Frazier v. Commissioner of Social Security
OPINION AND ORDER: re: granting 12 MOTION for Judgment on the Pleadings, filed by Commissioner of Social Security, denying 20 MOTION for Judgment on the Pleadings, filed by Julee Frazier. For the reasons set forth above , the Commissioner's determination that Frazier was not disabled within the meaning of the Social Security Act during the period from July 1, 2012 to January 14, 2015 is supported by substantial evidence. Accordingly, the Commissioner's motion for judgment on the pleadings (Dkt. No. 12) is GRANTED and Frazier's motion (Dkt. No. 20) is DENIED. The Clerk of Court shall close the case. (Signed by Magistrate Judge Andrew J. Peck on 4/21/2017) (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
-againstCOMMISSIONER OF SOCIAL SECURITY,
16 Civ. 4320 (AJP)
OPINION AND ORDER
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Julee Frazier, proceeding through counsel, 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 her application for Disability Insurance Benefits ("DIB")
and Supplemental Security Income ("SSI"). (Dkt. No. 2: 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.
12: Comm'r Notice of Mot.; Dkt. No. 20: Frazier 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.
For the reasons set forth below, the Commissioner's motion for judgment on the
pleadings (Dkt. No. 12) is GRANTED and Frazier's motion (Dkt. No. 20) is DENIED.
Frazier filed for DIB and SSI on April 3, 2013, alleging a disability onset date of July
1, 2012. (Dkt. No. 10: Administrative Record ("R.") 125-38.) The Social Security Administration
("SSA") denied Frazier's application on May 24, 2013. (R. 70-76.) Frazier requested a hearing
before an Administrative Law Judge ("ALJ") on July 26, 2013. (R. 78-82.) On October 23, 2014,
represented by counsel, Frazier had a hearing before ALJ Michael Friedman. (R. 32-51, 90-94.)
On January 14, 2015, ALJ Friedman issued a written decision finding Frazier not disabled within
the meaning of the Social Security Act. (R. 7-20.) ALJ Friedman's decision became the
Commissioner's final decision when the Appeals Council denied review on April 6, 2016. (R. 1-4.)
Non-Medical Evidence and Testimony
Born on October 24, 1954, Frazier was fifty-seven years old at the alleged July 1,
2012 onset of her disability. (R. 54, 126.) She completed high school, two years of college and
specialized job training in phlebotomy. (R. 152.) Frazier most recently worked as a grounds keeper
for the Parks Department (R. 35-36, 45, 152) on a seasonal basis (R. 35) until April 19, 2011 (R. 60,
68, 151-52, 169). She testified that she attempted to work again starting in February 2014, but she
was terminated in May 2014 because of her dizziness. (R. 35, 44.)
On April 9, 2013, Frazier completed a questionnaire on dizziness in connection with
her application for benefits. (R. 191-92.) Frazier reported episodes of dizziness, which manifested
as light-headedness and staggering, occurring two to three times per day and lasting less than five
minutes. (R. 191.) She took meclizine1/ to relieve her symptoms. (Id.) She was never treated in
an emergency room due to her dizziness. (Id.)
On April 17, 2013, Frazier completed a Function Report. (R. 158-66.) When asked
how her illnesses affect her activities of daily living, she reported that if she moves too fast, "vertigo
Meclizine is "an antihistamine used in the management of . . . vertigo associated with disease
affecting the vestibular system." Dorland's Illustrated Medical Dictionary at 1117 (32d ed.
makes [her] go slower because of spinning." (R. 158.) Vertigo also diminished her ability to look
backward, lean forward, squat, stand, sleep, dress herself and cook. (R. 159-60, 162.) She reported
back problems that caused an aching and burning pain (R. 164) and prevented her from lifting
anything heavy, standing or sitting for "to[o] long" and walking "to[o] far" (R. 162). She stated that
she used to wear a back brace, and took or takes methocarbamol, naproxen and ibuprofen for pain.
(R. 165.) Her pain would subside twenty to thirty minutes after taking medication. (Id.) Stress
caused her blood pressure to rise resulting in "pounding" headaches. (R. 164.) She experienced
shortness of breath when dressing (R. 159) and climbing stairs (R. 162). She had to rest after
cooking (R. 160) or walking four to five blocks (R. 163).
Frazier also reported caring and cooking for her autistic grandson (R. 158); preparing
food on a daily basis and cooking "full course meals" (R. 160); doing the laundry, cleaning and
"some household repairs" (id.); going outside alone three to four times a week (id.); walking and
driving her car (R. 160-61); shopping for food, clothes, shoes, furniture and housewares for up to
two hours at a time (R. 161); reading and doing Sudoku puzzles on a daily basis (id.); and attending
tenants' committee meetings monthly and church and social group meetings weekly (R. 161-62).
She could pay her bills, count change and handle a savings account. (R. 161.) She had no problems
with reaching, using her hands, hearing and talking. (R. 162.) She had no problems paying attention
and following written or spoken instructions, and she could finish what she started. (R. 163.) She
got along with people in authority and had never lost a job "because of problems getting along with
At her October 23, 2014 hearing, Frazier testified that she suffered from Meniere's
disease2/ resulting in vertigo. (R. 36.) Her vertigo would cause dizziness on a daily basis that would
last "[s]ometimes ten minutes or less." (R. 43.) She stated that she was terminated from her job
with the Parks Department in May 2014 because she went home after getting dizzy and falling "out
on the platform" while taking the train to work. (R. 44.) Frazier stated that she had a heart murmur
and asthma (R. 36); she was treating her asthma with an inhaler (R. 37). Frazier also reported pain
in her back, chest and legs. (R. 37-38.) She claimed that her back pain was caused by "two
herniated slipped discs" at "L4 and L5," and that she was treating her back pain with physical
therapy and medication. (R. 38.)
Frazier testified that she started weekly treatment with psychiatrist Dr. Anna Fagan
one or two months before her hearing, and that she had been diagnosed with depression and
prescribed Prozac. (R. 38-39.) Her depression started after she lost her job (R. 38) and manifested
in frequent crying (R. 39). She reported difficulty concentrating, remembering things, and a lack
of interest in being around people. (R. 40-41.) She enjoyed reading, but stated that she could not
focus on or understand what she was reading. (R. 42.) She could follow along while watching
television, but would often "blank out." (R. 42-43.)
