Rodriguez v. Astrue
ORDER ADOPTING REPORT AND RECOMMENDATION adopting 31 Report and Recommendations; 12 Motion for Extension of Time to File filed by Ricardo Rodriguez, 24 Motion for Judgment on the Pleadings filed by Michael J. Astrue. For the foregoin g reasons, the Court adopts the Report in all material respects and finds that the ALJ's decision denying Plaintiff's claims for disability insurance applied the correct legal standards and was supported by substantial evidence. Acco rdingly, Plaintiff's motion for judgment on the pleadings is DENIED and Defendant's cross-motion is GRANTED. The Clerk of the Court is respectfully requested to terminate the motions pending at docket entries 12 and 24, and to close this case. (Signed by Judge Richard J. Sullivan on 9/28/2014) (mro)
I USDS SDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC#:~~~~~~DATE FILED: Q~ - 1. ~ - t c../
No. 12-cv-3931 (RJS) (RLE)
ORDER ADOPTING REPORT AND
CAROLYN W. COLVIN,
Acting Commissioner ofSocial Security,
RICHARD J. SULLIVAN, District Judge:
Plaintiff Ricardo Rodriguez brings this action pursuant to § 205(g) of the Social Security
Act, 42 U.S.C. § 405(g), seeking judicial review of the Social Security Commissioner's final
decision denying his claims for disability insurance. 1 (Doc. No. 1.) Now before the Court is the
Report and Recommendation of the Honorable Ronald L. Ellis, Magistrate Judge, recommending
that the Court deny Plaintiffs motion for judgment on the pleadings and grant Defendant's crossmotion for judgment on the pleadings. (Doc. No. 31 (the "Report").) For the reasons set forth
below, the Court adopts the Report in its entirety.
The facts of the case are described in detail in the Report. (See Report at 2-10.) Put briefly,
Plaintiff was laid off from his employment in 2002 and filed for Social Security disability benefits
on June 4, 2003, claiming that he suffered from gout. (Id. at 2.) After the Social Security
Administration (the "SSA") denied the application a month later, Plaintiff requested a hearing
Plaintiff originally named Michael J. Astrue, the then-Commissioner of Social Security, as
Defendant. On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of Social
Security. Pursuant to Fed. R. Civ. P. 25(d), she is substituted as Defendant. The Clerk of Court
is respectfully directed to correct the caption accordingly.
before an administrative law judge ("ALJ") for the SSA. (Id at 2.) Following the hearing, ALJ
George Yatron found that Plaintiff was not disabled, and the SSA's Appeals Council (the
"Council") denied Plaintiffs request for review. (Id)
Plaintiff brought a civil action in this Court in 2006, but the case was remanded to the
Council by stipulation. (Id) The Council vacated ALJ Yatron's decision and remanded the case
to ALJ Paul Heyman to consider whether Plaintiff"had a severe mental impairment(s)," in addition
to his physical impairments, such that he should have been found disabled. (Id.; Doc. No. 8 ("SSA
Administrative Record" or "R.") at 223-24. 2) ALJ Heyman held a hearing on May 13, 2008
(Report at 2), after which he found Plaintiff to be not disabled. (R. at 199-201.) Plaintiff brought
suit again in this Court, which remanded the case to the Council to reconsider and "more fully
develop the record." (Report at 2-3.) On remand to ALJ Heyman, the Council merged the case
with additional claims that Plaintiff had filed. (Id at 3) The ALJ held another hearing on January
19, 2011, and yet again found that Plaintiff was not disabled. (Id; see also R. at 354.) The Council
denied a request for review, and on May 17, 2012, Plaintiff filed his third suit, which is now before
the Court. (Report at 3.)
On June 26, 2012, the Court referred the case to Judge Ellis. (Doc. No. 4.) On February
8, 2013, Plaintiff filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c), arguing for reversal of ALJ Heyman's findings. (Doc. No. 14.) On May 21,
2013, Defendant filed a cross-motion for judgment on the pleadings. (Doc. No. 24.) On January
14, 2014, Judge Ellis entered his Report recommending that this Court find against Plaintiff. Judge
The SSA Administrative Record is a 667-page filing containing the entire Record of this case.
