Cortese v. Commissioner of Social Security

Filing 20

OPINION AND ORDER. Having carefully reviewed the record, including the transcript of the hearing and the ALJ's decision, the Court finds that the ALJ's analysis clearly adhered to the proper legal standards for making a disability determina tion. The Court further finds that the ALJ's determination that Plaintiff was not disabled within the meaning of the Social Security Act and implementing regulations was clearly supp011ed by substantial evidence. Accordingly, the Court finds suf ficient support for the Commissioner's decision and no basis for setting it aside. For these reasons, IT IS HEREBY ORDERED THAT the Commissioner's motion for judgment on the pleadings is GRANTED. IT IS FURTHER ORDERED THAT Plaintiff's motion for judgment on the pleadings is DENIED. The Clerk is respectfully directed to terminate the motion pending at docket numbers 13 and 17 and close this case. SO ORDERED. re: 17 CROSS MOTION for Judgment on the Pleadings Notice of Cross Motion filed by Joseph Cortese, 13 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. (Signed by Judge Richard J. Sullivan on 9/27/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JOSEPH CORTESE,
Plaintiff,
No. 16-cv-4217 (RJS)
OPINION AND ORDER

-vCOMMISSIONER OF SOCIAL SECURITY,
Defendant.

RICHARD J. SULLIVAN, District Judge:
Plaintiff Joseph Cortese brings this action pursuant to § 205(g) of the Social Security Act
(the “Act”), 42 U.S.C. § 405(g), appealing the final decision of the Commissioner of the Social
Security Administration denying Plaintiff’s application for Disability Insurance Benefits. Now
before the Court are the parties’ cross-motions for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c). (Doc. Nos. 13, 17.) For the reasons set forth below, Defendant’s motion
is granted and Plaintiff’s motion is denied.
I. BACKGROUND
Plaintiff was born on January 18, 1964 and was fifty years old at the time his claims were
denied. 1 (R. 20.) He is a college graduate, and, from 1990 to 2010, worked as a sales manager at
a manufacturing firm. (Id. at 276–77.) Plaintiff suffers from bipolar disorder, anxiety, depression,
gout, neuropathy, and arthritis. (Id. at 12.) He also has a history of substance abuse. (Id. at 12,

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The facts are drawn from the administrative record (Doc. No. 12) filed by the Commissioner of Social Security and
will be cited as “R. __.” The Court has also considered the Commissioner’s memorandum of law in support of her
motion for judgment on the pleadings (Doc. No. 14), Plaintiff’s memorandum of law in support of his motion for
judgment on the pleadings (Doc. No. 18), and the Commissioner’s reply memorandum of law (Doc. No. 19).

62.) Plaintiff lives with a roommate and has been dating his girlfriend for five years. (Id. at 60–
61.)
In October 2010, Plaintiff quit his job due to issues with concentration, forgetfulness,
anxiety, and depression. (Id. at 72–73.) On April 22, 2012, he filed an application for Disability
Insurance Benefits, arguing that he had been disabled since October 15, 2010. (Id. at 93.) That
application was ultimately denied on September 6, 2012. (Id. at 101.)
On October 26, 2012, Plaintiff was admitted to a detox clinic at Good Samaritan Hospital
in Suffern, New York on “legal recommendations” after two driving-while-intoxicated arrests.
(Id. at 334.) At the time, Plaintiff reported that he had been drinking one-to-two liters of vodka a
day, had been using Vicodin and OxyContin, and had previously attended at least seven detox
programs. (Id.) Plaintiff checked out of the program three days later – against medical advice –
and claims that, with the exception of two days of relapse, he has been sober since. (Id. at 62,
334–35.)
On December 14, 2012, Plaintiff filed a second application for Disability Insurance
Benefits, claiming that he had been unable to work due to his disability since September 7, 2012,
the day after his first application was denied. (Id. at 210.) On April 3, 2013, the Commissioner
initially denied the claims (id. at 120–28), and on April 16, 2013, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”) (id. at 129). Plaintiff, who was represented by
counsel, appeared for an administrative hearing on April 8, 2014 but “was not allowed in the
hearing room by the guard as he appeared intoxicated and/or under the influence, and as a result,
his representative indicated that she did not believe that the claimant would be able to provide any
meaningful testimony.” (Id. at 10; see also id. at 44–46.) On July 19, 2014, Plaintiff appeared
again for an administrative hearing before ALJ Michael J. Stacchini at which Plaintiff and a

