
functional areas and 'no' episodes of decompensation which have been of extended duration in the
fourth area." T. 11-12. As in the First Decision, the ALJ concluded, without analysis, that
4

Plaintiff's mental impairment did not satisfy the paragraph C criteria. T. 12. The ALJ also stated
the following, the meaning of which is not clear to the Court:
The limitations identified in the "paragraph B" criteria are not a
residual functional capacity assessment but are used to rate the
severity of mental impairments at steps 2 and 3 of the sequential
evaluation process. The mental residual functional capacity
assessment used at steps 4 and 5 of the sequential evaluation
process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraph B of
the adult mental disorders listings in 12.00 of the Listing of
Impairments (SSR 96-8p). Therefore, the following residual
functional capacity assessment reflects the degree of limitation the
undersigned has found in the "paragraph B" mental function
analysis.
T. 12. At the third step of the analysis, the ALJ determined that Plaintiff's impairments did not
meet or equal the severity of any impairment listed in Appendix 1 of the Regulations.
Specifically, the ALJ found that there was no evidence that Plaintiff's severe impairment met or
medically equaled the criteria listed for "Irritable bowel disease," and relied on the opinion of
consulting examiner Dr. Paul Fulford who testified that Plaintiff's mental impairment did not meet
or equal a listing. T. 12. The ALJ then found that Plaintiff had the RFC to perform a full range of
medium work. Id. In so doing, the ALJ found that Plaintiff's medically determinable
impairments could reasonably be expected to cause the alleged symptoms, but found her
"statements concerning the intensity, persistence and limiting effects of these symptoms [we]re
not credible to the extent they [we]re inconsistent with the above residual functional capacity
assessment." T. 14. The ALJ considered medical records from treating physician Dr. Svensson
and consulting expert Dr. Fulford, but did not describe the weight given to such evidence. T. 1415. As to Dr. Kimball's opinions, the ALJ found the January 2011 functional capacity assessment
submitted by Dr. Kimball for the remand proceedings was not supported by substantial evidence
of record. Accordingly, the ALJ gave Dr. Kimball's October 2009 opinion
5

which had been

given controlling weight in the First Decision

greater weight, and found that Plaintiff was

precluded from heaving lifting and needed access to a bathroom. T. 14. In addition, the ALJ
gave Dr. Kimball's opinions regarding any psychological limitations little weight, as those
opinions were unsubstantiated and outside of her expertise as a gastroenterologist. T. 15. At step
four, the ALJ concluded that Plaintiff was unable to perform any past relevant work. T. 15-16.
At step five, relying on the medical-vocational guidelines set forth in the Regulations, 20 C.F.R.
Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff had the RFC to perform jobs existing in
significant numbers in the national economy. T. 16. Consistent with the Appeals Council's
directions set forth in the Remand Order, the ALJ relied upon vocational expert testimony in
response to hypotheticals, and found that testimony to be consistent with the information
contained in the Dictionary of Occupational Titles. Therefore, the ALJ concluded that Plaintiff
was not under a disability as defined by the Social Security Act. T. 17. On September 21, 2011,
the Appeals Council denied Plaintiff's request for review of the Second Decision, T. 27-31,
thereby making the ALJ's Second Decision the final decision of the Commissioner of Social
Security.
Plaintiff was 49 years old at the time of the ALJ's Second Decision, with high school
education and past work experience as a Title Examiner. T. 16. Plaintiff alleges disability as a
result of Crohn's Disease and depressive disorder. T. 143, 293. Since Plaintiff's arguments are
limited to legal error and Defendant does not object to Plaintiff's recitation of the facts, that
recitation is adopted herein. See Dkt. No. 13-1 at 3-7.
III. DISCUSSION
A.

Legal Standards

6

For purposes of DIB, a person is disabled when he is unable "to engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for
evaluating disability claims:
"In essence, if the Commissioner determines (1) that the claimant is
not working, (2) that he has a 'severe impairment,' (3) that the
impairment is not one [listed in Appendix 1 of the regulations] that
conclusively requires a determination of disability, and (4) that the
claimant is not capable of continuing in his prior type of work, the
Commissioner must find him disabled if (5) there is not another type
of work the claimant can do." The claimant bears the burden of proof
on the first four steps, while the Social Security Administration bears
the burden on the last step.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002)).
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether a plaintiff 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 Court
must examine the Administrative Transcript to ascertain whether the correct legal standards were
applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial
evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971).
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
7

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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
B.