Due to its size, the Record is broken up into five consecutively-paginated parts, including a
document (Doc. No. 8) and four "attachments" to that document. The Record includes, inter alia,
hearing transcripts, ALJ and SSA decisions, physician notes and assessments, and various other
Ellis concluded that the ALJ applied the correct legal principles in denying Plaintiffs claim, and
that he properly weighed the medical evidence. Specifically, Judge Ellis found that the ALJ
properly applied the five-step sequential analysis required for evaluating social security claims,
see 20 C.F.R. §§ 404.1527, 416.920, and that substantial evidence supported the ALJ's weighing
of the evidence, which consisted of: physical health records, including evaluations from Drs.
Stephen Cha ("Cha"), Minesh Shah ("Shah"), and Juliet Widoff ("Widoff); mental health records,
including an evaluation from psychiatrist Dr. Anthony Stem ("Stem"); examination results from
consulting doctors including Drs. Sharon Revan ("Revan"), Mandakini Patel ("Patel"), and Herb
Meadow ("Meadow"); and notes and an evaluation from a social worker, Jose Rodriguez
("Rodriguez"). (Report at 15-20.)
Plaintiff filed objections to the Report on January 31, 2014 (Doc. No. 32 (the "Objections"
or "Obj.")), and Defendant filed an opposition brief on February 14, 2014 (Doc. No. 33).
Plaintiffs objections challenge Judge Ellis's findings with respect to (1) the ALJ's weighing of
the evidence in making his residual functional capacity ("RFC") finding (see Obj. at 2-12), and
(2) the ALJ's use of vocational expert testimony to find that Plaintiff could serve as a clerical
worker or clerk (see id at 13-14).
II. LEGAL STANDARDS
A. Social Security Benefits Claims
A claimant deemed "disabled" under the Social Security Act is entitled to benefits. 42
U.S.C. § 432(a)(l). The definition of disability - which is "virtually identical" in a disability
insurance case and a Supplemental Security Income ("SSI") case, see Hankerson v. Harris, 636
F.2d 893, 895 n.2 (2d Cir. 1980) - requires a claimant to demonstrate the "inability to do any
substantial gainful activity by reason of any medically determinable physical or mental impairment
... which has lasted or can be expected to last for a continuous period of not less than 12 months."
20 C.F.R. §§ 404.1505(a), 416.905(a).
To determine whether a claimant is disabled, an ALJ must apply a five-step test, 20 C.F.R.
§ 404.1520(a)(4), which the Second Circuit has summarized as follows:
The first step of this process requires the [Commissioner] to determine whether the
If the claimant is not employed, the
claimant is presently employed.
[Commissioner] then determines whether the claimant has a "severe impairment"
that limits [his] capacity to work. If the claimant has such an impairment, the
[Commissioner] next considers whether the claimant has an impairment that is
listed in Appendix 1 of the regulations. When the claimant has such an impairment,
the [Commissioner] will find the claimant disabled. However, ifthe claimant does
not have a listed impairment, the [Commissioner] must determine, under the fourth
step, whether the claimant possesses the residual functional capacity to perform
[his] past relevant work. Finally, if the claimant is unable to perform [his] past
relevant work, the [Commissioner] determines whether the claimant is capable of
performing any other work.
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Perez v. Chafer, 77 F.3d 41, 46 (2d Cir.
The claimant bears the burden of proof for the first four steps, and the Commissioner bears
the burden for the final step. See Brault v. Soc. Sec. Admin., Comm 'r, 683 F.3d 443, 445 (2d Cir.
2012). The ALJ must weigh all medical evidence and other "relevant evidence" he or she receives,
20 C.F.R. §§ 404.1520b(b), 416.927(b), but need not resolve all inconsistences, as long as he or
she makes findings based on substantial evidence. See Laine v. Soc. Sec. Admin., Comm 'r, No.
