White v. Colvin
Filing
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MEMORANDUM-DECISION and ORDER: ORDERED, that Plaintiff's 14 Motion for Judgment on the Pleadings is DENIED; ORDERED, that Defendant's 15 Motion for Judgment on the Pleadings is GRANTED; ORDERED, that Defendant's decision denying Plaintiff disability benefits is AFFIRMED; ORDERED, that Plaintiff's 1 Complaint is DISMISSED. Signed by Magistrate Judge Daniel J. Stewart on 5/10/2018. (mgh)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAMES EDWARD WHITE,
Plaintiff,
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Civ. No. 8:17-CV-0109
(DJS)
COMM’R OF SOC. SEC.,
Defendant.
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OF COUNSEL:
SCHNEIDER & PALCSIK
Counsel for Plaintiff
57 Court Street
Plattsburgh, NY 12901
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APPEARANCES:
MARK A. SCHNEIDER, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GENERAL COUNSEL
- REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
JAMES DESIR, ESQ.
KRISTINA D. COHN, ESQ.
DANIEL J. STEWART
United States Magistrate Judge
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MEMORANDUM-DECISION and ORDER1
Currently before the Court, in this Social Security action filed by James Edward White
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s Motion for
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Upon Plaintiff’s consent, the United States’ general consent, and in accordance with this District’s General
Order 18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73. See Dkt. No. 5 & General Order 18.
Judgment on the Pleadings and Defendant’s Motion for Judgment on the Pleadings. Dkt.
Nos. 14 & 15. For the reasons set forth below, Plaintiff’s Motion is denied and Defendant’s
Motion is granted. The Commissioner’s decision denying Plaintiff’s disability benefits is
affirmed, and Plaintiff’s Complaint is dismissed.
I. RELEVANT BACKGROUND
A. Factual Background
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Plaintiff was born in 1974, making him 40 years old at the alleged onset date and 42
years old at the date of the ALJ’s decision. Admin. Tr. (“Tr.”), p. 132.2 Plaintiff reported
completing the ninth grade and previously obtaining a commercial driving license.3 Tr. at
p. 42. Plaintiff has past work as a machine packager, construction worker II, plastic products
assembler, and dump truck driver. Tr. at p. 219. Generally, Plaintiff alleges disability due
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to degenerative disc disease (“DDD”), arthritis, obesity, chronic pain, low cognitive
functioning, and chronic obstructive pulmonary disease (“COPD”). Dkt. No. 14.
B. Procedural History
Plaintiff applied for Supplemental Security Income on May 28, 2014, alleging
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disability beginning May 15, 2014. Tr. at p. 64. Plaintiff’s application was initially denied
on August 27, 2014, after which he timely requested a hearing before an Administrative Law
Judge (“ALJ”). Tr. at pp. 65 & 71. Plaintiff appeared at a hearing before ALJ Carl E.
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The Administrative Transcript is found at Dkt. No. 10. Citations to the Administrative Transcript will refer
to the Bates-stamped page numbers as set forth therein.
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Plaintiff did not have a driving license at the time of the administrative hearing.
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Stephan on January 7, 2016. Tr. at pp. 34-54. On September 26, 2016, the ALJ issued a
written decision finding Plaintiff was not disabled under the Social Security Act. Tr. at pp.
8-26. On January 25, 2017, the Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision the final decision of the Commissioner. Tr. at p. 1.
C. The ALJ’s Decision
Generally, in his decision, the ALJ made the following six findings of fact and
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conclusions of law. Tr. at pp. 13-22. First, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since May 28, 2014, the application date. Tr. at p. 13. Second,
the ALJ found that Plaintiff’s alleged impairments including DDD in the lumbar spine,
obesity, and mild COPD were severe impairments and that Plaintiff did not have a severe
medically determinable mental impairment. Tr. at pp. 13-15. Third, the ALJ found that
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Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”).
Tr. at p. 15. Specifically, the ALJ considered the criteria of Listings 1.04 (disorders of the
spine) and 12.00 (adult mental disorders). Tr. at p. 15. Fourth, the ALJ found that Plaintiff
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had the residual functional capacity (“RFC”) to perform light work except:
claimant can stand for a maximum of two hours in an eight-hour
workday; claimant can walk for a maximum of two hours in an
eight-hour workday; claimant can sit for a maximum eight-hours
in an eight-hour workday; claimant can stand, walk, or sit for
one hour at a time before needing to change positions for five
minutes; claimant can occasionally operate bilateral foot
controls; claimant can occasionally climb stairs, but can never
climb ladders or scaffolds; claimant can occasionally balance,
stoop, kneel, crouch and crawl; claimant can occasionally be
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expose[d] to extremes in temperature or humidity; and claimant
should never be exposed to vibrations.
Tr. at p. 15. Fifth, the ALJ found that Plaintiff was unable to perform any past relevant work.
Tr. at p. 21. Sixth, and last, the ALJ found that there were jobs existing in significant
numbers in the national economy that Plaintiff can perform. Tr. at pp. 21-22. The ALJ
therefore concluded that Plaintiff was not disabled.
