Evans v. Colvin

Filing 17

MEMORANDUM-DECISION AND ORDER: It is ORDERED that the Commissioner's decision denying disability benefits is AFFIRMED. Signed by Magistrate Judge Randolph F. Treece on 8/10/2015. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KATHERINE EVANS,
Plaintiff,
-v-

Civ. No. 8:13-CV-0447
(RFT)

CAROLYN W. COLVIN, Commissioner of Social
Security,
Defendant.

APPEARANCES:

OF COUNSEL:

OFFICE OF MARK A. SCHNEIDER
Attorney for Plaintiff
57 Court Street
Plattsburgh, New York 12901

MARK A. SCHNEIDER, ESQ.

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

ROBERT R. SCHRIVER, ESQ.

RANDOLPH F. TREECE
United States Magistrate Judge
MEMORANDUM-DECISION and ORDER1
In this action, Plaintiff Katharine Evans moves, pursuant to 42 U.S.C. § 405(g), for review of
a decision by the Commissioner of Social Security denying her applications for Period of Disability
(“POD”) and Disability Insurance Benefits (“DIB”).2 Based upon the following discussion, the

1

On March 31, 2015, the parties consented, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure
73, to have this Court exercise full jurisdiction over this matter. Dkt. No. 16.
2

This case has proceeded in accordance with General Order 18, which sets forth the procedures to be followed
when appealing a denial of Social Security benefits. Both parties have filed Briefs, though oral argument was not heard.
Dkt. Nos. 11 & 14.

Commissioner’s decision denying Social Security benefits is affirmed.
I. BACKGROUND
The Court adopts the facts set forth in Plaintiff’s Brief under the heading “FACTS,” with the
exception of any legal arguments contained therein. Dkt. No. 11, Pl.’s Br., at pp. 1–15; Dkt. No. 14,
Def.’s Br., at p. 2 (adopting Plaintiff’s statement of the case and facts).
Evans, born on June 10, 1975, filed an application for POD and DIB on January 25, 2010,
claiming an inability to work as of November 1, 2008, due to back injury, depression, osteopenia,
chronic fatigue syndrome, attention deficit hyperactivity disorder, and migraines. Dkt. No. 7, Admin.
Transcript [hereinafter “Tr.”] at pp. 82, 123–30, 133, & 151. Evans’s back injury began on March 16,
2008, when she fell off a horse. Id. at p. 221 & 229. She has five degrees and has past employment
as a cytotechnologist.3 Id. at pp. 152–53.
The disability applications were denied on initial review. Id. at pp. 83–86. On February 9,
2011, a Hearing was held before Administrative Law Judge (“ALJ”) Arthur Patane wherein testimony
was procured from Evans who was accompanied by counsel. Id. at pp. 47–81. On June 17, 2011, ALJ
Patane issued an unfavorable decision finding that Evans was not disabled. Id. at pp. 28–46. On April
18, 2013, the Appeals Council concluded that there was no basis under the Social Security Regulations
to grant Plaintiff’s request for review, thus rendering the ALJ’s decision the final determination of the
Commissioner. Id. at pp. 1–6. Exhausting all of her options for review through the Social Security
Administration’s tribunals, Plaintiff now brings this appeal.

3

According to her application for benefits, amongst her degrees are a B.A. in Biology, B.S. in Arts and Sciences,
and she graduated from the Albany College of Pharmacy Cytology program in 2004. Dkt. No. 7, Admin. Transcript
[hereinafter “Tr.”] at p. 152. She was also employed by the Vermont Air National Guard as emergency management for
seven years. Id. at p. 153.

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II. DISCUSSION
A. Standard of Review
Under 42 U.S.C. § 405(g), the proper standard of review for this Court is not to employ a de
novo review, but rather to discern whether substantial evidence supports the Commissioner’s findings
and that the correct legal standards have been applied. See Rivera v. Sullivan, 923 F.2d 964, 967 (2d
Cir. 1991); Urtz v. Callahan, 965 F. Supp. 324, 325–26 (N.D.N.Y. 1997) (citing, inter alia, Johnson
v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Succinctly defined, substantial evidence is “more than
a mere scintilla” of evidence scattered throughout the administrative record; rather, it is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co.
of New York v. N.L.R.B., 305 U.S. 197, 229 (1938); see also Williams ex. rel. Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). “To determine on appeal whether an [Administrative Law Judge’s]
findings are supported by substantial evidence, a reviewing court considers the whole record,
examining the evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams ex. rel. Williams v. Bowen, 859 F.2d at 258.
The Administrative Law Judge (“ALJ”) must set forth the crucial factors supporting the decision
with sufficient specificity. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ’s
findings are supported by substantial evidence, the court may not interject its interpretation of the
administrative record. Williams ex rel. Williams v. Bowen, 859 F.2d at 258; 42 U.S.C. § 405(g).
However, where the weight of the evidence does not meet the requirement for substantial evidence or
a reasonable basis for doubt exists as to whether correct legal principles were applied, the ALJ’s
decision may not be affirmed. Johnson v. Bowen, 817 F.2d at 986.