Analysis
In seeking federal judicial review of the Commissioner's decision, Plaintiff principally

argues that the ALJ made errors of law by failing to comply with the Remand Order and
applicable Regulations. Specifically, Plaintiff argues that: (1) the ALJ failed to vacate the First
Decision; (2) the ALJ failed to properly question the vocational expert and consider Plaintiff's
non-exertional impairments; (3) the ALJ improperly assessed Plaintiff's subjective complaints and
credibility; and (4) the ALJ did not correctly apply the treating physician rule. Plaintiff's
arguments are not entirely clear and appear, in some instances, to be interrelated. The Court will
therefore address Plaintiff's arguments in the aggregate.
As to Plaintiff's first point, that the ALJ failed to vacate the First Decision, it is not clear to
the Court what error is alleged by Plaintiff. See Dkt. No. 13-1 at 9-10. Plaintiff identifies a
number of statements made by the ALJ at the second hearing, but does not identify how those
statements ultimately resulted in an erroneous application of the law in the Second Decision. The
issue this Court must address is whether the ALJ applied the correct legal standards, and whether
the decision is supported by substantial evidence. Plaintiff has not presented a compelling
argument as to why any of the statements made by the at the second hearing are relevant to the
task before the Court.
8

Plaintiff next asserts that the ALJ failed to properly question the vocational expert during
the second hearing, as required under the Remand Order. Specifically, Plaintiff argues that "the
ALJ fail[ed] to present the vocational expert with hypothetical questions[.]" Dkt. No. 13-1 at 10.
This argument is belied by the transcript of the Second Hearing, which reflects that did pose
hypothetical questions to the vocational expert:
Q. Okay, then, further considering the limitations ascribed to her
by Dr. Fulford, which make up her residual functional capacity and
her age which is, I believe she is -A. 49.
Q. -- 49, yes. And considering her education with a high school
diploma -A. Right.
Q. -- and further considering her past work history -A. Right.
Q. -- is there any other work that any such individual can do?
A. Yes, medium, unskilled; light, unskilled; and sedentary,
unskilled. And one example for each?
Q. Yeah, medium, light and -A. And sedentary, unskilled work.
T. 134-35. The vocational expert went on to testify regarding examples of specific jobs in each of
these categories, as well as numbers of jobs in the national economy and Hudson Valley region.
T. 135-38. Plaintiff also argues that the ALJ did not properly utilize the vocational expert by
failing to account for the vocational expert's responses to hypothetical questions posed by
Plaintiff's counsel, which considered Plaintiff's non-exertional limitations. Since this argument is
related to other issues raised by Plaintiff it is discussed in further detail below.
Plaintiff also asserts that the ALJ improperly evaluated her credibility and subjective
complaints regarding the symptoms associated with her impairments. The Regulations set out a
two-step process for assessing a claimant's statements about pain and other limitations:
At the first step, the ALJ must decide whether the claimant suffers
from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged. . . . If the claimant does
9

suffer from such an impairment, at the second step, the ALJ must
consider the extent to which the claimant's symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence of record. The ALJ must consider
statements the claimant or others make about his impairments, his
restrictions, his daily activities, his efforts to work, or any other
relevant statements he makes to medical sources during the course
of examination or treatment, or to the agency during interviews, on
applications, in letters, and in testimony in its administrative
proceedings.
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (quotations and citations omitted).
If a plaintiff's testimony concerning the intensity, persistence or functional limitations
associated with his impairments is not fully supported by clinical evidence, the ALJ must
consider additional factors in order to assess that testimony, including: (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. 20 C.F.R. §§
416.929(c)(3)(i)-(vi). The issue is not whether the clinical and objective findings are consistent
with an inability to perform all substantial activity, but whether plaintiff's statements about the
intensity, persistence, or functionally limiting effects of his symptoms are consistent with the
objective medical and other evidence. See SSR 96-7p, Policy Interpretation Ruling Titles II and
XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's
Statements, 1996 WL 374186, *2 (Soc. Sec. Admin. Jul. 2, 1996). One strong indication of
credibility of an individual's statements is their consistency, both internally and with other
information in the record. Id. at *5.
"After considering plaintiff's subjective testimony, the objective medical evidence, and
any other factors deemed relevant, the ALJ may accept or reject claimant's subjective testimony."
Saxon v. Astrue, 781 F. Supp. 2d 92, 105 (N.D.N.Y. 2011) (citing, inter alia, 20 C.F.R. §§
10