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D. The Parties’ Briefings on Their Cross-Motions
1. Plaintiff’s Motion for Judgment on the Pleadings
Generally, Plaintiff makes six arguments in support of his Motion. Dkt. No. 14, Pl.’s
Mem. of Law, pp. 12-30. First, Plaintiff argues that he is unable to perform any work on a
full-time, sustained basis because of his combination of spinal impairments, pain, obesity,
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low cognitive functioning, and COPD. Id. at pp. 12-21. Specifically, Plaintiff argues that
he does not have the exertional ability to perform light work (or even sedentary work) due
to chronic pain (which Plaintiff also argues causes non-exertional limitations) and an
inability to sit or stand for long periods. Id. at pp. 13-17. Plaintiff also argues that the ALJ
did not consider Plaintiff’s pain as a non-exertional limitation in determining his RFC and
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that the ALJ erred by not fully considering the non-exertional effects of Plaintiff’s
documented pain in combination with his other impairments on his RFC. Id. at p. 17.
Second, Plaintiff argues that he is disabled by the combination of his spinal disorder,
chronic pain, obesity, cognitive impairments, and COPD. Id. at pp. 14-15, 17-21. Regarding
his back impairments, Plaintiff argues that he met most of the requisites of Listing 1.04 for
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his lumbar radiculopathy including nerve root compromise, limited motion of the spine,
sensory loss, and a positive left straight leg raising (“SLR”) test in the sitting and supine
position. Id. at p. 14. Plaintiff notes that consultative examiner Nader Wassef, M.D.,
observed limited range of motion in the lumbar spine, sensory and reflex loss, and an
inability to walk on his heels and toes. Id. Plaintiff also notes the documentation of his
spinal impairments throughout the record including a 2015 lumbar MRI and multiple positive
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SLR tests. Id. at pp. 14-15.
Regarding his obesity, Plaintiff argues that, while the ALJ did find that Plaintiff’s
obesity is a severe impairment and noted that neurosurgeon Joseph H. Arguelles, M.D.
commented that Plaintiff’s obesity put him at an increased risk for lower back pain, the ALJ
did not otherwise mention Plaintiff’s obesity. Id. at p. 19. Plaintiff notes that Dr. Wassef
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diagnosed obesity and presumably included it in his opinions that Plaintiff had moderate
limitations in standing, sitting, lifting, bending, squatting, climbing or descending steps,
driving a car, sitting in a car for long periods of time, operating foot controls, and being
exposed to cold environments. Id. Plaintiff argues that there is no indication that the ALJ
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considered Plaintiff’s obesity in denying his claim. Id. Regarding his COPD, Plaintiff notes
his testimony that he uses a ProAir inhaler, he gets out of breath if he walks over 50 feet, and
that his doctor advised him to stop smoking. Id. at p. 21. Plaintiff argues that this
impairment further erodes his RFC to perform light work. Id.
Third, Plaintiff argues that the ALJ failed to develop the record by not ordering a
consultative cognitive test in light of Plaintiff’s testimony indicating he did not complete the
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tenth grade, he cannot read the daily paper or read well, his writing is illegible, and he is
computer illiterate (supporting a conclusion that he has a learning disability and/or is
cognitively disabled). Id. at pp. 19-21. Plaintiff notes that he did not understand what it
meant to be put under oath at the administrative hearing and that his girlfriend had to fill out
the Social Security forms. Id. at p. 21. Plaintiff argues that the ALJ erred by not considering
these facts when addressing the RFC. Id. Plaintiff also notes that the responses from the
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vocational expert (“VE”) to interrogatories indicated that none of the identified jobs could
be performed by a person with Reasoning Level One, Math Level One, and Language Level
One. Id. Plaintiff argues that he appears to be at Level One in his reasoning, language, and
math skills. Id.
Fourth, Plaintiff argues that the ALJ misconstrued the meaning of “moderate
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limitations” and “moderate activity.” Id. at pp. 22-24. Specifically, Plaintiff argues that Dr.
Wassef did not opine moderate limitations in a variety of areas only for prolonged periods
of time and did not define “moderate.” Id. at pp. 23-24. Plaintiff argues that these limitations
are vague and do not constitute substantial evidence to support the finding that Plaintiff could
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perform light work on a full-time, sustained basis or the ALJ’s RFC determination. Id. at p.
24.
Fifth, Plaintiff argues that the ALJ’s finding Plaintiff less than fully credible was not
supported by clear and convincing evidence. Id. at pp. 17, & 24-28. Specifically, Plaintiff
argues that the ALJ erred by failing to credit Plaintiff’s subjective testimony of pain, even
though it was supported by objective medical evidence. Id. at p. 17. Plaintiff argues that
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objective clinical and radiological evidence including MRIs and examinations by treating
sources Dr. Arguelles, chiropractor Aaron W. Perkins, D.C., PT, M.S., and Andrea Farrell,
N.P., and consultative examiner Dr. Wassef establish that Plaintiff suffers from severe pain
and support his assertion that he cannot perform work because of exertional and nonexertional limitations related to pain. Id. at p. 25. Plaintiff argues that the ALJ erred by not
considering these medical source statements regarding his pain. Id. at pp. 25-28. Plaintiff
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also argues that the ALJ’s decision does not provide any explanation supporting the ALJ’s
credibility determination, and it does not show any substantive inconsistencies in Plaintiff’s
testimony, or any medical evidence contradicting his testimony. Id. at p. 28.
Sixth, Plaintiff argues that the ALJ erred at Step Five by determining that Plaintiff
could perform work as an electrical accessories assembler, a production assembler, or a
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document preparer. Id. at p. 29. Specifically, Plaintiff notes that the VE opined that a person
with Level One reasoning, language, and math skills could not perform the identified jobs
and that a person who would be off-task fifteen percent of the time or who would miss two
days of work a month would be unable to perform any work. Id. Plaintiff argues that the
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ALJ did not meet the Agency’s burden at Step Five to prove that Plaintiff can perform other
work. Id.