Frazier stated that she could stand for about five minutes, sit for ten or fifteen
minutes, and walk two or three city blocks before needing to rest. (R. 41.) She could carry a fivepound grocery bag. (Id.) Frazier testified that she cooked, cleaned and shopped with help from her
daughter. (R. 41-42.) Because of her back pain, she needed to take breaks while cooking and
cleaning. (R. 43.)
Meniere's disease is "hearing loss, tinnitus, and vertigo resulting from nonsupperative
disease of the labyrinth with edema." Dorland's Illustrated Medical Dictionary at 539.
Medical Evidence Before the ALJ
Mount Sinai Outpatient Clinic
On December 14, 2012, Frazier visited Mount Sinai Clinic complaining of
lightheadedness exacerbated by standing quickly, as well as intermittent tinnitus. (R. 204.) She also
complained of intermittent vertigo when turning to her right. (Id.) She denied hearing loss, pain,
or drainage from her ears. (Id.) Taking meclizine relieved her vertigo symptoms. (Id.) Frazier was
examined by physician assistant ("PA") Mei-Kuen Xie (id.), who reported that Frazier was in no
acute distress and that her ears and nerve functioning appeared normal apart from right rotary
nystagmus3/ when performing the Dix Hallpike maneuver4/ (R. 205). PA Xie recommended further
auditory and electronystagmography testing and prescribed meclizine. (Id.) Dr. Carl Wiesenthal
reviewed and agreed with PA Xie's assessments. (Id.)
On February 6, 2013, Frazier met with audiologist Elena Kagan and underwent
tympanometry and comprehensive hearing testing. (R. 203.) The testing revealed normal hearing
in both ears. (Id.)
Institute for Family Health
On June 11, 2013, Dr. Lindsey Faucette of the Institute for Family Health referred
Frazier to Physical Therapy of Harlem for treatment of lower back pain. (R. 227.) Dr. Faucette
reported that Frazier had a history of degenerative disc disease but no recent imaging. (Id.) Frazier
Rotary nystagmus is "an involuntary, rapid, rhythmic movement of the eyeball . . . in which
the movement is about the visual axis." Dorland's Illustrated Medical Dictionary at 1307-08.
The Dix-Hallpike maneuver is "a test for benign positional vertigo" in which "the examiner
turns the head of the seated patient to one side and pulls the patient backwards into a supine
position with the head hanging over the edge of the examining table; the patient then looks
straight ahead and the examiner observes for positional nystagmus, which is indicative of
benign positional vertigo." Dorland's Illustrated Medical Dictionary at 1102.
complained of intermittent burning pain. (Id.) Her examination results, however, were normal.
(Id.) Treatment notes spanning four physical therapy sessions in June and July 2013 indicate
decreased pain over time (R. 218, 220), "good" rehabilitation potential (R. 213, 217-18, 220, 222,
226), and pain rated at one on a ten-point scale during the final session (R. 213, 222). Frazier's
physical therapist reported her activities of daily living to include housekeeping, laundry, hand and
arm use, pulling and pushing objects, and the ability to push a shopping cart for two to three city
blocks. (R. 213, 215, 218, 220, 222, 224.) Although Frazier was authorized for six physical therapy
sessions (R. 227), she attended only four (see R. 212).
On September 11, 2014, social worker Anna Fagan completed a Mental Health
Questionnaire co-signed by Dr. Olanrewaju Adedokun. (R. 233-35.) Frazier's diagnoses are listed
on the questionnaire as "major depressive disorder, recurrent episode, moderate; generalized anxiety
disorder." (R. 233.) Fagan indicated that Frazier's depressive symptoms included "loss of interest
in almost all activities," "[a]ppetite disturbance with weight change," "[s]leep disturbance,"
"[d]ecreased energy," "[f]eelings of guilt or worthlessness," and "[d]ifficulty concentrating or
thinking." (Id.) Frazier's only anxiety symptom was "[a]pprehensive expectation." (Id.) Other
symptoms included emotional lability, hostility and irritability, and social withdrawal or isolation.
(R. 234.) Fagan placed "X" marks in spaces indicating that these symptoms resulted in no
restrictions to Frazier's activities of daily living; moderate difficulties in social functioning; marked
difficulties in "[c]oncentration, persistence or pace resulting in failure to complete tasks in a timely
manner"; and marked "[e]pisodes of deterioration or decompensation in work or work-like settings."
(R. 235.) Fagan stated that these symptoms began in "March 2014 when [Frazier] was terminated
from employment," and could be expected to last twelve months or longer. (R. 234.) When
prompted to "[d]escribe the clinical findings . . . which demonstrate the severity of [Frazier's] mental
impairment and symptoms," Fagan listed only Frazier's "reports [of] depression and irritability."
On September 19, 2014, Dr. Adedokun filled out a Medical Opinion Re: Ability To
Do Work-Related Activities (Physical) form. (R. 231-32.) Dr. Adedokun indicated Frazier had no
limitations on her ability to lift and carry on an occasional or frequent basis, but that she could only
stand, walk and sit for less than two hours in an eight-hour work day. (R. 231.) He further opined
that Frazier could sit or stand for only fifteen minutes before needing to change position, and that
she needed to walk around for twenty minutes on an hourly basis. (Id.) He stated that Frazier would
"sometimes need to lie down at unpredictable intervals during an 8 hour working shift." (Id.) When
asked what medical findings supported these limitations, Dr. Adedokun stated, "L4-L5 herniated
disc and [Frazier] has Meniere's disease."
Dr. Adedokun also indicated that the
vertigo/balance issues secondary to Meniere's disease would prevent Frazier from crouching and
climbing ladders, and would limit her to only occasionally twisting, stooping, and climbing stairs.
(R. 232.) He stated that Frazier's ability to reach, handle, finger, feel, push and pull were unaffected
be her impairments. (Id.)
Dr. Iqbal Teli
On April 23, 2013, Dr. Iqbal Teli conducted a consultative examination of Frazier
in connection with her application for disability benefits. (R. 198-201.) Frazier's chief complaint
was lower back pain, but she also reported a history of acid reflux disease and heart murmur. (R.