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vocational expert, Donald Slive, testified. (Id. at 48–89.) At this hearing, Plaintiff testified that
he was unable to participate in the initial hearing because he was suffering flu-like symptoms as
well as side effects from medication; he expressly denied that he was under the influence of alcohol
or drugs. (Id. at 63–65.) Plaintiff also told the ALJ that either the night before or immediately
after the hearing on April 8, 2014, he went to an urgent care clinic seeking medical assistance.
(Id.) The ALJ subsequently subpoenaed the facility and learned that while Plaintiff did in fact visit
the facility, he did so more than a week after the first hearing and he sought treatment for back
pain and conjunctivitis, not the flu or medicinal side effects he claimed made him appear
intoxicated. (Id. at 20, 484–503.)
In a thirteen-page decision dated November 14, 2014, the ALJ denied Plaintiff’s claims,
finding that he was not disabled within the meaning of the Act. (Id. at 10–22.) The ALJ
determined that Plaintiff had the residual functional capacity to perform jobs that exist in
significant numbers in the national economy, notwithstanding the fact that he suffered from several
severe impairments and could not perform in his previous role as a manufacturing company sales
manager. (Id. at 12–13, 20–21.) Although Plaintiff requested that the Social Security Appeals
Council review the ALJ’s decision, the Appeals Council concluded that there was no basis for
granting the request, and the ALJ’s decision became the final decision of the Commissioner on
April 27, 2016. (Id. at 1–6.)
On June 3, 2016, Plaintiff – still represented by counsel – commenced this action, seeking
review of the Commissioner’s decision with respect to his physical and mental-health impairments.
(Doc. No. 2.) On November 18, 2016, the Commissioner timely moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Doc. No. 10.) Plaintiff filed a crossmotion for judgment on the pleadings on March 2, 2017. (Doc. No. 17.) The Commissioner

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submitted a memorandum in reply to Plaintiff’s motion and in further support of her own on March
23, 2017. (Doc. No. 19.)
II. LEGAL STANDARDS
Under the Social Security Act, a claimant is deemed “disabled” – and thus entitled to
disability benefits – if she demonstrates an “inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(a)(1); 20
C.F.R. §§ 404.1505(a), 416.905(a). In evaluating disability claims, an ALJ must apply a five-step
sequential analysis, 20 C.F.R. § 404.1520(a)(4), which the Second Circuit has summarized as
follows:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers whether
the claimant has a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider him disabled
without considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the fourth inquiry is whether, despite
the claimant’s severe impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the claimant
could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179–80 (2d Cir. 1998) (quoting Berry v. Schweiker, 675
F.2d 464, 467 (2d Cir. 1982)). The claimant bears the burden at the first four steps, and the
Commissioner bears the burden at the final step. See Brault v. Soc. Sec. Admin., Comm’r, 683
F.3d 443, 445 (2d Cir. 2012). The ALJ must weigh all medical evidence and other “relevant
evidence” he receives, 20 C.F.R. §§ 404.1520b, 416.927(b), but need not resolve all
inconsistences, as long as he makes findings supported by substantial evidence. See Laine v. Soc.
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Sec. Admin., Comm’r, No. 07-cv-1251 (RO), 2013 WL 2896968, at *4 (S.D.N.Y. June 13, 2013)
(“The ALJ is not required by the regulations to reconcile conflicting medical testimony, but is
required to fully assess the record and provide findings that are supported by substantial evidence
in the record.”).
A claimant denied disability benefits may appeal a final decision of the Commissioner of
Social Security to the district court under 42 U.S.C. § 405(g). A “final decision” occurs when the
Appeals Council issues a decision after reviewing a claim, or when the ALJ issues an opinion if
the Appeals Council has denied the request for review. Sims v. Apfel, 530 U.S. 103, 106–07
(2000); 20 C.F.R. §§ 404.900(a) (4)–(5), 404.955, 404.981, 422.210(a). Even so, a district court
may not disturb an ALJ’s decision if it is based on correct legal principles and supported by
substantial evidence. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence is “more than a mere scintilla” of evidence;
“[i]t means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted).
The substantial evidence standard “applies not only to basic evidentiary fact-finding but extends
to inferences and conclusions drawn from such facts.” Gracia v. Apfel, No. 97-cv-4035 (SAS),
1998 WL 599714, at *4 (S.D.N.Y. Sept. 10, 1998). Thus, the Commissioner’s “findings of fact,
as well as the inferences and conclusions drawn from those findings, are conclusive even in cases
where a reviewing court’s independent analysis of the evidence may differ from the
Commissioner’s analysis.” Id. (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982)).
Furthermore, the existence of contrary evidence does not suffice to overturn a denial of benefits if
substantial evidence otherwise supports the ALJ’s findings. See Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010). The Court may reject a finding only if “a reasonable factfinder would have to