404.1529(c)(4), 416.929(c)(4)). An ALJ rejecting subjective testimony "'must do so explicitly
and with sufficient specificity to enable the Court to decide whether there are legitimate reasons
for the ALJ's disbelief and whether his decision is supported by substantial evidence."' Melchior
v. Apfel, 15 F. Supp. 2d 215, 219 (N.D.N.Y. 1998) (quoting Brandon v. Bowen, 666 F. Supp. 604,
608 (S.D.N.Y. 1987)). The Commissioner may discount a plaintiff's testimony to the extent that
it is inconsistent with medical evidence, the lack of medical treatment, and her own activities
during the relevant period. See Howe-Andrews v. Astrue, No. CV-05-4539, 2007 WL
1839891,*10 (E.D.N.Y. June 27, 2007). With regard to the sufficiency of credibility
determinations, the Commissioner has stated that
It is not sufficient for the adjudicator to make a single, conclusory
statement that "the individual's allegations have been considered" or
that "the allegations are (or are not) credible." It is also not enough
for the adjudicator simply to recite the factors that are described in
the regulations for evaluating symptoms. The determination or
decision must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight.
SSR 96-7p, 1996 WL 374186, at *2.
In this case, Plaintiff takes issue with the ALJ's use of the following language in his RFC
determination: "[Plaintiff's] statements concerning the intensity, persistence and limiting effects
of these symptoms [we]re not credible to the extent they [we]re inconsistent with the above
residual functional capacity assessment." T. 14. Several courts in the Second Circuit have
criticized the boilerplate language used by the ALJ on the basis that it essentially reverses the
standard. See e.g., Kunkel v. Comm'r of Soc. Sec., No. 12-CV-6478, 2013 WL 4495008, *20
(W.D.N.Y. Aug. 20, 2013) ("it is not sufficient for an ALJ to merely state that he finds the
claimant incredible to the extent that her complaints are inconsistent with is RFC determination");
11

Cruz v. Colvin, No. 12 Civ. 7346, 2013 WL 3333040, *16 (S.D.N.Y. July 2, 2013) (Peck, M.J.).
As one court has noted, "[n]either the Social Security regulations nor this Circuit's caselaw
support the idea that an ALJ may discredit a claimaint's subjective complaints on the basis of the
ALJ's own finding of the claimaint's RFC." Cruz, 2013 WL 3333040, at *16 (citations omitted).
The Seventh Circuit has consistently derided such language as "meaningless boilerplate." Pierce
v. Colvin, --- F.3d ----, 2014 WL 104158, *3 (7th Cir. Jan. 13, 2014); see also Lott v. Colvin, --Fed. Appx. ----, 2013 WL 5630633, *4 (7th Cir. Oct. 16, 2013) ("We have repeatedly criticized
this exact boilerplate (because it asks ALJs to determine a claimant's symptoms before addressing
credibility, instead of the other way around)"). "[T]his boilerplate statement 'gets things
backwards' because 'the passage implies that ability to work is determined first and is then used to
determine the claimant's credibility.'" Torres v. Comm'r of Soc. Sec., No. 13-CV-330, 2014 WL
69869, *14 (E.D.N.Y. Jan. 09, 2014) (quoting Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir.
2012)). "'The requirements of 20 C.F.R. § 404.1529(c)(4) provide that the ALJ must make a
credibility assessment before making a residual functional capacity assessment, because the
credibility assessment is used to determine Plaintiff's limitations and residual functional
capacity.'" Id. (quoting Faherty v. Astrue, No. 11-CV-2476, 2013 WL 1290953,*16 (E.D.N.Y.
Mar. 28, 2013)). However, this erroneous boilerplate language does not merit remand "if the ALJ
offers specific reasons to disbelieve the claimaint's testimony." Lott, 2013 WL 5630633, at *4
(citations omitted); see also Pierce, 2014 WL 104158, at *3 ("In this case, though, the ALJ
followed the boilerplate conclusion with a detailed explanation of the evidence and his reasoning
about credibility, so the boilerplate phrases are not the problem."). Courts in the Second Circuit
have adopted the Seventh Circuit's reasoning on this issue. See Garcia v. Colvin, No. 12-CV2140, 2014 WL 119433, *10 (E.D.N.Y. Jan. 10, 2014) (collecting cases).
12