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B. Determination of Disability
To be considered disabled within the meaning of the Social Security Act, a plaintiff must
establish an “inability to engage in any 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). Furthermore, the claimant’s physical or mental impairments must be of such severity
as to prevent engagement in any kind of substantial gainful work which exists in the national economy.
Id. at § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner follows a five-step analysis
set forth in the Social Security Administration Regulations. 20 C.F.R. § 404.1520. At Step One, the
Commissioner “considers whether the claimant is currently engaged in gainful activity.” Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). If the claimant is engaged in substantial gainful activity,
he or she is not disabled and the inquiry ends. 20 C.F.R. § 404.1520(b). If the claimant is not engaged
in substantial gainful activity, the Commissioner proceeds to Step Two and assesses whether the
claimant suffers from a severe impairment that significantly limits his or her physical or mental ability
to do basic work activities. Id. at § 404.1520(c). If the claimant suffers from a severe impairment, the
Commissioner considers at Step Three whether such impairment(s) meets or equals an impairment
listed in Appendix 1, in Part 404, Subpart P of the Regulations. Id. at § 404.1520(d). The
Commissioner makes this assessment without considering vocational factors such as age, education,
and work experience. Berry v. Schweiker, 675 F.2d at 467. Where the claimant has such an impairment
the inquiry ceases as he or she is presumed to be disabled and unable to perform substantial gainful
activity. Id. If the claimant’s impairment(s) does not meet or equal the listed impairments, the

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Commissioner proceeds to Step Four and considers whether the claimant has the residual functional
capacity (“RFC”)4 to perform his or her past relevant work despite the existence of severe impairments.
20 C.F.R. § 404.1520(e). If the claimant cannot perform his or her past work, then at Step Five, the
Commissioner considers whether the claimant can perform any other work available in the national
economy. Berry v. Schweiker, 675 F.2d at 467; 20 C.F.R. § 404.1520(f).
Initially, the burden of proof lies with the claimant to show that his or her impairment(s)
prevents a return to previous employment (Steps One through Four). Berry v. Schweiker, 675 F.2d at
467. If the claimant meets that burden, the burden then shifts to the Commissioner at Step Five to
establish, with specific reference to medical evidence, that the claimant’s physical and/or mental
impairment(s) are not of such severity as to prevent him or her from performing work that is available
within the national economy. Id.; 42 U.S.C. § 423(d)(2)(A); see also White v. Sec’y of Health and
Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). In making this showing at Step Five, the claimant’s
RFC must be considered along with other vocational factors such as age, education, past work
experience, and transferability of skills. 20 C.F.R. § 404.1520(f); see also New York v. Sullivan, 906
F.2d 910, 913 (2d Cir. 1990).
C. ALJ Patane’s Findings
As noted above, Evans was the only witness to testify at the Hearing. Tr. at pp. 47–81. In
addition to such testimony, the ALJ had Evans’s medical records consisting of treatment reports and
opinions from various treating and/or consulting examining physicians. Id. at pp. 219–635.
Initially, ALJ Patane noted that Evans met the insured status requirements of the Social Security

4

“Residual functional capacity” is defined by the Regulations as follows: “Your impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. Your
residual functional capacity is what you can still do despite your limitations.” 20 C.F.R. § 404.1545(a).

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Act through December 31, 2015. Tr. at p. 33. Using the five-step disability evaluation, ALJ Patane
found that: (1) Evans had not engaged in any substantial gainful activity since November 1, 2008, the
alleged onset disability date; (2) she has severe medically determinable impairments, namely lumbar
spine impairment and migraine headaches, but her other conditions, depression, osteopenia, chronic
fatigue syndrome, and attention deficit hyperactivity disorder, were not severe; (3) her severe
impairments do not meet nor medically equal any impairment listed in Appendix 1, Subpart P of Social
Security Regulation No. 4; (4) she retains the RFC to perform a full range of sedentary work, and could
therefore return to her prior work as a cytotechnologist; and, alternatively, (5) considering her age,
education, work experience, and RFC, and using the Medical-Vocational Guidelines, Evans could also
perform work available in the national economy and was therefore not disabled. Id. at pp. 33–41.
D. Plaintiff’s Contentions
Generally, Plaintiff contends that she is disabled by virtue of the combination of her broken
back, pain, migraine headaches, and mental illness and that the Commissioner rendered several errors
necessitating a remand for either calculation of benefits or consideration of further evidence. See
generally Pl.’s Br. More specifically, Evans claims that the Appeals Council erred when it refused to
consider new evidence submitted to it on appeal and that the ALJ erred when he (1) violated the
Treating Physician Rule by improperly evaluating the opinion of Physician’s Assistant (“PA”) Deborah
Thompson, (2) erroneously assessed Evans’s credibility, and (3) failed to obtain the testimony of a
vocational expert (“VE”). Defendant contends that the Appeals Council appropriately declined to
consider new evidence created and submitted after the date of the ALJ’s decision and that the
Commissioner’s decision denying benefits is supported by substantial evidence in the record. Dkt. No.
14.

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1. New Evidence
In her Brief, Plaintiff explains that certain evidence had been submitted to the Appeals Council
for review, but was rejected and not made part of the official record; Plaintiff attaches that evidence
to her Brief for the Court’s review. Dkt. No. 11-1. It is Plaintiff’s contention that this evidence,
constitutes a retrospective assessment of her medical conditions and therefore should have been
considered by the Appeals Council and made a part of the official record. In her view, the Appeals
Council’s failure to consider this evidence was an error that requires a remand to the Social Security
Administration for calculation of benefits or for “full consideration and analysis” of the new evidence.
Pl.’s Br. at pp. 20-21. Though it may be assumed, it is not entirely clear whether Plaintiff is
additionally asking this Court to expand the record presently before this Court to include these
documents; we will, however, proceed as if Plaintiff is making two parallel arguments regarding the
Appeals Council’s failure to consider the evidence and the Court’s consideration of this evidence.
42 U.S.C. § 405(g) provides in pertinent part that “[t]he court . . . may at any time order
additional evidence to be taken before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding . . . .” (Emphasis added); see also Lisa v. Sec’y of
Dep’t of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991); Tirado v. Bowen, 842 F.2d 595, 597
(2d Cir. 1998). In accordance with this provision, the Second Circuit requires the Plaintiff to show that
the proffered evidence is “(1) new and not merely cumulative of what is already in the record . . . (2)
material, that is, both relevant to the claimant’s condition during the time period for which benefits
were denied and probative . . . [and] (3) good cause [exists] for [claimant’s] failure to present the
evidence earlier.” Lisa v. Sec’y of Dep’t of Health and Human Servs., 940 F.2d at 43 (internal