07-cv-1251 (RO), 2013 WL 2896968, at *4 (S.D.N.Y. June 13, 2013) ("The ALJ is not required
by the regulations to reconcile conflicting medical testimony, but is required to fully assess the
record and provide findings that are supported by substantial evidence in the record.").
When assessing a claimant's claim, the ALJ may use the services of a vocational expert in
order to determine whether the plaintiff could perform his "past relevant work, either as [he]
actually performed it or as
generally performed in the national
C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). In response to hypothetical questions posed by the ALJ,
the expert may offer testimony about whether a person with "the physical and mental limitations
imposed by [plaintiffs] medical impairment(s)" would be able to work. Id § 404.1560(b)(2). The
ALJ may rely on the expert's testimony as long as the facts included in the hypothetical are based
on substantial evidence and "accurately reflect the limitations and capabilities of the claimant."
Calabrese v. Astrue, 358 F. App'x 274, 276 (2d Cir. 2009).
B. District Court Review
In reviewing a denial of Social Security benefits, the Court must accept the ALJ's factual
findings if (1) the ALJ applied the "correct legal standards" and (2) "substantial evidence supports
the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). The Court "review[s] the
administrative record de novo" to make these determinations. Pollard v. Halter, 377 F.3d 183,
188 (2d Cir. 2004). Substantial evidence is "more than a mere scintilla" of evidence and requires
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). The Court
must consider "the entire record, including contradictory evidence and evidence from which
conflicting inferences can be drawn." Snell v. Apfel, 177 F .3d 128, 132 (2d Cir. 1999) (internal
quotation marks omitted). Nonetheless, the existence of contrary evidence does not suffice to find
in favor of Plaintiff if substantial evidence otherwise supports the ALJ' s findings. See Genier v.
Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The Court may reject a finding only if "a reasonable
factfinder would have to conclude otherwise." Brault 683 F.3d at 448 (2d Cir. 2012) (internal
quotation marks omitted) (emphasis in original).
C. Review of the Report and Recommendation
The Court "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l); see also Fed. R. Civ. P.
72(b)(3). If a party properly objects to a finding in the Report, the Court reviews the finding de
novo. 28 U.S.C. § 636(b)(l)(C); see also Fed. R. Civ. P. 72(b)(3). Properly raised objections must
be "clearly aimed at particular findings" in the Report. Harden v. LaClaire, No. 07-cv-4592 (LTS),
2008 WL 4735231, at *1 (S.D.N.Y. Oct. 27, 2008). Therefore, objections may not be "conclusory
or general" and may not simply rehash or reiterate the original briefs to the magistrate judge.
Thomas v. Astrue, 674 F. Supp. 2d 507, 511 (S.D.N.Y. 2009). Moreover, objections generally
may not be new arguments "that were not raised, and thus were not considered, by the magistrate
judge." Jackson v. Brandt, No. 10-cv-05858 (PAC), 2012 WL 2512015, at *6 (S.D.N.Y. June 29,
2012); see also Berbick v. Precinct 42, 977 F. Supp. 2d 268, 273 (S.D.N.Y. 2013) ("A motion
referred to a magistrate judge is not a trial run." (alterations and internal quotation marks omitted)).
Absent proper objections, the Court accepts all parts of the Report that are not clearly
erroneous. See Berbick, 977 F. Supp. 2d at 273. Thus, the Court reviews a party's improper
objections, including those that seek a "second bite at the apple" by "attempt[ing] to relitigate the
entire content" of the arguments made before the magistrate judge, only for clear error. Thomas,
674 F. Supp. 2d at 511. In clear error review, the Court should reverse a finding only if it is "left
with the definite and firm conviction that a mistake has been committed," and not merely if it
"would have decided the case differently." Easley v. Cromartie, 532 U.S. 234, 242(2001) (internal
quotation marks omitted).
Plaintiffs objections largely fail to address the Report and instead target the ALJ's
findings. Accordingly, the Court considers the objections in two categories: (A) those which
merely object to the ALJ's findings and are entitled to review only for clear error, see supra Part
11.C; and (B) those which properly object to the Report and are reviewed de novo. Each of these
categories of objections will be considered in tum.