Having reviewed the Administrative Transcript in its entirety, the Court finds that the
ALJ's use of the contested boilerplate does not, in and of itself, warrant remand here. This Court
agrees that the use of such boilerplate is conclusory and unhelpful. "On the other hand, reviewing
courts do not demand perfect decisions, and 'while this sort of boilerplate is inadequate, by itself,
to support a credibility finding, its use, does not make a credibility determination invalid.'"
Crofoot v. Comm'r of Soc. Sec., No. 1:12-cv-521, 2013 WL 5493550, *11 (N.D.N.Y.
Sept. 30, 2013) (quoting Adams v. Astrue, No. 10C7849, 2012 WL 3065299, *9 (N.D. Ill. July 20,
2012)).
ALJ Lebron's decision demonstrates that he considered the objective factors identified in
the Regulations, engaged in the two-step process, and articulated specific reasons for finding
Plaintiff's subjective complaints not fully credible, all as required by circuit law. Thus, there is no
obvious structural legal error in ALJ Lebron's approach to assessing the credibility of Plaintiff's
subjective testimony regarding persistence, intensity, and limiting effects of her symptoms. This
point of error thus collapses into a disagreement with the evidentiary bases for ALJ Lebron's
finding that Plaintiff's subjective testimony was not credible. Crofoot, 2013 WL 5493550, at *11.
Here, the ALJ noted that "[e]xcept for some sporadic flare-ups, [t]here is no indication in
the treatment notes that the claimant's condition has changed significantly since her onset date;
rather a longitudinal review of the treating records shows that the claimant's disease has been
under good control with current medication regimen since at least 2005[.]" T. 14. ALJ Lebron
also observed that Plaintiff's "level of treatment is inconsistent with alleged severity of pain and
other functional limitations, and suggests a greater [RFC] than alleged." T. 14. Taken as a
whole, the record supports the ALJ's determination that Plaintiff was not entirely credible. The
Court finds that the ALJ employed the proper legal standards in assessing the credibility of
13

Plaintiff's complaints and adequately specified the reasons for discrediting Plaintiff's statements.
Torres, 2014 WL 69869, *14 ("In the instant case, the ALJ offered reasons for discrediting
plaintiff's testimony that were grounded in objective medical evidence. Accordingly, the Court
does not discern reversible error in the legal standard by which the ALJ assessed plaintiff's
credibility."). As a result, the Court finds no basis to reverse the Commissioner's decision
because of an error in assessing Plaintiff's credibility.
Nevertheless, Plaintiff's argument that the ALJ's failure to evaluate Plaintiff's nonexertional limitations in the RFC analysis does warrant separate examination by the Court. This
argument relates to Plaintiffs final assertion, that the ALJ failed to give proper weight to Dr.
Kimball's opinion, as well as Plaintiff's contention that the ALJ erred by not considering
Plaintiff's non-exertional limitations at step five of the sequential process.
Under the Regulations, a treating physician's opinion is entitled to "controlling weight"
when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. §
404.1527(c)(2); see also Rosa v. Callhan, 168 F.3d 72, 78-79 (2d Cir. 1999); Schisler v. Sullivan,
3 F.3d 563, 567 (2d Cir. 1993). An ALJ may refuse to consider the treating physician's opinion
only if he is able to set forth good reason for doing so. 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. Otts v. Comm'r of Soc. Sec., 249 Fed. Appx. 887, 889 (2d Cir. 2007) (an ALJ may
reject such an opinion of a treating physician "upon the identification of good reasons, such as
substantial contradictory evidence in the record").
The opinion of a treating physician is not afforded controlling weight where the treating
physician's opinion contradicts other substantial evidence in the record, such as the opinions of
14