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quotation marks and citations omitted). New evidence is considered “‘material’ if it is both (1) relevant
to the claimant’s condition during the time period for which benefits were denied and (2) probative.”
Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (quoting Tirado v. Bowen, 842 F.2d at 597)
(internal quotation marks omitted) (emphasis added). In addition, “[t]he concept of materiality requires
. . . a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide
claimant’s application differently.” Id. (quoting Tirado v. Bowen, 842 F.2d at 597) (alteration in
original).
Plaintiff attaches the following evidence to her Brief:
(1) Independent Medical Exam Report, dated November 25, 2011, from Nancy E. Binter, M.D.
FAANS CIME;
(2) Psychiatric Examination Report, dated December 13, 2011, from Daniela V. Gitlin, M.D.;
and
(3) Disability Rating Decision, with accompanying correspondence, dated July 2012, from the
Department of Veterans Affairs.
Dkt. No. 11-1.
First, the Court must address the relevant time period. Plaintiff incorrectly states that the end
date for the period in question is April 18, 2013, representing the date the Appeals Council denied
review. Pl.’s Br. at p. 18. As pointed out by the Commissioner, the Regulations expressly provide that
the “Appeals Council will consider . . . any new and material evidence submitted to it which relates to
the period on or before the date of the administrative law judge hearing decision.” 20 C.F.R. §
404.976(b) (emphasis added). The pertinent Regulation goes on to state that if a claimant “submit[s]
evidence which does not relate to the period on or before the date of the administrative law judge
hearing decision, the Appeals Council will return the additional evidence . . . with an explanation as
to why it did not accept the additional evidence[.]” Id. (emphasis added). Thus, if the evidence at issue
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does not relate to the time period of November 1, 2008, the alleged onset disability date, through June
17, 2011, the date of the ALJ decision, then the Appeals Council properly returned the material without
making it a part of the record.
The records proffered by Plaintiff are not treatment records from treating physicians, but rather,
are medical opinions rendered by examining consultants as part of an independent medical examination
related to claimant’s “lawsuit”5 and a Department of Veterans Affairs disability determination relative
to her service with the Vermont Air National Guard. Dkt. No. 11-1. While it is true that the examining
doctors reviewed Plaintiff’s medical records, it also appears that they reviewed records that post-dated
the ALJ’s decision. Thus, the opinions rendered by these doctors are not necessarily for the time period
at issue, but rather for the date when Plaintiff appeared before them. As such, this is not a situation,
as Plaintiff proposes, wherein later medical reports serve as retrospective diagnosis or comment on the
time period at issue. See Pl.’s Br. at p. 17 (citing various Second Circuit cases for the proposition that
a “retrospective medical assessment of a patient may be probative upon the period in question”).6
Therefore, we cannot agree with Plaintiff’s attorney that these opinions constitute a retrospective

5

As these additional records reveal, Plaintiff’s back injury began when she was thrown from a horse in March 2008.
Two of the examinations included in these records were Independent Medical Examinations (“IME”) performed at the
request of Plaintiff’s attorney, and there is reference to the fact that Plaintiff is also suing the stable for putting her on a horse
that was inappropriately saddled and not suitable for student riders. See Dkt. No. 11-1 at p. 666. It is unclear whether these
IMEs were conducted as a part of that lawsuit. Id. at pp. 648-71.
6
The Court also notes that the cases cited by Plaintiff deal with situations where records/tests that postdate the
ALJ’s decision resulted in a diagnosis that bolstered the disability claimant’s subjective symptoms. This is common in the
case of fibromyalgia where “[t]here are no objective tests which can conclusively confirm the disease; rather it is a process
of diagnosis by exclusion and testing of certain ‘focal tender points’ on the body for acute tenderness which is characteristic
in [fibromyalgia] patients.” Lisa v. Sec’y of Dep’t of Health and Human Servs., 940 F.2d 40, 44–45 (2d Cir. 1991).
Accordingly, “the credibility of the claimant’s testimony regarding [her] symptoms takes on substantially increased
significance in the ALJ’s evaluation of the evidence,” Coyle v. Apfel, 66 F. Supp. 2d 368, 376 (N.D.N.Y. 1999) (internal
quotation marks and citation omitted), and a diagnosis of fibromyalgia which post-dates an ALJ’s disability decision is
probative in that it serves to bolster the claimant’s subjective symptoms. This case does not present a situation wherein
Plaintiff’s medical conditions or subjective complaints proffered during the relevant time period were bolstered in any way
by the additional evidence which post-dates ALJ Patane’s decision.