A. Findings Reviewed for Clear Error
In his submission to the Court, Plaintiff purports to object to (1) the limited weight the ALJ
gave to Stern's opinion; (2) the ALJ's determination that Rodriguez's opinion was unsupported
and entitled to little weight; (3) the sufficiency of evidence that Plaintiff was malingering; (4) the
ALJ's evaluation of Shah's medical assessment; and (5) the ALJ's failure to indicate what weight
was given to Patel's opinion. Because these objections ignore the Report and simply reiterate
arguments made to Judge Ellis, they are not proper objections, and are reviewed only for clear
With regard to the second, third, and fourth objections, the Court easily finds that the
Report was not clearly erroneous in recommending that the Court uphold the ALJ's findings.
However, the first objection, which takes exception to the ALJ's refusal to give Stern's assessment
controlling weight and to the weight ultimately given to Stern's opinion, and the fifth objection,
which challenges the ALJ's failure to specify the weight given to Patel's assessment, present closer
calls that merit further discussion.
I. Stern's Assessment and the Treating Physician Rule
Because the ALJ did not reference the treating physician rule by name, the Court must
conduct a "searching review of the record" to determine whether the Report was clearly erroneous
in recommending affirmance of the limited weight the ALJ gave Stern's opinion. See Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) ("[I]t is unclear on the face of the ALJ's opinion whether
the ALJ considered (or even was aware of) the applicability of the treating physician rule. We
therefore have undertaken a searching review of the record to assure [that plaintiff] received the
rule's procedural advantages.").
According to SSA regulations, a treating physician's opinion must be given "controlling
weight" if it is "well-supported" and "not inconsistent with the other substantial evidence in
[Plaintiffs] case record." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Halloran, 362 F.3d at 32
(noting controlling weight does not apply where "treating physician issued opinions that [were]
not consistent with other substantial evidence in the record"). In determining whether a treating
physician's opinion is consistent with other substantial evidence in the record, "genuine conflicts
in the medical evidence are for the ALJ to resolve." Gunter v. Comm 'r ofSoc. Sec., 361 F. App'x
197, 199 (2d Cir. 2010) (citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).
Even where a treating physician's opinion is not entitled to controlling weight, the ALJ
must consider certain specific factors in determining how much weight the opinion should
ultimately receive, including, inter alia, "(1) the frequen[cy], length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether the physician is a specialist." Selian
v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (citing Burgess, 537 F.3d at 129); see also 20 C.F.R.
§ 404.1527(c)(2) ("When we do not give the treating source's opinion controlling weight, we apply
the factors [listed above] in determining the weight to give the opinion."). "After considering
[these] factors, the ALJ must comprehensively set forth his reasons for the weight assigned to a
treating physician's opinion." Burgess, 537 F.3d at 129; see also 20 C.F.R. § 404.1527(c)(2) ("We
will always give good reasons in our notice of determination or decision for the weight we give
your treating source's opinion."). Failure to provide '"good reasons' for not crediting the opinion
of a claimant's treating physician is a ground for remand." Snell, 177 F.3d at 133.
Here, in weighing Stem's opinion, the ALJ took note of (1) the conflict between the
assessments of Rodriguez and Stem as to whether Plaintiff was malingering (R. at 351), and (2)
Plaintiff also objects to the Report's finding that the ALJ considered this conflict in weighing
Stem's opinion in the first place. However, because this objection was properly made, it will be
reviewed de novo. See infra Part III.B.1.
the conflict between Stern's conclusion that Plaintiff was "markedly limited" in many areas of
functioning due to psychiatric impairments and the treatment notes taken by Stern, Rodriguez, and
Meadow, which reflected a much more positive perspective. (Id.; see also id. at 526-531.) The
ALJ accordingly concluded that Stern's opinion conflicted with substantial evidence in the record
and thus was not owed controlling weight. (R. at 351.)