198.)5/ Her daily activities included cooking, cleaning, showering, and dressing. (Id.) On
Dr. Teli's report does not list vertigo/Meniere's disease as one of Frazier's complaints or
diagnoses; the report lists no symptoms of or limitations relating to vertigo. (See generally
examination, Dr. Teli found that Frazier exhibited no acute distress; had a normal gait and normal
stance; could walk on her toes without difficulty, but could not walk on her heels; and used no
assistive device and needed no help getting on and off the exam table or rising from a chair. (R.
199.) Her blood pressure was 134/82 (R. 198), and her heart exhibited a grade two systolic murmur
(R. 199). Frazier's cervical and lumbar spine exhibited full flexion, extension, lateral flexion, and
rotary movement bilaterally. (Id.) She reported tenderness in her lower back, but her straight leg
raise test was negative bilaterally. (Id.) She exhibited diminished pain sensation in her left hand,
but her strength and dexterity were intact. (R. 200.) A lumbosacral spine x-ray taken on April 25,
2013 showed straightening but no disc herniations or bulges. (R. 200, 202.) Dr. Teli opined that
Frazier "should avoid dust and other respiratory irritants due to history of asthma. [She] has a mild
restriction for prolonged sitting and a mild restriction for lifting and carrying heavy weight." (R.
New York Eye and Ear Infirmary
On June 21, 2013, Frazier was examined by Dr. Zetterstrand and underwent
videonystagmographic testing. (R. 197.) Dr. Zetterstrand's diagnostic impressions were listed as
"vertigo." (R. 196-97.)
Third Avenue Pharmacy
On September 15, 2014, Frazier filled prescriptions for Proair HFA,6/ Losartan,7/
Proair HFA is brand of albuterol aerosol spray. See Drugs.com, https://www.drugs.com/cdi/
proair-hfa-aerosol.html (last visited April 21, 2017). Albuterol is "administered by
inhalation as a bronchodilator for . . . the treatment of asthma-associated bronchospasm."
Dorland's Illustrated Medical Dictionary at 45.
Losartan is a medication "used as an antihypertensive." Dorland's Illustrated Medical
Dictionary at 1075.
Amlodipine8/ and Luticasone.9/ (R. 238.) Four days later, she filled a prescription for ibuprofen.
(Id.) On October 19, 2014, Frazier filled prescriptions for Fluoxetine,10/ Meclizine, Fluticasone,
Amlodipine, Losartan and Proair HFA. (R. 238-39.) On November 14, 2014, Frazier filled
prescriptions for Meclizine, Fluticasone, Amlodipine and Losartan. (R. 239.) On December 1,
2014, Frazier filled a prescription for Proair HFA. (Id.) On December 10, 2014, Frazier filled
prescriptions for Meclizine, Losartan and Amlodipine. (Id.) On January 5, 2015, Frazier filled
prescriptions for Meclizine, Amlodipine, Losartan. (R. 230-40.)11/
Vocational Expert Testimony
Vocational expert Gerald Belchick testified at Frazier's hearing.
Belchick testified that Frazier's prior work as a groundskeeper qualified as medium work. (R. 4546.) ALJ Friedman asked Belchick whether jobs existed that Frazier could perform, assuming she
could perform medium work but could not perform jobs "involving heights, exposed, moving
machinery, or driving" or those "involving excessive pulmonary irritants," and that she could only
Amlodipine is "a calcium channel blocking agent used in the treatment of hypertension."
Dorland's Illustrated Medical Dictionary at 63.
Fluticasone is "a synthetic corticosteroid used topically as an antiinflammatory and
antipruritic . . . by inhalation in maintenance treatment of asthma." Dorland's Illustrated
Medical Dictionary at 722.
Fluoxetine is "a selective serotonin uptake inhibitor . . . used in the treatment of depression."
Dorland's Illustrated Medical Dictionary at 722. It is the generic form of Prozac. See
Drugs.com, https://www.drugs.com/fluoxetine.html (last visited April 21, 2017).
The record contains documents submitted after ALJ Friedman rendered his decision.
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(c); 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 the examination report from the Institute for Family Health dated
January 9, 2016 (R. 241-43) or prescriptions from Third Ave Pharmacy filled on February
1, 2015 and April 9, 2015 (R. 240).
perform "jobs involving simple, routine, repetitive-type tasks, and involving only occasional contact
with supervisors, coworkers, and the public." (R. 46.) Belchick opined that with those restrictions,
Frazier could not perform her past work as a groundskeeper because of irritants in the air (id.), but
that she could perform the duties of a "small assembly" factory worker (R. 46-47), a hand packaging
factory worker (R. 47), a kitchen helper (restaurant dishwasher) (id.), and an order filler (R. 48).
All of these jobs, according to Belchick, exist in significant numbers in the national economy. (R.
46-48.) On cross examination, Belchick testified that Frazier's sensitivity to pulmonary irritants
would limit some kitchen helper jobs, but "would not . . . totally eliminate the jobs." (R. 49.)
ALJ Friedman's Decision
On January 14, 2015, ALJ Friedman denied Frazier's application for benefits. (R.
7-20.) ALJ Friedman applied the appropriate five step legal analysis. (R. 11-12.) First, he found
that Frazier "has not engaged in substantial gainful activity since July 1, 2012, the alleged onset
date." (R. 12.) Second, ALJ Friedman found that Frazier had "the following 'severe' impairments:
Meniere's disease; vertigo; hypertension; asthma; depressive disorder; lumbago." (Id.) Third, ALJ
Friedman found that Frazier did "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." (R. 13.) ALJ Friedman specifically addressed Frazier's asthma, Meniere's disease,
and hypertension, concluding that those impairments did not meet the listings' criteria based on a
lack of physician intervention, no audiology reports indicating hearing loss, and no identifiable
effects of high blood pressure on her organs. (Id.) ALJ Friedman also concluded that Frazier's
mental impairments were not severe based on her activities of daily living, her reported participation
in social gatherings, her testimony that she enjoys reading and doing Sudoku puzzles, and her lack
of reported episodes of decompensation. (R. 13-14.)