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conclude otherwise.” Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th
Cir. 1994)).
In deciding whether the Commissioner’s conclusions are supported by substantial
evidence, a court must also determine whether the ALJ adhered to the standard for providing the
claimant with a full hearing under the Act and its implementing regulations. Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009). This requires the court to determine whether the ALJ met his duty
to adequately develop the administrative record. Id. The duty to develop the record “works in
tandem” with the “treating physician rule,” which directs the ALJ “to grant controlling weight to
the opinion of the claimant’s treating physician if the opinion is well supported by medical findings
and is not inconsistent with other substantial evidence.” Rosado v. Barnhart, 290 F. Supp. 2d 431,
438 (S.D.N.Y. 2003) (citing 20 C.F.R. § 404.1527(d)(2)); see Miller v. Barnhart, No. 03-cv-2072
(MBM), 2004 WL 2434972, at *7 (S.D.N.Y. Nov. 1, 2004) (“The Second Circuit’s treating
physician rule makes the ALJ’s duty to develop the record all the more important.”). 2
III. DISCUSSION
In determining that Plaintiff is not disabled, the ALJ (1) followed the proper legal
framework; (2) properly developed the record, providing Plaintiff with a full hearing; and (3) made
conclusions supported by substantial evidence. In attempting to overturn the ALJ’s ruling,
Plaintiff submits three pages of cursory arguments without citation to, or argument concerning,
Plaintiff’s medical history or the ALJ’s decision. (See Doc. No. 18 at 5–7.) All are without merit.
Accordingly, the Court affirms the determination of the ALJ.

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The Commissioner of Social Security has since revised its rules to eliminate the treating physician rule; as a result,
ALJs are now to weigh all medical evaluations, regardless of their sources, on the basis of how well supported they
are and their consistency with the remainder of the record. See 20 C.F.R. §§ 404.1520b; 416.920c. However, claims
filed before March 27, 2017 are still subject to the treating physician rule, see id. § 404.1527(c)(2), and the Court
accordingly applies the rule to this case, which was filed on June 3, 2016.

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A. Legal Analysis
The ALJ properly applied the five-step disability analysis set forth above. First, the ALJ
concluded that Plaintiff had not engaged in substantial gainful activity since the proffered date of
disability, September 7, 2012. (R. 12.) As to the second and third factors, the ALJ determined
that Plaintiff suffered from several severe impairments (id. at 12–13), but that none of these
impairments rose to the level of those listed in Appendix 1 (id. at 13–14). The ALJ then assessed
Plaintiff’s residual functioning capacity and reached the fourth factor of the test, concluding that
Plaintiff could not perform his past work as a sales manager. (Id. at 20.) Finally, at the fifth step,
the ALJ determined that given Plaintiff’s “age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the claimant
can perform.” (Id. at 20–21.) Accordingly, the ALJ applied the proper legal analysis to Plaintiff’s
claim of disability and determined that he was not disabled within the meaning of the Act. See
DeChirico, 134 F.3d at 1179–80.
B. Development of the Record
The ALJ fulfilled his duties to provide Plaintiff with a fair hearing and to “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, 509 (2d Cir. 2009). Where, as here, the alleged
disability began less than twelve months before the claimant filed his application, the ALJ is
statutorily obligated to obtain the claimant’s medical history from the date the disability began. 42
U.S.C. § 423(d)(5)(B); 20 C.F.R. § 416.912(b)(1)(ii). The ALJ clearly met this requirement and
there is no evidence to suggest that he failed to develop the record. In making his determinations
as to the severity of Plaintiff’s medical condition, the ALJ relied on a number of opinions from
three treating sources and three consultative sources – reviewing approximately 200 pages of

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treatment notes spanning from October 2012 through July 2014.

