Nelson v. Colvin

Filing 22

MEMORANDUM AND ORDER denying 12 Motion for Judgment on the Pleadings; granting 15 Motion for Judgment on the Pleadings. For the reasons discussed above, the plaintiff's motion for judgment on the pleadings (Docket no. 12) is denied and th e defendant's cross-motion (Docket no. 15) is granted. The Clerk of Court is respectfully directed to enter judgment accordingly and close this case. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 4/14/2017) Copies Transmitted this Date By Chambers. (anc)

(R. at 17). 2

23, 2012, alleging disability as of April 18, 2011.

After his claim was denied on initial review (R. at 88-92), the
plaintiff requested a hearing before an administrative law judge
(“ALJ”) (R. at 96).
ALJ

Robert

counsel.

A hearing was held on March 28, 2014, before

Gonzalez,

at

(R. at 32-75).

which

Mr.

Nelson

was

represented

by

On September 16, 2014, the ALJ issued a

determination finding that Mr. Nelson was not entitled to DIB under
the Act.
March

(R. at 17-27).

18,

2016,

The Appeals Council denied review on

rendering

the

determination of the Commissioner.

ALJ’s

decision

(R. at 1-3).

the

final

The plaintiff

then commenced this action.
B.

Personal History

Mr. Nelson was born in 1956 and has an associate’s degree in
microprocessing and telecommunications.

(R. at 72, 81).

The

plaintiff worked as an auto technician at a car repair business
from 1988 to April 18, 2011, when he was laid off, and he has not
worked since.
C.

(R. at 39, 207).

Medical History

Prior to the alleged onset date, Mr. Nelson suffered a workrelated accident in 1977 while employed as an auto mechanic.
at 308).

2

(R.

He sustained a skull fracture, contusion of the brain,

“R.” refers to the administrative record, filed as part of
the Commissioner’s answer.
2

and damage to left eye, left jaw, and teeth, and he had a metal
plate placed in his skull.

(R. at 308).

years later in a reduced capacity.

He returned to work eight

(R. at 308).

Additionally,

prior to the initial onset date, Mr. Nelson was hospitalized at
the Behavioral Health Unit of Orange Regional Medical Center from
April 7, 2010 to April 12, 2010, for depressive disorder and
alcohol abuse.
1.

(R. at 268-71).
Consulting Physicians
a.

Dr. Alan Dubro

After Mr. Nelson filed an application for DIB, Dr. Alan Dubro,
Ph.D., conducted a consultative psychiatric evaluation on June 27,
2012.

(R. at 272).

The plaintiff informed Dr. Dubro about the

1977 injury, stating that it caused intracranial bleeding and a
fractured skull.
appear[ed]

3

to

(R. at 272).

be”

a

The plaintiff also reported “what

transient

ischemic

attack

(“TIA”) 3

that

A TIA is

like a stroke, producing similar symptoms, but usually
lasting only a few minutes and causing no permanent
damage.
Often called a ministroke, a transient ischemic attack
may be a warning.
About 1 in 3 people who have a
transient ischemic attack will eventually have a stroke,
with about half occurring within a year after the
transient ischemic attack.
Transient
Ischemic
Attack
(TIA),
Mayo
Clinic,
http://www.mayoclinic.org/diseases-conditions/transient-ischemic
3

occurred six months prior to the visit, but Mr. Nelson did not
receive a medical follow-up immediately after the TIA.

(R. at

272-73).

During the episode, he experienced numbness in his face,

weakness

in

his

right

leg,

difficulty

in

processing

information, and difficulty expressing himself.

verbal

(R. at 272-73).

In addition to the TIA, Mr. Nelson also reported hypertension,
migraine headaches several times per week, numbness and weakness
on the right side of the body, difficulty sleeping, and reduced
appetite.

(R. at 272-73).

Associated with these symptoms, the

plaintiff stated that he had become markedly depressed.

(R. at

273).
During

behavior

was

sluggish and he could not consistently maintain eye contact.

(R.

at 273).

the

examination,

Mr.

Nelson’s

motor

He did not speak spontaneously, questions often needed

to be repeated to him, and he spoke slowly.

(R. at 273).

Although

his thought process was coherent and goal directed, he would
frequently lose his train of thought, which Mr. Nelson noted
started around the time of the TIA.

(R. at 273).

His affect was

blunted and his mood depressed, but his sensorium was clear.
at 273-74).
274).

He was oriented to person, place, and time.

His insight and judgment were fair.

-attack/basics/definition/con-20021291
2017).
4

(R.

(R. at

(R. at 274).

(last

visited

April

11,

Mr. Nelson’s concentration, attention, recent memory, and
remote memory were impaired. (R. at 274). Specifically, Dr. Dubro
stated:
With
repetition,
the
claimant
performed
mental
arithmetic (4 + 5, 10 - 6). Even with repetition, the
claimant was not able to perform any other arithmetic
calculations mentally (30 divided by 5, 25 times 6, 24
divided by 3).
. . . .
The claimant recalled l of 3 items after one minute and
none of 3 after five minutes.
He repeated 3 digits
forward and 2 backward.
(R. at 274).

Dr. Dubro estimated that the plaintiff fell into a

low-average range of cognitive functioning and opined that the
plaintiff had difficulty in long-term memory (for instance, he
could not remember how many seconds there were in a minute).
at 274).

(R.

He had marked difficulty in being able to remember and

follow directions and instructions, and his attention span was
markedly impaired.

(R. at 274-75).

Mr. Nelson regularly lacked

the motivation “to get up and out of bed in the morning,” had not
been consistently motived to maintain hygiene, could not focus on
simple

chores,

no

longer

drove

or

traveled

experienced difficulty managing money.

on

his

(R. at 274).

own,

and

Dr. Dubro

opined that Mr. Nelson would have marked difficulty in learning
new

tasks,

interacting

maintaining a schedule.

with

others,

(R. at 275).
5

making

decisions,

or

Dr.

Dubro

concluded

that

the

results

of

the

exam

were

consistent with psychiatric and cognitive problems that would
significantly interfere with Mr. Nelson’s ability to function on
a daily basis.
depression,

a

(R. at 275).
non-specified

He diagnosed Mr. Nelson with major
cognitive

disorder,

hypertension,

left-sided weakness, numbness on his face and left side of his
body, and migraine headaches.

(R. at 275).

He recommended

psychiatric treatment, and the prognosis was guarded. (R. at 275).
b.

Dr. Kautilya Puri

That same day, Dr. Kautilya Puri conducted a consultative
neurologic examination of the plaintiff.

(R. at 277).

reiterated information about his 1977 accident.

Mr. Nelson

(R. at 277).