ALJ Friedman determined that Frazier had the residual function capacity ("RFC")
perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) restricted
against jobs involving heights, exposed moving machinery or driving or jobs
involving excessive pulmonary irritants, and also restricted to jobs involving simple,
routine repetitive type tasks and requiring only occasional contact with supervisors,
co-workers and the public.
ALJ Friedman accorded "significant" weight to Dr. Teli's consultative opinion that
Frazier should avoid respiratory irritants and had "[o]nly a mild restriction for prolonged sitting and
for lifting and carrying heavy weight." (R. 16-17.) ALJ Friedman found that the lack of imaging
evidence and Frazier's conservative course of treatment cut against Dr. Faucette's statement that
Frazier's back pain was caused by degenerative disc disease. (R. 17.) With regard to Frazier's
mental impairments, ALJ Friedman found that the opinions of Dr. Adedokun and social worker
Anna Fagan, who found "marked" impairments in several areas (see page 6 above), conflicted with
Frazier's self-completed function report (see pages 2-3 above) and her activities of daily living (R.
18). ALJ Friedman also concluded that Frazier's "statements concerning the intensity, persistence
and limiting effects" of her impairments, including back pain, vertigo, and depression, were "not
entirely credible." (R. 17.) He supported this determination with a review of the medical evidence
of record, as well as Frazier's own testimony regarding her activities of daily living. (R. 17-18.)
At the fourth step, ALJ Friedman determined that Frazier had no past relevant work
(R. 19), but that given Frazier's "age, education, work experience and residual functional capacity,
there are jobs that exist in significant numbers in the national economy" that she could perform (R.
19-20). ALJ Friedman noted that Frazier is considered an individual of advanced age, that she has
a high school education and is able to communicate in English. (R. 18-19.) He relied on vocational
expert Belchick's testimony that a person with these characteristics and limitations could work as
a hand packager, kitchen helper or order filler. (R. 19.) Accordingly, ALJ Friedman concluded that
Frazier was not "under a 'disability', as defined in the Social Security Act, from July 1, 2012"
through January 14, 2015. (R. 20.)
THE APPLICABLE LAW
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).12/
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
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).
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.
Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270.13/
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).14/
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).15/ "'Thus,
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.
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.
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).
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.
July 26, 2002) (Peck, M.J.).16/
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 773-74.17/ "[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).18/
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.
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)).
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.
See also, e.g., Campbell v. Astrue, 465 F. App'x 4, 6 (2d Cir. 2012); Veino v. Barnhart, 312
F.3d at 586.
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).
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.  At the first step, the agency will find
nondisability unless the claimant shows that he is not working at a "substantial
gainful activity."  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."  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.  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.  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).19/
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
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).
can perform considering not only his medical capacity but also his age, education and training. See,
e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.20/
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 medical 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
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.
Cir. 2013); Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 197 (2d Cir. 2010).21/
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).22/
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).
Although not applicable to this case, the Court notes that the regulations governing the
"treating physician rule" have recently changed as to claims filed on or after March 27, 2017.
APPLICATION OF THE FIVE STEP SEQUENCE
Frazier Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Frazier was engaged in substantial gainful activity after
her application for DIB and SSI. "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 Friedman's conclusion that Frazier did not engage in substantial
gainful activity during the applicable time period (see page 10 above) is not disputed. (See generally
Dkt. No. 13: Comm'r Br.) The Court therefore proceeds with the analysis.
Frazier Demonstrated "Severe" Impairments That Significantly Limited
Her Ability To Do Basic Work Activities
The second step of the analysis is to determine whether Frazier proved that she had
a severe impairment or combination of impairments that "significantly limit[ed her] physical or
mental ability to do basic work activities." 20 C.F.R. § 404.1522(a). The ability to do basic work
activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R.
§ 404.1522(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. § 404.1522(b)(1)-(6).
ALJ Friedman determined that Frazier's severe impairments were Meniere's disease,
vertigo, hypertension, asthma, depressive disorder and lumbago. (See page 10 above.) ALJ
See 20 C.F.R. §§ 404.1527, 404.1520c; Revisions to Rules Regarding the Evaluation of
Medical Evidence, 82 FR 5844-01, 2017 WL 168819 at *5844, *5867-68 (Jan. 18, 2017).
Friedman's findings regarding the step-two severity of these impairments benefit Frazier, and Frazier
does not contest those findings. (See generally Dkt. No. 21: Frazier Br.) Accordingly, the Court
proceeds to the third step of the five-part analysis.
Frazier 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 Frazier 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 Friedman found that notwithstanding Frazier's severe impairments, she did "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." (See page 10 above.)
ALJ Friedman compared the medical evidence in the record to the criteria in listings 3.03 (asthma),
2.07 (disturbance of the labyrinthine-vestibular function), 4.00H1 (hypertension), and 12.00 (adult
mental disorders); he found that Frazier did not meet the necessary criteria for any of these listings.
(See page 10 above.) Because ALJ Friedman's finding that Frazier's impairments do not meet or
medically equal the listed conditions is not disputed by the parties (see generally Dkt. No. 13:
Comm'r Br.; Dkt. No. 21: Frazier Br.), the Court proceeds with the five-step analysis.
Credibility And Residual Functional Capacity Determinations
Before proceeding to step four, the Court will address ALJ Friedman's credibility and
residual functional capacity ("RFC") determinations.
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
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.'").23/ In addition, "courts must show special deference to an
Accord, 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
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).24/
ALJ Friedman determined that Frazier's "medically determinable impairments could
reasonably be expected to cause" her alleged symptoms (R. 17), but that her "statements concerning
the intensity, persistence and limiting effects" of those symptoms were "not entirely credible." (See
page 11 above.)
When an ALJ determines that a claimant's own statements regarding her symptoms
are not supported by the record, that "decision must contain specific reasons for the weight given
to the individual's symptoms, be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated
the individual's symptoms." SSR 16-3p, 2016 WL 1119029 at *9 (Mar. 16, 2016). The regulations
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).
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)
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) (citing 20 C.F.R. §§
404.1529(a), 404.1529(b), and the now-superseded SSR 96-7p); see also SSR 16-3p, 2016 WL
1119029 at *2; Burgess v. Colvin, 15 Civ. 9585, 2016 WL 7339925 at *11 (S.D.N.Y. Dec. 19, 2016)
(quoting SSR 16-3p for an explanation of the two-step process for assessing claimants' statements
about their symptoms).