These records addressed

consultations and treatment for each physical and mental ailment claimed by Plaintiff. (See, e.g.,
id. at 334–42 (substance abuse), 362–66 (substance abuse, bipolar disorder, depression, and
anxiety), 344–55 (gout), 379–82 (gout and arthritis), 383–97 (gout, arthritis, and neuropathy).)
The ALJ also held a hearing – the transcript of which numbers forty-two pages – at which Plaintiff
and a vocational expert testified. (Id. at 48–89, 334–537.) Plaintiff’s argument that the ALJ failed
to properly develop the record by neglecting to obtain follow-up opinions from Plaintiff’s treating
sources is unavailing since where “there are no obvious gaps in the administrative record” and the
ALJ “possesse[d] a ‘complete medical history,’ the ALJ [is] under no obligation to seek additional
information.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (quoting Perez v. Chater, 77
F.3d 41, 48 (2d Cir. 1996)). Accordingly, the Court concludes that the ALJ clearly met his
responsibility to develop the record.
C. Sufficiency of the Evidence
Finally, the ALJ’s ultimate factual determinations – on Plaintiff’s residual functional
capacity and the availability of alternative jobs – are supported by substantial evidence. Indeed,
the ALJ’s opinion makes detailed references to the record and provides extensive explanations for
the weight assigned to various pieces of evidence relied on in the decision. The ALJ determined
that despite his medical issues, Plaintiff “has the residual functional capacity to perform light
work” as defined in 20 C.F.R. § 404.1567(b), with certain exceptions. (R. 14.) The ALJ supported
this determination with five-and-a-half single-spaced pages assessing each medical opinion, citing
relevant conclusions in those opinions, and explaining the weight assigned to each.
The ALJ’s conclusion that Plaintiff’s mental impairments – bipolar disorder, depression,
anxiety, and substance abuse – did not render him disabled is supported by substantial evidence,

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including the opinions of Plaintiff’s treating psychiatrist Dr. Andrew Hornstein, consultative
examiner Dr. Melissa Antiaris, and non-examining consultant Dr. M. Marks. (Id. at 16–17.) The
records of each of these doctors, at least partially, supported a conclusion that Plaintiff suffered
only moderate limitations from his mental impairments and was generally capable of performing
basic tasks. Notably, Dr. Antiaris opined that Plaintiff could relate well with others and perform
a number of activities that would allow him to function in a workplace, ultimately finding that his
prognosis was “fair.” (Id. at 17, 363–66.) Even Dr. Hornstein, who had the least optimistic
evaluation of Plaintiff, gave Plaintiff a global functioning assessment of 60 (id. at 510), indicating
only “moderate limitations” (id. at 16). Furthermore Dr. Hornstein further noted that Plaintiff
indicated a normal, non-depressed mood, that his bipolar disorder was in remission, and that his
symptoms had improved through conservative treatment relying on medication and therapy. (Id.
16–17, 436–40, 520.) The ALJ also amply explained why he gave the conclusions of some medical
practitioners greater weight than others.

For example, Dr. Antiaris’s opinion was “given

significant weight” because it was based upon an in-person examination, supported by specific
findings, consistent with her examination conclusions, and consistent with the conclusions of other
components of Plaintiffs’ medical records. (Id. at 16.)
The ALJ’s conclusion concerning the severe, but not disabling, scope of Plaintiff’s physical
impairments – gout, neuropathy, and arthritis – is similarly supported by substantial evidence.
With respect to these ailments, the ALJ relied on Plaintiff’s treating physicians Dr. Peter
Strassberg, Dr. Alfred Becker, and Dr. David Arbit, as well as consultative examiner Dr. William
Lathan. (Id. at 17–19.) The ALJ’s determination was specifically supported by Dr. Strassberg’s
conclusion that Plaintiff “could lift and carry up to 20 pounds on occasion” and “had no limitation
in sitting, pulling, pushing, or in any nonexertional ability” (id. at 17), and Dr. Lathan’s evaluation

