O'Dell v. Colvin
Filing
29
OPINION AND ORDER re: 27 CROSS MOTION for Judgment on the Pleadings filed by Carolyn W. Colvin, 24 MOTION to Remand to Social Security Administration filed by Patrick O'Dell. For the reasons set forth above, the Commissioner's determination that O'Dell was not disabled within the meaning of the Social Security Act during the period from May 27, 2011 to June 20, 2014 is supported by substantial evidence. Accordingly, the Commissioner's motion for judgment on the pleadings (Dkt. No. 27) is GRANTED and O'Dell's motion (Dkt. No. 24) is DENIED. The Clerk of Court shall close the case. (Signed by Magistrate Judge Andrew J. Peck on 11/22/2016) (cla)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PATRICK JOHN O'DELL,
:
Plaintiff,
:
:
-againstCAROLYN W. COLVIN, Commissioner of
Social Security,
16 Civ. 368 (AJP)
OPINION AND ORDER
:
:
Defendant.
:
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ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Patrick O'Dell brings this action pursuant to § 205(g) of the Social Security
Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security
denying his application for Disability Insurance Benefits ("DIB"). (Dkt. No. 1: Compl.) Presently
before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R.
Civ. P. 12(c). (Dkt. No. 24: O'Dell Notice of Mot.; Dkt. No. 27: Comm'r Notice of Mot.) The
parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). (Dkt. No. 17.)
For the reasons set forth below, the Commissioner's motion for judgment on the
pleadings (Dkt. No. 27) is GRANTED and O'Dell's motion (Dkt. No. 24) is DENIED.
FACTS
Procedural Background
O'Dell filed an application for DIB on November 1, 2012, alleging a disability onset
date of April 27, 2012. (Dkt. No. 21: Administrative Record ("R.") 64, 143-44.) The Social
2
Security Administration ("SSA") denied O'Dell's application on February 15, 2013. (R. 78-81.)
O'Dell requested a hearing before an Administrative Law Judge ("ALJ") on March 5, 2013. (R.
82-83.) On February 27, 2014, O'Dell had a hearing before ALJ Michael J. Stacchini. (R. 28-63.)
At the hearing, represented by counsel, O'Dell amended the alleged disability onset date to May 27,
2011. (R. 30, 36-37.) On June 20, 2014, ALJ Stacchini issued a written decision finding O'Dell not
disabled within the meaning of the Social Security Act. (R. 9-22.) ALJ Stacchini's decision became
the Commissioner's final decision when the Appeals Council denied review on November 19, 2015.
(R. 1-7.)
Non-Medical Evidence and Testimony
Born on October 26, 1982, O'Dell was twenty-eight years old at the alleged May 27,
2011 onset of his disability. (R. 64-65.) In a December 13, 2012 function report (R. 191-201),
O'Dell stated that between waking up in the morning and going to bed at night, he would typically
shower, shave, watch television, take naps, read, use the computer and otherwise stay in bed most
of the time (R. 192). For meals, O'Dell would eat out and "fix quick and simple meals such as
salads, sandwiches [and] soups" two or three days a week. (R. 193.) He stated that he was capable
of performing "[l]ight chores" (R. 194), that he would go outside every day (id.), and that he was
able to drive short distances and shop for basic necessities (R. 195). His hobbies included
performing volunteer administrative services for the fire department. (R. 195.) Depending on how
he was feeling physically and mentally, O'Dell would "spend time with others by visiting them at
their homes, going out to dinner," and by attending sporting events. (R. 196.) O'Dell asserted that
as a result of his physical condition, his ability to lift, stand, walk and sit was "[l]imited." (Id.) He
also stated that his sleep was affected by nightmares, which he attributed to posttraumatic stress
disorder ("PTSD"). (R. 192.) In combination with his anxiety and depression, O'Dell's PTSD made
3
it more difficult to get along with people in authority. (R. 198.) Finally, O'Dell's function report
indicated that he experienced unpredictable chest and neck pain. (R. 200.) For his chest pain, he
would take nitroglycerin, which sometimes made him dizzy. (R. 200-01.) He would take Motrin
for his neck pain as needed. (R. 200.)
During his hearing before ALJ Stacchini on February 27, 2014, O'Dell testified that
he was living with his parents (R. 34), and that he was "not big on being alone" due to the attacks
of angina that occasionally would wake him up at night (R. 56-57). He testified that he did
"minimal" chores at his parents' house, including laundry and preparing meals for himself. (R. 38.)
He stated that he was capable of driving, and that he would go shopping for clothing and personal
necessities. (R. 39.) O'Dell testified that he was "a member of multiple volunteer agencies,"
including an "ambulance corps, . . . a couple of different fire departments[,] . . . an Elks club . . .
[and] the Knights of Columbus." (Id.) He would occasionally "visit[] and chat[]" and "socialize"
at events for these organizations, but stated that he did not "go to too many meetings" anymore.
(Id.)
O'Dell also testified regarding his volunteer work with the fire department (R. 39-41)
and an ambulance company (R. 41), which lasted until January 1, 2014. (R. 40.) He stated that his
duties at the fire department included "making sure that the equipment was there," and calling
vendors when equipment needed repair. (R. 41.) With the ambulance company, O'Dell was the
chief operating officer and "oversaw the daily operation of the vehicles, the paid staff, and the
volunteers." (Id.) Some weeks, however, O'Dell "wouldn't be there at all . . . . [T]here were a lot
of things [he] could do from [his] laptop while [he] was laying in bed at home." (R. 46.) O'Dell
testified that he stopped volunteering because "[i]t became too much . . . . I wasn't able to relax and
. . . it was more than I could handle." (R. 41.)
4
O'Dell worked as a "full duty" police officer (R. 37) from February 2007 until 2010
(R. 74). At some point in 2010, O'Dell was placed on light duty (see R. 36-37), which involved
"answering every call that came in, . . . sitting in a desk, dealing with the people coming into the
building, [and] assigning calls to the . . . units" (R. 38). This period of light duty was the result of
a motor vehicle accident in 2009 (R. 50) and the onset of his angina, which began with his admission
to the ER in October 2010 (R. 42). O'Dell testified that he worked light duty until May 27, 2011 (R.
36), when he resigned from the police department because of "the problems with [his] heart" and
"problems with depression" (R. 41).
With regard to his medical conditions, O'Dell stated that he experiences attacks of
angina that occur at random and with varying severity. (R. 42-43, 56.) Those attacks cause chest
pain (R. 56), and sometimes cause dizziness (R. 43) and/or "some shortness of breath" (R. 56).
O'Dell stated that the most severe attacks feel "like having a large truck parked in the center of [his]
chest." (R. 56.) The attacks would occur at "any time" (R. 42); O'Dell testified that he has "woken
up in the middle of very bad attacks" (R. 56). He further stated that he had not "had any ER visits
since the original onset" of his angina in October 2010, but that he had made emergency visits to his
cardiologist's office in connection with the attacks. (R. 42.) With regard to managing the attacks,
O'Dell testified that "there was nothing more tha[t] could be done other than the taking of
nitroglycerin." (R. 43.)
O'Dell testified that he experienced neck and back pain, which had recently
developed into "left-sided weakness," "a problem with [his] hands shaking," and "some loss of
balance." (R. 43-44.) He attributed these problems to the 2009 motor vehicle accident, and stated
that the problems appeared to be getting worse. (R. 49-51.) He testified that his back and neck pain
"usually maintains a 3 to a 4" on a ten-point scale, but that it has been as bad as seven out of ten.
5
(R. 54.) O'Dell further stated that at the time of the hearing, he was receiving chiropractic treatment
(R. 44) and taking "[o]nly over-the-counter ibuprofen . . . maybe four to five times a week" to
manage his neck and back pain (R. 45-46). He implied that he had not sought more vigorous
medical treatment because he lost his health insurance coverage in May 2012 and therefore was
paying for all treatment out of pocket. (R. 44.) He asserted that, due to his back and neck problems,
he would have to get up and walk around after an hour of sitting if the chair was not comfortable.
(R. 55.)
O'Dell described his mental impairments as "anxiety, depression, [and] . . . posttraumatic stress." (R. 47.) He stated that he has nightmares and "a lot of trouble sleeping at night."
(R. 44.) He further asserted that he has "a very hard time in large crowds especially if [he is] not
. . . with other people that [he is] comfortable with." (Id.) He stated that he has "a lot of anxiety,"
and that even "the most minor thing in the world" can trigger stress or cause him to become upset.
(R. 44-45.) He testified that "sometimes [he] spend[s] two to three days in bed" (R. 47), and he
resigned from his position as a police officer partly because of his "problems with depression" (R.
41). O'Dell admitted that he spent time with friends by going out to eat at restaurants, but asserted
that he did not do much else in the way of socializing. (R. 46.)
Finally, the Court notes that at the beginning of the hearing, O'Dell's counsel
answered "[y]es" when ALJ Stacchini asked: "do I have all medical evidence that bears on disability
. . . including any and all opinions[?]" (R. 33.)
Medical Evidence Before the ALJ
Evidence Pertaining to O'Dell's Angina
Treating Physician Dr. Saleem Choudhry
O'Dell began seeing cardiologist Dr. Saleem Choudhry in 1997. (See R. 485.) On
6
June 21, 2011, O'Dell visited Dr. Choudhry with complaints of "severe chest pain," shortness of
breath and heart palpitations. (R. 424.) Dr. Choudhry noted that O'Dell's attacks of such symptoms
were becoming "more frequent" and "less predictable"; Dr. Choudhry "[a]dvised [O'Dell] not to
return to work because of the stress level." (Id.) During an August 2, 2011 visit, Dr. Choudhry
noted that O'Dell "continues to have severe chest pain mostly with mental stress—mostly connected
to work related issues." (R. 421.) A May 21, 2012 note by Dr. Choudhry stated that he conducted
a stress test due to O'Dell's complaints of chest pain and "[s]evere [h]ypertension." (R. 402, 404.)
The stress test revealed no indication of ischemia1/ and "[n]o significant localized wall motion
abnormalities" in O'Dell's heart. (R. 402.) Additional documents in the record indicate that O'Dell
visited Dr. Choudhry with similar reports of chest pain on October 21, 2011 (R. 418), December 19,
2011 (R. 415), February 20, 2012 (R. 410), and November 27, 2012 (R. 399); O'Dell submitted to
electrocardiogram tests on each of those occasions.
On November 29, 2012, Dr. Choudhry filled out a Medical Source Statement of
Ability to Do Work-Related Activities (Physical). (R. 384-89.) In sections of that form prompting
Dr. Choudhry to estimate the amount O'Dell could lift or carry, Dr. Choudhry wrote "unknown."
(R. 384.) Dr. Choudhry also indicated on the form that O'Dell "has Prinzmetal's Angina"2/ and that
"it is unknown when he will have an attack." (Id.) The rest of the form—which contained
additional sections prompting Dr. Choudhry to indicate, inter alia, O'Dell's ability to sit, walk and
1/
"Ischemia" is "deficiency of blood in a part, usually due to functional constriction or actual
obstruction of a blood vessel." Dorland's Illustrated Medical Dictionary at 961 (32d ed.
2012).
2/
"Prinzmetal's angina" is "a variant of angina pectoris, often considered a form of unstable
angina, in which the attacks occur during rest, exercise capacity is often well preserved . . . .
Focal spasm of an epicardial coronary artery causes transient abrupt reduction of arterial
diameter, resulting in myocardial ischemia." Dorland's Illustrated Medical Dictionary at 83.
7
stand—was left blank. (See R. 385-89.)
The record contains a second Medical Source Statement of Ability to Do WorkRelated Activities (Physical) by Dr. Choudhry, dated January 31, 2014. (R. 513-18.) Dr. Choudhry
checked boxes corresponding to estimates of O'Dell's ability to lift and carry certain weights at
specified intervals and indicated his opinion that O'Dell was capable of sitting, standing and walking
for one hour without interruption. (See R. 513-14.) Dr. Choudhry, however, noted that his estimates
were "approximate" and that O'Dell's actual abilities were "in fact unknown." (Id.) On the latter
pages of the form, Dr. Choudhry once again declined to offer specific estimates of O'Dell's abilities
by writing "unknown" in numerous places. (R. 514-18.) Dr. Choudhry also wrote on the form that
O'Dell was "unable to function as a police officer" (R. 518), and that this assessment was supported
by tests which "included stress test, Holter, echocardiogram, and coronary angiogram" (R. 513).
Finally, the record contains a letter from Dr. Choudhry dated January 31, 2014 (R.
512), stating in full:
Mr. O'[D]ell is seen under my care. He is diagnos[ed] with [P]rinzmetal's angina.
In my opinion, this patient gets severe chest tightness, diaphoresis,3/ shortness of
breath and dizziness, which could result in acute myocardial infarction. In view of
the above this patient is totally and permanently disabled.
(R. 512.)
Examining Physician Dr. Iftikhar Ali
On January 15, 2013, Dr. Iftikhar Ali conducted an internal medicine examination
of O'Dell pursuant to a referral from the Division of Disability Determination. (R. 497.) Dr. Ali
stated that O'Dell complained of chest pains that first began on October 3, 2010 after O'Dell "had
an argument with his boss." (Id.) The report further states that as a result of that incident, O'Dell
3/
"Diaphoresis" is "sweating." Dorland's Illustrated Medical Dictionary at 509.