In March 2016, the SSA released SSR 16-3p, which provides updated guidance on
evaluating a claimant's claims about the work-preclusive nature of her symptoms. See generally
SSR 16-3p, 2016 WL 1119029; accord, e.g., Duran v. Colvin, 14 Civ. 8677, 2016 WL 5369481 at
*13 n.27 (S.D.N.Y. Sept. 26, 2016) ("SSR 16-3p supersedes SSR 96-7p, 1996 WL 374186 (July 2,
1996), and clarifies the policies set forth in the previous SSR.").
The purpose of [SSR 16-3p] is to provide "guidance about how [to] evaluate
statements regarding the intensity, persistence, and limiting effects of symptoms in
disability claims." S.S.R. 16-3P, 2016 WL 1119029, at *1. The Ruling supersedes
. . . S.S.R. 96-7p, which placed a stronger emphasis on the role of the adjudicator to
make a "finding about the credibility of the individual's statements about the
symptom(s) and its functional effects." S.S.R. 96-7P, 1996 WL 374186, at *1. In
contrast, S.S.R. 16-3p espouses a more holistic analysis of the claimant's symptoms,
and "eliminate[s] the use of the term 'credibility'" from sub-regulation policy. S.S.R.
16-3P, 2016 WL 1119029, at *1. The Commissioner notes that the "regulations do
not use this term," and by abandoning it, "clarif[ies] that subjective symptom
evaluation is not an examination of an individual's character." Id.
Acosta v. Colvin, 15 Civ. 4051, 2016 WL 6952338 at *18 (S.D.N.Y. Nov. 28, 2016).
ALJ Friedman applied the appropriate two-step process, supporting his determination
at the second step with a review of Frazier's testimony regarding her activities of daily living, her
conservative courses of treatment, and her physical therapist's treatment notes. (R. 19-20.) Frazier's
complaints regarding the severity of her vertigo, for example, were undermined by her statements
that she can leave her home independently and retains the ability to drive a car. (R. 17; see also page
3 above.) The Court also notes that Frazier does not appear to have reported her symptoms or
diagnosis of vertigo to Dr. Teli during her consultative examination. (See page 7 n.5 above.) Like
ALJ Friedman (see R. 16), the Court finds this omission odd: Frazier was diagnosed with vertigo
on December 14, 2012 (see page 5 above) and filled out a questionnaire on her vertigo symptoms
on April 9, 2013 (see page 2 above)—before her April 23, 2013 consultative examination with Dr.
Teli (see page 7 above), the purpose of which was to evaluate the alleged bases (including vertigo)
for her application for benefits (see R. 54, 56, 198). See SSR 16-3p, 2016 WL 1119029 at *8 ("In
determining whether an individual's symptoms will reduce his or her corresponding capacities to
perform work-related activities . . . we will consider the consistency of the individual's own
Similarly, Frazier's assertions that she could only stand for about five minutes and
sit for ten to fifteen minutes due to back pain were not supported by medical opinions based on
diagnostic imaging and were contradicted by her conservative courses of treatment—i.e., physical
therapy and pain medication. (R. 17; see also pages 3, 5-6 above.) And although she was approved
for six physical therapy sessions, she attended only four. See page 6 above; see also SSR 16-3p,
2016 WL 1119029 at *8 ("[I]f the [claimant] fails to follow prescribed treatment that might improve
symptoms, [the ALJ] may find the alleged intensity and persistence of [the claimant's] symptoms
are inconsistent with the overall evidence of record."). ALJ Friedman noted, moreover, that during
Frazier's physical therapy treatments, "she reported that her pain level is only 1/10" (R. 17 (emphasis
omitted)); Frazier also reported that her symptoms improved over time (see page 6 above).
Finally, although Frazier testified that her depression caused difficulty concentrating,
such testimony was contradicted by her statements in her function report that she had no problems
paying attention, following simple instructions, finishing tasks, and that she read and did Sudoku
puzzles daily. (See page 3 above.)
Thus, ALJ Friedman properly found that objective medical evidence and Frazier's
own statements failed to support her claims regarding the intensity of her symptoms. 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
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
Residual Functional Capacity Determination
ALJ Friedman found that Frazier had the RFC to "perform medium work as defined
in 20 CFR 404.1567(c)," except that she is
restricted against jobs involving heights, exposed moving machinery or driving or
jobs involving excessive pulmonary irritants, and also restricted to jobs involving
simple, routine repetitive type tasks and requiring only occasional contact with
supervisors, co-workers and the public.
(See page 11 above.) 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).
ALJ Friedman's RFC determination was based on his review of Frazier's testimony
and the medical evidence.
ALJ Friedman noted, for example, that
videonystagmographic testing conducted on June 21, 2013 resulted in a diagnosis of vertigo (see
page 8 above), and Frazier presented with complaints of vertigo on December 14, 2012 (see page
5 above). However, Frazier's February 6, 2013 hearing exam results were normal (see page 5
above), she reported on December 14, 2012 that medication relieved her vertigo symptoms (see page
5 above), and she did not report any symptoms or her diagnosis of vertigo during her consultative
examination with Dr. Teli on April 23, 2013 (see page 7 n.5 above). ALJ Friedman also noted that
despite Frazier's complaints of disabling episodes of dizziness, she maintained the ability to perform
numerous activities of daily living, including driving. (See pages 2-4, 3 above.) This constitutes
substantial evidence supporting ALJ Friedman's assessment that Frazier maintained the ability to
work so long as she was "restricted against jobs involving heights, exposed moving machinery or
driving." (See page 1 above.)