The Court finds that the conflicts between Stern's opinion and Rodriguez's opinion with
regard to malingering, and between Stern's opinion and the treatment notes of the other mental
health specialists with regard to the severity of Plaintiffs condition, were sufficient to undermine
the presumption of the treating physician rule. Indeed, the Court finds that Stern's answers to the
RFC questionnaire "paint a bleak picture of [Plaintiffs] mental health that is quite at odds with
the treatment notes." Rojas v. Astrue, No. 09-cv-6698 (DLC), 2010 WL 1047626, at *7 (S.D.N.Y.
Mar. 22, 2010). The Report's finding that there was sufficient basis for the ALJ to give limited
weight to Stern's opinion was therefore not clearly erroneous.
Moreover, in determining how much weight to ultimately give Stern's opinion, the ALJ
adequately considered the factors he was required to consider in evaluating the non-controlling
opinion of a treating physician, by outlining in detail the history of Stern's treatment of Plaintiff
and the evidence supporting Stern's assessment. See id. (noting that ALJ "essentially addressed
each of the 'factors"' where ALJ observed that physician "was a psychiatrist, and therefore a
specialist; considered treatment notes spanning the entire period [of treatment]; and considered the
evidence to support [physician's] assessment"). Finally, the ALJ gave "good reasons" for his
decision to give Stern's opinion limited weight, again citing the conflicts with Rodriguez's opinion
regarding malingering and with the treatment notes. (R. at 351; see also, e.g., id. at 515 (observing
Plaintiff had a "pleasant (deceptively upbeat) affect"); 522 (noting Plaintiff was considering going
to college); 526 (noting Plaintiff was "able to sleep considerably better").) Accordingly, the Court
finds no clear error in the Report's conclusion that the ALJ was justified in giving limited weight
to Stem's opinion.
2. Failure to Indicate the Weight Given to Patel's Opinion
Plaintiff further argues that the ALJ's failure to specify the weight given to Patel's opinion
requires remand. (Obj. at 11.) The Court disagrees. First, Judge Ellis was certainly correct in
finding that the ALJ properly considered Patel's evaluation and took the assessment into account
in determining Plaintiff's RFC. (See Report at 19; R. at 346.) That the ALJ did not explicitly
assign a specific, quantifiable weight to the evaluation should not be dispositive. Second, even to
the extent that the ALJ's failure to assign a specific weight to Patel's opinion constituted error, the
failure was a harmless one. See Hammond v. Barnhart, 124 F. App'x 847, 851 (5th Cir. 2005).
The ALJ concluded that Patel's evaluation "further support[ed] the finding that [Plaintiff] can
perform sedentary work activities," and Judge Eilis's determination that this was correct was not
clearly erroneous. (R. at 346; see id. at 114-19 (indicating a "fair" prognosis and otherwise
assessing Plaintiff positively, notwithstanding "moderate to severe impairment [in] sitting,
standing, walking, bending, lifting, climbing and doing [activities of daily living] secondary to
gouty arthritis").) Thus, the Court adopts Judge Eilis's recommendation and rejects Plaintiff's
objection regarding the ALJ's consideration of Patel's opinion.
B. Findings Reviewed De Novo
Plaintiff makes proper objections to the Report regarding Judge Ellis's (1) finding that the
ALJ actually considered the conflict between Stem's opinion and Rodriguez's opinion with regard
to malingering in weighing Stem's assessment; (2) finding that the ALJ considered Plaintiff's
increased functioning when in compliance with medications; (3) conclusion that the ALJ was not
required to reconcile the opinions of treating physicians Shah and Widoff; (4) failure to address
whether the ALJ appropriately weighed the opinion of Cha; and (5) failure to address gaps in the
hypothetical posed by the ALJ to the vocational expert.
Because these objections properly
challenge particular findings in the Report, they must be reviewed de novo. See 28 U.S.C. §
636(b)(l)(C); Fed. R. Civ. P. 72(b)(3).
1. ALJ's Consideration of the Stern and Rodriguez Conflict
Plaintiff objects that Judge Ellis approved of the limited weight the ALJ afforded Stern's
opinion in part because of the conflict between Stern's views and Rodriguez's views regarding
malingering. Plaintiff argues that "there is no evidence [that] the ALJ rejected the opinions from
Dr. Stern on the basis of [Rodriguez's] statement that [Plaintiff] might be a malingerer" (Obj. at
2), and that Judge Ellis's recommended action was thus "based on different grounds than those
provided" by the ALJ. (Id.)