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assessment of Plaintiff’s condition during the relevant time period, nor can we see any reason why
these one-time examining consulting doctor’s opinions would be entitled to any greater weight than
that afforded to the opinions already in the record which specifically pertain to the Plaintiff’s condition
during the relevant time period currently under consideration. Furthermore, we note that the
Department of Veterans Affairs Disability Rating Decision is not binding upon the SSA since a
determination of disability must be made pursuant to social security law, not the rules of another
governmental agency. 20 C.F.R. § 404.1504 (“A decision by . . . any other governmental agency about
whether [a claimant is] disabled . . . is based on its rules . . . . Therefore, a determination made by
another agency that [a claimant is] disabled . . . is not binding on [the SSA].”).
The Court acknowledges that the proffered evidence is new in the sense that it was created after
the close of the relevant period for which the Appeals Council had denied review, thus satisfying the
first prong of the Second Circuit’s test. Lisa v. Sec’y of Dep’t of Health and Human Servs., 940 F.2d
at 43. And while good cause may exist for failing to previously provide the Veterans Affairs Disability
Rating, since this was generated well after the ALJ’s decision, it is not clear what good cause Plaintiff
proffers for failing to provide the independent medical assessments from Drs. Binter and Gitlin.
Nevertheless, Plaintiff has not satisfied the second prong for any of these new records in that Plaintiff
fails to show how the proffered evidence is material to the Plaintiff’s condition during the period at
issue – November 1, 2008, the alleged onset disability date, through June 17, 2011, the date of the
ALJ’s decision.
Accordingly, to the extent Plaintiff seeks to expand the medical record, the Court declines such
invitation because there is no showing that such records are material to the relevant time period.
Similarly, we find no error committed by the Appeals Council in failing to expand the record to include

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any of this proffered evidence.7
2. RFC, Treating Physician Rule, and Evans’s Credibility
As noted above, the Commissioner assesses a claimant’s RFC as a basis for determining the
particular types of work the claimant may be able to do despite the existence of physical and/or mental
impairments. See 20 C.F.R. § 404.1545(a); 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(c). When
qualifying work in the national economy, the Regulations classify and define jobs according to their
physical exertion requirements as sedentary, light, medium, heavy, and very heavy. 20 C.F.R. §
404.1567. In determining RFC, the ALJ can consider a variety of factors including a treating
physician’s or examining physician’s observations of limitations, the plaintiff’s subjective allegations
of pain, physical and mental abilities, as well as the limiting effects of all impairments even those not
deemed severe. Id. at § 404.1545(a).
In this case, ALJ Patane determined, after considering the record, that Plaintiff had the RFC “to
perform the full range of sedentary work as defined in 20 C.F.R. 404.1567(a).”8 Tr. at p. 35. In
rendering this assessment, the ALJ considered the opinion evidence as well as symptoms alleged by
Plaintiff that could “reasonably be accepted as consistent with the objective medical evidence and other
evidence.” Id. at pp. 35-36.

7
To the extent Plaintiff asserts that the Appeals Council failed to review and consider the proffered evidence, we
note that in its decision, the Appeals Councils specified the medical evidence considered, which included the records
attached to Plaintiff’s Brief before this Court. Nevertheless, because the evidence related to a period outside the relevant
time period, the records were returned to Plaintiff and she was advised of her right to re-apply for benefits if she felt she
could establish disability after June 17, 2011. See Tr. at pp. 1-2.
8

The Social Security Regulations define sedentary work as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).

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With regard to the opinion evidence, the ALJ considered the medical reports/assessments
submitted by several examining and non-examining medical professionals, including: (1) Brett. T.
Hartman, Psy. D., Examining Psychiatric Consultant (Tr. at pp. 342–47); (2) L. Hoffman, Agency
Psychologist Review (Tr. at pp. 348–65); (3) Nader Wassef, M.D., Agency Orthopedic Examining
Consultant (Tr. at pp. 368–73; (4) M. Martinez, Agency Non-Examining Physical RFC (Tr. at pp.
438–43); (5) C. Wakeley, M.D., Agency Medical Evaluator (Tr. at pp. 444–45); and (6) Deborah
Thompson, P.A., Treating Physician Assistant (Tr. at pp. 620–34).
When assessing limitations posed by Plaintiff’s mental conditions, the ALJ gave significant
weight to Dr. Hartman’s assessment that Plaintiff’s mental impairments do not significantly limit her
ability to meet the basic mental demands of work. Tr. at p. 39. And, because it was supported by the
record, great weight was also accorded to PA Thompson’s assessment that Plaintiff’s symptoms were
well controlled by medication. Id. at p. 38. Lastly, significant weight was given to Dr. Hoffman’s
opinion to the extent it was supported by Dr. Hartman and PA Thompson. Id. at p. 39.
In terms of physical limitations, the ALJ gave significant weight to Dr. Wakely’s RFC
assessment because it is consistent with the record, however, after considering all the evidence and the
hearing testimony, the ALJ felt that Plaintiff had greater standing/walking limitations and lower lifting
restrictions than that attributed by Dr. Wakely. Id. at p. 38. Little weight was given to PA Thompson’s
opinion regarding physical limitations because it lacked support in the record and seemed to be
primarily reliant upon Plaintiff’s subjective complaints, which the ALJ determined were not credible
because such complaints were inconsistent with the medical record. Id. at pp. 38-39.
Plaintiff broadly challenges the ALJ’s overall assessment of the opinion evidence. But the
Court is confused as to what precisely is being disputed. It seems clear that Plaintiff objects to the

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manner in which PA Thompson’s assessment was handled by the ALJ, but there also seems to be a
continuation of the argument as it pertains to the assessments by Drs. Gellis, Hartman, and Wassef.
Yet the Plaintiff’s Brief lacks any truly developed argument. It is particularly confusing in light of the
fact that the ALJ gave significant weight to Dr. Hartman’s opinion, and when discussing whether
certain medical opinions were supported in the record, the ALJ specifically mentioned the examinations
performed by Drs. Gellis and Wassef and relied upon those findings.9 In light of the lack of clarity, the
Court will only address Plaintiff’s arguments regarding the ALJ’s assessment of PA Thompson’s
functionality assessment.
a. Treating Physician Rule
As noted above, the Plaintiff claims that the ALJ did not follow the Treating Physician Rule in
assessing the opinion evidence. The Regulations require an ALJ to give “controlling weight” to the
opinion of a treating physician on the issue of the nature and severity of a claimant’s impairment if that
opinion “is well supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the claimant’s] case record.” 20 C.F.R. §
404.1527(c)(2); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). The Treating Physician
Rule recognizes that a claimant’s treating sources, which in most cases are medical professionals, are
more apt to “provide a detailed, longitudinal picture of [the patient’s] medical impairment(s) and may
bring a unique perspective to the medical findings” as opposed to an evaluation of a one-time