With regard to Frazier's back pain, ALJ Friedman noted that Dr. Teli's consultative
examination revealed no acute distress, normal gait, that Frazier needed no help getting on and off
the exam table or rising from a chair, full range of motion in the lumbar spine and a negative straight
leg raise test (R. 16; see pages 7-8 above); Dr. Teli listed only "mild" restrictions to prolonged
sitting and lifting/carrying heavy weight (see page 8 above). Dr. Teli's opinion was supported by
the April 25, 2013 x-ray of Frazier's lumbosacral spine showing straightening but no problems with
her spinal discs. (See page 8 above.) Such evidence cut against Dr. Adedokun's and Dr. Faucette's
opinions, both unsupported by diagnostic imaging,25/ that Frazier's back pain markedly limited her
ability to sit, stand or walk and was caused by herniated discs or degenerative disc disease. (See
pages 5-7 above.) Frazier's physical therapy progress notes, which indicated improvement and low
pain ratings, further supported Dr. Teli's conclusion. (See page 6 above.) Combined with Frazier's
Indeed, Dr. Faucette's physical therapy referral references "[n]o imaging in several years"
and a "[n]ormal exam" (R. 227; see also pages 5-6 above); when prompted to disclose the
"medical findings support[ing] the limitations described" in his Medical Opinion form, Dr.
Adedokun conclusorily stated: "L4-L5 herniated disc . . . ." (R. 231; see also page 7 above).
ALJ Friedman correctly explained that Dr. Adedokun's opinion "does not supply or refer to
appropriate medical findings such as MRI or CT scans of the lumbar spine to support the
limitations" listed in that opinion. (R. 17.)
testimony regarding her activities of daily living, such evidence supported ALJ Friedman's
determination that Frazier retained the ability to perform medium work despite her complaints of
back pain. (R. 15.)26/
ALJ Friedman noted that at Frazier's consultative examination with Dr. Teli, Frazier
"gave a history of asthma since 2011 for which she uses an Albuterol inhaler." (R. 16.) However,
Frazier reported that "[h]er last ER visit for asthma was three years ago." (Id.) Nevertheless, ALJ
Friedman gave "significant weight" to Dr. Teli's assessment that Frazier should avoid respiratory
irritants, and ALJ Friedman's RFC assessment thus included a restriction on "jobs involving
excessive pulmonary irritants." (R. 16-17; see page 11 above.) This assessment is supported by
With regard to Frazier's mental impairments, ALJ Friedman found that the opinions
expressed in the September 11, 2014 Mental Health Questionnaire prepared by social worker Anna
Fagan and signed by Dr. Adedokun were "against the weight of the evidence." (R. 18.) ALJ
Friedman noted, for example, that although Fagan opined that Frazier had "marked" deficiencies in
Frazier asserts that "[n]o source indicated an opinion that Ms. Frazier could lift 50 pounds
and lift 25 pounds frequently." (Dkt. No. 21: Frazier Br. at 17-18.) This is incorrect. In his
October 23, 2014 assessment, Dr. Adedokun's affirmatively indicated that Frazier had "[n]o
limitation" on her abilities to lift and carry on either an occasional or frequent basis. (R. 231;
see also page 7 above.) ALJ Friedman was entitled to credit that finding as the only portion
of Dr. Adedokun's opinion consistent with other medical evidence in the record—namely,
Dr. Teli's opinion (and supporting x-ray) that Frazier had only "a mild restriction for lifting
and carrying heavy weight." R. 200; see, e.g., Raymer v. Colvin, No. 14-CV-6009, 2015
WL 5032669 at *5 (W.D.N.Y. Aug. 25, 2015) ("[T]here is no 'absolute bar to crediting only
portions of medical source opinions,'" but "an ALJ who chooses to adopt only portions of
a medical opinion must explain his or her decision to reject the remaining portions.").
Frazier's assertion that "no source indicated an opinion that [she] could be on her feet for
two-third's or more of an eight hour workday" (Frazier Br. at 18) is at least impliedly
contradicted by Dr. Teli's assessment that Frazier had "a mild restriction for prolonged
sitting"; he listed no restriction on prolonged standing (R. 200; see also pages 7-8 above).
"[c]oncentration, persistence or pace" and "marked" "[e]pisodes of deterioration or decompensation
in work or work-like settings" (R. 235; see also page 6 above), Frazier herself affirmatively denied
problems paying attention in her April 17, 2013 function report (see page 3 above) and the record
contained no evidence of episodes of decompensation (R. 18). Thus, contrary to Frazier's assertion
(see Frazier Br. at 15-16), ALJ Friedman's explanation was sufficient to satisfy the requirement that
an ALJ provide a specific rationale for rejecting a treating physician's opinion.27/ 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).
The Court additionally notes that when the mental health questionnaire prompted
Fagan to "[d]escribe the clinical findings . . . which demonstrate the severity of [Frazier's] mental
impairment and symptoms," Fagan listed only Frazier's own "reports [of] depression and
irritability." (See page 6-7 above.) Fagan's report, moreover, is internally inconsistent insofar as
it lists "loss of interest in almost all activities" as a symptom of Frazier's depression, but thereafter
indicates that Frazier's depression had no effect on her activities of daily living. (See page 6
In any event, as a social worker, Fagan—who appears to have done the heavy lifting on the
Mental Health Questionnaire (see R. 235) and with whom Frazier began weekly treatment
in August or September 2014 (see page 4 above)—does not qualify as a treating source
entitled to deference under the treating physician rule. See 20 C.F.R. § 404.1527(a)(2); SSR
06-3p, 2006 WL 2329939 at *2 (Aug. 9, 2006); 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.'"); see also, e.g., Castillo v. Colvin, 13 Civ. 5089, 2015 WL 153412 at *22 (S.D.N.Y.
Jan. 12, 2015) ("[A] licensed social worker is not considered an 'acceptable medical source'
. . . .").
The Commissioner argues (see Dkt. No. 13: Comm'r Br. at 18) that examinations showing
Frazier weighed 196 pounds on December 14, 2012 (R. 204), 190 pounds on April 23, 2013
(R. 198), and 194 pounds on June 16, 2013 (R. 194) undercut Fagan's assessment that
Frazier's depression caused "[a]ppetite disturbance with weight change" (see page 6 above).
Nevertheless, because Frazier testified at her hearing that she began weekly visits
with a therapist in August or September 2014 (R. 39), and because the mental health questionnaire
indicated that Frazier suffered from mental impairments—even if the questionnaire's statements
regarding the severity of those impairments was against the weight of the evidence—ALJ Friedman
found that Frazier retained the RFC to work so long as she was "restricted to jobs involving simple,
routine repetitive type tasks and requiring only occasional contact with supervisors, co-workers and
the public" (R. 15). This RFC determination was supported by substantial evidence.