After the accident, he had numbness in his face, arms, and legs,
confusion, trouble speaking, difficulty walking, lightheadedness,
loss of balance, and persistent headaches.

(R. at 277).

He also

noted an episode of numbness in his right foot and arm six months
prior to the consultation and stated that he had a history of high
blood pressure.

(R. at 277).

Mr. Nelson could do some activities

of daily living, including some laundry and shopping, and he would
shower, dress, watch television, listen to the radio, and “go[]
out.”

(R. at 277).

Mr. Nelson’s vision was 20/25 in the right eye, 20/50 in the
left eye, and 20/25 with both eyes as measured using a Snellen
6

chart at twenty feet.

(R. at 278).

His gait and station were

normal, and he did not use an assistive device.

(R. at 278).

He

was able to get off the chair and exam table without difficulty.
(R. at 278).

However, he had some mild difficulty tandem walking.

(R. at 278).
The

contact,

was

oriented to time, person, and place, and he had no delusions.

(R.

at 278).

plaintiff

maintained

appropriate

eye

There was no indication of recent or remote memory

impairment, and there was no suggestion of impairment in insight
or judgment.

(R. at 278).

(R. at 278).

He appeared in no acute distress, and his speech was

normal.

His mood and affect were appropriate.

(R. at 278).

Dr. Puri noted that the plaintiff was post left craniotomy
and had local tenderness in the left orbit region.
There was mild left ptosis.

(R. at 278).

(R. at 278).

His pupils were equal

and reactive to light and accommodation, and his extraocular
movements were intact.

(R. at 278).

he had no L/R field defect.

No nystagmus was noted, and

(R. at 278).

his neck was supple with no bruits.

He had no tremor, and

(R. at 278).

Mr. Nelson’s hand and finger dexterity was intact, and his
grip strength was 5/5 bilaterally.

(R. at 278).

In his upper

extremities, strength was 5/5 in proximal and distal muscles,
muscle tone was normal, finger-to-nose testing was normal, rapid
7

alternating movements were normal, and no muscle atrophy was noted.
(R. at 278).

In his lower extremities, strength was 5/5 in

proximal and distal muscles, muscle tone was normal, heel-to-shin
testing was normal, Babinski reflexes were negative, there were no
tremors or muscle atrophy, and there was no dysmetria.

(R. at

279).

(R. at

Dr. Puri noted a “trace” in deep tendon reflexes.

279).
Dr. Puri wrote that Mr. Nelson had normal sensation to pain,
light touch, and vibration, and normal proprioception.
279).

(R. at

Dr. Puri diagnosed him with prior traumatic brain injury,

chronic headaches, and high blood pressure.
Nelson’s prognosis was fair.

(R. at 279).

(R. at 279).

Mr.

Dr. Puri stated that

there were no objective limitations to communication, fine or gross
motor activity, gait, and activities of daily living. (R. at 279).
c.
Dr.

L.

Dr. L. Hoffman

Hoffman, 4

an

agency

medical

consultant,

recorded

summary conclusions by evaluating Mr. Nelson’s file on September
5, 2012.

(R. at 280-83, 290-301).

limitations

in

ability

to

Dr. Hoffman noted moderate

understand

and

carry

out

detailed

instructions, maintain attention for extended periods, perform an
activity with a schedule, sustain an ordinary routine without

4

The ALJ assumed that L. Hoffman is a physician (R. at 21),
although the record is not clear. I will make the same assumption.
8

special supervision, respond appropriately to changes in a work
setting, and set realistic goals independently of others.
280-81).

(R. at

However, Dr. Hoffman noted no significant limitation in

ability to remember and carry out simple instructions, work in
coordination with others without being distracted, make simple
work-related decisions, perform at a consistent pace, interact
socially, and be aware of normal hazards.

(R. at 280-81).

Hoffman noted some organic mental and affective disorders.
290).

Dr.

(R. at

There were moderate restrictions in activities of daily

living and moderate difficulties in maintaining concentration,
persistence, and pace.

(R. at 300).

maintaining social functioning.
2.
On

There was mild difficulty in

(R. at 300).

Treating Physician

February

6,

2013,

Mr.

Nelson

met

with

his

treating

physician, Dr. Rocco Russo. (R. at 304-07). The treatment records
noted Mr. Nelson’s 1977 accident and resulting surgeries.
304).

(R. at

Mr. Nelson did not appear in acute distress, and he was

well developed, alert, and cooperative; he had a normal mood and
affect, and he had a normal attention span and concentration.
at 306).

(R.

Dr. Russo noted that the plaintiff had “good control”

with his hypertension medication.

(R. at 306).

Dr. Russo found

tenderness in Mr. Russo’s right calf and recommended a daily
runner’s stretch and prescribed Flexeril.
9

(R. at 306).

He also

recommended some dietary changes to combat Mr. Nelson’s mild
hyperlipidemia.

(R. at 306-07).

On October 15, 2013, Dr. Russo noted that the plaintiff
complained of pounding headaches, nausea, photophobia, irritation,
sensation of “floating” dark patches, and pain and muscle cramps
in his right side; Mr. Nelson described his pain as a “six” in
intensity.

(R. at 313-14).

(R. at 313).

He had never started the Flexeril.

While Mr. Nelson complained of double vision, Dr.

Russo noted that he wore prism lenses.

(R. at 317).

Mr. Nelson

denied chest pain, fatigue, fainting, shortness of breath, and
swelling of the hands or feet.

(R. at 317).

Upon examination, Mr. Nelson appeared well developed, well
nourished, and in no acute distress.

(R. at 317).

His head was

in normal condition but there was tenderness over the left temporal
area.

(R. at 317).

(R. at 317).

His eyes and ears appeared normal and intact.

His sensation, reflexes, coordination, strength, and

tone were normal, and he was alert, cooperative, had normal mood
and affect, and had a normal attention span.
ball of his right foot was tender.

(R. at 317).

(R. at 317).

The

Dr. Russo found

that Mr. Nelson previously had a cardiovascular accident (“CVA”),
which had resulted in headaches as well as concentration and memory
deficits.

(R. at 318).

Additionally, Dr. Russo diagnosed him

with hypertension and ordered additional medication.
10

(R. at 318).

Mr. Nelson visited Dr. Russo again on February 25, 2014,
stating that he felt tired, lethargic, and “Blahh” from the winter
weather.

(R. at 360).

Mr. Nelson stated that he was taking his

blood pressure medication sporadically because it made him feel
tired the next day.

(R. at 360).

He also stated that he “would

like to get out and start doing other things.”

(R. at 360).

stated that the Flexeril helped with the muscle spasms.
360).