other medical experts. Williams v. Comm'r of Soc. Sec., 236 Fed. Appx. 641, 643-44 (2d Cir.
2007); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing 20 C.F.R. §
404.1527(d)(2)). "While the final responsibility for deciding issues relating to disability is
reserved to the Commissioner, the ALJ must still give controlling weight to a treating physician's
opinion on the nature and severity of a plaintiff's impairment when the opinion is not inconsistent
with substantial evidence." See Martin v. Astrue, 337 Fed. Appx. 87, 89 (2d Cir. 2009).
When an ALJ refuses to assign a treating physician's opinion controlling weight, he must
consider a number of factors to determine the appropriate weight to assign, including: (i) the
frequency of the examination and the length, nature and extent of the treatment relationship; (ii)
the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion
with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors
brought to the Social Security Administration's attention that tend to support or contradict the
opinion. See 20 C.F.R. § 404.1527(c); Shaw, 221 F.3d at 134. "Failure to provide 'good reasons'
for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citation omitted).
Here, the ALJ gave controlling weight to Dr. Kimball's opinion in the First Decision. On
remand, the ALJ stated in the Second Decision that he was "not persuaded by Dr. Kimball's
January 2011 report, wherein she (for the first time) assessed physical limitations that would
preclude a full range of sedentary work (Exhibit 13F), as this opinion is not supported by her own
treatment notes, her earlier opinion, or by the other substantial evidence of record (see Exhibits
4F, 9F and 12F)." T. 14. As such, the ALJ gaive Dr. Kimball's earlier opinions "greater weight,"
including the opinion given controlling weight in the First Decision, and found "that the claimant
is precluded from heavy lifting and needs access to a bathroom." T. 14.
15

Having reviewed the Second Decision and the Administrative Transcript, the Court finds
that ALJ Lebron did not err in refusing to give controlling weight to all of Dr. Kimball's opinions.
As explained by the ALJ, Dr. Kimball's January 2011 report opined on issues which she had not
previously addressed, rendered opinions which were inconsistent with her own treatment notes,
her earlier opinions, and the other evidence of record, and spoke to issues beyond her specialty of
gastroenterology. T. 14-15. The Court notes that the ALJ did give "greater weight" to Dr.
Kimball's October 2009 opinion, which was given "controlling weight" in the First Decision.
Problematically, however, the ALJ failed to address the non-exertional limitations set forth in Dr.
Kimball's October 2009 report

that Plaintiff would require up to two unscheduled breaks per

hour and that there would be constant interference with attention and concentration. T. 526-27.
Although the ALJ found that Plaintiff was precluded from heavy lifting and needed access to a
bathroom, he failed to specifically consider the non-exertional limitations identified by Dr.
Kimball. Importantly, counsel for Plaintiff asked the vocational expert who testified at the second
hearing what effect these non-exertional impairments, individually, would have on Plaintiff's
ability to perform her past work or transition into available jobs in the national and local
economy.
Q. Mr. Manzi, when you took into consideration the limitations set
out in the hypothetical that there were "no physical limitations," did
you interpret that as simply no exertional limitations or did you
consider non-exertional limitations?
A. Well, no physical limitations, I would just consider there were
no exertional limitations in terms of sedentary, medium or light. I
didn't assume that there were any other limitations, either.
Q. Okay. I'd like you to assume, for purposes of this hypothetical,
that there are non-exertional limitations -A. Okay.
Q. -- such that this individual has constant interference with
attention and concentration.
A. Constant interference with attention and concentration. I can
answer it based just on that.
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Q. Okay. Based on just that, what would your answer to that
hypothetical be?
A. No to past [relevant] work and no to any other work.
Q. Now substituting that limitation for a limitation that would
require one to take up to two unscheduled breaks per hour.
A. Okay. How long?
Q. At least 10 to 20 minutes.
A. Okay. I can answer that, too. No to past relevant work and no to
any other work.
T. 138-39.
At the fifth step of the sequential process, the ALJ must determine whether the claimant
can make "an adjustment to other work." 20 C.F.R. § 404.1520(a)(4)(v). If the claimant can
make such an adjustment, he is "not disabled"; if he cannot, he is "disabled." Id. In determining
whether an adjustment can be made, the ALJ must consider the claimant's exertional and
nonexertional limitations (as defined by his RFC), as well as his age, education, and work history.
Id. § 404.1520(g).
If an ALJ determines that a claimant cannot perform past relevant work, he turns to the
Medical-Vocational Guidelines ("Grids") to determine whether the claimant can perform other
jobs that exist in the national economy based on the claimant's RFC, age, education and
experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2. In an "ordinary case," in which the claimant
has only an exertional limitation,1 the ALJ may meet this burden by applying the Grids. Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); see also SSR 83-11, Titles II and XVI: Capability To
Do Other Work