The Court finds that ALJ Friedman's RFC determination is supported by substantial
evidence in the record.29/ 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,
However, these examinations were conducted prior to the alleged March/May 2014 onset
of Frazier's depression; the record contains no measurements of Frazier's weight taken in
Frazier argues that ALJ Friedman "failed to apply the correct legal standard" because he did
not "stat[e] Ms. Frazier's RFC on a function-by-function basis" or provide a "narrative
discussion explaining the evidentiary basis for the RFC." (Frazier Br. at 16.) The Second
Circuit, however, has rejected a per se rule requiring remand in the absence of an explicit
function-by-function analysis: "Where an ALJ's analysis at Step Four regarding a claimant's
functional limitations and restrictions affords an adequate basis for meaningful judicial
review, applies the proper legal standards, and is supported by substantial evidence such that
additional analysis would be unnecessary or superfluous, . . . remand is not necessary merely
because an explicit function-by-function analysis was not performed." Cichocki v. Astrue,
729 F.3d 172, 177 (2d Cir. 2013). Moreover, contrary to Frazier's assertion, the one
sentence description of ALJ Friedman's RFC determination was followed by more than three
pages of narrative discussion supporting that determination. (See R. 15-18; page 11 above.)
This discussion provided an adequate basis for meaningful judicial review, and was therefore
sufficient to meet ALJ Friedman's obligations under SSR 96-8p. See, e.g., Cichocki v.
Astrue, 729 F.3d at 177; Evans v. Comm'r of Soc. Sec., 110 F. Supp. 3d 518, 540-41
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.'").
Frazier argues that ALJ Friedman "failed to develop the record by not obtaining Ms.
Frazier's medical records from her treatment at Family Health Care at North General and Institute
for Family Health, by failing to obtain an updated internal medicine consultative examination, and
by failing to obtain a psychiatric consultative examination." (Frazier Br. at 12.)
It is the "well-established rule in [the Second] circuit" that the ALJ must develop the
"[T]he 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."
Social Security disability determinations are
"investigatory, or inquisitorial, rather than adversarial." "[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."
Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009) (citations omitted). The Second Circuit has
clarified, however, that "'where there are no obvious gaps in the administrative record, and where
the ALJ already 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))).30/
Frazier implies that a gap in the record exists because Family Health Care at North
General and the Institute for Family Health are listed as treating sources in her Disability Reports,
yet there are few treatment notes from these sources in the record. (See Frazier Br. at 13.)
Specifically, Frazier observes that her first visit to these sources occurred in 2011 (see R. 155, 180),
but there are no treatment notes from 2012; rather, the record contains only the June 11, 2013
referral for physical therapy (see pages 5-6 above) and a "My Visit at Institute for Family Health"
note dated July 16, 2013 (R. 194). But Frazier cites no evidence, regulations or cases establishing
a presumption that treatment notes must exist under these circumstances. (See generally Frazier Br.
at 12-13.) On the contrary, because the record contains the referral and "My Visit" notes, and
because neither of those documents evidence a continuing course of treatment, the Court—like ALJ
Friedman—has no reason to believe that additional treatment notes must exist from those sources
for the relevant period. The ALJ's duty to develop the record is not a duty to go on a fishing
expedition. See, e.g., Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("Plaintiff suggests that the
ALJ failed adequately to develop the record concerning the possibility that plaintiff was mentally
disabled. However, we find little indication in the record suggesting a disabling mental disorder
during the period in question that would have obliged the ALJ to develop the record further.").31/
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).
Accord, e.g., Miller v. Colvin, No. 15-CV-0552, 2016 WL 4402035 at *7-8 (N.D.N.Y. Aug.
Frazier argues that "[b]y the time of ALJ Friedman's unfavorable decision on
[January] 14, 2015, the internal medicine consultative examination [by Dr. Teli] . . . was 21 months
out of date." (Frazier Br. at 13.) But Frazier cites no regulations or cases establishing an expiration
date for consultative examinations; nor does she cite any intervening medical evidence in the record
calling into question the relevance of Dr. Teli's observations or the opinions drawn therefrom. (See
id.) As such, ALJ Friedman was entitled to weigh Dr. Teli's opinion like any other medical opinion
evidence. See 20 C.F.R. § 404.1527(c).
Frazier similarly argues that "because by the time of the hearing [she] had been
diagnosed with depression and had commenced psychiatric treatment, an impairment that ALJ
Friedman identified as severe, [ALJ Friedman] should have also obtained a psychiatric consultative
examination." (Frazier Br. at 13-14.) Again, however, Frazier fails to specifically identify any gaps
in the record32/ and cites no regulations or cases establishing an ALJ's obligation to order a
consultative examination under these circumstances. (See generally Frazier Br. at 13-14.) The
Court therefore concludes that ALJ Friedman was under no such obligation. (See cases cited on
page 31 & n.31.)
18, 2016) ("[A]lthough Plaintiff argues that the ALJ should have sought additional
information regarding her diagnosis [of fibromyalgia], she fails to articulate what this
evidence consists of and whether it was missing from the record."); Santiago v. Astrue, No.
10-CV-937, 2011 WL 4460206 at *2 (D. Conn. Sept. 27, 2011) ("The plaintiff makes only
a general argument that any missing records possibly could be significant, if they even exist.
That argument is insufficient to carry his burden.").
Indeed, because Frazier was first diagnosed with depression in August or September 2014
(R. 39; see also page 4 above)—shortly before her October 2014 hearing and ALJ
Friedman's January 2015 decision (see pages 3, 10 above)—it is unclear what gaps in the
record she believes were left by the September 2014 Mental Health Questionnaire (see pages
6-7 above) and her own testimony (see pages 3-4 above).
Frazier Has No Past Relevant Work
The fourth prong of the five part analysis asks whether Frazier had the residual
functional capacity to perform her past relevant work. (See page 15 above.) ALJ Friedman
concluded that Frazier had "no past relevant work." (R. 18; see also page 11 above.) This finding
is not disputed, so the Court proceeds to the fifth and final step of the analysis.