9

Plaintiff’s Attorney’s complaint regarding the ALJ’s failure to give more weight to the opinion rendered by Dr.
Dr. Wassef is particularly perplexing to this Court in light of the countless times Attorney Schneider has, on behalf of other
clients, urged the Court to repudiate Dr. Wassef’s orthopedic opinion because of his curriculum vitae as a practicing
pediatrician. See, e.g., Bushey v. Colvin, Civ. No. 8:11-CV-0031 (N.D.N.Y.); Martin v. Astrue, Civ. No. 8:11-CV-1431
(N.D.N.Y.). Similarly, while Attorney Schneider advocates here that Dr. Hartman’s opinion should have been given more
weight, we note that in a prior case submitted to the undersigned, Mr. Schneider attempted to discredit Dr. Hartman by
providing the Court with a list of cases wherein Dr. Hartman’s assessment was deemed to be inconsistent with the record;
that argument was summarily rejected by the Court. Bushey v. Colvin, Civ. No. 8:11-CV-0031.

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nonexamining, non-treating physician. 20 C.F.R. § 404.1527(c)(2); see Schisler v. Sullivan, 3 F.3d
563, 568 (2d Cir. 1993).
If the treating physician’s opinion is not given controlling weight, the weight to be afforded to
the opinion is to be based on several factors, which include: (1) the length, nature and extent of the
treatment relationship, including the frequency of examination; (2) the evidence in support of the
treating physician's opinion; (3) the consistency of the medical opinion with the medical record as a
whole; (4) whether the treating physician is a specialist; and (5) any other relevant factors that tend to
support or contradict the treating physician’s opinion. 20 C.F.R. § 404.1527(c) (cited in Schaal v.
Apfel, 134 F.3d 496, 503 (2d Cir. 1998)).
Following the ALJ hearing, Plaintiff’s Attorney submitted several records, including Medical
Source Statements authored by PA Thompson.10 Tr. at pp. 620-34. Plaintiff asserts that controlling
weight should have been given to these medical opinions in light of the longstanding treatment
relationship PA Thompson established with Evans. We presume Plaintiff is challenging the fact that
the ALJ gave “little weight” to PA Thompson’s opinion in terms of Evans’s physical functioning. The
Court first notes that only acceptable medical sources, as listed in the Regulations, can provide medical
opinions to establish an impairment. 20 C.F.R. § 404.1513(a). A physician’s assistant is not listed as
an acceptable medical source; nevertheless, such opinion may be used “[i]n addition to evidence from
the acceptable medical sources . . . to show the severity of [a claimant’s] impairment(s)[.]” 20 C.F.R.
§ 404.1513(a) & (d)(1). Accordingly, the ALJ was under no obligation to afford controlling weight
to the P.A.’s opinions. That being said, the Court recognizes that there are instances wherein a
physician assistant’s opinions can be considered controlling, especially in the North Country, where
10
Counsel represented to ALJ Patane and the Social Security Administration that PA Thompson was a doctor. Tr.
at pp. 618-20 & 635.

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it has been recognized by the Second Circuit that there may be limited resources available to a patient
and seeing a physician assistant on a more routine basis may be the only viable option. See Kohler v.
Astrue, 546 F.3d 260, 268 (2d Cir. 2008) (noting that a nurse practitioners’s opinion should have been
given some consideration “particularly because [the nurse practitioner] was the only medical
professional available to [plaintiff] for long stretches of time in the very rural ‘North Country’ of New
York State”). For this reason, we find that the ALJ was correct to consider and weigh the opinions
rendered by PA Thompson to determine whether such were consistent with the record.
On March 10, 2011, PA Thompson completed a Medical Source Statement regarding Evans’s
ability to do physical work-related activities. Tr. at pp. 623-30. Therein, Thompson opined that,
without interruption Evans was limited to sitting/standing less than thirty minutes and limited to
walking less than forty-five minutes. Id. at p. 625. Thompson, however, did not specify how many
hours Evans could sustain any of those activities.11 When prompted to “[i]dentify the particular
medical or clinical findings” that would support her physical limitation assessment, PA Thompson
stated:
%
%
%
%

pain with palpation and motion in her lower back
xrays done April 2008 show L2 compression fracture with 40% loss of height
2/09 had a single level instrumented fusion at L1-2, which unfortunately did not
relieve her pain
had multiple imaging studies since (xray, CT, MRI) that show no hardware
failure

Id. at p. 625.
In assessing Evans’s limited use of her hands, PA Thompson opined that Evans could occasionally
reach with both hands, occasionally push/pull with her right hand, but never push/pull with her left

11

This particular assessment is supposed to represent how long Evans could perform particular task (standing,
sitting, walking) without interruption, and the assessor is supposed to provide how long throughout an eight-hour workday
the claimant could accomplish those tasks. For example, typically, a medical provider will indicate that a claimant can sit
for a maximum of thirty minutes at a time for six hours in an eight-hour workday.