He

(R. at

Dr. Russo noted that Mr. Nelson was not in pain, but Mr.

Nelson complained of fatigue.
depressed

nor

suffering

lightheadedness.

(R. at 363).
from

(R. at 363).

anxiety,

Mr. Nelson was not
chest

pain,

or

Dr. Russo noted that the plaintiff

was in no acute distress and that he was alert and cooperative.
(R. at 364).

He observed that Mr. Nelson was not adhering to the

hypertension mediation as prescribed.
3.

(R. at 364).

Other Physicians

On July 31, 2013, Mr. Nelson was seen by Dr. Avtar Singh at
the Neurology Group of Westchester.
the

plaintiff’s

1977

accident

(R. at 308).
and

resulting

Dr. Singh noted
complications,

including a history of severe headaches and numbness. (R. at 308).
Mr. Nelson complained of loss of vision, double vision, loss of
hearing, difficulty speaking, chronic daily headaches, pain in the
face, pain in the neck, difficulty walking, and muscle pain and
weakness.

(R. at 308).

Upon examination, Dr. Singh noted that
11

there was tenderness over the lateral border of Mr. Nelson’s left
orbit.

(R. at 309).

A straight leg-raising test was negative

bilaterally, and his neck was normal.

(R. at 309).

Mr. Nelson

could remember two out of three objects after five minutes and
could remember “4 of 5 presidents,” but he failed a calculations
test.

(R. at 309).

at 309).

His language and attention were normal.

His pupils were reactive to light and accommodation, and

his visual fields were full to confrontation.

(R. at 309).

vision was 20/20 in the right eye, and 20/40 in the left.
309).

(R.

Mr. Nelson’s hearing was intact.

His

(R. at

(R. at 309).

The plaintiff’s motor strength was 5/5 in all muscle groups,
but he had difficulty raising his right hand above his head.
at 309).
Mr.

His stride and tandem gait were normal.

Nelson’s

paresthesia

sensation
in

his

was

right

normal,

arm

and

but

there

leg.

(R.

coordination and reflexes were normal.

(R. at 309).

was
at

(R.

subjective
309).

His

(R. at 309).

Dr. Singh diagnosed Mr. Nelson with headaches, a prior head
injury, anxiety, and seizures, but noted that the seizure diagnosis
was not definite due to lack of any witnessed history.
309-10).

Dr.

Singh

ordered

electroencephalogram (“EEG”).

a

computed

tomography

(R. at
and

an

(R. at 310).

At the computed tomography scan on August 12, 2013, Dr. Joseph
Racanelli

noted

nothing

remarkable
12

except

for

mild

encephalomalacia 5 in the left frontal lobe secondary to prior
trauma.

(R. at 311).

At the EEG on August 14, 2013, the examiner

at the Orange Regional Medical Center opined that the EEG was
“probably normal.”

(R. at 312).

While there was excessive beta

activity, it was “probably suggestive of underlying anxiety or
drug effects,” and while there was abnormal activity originating
from the F7 electrode, it was “probably artifactual rather than
real.” (R. at 312). An MRI corroboration and clinical correlation
follow-up were recommended.

(R. at 312).

Mr. Nelson did not

follow-up.
4.

Physical Medical Source Statement

On October 29, 2013, Dr. Russo completed a physical medical
source statement.

(R. at 319-30).

He noted that Mr. Nelson had

suffered a CVA and had right side hemiplegia. 6

(R. at 319).

He

also noted that the plaintiff had hypertension, a traumatic brain
injury, and left visual field impairment.

(R. at 319).

Mr.

Nelson’s symptoms were decreased stamina, fatigue, frustration,
fall

risk,

and

decreased

balance.

(R.

significant tenderness in the temporal area.

at

319).

He

noted

(R. at 319).

5

Encephalomalacia is “[a]bnormal softness of the cerebral
parenchyma often due to ischemia or infarction.” Stedman’s Medical
Dictionary 587 (27th ed. 2000).
6

Hemiplegia means “[p]aralysis of one side of the body.”
Stedman’s Medical Dictionary 800 (27th ed. 2000).
13

He opined that Mr. Nelson would perform poorly in a work
environment and that he could only walk a quarter to half a city
block without rest or severe pain.

(R. at 319).

He stated that

Mr. Nelson could not sit for more than fifteen minutes without
needing to stand up, and that he could stand for forty-five minutes
to an hour without needing to sit or walk around.

(R. at 320).

Mr. Nelson could sit for a total of two hours a day and could stand
or walk for two to four hours per day.

(R. at 320).

Dr. Russo

opined that he would have to change position frequently due to
numbness and muscle spasms, noting that he would have to walk for
ten to fifteen minutes every ten to fifteen minutes.

(R. at 320).

Mr. Nelson would have to take unscheduled breaks every forty-five
minutes

for

fifteen

minutes

due

to

muscle

fatigue, pain, paresthesias, and numbness.

weakness,

chronic

(R. at 320-21).

Russo noted no need for an assistive device.

(R. at 321).

Dr.
Mr.

Nelson could never lift weight with his right hand but could
occasionally lift ten pounds with his left.

(R. at 321-22).

He

could occasionally twist and stoop, but could only rarely crouch
or squat.

(R. at 322).

He had significant limitations with

reaching, handling, and fingering with his right hand.
322).

(R. at

With his right hand, he could not grasp, turn, or twist

objects; perform fine manipulations with his fingers; reach in
front of his body; or reach overhead.
14

(R. at 322).

However, he

could perform all of those functions with his left hand and arm.
(R. at 322).
Dr. Russo wrote that these symptoms would not interfere with
attention and concentration, but multiple tasks and a hectic work
environment could case stress reactions.

(R. at 322-23).

Dr.

Russo explained that these conclusions were based on Mr. Nelson’s
prior traumatic brain injury and the CVA.

(R. at 323).

Dr. Russo

stated that Mr. Nelson would be absent from work more than four
days per month.
5.

(R. at 323).
Work Activities Medical Source Statement

Dr. Russo also completed a medical source statement of ability
to do work-related activities.

(R. at 324).

He noted that Mr.

Nelson could not lift or carry more than ten pounds for one-third
of a workday, and he could do so only with his left arm.
324).

(R. at

He could sit for two to four hours, stand for forty-five

minutes, and walk for two to four hours, but he could only do those
things with a break and change in position every fifteen minutes.
(R. at 325).

This was recommended to avoid muscle spasms and

because Mr. Nelson was easily fatigued.

(R. at 325).

He could

never reach, handle, finger, feel, push, or pull with his right
hand, but could frequently do so with his left hand; Dr. Russo
noted that Mr. Nelson’s dominant hand was his right hand.
326).