2. Defendant’s Motion for Judgment on the Pleadings
Generally, Defendant makes three arguments in support of her Motion. Dkt. No. 15,
Def.’s Mem. of Law, pp. 3-18. First, Defendant argues that substantial evidence supports the
ALJ’s RFC assessment. Id. at pp. 5-12. Specifically, Defendant argues that the ALJ cited
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diagnostic evidence showing that, although Plaintiff had degenerative changes along his
lumbar spine, he showed no signs of fracture, dislocation, fusion, pseudoclaudication, or
subluxation and that the ALJ also cited examination and treatment notes showing that,
despite Plaintiff’s impairments, he consistently had mostly normal examination findings. Id.
at pp. 5-6. Defendant also argues that the ALJ considered evidence of Plaintiff’s daily
activities when determining the RFC. Id. at p. 6.
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Regarding the opinion evidence, Defendant argues that the ALJ relied on the opinion
of Dr. Wassef, who opined only moderate limitations (which Defendant argues are consistent
with the ALJ’s RFC). Id. at pp. 6-8. Defendant argues that the ALJ reasonably gave
significant weight to Dr. Wassef’s opinion because it was largely consistent with the medical
record. Id. at pp. 7-8. Defendant argues that the ALJ also reasonably relied on the reviewing
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opinion of medical expert Louis Fuchs, M.D. Id. at p. 8. Defendant argues that, while the
ALJ’s decision does not complete the sentence where he was about to indicate what weight
he gave Dr. Fuchs’ opinion, the decision made clear that he generally agreed with the opinion
and essentially adopted it and that any error in not explicitly assigning a specific weight to
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this opinion is harmless. Id.
Defendant also argues that Plaintiff’s arguments do not provide a basis to disturb the
ALJ’s decision. Id. at pp. 9-12. Specifically, Defendant argues that the ALJ expressly
considered Listing 1.04 and found that Plaintiff did not satisfy it. Id. at p. 9. Defendant
additionally argues that Plaintiff does not substantively challenge the ALJ’s reasoning. Id.
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Regarding Plaintiff’s alleged cognitive impairment, Defendant argues that Plaintiff
does not challenge the ALJ’s Step Two findings that there is no medical evidence that
Plaintiff was diagnosed with or treated for any mental impairment. Id. at p. 10. Regarding
Plaintiff’s argument that the ALJ failed to develop the record, Defendant notes that Plaintiff
was represented by counsel during the proceedings below and, therefore, the ALJ had no
heightened duty to develop the record. Id. Defendant also argues that Plaintiff mostly relies
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on his limited education to support his argument but points to no authority to support that a
limited education amounts to disability, and that there is no inconsistency between Plaintiff’s
level of education (classified as limited under the Regulations) and the ALJ’s assessment of
his vocational profile. Id. at pp. 10-11. Defendant additionally argues that the ALJ’s
decision made clear that he considered Plaintiff’s mental capacity, generally, and reconciled
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the evidence. Id. at pp. 11-12.
Regarding Plaintiff’s obesity and COPD, Defendant argues that the ALJ found these
impairments were severe and cited substantial evidence in support of the RFC assessment,
including evidence that documented Plaintiff’s weight and respiratory functioning. Id. at p.
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Second, Defendant argues that the ALJ’s credibility determination is supported by
substantial evidence. Id. at pp. 12-15. Specifically, Defendant argues that Plaintiff
mischaracterizes the ALJ’s decision by ignoring the evidence that the ALJ relied on, and that
the ALJ acknowledged that Plaintiff had experienced pain. Id. at p. 13. Defendant argues
that the ALJ’s decision makes clear that he considered evidence of Plaintiff’s various
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impairments from the record as a whole consistent with the factors in the regulations
including diagnostic evidence, clinical and examination notes, opinion evidence, and
evidence of Plaintiff’s level of activity. Id. at pp. 13-15. Defendant also argues that the ALJ
properly considered Plaintiff’s testimony surrounding his mental limitations, which
conflicted with his lack of alleged mental limitations at the time of his application for
benefits and evidence cited by the ALJ showing a lack of mental limitations. Id. at pp. 14-15.
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Defendant argues that the ALJ cited substantial evidence in support of his evaluation of
Plaintiff’s subjective statements to allow for meaningful review. Id. at p. 15.
Third, Defendant argues that substantial evidence supports the ALJ’s Step Five
finding. Id. at pp. 16-18. Specifically, Defendant argues that the ALJ was not required to
submit to the VE every limitation alleged by Plaintiff, but only had to convey all of
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Plaintiff’s credibly established limitations. Id. at p. 16. Defendant also argues that the
Commissioner relies only on the SVP levels, rather than Plaintiff’s suggestion of Level One
reasoning, language, and math skills. Id. at p. 17. Defendant notes that Social Security
Ruling (“SSR”) 00-49 defines SVP level 2 positions as congruent with unskilled work and
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argues that Plaintiff had no medically determinable mental impairments that would
significantly affect his ability to perform basic work activities, let alone unskilled work. Id.
II. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs.,
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906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be
reversed only if the correct legal standards were not applied, or it was not supported by
substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there
is a reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
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determination made according to the correct legal principles.”); accord Grey v. Heckler, 721
F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial
evidence” is evidence that amounts to “more than a mere scintilla,” and has been defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed
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susceptible to more than one rational interpretation, the Commissioner’s conclusion must be
upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
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because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent
analysis of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F.
Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s
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determination considerable deference, and may not substitute “its own judgment for that of
the [Commissioner], even if it might justifiably have reached a different result upon a de
novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
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whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520 & 416.920. The Supreme Court has recognized the validity of this sequential
evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process
is as follows:
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First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a
“severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant suffers
such an impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is
listed in Appendix 1 of the regulations. If the claimant has such
an impairment, the [Commissioner] will consider him disabled
without considering vocational factors such as age, education,
and work experience; the [Commissioner] presumes that a
claimant who is afflicted with a “listed” impairment is unable to
perform substantial gainful activity. Assuming the claimant
does not have a listed impairment, the fourth inquiry is whether,
despite the claimant’s severe impairment, he has the residual
functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner]
then determines whether there is other work which the claimant
could perform. Under the cases previously discussed, the
claimant bears the burden of the proof as to the first four steps,
while the [Commissioner] must prove the final one.
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Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d
146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made,
the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III. ANALYSIS
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A. Whether Substantial Evidence Supports the ALJ’s Step Three Finding that
Plaintiff Does Not Have an Impairment or Combination of Impairments that Meet
or Medically Equal the Severity of a Listed Impairment
“Plaintiff has the burden of proof at step three to show that her impairments meet or
medically equal a Listing.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y. 2009)
(citing Naegele v. Barnhart, 433 F. Supp. 2d 319, 324 (W.D.N.Y. 2006)). “To meet a
Listing, Plaintiff must show that [his] medically determinable impairment satisfies all of the
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specified criteria in a Listing.” Rockwood v. Astrue, 614 F. Supp. 2d at 272 (citing 20 C.F.R.
§ 404.1525(d)). “If a claimant’s impairment ‘manifests only some of those criteria, no matter
how severely,’ such impairment does not qualify.” Rockwood v. Astrue, 614 F. Supp. 2d at
272 (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). Additionally, a court may be
able to uphold an ALJ’s finding that a claimant does not meet a Listing even where the
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decision lacks an express rationale for that finding if the determination is supported by
substantial evidence. Rockwood v. Astrue, 614 F. Supp. 2d at 273 (citing Berry v. Schweiker,
675 F.2d at 468).
Here, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of a listed impairment and
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specifically considered Listings 1.04 and 12.00. Tr. at p. 15. Plaintiff argues that he is
disabled by the combination of his spinal disorder, chronic pain, obesity, cognitive
impairments, and COPD. Pl.’s Mem. of Law at pp. 14-15, 17-21. The Court finds this
argument unpersuasive.
Plaintiff has failed to establish that his impairments in combination meet or medically
equal the severity of a listed impairment. Much of his argument is a recitation of the
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evidence of record rather than an application of those facts to the Listings, and the Court
declines any invitation by Plaintiff to reweigh that evidence. See Warren v. Comm’r of Soc.
Sec., 2016 WL 7223338, at *9 (N.D.N.Y. Nov. 18, 2016) (“When applying the substantial
evidence test to a finding that a plaintiff was not disabled, the Court ‘will not reweigh the
evidence presented at the administrative hearing, . . . nor will it determine whether [the
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applicant] actually was disabled. [Rather], [a]bsent an error of law by the Secretary, [a] court
must affirm her decision if there is substantial evidence [in the record] to support it.’”),
report and recommendation adopted, 2016 WL 7238947 (N.D.N.Y. Dec. 13, 2016) (quoting
Lefford v. McCall, 916 F. Supp. 150, 155 (N.D.N.Y. 1996)); Vincent v. Shalala, 830 F. Supp.
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126, 133 (N.D.N.Y. 1993) (“[I]t is not the function of the reviewing court to reweigh the
evidence.”) (citing Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.
1983)). Thus, the Court finds that substantial evidence supports the ALJ’s finding that
Plaintiff does not have an impairment or combination of impairments that meet or medically
equal the severity of a listed impairment. See Lewis v. Colvin, 122 F. Supp. 3d 1, 7
(N.D.N.Y. 2015) (noting that it is not the role of a court to “re-weigh evidence” because “a
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reviewing court ‘defers to the Commissioner’s resolution of conflicting evidence’” where
that resolution is supported by substantial evidence) (quoting Cage v. Comm’r of Soc. Sec.,
692 F.3d 118, 122 (2d Cir. 2012); citing Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507
(2d Cir. 2009)). Remand is therefore not required on this basis.
B. Whether Substantial Evidence Supports the ALJ’s RFC Determination
Regarding the RFC determination, Plaintiff argues that he is unable to perform any
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work on a full-time, sustained basis because of his combination of impairments. Pl.’s Mem.
of Law at pp. 12-21. Plaintiff also argues that the ALJ did not consider Plaintiff’s pain as a
non-exertional limitation when determining his RFC and that the ALJ misconstrued Dr.
Wassef’s opinion. Id. at pp. 17, 22-24. The Court finds that substantial evidence supports
the RFC determination.
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RFC is defined as “what an individual can still do despite his or her limitations. . . .
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis.” Pardee v. Astrue,
631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d
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Cir. 1999)). “In making a residual functional capacity determination, the ALJ must consider
a claimant’s physical abilities, mental abilities, symptomology, including pain and other
limitations which could interfere with work activities on a regular and continuing basis.”