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hand; Evans ability to handle, finger, and feel with both hands was unlimited. Id. at p. 626. PA
Thompson did not identify any medical or clinical findings to support these limitations. Id. With
regard to using her feet to operate foot controls, PA Thompson limited Evans to only doing this activity
occasionally based solely on her inability “to sit for any length of time.” Id. In terms of postural
activities, PA Thompson stated Evans could occasionally climb stairs and ramps, balance, and kneel,
but could never climb ladders or scaffolds, stoop, crouch, or crawl. Id. at p. 627. In support of these
medical assessments, Thompson simply stated that Evans “[h]as increased pain with
bending/movement.” Id.
Because Evans can only drive short distances due to pain, and because her headaches are
worsened by exposure to humidity, temperature change, and fumes, Thompson assessed that Evans
should only occasionally be exposed to such environmental conditions. Id. at p. 628. Thompson
further opined that Evans could not travel without a companion, could not walk a block at a reasonable
pace on rough or uneven surfaces, and could not use standard public transportation. Id. at p. 629.
Evans could, however, perform activities like shopping, ambulate without an assistive device, climb
a few steps at a reasonable pace using a single hand rail, prepare simple meals, feed herself, care for
her personal hygiene, and sort/handle/use paper files. Id. Again, no medical findings were reported
as support for these limitations.
Upon reviewing the ALJ’s decision and the record provided to the Court, we find that the ALJ
properly assessed the weight to be accorded to PA Thompson’s assessment, especially in light of the
absence of objective medical findings to support the limitations she attributed to Evans. As noted
above, Plaintiff’s medical conditions stem from injuries sustained when she was thrown from a horse
in March 2008. Tr. at pp. 219-20. Spinal-fusion surgery was performed on February 18, 2009. Id. at

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pp. 241-43.

In July 2009, Plaintiff was referred to physical therapy for “lumbar stretching,

strengthening, and overall conditioning.” Id. at p. 484. Although that referral was for a six-month
period, Plaintiff attended some physical therapy sessions in July, August, and September, with her last
session occurring on September 8, 2009. Id. at p. 481; see also id. at pp. 60-61. On October 5, 2009,
Dr. Gellis evaluated Plaintiff for pain management options. Id. at pp. 280-83. Dr. Gellis reviewed all
images taken of the lumbar spine from March through August 2009 and noted there was no evidence
of hardware failure, there was solid fusion, and no other specific abnormality. Id. at p. 281. Images
taken on November 10, 2009, similarly showed no evidence of nonunion and that the hardware was
intact. Id. at pp. 267-68. Dr. Gellis recommended that Evans pursue Mind-Body Medicine Clinic,
consider acupuncture for pain management, and to follow up with her surgeon for reevaluation. Id. at.
p. 282. On November 16, 2009, Plaintiff met with her surgeon, John Braun, M.D. She reported to him
that she had excellent early relief of her pain following the surgery, but the pain returned in the
summertime, especially after she had an accident while walking her large dog who pulled and twisted
her causing pain. Id. at p. 272. Plaintiff further explained that the pain she experienced was different
than her preoperative pain and that the preoperative pain had resolved. Id. Dr. Braun reviewed images
taken earlier that week of Plaintiff’s lumbar spine and noted “a very robust fusion. . . . [with] no
evidence of loosening of the instrumentation, no evidence of complication and no other issues noted
at this level.” Id. He speculated that there may have been a small fracture at the base of her spinous
process, which could explain some of the pain symptoms she had been experiencing in the last few
months. Dr. Braun felt that the fracture would heal well and recommended that she receive injections
from Dr. Gellis to alleviate the pain while the bone is healing. Id. The initial injection to the suspected
fractured area provided some relief, but it did not last; Plaintiff was instead prescribed a TENS unit.

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Id. at pp. 274 & 284. Plaintiff last treated with Dr. Gellis on January 29, 2010. Id. at pp. 274-84.
On April 5, 2010, Evans was seen by Air Force Physical Therapist Benjamin Hando. Id. at pp.
322-28. Upon physical examination of the thoracolumbar spine, PT Hando noted Evans had an average
flexion of eleven, no range of motion for extension, right rotation, and bilateral and lateral flexion, and
left rotation was an average four. Id. at p. 327. PT Hando also noted that Evans presented localized
tenderness with an abnormal gait, but had no muscle spasms. Id. at pp. 327-28. PT Hando further
noted that Evans exhibited six out of eight Waddell’s Signs,12 specifically, superficial tenderness, axial
loading, pain on simulated rotation, regional weakness, overreaction, and nonanatomic tenderness. Id.
at p. 328. Based on the testing conducted, PT Hando assessed a 70% disability. Id. at p. 327.
Upon examination seventeen days later by Dr. Wassef, SSA consulting orthopedic examiner,
Evans exhibited full range of motion, with the exception of her ability to flex and extend forward,
which was limited to 70°. Id. at pp. 370-71. Dr. Wassef observed a normal gait and station and noted
that Evans did not appear to be in acute distress. Id. She could walk on her heels and toes without
difficulty, used no assistive device, was able to rise from her chair without difficulty, and needed no
help changing for the exam or getting on or off the exam table. Id. Squatting, however, was
approximately one-third. Id. In examining the thoracic and lumbar spines, Dr. Wassef noted diffuse
tenderness in the area where the fusion surgery had been performed, but there was no spinal or
paraspinal tenderness and no muscle spasm. Id. at p. 371. Dr. Wassef assessed a fair prognosis. Id.
From February 2010 through December 2010, Plaintiff did not seek any treatment for her back.
Id. at pp. 63-64. In September 2010, an MRI of her lumbar spine showed “no gross degenerative disc

12

“Waddell’s signs are indications that a patient’s response to certain movements is inappropriate or unexpected,
such as yelling out in pain in response to a very light touch.” Germain v. Astrue, 2013 WL 587369, at *5 n.6 (N.D.N.Y.
Feb. 12, 2013) (citation omitted).