(R. at

He could never operate foot controls with his right foot.
15

(R. at 326).

Mr. Nelson could never climb ladders or scaffolds,

balance, stoop, and crawl, but he could occasionally climb stairs
and ramps, kneel, and crouch.
were due to his hemiplegia.

(R. at 327).

These restrictions

(R. at 326).

Dr. Russo also noted a blind spot in Mr. Nelson’s left eye.
(R. at 327). He could avoid ordinary hazards, read ordinary print,
view a computer screen, but he could not read very small print or
determine the differences in the shape and color of small objects.
(R. at 327).

Mr. Nelson could never work around unprotected

heights, moving mechanical parts, dust, odors, fumes, extreme
cold, extreme heat, or vibrations.
not operate a motor vehicle.

(R. at 328).

(R. at 328).

tolerate humidity and wetness.

He also could

He could occasionally

(R. at 328).

He could work in a

quiet or moderately noisy office, but Dr. Russo noted that he would
have

decreased

environment.

focus

and

(R. at 328).

or very loud conditions.

be

easily

distracted

in

the

latter

The plaintiff could not work in loud

(R. at 328).

Dr. Russo opined that Mr. Nelson could shop, ambulate, use
standard public transportation, prepare simple meals, care for
personal hygiene, and handle files.

(R. at 329).

However, he

could not travel without a companion, walk a block at a reasonable
pace on rough surfaces, or climb a few steps without a handrail.

16

(R. at 329).

Dr. Russo noted that the limitations began with the

skull fracture and were exacerbated by the CVA.
D.

(R. at 329).

Testimonial and Non-Medical Evidence

Mr. Nelson completed a function report on June 20, 2012.
at 213).

(R.

He stated that he rests all day because his “body is

numb and weak” and that he has “constant pain, headache, dizziness,
[and] trouble seeing.”

(R. at 214).

He also stated that he cannot

sleep all night, so he instead sleeps “a lot during the day.”
at 214).

He tries to go outside every day.

(R. at 216).

(R.

However,

he tries to go out with someone else, as he has trouble seeing in
one eye and falls.
or shave.

(R. at 216-17).

(R. at 215).

He cannot always feed himself

Once each day, he makes a peanut butter

and jelly sandwich, and others prepare the rest of his meals.
at 215).

(R.

He can do laundry, cleaning, repairs, light shopping,

and some yard work by himself.

(R. at 216-17).

He does not

socialize or do any hobbies because he cannot “handle people” or
“be bothered.”

(R. at 218).

Mr. Nelson further stated that he has difficulty lifting
because his arms are numb.

(R. at 218).

He has headaches and

shooting pains in his body.

(R. at 222).

He does not kneel or

squat, and he has trouble reaching, using his hands, seeing, and
speaking.

(R. at 219).

He experiences “sudden confusion when in

pain,” and he has trouble remembering things.
17

(R. at 220-21).

He

can follow spoken and written instructions, and does not have
trouble getting along with people in authority or at a job.
at 220).

He stated that he drives.

(R.

(R. at 217).

At the administrative hearing, he stated that his stroke
occurred around April 2012, and he could not see, speak, or move
the right side of his body; he did not go to the hospital.
48, 68-69).

(R. at

After the stroke, he felt anxious and experienced

migraines, numbness, difficulty focusing, and restricted use of
his right arm.

(R. at 42, 48, 62, 64).

He stated his eyesight

worsened after the incident but has since improved.

(R. at 48).

When asked how he “spend[s] [his] days,” Mr. Nelson replied
that he tries to exercise.

(R. at 52).

He rides a bike for a

mile or more at times (R. at 52), and a few times a week he walks
for a couple of hours (R. at 54).

He sometimes swims for two to

three hours one or twice a week.

(R. at 55-56).

cooking, shopping, and cleaning.
once a week.

(R. at 62).

(R. at 59).

He does some

He visits a friend

The plaintiff stated that he travels to

Canada five to ten times per year to visit family.

(R. at 35-36).

Mr. Nelson testified that he was laid off from his job in
April 2011 and received Unemployment Compensation.

(R. at 39).

He continued to look for work as an automotive repair technician.
(R. at 44).

The plaintiff also testified that Dr. Russo asked him

18

questions from the medical source statements and that Dr. Russo
later filled the form out.

(R. at 71-72).

The plaintiff’s sister -- Nancy Nelson -- filled out a thirdparty function report on August 21, 2012.
stated, “He cannot use one side of his body.
memory loss.
operation.
a row.”

(R. at 228).

She

He has short term

He cannot see properly [and] one eye needs an

His brain damage keeps him from moving for 3 days in
(R. at 228).

She further wrote that he has trouble

falling asleep and has serious fatigue.

(R. at 229).

She stated

that he goes outside four days per week, but otherwise, he is
inside sick for three days.

(R. at 231).

She also wrote that he

is able to drive and can adequately handle money, but no longer
has “patience for people [and] it raises his blood pressure.”
at 231, 233).

(R.

She stated that his conditions affect his ability

to lift, squat, bend, stand, reach, use his hands, walk, kneel,
talk, climb stairs, see, remember, complete tasks, concentrate,
understand, follow instructions, and get along with others.

(R.

at 233).
Analytical Framework
A.

Determination of Disability

A claimant is disabled under the Act and therefore entitled
to disability benefits if he can demonstrate, through medical
evidence, that he is unable to “engage in any substantial gainful
19

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 [twelve] months.” 42 U.S.C. § 423(d)(1)(A); accord Craig
v. Commissioner of Social Security, __ F. Supp. 3d __, __, 2016 WL
6885216, at *6 (S.D.N.Y. 2016).

The disability must be 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.”

42 U.S.C. §§ 423(d)(2)(A).

To obtain

DIB, the claimant must have become disabled between the alleged
onset date and the date on which he was last insured.

42 U.S.C.

§§ 416(i), 423(a); Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.
2008); Rivera v. Commissioner of Social Security, No. 15 Civ. 8439,
2017 WL 120974, at *5 (S.D.N.Y. Jan. 12, 2017).
To determine whether a claimant is entitled to disability
benefits,

the

Commissioner

employs

analysis.

20 C.F.R. § 404.1520(a)(4); Cichocki v. Astrue, 729

F.3d 172, 173 n.1 (2d Cir. 2013).

a

five-step

sequential

First, the claimant must

demonstrate that he is not currently engaging in substantial
gainful activity.

20 C.F.R. § 404.1520(a)(4)(i), (b).

Second,

the claimant must prove that he has a severe impairment that
significantly limits his physical or mental ability to perform
20

basic work activities.