Pardee v. Astrue, 631 F. Supp. 2d at 210 (citing 20 C.F.R. § 404.1545(a)). “Ultimately,
‘[a]ny impairment-related limitations created by an individual’s response to demands of work
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. . . must be reflected in the RFC assessment.’” Hendrickson v. Astrue, 2012 WL 7784156,
at *3 (N.D.N.Y. Dec. 11, 2012) (quoting SSR 85-15, 1985 WL 56857, at *8).
When assessing a claimant’s RFC, an ALJ is entitled to rely on opinions from both
examining and non-examining State agency medical consultants because these consultants
are qualified experts in the field of social security disability. 20 C.F.R. § 404.1513a; see also
Frey ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (“The report of a State
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agency medical consultant constitutes expert opinion evidence which can be given weight
if supported by medical evidence in the record.”); Little v. Colvin, 2015 WL 1399586, at *9
(N.D.N.Y. Mar. 26, 2015) (“State agency physicians are qualified as experts in the evaluation
of medical issues in disability claims. As such, their opinions may constitute substantial
evidence if they are consistent with the record as a whole.”) (internal quotation marks
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omitted). The RFC determination “must be set forth with sufficient specificity to enable [the
Court] to decide whether the determination is supported by substantial evidence.” Ferraris
v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
On August 19, 2014, consultative examiner Dr. Wassef conducted an internal
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medicine examination and noted that Plaintiff was in discomfort during the examination
because of his back. Tr. at p. 273. Dr. Wassef noted Plaintiff was able to briefly stand on
his heels and toes but was unable to walk on his heels and toes, could squat about halfway,
had a normal stance, used no assistive devices, needed no help changing for the exam or
getting on and off the exam table, and was able to rise from a chair without difficulty. Id.
His chest and lungs were clear to auscultation. Tr. at p. 274. His lumbar spine showed
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flexion/extension was 45 degrees, full lateral flexion bilaterally, full rotary movement
bilaterally, diffuse tenderness in the lumbar spine area as well as both sacroiliac joints, and
positive left SLR at 60 degrees in the seated position. Id. Deep tendon reflexes were
physiologic and equal in the upper and lower extremities, there was no sensory deficit noted,
and strength was full in the upper and lower extremities. Id. Dr. Wassef indicated diagnoses
of discogenic lumbar pain, lumbar radiculopathy, obesity, and poor dental hygiene and
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opined a fair prognosis. Tr. at p. 275. He opined that Plaintiff had “moderate limitations in
regard to standing, sitting, lifting, bending, squatting, climbing or descending steps, driving
a car, sitting in a car for long periods of time, operating foot controls, and being exposed to
cold environments.” Id. The ALJ indicated that, although Dr. Wassef examined Plaintiff
only once, his opinion was entitled to significant weight because the clinical observations
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supported Dr. Wassef’s findings and because his findings were consistent with the record as
a whole. Tr. at p. 20.
On April 11, 2015, treating provider Sarah Howell, FNP-C, completed an application
for a parking permit for Plaintiff and stated that Plaintiff had a diagnosis of DDD and was
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unable to walk more than fifty feet without pain. Tr. at p. 200. The ALJ afforded very little
weight to this opinion because Ms. Howell was not an acceptable medical source and because
the medical evidence provided no basis to conclude that Plaintiff’s ability to walk was
limited in the extreme manner that Ms. Howell opined. Tr. at p. 20. The ALJ also noted that
Ms. Howell’s treatment records indicated that she generally observed that Plaintiff was in no
acute distress and that he ambulated normally. Id.
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On March 29, 2016, medical expert Dr. Fuchs provided responses to medical
interrogatories posed by the ALJ and opined that Plaintiff’s impairments included obesity,
deconditioning, and lumbosacral myofasciitis. Tr. at pp. 358-82. Dr. Fuchs noted that exams
revealed decreased spinal motions while neurological functioning was intact. Tr. at pp. 27275, 300, 338, & 373. Dr. Fuchs opined that Plaintiff did not meet Listing 1.04A because
neurological functioning was intact. Tr. at p. 374. He indicated that Plaintiff did not require
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the use of a cane to ambulate. Tr. at p. 377. He opined that Plaintiff could continuously lift
and carry up to ten pounds, occasionally lift and carry eleven-to-twenty pounds, and never
lift or carry over twenty pounds; he could sit, stand, or walk for one hour at a time without
interruption, sit for a total of eight hours, and stand or walk for two hours in a workday; he
could continuously use his hands for reaching, handling, fingering, feeling, pushing, or
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pulling; he could occasionally use his feet for the operation of foot controls; he could
occasionally climb stairs, ramps, ladders or scaffolds; he could occasionally balance, stoop,
kneel, crouch, or crawl; and he could continuously tolerate unprotected heights and moving
mechanical parts, frequently tolerate operating a motor vehicle, occasionally tolerate
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humidity, wetness and extreme cold/heat, and never tolerate vibrations. Tr. at pp. 376-80.
Dr. Fuchs opined that these limitations had lasted or would last for 12 consecutive months.
Tr. at p. 381. The ALJ summarized this opinion, noting that Dr. Fuchs provided an opinion
indicating that Plaintiff was capable of light work. Tr. at pp. 20-21. The ALJ’s analysis of
this opinion cuts off before a specific assignment of weight was articulated. Tr. at p. 21.
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The ALJ’s decision indicates an adequate review of the evidence of record and
analysis of Plaintiff’s RFC for a modified range of light work. Tr. at pp. 15-21. When
determining the RFC, the ALJ considered the medical evidence, opinion evidence, and
Plaintiff’s testimony regarding his impairments, symptoms, and limitations. Id. The ALJ’s
RFC analysis summarizes the relevant medical evidence and discusses, in detail, Plaintiff’s
various impairments including DDD, chronic pain, obesity, and mild COPD. Id.