This assertion is plainly incorrect. In explaining his determination that Stern's opinion was
entitled to limited weight, the ALJ noted, immediately following a summary of Stern's opinion,
that "[a]Ithough Dr. Stern indicated that the claimant was not a malingerer, this is not consistent
with the assessment of his colleague. In addition, the limitations reported by Dr. Stern are not
supported by the psychiatric progress notes." (R. at 351.) Since the ALJ clearly relied on the
inconsistencies between Stern's opinion and Rodriguez's opinion with respect to malingering, it
cannot be said that Judge Ellis recommended affirmance on grounds unconsidered by the ALJ.
2. Plaintiffs Functioning with Medication
Plaintiff also objects that Judge Ellis improperly "conclude[d] that the limitations described
by ... Rodriguez are contradicted by evidence [that] Plaintiffs functioning increased when he was
compliant with his medications." (Obj. at 5.) Once again, Plaintiff asserts that this was a finding
"that was not made by the ALJ, and thus, cannot be used to affirm the decision denying benefits."
(Id.) Further, Plaintiff objects that even if the ALJ had concluded this, using it as a basis for
finding Plaintiff to be not disabled would be improper. (Id. at 5-6.)
Contrary to this objection, however, the ALJ did explicitly consider Plaintiffs increased
functioning while on medication in giving Rodriguez's opinion limited weight. (See R. at 351.)
Specifically, the ALJ's decision states: "Mr. Rodriguez's opinion is not entirely supported by
[Plaintiffs] psychiatric progress notes. The treatment records show that the claimant was more
functional when he attended church and took his medication, and that he engaged in many activities
during these periods." (Id.) Nor was it improper for the ALJ to consider, as one of the many
factors he looked to in determining what weight to give to Rodriguez's opinion, that Plaintiff
improved when he took his prescribed medications. See, e.g., Matta v. Astrue, 508 F. App'x 53,
57 (2d Cir. 2013) (upholding ALJ's findings, including that "plaintiffs condition deteriorated only
after he stopped taking his medication," and that plaintiff responded well to treatment).
Accordingly, Judge Ellis's finding was wholly justified.
3. Reconciling the Opinions of Shah and Widoff
Plaintiff next objects to Judge Ellis's finding that the ALJ was not required to reconcile the
opinions of Shah and Widoff, which Plaintiff believes was improper because the assessments of
the two doctors differed slightly. (Obj. at 7-9.) Plaintiff asserts that Judge Ellis should have
recommended a remand so that their opinions could be further reconciled.
(Obj. at 9-10.)
However, since substantial evidence supports the ALJ's conclusion that Shah's and Widoffs
assessments were not materially in conflict and were "generally" consistent with each other specifically concerning Plaintiffs ability to sit for a full day with normal breaks, lift 6 to 10 pounds
or more, and travel by public transportation (R. at 182-83, 249-50)- the ALJ was not required to
reconcile every immaterial distinction between the two. Mongeur v. Heckler, 722 F.2d 1033, 1040
(2d Cir. 1983); see also Laine, 2013 WL 2896968, at *4. Thus, it was clearly not improper for
Judge Ellis to affirm the ALJ's findings without a further remand.
4. Cha's Opinion
Plaintiff also asserts that Judge Ellis overlooked his arguments regarding Cha' s conclusions
that Plaintiff cannot stoop and can stand for less than two hours per day. Plaintiff argues that the
ALJ "failed to properly explain" the decision to give this opinion "some weight, but less weight
than [that given to] other medical opinions" (R. at 346, 349), and that the Report did not address
this flaw. (See Obj. at 10.)