20 C.F.R. § 404.1520(a)(4)(ii), (c).

Third, if the impairment meets or equals a listing in Appendix 1
of Subpart P of the regulations (the “Listings”), the claimant is
automatically

considered

disabled.

20

C.F.R.

§

404.1520(a)(4)(iii), (d); see 20 C.F.R. Part 404, Subpt. P, App.
1.

Fourth, if the claimant is unable to make the requisite showing

under step three, he must prove that he does not have the residual
functional

capacity

to

404.1520(a)(4)(iv), (e).

perform

his

past

work.

20

C.F.R.

§

Fifth, if the claimant satisfies his

burden of proof on the first four steps, the burden shifts to the
Commissioner to demonstrate that there is alternative substantial
gainful employment in the national economy that the claimant can
perform.

20 C.F.R. §§ 404.1520(a)(4)(v), (g); Cichocki, 729 F.3d

at 173 n.1; Craig, __ F. Supp. 3d at __, 2016 WL 6885216, at *7.
B.

Judicial Review

“Any individual, after any final decision of the Commissioner
of Social Security . . . , may obtain a review of such decision by
a civil action commenced . . . in the district court of the United
States.”

42 U.S.C. § 405(g).

Commissioner’s

findings

“as

The
to

Act
any

provides
fact,

substantial evidence, shall be conclusive.”

if

that

the

supported

by

42 U.S.C. § 405(g).

A court reviewing the Commissioner’s decision “may set aside a
decision of the Commissioner if it is based on legal error or if
21

it is not supported by substantial evidence.” Geertgens v. Colvin,
No. 13 Civ. 5133, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014)
(quoting Hahn v. Astrue, No. 08 Civ. 4261, 2009 WL 1490775, at *6
(S.D.N.Y. May 27, 2009)).
Judicial review, therefore, involves two levels of inquiry.
First, the court must decide whether the Commissioner applied the
correct legal standard.

Tejada v. Apfel, 167 F.3d 770, 773 (2d

Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254, 2008 WL
4452359, at *8 (S.D.N.Y. April 29, 2008).

Second, the court must

decide whether the ALJ’s decision was supported by substantial
evidence.

Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at

*8.

determining

“In

whether

substantial

evidence

exists,

a

reviewing court must consider the whole record, examining the
evidence from both sides, because an analysis of the substantiality
of the evidence must also include that which detracts from its
weight.”

Longbardi v. Astrue, No. 07 Civ. 5952, 2009 WL 50140, at

*21 (S.D.N.Y. Jan. 7, 2009) (citing Brown v. Apfel, 174 F.3d 59,
62 (2d Cir. 1999), and Williams v. Bowen, 859 F.2d 255, 256 (2d
Cir. 1988)).

Substantial evidence in this context is “more than

a mere scintilla.

It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

Hahn,

2009 WL 1490775, at *6 (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)).
22

C.

Legal Standard

Where, as here, a party moves for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure,
that

party

is

entitled

to

judgment

on

the

pleadings

if

he

establishes that no material facts are in dispute and that he is
entitled to judgment as a matter of law.

Burnette v. Carothers,

192 F.3d 52, 56 (2d Cir. 1999); Claudio v. Commissioner of Social
Security, No. 15 Civ. 9847, 2017 WL 111741, at *1 (S.D.N.Y. Jan.
11, 2017).
D.

The ALJ’s Decision

ALJ Gonzalez analyzed Mr. Nelson’s claim pursuant to the fivestep sequential evaluation process and concluded that he was not
disabled under the Act from the date he filed for benefits through
the date of the decision.

(R. at 17).

The ALJ first found that

Mr. Nelson was insured through December 31, 2016.
Next,

he

found

that

the

plaintiff

had

not

(R. at 19).

engaged

in

any

substantial gainful activity since April 18, 2011, which was the
alleged onset date.

(R. at 19).

At step two, he found that Mr. Nelson had the following severe
impairments: headaches and migraines, a possible seizure disorder,
anxiety, a cognitive disorder and depression, and subjective right
arm

paresthesia.

(R.

at

19).

These

impairments

more

than

minimally affected his ability to perform basic work activities.
23

(R. at 19). However, the ALJ found that Mr. Nelson’s hypertension,
traumatic brain injury, CVA, and vision problems did not interfere
with his ability to perform basic work activities and were not
severe.

(R. at 20).

At step three, ALJ Gonzalez determined that none of the
impairments, either alone or in combination, met or was equal in
severity to the impairments enumerated in the Listings.

(R. at

20).
At the fourth step, the ALJ determined that Mr. Nelson had
the residual functional capacity to perform medium work as defined
by the regulations.

(R. at 22).

He could perform simple,

repetitive work, because he could understand, remember, and carry
out simple routine instructions.
judgments

commensurate

with

the

(R. at 22).
functions

He could also make
of

unskilled

work,

respond appropriately to supervision, respond to the public, deal
with

changes

extremity.

in

a

routine

(R. at 22).

work

setting,

and

reach

with

one

The ALJ noted that the plaintiff would

have to avoid working at unprotected heights.

(R. at 22).

The ALJ then concluded that Mr. Nelson could not perform his
past relevant work but that there were a significant number of
jobs in the national economy that he was capable of performing.
(R. at 26).

This was based on the Medical-Vocational Guidelines

contained in the regulations (the “Grids”), see 20 C.F.R. Part
24

404, Subpt. P, App. 2, against which the ALJ compared his findings
that the plaintiff qualified as an individual of advanced age, had
at least a high school diploma, was able to communicate in English,
and had the residual functional capacity to perform medium work.
(R. at 26-27).

Thus, ALJ Gonzalez found Mr. Nelson not disabled

under the Act.

(R. at 27).

Discussion
The

plaintiff

advances

four

primary

overturning the Commissioner’s decision.

contentions

for

First, he asserts that

the ALJ erred in assigning great weight to both Dr. Puri’s and Dr.
Hoffman’s opinions, that he erred in assigning only “some weight”
to the function report filled out by Mr. Nelson’s sister, and that
he erred in assigning little weight to the opinions of Dr. Dubro
and Dr. Russo.

(Plaintiff’s Memorandum of Law in Support of

Plaintiff’s Motion for Judgment on the Administrative Record and
Pleadings Pursuant to Rule 12(c) F.R.C.P. (“Pl. Memo.”) at 9-14).
Next,

he

contends

credibility.

that

the

ALJ

(Pl. Memo. at 15-18).

erred

when

his

Third, he argues that the

residual functional capacity assessment was flawed.
18-22).

assessing

(Pl. Memo. at

Fourth, he argues that the ALJ’s reliance on the Grids

was misplaced.