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As Defendant argues, while the ALJ’s decision does not complete the sentence where
he was about to indicate what weight he gave Dr. Fuchs’ opinion, the RFC is consistent with
that opinion. Def.’s Mem. of Law at p. 8. The RFC is also consistent with Dr. Wassef’s
opinion. Plaintiff argues that the ALJ misconstrued the moderate limitations opined by Dr.
Wassef and that these limitations are vague. Pl.’s Mem. of Law at pp. 22-24. However, the
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moderate limitations as opined by Dr. Wassef are not inconsistent with an RFC for light
work. See Gurney v. Colvin, 2016 WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016) (finding no
error in an RFC for light work where a source opined moderate limitations in the abilities to
perform repetitive heavy lifting, bending, reaching, pushing, pulling, or carrying) (collecting
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cases making similar findings); James v. Astrue, 2010 WL 5536338, at *6 (N.D.N.Y. May
7, 2010) (finding the ALJ’s conclusion that plaintiff could lift 20 pounds occasionally and
10 pounds frequently was inconsistent with the consultative examiner’s “moderate-to-severe”
limitation in lifting and carrying, noting however that a moderate limitation “would not
necessarily be incompatible with the ability to perform light work”).
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Additionally, the relatively benign findings on Dr. Wassef’s examination provide a
context from which the ALJ could interpret Dr. Wassef’s characterization of “moderate
limitations.” See Monroe v. Comm’r of Soc. Sec., 2016 WL 7971330, at *7-8 (N.D.N.Y.
Dec. 29, 2016), report and recommendation adopted, 2017 WL 318838 (N.D.N.Y. Jan. 23,
2017) (noting that, even where a “consultative examiner’s opinion may use terminology that,
on its face, is vague, such language does not render the consultative examiner’s opinion
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useless in all situations” so long as it is “well supported by his extensive examination” or it
can be made “more concrete” by “the facts in the underlying opinion and other opinion
evidence in the record”) (citing Zongos v. Colvin, 2014 WL 788791, at *10 (N.D.N.Y. Feb.
25, 2014); Waldau v. Astrue, 2012 WL 6681262, at *4 (N.D.N.Y. Dec. 21, 2003); Davis v.
Massanari, 2001 WL 1524495, at *8 (S.D.N.Y. Nov. 29, 2001)). Given the complete
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context, Dr. Wassef’s use of the term “moderate” is therefore not too vague to be useful for
determining Plaintiff’s functional capacity.
Plaintiff contends that the ALJ did not properly consider his pain as a non-exertional
limitation in determining his RFC. Pl.’s Mem. of Law at pp. 15-17. As discussed below, at
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Point III.D., the ALJ considered the evidence in the record regarding Plaintiff’s pain,
including from the medical sources, and Plaintiff’s testimony, and adequately explained the
basis for his determination. Tr. at pp. 16-18. As such, the ALJ’s credibility determination
of Plaintiff regarding his pain was supported by substantial evidence.
Plaintiff also contends that the ALJ did not discuss or properly consider Plaintiff’s
obesity. Pl.’s Mem. of Law at p. 17. The ALJ determined that Plaintiff’s obesity was a
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severe impairment, and described a medical opinion that noted a potential impact of
Plaintiff’s obesity on his other conditions. Tr. at p. 18. The ALJ adopted Dr. Wasseff’s
findings, which explicitly addressed Plaintiff’s obesity, and also discussed Dr. Arguelles’s
analysis of potential health impacts of Plaintiff’s obesity. Tr. at pp. 18 & 20. This is
therefore not a situation where “the ALJ[] fail[ed] to indicate that he was even aware of
evidence showing plaintiff suffered from obesity.” Pl.’s Mem. of Law at p. 18 (citing
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Cornell v. Astrue, 764 F. Supp. 2d 381, 402-03 (N.D.N.Y. 2010)). Rather, “[w]hen an ALJ’s
decision adopts the physical limitations suggested by reviewing doctors after examining the
Plaintiff, the claimant’s obesity is understood to have been factored into their decisions.”
Guadalupe v. Barnhart, 2005 WL 2033380, *6 (S.D.N.Y. Aug. 24, 2005); Searles v. Comm’r
of Soc. Sec., 2015 WL 9582726, *9 (N.D.N.Y. Nov. 30, 2015), report and recommendation
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adopted, 2015 WL 9581830 (N.D.N.Y. Dec. 30, 2015) (“Here, the ALJ found Plaintiff’s
obesity to be a severe impairment. As set forth above, the health professionals who treated
Plaintiff and opined on Plaintiff’s functional limitations were all well aware of his obesity.”).
“Moreover, Plaintiff does not point to any assessments of limitations specifically arising
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from his obesity.” Niles v. Astrue, 32 F. Supp. 3d 273, 283 (N.D.N.Y. 2012). Pursuant to
the Regulations, the ALJ is not to “make assumptions about the severity or functional effects
of obesity combined with other impairments;” rather, the ALJ must “evaluate each case based
on the information in the case record.” SSR 02-1p, 2002 WL 31026506 ¶ 7 (Sept. 12, 2002).
The ALJ’s failure to provide a lengthy discussion of Plaintiff’s obesity is therefore not error.
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For the above reasons, the ALJ’s analysis of the evidence and resulting RFC are
supported by substantial evidence.