The Exertionally Based Medical-Vocational Rules Met, 1983 WL 31252, *1

(Soc. Sec. Admin. 1983) (use of Grids to direct conclusion of "disabled" or "not disabled"
allowed only when criteria of a rule in the Grids are "exactly met"). When a claimant has both

"Exertional limitations" are "limitations and restrictions imposed by [a claimant's]
impairment(s) and related symptoms" that affect her "ability to meet the strength demands of jobs
(sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b).
1

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exertional and nonexertional limitations2, the ALJ, in certain situations, cannot satisfy this burden
through use of the Grids alone. Bapp, 802 F.2d at 605-07. If the claimant's nonexertional
limitation "significantly diminish[es]" his work capacity "beyond that caused by his exertional
impairment," the ALJ instead must rely on additional vocational resources, such as expert
testimony. Id. at 605-06 (noting that the diminishment must be more than negligible).
A hypothetical question that does not present the full extent of a
claimant's impairments cannot provide a sound basis for vocational
expert testimony. If a hypothetical question does not include all of
a claimant's impairments, limitations and restrictions, or is
otherwise inadequate, a vocational expert's response cannot
constitute substantial evidence to support a conclusion of no
disability. The proper use of vocational testimony presupposes both
an accurate assessment of the claimant's physical and vocational
capabilities, and a consistent use of that profile by the vocational
expert in determining which jobs the claimant may still perform.
Pardee v. Astrue, 631 F. Supp. 2d 200, 211 (N.D.N.Y. 2009) (alternations, citations, and
quotations omitted).
In the present matter, the ALJ committed error warranting remand by failing to consider
the full extent of Plaintiff's non-exertional limitations, as set forth in the opinion of Dr. Kimball
that the ALJ afforded "greater weight," in his RFC determination. See Howard v. Astrue, No.
5:11-CV-01397, 2013 WL 1294314, *10 (N.D.N.Y. Jan. 22, 2013) (citing 20 C.F.R. §
404.1569a). This error further manifested as further error at step five, when the ALJ posed
incomplete hypotheticals to the vocational expert that did not account for Plaintiff's nonexertional limitations. See Wheeler v. Comm'r of Soc. Sec., No. 11-CV-965A, 2013 WL 245778,

"Nonexertional limitations" include, inter alia, most mental impairments, such as
depression, anxiety, inability to concentrate, and difficulty seeing or hearing. 20 C.F.R. §
404.1569a(c)(1); SSR 85-15, Titles II and XVI: Capability To Do Other Work The MedicalVocational Rules as a Framework for Evaluating Solely Nonexertional Impairments, 1985 WL
56857, *2 (Soc. Sec. Admin. 1985).
2

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*12 (W.D.N.Y. June 6, 2013). This error could have been avoided however, had the ALJ
considered and addressed the hypothetical posed by Plaintiff's attorney which did account for
Plaintiff's non-exertional limitations. Unfortunately, the ALJ did not, and such error warrants
remand for further proceedings.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for judgment on the pleadings is GRANTED; and the
Court further
ORDERS that Defendant's motion for judgment on the pleadings is DENIED; and the
Court further
ORDERS that the Commissioner’s decision denying disability benefits is REVERSED
and this matter is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C.
§ 405(g),3 for further proceedings; and the Court further
ORDERS that the Clerk of the Court shall enter judgment and close this case; and the
Court further

Sentence four of § 405(g) provides that "[t]he court shall have power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42
U.S.C. § 405(g).
3

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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: May 13, 2014
Albany, New York

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