(Plaintiff’s Reply Memorandum of Law in Opposition

to Defendant’s Cross-Motion and in Further Support of Plaintiff’s

25

Motion for Judgment on the Administrative Record and Pleadings
Pursuant to Rule 12(c) F.R.C.P. at 4-5).
A.

Treating Physician
1.

Framework

Pursuant to the regulations, “the opinion of a claimant’s
treating physician as to the nature and severity of the impairment
is given ‘controlling weight’ so long as it ‘is well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
[the] case record.’”
Cir.

2008)

Burgess v. Astrue, 537 F.3d 117, 128 (2d

(alteration

in

original)

(quoting

20

C.F.R.

§ 404.1527(c)(2)); see also Greek v. Colvin, 802 F.3d 370, 375 (2d
Cir. 2015).

“This preference is generally justified because

treating sources are likely to be ‘the medical professionals most
able to provide a detailed, longitudinal picture’ of a plaintiff’s
medical impairments and offer a unique perspective that the medical
tests and SSA consultants are unable to obtain or communicate.”
Correale-Engelhart v. Astrue, 687 F. Supp. 2d 396, 426 (S.D.N.Y.
2010) (quoting 20 C.F.R. § 416.927(c)(2)); see also Petrie v.
Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (summary order) (“The
opinion of a treating physician is accorded extra weight because
the continuity of treatment he provides and the doctor/patient
relationship he develops place him in a unique position to make a
26

complete and accurate diagnosis of his patient.” (quoting Mongeur
v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam))).
Generally, the treating physician’s opinion is not entitled to
controlling weight if it is not consistent with the opinions of
other medical experts.

Burgess, 537 F.3d at 128.

In considering a treating source’s opinion, “the ALJ cannot
arbitrarily substitute his own judgment for competent medical
opinion.”

Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)

(quoting McBrayer v. Secretary of Health and Human Services, 712
F.2d 795, 799 (2d Cir. 1983)); see also Wagner v. Secretary of
Health and Human Services, 906 F.2d 856, 862 (2d Cir. 1990) (noting
that “a circumstantial critique by non-physicians . . . must be
overwhelmingly
opinion”).

compelling

in

order

to

overcome

a

medical

However, determination of “dispositive” issues, such

as whether the plaintiff “meet[s] the statutory definition of
disability” and cannot work, are reserved for the Commissioner.
20 C.F.R. § 404.1527(d)(1); see Greek, 802 F.3d at 376.
If the ALJ determines that a treating physician’s opinion is
not controlling, he is nevertheless required to consider the
following factors in determining the weight to be given to that
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 and explanation provided
27

to support the treating physician’s opinion; (4) the consistency
of the opinion with the record as a whole; (5) whether the opinion
is

from

a

specialist;

and

(6)

other

factors

brought

to

the

Commissioner’s attention that tend to support or contradict the
opinion.

20 C.F.R. § 404.1527(c); see Greek, 802 F.3d at 375;

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).

Although

the ALJ need not explicitly discuss the factors, the decision must
clearly
analysis.

demonstrate

that

he

properly

applied

the

required

Khan v. Astrue, No. 11 CV 5118, 2013 WL 3938242, at *15

(E.D.N.Y. July 30, 2013).
“A corollary to the treating physician rule is the so-called
‘good reasons rule,’ which is based on the regulations specifying
that ‘the Commissioner “will always give good reasons”’ for the
weight given to a treating source opinion.”

Silva v. Colvin, No.

14 CV 6329, 2015 WL 5306005, at *5 (W.D.N.Y. Sept. 10, 2015)
(quoting Halloran, 362 F.3d at 32); see also Burgess, 537 F.3d at
129-30 (noting that ALJ must provide “good reasons” for discounting
treating physician’s opinion).

Failure to identify good reasons

for discounting a treating physician’s opinion “denotes a lack of
substantial evidence, even where the conclusion of the ALJ may be
justified based upon the record.”

Silva, 2015 WL 5306005, at *5

(emphasis omitted) (quoting Blakely v. Commissioner of Social
Security, 581 F.3d 399, 407 (6th Cir. 2009)).
28

2.

Analysis

In finding that the plaintiff had the residual functional
capacity to perform medium work, the ALJ assigned Dr. Russo’s two
medical source statements little weight.

(R. at 22-23).

Those

statements opined that Mr. Nelson would have serious limitations,
primarily that he could do no work with his right side, would
require frequent breaks, had trouble concentrating, and would
perform poorly in a work place environment.

(R. at 319-29).

The ALJ first assigned little weight to the statements because
they were “poorly supported by the treatment notes of record.”
(R. at 23).

In the medical source statements, Dr. Russo states

that Mr. Nelson’s CVA in conjunction with his prior brain trauma
would

severely

environment.

limit

his

ability

(R. at 319-29).

to

function

in

a

workplace

Dr. Russo states that the head

trauma, CVA, and hypertension caused hemiplegia, decreased focus,
dizziness, fatigue, pain, and inability to lift or carry. (R. at
319-29).

However, Dr. Russo does not appear to have performed any

objective, clinical test that would support a finding of severe
limitation.

Instead, the treatment notes reflect that Mr. Nelson

appeared in no acute distress and had a normal mood, affect,
attention

span,

reflexes,

strength.

(R. at 306, 317).

sensation,

coordination,

and

muscle

There is simply no apparent objective

basis for Dr. Russo’s medical source opinions.
29

Therefore, the ALJ

did not err when he found that there was little objective evidence
to support Dr. Russo’s conclusions.
The ALJ also assigned Dr. Russo’s opinion little weight
because it conflicted with Dr. Puri’s evaluation.

(R. at 23).

Dr. Puri’s found 5/5 muscle strength in all groups.

(R. at 278-

79). Dr. Puri performed objective medical tests to find that there
were no “objective limitations in communication, fine motor, or
gross motor activity.”

(R. at 277-79).

The ALJ was therefore

correct when finding that Dr. Puri’s evaluation conflicted with
Dr. Russo’s.
Dr. Singh’s medical notes also support this conclusion.

Dr.

Singh found good muscle strength, normal stride, normal reflexes,
and normal sensation.

(R. at 309).

While Dr. Singh did find that

Mr. Nelson had difficulty raising his right hand above his head
and that Mr. Nelson had subjective right side paresthesia (R. at
309), these findings do not adequately support Dr. Russo’s opinion.
Therefore, the ALJ had a substantial basis for holding that Dr.
Russo’s opinion was not entitled to controlling weight.
The

ALJ

also

considered

the

required

six

factors

determining the weight to assign to Dr. Russo’s opinions.

when

The ALJ

discussed Mr. Nelson’s three visits with Dr. Russo and considered
what occurred at those visits.