C. Whether the ALJ Properly Developed the Record
Although the claimant has the general burden of proving that he or she has a disability
within the meaning of the Social Security Act, “the ALJ generally has an affirmative
obligation to develop the administrative record” due to the non-adversarial nature of a
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hearing on disability benefits. Burgess v. Astrue, 537 F.3d at 128 (quoting Melville v. Apfel,
198 F.3d 52; citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002), Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.
2000)). “It is the ALJ’s duty to investigate and develop the facts and develop the arguments
both for and against the granting of benefits.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.
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2009) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009)). An
“ALJ must make every reasonable effort to help [the claimant] obtain medical reports from
the claimant’s medical sources so long as permission is granted to request such reports.”
Hart v. Comm’r, 2010 WL 2817479, at *5 (N.D.N.Y. July 16, 2010) (quoting 20 C.F.R. §
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404.1512(d)) (internal quotation marks omitted).
Here, the ALJ ordered a consultative internal medicine examination, sent
interrogatories to a vocational expert and proffered the response to Plaintiff’s attorney
(additional interrogatories from Plaintiff’s attorney were also sent to the vocational expert
and responses were entered into the record), and sent interrogatories to medical expert Dr.
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Fuchs (the interrogatories and responses were entered into the record). Tr. at pp. 211-38,
271-77, & 358-82.
Despite the above, Plaintiff argues that the ALJ failed to develop the record by not
ordering consultative cognitive testing specifically as to Plaintiff’s cognitive functioning in
light of his testimony indicating he did not complete the tenth grade, he cannot read the daily
paper or read well, his writing is illegible, and he is computer illiterate (facts which Plaintiff
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argues support a conclusion that he has a learning disability and/or is cognitively disabled).4
Pl.’s Mem. of Law at pp. 19-21. The Court finds this argument unpersuasive.
Plaintiff did not allege any mental impairment or limitations related to a cognitive
impairment at the initial determination level. Tr. at p. 55. In his Step Two analysis, the ALJ
considered the possibility of a mental impairment but found that there was no medical
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evidence that Plaintiff had ever been diagnosed with or treated for any mental impairment
and that the little objective medical evidence in the record pertaining to Plaintiff’s mental
health provided no basis to conclude that Plaintiff had any medically determinable mental
impairment. Tr. at pp. 13-15.
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“Generally, additional evidence or clarification is sought when there is a conflict or
ambiguity that must be resolved, when the medical reports lack necessary information, or
when the reports are not based on medically acceptable clinical and laboratory diagnostic
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The ALJ found that Plaintiff did not have a medically determinable mental impairment. Tr. at pp. 13-15. The
“RFC assessment considers only functional limitations and restrictions that result from an individual’s medically
determinable impairment or combination of impairments” and “the adjudicator must consider only limitations and
restrictions attributable to medically determinable impairments.” SSR 96-8p. The Court finds, therefore, that the ALJ
did not err in failing to assess limitations relating to Plaintiff’s alleged cognitive impairment.
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techniques.” Janes v. Berryhill, 2017 WL 972110, at *4 (N.D.N.Y. Mar. 10, 2017), aff’d,
710 F. App’x. 33 (2d Cir. 2018) (citing 20 C.F.R. § 404.1520b; Rosa v. Callahan, 168 F.3d
72, 80 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). In this case,
however, there does not appear to be such a conflict as there is little, if anything, to support
Plaintiff’s alleged cognitive impairment other than statements at the hearing indicating
difficulty reading or writing. “[T]he ALJ is not required to order a consultative examination
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if the facts do not warrant or suggest the need for it.” Monroe v. Comm’r of Soc. Sec., 2016
WL 7971330, at *3 (citing Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 32 (2d Cir.
2013); Lefever v. Astrue, 2010 WL 3909487, *7 (N.D.N.Y. Sept. 30, 2010), aff’d, 443 F.
App’x 608 (2d Cir. 2011)). In his decision, the ALJ noted Plaintiff’s testimony that his
writing was not legible, he did not read well, he did not read the newspaper, and he was
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computer illiterate. Tr. at p. 14. The decision also notes the lack of evidence indicating that
Plaintiff had ever been diagnosed with or treated for any mental impairment and includes the
ALJ’s finding that Plaintiff did not have a medically determinable mental impairment. Tr.
at pp. 13-15.
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The Court finds that the ALJ did not abuse his discretion in failing to order
consultative cognitive testing because the record contained sufficient information for the ALJ
to make a determination, including a lack of evidence supporting a medically determinable
mental impairment and Plaintiff’s past work history and professed ability to perform workrelated tasks. Monroe v. Comm’r of Soc. Sec., 2016 WL 7971330, at *5-6; Tr. at pp. 39-42,
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137, 157-64, 194, & 219. For the reasons above, the Court finds that the ALJ did not fail to
properly develop the record. Remand is therefore not required on this basis.