8
"was diagnosed as having spastic unstable angina." (Id.) O'Dell described subsequent "on and off
attacks of the chest discomfort and the severity of the pain is 4/10." (Id.)
[O'Dell] described it as having sometimes three attacks in a day or sometimes an
attack after every one to three days or in a week. When he has chest discomfort and
the chest pain, he takes nitroglycerin spray, or patch, or the tablet and that pain lasts
for only five to seven minutes. After that the pain disappears, but he still feels some
flushing sensations.
(Id.)
Dr. Ali's report discussed O'Dell's history of hypertension. (R. 498.) Dr. Ali noted
that "[s]ometimes [O'Dell] does feel lightheadedness. Other than that there is no associated
symptoms" of hypertension. (Id.) O'Dell reported to Dr. Ali that his hypertension "is pretty much
under control with the medications" he takes. (Id.)
O'Dell also told Dr. Ali that "[h]e is able to do cooking, cleaning, laundry, and
shopping. He can shower, bathe, and dress himself. He spends his time watching TV, listening to
the radio, going to restaurants and social clubs, and spends time with his buddies in the EMS and
the Fire Department." (R. 498-99.)4/
Dr. Ali opined that during his examination, O'Dell's heart exhibited a "[r]egular
rhythm" with "[n]o murmur, gallop, or rub audible." (R. 499.) Dr. Ali concluded that O'Dell has
"no restriction" but "must carry his nitroglycerin spray and patch all the time." (R. 500.) Dr. Ali
also opined that O'Dell "should avoid activities requiring moderate exertion or greater secondary
4/
ALJ Stacchini twice cites Dr. Ali's report in support of the statement that O'Dell "goes out
to restaurants and climbs." (R. 15, 20.) Dr. Ali's report, however, instead states that O'Dell
"spends his time . . . going to restaurants and social clubs." (R. 498, emphasis added.)
Nowhere does Dr. Ali's report state that O'Dell "climbs" (see R. 497-501), and no such
statement appears elsewhere in the record. ALJ Stacchini's disability determination does not
place any significant weight on O'Dell's "climbing." (See generally R. 14-21.) It appears
that ALJ Stacchini's assertion that O'Dell "climbs" is a typo, and that ALJ Stacchini intended
to state that O'Dell "goes out to restaurants and clubs."
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to angina." (R. 500-01.)
Reviewing Cardiologist Dr. A. Auerbach
On December 28, 2012, the New York State Office of Temporary and Disability
Assistance sent O'Dell's medical records to cardiologist Dr. A. Auerbach for review. (R. 490.) Dr.
Auerbach reported that O'Dell's "stress tests have been negative," his "[e]chocardiograms have been
normal without significant valvular disease," and that his "cardiac exams have been stable and
without signs of failure." (Id.) Dr. Auerbach also noted that O'Dell underwent a cardiac
catheterization in December 2010 that "only demonstrated a discrete 20%, nonobstructive, lesion
in the proximal LAD," and that "[t]here has been mention that mental stress aggravates [O'Dell's]
chest pain." (Id.) Dr. Auerbach opined that O'Dell's hypertension "appears under adequate control,"
and that "[b]ased on the available medical evidence, no cardiac MDI [medically determinable
impairment] has been demonstrated that would have significant impact" on O'Dell's residual
functional capacity. (Id.)
Reviewing Cardiologist Dr. Stanley L. Halprin
On March 18, 2013, cardiologist Dr. Stanley Halprin evaluated O'Dell's medical
records in connection with O'Dell's application for retirement benefits with the police department.
(R. 528.) Dr. Halprin's report5/ states that O'Dell's stress tests were not positive for abnormalities
and, in fact, "could be considered negative." (Id.) Dr. Halprin also observed that all of O'Dell's
"electrocardiograms noted and documented in the record were within normal limits and there was
5/
Dr. Halprin's report was three pages in length, but the second page is missing from the
record. (See R. 528-29.) Because the administrative record's pagination remains consistent,
the Court assumes that the same page was missing from the record before ALJ Stacchini.
(Id.) Thus, only those aspects of Dr. Halprin's opinion adequately supported by the
information contained in the record are relied upon herein. (See pages 34, 48 below.)
10
no abnormal EKGs consistent with coronary artery spasm seen." (R. 529.) As a result of his review
of O'Dell's records, Dr. Halprin concluded that there was insufficient evidence "to state
unequivocally that this patient is suffering from coronary artery spasm." (Id.) Dr. Halprin opined,
moreover, that "[i]t is certainly conceivable that [O'Dell's] chest pain occurs as a result of his
anxiety." (Id.)
Evidence Pertaining to O'Dell's Back and Neck Pain
Chiropractor Dr. Patrick M. Malouf
O'Dell began seeing chiropractor Dr. Patrick Malouf in February 2011.6/ (See R.
504.) In a report prepared for the New York State Office of Temporary and Disability Assistance
on January 22, 2013 (R. 504-11), Dr. Malouf relayed O'Dell's subjective complaints of neck pain
and apparent hyperkyphosis.7/ (R. 504.) Dr. Malouf stated that O'Dell had received six chiropractic
spinal correction procedures and described O'Dell's prognosis as "poor." (R. 505.) Dr. Malouf
opined that O'Dell showed signs of subluxation8/ in his C5, C6, and C7 vertebrae with a "possible
fracture of right C7 lamina." (R. 506.)
In a letter written by Dr. Malouf on January 22, 2014—one year after his report to
the state of New York—Dr. Malouf stated that "O'Dell sustained injuries to his neck and back on
6/
ALJ Stacchini's opinion incorrectly refers to Dr. Malouf as "Dr. Malone," and also
incorrectly identifies Dr. Malouf as a "treating physician" rather than a treating chiropractor.
(See pages 48-50 & n.38 below.)
7/
"Kyphosis" is "abnormally increased convexity in the curvature of the thoracic vertebral
column as viewed from the side." Dorland's Illustrated Medical Dictionary at 992 (32d ed.
2012).
8/
"Subluxation" is "in chiropractic, any mechanical impediment to nerve function; originally,
a vertebral displacement believed to impair nerve function." Dorland's Illustrated Medical
Dictionary at 1791.
11
12-07-2007 doing work related activities." (R. 511.) The letter asserts that O'Dell received
treatment in Dr. Malouf's office five times in 2011, one time in 2012, and twice in 2013. (Id.) Dr.
Malouf further opined that during an examination on January 14, 2014, O'Dell "was exhibiting signs
of myelopathy, abnormal upper extremity reflexes, left upper extremity muscle weakness, and a loss
of balance in his lower extremities." (Id.) Dr. Malouf stated that thoracic MRIs taken on December
18, 2007 showed that O'Dell "has multiple areas of disc herniations, T6-7-8 are of particular concern
as they abut the spinal cord." (Id.)
Dr. Malouf also prepared a Doctor's Initial Report for the New York State Workers'
Compensation Board on January 27, 2014. (R. 569-72.) In that report, Dr. Malouf stated that O'Dell
is experiencing neck pain and that he is suffering from "cervical and thoracic disc herniations
affecting the spine and nerve roots." (R. 569-70.) Dr. Malouf's report also noted O'Dell's subjective
complaints of numbness, tingling, loss of balance in his legs, weakness in his left hand, pain and
stiffness. (Id.) Dr. Malouf reported restrictions in O'Dell's range of motion, pain and tenderness
in his spine, palpable muscle spasm in his spine, and weakness in his upper left extremity. (R. 571.)
Dr. Malouf described O'Dell's prognosis as "poor" and recommended further "chiropractic
manipulation to the spine" as treatment. (Id.)
On January 30, 2014, Dr. Malouf completed a Medical Source Statement of Ability
to Do Work-Related Activities (Physical) form. (R. 522-27.) Dr. Malouf opined that O'Dell could
lift up to twenty pounds frequently,9/ up to 100 pounds occasionally,10/ and that he could carry up
9/
The form defines "frequently" as "from one-third to two-thirds of" an eight-hour workday
in a five-day workweek. (R. 522.)
10/
The form defines "occasionally" as "very little to one third of" an eight-hour workday in a
five-day workweek. (R. 522.)
12
to ten pounds frequently and up to 100 pounds occasionally. (R. 522.) Dr. Malouf also assessed that
O'Dell could sit, stand, or walk for one hour without interruption; O'Dell could sit for four hours
total in an eight-hour workday, and both stand and walk for two hours total in an eight-hour
workday. (R. 523.)11/
In support of these assessments, Dr. Malouf cited "MRI findings of cervical disc
herniations and thoracic herniations that abut the spinal cord." (R. 522.) He also noted that O'Dell's
most recent chiropractic examination revealed "asym[m]etrical DTR reflexes in the upper extremity
as well as hyper-reflexive lower extremity DTR." (Id.) Dr. Malouf opined that "[d]ue to [O'Dell's]
MRI results of spinal cord compression due to herniated disc as a result of trauma he cannot work
as a policeman." (R. 527.) Dr. Malouf asserted that O'Dell's limitations had lasted or would
continue to last for at least twelve consecutive months. (Id.)
In an April 22, 2014 Doctor's Progress Report (R. 582-83) completed in connection
with O'Dell's application for worker's compensation, Dr. Malouf stated that O'Dell presented with
"subjective complaints [of] thoracic pain radiating into both legs with weakness," that O'Dell had
been referred for EMG/NCS testing and a thoracic MRI (R. 583), and that he had been diagnosed
with thoracic disc herniation with myelopathy (R. 582). In similar report dated June 3, 2014, Dr.
Malouf stated that O'Dell reported "subjective complaints [of] cervical pain radiating into both arms
11/
Dr. Malouf also indicated that O'Dell was capable of frequently reaching, handling,
fingering, feeling, pushing and pulling (R. 524); frequently climbing stairs and ramps; could
occasionally balance, kneel, crouch and crawl (R. 525); but he could never stoop or climb
ladders or scaffolds (id.). Dr. Malouf stated that O'Dell should never be exposed to
unprotected heights; occasionally could be exposed to moving mechanical parts; could
frequently operate a motor vehicle; and could continuously be exposed to humidity, wetness,
dust, odors, fumes, pulmonary irritants, extreme cold, extreme heat and vibrations. (R. 526.)
13
with weakness." (R. 566.)12/
A May 21, 2014 MRI of O'Dell's cervical spine revealed "[n]o evidence of disc
herniation or spinal canal stenosis" and a "[s]mall disc bulge at T2-3." (R. 543.) A May 23, 2014
MRI of his thoracic spine revealed "[m]inimal superior endplate depression of the T6 vertebral
body," "[d]isc bulging at the T2-3 and T6-7 levels resulting in flattening and deformity of the ventral
aspect of the cord without cord compression," and disc bulging at the T4-5 and T7-8 levels
"resulting in effacement of the thecal sac." (R. 550.) The May 23, 2014 MRI also indicated that
O'Dell's spinal cord demonstrated "normal signal intensity on all pulse sequences." (Id.) On June
5, 2014, O'Dell underwent electromyographic and nerve conduction testing that indicated "[c]hronic
left C7 radiculopathy." (R. 545.) A June 11, 2014 x-ray study of O'Dell's cervical spine revealed
"[m]ild to moderate degenerative changes . . . of C1," but that "[t]he remainder of the complete
cervical spine x-ray series, including flexion and extension views is otherwise unremarkable." (R.
552.) On August 13, 2014, O'Dell underwent a Spinal Biomechanical Engineering study that
revealed O'Dell's C1-C7 cervical spine to be "within normal rotational limits," and his C2-C7
cervical spine to be "within normal limits for segmental translation." (R. 554-55.) The test
interpreter for that study opined that O'Dell "does not qualify for a whole body impairment." (R.
555.)
Examining Physician Dr. Iftikhar Ali
In the January 15, 2013 report prepared by Dr. Iftikhar Ali following his in-person
12/
The record contains additional Doctor's Progress Reports dated after ALJ Stacchini rendered
his decision. (See R. 573-79.) Although new and material evidence may be submitted to
the Appeals Council subsequent to an ALJ decision, such evidence must "relate[] to the
period on or before the date of the administrative law judge hearing decision." 20 C.F.R.
§ 404.970(b); see also, e.g., Cahill v. Colvin, 12 Civ. 9445, 2014 WL 7392895 at *31
(S.D.N.Y. Dec. 29, 2014). The Court therefore does not address these later reports.