The ALJ rejected Cha's determination that Plaintiff is unable to stoop because it was "not
well supported by the objective laboratory and clinical data in the record and ... not consistent
with any other opinion of record." (R. at 349.) This decision to accord limited weight is well
supported, as contrary to Plaintiffs claims, there is substantial evidence in the record that Plaintiff
is able to stoop. In fact, Shah's answers to the RFC questionnaire indicated not only that Plaintiff
had the ability to stoop, but that he could do so "frequently." (Id. at 250.) A year later, Revan
noted that Plaintiff had "[f]ull ROM [range of motion] of hips, knees, and ankles bilaterally." (Id
at 361.) Given the record before him, the ALJ was certainly entitled to resolve this discrepancy in
favor of Shah and Revan. Gunter, 361 F. App'x at 199 ("[G]enuine conflicts in the medical
evidence are for the ALJ to resolve.").
Similarly, substantial evidence contradicted Cha's finding that Plaintiff could stand or walk
less than two hours per day. (See R. at 249.) Thus, unlike the case Plaintiff cites for the proposition
that the ALJ was required to develop the record to determine "just how much less than 2 hours a
day" Plaintiff could stand (Obj. at 11), see Melendez v. Astrue, 630 F. Supp. 2d 308, 314-15
(S.D.N.Y. 2009), there was no "obvious gap in the administrative record" regarding Plaintiffs
abilities. Rather, there was a small discrepancy in the record, which the ALJ was entitled to resolve
against Plaintiff. See Gunter, 361 F. App'x at 199. Accordingly, even if Judge Ellis overlooked
Plaintiffs arguments regarding Cha's assessment,
5. Gaps in the Hypothetical Posed to the Vocational Expert
Finally, Plaintiff objects that Judge Ellis overlooked alleged deficiencies m the
hypothetical that the ALJ posed to a vocational expert at Plaintiffs administrative hearing on
January 19, 2011. (Obj. at 13.) In the hypothetical, the ALJ asked what jobs a 47-year-old man
with Plaintiffs limitations could perform.
(R. at 656.)
However, Plaintiff argues that the
hypothetical did not incorporate all of the limitations that the ALJ had otherwise recognized in
determining Plaintiffs RFC. (Obj. at 13.) Specifically, Plaintiff argues that the ALJ "found that
[Plaintiff] had moderate difficulties in social functioning and in concentration, persistence, or
pace," but that the hypothetical "only limited [the hypothetical person] to mentally low stress tasks,
no more than occasional contact with the public, and simple repetitive tasks." (Id.)
The out-of-circuit cases Plaintiff cites for the proposition that all limitations must be
referenced in the hypothetical (see Obj. at 13-14), and other cases from this district, indicate that
where, as here, "medical evidence demonstrates that a claimant can engage in simple, routine tasks
or unskilled work despite limitations in concentration, persistence, and pace . . . , limiting the
hypothetical to include only unskilled work sufficiently accounts for such limitations." Winschel
v. Comm'r of Soc. Sec., 631F.3d1176, 1180 (11th Cir. 2011); accord Rivera v. Colvin, No. 11cv-7469 (LTS), 2014 WL 3732317, at *41 (S.D.N.Y. July 28, 2014) (citing Winschel for same
proposition); Marquez v. Colvin, No. 12-cv-6819 (PKC), 2013 WL 5568718, at *17 (S.D.N.Y.
Oct. 9, 2013) (same). Thus, because the ALJ made a well-supported finding that Plaintiff has the
ability to engage in simple, routine tasks and unskilled work despite his limitations, the
hypothetical was not erroneous.
Accordingly, the vocational expert's testimony "accurately
reflect[ed] the limitations and capabilities of' Plaintiff, see Calabrese, 358 F. App'x at 276, and
the ALJ properly relied on it.
For the foregoing reasons, the Court adopts the Report in all material respects and finds
that the ALJ's decision denying Plaintiffs claims for disability insurance applied the correct legal
standards and was supported by substantial evidence.
Accordingly, Plaintiffs motion for
judgment on the pleadings is DENIED and Defendant's cross-motion is GRANTED. The Clerk
of the Court is respectfully requested to terminate the motions pending at docket entries 12 and 24,
and to close this case.
September 28, 2014
New York, New York
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