(R. at 23).

The ALJ addressed the

inconsistency of Dr. Russo’s opinion with Dr. Russo’s own treatment
30

notes; the ALJ further stated that Dr. Russo’s opinion was not
supported by Dr. Puri’s physical examination of Mr. Nelson.
at 23).

(R.

Finally, Dr. Russo practices family medicine, and thus

does not appear to be a specialist in the relevant field, i.e.,
neurology.

(R. at 329).

It is evident that the ALJ performed the

proper analysis pursuant to the regulations.
The ALJ noted that Dr. Russo failed to clarify his opinion
when asked.

(R. at 23); see Correale-Englehart, 687 F. Supp. 2d

at 428 (stating that ALJ is required to seek clarification when
medical

source

information).

contains

conflict,

ambiguity,

or

gaps

in

Therefore, there is substantial evidence supporting

the Commissioner’s decision to assign Dr. Russo’s opinion little
weight. 7
B.

Consultative Examiners

The ALJ concluded that Dr. Dubro’s opinion was entitled to
little weight and that Dr. Puri’s and Dr. Hoffman’s opinions were
each

entitled

to

great

weight.

“It

is

well-settled

that

a

consulting physician’s opinion can constitute substantial evidence

7

ALJ Gonzalez also assigned the source statements little
weight because Mr. Nelson provided answers to the source statement
questions, which Dr. Russo “appear[ed] to have uncritically
accepted.” (R. at 23). While it is clear that Dr. Russo asked
Mr. Nelson questions from the form (R. 70-72), it is not clear
that Dr. Russo merely “uncritically accepted” his answers. While
the ALJ erred in this analysis, it does not undermine the
substantial evidence supporting the ALJ’s conclusion overall.
31

supporting an ALJ’s conclusions.”

Suarez v. Colvin, 102 F. Supp.

3d

The

552,

577

(S.D.N.Y.

2015).

opinions

may

constitute

substantial evidence only when they are supported by medical
evidence in the record.

Id.; Frawley v. Colvin, 13 CV 1567, 2014

WL 6810661, at *9 (N.D.N.Y. Dec. 2, 2014).
consultative

examiner’s

opinion

is

more

Indeed, where the

consistent

with

the

medical evidence than the treating physician’s opinion, then the
consultative examiner’s opinion may be given more weight.

Suarez,

102 F. Supp. 3d at 577.
There is substantial evidence supporting the ALJ’s finding
that the opinions of both Dr. Puri and Dr. Hoffman were entitled
to

great

weight.

Both

were

consistent

with

Dr.

Puri’s

own

examination of the plaintiff and were supported by the objective,
clinical tests that Dr. Puri performed.

(R. at 277-79).

The

opinions are also consistent with Dr. Russo’s medical treatment
notes, finding that the plaintiff was alert, cooperative, in no
acute distress, and had normal muscle strength, reflexes, and
sensation.

(R. at 306, 317, 364).

The opinions were consistent

with Dr. Singh’s findings that the plaintiff walked with a normal
gait and stride, demonstrated full strength in all muscle groups,
and had normal muscle tone and sensation in all extremities.

32

(R.

at 309).

Therefore, the ALJ did not err when assigning Dr. Puri’s

and Dr. Hoffman’s opinions great weight. 8
The ALJ’s determination that Dr. Dubro’s opinion was entitled
to little weight was not erroneous.

Dr. Dubro found that the

plaintiff’s mental functioning would cause him great difficulty in
a work environment.

(R. at 275).

While Dr. Dubro’s opinion is

supported by his own objective medical tests (R. at 272-75), it
contradicts
treatment

Dr.

Russo’s

notes,

Dr.

medical

Puri’s

treatment

examination,

notes,
and

Dr.

Dr.

Singh’s

Hoffman’s

analysis of the evidence, none which suggest that the plaintiff
would

not

be

able

to

function

adequately

in

environment (R. at 279, 282, 306, 309, 317, 364).

a

basic

work

Because Dr.

Dubro’s opinion conflicts with much of the other objective medical
evidence in the record, the ALJ’s determination to discount that
opinion is supported by substantial evidence.
C.

Credibility Assessment

An ALJ’s ruling on a claimant’s residual functional capacity
must “take the claimant’s reports of pain and other limitations
into account, but [he] is not required to accept the claimant’s

8

The ALJ found that the plaintiff’s traumatic brain injury
was a non-severe impairment; the plaintiff argues that because Dr.
Puri found that the plaintiff had a traumatic brain injury, that
the ALJ should have instead found that injury to be severe.
However, there is no finding in Dr. Puri’s examination notes
supporting the plaintiff’s contention. (R. at 277-79).
33

subjective complaints without question; he may exercise discretion
in weighing the credibility of the claimant’s testimony in light
of the other evidence in the record.”

Genier v. Astrue, 606 F.3d

46, 49 (2d Cir. 2010) (internal citations omitted).

A two-step

process is employed when evaluating a claimant’s assertions of
pain and limitations.

Id.

First, “the ALJ must decide whether

the claimant suffers from a medically determinable impairment that
could reasonably be expected to produce the symptoms alleged. That
requirement stems from the fact that subjective assertions of pain
alone cannot ground a finding of disability.”
omitted).

Id. (citation

“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.”
Id. (alteration in original) (quoting 20 C.F.R. § 404.1529(a)).
The ALJ must consider:
[s]tatements [the claimant] or others make about [his]
impairment(s),
[his]
restrictions,
[his]
daily
activities, [his] efforts to work, or any other relevant
statements [he] make[s] 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.
Id.

(alterations

in

original)

404.1512(b)(3)).

34

(quoting

20

C.F.R.

§

“It is the function of the [Commissioner], not [the reviewing
court], to resolve evidentiary conflicts and to appraise the
credibility of witnesses, including the claimant.”

Valdez v.

Colvin, __ F. Supp. 3d __, __, 2017 WL 474057, at *7 (S.D.N.Y.
2017) (alterations in original) (quoting Carroll v. Secretary of
Health & Human Services, 705 F.2d 638, 642 (2d Cir. 1983)).

An

ALJ’s

entitled

to

supported

by

credibility

deference,

and

determination

where

the

ALJ’s

is

generally

findings

are

substantial evidence, the court must uphold that decision.
There

is

substantial

credibility determination.

evidence

supporting

the

Id.
ALJ’s

First, the ALJ gave appropriate weight

to the plaintiff’s collection of unemployment benefits (R. at 25),
because “an ALJ may consider evidence that the claimant received
unemployment benefits and/or certified that he was ready, willing,
and able to work during the time period for which he claims
disability benefits as adverse factors in the ALJ’s credibility
determination,”

Rosenthal

v.