14
examination of O'Dell (R. 497), Dr. Ali stated that O'Dell presented with complaints of "intermittent
neck pain" that began in 2009. (R. 498.) O'Dell told Dr. Ali that his neck pain is mostly an
"uncomfortable feeling," which he would rate as a one or two on a ten-point scale. (Id.) O'Dell
further reported that the pain "comes and goes," and that it appeared to be aggravated by sitting or
lying in certain positions. (Id.) On examination, Dr. Ali found that O'Dell's gait and stance were
normal, that he used no assistive devices, and that he was able to rise from a chair and get on and
off the exam table without difficulty. (R. 499.) Dr. Ali further reported that O'Dell's cervical and
lumbar spine showed "full flexion, extension, lateral flexion bilaterally, and full rotary movement
bilaterally." (R. 500.) O'Dell had a full range of motion in his shoulders, elbows, forearms, wrists,
hips, knees and ankles bilaterally. (Id.) O'Dell's reflexes were "physiologic and equal," he had no
sensory deficit, and his strength was "5/5 in the upper and lower extremities." (Id.) Dr. Ali
ultimately diagnosed O'Dell with intermittent neck pain but articulated no neck-related limitations
on O'Dell's functioning. (See R. 500-01.)
Evidence Pertaining to O'Dell's Mental Impairments
Treating Physician Dr. Thomas Van Aken
O'Dell began visiting treating psychiatrist Dr. Thomas Van Aken on June 9, 2010.
(R. 301.) The record contains progress notes indicating that between June 9, 2010 and the alleged
May 27, 2011 onset date of O'Dell's disability, Dr. Van Aken treated O'Dell for anxiety and
depression. (See R. 288-95, 300.) Those notes also show that O'Dell's dosages of anxiety and
depression medications remained relatively stable up to and during the disability period. (See id.)
A progress note from August 22, 2011, for example, states that there was no change in O'Dell's
diagnosis or treatment plan, which included prescriptions for Xanax and Effexor. (R. 291.) An
August 22, 2011 workers' compensation Doctor's Progress Report filled out by Dr. Van Aken states
15
that O'Dell was suffering from anxiety, depression and panic. (R. 297-98.) The report also states
that O'Dell's most recent examination revealed "no change" in his condition, and that he was "still
nervous and depressed, unable to function." (R. 298.) Dr. Van Aken further opined that O'Dell was
"unable to work for psychiatric issues"—namely, because he was "too nervous [and] depressed."
(Id.) In a letter also dated August 22, 2011, Dr. Van Aken opined that O'Dell "is unable to work due
to his anxiety and depression" (R. 296), but provided no details on how O'Dell's anxiety and
depression affect him on a day-to-day basis (see id.).
Treating Physician Dr. Paul Schefflein
In a Primary Physician's Statement of Disability form dated December 10, 2011, Dr.
Paul Schefflein stated that O'Dell presented with subjective complaints of anxiety and depression,
and that he had been diagnosed with the same. (R. 390-92.) Dr. Schefflein also indicated that
O'Dell's present condition was "of such nature as to permanently disable [him] from performing all
the duties of his . . . present position" as a police officer, and that O'Dell's prognosis was "guarded."
(R. 391.)
Dr. Schefflein also submitted a Medical Source Statement of Ability to Do Work
Related Activities (Mental) form, dated November 6, 2012. (R. 380-82.) Dr. Schefflein indicated
that O'Dell suffered from depression, anxiety and PTSD. (R. 380-81.) Dr. Schefflein opined that
as a result of those conditions, O'Dell had no limitations in his ability to interact appropriately with
the public, supervisors, or coworkers (R. 381); O'Dell had "slight"13/ limitations in his ability to
13/
"Slight" is defined on the form as "some mild limitations in this area, but the individual can
generally function well." (R. 380.)
16
understand, remember, and carry out short, simple instructions (R. 380); and he had "moderate"14/
limitations in his ability to understand and remember detailed instructions, carry out detailed
instructions, make judgments on simple work-related decisions, respond appropriately to work
pressures in a usual work setting, and respond appropriately to changes in a routine work setting (R.
380-81).
On January 27, 2014, Dr. Schefflein submitted a second Medical Source Statement
of Ability to Do Work Related Activities (Mental). (R. 519-21.) Dr. Schefflein indicated that
O'Dell suffered from "PTSD coupled [with] multiple medical [problems]." (R. 519-20.) Dr.
Schefflein asserted that O'Dell had no limitations in his ability to understand, remember, and carry
out simple instructions (R. 519); no limitations in his ability to interact appropriately with the public,
supervisors and co-workers (R. 520); "mild"15/ limitations in his ability to make judgments on simple
work-related decisions (R. 519); moderate limitations in his ability to understand and remember
complex instructions (id.); moderate to "marked"16/ limitations in his ability to carry out complex
instructions and make judgments on complex work-related decisions (id.); and marked limitations
in his ability to respond appropriately to usual work situations and to changes in a routine work
setting (R. 520).
Examining Psychologist Dr. Amy S. Cohen
On January 15, 2013, consultative psychiatrist Dr. Amy S. Cohen examined O'Dell
14/
"Moderate" is defined on the form as "moderate limitation in this area but the individual is
still able to function satisfactorily." (R. 380.)
15/
"Mild" is defined on the form as "slight limitation in this area, but the individual can
generally function well." (R. 519.)
16/
"Marked" is defined on the form as "serious limitation in this area. There is a substantial
loss in the ability to effectively function." (R. 519.)
17
in connection with his DIB application. (R. 492-96.) O'Dell reported that he was "currently
unemployed due to unstable angina and PTSD." (R. 492.) He stated that he was having difficulty
sleeping, and that he wakes up as much as three times a night. (R. 493.) He also told Dr. Cohen that
"he has not been the same since" a motor vehicle accident that occurred while he was responding
to a call as a police officer. (Id.) O'Dell reported that while working as a police officer, he was
involved in a physical fight with another officer and was made to feel that his colleagues did not
"'have [his] back.'" (Id.) O'Dell reported "increased feelings of paranoia and hatred," accompanied
by "flashbacks and nightmares" of his accident and "dreams about being shot by another officer."
(R. 493-94.)
With regard to his activities of daily living, O'Dell reported to Dr. Cohen that he
"cleans and does laundry once to twice a week, and shops once to four times a week." (R. 495.) He
reported that he dressed, bathed and groomed himself on daily basis. (Id.) O'Dell stated that "[h]e
watches TV, listens to the radio, goes out to restaurants and social clubs, socializes with friends, and
volunteers for the EMS and fire department as Captain." (Id.)
Upon examination, Dr. Cohen found O'Dell to be "cooperative and well related,"
"adequately groomed," and "[c]oherent and goal directed with no evidence of hallucinations or
delusions." (R. 494.) O'Dell's affect was "[d]epressed" and "hopeless." (Id.) Dr. Cohen assessed
that O'Dell's attention, concentration and recent and remote memory skills were intact. (R. 495.)
She further opined that O'Dell's intellectual functioning was below average, but that his insight and
judgment were good. (Id.) Based on her examination, Dr. Cohen concluded that:
[O'Dell] can follow and understand simple directions. He can perform simple tasks
independently and with supervision. He can maintain attention and concentration
and learn new tasks. [O'Dell] is capable of performing some complex tasks
independently and with supervision. He can make appropriate decisions. He is
having difficulty relating socially and he is very challenged in dealing with stress.
18
(Id.) Dr. Cohen opined that this assessment "appear[s] to be consistent with psychiatric-related
problems and these may significantly interfere with [O'Dell's] ability to function on a daily basis."
(Id.)
Dr. Cohen ultimately diagnosed O'Dell with PTSD, "[m]ajor depressive disorder,
severe, recurrent, without psychotic features," and "[a]cute stress disorder." (R. 496.) She stated
that O'Dell's prognosis was "[g]uarded to fair," and recommended that O'Dell continue
psychotherapy and psychotropic medication management. (Id.) She also opined that O'Dell
required vocational training. (Id.)
Examining Psychiatrist Dr. Jeffrey H. Newton
On April 29, 2013, psychiatrist Dr. Jeffrey Newton examined O'Dell in connection
with his application for police department retirement benefits. (R. 531-39.) The purpose of Dr.
Newton's examination was to determine whether O'Dell's February 27, 2009 motor vehicle accident
and October 3, 2010 altercation with a superior officer "were the competent producing cause of a
posttraumatic stress disorder condition alleged to render [O'Dell] permanently disabled and unable
to perform the duties of the position of Police Officer." (R. 531.) O'Dell reported that he was
experiencing anxiety problems, daily panic attacks, left hand shaking, "'horrendous'" depression, and
feelings of hopelessness and uselessness. (Id.) O'Dell also indicated that he had been engaging in
impulsive behavior, such as getting "thirty-five tattoos since leaving the Department." (R. 532.)
As a result of Dr. Newton's examination of O'Dell and review of his medical records,
Dr. Newton diagnosed O'Dell with generalized anxiety disorder. (R. 538.) Dr. Newton observed
that O'Dell had "a history of anxiety and anxiety-related conditions going back well before his time"
at the police department, and that by O'Dell's own report, "his anxiety problems did not prevent him
19
from functioning" as a police officer. (Id.) Dr. Newton disagreed with Dr. Schefflein's opinion that
O'Dell's mental and physical disorders stemmed from the 2009 motor vehicle accident and/or the
2010 altercation. (R. 538-39.) Rather, Dr. Newton opined that O'Dell reported no "decrement in
his performance as a police officer which might be attributed to" his 2009 accident, and that the
2010 altercation with his supervisor did not "so disrupt[] his psychological equilibrium as to render
him unable to continue to function as a police officer." (R. 539.) Dr. Newton concluded that O'Dell
"is not permanently disabled and unable to perform the duties of the position of police officer." (Id.)
Reviewing Medical Consultant Michelle Marks
On January 28, 2013, consultant Dr. Michelle Marks reviewed O'Dell's records and
assessed his mental residual function capacity in connection with his DIB application. (R. 72-75.)
Dr. Marks opined that O'Dell does not have understanding and memory limitations, but that he does
have limitations in "sustained concentration and persistence." (R. 72.) She further opined that
O'Dell was not significantly limited in his ability to carry out very short and simple instructions,
perform activities within a schedule, sustain an ordinary routine without special supervision, work
in coordination with or in proximity to others without being distracted by them, and make simple
work-related decisions. (R. 72-73.) Dr. Marks assessed that O'Dell was moderately limited in his
ability to carry out detailed instructions, maintain attention and concentration for extended periods,
respond appropriately to changes in a work setting, and to "complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest period." (R. 73.) Dr. Marks
concluded that O'Dell "did not handle stress well and was injured by stressful experiences on the
job" (id.), but that O'Dell could "return to less stressful work" (R. 75).
20
Vocational Expert Testimony
Vocational expert Linda Stein testified at O'Dell's hearing. (R. 58-62.) ALJ
Stacchini asked Stein to list possible jobs for a person of O'Dell's age, education, and work
experience who is able to do the full range of light work, with the caveat that he should be allowed
to alternate between sitting and standing every hour; he should not be required to climb ladders, and
should be limited to only occasional climbing of ramps, stairs, ropes, scaffolds; he should be limited
to only occasional balancing, stooping, kneeling, crouching, crawling, exposure to unprotected
heights, and moving mechanical parts; he could engage in frequent reaching, handling, and
fingering; he should be limited to a job that involves only "simple, routine tasks such as those
demanded of SVP: 2 jobs or less,"17/ and "low stress" jobs defined as those involving only occasional
decision making and changes in the workplace. (R. 59.) Stein opined that a person with those
limitations could work as a ticket taker, cashier or information clerk. (R. 59-60.)
ALJ Stacchini asked Stein to consider a second hypothetical person with the same
limitations discussed above, but with the added limitation that the person be capable of performing
only sedentary work. (R. 60.) Stein responded that such a person would be capable of working as
a surveillance system monitor, a telephone order clerk ("like for room service") and an information
clerk. (R. 60-61.) Lastly, ALJ Stacchini asked Stein to assume the same limitations as the second
17/
"SVP," which stands for specific vocational preparation, "is defined as the amount of lapsed
time required by a typical worker to learn the techniques, acquire the information, and
develop the facility needed for average performance in a specific job-worker situation." U.S.
Dep't of Labor, Dictionary of Occupational Titles Appendix C (4th ed. 1991), available at
http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM (last visited Nov.
22, 2016). An SVP of two corresponds to unskilled work, see SSR 00-4p, 2000 WL
1898704 at *3 (Dec. 4, 2000), requiring more than a "short demonstration up to and
including 1 month" of vocational training, U.S. Dep't of Labor, Dictionary of Occupational
Titles Appendix C (4th ed. 1991), available at http://www.oalj.dol.gov/PUBLIC/DOT/
REFERENCES/DOTAPPC.HTM (last visited Nov. 22, 2016).
21
hypothetical, but with the caveat that the person be permitted to be off task for twenty percent of the
work period in addition to regularly scheduled breaks. (R. 61.) Stein opined that such a person
could not work any jobs. (Id.)
ALJ Stacchini's Decision
On June 20, 2014, ALJ Stacchini denied O'Dell's application for benefits. (R. 9-22.)
ALJ Stacchini applied the appropriate five step legal analysis. (R. 12-14.) First, he found that
O'Dell "has not engaged in substantial gainful activity since May 27, 2011, the amended alleged
onset date." (R. 14.) Second, ALJ Stacchini found that O'Dell had "the following severe
impairments: depressive disorder; anxiety disorder; PTSD; angina; hypertension; neck subluxation;
hyperkyphosis; and degenerative joint disease of the cervical and thoracic spines." (Id.) Third, ALJ
Stacchini found that O'Dell did "not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments." (R. 14-15.) ALJ Stacchini
specifically addressed O'Dell's mental impairments, concluding that those impairments were not
severe based on O'Dell's activities of daily living, the opinion of Dr. Cohen, and O'Dell's lack of
reported episodes of decompensation, a residual disease process resulting in marginal adjustment,
or a history of one or more years' inability to function outside a highly supportive living
arrangement. (R. 15.)