D. Whether Substantial Evidence Supports the ALJ’s Credibility Determination
In determining whether a claimant is disabled, the ALJ must make a determination as
to the credibility of the claimant’s allegations. “An administrative law judge may properly
reject claims of severe, disabling pain after weighing the objective medical evidence in the
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record, the claimant’s demeanor, and other indicia of credibility, but must set forth his or her
reasons with sufficient specificity to enable us to decide whether the determination is
supported by substantial evidence.” Schlichting v. Astrue, 11 F. Supp. 3d 190, 205
(N.D.N.Y. 2012) (quoting Lewis v. Apfel, 62 F. Supp. 2d 648, 651 (N.D.N.Y. 1999)). The
Second Circuit recognizes that “‘[i]t is the function of the [Commissioner], not [reviewing
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courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including
the claimant,’” and that, “[i]f there is substantial evidence in the record to support the
Commissioner’s findings, ‘the court must uphold the ALJ’s decision to discount a claimant’s
subjective complaints of pain.’” Schlichting v. Astrue, 11 F. Supp. 3d at 206 (quoting
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Carroll v. Sec’y of Health and Human Servs., 705 F.2d at 642; Aponte v. Sec’y, Dep’t of
Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Due to the fact that the ALJ
has the benefit of directly observing a claimant’s demeanor and “other indicia of credibility,”
the ALJ’s credibility assessment is generally entitled to deference. Weather v. Astrue, 32 F.
Supp. 3d 363, 381 (N.D.N.Y. 2012) (citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir.
1999)).
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Here, the ALJ found that the statements of Plaintiff, his girlfriend, and Kaela
Homburger (an employee of Plaintiff’s representative who assisted Plaintiff in completing
the disability report at Exhibit 6E) concerning the intensity, persistence, and limiting effects
of his symptoms were not fully consistent with the evidence. Tr. at pp. 16-17, 20, 143-56,
& 167-72. Plaintiff argues that the ALJ erred when finding Plaintiff less than fully credible.
Pl.’s Mem. of Law at pp. 17, 24-28.
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When considering Plaintiff’s RFC and credibility, the ALJ summarized Plaintiff’s
testimony and function reports as well as the medical evidence of record. Tr. at pp. 16-22.
In doing so, the ALJ’s decision indicates implicit bases for the adverse credibility finding,
if not explicit reasons. See Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir. 2013) (“While
it is ‘not sufficient for the [ALJ] to make a single, conclusory statement that’ the claimant is
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not credible or simply to recite the relevant factors, [] remand is not required where ‘the
evidence of record permits us to glean the rationale of the ALJ’s decision.’”) (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).
For example, the ALJ noted that Plaintiff first reported that he does not drive because
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he lost his license when he fell behind on child support, but later in the hearing indicated that
it was not very comfortable for him to drive. Tr. at p. 16. The ALJ also noted that there was
no objective medical evidence to corroborate Plaintiff’s claim that he becomes out of breath
when he walks more than fifty feet. Id. The ALJ’s analysis of Plaintiff’s testimony notes
that, at one point, Plaintiff was “somewhat evasive” in his response to a question at the
hearing. Id. The ALJ also pointed out an inconsistency between Plaintiff’s testimony (he
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reported that his girlfriend did the cooking, cleaning, and shopping in his house) and his
girlfriend’s function report (indicating that Plaintiff went shopping for food and clothing
once or twice a week and that he washed dishes, cleaned off the table, and did laundry). Tr.
at p. 17. Finally, the ALJ indicated that the opinion evidence was not consistent with the
severity of symptoms and the degree of limitations that would preclude Plaintiff from
performing any work. Tr. at p. 20.
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For the reasons above, the Court finds that the ALJ’s credibility determination is
supported by substantial evidence. Remand is therefore not required on this basis.
E. Whether the ALJ’s Step Five Determination is Supported by Substantial
Evidence
Although the claimant has the general burden to prove he has a disability under the
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definitions of the Social Security Act, the burden shifts to the Commissioner at Step Five “to
show there is other work that [the claimant] can perform.” McIntyre v. Colvin, 758 F.3d at
150 (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). “An ALJ may
rely on a vocational expert’s testimony regarding a hypothetical [question] as long as ‘there
is substantial record evidence to support the assumption[s] upon which the vocational expert
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based his opinion’ [and] . . . [the hypothetical question] accurately reflect[s] the limitations
and capabilities of the claimant involved.” McIntyre v. Colvin, 758 F.3d at 151 (quoting
Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983); citing Aubeuf v. Schweiker, 649
F.2d 107, 114 (2d Cir. 1981)). If a hypothetical question does not include all of a claimant’s
impairments, limitations, and restrictions, or is otherwise inadequate, a vocational expert’s
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response cannot constitute substantial evidence to support a conclusion of no disability.”
Pardee v. Astrue, 631 F. Supp. 2d at 211 (citing Melligan v. Chater, 1996 WL 1015417, at
*8 (W.D.N.Y. Nov. 14, 1996)).
Plaintiff argues that the ALJ erred at Step Five by determining that Plaintiff could
perform work as an electrical accessories assembler, a production assembler, or a document
preparer. Pl.’s Mem. of Law at p. 29. Specifically, Plaintiff notes that the VE opined that
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a person with Level One reasoning, language, and math skills could not perform the
identified jobs and that a person who would be off-task fifteen percent of the time or who
would miss two days of work a month would be unable to perform any work. Id. The Court
finds these arguments unpersuasive.
As discussed above, Plaintiff has not established that the non-exertional limitations
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he alleges should have been credited by the ALJ, either in relation to a cognitive impairment
or his chronic pain. The ALJ’s analysis of Plaintiff’s limitations and the resulting RFC and
Step Five determinations are supported by substantial evidence. Remand is therefore not
required on these bases.
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IV. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings (Dkt. No. 14) is
DENIED; and it is further
ORDERED, that Defendant’s Motion for Judgment on the Pleadings (Dkt. No. 15)
is GRANTED; and it is further
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ORDERED, that Defendant’s decision denying Plaintiff disability benefits is
AFFIRMED; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED; and 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.
SO ORDERED.
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Date: May 10, 2018
Albany, New York
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