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showing Plaintiff could move normally, had full grip strength and hand dexterity, and could
perform all “activities of personal care and daily living” (id. at 18, 356–58). The ALJ similarly
set forth his rationale for assessing the weight of the various examinations and opinions he
considered. For example, the ALJ assigned great weight to Dr. Lathan’s opinion because Dr.
Lathan made numerous specific findings as to Plaintiff’s range of movement and demeanor during
his examination. (Id. at 18.) By contrast, he accorded little weight to the opinions of Dr. Becker
because he found them to be conclusory. (Id. at 18–19.)
The ALJ’s credibility findings as to Plaintiff’s treating physicians – Dr. Hornstein, Dr.
Strassberg, and Dr. Becker 3 – warrant particular attention. As noted above, while “the treating
physician rule generally requires deference to the medical opinion of a claimant’s treating
physician, the opinion of the treating physician is not afforded controlling weight where . . . [that
opinion is] not consistent with other substantial evidence in the record.” Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004) (citation omitted). Here, where the ALJ discounted the opinion of
one of Plaintiff’s treating physicians, he appropriately explained how that opinion was inconsistent
with the evidence in the record. For example, the ALJ awarded Dr. Hornstein’s opinion little
weight because it conflicted with findings in Dr. Hornstein’s own medical records, as well as those
of other medical professionals, which reflected that Plaintiff retained significant ability to function
normally. (R. 17.) Similarly, the ALJ rejected portions of the opinions of Dr. Strassberg and Dr.
Becker indicating that Plaintiff was fundamentally incapable of working because those views were
inconsistent with the doctors’ own observations of Plaintiff and other record evidence, including,
for instance, Plaintiff’s conservative course of care and general daily activities. (Id. at 18, 19.)

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Dr. Arbit was also one of Plaintiff’s treating physicians, but the ALJ accorded his opinion great weight and did not
make an adverse credibility determination. (R. 19.)

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Finally, the ALJ sufficiently explained his credibility determination with respect to
Plaintiff. While the ALJ did credit that Plaintiff suffered some limitation in functioning, the ALJ
nevertheless found that Plaintiff’s credibility was diminished to the extent that it conflicted with
other medical evidence. For example, Plaintiff’s documented ability to “engage in activities of
daily living” and interact socially with others, coupled with Plaintiff’s failure to properly take
prescribed medicine and follow a course of treatment, contradicted – or at least undermined –
Plaintiff’s statements as to the intractable and overwhelming nature of his medical impairments.
(Id. at 19.) Plaintiff’s credibility was further called into question by his conduct at the first
scheduled hearing, and his subsequent false testimony that he had gone to urgent care almost
immediately before or after the aborted hearing to treat flu-like symptoms exacerbated by a bad
reaction to medication. (Id. at 20.) Obviously, such false testimony, under oath, is relevant to any
credibility determination. See, e.g., Dexuan Ye v. Lynch, 639 F. App’x 715, 718 (2d Cir. 2016).
Finally, the ALJ’s determination that Plaintiff was capable of performing jobs that existed
in significant numbers in the national economy is supported by substantial evidence. In addition
to the Department of Labor’s Dictionary of Occupational Titles, the ALJ relied on the testimony
of Donald Slive, a vocational expert, on this point. (Id. at 21.) The ALJ questioned Slive on
whether a hypothetical individual with Plaintiff’s conditions and limitations would be able to
secure employment and perform satisfactorily in that employment. In response, Slive answered in
the affirmative and provided three examples of jobs that were compatible with Plaintiff’s
functionality, each with thousands of national postings. (See id. at 21, 83–85.) Plaintiff’s counsel
also had the opportunity to cross-examine the expert. (Id. at 86–88.) Accordingly, the ALJ’s
conclusion regarding Plaintiff’s ability to work productively in broadly available occupations is
supported by substantial evidence.

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