ALJ Stacchini determined that O'Dell had the residual function capacity ("RFC") to
perform light work as defined in 20 CFR 404.1567(b). [O'Dell] . . . needs to
alternate sitting and standing at one hour intervals throughout the day. He is able to
occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. He
is able to occasionally balance, stoop, kneel, crouch, and crawl; frequently reach,
handle, and finger with the left [hand]; and occasionally work from unprotected
heights, and [with] moving mechanical parts. He is limited to simple routine tasks
such as those demanded of SVP 2 jobs or less in a low stress job defined as having
only occasional decision making and changes in the work place.
22
(R. 15-16.)
ALJ Stacchini accorded "little" weight to Dr. Van Akan's opinion that O'Dell was
unable to work due to his nervousness and depression. (R. 16.) ALJ Stacchini stated that Dr. Van
Akan's opinion was "conclusory" and "not supported by Dr. Van Akan's own treatment notes,
indicating a conservative treatment and various activities of daily living." (Id.) On the other hand,
ALJ Stacchini gave "great" weight to Dr. Schefflein's opinion that O'Dell's mental impairments
produced moderate to marked limitations in only some areas of mental functioning. (R. 17.) ALJ
Stacchini observed that Dr. Schefflein was a treating source, and that his opinion was consistent with
his treatment notes in the record. (Id.) ALJ Stacchini similarly accorded "great" weight to Dr.
Cohen's opinion that O'Dell had problems dealing with stress because she examined O'Dell and her
opinion was supported by the clinical findings made during her examination. (Id.) He gave only
"some" weight to Dr. Newton's opinion that O'Dell was not disabled because the record
demonstrated that O'Dell was physically unable to perform the duties of a police officer. (R. 18.)
ALJ Stacchini provided "significant" weight to Dr. Marks' opinion regarding O'Dell's moderate
mental function limitations because she reviewed the record, and because her opinion was consistent
with Dr. Schefflein's. (Id.)
With regard to O'Dell's physical limitations, ALJ Stacchini accorded "little" weight
to Dr. Choudhry's opinion that O'Dell's angina rendered him totally and permanently disabled
because that opinion was inconsistent with O'Dell's activities of daily living, his conservative course
of treatment, and with the opinion of reviewing physician Dr. Halprin. (R. 19.) ALJ Stacchini
noted, however, that Dr. Choudhry's opinion that O'Dell was totally disabled appeared to be directed
at O'Dell's past work as a police officer. (Id.) ALJ Stacchini provided only "some" weight to Dr.
Auerbach's opinion that O'Dell's angina did not significantly impact his RFC because that opinion
23
was not supported by a physical examination of O'Dell, and because Dr. Auerbach did not define
"significant impact." (R. 17.) He provided "some" weight to Dr. Ali's opinion that O'Dell's angina
produced no functional limitations on O'Dell's ability to work because the record indicated that it
was unlikely that O'Dell could sustain medium work. (R. 18.) He also provided "some" weight to
Dr. Halprin's opinion regarding the origin of O'Dell's chest pain, noting that opinion did not include
any functional limitations on O'Dell's ability to work. (R. 18-19.) ALJ Stacchini gave "little"
weight to Dr. Malouf's estimates of the functional limitations stemming from O'Dell's neck pain
because that opinion was inconsistent with O'Dell's activities of daily living and conservative
treatment history. (R. 19.)
ALJ Stacchini also concluded that O'Dell's "statements concerning the intensity,
persistence and limiting effects" of his impairments, including neck pain, angina, and PTSD, were
"not entirely credible." (R. 16.) He supported this credibility determination with a review of the
medical evidence of record, as well as O'Dell's own testimony regarding his daily activities and
volunteer work. (R. 16-20.)
At the fourth step, ALJ Stacchini determined that O'Dell's RFC precluded his past
relevant work as an EMT or police officer, but that given O'Dell's "age, education, work experience
and residual functional capacity," jobs "exist in significant numbers in the national economy" that
he can perform. (R. 20-21.) ALJ Stacchini noted that O'Dell is considered a younger individual
with a high school education and able to communicate in English. (R. 20.) ALJ Stacchini relied on
vocational expert Stein's testimony that a person with these characteristics and limitations could
work as a ticket taker, cashier or information clerk. (R. 21.) Accordingly, ALJ Stacchini concluded
that O'Dell was not "under a disability, as defined in the Social Security Act, from May 27, 2011"
through June 20, 2014. (Id.)
24
ANALYSIS
I.
THE APPLICABLE LAW
A.
Definition Of Disability
A person is considered disabled for Social Security benefits purposes when he is
unable "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),
1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart
v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F. App'x 856,
857 (2d Cir. 2012).18/
An individual shall be determined to be under a disability only if [the combined
effects of] his physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.
18/
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010);
Betances v. Comm'r of Soc. Sec., 206 F. App'x 25, 26 (2d Cir. 2006); Surgeon v. Comm'r
of Soc. Sec., 190 F. App'x 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 F. App'x 15,
16 (2d Cir. 2005); Malone v. Barnhart, 132 F. App'x 940, 941 (2d Cir. 2005); Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d
Cir. 2005); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
25
Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270.19/
In determining whether an individual is disabled for disability benefit purposes, the
Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or
others; and (4) the claimant's educational background, age, and work experience." Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).20/
B.
Standard Of Review
A court's review of the Commissioner's final decision is limited to determining
whether there is "substantial evidence" in the record as a whole to support such determination. E.g.,
42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 F. App'x 53, 53 (2d Cir. 2011).21/ "'Thus,
the role of the district court is quite limited and substantial deference is to be afforded the
Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y.
19/
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x at 111; Betances v. Comm'r of
Soc. Sec., 206 F. App'x at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311
F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo
v. Chater, 142 F.3d at 79.
20/
See, e.g., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at
*1 (2d Cir. Oct. 14, 1999); Brown v. Apfel, 174 F.3d at 62.
21/
See also, e.g., Prince v. Astrue, 514 F. App'x 18, 19 (2d Cir. 2013); Salmini v. Comm'r of
Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d
Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981 (2007); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam); Dumas v. Schweiker, 712 F.2d
1545, 1550 (2d Cir. 1983).
26
July 26, 2002) (Peck, M.J.).22/
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla
[and] such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971); accord, e.g.,
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v.
Apfel, 167 F.3d at 773-74.23/ "[F]actual issues need not have been resolved by the [Commissioner]
in accordance with what we conceive to be the preponderance of the evidence." Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The
Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if
it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991).24/
The Court, however, will not defer to the Commissioner's determination if it is "'the
product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y.
Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 F. App'x 154, 156 (2d Cir.
2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101
(2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
22/
See also, e.g., Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9,
1999) (Chin, D.J.) ("The Commissioner's decision is to be afforded considerable deference;
the reviewing court should 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."
(quotations & alterations omitted)).
23/
See also, e.g., Halloran v. Barnhart, 362 F.3d at 31; Jasinski v. Barnhart, 341 F.3d at 184;
Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Brown v. Apfel, 174
F.3d at 61; Perez v. Chater, 77 F.3d at 46.
24/
See also, e.g., Campbell v. Astrue, 465 F. App'x 4, 6 (2d Cir. 2012); Veino v. Barnhart, 312
F.3d at 586.
27
The Commissioner's regulations set forth a five-step sequence to be used in
evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540
U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct.
2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, the agency has promulgated
regulations establishing a five-step sequential evaluation process to determine
disability. If at any step a finding of disability or nondisability can be made, the SSA
will not review the claim further. [1] At the first step, the agency will find
nondisability unless the claimant shows that he is not working at a "substantial
gainful activity." [2] At step two, the SSA will find nondisability unless the claimant
shows that he has a "severe impairment," defined as "any impairment or combination
of impairments which significantly limits [the claimant's] physical or mental ability
to do basic work activities." [3] At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. [4] If the claimant's impairment is not on the list, the inquiry proceeds to
step four, at which the SSA assesses whether the claimant can do his previous work;
unless he shows that he cannot, he is determined not to be disabled. [5] If the
claimant survives the fourth stage, the fifth, and final, step requires the SSA to
consider so-called "vocational factors" (the claimant's age, education, and past work
experience), and to determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. & citations omitted).25/
The claimant bears the burden of proof as to the first four steps; if the claimant meets
the burden of proving that he cannot return to his past work, thereby establishing a prima facie case,
the Commissioner then has the burden of proving the last step, that there is other work the claimant
can perform considering not only his medical capacity but also his age, education and training. See,
25/
Accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Rosa v. Callahan, 168
F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; see also, e.g., Jasinski v. Barnhart, 341 F.3d
at 183-84; Shaw v. Chater, 221 F.3d at 132; Brown v. Apfel, 174 F.3d at 62; Balsamo v.
Chater, 142 F.3d 75, 79-80 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala,
54 F.3d 1019, 1022 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
28
e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.26/
C.
The Treating Physician Rule
The "treating physician's rule" is a series of regulations set forth by the Commissioner
in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion.
Specifically, the Commissioner's regulations provide that:
If we find that a treating source's opinion on the issue(s) of the nature and severity
of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2); see, e.g., Rugless v. Comm'r of Soc. Sec., 548 F. App'x 698, 699-700
(2d Cir. 2013); Meadors v. Astrue, 370 F. App'x 179, 182 (2d Cir. 2010); Colling v. Barnhart, 254
F. App'x 87, 89 (2d Cir. 2007); Lamorey v. Barnhart, 158 F. App'x 361, 362 (2d Cir. 2006).
Further, the regulations specify that when controlling weight is not given a treating
physician's opinion (because it is not "well-supported" by other medical evidence), the ALJ must
consider the following factors in determining the weight to be given such an opinion: (1) the length
of the treatment relationship and the frequency of examination; (2) the nature and extent of the
treatment relationship; (3) the evidence that supports the treating physician's report; (4) how
consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the
physician in contrast to the condition being treated; and (6) any other factors which may be
significant. 20 C.F.R. § 404.1527(c)(2)-(6); see, e.g., Cichocki v. Astrue, 534 F. App'x 71, 74 (2d
26/
See also, e.g., Selian v. Astrue, 708 F.3d at 418; Betances v. Comm'r of Soc. Sec., 206 F.
App'x 25, 26 (2d Cir. 2006); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675
F.2d at 467.
29
Cir. 2013); Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 197 (2d Cir. 2010).27/
When a treating physician provides a favorable report, the claimant "is entitled to an
express recognition from the [ALJ or] Appeals Council of the existence of [the treating physician's]
favorable . . . report and, if the [ALJ or] Council does not credit the findings of that report, to an
explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); see, e.g.,
Cichocki v. Astrue, 534 F. App'x at 75; Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (ALJ's
failure to consider favorable treating physician evidence ordinarily requires remand pursuant to
Snell but does not require remand where the report was "essentially duplicative of evidence
considered by the ALJ"); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("We of course do
not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do
believe that the crucial factors in any determination must be set forth with sufficient specificity to
enable [reviewing courts] to decide whether the determination is supported by substantial evidence."
(citations omitted)); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012 at *7, *9 (S.D.N.Y. May
6, 2003) (The ALJ's "'failure to mention such [treating physician report] evidence and set forth the
reasons for his conclusions with sufficient specificity hinders [this Court's] ability . . . to decide
whether his determination is supported by substantial evidence.'").
The Commissioner's "treating physician" regulations were approved by the Second
Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).
27/
See also, e.g., Foxman v. Barnhart, 157 F. App'x 344, 346-47 (2d Cir. 2005); Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000);
Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d
496, 503 (2d Cir. 1998).
30
II.
APPLICATION OF THE FIVE STEP SEQUENCE
A.
O'Dell Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether O'Dell was engaged in substantial gainful activity after
his application for DIB. "Substantial gainful activity" is defined as work that involves "doing
significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit."
20 C.F.R. § 404.1510. ALJ Stacchini's conclusion that O'Dell did not engage in substantial gainful
activity during the applicable time period (see page 21 above) is not disputed. (See generally Dkt.
No. 28: Comm'r Br.) The Court therefore proceeds with the analysis.
B.
O'Dell Demonstrated "Severe" Impairments That Significantly Limited
His Ability To Do Basic Work Activities
The second step of the analysis is to determine whether O'Dell proved that he had a
severe impairment or combination of impairments that "significantly limit[ed his] physical or mental
ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities
is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b).
"Basic work activities" include:
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling
. . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out, and
remembering simple instructions . . . [u]se of judgment . . . [r]esponding
appropriately to supervision, co-workers and usual work situations . . . [d]ealing with
changes in a routine work setting.