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change or new herniation. No malalignment or compression fractures are demonstrated.” Id. at pp.
470-71. On December 20, 2010, treating neurologist Joseph Arguelles, M.D., reviewed Evans’s
medical history noted that she had not had very aggressive back rehabilitation. Id. at p. 609. Upon
examination, Dr. Arguelles observed that Evans had no complaint of radicular pain, her station and gait
were “grossly normal,” motor strength and deep tendon reflexes were normal, sensation was grossly
intact, and she had moderate lumbar tenderness. Id. at pp. 610-11. Dr. Arguelles also reviewed the
lumbar MRI from September 2010 and noted a stable-appearing fusion at L-2, no evidence of neural
impingement at that level, and remaining segments appeared “quite healthy” with “no evidence of
significant disc degeneration [and] no neural compromise.” Id. at p. 611. On January 13, 2011, upon
reviewing flexion/extension films, Dr. Arguelles recommended an aggressive spine rehabilitation
program. Id. at pp. 612-13.
After reviewing the evidence, the Court finds that the ALJ applied the correct legal principles
when assessing the weight to be afforded to PA Thompson’s physical assessment and substantial
evidence supports his decision to give her functioning assessment little weight. Indeed, the objective
medical evidence, as outlined above, simply does not support the limitations put forth by PA
Thompson. Nor does she point to any evidence, beyond Evans’s subjective complaints of pain, to
support her functional limitations findings. While Plaintiff asserts that the ALJ should have recontacted
PA Thompson, it is not entirely clear to this Court why the ALJ had any obligation to do so. Where,
as here, there are no “obvious gaps” in the medical record, there is no onus on the ALJ to seek
additional information from a medical source. Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing
20 C.F.R. § 404.1512). Here, the medical record was complete, and so the ALJ was under no
obligation to recontact Ms. Thompson.

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Based upon our review of the ALJ’s decision, the medical record, and the parties’ respective
Briefs, we find no errors were committed by the ALJ in assessing Evans’s RFC, and for all the reasons
stated in the Defendant’s Brief, we find that the ALJ’s RFC assessment is indeed supported by
substantial evidence. See Def.’s Br. at pp. 8-13.
b. Plaintiff’s Credibility
Plaintiff asserts that the ALJ improperly assessed her credibility in terms of her subjective
complaints of pain. Under the Regulations, subjective pain will be considered in determining a claim
for disability to the extent in which “symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(a). Symptoms such as pain are
to be considered by the ALJ at all steps of the disability determination. 20 C.F.R. § 404.1529(a) & (d).
A claimant’s statements about the persistence, intensity, and limiting effects of these symptoms are
evaluated in the context of all objective medical evidence, which includes medical signs and laboratory
findings. Id. at § 404.1529(c)(4). Once medically objective evidence is submitted, the ALJ must
identify the severity of the pain and whether that pain will limit the claimant’s ability to work. Id. at
§ 404.1529(c). “It is well settled that ‘a claimant’s subjective evidence of pain is entitled to great
weight’ where . . . it is supported by objective medical evidence.” Simmons v. United States R.R. Ret.
Bd., 982 F.2d 49, 56 (2d Cir. 1992) (quoting Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)).
However, in a case where subjective symptoms are identified, “the ALJ has discretion to evaluate the
credibility of the claimant and to arrive at an independent judgment, in light of the medical findings
and other evidence, regarding the true extent of the pain alleged.” Brandon v. Bowen, 666 F. Supp.
604, 608 (S.D.N.Y 1987). Where the ALJ resolves to reject subjective testimony with regards to pain
and other symptoms, he or she “must do so explicitly and with sufficient specificity to enable the Court

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to decide whether there are legitimate reasons for the ALJ’s disbelief and whether his [or her]
determination is supported by substantial evidence.” Id. at 608 (citing, inter alia, Valente v. Sec’y of
Health and Human Servs., 733 F.2d 1037, 1045 (2d Cir. 1984)). In evaluating a claimant’s complaints
of pain, an ALJ must consider several factors set forth in the Regulations including:
(i)
(ii)