There Are Jobs In Substantial Numbers In The Economy That Frazier Can
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.
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
Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996) (fn. omitted); see also, e.g., Heckler v.
Campbell, 461 U.S. 458, 461-62, 465-68, 103 S. Ct. 1952, 1954-55, 1956-58 (1983) (upholding the
promulgation of the Grid); Roma v. Astrue, 468 F. App'x at 20-21; Martin v. Astrue, 337 F. App'x
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).
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
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 Friedman properly relied on the testimony of vocational expert Gerald Belchick
to determine that jobs Frazier could perform exist. (See pages 11-12 above.)34/ ALJ Friedman asked
Belchick whether jobs existed that Frazier could perform, assuming she could perform medium work
but could not perform jobs "involving heights, exposed, moving machinery, . . . driving," or those
"involving excessive pulmonary irritants," and that she could only perform "jobs involving simple,
routine, repetitive-type tasks, and involving only occasional contact with supervisors, coworkers,
and the public." (See pages 9-10 above.) Belchick opined that with those restrictions, Frazier could
not perform her past work as a groundskeeper, but that she could perform the duties of a "small
assembly" factory worker, a hand packaging factory worker, a kitchen helper, and an order filler.
(See page 10 above.) All of these jobs, according to Belchick's testimony, exist in significant
numbers in the national economy. (See id.) On cross-examination, Belchick testified that Frazier's
sensitivity to pulmonary irritants would limit some kitchen helper jobs, but "would not . . . totally
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
eliminate the jobs." (See id.) ALJ Friedman relied upon Belchick's testimony in reaching his step
five determination when he specifically referred to those jobs in his findings. (See pages 11-12
above.) Accordingly, ALJ Friedman's decision at step five was supported by substantial evidence.
Frazier argues that "ALJ Friedman failed to apply the correct legal standard by failing
to follow the instructions contained in HALLEX - the Hearings, Appeals and Litigation Law Manual
- published by the Social Security Administration that governs the administrative adjudicative
process - for how the ALJ must proceed in obtaining the opinion of a vocational expert." (Dkt. No.
21: Frazier Br. at 21.) But "HALLEX is 'simply a set of internal guidelines for the SSA, not
regulations promulgated by the Commissioner,' and therefore . . . a failure to follow HALLEX does
not necessarily constitute legal error." Gallo v. Colvin, 15 Civ. 9302, 2016 WL 7744444 at *12
(S.D.N.Y. Dec. 23, 2016) (quoting Harper v. Comm'r of Soc. Sec., No. 08-CV-3803, 2010 WL
5477758 at *4 (E.D.N.Y. Dec. 30, 2010)), R. & R. adopted, 2017 WL 151635 (S.D.N.Y. Jan. 12,
2017).35/ Frazier cites no binding authority in support of her arguments and also fails to identify any
potential prejudice suffered by virtue of ALJ Friedman's failure to follow the identified HALLEX
procedures. (See Frazier Br. at 21-23.)
Finally, Frazier argues that "the testimony of vocational expert, Gerald Belchick,
Ph.D., as to numbers of jobs existing in the national economy, was not reliable and, therefore that
the ALJ's step five finding is not supported by substantial evidence." (Frazier Br. at 23.) Belchick
Accord, e.g., Velez v. Colvin, 15 Civ. 0487, 2015 WL 8491485 at *10 (S.D.N.Y. Dec. 9,
2015) ("Even if HALLEX bound the ALJ to a certain course of action—which i[t] does not
. . . ."); see also Dority v. Comm'r of Soc. Sec., No. 14-CV-00285, 2015 WL 5919947 at *5
(N.D.N.Y. Oct. 9, 2015) ("The Second Circuit has not yet determined whether or not
HALLEX policies are binding; however, other Circuits and district courts within the Second
Circuit have found that 'HALLEX policies are not regulations and therefore not deserving
of controlling weight.'").
testified that his job number estimates were provided by a private company called SkillTRAN,
which derived its numbers from the 10-year Census. (R. 50.) Such testimony provided ALJ
Friedman with an adequate basis for relying on Belchick's tesitmony. See, e.g., McIntyre v. Colvin,
758 F.3d 146, 152 (2d Cir. 2014) ("[A] vocational expert is not required to identify with specificity
the figures or sources supporting his conclusion, at least where he identified the sources generally.");
Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 449-50 (2d Cir. 2012) (vocational expert testimony
need only constitute "substantial evidence"; declining to apply Daubert analysis or Rule 702 to
vocational expert testimony and noting that "Congress has provided, quite clearly, that the Federal
Rules of Evidence do not apply in Social Security proceedings"); Galiotti v. Astrue, 266 F. App'x
66, 68 (2d Cir. 2008) (Claimant "argues that the ALJ erred by finding the vocational expert credible
because he was unable to specify how he arrived at the number of jobs available in the economy for
the positions of security surveillance monitor and information clerk, which he testified that
[claimant] could perform despite her impairments. We find this claim unpersuasive. The vocational
expert identified the sources he generally consulted to determine such figures. [Claimant] has not
pointed to any applicable regulation or decision of this Court requiring a vocational expert to
identify with greater specificity the source of his figures or to provide supporting
For the reasons set forth above, the Commissioner's determination that Frazier was
See also Gary-Bailey v. Colvin, No. 14-CV-1535, 2016 WL 1323106 at *4 (D. Conn. Jan.
13, 2016) ("[W]hile the Court appreciates Plaintiff's counsel's advocacy for his client, and
understands his desire for a more stringent process for testing the reliability of vocational
experts in the Social Security disability context, the law in [the Second] Circuit simply does
not require the level of inquiry and scrutiny Plaintiff seeks." (fn. omitted)), R. & R. adopted,
2016 WL 1312750 (D. Conn. Apr. 4, 2016).
not disabled within the meaning of the Social Security Act during the period from July 1, 2012 to
January 14, 2015 is supported by substantial evidence. Accordingly, the Commissioner's motion
for judgment on the pleadings (Dkt. No. 12) is GRANTED and Frazier's motion (Dkt. No. 20) is
DENIED. The Clerk of Court shall close the case.
New York, New York
April 21, 2017
Andrew J. Peck
United States Magistrate Judge
Copies ECF to:
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?