20 C.F.R. § 404.1521(b)(1)-(6).
ALJ Stacchini determined that O'Dell's severe impairments were depressive disorder,
anxiety disorder, PTSD, angina, hypertension, neck subluxation, hyperkyphosis, and degenerative
joint disease of the cervical and thoracic spines. (See page 21 above.) ALJ Stacchini's findings
regarding the step-two severity of these impairments benefit O'Dell, and O'Dell does not contest
31
those findings. (See Dkt. No. 24: O'Dell Br. ¶ 4.) Accordingly, the Court proceeds to the third step
of the five-part analysis.
C.
O'Dell Did Not Have A Disability Listed In Appendix 1 Of The Regulations
The third step of the five-step test requires a determination of whether O'Dell had an
impairment listed in Appendix 1 of the Regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1. "These
are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude
gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is
conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019,
1022 (2d Cir. 1995).
ALJ Stacchini found that notwithstanding O'Dell's severe impairments, he "does not
have an impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526)." (R. 14.) ALJ Stacchini compared the medical evidence in the record to
the criteria in listings 1.04 (disorders of the spine), 4.00 (cardiovascular system), 12.04 (affective
disorders), and 12.06 (anxiety related disorders).28/ (R. 14; see 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§§ 1.04, 4.00, 12.04, 12.06.) O'Dell's counsel argues that the Commissioner erred by "accepting the
findings that Mr. O'Dell's impairments did not exceed or meet the listing of impairments" (Dkt. No.
28/
Beginning on January 17, 2017, PTSD will be evaluated under (new) listing 12.15. See 81
FR 66138, 2016 WL 5507752 at *1 (Sept. 26, 2016); 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§§ 12.00(B)(11), 12.15 (text of section 12.00 effective on Jan. 17, 2017). Because listing
12.15 is not yet in effect, and because O'Dell does not object to ALJ Stacchini's evaluation
of his PTSD under the presently appropriate 12.06, the Court does not discuss the standards
in 12.15. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D)(11); Bittles v. Astrue, 777 F.
Supp. 2d 663, 666 (S.D.N.Y. 2011) ("To meet the required level of severity for PTSD, a
claimant must provide medical documentation for the criteria listed in Section 12.06(A) and
Section 12.06(B).").
32
24: O'Dell Br. ¶ 5), but he fails to state which listings were inappropriately analyzed by ALJ
Stacchini. (See generally O'Dell Br. ¶¶ 6-17.) The Court reviews the four listings addressed by ALJ
Stacchini.
1.
Disorders of the Spine
For a disorder of the spine to be considered severe it must result "in compromise of
a nerve root (including the cauda equina) or the spinal cord" with:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive straight-leg raising test (sitting and
supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue
biopsy, or by appropriate medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate effectively, as defined in
1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04.
ALJ Stacchini's finding that O'Dell's neck subluxation, hyperkyphosis, and
degenerative joint disease of the cervical and thoracic spines did not meet or equal a listed
impairment is supported by Dr. Ali's examination of O'Dell, which showed full range of motion in
his spine and neither sensory nor reflex loss (see page 14 above), as is required to satisfy listing
1.04(A). Although Dr. Malouf reported in 2014 that O'Dell exhibited asymmetrical reflexes (see
page 12 above) and the diagnostic testing conducted in 2014 indicated some abnormalities in
O'Dell's cervical and thoracic spine (see page 13 above), O'Dell's June 11, 2014 x-rays revealed that
the motion of his spine remains within normal limits (see id.). Accordingly, substantial evidence
33
supports ALJ Stacchini's determination that O'Dell did not meet the criteria in listing 1.04(A).
Similarly, there is no operative note, pathology report of tissue biopsy, or appropriate
medically acceptable imaging in the record to support a finding of spinal arachnoiditis as is required
to satisfy listing 1.04(B). Listing 1.04(C) requires an inability to ambulate effectively.
Inability to ambulate effectively means an extreme limitation of the ability to walk;
i.e., an impairment(s) that interferes very seriously with the individual's ability to
independently initiate, sustain, or complete activities. Ineffective ambulation is
defined generally as having insufficient lower extremity functioning (see 1.00J) to
permit independent ambulation without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(1). O'Dell's ability to ambulate effectively is
demonstrated by his numerous cardiac stress tests, which involved running on a treadmill (see, e.g.,
R. 353) and by the fact that he does not use an assistive device (see page 14 above).
Thus, substantial evidence supported ALJ Stacchini's conclusion that O'Dell's spinal
disorders did not satisfy the requirements of listing 1.04.
2.
Cardiovascular Systems: Angina and Hypertension
The record indicates that O'Dell was diagnosed with Prinzmetal's angina.
Prinzmetal's angina is classified as "variant angina." See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 4.04(E)(6)(a). Variant angina occurring in relation to an obstructive lesion constitutes a disabling
impairment if it meets the criteria in listing 4.04. See id. As Dr. Auerbach noted, however, O'Dell's
December 2010 cardiac catheterization test "only demonstrated a discrete 20%, nonobstructive,
lesion in the proximal LAD" of his heart. (R. 490, emphasis added.) Similarly, under Appendix 1,
a claimant exhibiting "an arrhythmia as a result of variant angina" will be considered disabled if he
or she meets the criteria in listing 4.05. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.04(E)(6)(a). Dr.
Ali's January 15, 2013 examination of O'Dell revealed no arrhythmia. (R.499.) Dr. Halprin noted
34
that O'Dell's October 2010 cardiac stress test was either equivocal or negative (see page 9 above),
that same stress test indicated "normal sinus rhythm" (R. 344), and that all of O'Dell's
electrocardiograms documented in the record were within normal limits (see pages 9-10 above). Dr.
Choudhry similarly concluded that the stress test performed in May 2012 was negative. (See page
6 above.) Dr. Auerbach observed that O'Dell's "stress tests have been negative," and that his
"[e]chocardiograms have been normal." (See page 9 above.) In sum, none of O'Dell's treating,
examining, or reviewing physicians diagnosed him with an obstructive lesion or arrhythmia. (See
pages 5-10 above.)
ALJ Stacchini was entitled to rely on the absence of such diagnoses in finding that
O'Dell's angina did not satisfy listings 4.04 or 4.05. See, e.g., Salvaggio v. Apfel, 23 F. App'x 49,
51 (2d Cir. 2001) (lack of medical evidence supports the ALJ's determination that plaintiff was not
disabled); O'Connor v. Shalala, No. 96-6215, 111 F.3d 123 (table), 1997 WL 165381 at *1 (2d Cir.
Mar. 31, 1997) ("[T]he Commissioner is also entitled to rely on the absence of contemporaneous
evidence of the disability."); Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Dumas v. Schweiker,
712 F.2d 1545, 1553 (2d Cir. 1983) (Commissioner is "entitled to rely not only on what the
[medical] record says, but also on what it does not say"); Rodriguez v. Colvin, 15 Civ. 8390, 2016
WL 1178780 at *10 (S.D.N.Y. Mar. 25, 2016) (Peck, M.J.); Soto v. Colvin, 14 Civ. 7440, 2015 WL
1726541 at *19 (S.D.N.Y. Apr. 14, 2015) (Peck, M.J.) (The ALJ "was entitled to rely on that
absence of evidence"); Johnston v. Colvin, 13 Civ. 2710, 2015 WL 657774 at *5 n.3 (S.D.N.Y. Feb.
13, 2015) ("As the Second Circuit has noted, the absence of evidence from the claimed period of
disability may itself be considered substantial evidence."), R. & R. adopted, 2015 WL 1266895
35
(S.D.N.Y. Mar. 18, 2015).29/
In the absence of an obstructive lesion or arrhythmia, Prinzmetal's angina is not
automatically disabling and the SSA instead "consider[s] the frequency of anginal episodes despite
prescribed treatment when evaluating your residual functional capacity." 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 4.04(E)(6)(b). As discussed below, ALJ Stacchini appropriately accounted for O'Dell's
anginal episodes in his RFC assessment. (See pages 47-48 below.) Accordingly, substantial
evidence supports ALJ Stacchini's conclusion that O'Dell's angina did not meet the criteria for any
automatically disabling Appendix 1 impairments.30/
Appendix 1 states the following with regard to hypertension:
Because hypertension (high blood pressure) generally causes disability through its
effects on other body systems, we will evaluate it by reference to the specific body
system(s) affected (heart, brain, kidneys, or eyes) when we consider its effects under
the listings. We will also consider any limitations imposed by your hypertension
when we assess your residual functional capacity.
29/
See also, e.g., Marte v. Colvin, 14 Civ. 0832, 2014 WL 5088078 at *18 (S.D.N.Y. Oct. 9,
2014) (Peck, M.J.); Rodriguez v. Barnhart, 04 Civ. 4514, 2005 WL 643190 at *12 (S.D.N.Y.
Mar. 21, 2005) (Peck, M.J.); Catrain v. Barnhart, 325 F. Supp. 2d 183, 192 (E.D.N.Y. 2004)
("[T]he ALJ is entitled to rely on the absence of opinions. . . ."); Jiang v. Barnhart, 03 Civ.
0077, 2003 WL 21526937 at *13 (S.D.N.Y. July 8, 2003) (Peck, M.J.), R. & R. adopted,
2003 WL 21755932 (S.D.N.Y. July 30, 2003); De Roman v. Barnhart, 03 Civ. 0075, 2003
WL 21511160 at *13 (S.D.N.Y. July 2, 2003) (Peck, M.J.); Alvarez v. Barnhart, 02 Civ.
3121, 2002 WL 31663570 at *10 (S.D.N.Y. Nov. 26, 2002) (Peck, M.J.), R. & R. adopted,
2003 WL 272063 (S.D.N.Y. Jan. 16, 2003).
30/
O'Dell argues it is "significant[]" that a SPECT scan conducted in October 2010 revealed
that his left ventricular ejection fraction was 54 percent. (Dkt. No. 24: O'Dell Br. ¶ 6.)
According to the Mayo Clinic, however, a left ventricular ejection fraction of 55 percent or
higher is considered normal. See Mayo Clinic, Ejection Fraction: What does it measure?
(February 11, 2016), available at http://www.mayoclinic.org/ejection-fraction/expertanswers/faq-20058286 (last visited Nov. 22, 2016). In any event, Appendix 1 listing 4.02
states that only an ejection fraction of 30 percent or less satisfies the paragraph A criteria for
chronic heart failure, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.02(A)(1), and O'Dell
makes no argument regarding the paragraph B criteria for that impairment (see generally
O'Dell Br. ¶¶ 6-17).
36
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.04(H). Because the record contains no evidence suggesting
that O'Dell's hypertension causes disability through its effects on his other body systems—including,
as already discussed, his heart—ALJ Stacchini's determination that O'Dell's hypertension does not
meet the any of the impairments in the Listings is supported by substantial evidence.
3.
Mental Impairments
With regard to mental impairments, the SSA "will find that [a claimant] ha[s] a listed
impairment if the diagnostic description in the introductory paragraph and the criteria of both
paragraphs A and B (or A and C, when appropriate) of the listed impairment are satisfied." 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A). To satisfy paragraph B under listing 12.04 or 12.06,
O'Dell must show at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.04(B), 12.06(B).
ALJ Stacchini found that O'Dell had only mild restrictions in activities of daily
living, which include cooking, cleaning, laundry, shopping, and performing personal hygiene on a
daily basis. (See page 2-3 above.) ALJ Stacchini observed that although consultative psychiatrist
Dr. Cohen assessed that O'Dell was having difficulty relating socially (see page 17 above), O'Dell
nevertheless testified that he goes out to restaurants, spends time with friends, and belongs to social
clubs (see pages 2-3, 5, 17 above). ALJ Stacchini thus concluded that O'Dell only had mild
difficulties with social functioning. ALJ Stacchini also noted Dr. Cohen's opinion that O'Dell was
challenged in dealing with stress (see page 17 above), but found that such stress produced, at most,
37
only moderate limitations in O'Dell's ability to maintain concentration, persistence and pace. (R.
15.) Finally, ALJ Stacchini appropriately observed that the record contains no evidence that O'Dell
had suffered episodes of decompensation of extended duration. (See page 21 above.) These
conclusions are supported by the opinions of Drs. Schefflein and Marks, neither of whom assessed
more than a moderate limitation in any of the above-discussed areas of functioning. (See pages 1516, 19 above.)
To satisfy paragraph C under listing 12.04, O'Dell must show:
Medically documented history of a chronic affective disorder of at least 2 years'
duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even
a minimal increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(C). Under listing 12.06, paragraph C requires O'Dell
to demonstrate that his anxiety has "[r]esult[ed] in complete inability to function independently
outside the area of [his] home." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.06(C).
ALJ Stacchini appropriately determined that the record contains no evidence that
O'Dell suffered episodes of decompensation. (See pages 14-19 above.) Moreover, although Dr.
Schefflein opined that O'Dell had marked limitations in his ability to respond appropriately to
changes in a routine work setting (see page 16 above), none of O'Dell's treating, examining, or
reviewing psychiatrists asserted that changes in environment would cause O'Dell to decompensate
38
(see pages 14-19 above). Finally, the record evidence regarding O'Dell's activities of daily living
indicates that he maintained the ability to function outside of a highly supportive environment, and
that he did not have a complete inability to function independently outside the area of his home.