[The claimant’s] daily activities;
The location, duration, frequency, and intensity of [claimant’s] pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv)
The type, dosage, effectiveness, and side effects of any medication [claimant]
take[s] or ha[s] taken to alleviate [his or her] pain or other symptoms;
(v)
Treatment, other than medication, [claimant] receive[s] or ha[s] received for
relief of [his or her] pain or other symptoms;
(vi)
Any measures [claimant] use[s] or ha[s] used to relieve [his or her] pain or other
symptoms (e.g., lying flat on [his or her] back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning [claimant’s] functional limitations and restrictions due
to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3).
In his decision, the ALJ found that Evans’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the record of medical evidence.” Tr. at p. 36. Specifically, in terms of Plaintiff’s
back pain, the ALJ noted that the medical evidence suggested that Plaintiff’s surgery was a success and
“subsequent testing and medical imaging do not support the severity of the claimant’s allegations.”
Id. at p. 36. The ALJ pointed to other inconsistencies in the record, such as the restricted range of
motion Plaintiff exhibited to the VA examiner, which contrasted the full range of motion exhibited to
the SSA consultive examiner just seventeen days later. And the ALJ took note of the fact that the VA
examiner documented six of eight possible Waddell signs. Id. at pp. 37-38. Further credibility
questions arose when Plaintiff made inconsistent statements regarding her headaches wherein she
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reported in a statement to the SSA that she experiences headaches once or twice per week, up to five
to six times per month, yet, elsewhere in the medical records were statements made by Plaintiff to
various doctors indicating that her headaches typically occurred with her menses and usually only once
per month. Id. at p. 38 (citing Tr. at pp. 166, 319, 287, & 369).
The Court finds that the medical evidence supports the ALJ’s credibility finding as it does not,
on the whole, corroborate Plaintiff’s subjective symptomatology to the extent alleged. In light of the
objective medical evidence, consulting examinations, and course of treatment, further buttresses the
ALJ’s assessment of her credibility. And, because PA Thompson based her functional assessment
largely on Plaintiff’s subjective complaints of pain, the Court finds that the ALJ properly discredited
that assessment. For all these reasons, we find that the ALJ did not erroneously apply the legal
standards, and his findings on Plaintiff’s credibility are supported by substantial evidence.
3. Step Five
At Step Four, the ALJ determined that based upon her RFC, Evans could return to her past work
as a cytotechnologist. Tr. at p. 39. Alternatively, the ALJ proceeded to Step Five and, relying upon
the Medical-Vocational Guidelines (“the Grids”), he determined that Evans could perform other jobs
that exist in significant numbers in the national economy. Id. at p. 40. Plaintiff asserts that the ALJ’s
reliance on the Grids and failure to call a vocational expert was an error in light of her significant nonexertional limitations.
Ordinarily, if a claimant suffers solely from exertional impairments, the Commissioner meets
her burden at the fifth step by resorting to the Grids. Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir. 1999);
Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); 20 C.F.R. § 404.1569. The Grids place claimants
with severe exertional impairments who can no longer perform past relevant work into categories

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according to their RFC, age, education, and work experience (i.e., skilled or unskilled as well as
transferability of skills). 20 C.F.R. Pt. 404, Subpt. P, App. 2; see also Clark v. Barnhart, 2003 WL
221397777, at *4-5 (E.D.N.Y. Sept. 16, 2003). Based on these factors, the Grids are dispositive on
whether the claimant is disabled or not disabled and proper application thereto will obviate the need
for any vocational testing. Rosa v. Callahan, 163 F.3d at 82 (“For a claimant whose characteristics
match the criteria of a particular grid rule, the rule directs a conclusion as to whether he is disabled.”).
Exclusive use of the Grids, however, is “inappropriate where the guidelines fail to describe the
full extent of a claimant’s physical limitations,” i.e., a combination of exertional and non-exertional
limitations. 20 C.F.R. § 404.1569a(d). “[W]hen significant nonexertional impairments are present or
when exertional impairments do not fit squarely within grid categories, the testimony of a vocational
expert is required to support a finding of residual functional capacity for substantial gainful activity.”
Horbock v. Barnhart, 210 F. Supp. 2d 125, 127 (D. Conn. 2002) (citing Bapp v. Bowen, 802 F.2d at
605). “[T]he mere existence of a nonexertional impairment does not automatically require the
production of a vocational expert nor preclude reliance on the guidelines.” Bapp v. Bowen, 802 F.2d
at 603. Rather, only when a claimant’s nonexertional limitations “significantly limit the range of work
permitted by his exertional limitations” such significant diminishment renders sole reliance on the grids
is inappropriate. Id. at 605-06. “A claimant’s work capacity is ‘significantly diminished’ if there is
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.’” Id. at
606 (quoted in Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)).13

13

The Second Circuit arrived at this standard in reliance on sister circuit case law as well as the report
accompanying the promulgation of the grids. See Bapp v. Bowen, 802 F.2d at 605-06. The promulgation report made clear
that nonexertional limitations may have the effect of excluding certain jobs within a particular category, however, in some
(continued...)

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Exertional limitations are strength limitations, which include the ability to sit, stand, walk,
carry, push, and pull. 20 C.F.R. §§ 404.1569a(a)–(b) & 416.969a(a)–(b); see also Zorilla v. Chater,
915 F. Supp. 662, 667 n.3 (S.D.N.Y. 1996). Non-exertional limitations imposed by impairments affect
one’s ability to meet requirements of jobs, other than strength demands including, “difficulty
performing the manipulative or postural functions of some work such as reaching, handling, stooping,
climbing, crawling, or crouching.” 20 C.F.R. §§ 404.1569a(c)(1)(vi) & 416.969a(c)(1)(vi); see also
Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y.1997).
In the instant case, the ALJ found that Evans could perform the full range of sedentary work,
and considering her age, education, and work experience, a finding of “not disabled” was directed by
the Grids. Tr. at p. 40. This Court agrees with the Commissioner that because the RFC did not include
any non-exertional impairments, there was no error in the ALJ’s decision not to call a VE. Thus, we
find that the sole reliance on the Grids as an alternative finding of non-disability at Step Five was
appropriate.
III. CONCLUSION
To the extent not addressed specifically, the Court has considered all of Plaintiff’s arguments,
even those not fully developed. Based upon consideration of the Administrative Record and the
discussion above, we find that in assessing Evans’s disability application, the ALJ applied the correct
legals standards and his findings are supported by substantial evidence.
WHEREFORE, it is hereby
ORDERED, that the Commissioner’s decision denying disability benefits is AFFIRMED; and

13

(...continued)
cases, such exclusions are negligible in that a wide range of jobs exist within the functional level especially in light of the
fact that an individual “need not be able to perform each and every job in a given range of work.” Id. at 606 (quoting 43
FED. REG. 55,349-55,361).

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it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order
upon the parties to this action.
Date: August 10, 2015
Albany, New York

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