Colvin,

No.

12

CV

892,

2014

WL

1219072, at *3 (W.D.N.Y. March 24, 2014) (quoting Felix v. Astrue,
No. 11 CV 2607, 2012 WL 3043203, at *10 (E.D.N.Y. July 24, 2012)).
Second, while the record contained opinions from Drs. Russo and
Dubro indicating disability, those opinions were appropriately
accorded slight weight.

(R. at 25).

Third, the ALJ properly found

that there was no objective medical examination finding that Mr.
35

Nelson could not use the right side of his body.

(R. at 24).

Fourth, the ALJ noted that the plaintiff was able to perform some
daily activities, including walking, biking, swimming, and outdoor
chores.
that

the

(R. at 25, 52-56).
plaintiff

Fifth, ALJ Gonzalez correctly found

provided

conflicting

statements

about

his

driving ability: he told Dr. Dubro that he could not drive (R. at
274), but reported elsewhere that he could drive, including at the
hearing (R. at 55, 216).
plaintiff’s

treating

Sixth, the ALJ properly noted that the

regimen

was

relatively

“conservative

in

nature” given the plaintiff’s complaints. (R. at 25); see Penfield
v. Colvin, 563 F. App’x 839, 840 (2d Cir. 2014).

Finally, the ALJ

gave appropriate weight to the plaintiff’s “apparent lack of
debilitating symptoms during the hearing.”

(R. at 26); see Henny

v. Commissioner of Social Security, No. 15 Civ. 629, 2017 WL
1040486, at *16 (S.D.N.Y. March 15, 2017) (deference accorded to
ALJ’s observations at hearing).
The plaintiff argues that the ALJ failed to consider his good
work history.

However, the ALJ did not ignore the plaintiff’s

work history (R. at 25), and, in any event, failure to specifically
reference good work history “does not undermine the credibility
assessment, given the substantial evidence supporting the ALJ’s
determination.”

Wavercak v. Astrue, 420 F. App’x 91, 94 (2d Cir.

36

2011).

Therefore, there is substantial evidence supporting the

ALJ’s credibility finding. 9
D.

Third-Party Function Report

The plaintiff also objects to the ALJ’s assignment of only
“some weight” to Ms. Nelson’s third-party function report.

The

ALJ discounted this report both because Ms. Nelson is a family
member and because it is not supported by the objective medical
record.
E.

(R. at 24).

This analysis was not erroneous.

Residual Functional Capacity Determination

The plaintiff argues that the residual functional capacity
determination was flawed because there was no objective basis for
finding that the plaintiff could perform medium work and because
ALJ Gonzalez did not consider all of the plaintiff’s impairments
together.

The ALJ’s residual functional capacity findings “must

9

The ALJ also found the plaintiff not credible because “he
drove approximately five hours” to Quebec five to ten times per
year. (R. at 25). However, the plaintiff did not state that he
drove himself to Quebec, only that he travelled there. (R. at 3536).
The ALJ also found that there was no evidence supporting the
plaintiff’s reporting of a stroke. (R. at 24). However, Dr. Russo
indicates that Mr. Nelson had a “CVA/stroke” in his medical
treatment notes (R. at 314); Dr. Dubro also opined that Mr. Nelson
had “what appear[ed] to be a transient ischemic attack six months
ago” (R. at 272).
While the ALJ erred on both these issues, these errors do not
undermine the substantial evidence supporting the credibility
finding.
37

include

a

narrative

discussion

describing

how

the

evidence

supports each conclusion, citing specific medical facts . . . and
nonmedical evidence.”
1996);

see

also

SSR 96-8p, 1996 WL 374184, at *7 (July 2,

Cichocki,

729

F.3d

at

177

(“Remand

may

be

appropriate [] where . . . inadequacies in the ALJ’s residual
functional

capacity

analysis

frustrate

meaningful

review.”);

Glessing v. Commissioner of Social Security, No. 13 CV 1254, 2014
WL 1599944, at *8-9 (E.D.N.Y. April 21, 2014) (“The problem . . .
is that, although the ALJ certainly made findings as to [the]
claimant’s limitations, the ALJ provided no analysis explaining
upon

what

evidence

those

findings

were

based.”);

Jones

v.

Commissioner of Social Security, No. 12 Civ. 4815, 2013 WL 3486994,
at

*12

(S.D.N.Y.

July

11,

2013).

ALJ

Gonzalez’s

residual

functional capacity analysis was well reasoned; he relied on Dr.
Puri’s

examination,

Dr.

Singh’s

treatment

notes,

Dr.

Russo’s

medical treatment notes, and Dr. Hoffman’s analysis to conclude
that Mr. Nelson could perform medium work.

(R. at 22-26).

The

ALJ considered Mr. Nelson’s symptoms separately and in conjunction
with one another.

(R. at 22).

Therefore, the residual functional

capacity assessment was proper.
F.

Reliance on the Grids

The plaintiff argues that the ALJ erred when relying on the
Grids because of his alleged non-exertional impairments.
38

If a

claimant suffers only from exertional impairments, then the ALJ
can demonstrate that there is other work that the claimant can
perform by resorting exclusively to the Grids.

See Rosa, 168 F.3d

at 78; Pratts v. Chater, 94 F.3d 34, 38-39 (2d Cir. 1996). However,
where

a

claimant

impairments,

the

has

Grids

decision-making.

both
may

be

exertional
used

and

only

as

20 C.F.R. §§ 404.1569a(d).

non-exertional
a

framework

for

Nevertheless, if any

non-exertional impairments do not significantly limit the range of
work of which the claimant is otherwise capable, then reliance on
the Grids is appropriate.
410-11 (2d Cir. 2010).
“the

additional

occupational

Here, ALJ Gonzalez correctly found that

limitations

base

of

See Zabala v. Astrue, 595 F.3d 402,

have

unskilled

little

medium

or

no

effect

work.” 10

(R.

on
at

the
27).

Accordingly, his reliance on the Grids was not erroneous.
Conclusion
For the reasons discussed above, the plaintiff’s motion for
judgment on the pleadings (Docket no. 12) is denied and the
defendant’s cross-motion (Docket no. 15) is granted.

10

The Clerk of

Although Dr. Dubro diagnosed major depression and the
plaintiff reported trouble getting out of bed in the morning and
maintaining his hygiene (R. at 274-75), the ALJ had substantial
evidence for discounting Dr. Dubro’s opinion and the plaintiff’s
credibility.
Moreover, Dr. Hoffman’s report indicates that the
plaintiff’s non-exertional impairments “do not preclude work
related function.” (R. at 282).
39