(See pages 2-3, 5, 17 above.) Thus, substantial evidence supports ALJ Stacchini's determination that
O'Dell did not meet the paragraph C criteria for listings 12.04 and 12.06. (R. 15.)
Accordingly, ALJ Stacchini's finding that O'Dell did not have a listed disability was
supported by substantial evidence.
D.
Credibility And Residual Functional Capacity Determinations
Before proceeding to step four, the Court will address ALJ Stacchini's credibility and
residual functional capacity ("RFC") determinations.
1.
Credibility Determination
Because subjective symptoms only lessen a claimant's RFC where the symptoms
"'can reasonably be accepted as consistent with the objective medical evidence and other evidence,'
the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent
with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL
3241397 at *7 (S.D.N.Y. Oct. 8, 2009) (citation & emphasis omitted); see, e.g., Campbell v. Astrue,
465 F. App'x 4, 7 (2d Cir. 2012) ("As for the ALJ's credibility determination, while an ALJ 'is
required to take the claimant's reports of pain and other limitations into account,' he or she is 'not
require[d] to accept the claimant's subjective complaints without question.' Rather, the ALJ 'may
exercise discretion in weighing the credibility of the claimant's testimony in light of the other
evidence in the record.'" (citations omitted)); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)
("When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and
other limitations into account, but is not required to accept the claimant's subjective complaints
39
without question; he may exercise discretion in weighing the credibility of the claimant's testimony
in light of the other evidence in the record." (citations omitted)); Brown v. Comm'r of Soc. Sec., 310
F. App'x 450, 451 (2d Cir. 2009) ("'Where there is conflicting evidence about a claimant's pain, the
ALJ must make credibility findings.'").31/ In addition, "courts must show special deference to an
ALJ's credibility determinations because the ALJ had the opportunity to observe plaintiff's demeanor
while [the plaintiff was] testifying." Marquez v. Colvin, 12 Civ. 6819, 2013 WL 5568718 at *7
(S.D.N.Y. Oct. 9, 2013).32/
ALJ Stacchini determined that O'Dell's "medically determinable impairments could
31/
See also, e.g., Rivers v. Astrue, 280 F. App'x 20, 22 (2d Cir. 2008) (same); Thompson v.
Barnhart, 75 F. App'x 842, 845 (2d Cir. 2003) (ALJ properly found that plaintiff's
"description of her symptoms was at odds with her treatment history, her medication regime,
and her daily routine"); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999); Norman v. Astrue,
912 F. Supp. 2d 33, 85 (S.D.N.Y. 2012) ("It is 'within the discretion of the [Commissioner]
to evaluate the credibility of plaintiff's complaints and render an independent judgment in
light of the medical findings and other evidence regarding the true extent of such
symptomatology.'"); Astolos v. Astrue, No. 06-CV-678, 2009 WL 3333234 at *12
(W.D.N.Y. Oct. 14, 2009) (ALJ properly determined that plaintiff's subjective pain
complaints were not supported by the medical record); Speruggia v. Astrue, No. 05-CV3532, 2008 WL 818004 at *11 (E.D.N.Y. Mar. 26, 2008) ("The ALJ 'does not have to accept
plaintiff's subjective testimony about her symptoms without question' and should determine
a plaintiff's credibility 'in light of all the evidence.'"); Soto v. Barnhart, 01 Civ. 7905, 2002
WL 31729500 at *6 (S.D.N.Y. Dec. 4, 2002) ("The ALJ has the capacity and the discretion
to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of
medical findings and other evidence, regarding the true extent of pain alleged by the
claimant."); Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987) (same).
32/
Accord, e.g., Campbell v. Astrue, 465 F. App'x at 7 ("[W]e have long held that '[i]t is the
function of the [Commissioner], not ourselves, . . . to appraise the credibility of witnesses,
including the claimant."'); Nunez v. Astrue, 11 Civ. 8711, 2013 WL 3753421 at *7
(S.D.N.Y. July 17, 2013); Guzman v. Astrue, 09 Civ. 3928, 2011 WL 666194 at *7
(S.D.N.Y. Feb. 4, 2011); Ruiz v. Barnhart, 03 Civ. 10128, 2006 WL 1273832 at *7
(S.D.N.Y. May 10, 2006); Gernavage v. Shalala, 882 F. Supp. 1413, 1419 & n.6 (S.D.N.Y.
1995); Mejias v. Soc. Sec. Admin., 445 F. Supp. 741, 744 (S.D.N.Y. 1978) (Weinfeld, D.J.);
Wrennick v. Sec'y of Health, Educ. & Welfare, 441 F. Supp. 482, 485 (S.D.N.Y. 1977)
(Weinfeld D.J.).
40
reasonably be expected to cause" his alleged symptoms, but that his "statements concerning the
intensity, persistence and limiting effects of [those] symptoms [were] not entirely credible." (See
page 23 above.)
When ruling that a claimant is not entirely credible, the ALJ must provide "specific
reasons for the finding on credibility, supported by the evidence in the case record." SSR 96-7p,
1996 WL 374186 at *4 (July 2, 1996). The regulations set out a two-step process for assessing a
claimant's statements about pain and other limitations:
At the first step, the ALJ must decide whether the claimant suffers from a medically
determinable impairment that could reasonably be expected to produce the symptoms
alleged. . . . If the claimant does suffer from such an impairment, at the second step,
the ALJ must consider the extent to which the claimant's symptoms can reasonably
be accepted as consistent with the objective medical evidence and other evidence of
record. The ALJ must consider statements the claimant or others make about his
impairment(s), his restrictions, his daily activities, his efforts to work, or any other
relevant statements he makes to medical sources during the course of examination
or treatment, or to the agency during interviews, on applications, in letters, and in
testimony in its administrative proceedings.
Genier v. Astrue, 606 F.3d at 49 (quotations, citation & brackets omitted).33/
ALJ Stacchini appropriately applied this two-step process, supporting his credibility
determination with a review of O'Dell's testimony regarding his activities of daily living and
volunteer work, the magnitude of treatment O'Dell received for his physical and metal impairments,
and information in the record regarding the alleged onset date of O'Dell's impairments. (R. 19-20.)
ALJ Stacchini found, for example, that O'Dell "described daily activities, which are not limited to
the extent one would expect, given the complaints of disabling symptoms and limitations." (R. 19.)
33/
Accord, e.g., Cichocki v. Astrue, 534 F. App'x 71, 75-76 (2d Cir. 2013); Campbell v. Astrue,
465 F. App'x at 7; Meadors v. Astrue, 370 F. App'x 179, 183 (2d Cir. 2010); Taylor v.
Barnhart, 83 F. App'x 347, 350-51 (2d Cir. 2003); 20 C.F.R. § 416.945(a)(1), (3); SSR 967p, 1996 WL 374186 at *2.
41
This finding is supported by substantial evidence, as O'Dell's assertions of back and neck pain,
unstable angina, depression and anxiety sufficiently severe to render him completely unable to work
are inconsistent with his statements that he does chores, including laundry and cooking, that he
drives to stores and shops for himself, that he spends time with friends at restaurants, and that he
takes care of his own hygiene. (See pages 2-3, 5, 17 above.) The Court also notes that O'Dell's
testimony that he has "a very hard time in large crowds" due to his anxiety (R. 44) is contradicted
by his statement that he attends sporting events (see page 2 above).
ALJ Stacchini also noted that O'Dell had not sought or received treatment
commensurate with the alleged severity of his impairments. Although the record indicates that
O'Dell saw Dr. Choudhry on numerous occasions following episodes of angina (see pages 5-6
above), and that O'Dell occasionally sought chiropractic treatment from Dr. Malouf (see page 11
above), there is no evidence of hospitalizations, emergency room visits, or surgeries related to his
physical impairments (see pages 2-14 above). The record likewise indicates that O'Dell responded
well to medication. He reported to Dr. Ali, for example, that the nitroglycerine he takes in response
to an angina episode alleviates his symptoms within a few minutes (see page 8 above); Dr. Van
Aken's progress notes indicate that O'Dell's depression and anxiety medication dosages remained
relatively consistent during the relevant period (see page 14 above); and O'Dell testified that he was
relying on over-the-counter ibuprofen to manage his neck and back pain (see page 5 above).
Finally, ALJ Stacchini observed several inconsistencies with regard to the onset date
of O'Dell's allegedly disabling pain. O'Dell asserted that he was disabled and completely unable to
work beginning in May 2011 (see page 2 above), but he also testified that he continued to do
volunteer work at the fire department and an ambulance company until January 1, 2014 (see page
42
3 above).34/ O'Dell's assertion that his back and neck pain recently became disabling is inconsistent
with Dr. Malouf's statements that the injury purportedly giving rise to O'Dell's pain occurred in
2007, that O'Dell only saw Dr. Malouf for chiropractic treatment beginning in 2011, and that the
frequency of O'Dell's visits to Dr. Malouf actually decreased in 2012—the year following the
alleged onset of his disability (see pages 10-11 above). The fact that O'Dell only sought chiropractic
treatment from Dr. Malouf twice in 2013 (see page 11 above) likewise undermines O'Dell's
testimony that his back pain increased from a mere "uncomfortable feeling" that he rated as a one
or two on a ten-point scale, as he told Dr. Ali on January 15, 2013 (see page 14 above), to a three
or four on a ten-point scale as he testified at his hearing before ALJ Stacchini on February 27, 2014
(see page 4-5 above).
Thus, ALJ Stacchini met his burden in finding O'Dell's claims not entirely credible
because the objective medical evidence and O'Dell's own testimony failed to support his claims of
disability. See, e.g., Stanton v. Astrue, 370 F. App'x 231, 234 (2d Cir. 2010) (the court will not
"second-guess the credibility finding . . . where the ALJ identified specific record-based reasons for
his ruling"); Rutkowski v. Astrue, 368 F. App'x 226, 230 (2d Cir. 2010) (ALJ adequately supported
credibility finding when he noted that "substantial evidence existed showing that [plaintiff] was
relatively 'mobile and functional,' and that [plaintiff's] allegations of disability contradicted the
broader evidence"); Duran v. Colvin, 14 Civ. 4681, 2015 WL 4476165 at *13 (S.D.N.Y. July 22,
2015) (Peck, M.J.) (the ALJ "met his burden in finding [plaintiff] not entirely credible because the
34/
This fact also belies O'Dell's argument that "[p]lacing [him] . . . into the work environment
triggers chest pain." (Dkt. No. 24: O'Dell's Br. ¶ 12.) Although O'Dell testified that he
ultimately stopped his volunteer work because "it was more than [he] could handle" (see
page 3 above), no evidence in the record supports the assertion that O'Dell's angina is
automatically triggered when he is placed in any type of work environment for any length
of time (see pages 2-10 above).
43
objective medical evidence and her stated independence in activities of daily living failed to support
her claims of disability"); Kessler v. Colvin, 48 F. Supp. 3d 578, 596 (S.D.N.Y. 2014) (claimant's
"subjective complaints of pain lacked the necessary objective medical support, and therefore were
not entitled to any special weight. Accordingly, the ALJ's adverse credibility determination was not
erroneous."); Givens v. Colvin, 13 Civ. 4763, 2014 WL 1394965 at *10-11 (S.D.N.Y. Apr. 11,
2014) (Peck, M.J.) (ALJ properly found claimant's disability claims not entirely credible where
claimant "admitted that he was capable of performing many day-to-day activities, such as reading,
watching television, caring for his personal needs, using public transportation, and going to
church"); Hilliard v. Colvin, 13 Civ. 1942, 2013 WL 5863546 at *15 (S.D.N.Y. Oct. 31, 2013)
(Peck, M.J.) (the ALJ "met his burden in finding [plaintiff's] claims not entirely credible because
she remains functional in terms of activities of daily living and the objective medical evidence fails
to support her claims of total disability based on pain" (citations omitted)); Ashby v. Astrue, 11 Civ.
2010, 2012 WL 2477595 at *15 (S.D.N.Y. Mar. 27, 2012) ("[I]n making his credibility assessment,
the ALJ appropriately considered Plaintiff's ability to engage in certain daily activities as one factor,
among others suggested by the regulations."), R. & R. adopted, 2012 WL 2367034 (S.D.N.Y. June
20, 2012).
2.
Residual Functional Capacity Determination
ALJ Stacchini found that O'Dell had the RFC to "perform light work as defined in
20 CFR 404.1567(b)," except that he
needs to alternate sitting and standing at one hour intervals throughout the day. He
is able to occasionally climb ramps and stairs, but never climb ladders, ropes, or
scaffolds. He is able to occasionally balance, stoop, kneel, crouch, and crawl;
frequently reach, handle, and finger with the left; and occasionally work from
unprotected heights, and [with] moving mechanical parts. He is limited to simple
routine tasks such as those demanded of SVP 2 jobs or less in a low stress job
defined as having only occasional decision making and changes in the work place.
44
(See page 21 above.) Light work
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little,
a job is in this category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work,
you must have the ability to do substantially all of these activities. If someone can
do light work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit for long
periods of time.
20 C.F.R. § 404.1567(b).
ALJ Stacchini's RFC determination was based on his review of O'Dell's testimony
and the medical evidence. (R. 16-20.) With regard to the limiting effects of O'Dell's mental
impairments, ALJ Stacchini credited the opinions of Drs. Schefflein and Marks, both of whom
assessed that O'Dell exhibited moderate to marked difficulties in his ability to carry out detailed
instructions and respond appropriately to changes in a routine work setting. (See pages 16, 19
above.) ALJ Stacchini observed that these opinions were consistent both with each other and with
the evidence of record (see page 22 above); he accorded Dr. Schefflein's opinion "great" weight
partly because he was a treating source (see id.). ALJ Stacchini also accorded "great" weight to the
opinion of Dr. Cohen, who concluded based on the clinical findings made during her in-person
examination of O'Dell that he was having difficulty dealing with stress. (See id.) Dr. Cohen's
opinion regarding O'Dell's difficulty with stress also is supported by Dr. Marks' assessment to the
same effect (see pages 17, 19 above), and ALJ Stacchini's assessment of O'Dell's mental RFC is
consistent with Dr. Schefflein's opinion that O'Dell's mental impairments precluded him from
working as a police officer (see page 15 below).
The medical opinions in the record, however, also indicate that O'Dell's mental
limitations were not work preclusive. Dr. Schefflein opined that O'Dell suffered no limitations in
45
his ability to understand, remember and carry out simple instructions; no limitations in his ability
to interact appropriately with the public, supervisors and co-workers; and that he had only "mild"
limitations in his ability to make judgments on simple work-related decisions. (See pages 15-16
above.) Dr. Cohen similarly assessed that O'Dell
can follow and understand simple directions. He can perform simple tasks
independently and with supervision. He can maintain attention and concentration
and learn new tasks. The claimant is capable of performing some complex tasks
independently and with supervision. He can make appropriate decisions.
(R. 495.) Dr. Marks opined that O'Dell did not have understanding and memory limitations, was
not significantly limited in his ability to carry out short and simple instructions and was able to
perform activities within a schedule, sustain an ordinary routine without special supervision, work
in coordination with or in proximity to others without being distracted by them and to make simple
work-related decisions. (See page 19 above.)
Accordingly, ALJ Stacchini's determination that O'Dell was "limited to simple
routine tasks such as those demanded of SVP 2 jobs or less in a low stress job defined as having only
occasional decision making and changes in the work place" (R. 16) is supported by substantial
evidence.
The Court notes that ALJ Stacchini appropriately applied the treating physician rule
with regard to Dr. Van Akan's opinion that O'Dell was "unable to work due to his anxiety and
depression," to which ALJ Stacchini accorded "little" weight. (See pages 15, 22 above.) The
applicable regulations state that the SSA "will always give good reasons in [the] notice of
determination or decision for the weight [the SSA] give[s] [the] treating source's opinion." 20
C.F.R. § 404.1527(c)(2); see also, e.g., Duran v. Colvin, 14 Civ. 4681, 2015 WL 4476165 at *8
(S.D.N.Y. July 22, 2015) (Peck, M.J.) (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (the
46
claimant "is entitled to an express recognition from the [ALJ or] Appeals Council of the existence
of [the treating physician's] favorable . . . report and, if the [ALJ or] Council does not credit the
findings of that report, to an explanation of why it does not.")). "The requirement of reason-giving
exists, in part, to let claimants understand the disposition of their cases, even—and perhaps
especially—when those dispositions are unfavorable. A claimant . . . who knows that her physician
has deemed her disabled, might be especially bewildered when told by an administrative
bureaucracy that she is not, unless some reason for the agency's decision is supplied." Snell v.
Apfel, 177 F.3d at 133. "While the opinions of a treating physician deserve special respect, they
need not be given controlling weight where they are contradicted by other substantial evidence in
the record." Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citations omitted); see, e.g., Price
v. Comm'r of Soc. Sec., 14 Civ. 9164, 2016 WL 1271501 at *4 (S.D.N.Y. Mar. 31, 2016) ("The ALJ
remains free to discount the views of a treating physician if it is inconsistent with substantial
evidence.").
ALJ Stacchini observed that Dr. Van Aken's opinion is "conclusory." (See page 22
above.) Dr. Van Aken's conclusion regarding O'Dell's ability to work is not accompanied by any
assessment of how O'Dell's mental impairments affect him on a day-to-day basis. (See page 15
above.) Furthermore, "the opinion of a treating physician, or any doctor, that the claimant is
'disabled' or 'unable to work' is not controlling," Mack v. Comm'r of Soc. Sec., 12 Civ. 0186, 2013
WL 5425730 at *8 (S.D.N.Y. Sept. 27, 2013), since such statements are not medical opinions, but
rather "opinions on issues reserved to the Commissioner."
20 C.F.R. §§ 404.1527(d)(1),
416.927(d)(1).35/
35/
See also, e.g., Roma v. Astrue, 468 F. App'x 16, 18 (2d Cir. 2012); Priel v. Astrue, 453 F.
(continued...)
47
ALJ Stacchini also explained that Dr. Van Aken's assessment of O'Dell's ability to
work was contradicted by "Dr. Van Aken's own treatment notes, indicating conservative treatment."
(R. 16.) Indeed, Dr. Van Aken's notes indicate appointments occurring only once every two to four
weeks, no changes in treatment protocol, and only occasional, minor changes in medication dosage.
(See pages 14-15 above.) ALJ Stacchini's explanation is sufficient to satisfy the requirement that
an ALJ provide a specific rationale for rejecting a treating physician's opinion. See, e.g., Heitz v.
Comm'r of Soc. Sec., 15 Civ. 3456, 2016 WL 4384350 at *7 (S.D.N.Y. Aug. 17, 2016) ("ALJ
articulated specific reasons why she concluded the opinion to be both internally inconsistent and
unsupported by the medical evidence, while providing specific examples of both."); Torres v.
Comm'r of Soc. Sec., 15 Civ. 1382, 2016 WL 3911980 at *10 (S.D.N.Y. July 15, 2016); Them v.
Colvin, 14 Civ. 7580, 2015 WL 10635499 at *12 (S.D.N.Y. Dec. 22, 2015).
With regard to O'Dell's physical impairments, ALJ Stacchini credited the opinion of
Dr. Ali, who concluded that O'Dell's heart and spine-related impairments did not impose any
functional limitations on O'Dell's ability to work other than "avoid[ing] activities requiring moderate
exertion or greater secondary to angina."36/ (See pages 8-9, 14 above.) ALJ Stacchini noted that Dr.
Ali's opinion was consistent with the results of his in-person examination of O'Dell, which revealed
35/
(...continued)
App'x 84, 86 (2d Cir. 2011); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); Cruz v.
Colvin, 12 Civ. 7346, 2013 WL 3333040 at *17 (S.D.N.Y. July 2, 2013) (Peck, M.J.), R. &
R. adopted, 2014 WL 774966 (S.D.N.Y. Feb. 21, 2014).
36/
As discussed above (see page 21 above), ALJ Stacchini determined that O'Dell maintains
the RFC to perform only light work and that he is limited to low stress jobs. Because ALJ
Stacchini both cited Dr. Ali's opinion and accorded that opinion "some" weight in making
this determination, the Court rejects O'Dell's argument that ALJ Stacchini "failed to fully
consider" Dr. Ali's opinion that O'Dell was precluded from "activities of moderate or greater
exertion or stressful activities secondary to angina." (Dkt. No. 24: O'Dell's Br. ¶ 7.)
48
no cardiac abnormalities and full range of motion of the spine, normal reflexes and "5/5 strength"
in his upper and lower extremities. (See id.) ALJ Stacchini nevertheless rejected Dr. Ali's
assessment that O'Dell could sustain "medium" work as inconsistent with the record.37/ (See page
23 above.) The Court notes that Dr. Ali's assessment is consistent with that of Dr. Auerbach, who
concluded based on a review of O'Dell's medical records that O'Dell's angina did not have a
"significant impact" on his RFC. (See page 9 above.) ALJ Stacchini also gave "some" weight to
the opinion of Dr. Halprin, who stated that O'Dell's electrocardiograms and cardiac stress tests were
either inconclusive or negative. (See page 23 above.) Taken together, these opinions provide
sufficient support for ALJ Stacchini's conclusion that O'Dell could perform light work.
ALJ Stacchini also properly applied the treating physician rule with respect to Dr.
Choudhry. ALJ Stacchini accorded "little" weight to Dr. Choudhry's opinion that O'Dell's angina
rendered him "'totally and permanently disabled,'" finding that the opinion "is inconsistent with the
claimant's reported activities of daily living, conservative treatment, and the statement of" Dr.
Halprin. (R. 19.) This finding was supported by, inter alia, O'Dell's testimony that he continued his
volunteer work with the fire department and ambulance company until January 2014 (see page 3
above), long after the October 2010 onset of his angina attacks (see page 4 above). ALJ Stacchini's
explanation was therefore sufficient to satisfy the requirement that an ALJ provide a specific
rationale for rejecting a treating physician's opinion. See, e.g., Heitz v. Comm'r of Soc. Sec., 15 Civ.
3456, 2016 WL 4384350 at *7 (S.D.N.Y. Aug. 17, 2016).
Notably, Dr. Malouf opined that O'Dell's spinal disorder rendered him unable to
work. (See page 12 above.) ALJ Stacchini, however, was not required to defer to that opinion
37/
"Medium" work "involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(c).
49
because Dr. Malouf—a chiropractor—is not considered an "acceptable medical source" entitled to
deference as a "treating source" under SSA regulations. See 20 C.F.R. §§ 404.1513(a), (d)(1),
404.1527(a)(2); Genier v. Astrue, 298 F. App'x 105, 108 (2d Cir. 2008) ("According to Social
Security Ruling 06-3p, 'only "acceptable medical sources" can be considered treating sources . . .
whose medical opinions may be entitled to controlling weight.'").38/
Rather, ALJ Stacchini was required to assign Dr. Malouf's opinion an appropriate
weight based on consideration of the factors set forth in 20 C.F.R. § 416.927(c). See, e.g., SSR 063p, 2006 WL 2329939 at *4 (Aug. 9, 2006) ("Although the factors in 20 CFR 404.1527(d) and
416.927(d) explicitly apply only to the evaluation of medical opinions from 'acceptable medical
sources,' these same factors can be applied to opinion evidence from 'other sources.'"); Rivera v.
Colvin, 13 Civ. 7150, 2015 WL 1027163 at *15 (S.D.N.Y. Mar. 9, 2015) ("Because [a nurse
practitioner] was properly classified as an 'other source,' the ALJ was not required to give her
opinion controlling weight after applying the factors listed in 20 C.F.R. § 416.927."); Carter v.
Astrue, 11 Civ. 2517, 2013 WL 1499414 at *16 (S.D.N.Y. Jan. 22, 2013), R. & R. adopted, 2013
WL 1499423 (S.D.N.Y. Apr. 10, 2013).
Among the factors to be considered under 20 C.F.R. § 416.927(c) is the opinion's
consistency with the record as a whole. 20 C.F.R. § 416.927(c)(4); Browne v. Comm'r of Soc. Sec.,
131 F. Supp. 3d 89, 98 (S.D.N.Y. 2015) ("When assessing how much weight to give [an] opinion,
38/
See also, e.g., Miller v. Astrue, 538 F. Supp. 2d 641, 650 (S.D.N.Y. 2008) ("[T]he ALJ is
not required to give controlling weight to the opinion of a treating chiropractor because
chiropractors are not acceptable medical sources according to Social Security law.");
Downey v. Barnhart, 294 F. Supp. 2d 495, 498 n.3 (S.D.N.Y. 2003); Petrovic v. Comm'r of
Soc. Sec., 15 Civ. 2194, 2016 WL 6084069 at *12 (S.D.N.Y. Aug. 25, 2016), R. & R.
adopted, 2016 WL 6082038 (S.D.N.Y. Oct. 14, 2016); Bailey v. Comm'r of Soc. Sec., 14
Civ. 8454, 2016 WL 270453 at *5 (S.D.N.Y. Jan. 21, 2016), appeal dismissed (June 3,
2016).
50
the ALJ should consider factors set forth in the Commissioner's regulations, which include . . . the
consistency of the opinion with the record as a whole."); Rivera v. Colvin, 2015 WL 1027163 at *15
n.15 (noting that the § 416.927(c) factors include "how consistent the opinion is with the other
evidence of record"). Applying that factor, ALJ Stacchini concluded that Dr. Malouf's opinions
regarding O'Dell's functional limitations were inconsistent with O'Dell's reported activities of daily
living and conservative treatment history. (See page 23 above.) ALJ Stacchini's determination is
additionally supported by the fact that the injury giving rise to O'Dell's spinal problems occurred in
2007. (See pages 10-11 above.) Neither O'Dell nor Dr. Malouf, however, reported indicia of a
disabling spinal injury until early 2014 (see page 11 above) and such reports are inconsistent with
the 2014 diagnostic testing and clinical findings of Dr. Ali already discussed (see page 13 above).
Despite appropriately rejecting Dr. Choudhry's and Dr. Malouf's assertions that
O'Dell's physical impairments were work preclusive, ALJ Stacchini nevertheless incorporated the
credible aspects of their opinions into his RFC determination. Both Dr. Choudhry and Dr. Malouf
assessed that O'Dell was able to stand, sit, and walk for one hour at a time. (See pages 7, 12 above.)
When combined with O'Dell's own testimony to that effect (see page 5 above), these assessments
serve as substantial evidence supporting ALJ Stacchini's RFC determination that O'Dell "needs to
alternate sitting and standing at one hour intervals throughout the day." (R. 15.) Similarly, both Dr.
Choudhry and Dr. Malouf indicated that O'Dell retained the ability to lift and carry weights
corresponding to an ability to perform at least light work (see pages 7, 11-12 above), thus supporting
ALJ Stacchini's determination that O'Dell "has the residual functional capacity to perform light
work" (R. 15). These aspects of Dr. Choudhry and Dr. Malouf's opinions were consistent both with
each other and with O'Dell's reported activities of daily living.
The Court finds that ALJ Stacchini's RFC determination is supported by substantial
51
evidence in the record. See, e.g., Sizer v. Colvin, 592 F. App'x 46, 47 (2d Cir. 2015) (RFC
determination "based on the medical opinion evidence, the objective medical evidence, and
Appellant's testimony at the ALJ hearing" was supported by substantial evidence.); Diaz v. Shalala,
59 F.3d 307, 315 (2d Cir. 1995) ("The opinions of three examining physicians, plaintiff's own
testimony, and the medical tests together constitute substantial evidence adequately supporting the
[Commissioner's] conclusion that plaintiff's injuries did not prevent her from resuming her job as
a sewing machine operator."); Fuentes v. Colvin, No. 13-CV-6201, 2015 WL 631969 at *8
(W.D.N.Y. Feb. 13, 2015) ("'The opinion of a consultative examiner can constitute substantial
evidence supporting an ALJ's decision.'").
O'Dell argues that to the extent ALJ Stacchini gave only partial weight to the
opinions of O'Dell's treating physicians, ALJ Stacchini was required to "fill in the gaps in the
record" by either requesting clarification from those doctors or "bringing in his own independent
medical expert." (Dkt. No. 24: O'Dell Br. ¶¶ 16-17.) It is the "well-established rule in [the Second]
circuit" that the ALJ must develop the record:
[I]t is the well-established rule in our circuit "that the social security ALJ, unlike a
judge in a trial, must on behalf of all claimants . . . affirmatively develop the record
in light of the essentially non-adversarial nature of a benefits proceeding." Lamay
v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009) (internal quotation
marks and brackets omitted) [, cert. denied, 559 U.S. 962, 130 S. Ct. 1503 (2010)];
accord Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004), [amended on other
grounds], 416 F.3d 101 (2d Cir. 2005); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996); see also Gold v. Sec'y of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir.
1972) (pro se claimant). Social Security disability determinations are "investigatory,
or inquisitorial, rather than adversarial." Butts, 388 F.3d at 386 (internal quotation
marks omitted). "[I]t is the ALJ's duty to investigate and develop the facts and
develop the arguments both for and against the granting of benefits." Id. (internal
quotation marks omitted); accord Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).
Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009). The Second Circuit has clarified, however,
that "'where there are no obvious gaps in the administrative record, and where the ALJ already
52
possesses a "complete medical history," the ALJ is under no obligation to seek additional
information in advance of rejecting a benefits claim.'" Swiantek v. Comm'r of Soc. Sec., 588 F.
App'x 82, 84 (2d Cir. 2015) (quoting Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing
Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996))).39/
The record before ALJ Stacchini contained multiple doctors' opinions addressing
O'Dell's spinal, heart, and mental impairments. (See pages 5-19 above.) Where ALJ Stacchini
found a treating physician's opinion inadequate or worth little weight, he was able to fill any
resulting gap in the record by relying on a different, credible physician's opinion on the same issue.
(See pages 22-23 above.) The gap-filling medical opinions in the record were further supplemented
by O'Dell's testimony during his hearing, at which ALJ Stacchini played an investigatory role by
asking numerous questions. (See R. 30-63.) Finally, the Court notes that at the beginning of his
hearing, O'Dell's own counsel answered "[y]es" when ALJ Stacchini asked: "do I have all medical
evidence that bears on disability . . . including any and all opinions[?]" (R. 33.) In light of these
facts, the Court concludes that ALJ Stacchini made his determination on the basis of a record
containing no obvious gaps and a complete medical history, and that he therefore had no obligation
to further develop the administrative record in the ways suggested by O'Dell's counsel.
E.
O'Dell Did Not Have The Ability To Perform His Past Relevant Work
The fourth step of the five-step analysis asks whether O'Dell had the residual
39/
See also, e.g., Ramos v. Comm'r of Soc. Sec., 13 Civ. 6561, 2015 WL 708546 at *18
(S.D.N.Y. Feb. 4, 2015) (ALJ had no further obligation to develop the record where the
medical record from the treating clinic was "extensive, including more than two years of
consistent treatment notes."); Matos v. Colvin, 13 Civ. 4525, 2014 WL 3746501 at *9
(S.D.N.Y. July 30, 2014) (ALJ properly fulfilled duty to develop the record where he
questioned claimant thoroughly, solicited testimony from medical and vocational experts and
admitted voluminous submissions from physicians.), aff'd, 618 F. App'x 14 (2d Cir. 2015).
53
functional capacity to perform his past relevant work. (See page 27 above.) O'Dell previously
worked as a police officer and an EMT. (See page 23 above.) ALJ Stacchini concluded that
O'Dell's "past work was performed above [his] residual functional capacity," and that he therefore
did not have the ability to perform his past relevant work. (See id.) Because this finding favors
O'Dell and is not contested by the Commissioner (see generally Dkt. No. 28: Comm'r Br.), the Court
proceeds to the fifth and final step of the analysis.
F.
There Are Jobs In Substantial Numbers In The Economy That O'Dell Can
Perform
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence
to show the existence of alternative substantial gainful work which exists in the national economy
and which the claimant could perform, considering not only his physical capability, but as well his
age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.
1980).40/
In meeting his burden under the fifth step, the Commissioner:
may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404,
Subpart P, App. 2, commonly referred to as "the Grid". The Grid takes into account
the claimant's residual functional capacity in conjunction with the claimant's age,
education and work experience. Based on these factors, the Grid indicates whether
the claimant can engage in any other substantial gainful work which exists in the
national economy. Generally the result listed in the Grid is dispositive on the issue
of disability.
Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996) (fn. omitted); see, e.g., Heckler v.
Campbell, 461 U.S. 458, 461-62, 465-68, 103 S. Ct. 1952, 1954-55, 1956-58 (1983) (upholding the
40/
See, e.g., Roma v. Astrue, 468 F. App'x 16, 20 (2d Cir. 2012); Arruda v. Comm'r of Soc.
Sec., 363 F. App'x 93, 95 (2d Cir. 2010); Butts v. Barnhart, 388 F.3d 377, 381 (2d Cir.
2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999).
54
promulgation of the Grid); Roma v. Astrue, 468 F. App'x at 20-21; Martin v. Astrue, 337 F. App'x
87, 90 (2d Cir. 2009); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986).
However, "relying solely on the Grids is inappropriate when nonexertional limitations
'significantly diminish' plaintiff's ability to work so that the Grids do not particularly address
plaintiff's limitations." Vargas v. Astrue, 10 Civ. 6306, 2011 WL 2946371 at *13 (S.D.N.Y. July
20, 2011); see also, e.g., Travers v. Astrue, 10 Civ. 8228, 2011 WL 5314402 at *10 (S.D.N.Y. Nov.
2, 2011) (Peck, M.J.), R. & R. adopted, 2013 WL 1955686 (S.D.N.Y. May 13, 2013); Lomax v.
Comm'r of Soc. Sec., No. 09-CV-1451, 2011 WL 2359360 at *3 (E.D.N.Y. June 6, 2011) ("Sole
reliance on the grids is inappropriate, however, where a claimant's nonexertional impairments
'significantly limit the range of work permitted by his exertional limitations.'").
Rather, where the claimant's nonexertional limitations "'significantly limit the range
of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational
expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d at
605); see also, e.g., Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) ("We have explained that the
ALJ cannot rely on the Grids if a non-exertional impairment has any more than a 'negligible' impact
on a claimant's ability to perform the full range of work, and instead must obtain the testimony of
a vocational expert."); Rosa v. Callahan, 168 F.3d at 82 ("Where significant nonexertional
impairments are present at the fifth step in the disability analysis, however, 'application of the grids
is inappropriate.' Instead, the Commissioner 'must introduce the testimony of a vocational expert
(or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'"
(quoting & citing Bapp v. Bowen, 802 F.2d at 603, 605-06)); Suarez v. Comm'r of Soc. Sec., No.
09-CV-338, 2010 WL 3322536 at *9 (E.D.N.Y. Aug. 20, 2010) ("If a claimant has nonexertional
55
limitations that 'significantly limit the range of work permitted by his exertional limitations,' the ALJ
is required to consult with a vocational expert." (quoting Zabala v. Astrue, 595 F.3d at 411)).
ALJ Stacchini properly relied on the testimony of vocational expert Linda Stein to
determine that jobs O'Dell could perform exist. (See page 23 above.)41/ Stein opined on the
availability of work for a person of O'Dell's age, education and work experience who is able to do
full range of light work, with the caveats, inter alia, that he should be allowed to alternate between
sitting and standing every hour; he should be limited to a job that involves only "simple, routine
tasks such as those demanded of SVP: 2 jobs or less," and "low stress" jobs defined as those
involving only occasional decision making and changes in the workplace. (See page 20 above.)
Stein opined that a person with those limitations could work as a ticket taker, cashier or information
clerk, and that such jobs exist in the national economy. (See id.) ALJ Stacchini relied upon the
vocational expert's testimony in reaching his conclusion when he specifically referred to those jobs
41/
A vocational expert can provide evidence regarding the existence of jobs in the economy and
a particular claimant's functional ability to perform any of those jobs. 20 C.F.R.
§§ 404.1566(e), 416.966(e); see, e.g., Calabrese v. Astrue, 358 F. App'x 274, 275-76 (2d Cir.
2009); Butts v. Barnhart, 416 F.3d at 103-04; Taylor v. Barnhart, 83 F. App'x 347, 350 (2d
Cir. 2003); Jordan v. Barnhart, 29 F. App'x 790, 794 (2d Cir. 2002); Rautio v. Bowen, 862
F.2d 176, 180 (8th Cir. 1988); Dumas v. Schweiker, 712 F. 2d 1545, 1553-54 (2d Cir. 1983);
DeJesus v. Astrue, 762 F. Supp. 2d 673, 693 n.20 (S.D.N.Y. 2011) (Peck, M.J.); Quezada
v. Barnhart, 06 Civ. 2870, 2007 WL 1723615 at *13 n.20 (S.D.N.Y. June 15, 2007) (Peck,
M.J.); Snipe v. Barnhart, 05 Civ. 10472, 2006 WL 2390277 at *18 (S.D.N.Y. Aug. 21, 2006)
(Peck, M.J.), R. & R. adopted, 2006 WL 2621093 (S.D.N.Y. Sept. 12, 2006); De Roman v.
Barnhart, 03 Civ. 0075, 2003 WL 21511160 at *17 (S.D.N.Y. July 2, 2003) (Peck, M.J.);
Bosmond v. Apfel, 97 Civ. 4109, 1998 WL 851508 at *8 (S.D.N.Y. Dec. 8, 1998); Fuller
v. Shalala, 898 F. Supp. 212, 218 (S.D.N.Y. 1995) (The "vocational expert, . . . provided
several examples of unskilled . . . jobs that are available in the national and local economies
for a person with [plaintiff's] condition, age, education, and work experience. . . .
Accordingly, the Secretary satisfied her burden of showing that such jobs exist in the
national economy.").
56
in his findings.42/ (See page 23 above.) Accordingly, ALJ Stacchini's decision was supported by
substantial evidence.
CONCLUSION
For the reasons set forth above, the Commissioner's determination that O'Dell was
not disabled within the meaning of the Social Security Act during the period from May 27, 2011 to
June 20, 2014 is supported by substantial evidence. Accordingly, the Commissioner's motion for
judgment on the pleadings (Dkt. No. 27) is GRANTED and O'Dell's motion (Dkt. No. 24) is
DENIED. The Clerk of Court shall close the case.
SO ORDERED.
Dated:
New York, New York
November 22, 2016
________________________________
Andrew J. Peck
United States Magistrate Judge
Copies ECF to:
42/
All Counsel
O'Dell argues that ALJ Stacchini ignored Stein's testimony that there was no work in the
national economy for someone with O'Dell's limitations that also has to be off task for
twenty percent of the workday. (See Dkt. No. 24: O'Dell Br. ¶ 14.) As already discussed,
however, ALJ Stacchini's RFC assessment did not include the caveat that O'Dell be
permitted to be off task for twenty percent of the workday (see page 21 above), and that RFC
assessment was supported by substantial evidence (see pages 43-52 above). O'Dell's
argument is without merit.
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