Hayes v. Commissioner of Social Security

Filing 16

OPINION AND ORDER: re: 13 MOTION for Judgment on the Pleadings . filed by Commissioner of Social Security, 11 MOTION for Judgment on the Pleadings . filed by Jacqueline Hayes. For the reasons discussed above, defend ants motion for judgment on the pleadings is GRANTED and plaintiffs cross-motion for judgment on the pleadings is DENIED.The Clerk of Court is directed to terminate the motions at ECF Nos. 11 and 13 and to terminate the action (Signed by Judge Katherine B. Forrest on 9/28/2017) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------X
:
JACQUELINE HAYES,
:
:
:
Plaintiff,
:
-v:
:
NANCY A. BERRYHILL, Acting Commissioner of :
:
Social Security,
:
:
Defendant.
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: September 28, 2017

16-cv-5259 (KBF)
OPINION & ORDER

Plaintiff Jacqueline Hayes seeks review of the decision by defendant
Commissioner of Social Security (the “Commissioner”), finding that she was not
disabled and not entitled to Social Security Disability (“SSD”) benefits under Title II
of the Social Security Act (the “Act”). Plaintiff filed for disability benefits based on
injuries to her lower back, left knee, and right wrist.
Now before the Court are the parties’ cross-motions for judgment on the
pleadings. For the reasons set forth below, defendant’s motion is GRANTED and
plaintiff’s motion is DENIED.
I.

PROCEDURAL AND FACTUAL BACKGROUND
A.

Procedural Background

Plaintiff applied for SSD benefits on August 29, 2012. (Tr. 143.) 1 The Social
Security Administration (“SSA”) denied her claims. (Tr. 166-169.) Plaintiff then

“Tr.” refers to the pages of the administrative record filed by the Commissioner as part of her
answer.
1

requested a hearing before an administrative law judge (“ALJ”), which was held on
April 10, 2014. (Tr. 68-140.) On June 23, 2014, the ALJ issued a decision finding
that plaintiff was not disabled. (Tr. 147-156.) On October 27, 2014, the Appeals
Council vacated the ALJ’s decision and remanded the case for another hearing. (Tr.
161-65). The plaintiff and her attorney appeared for a second hearing before the
ALJ on April 7, 2015. (Tr. 44-67.) On June 22, 2015 the ALJ issued a second
decision, again finding that plaintiff was not disabled. (Tr. 25-37.)
The ALJ’s 2015 decision became the final decision of the Commissioner when
the Appeals Council denied plaintiff’s request for review on March 3, 2016. (Tr. 511.)
B.

Factual Background

The Court recites only those facts relevant to its review. A more thorough
summary of plaintiff’s medical history can be found in the parties’ briefing and in
the extensive administrative record.
1.

Plaintiff’s Personal History

Plaintiff was born in October 1966. (Tr. 443.) She graduated from high
school and subsequently worked at the post office, as a press operator for IBM, as a
caregiver, and as a hand-packer for a party supply company. (Tr. 51-53, 442.) She
stopped working as a hand-packer in June 2007, after she fell at work. (Tr. 86,
392.)

2

2.

Plaintiff’s Medical History
a. Records During the Relevant Period (June 12, 2007 through
March 31, 2012) 2

Plaintiff began treatment with Dr. Harvey Siegel, an orthopedist, on July 3,
2007, two weeks after she fell at work. (Tr. 788-89.) She saw Dr. Siegel regularly
from 2007 through 2009. (Tr. 775-789.) She initially sought treatment only for her
right wrist and left knee, and did not mention any injury to her back. (Tr. 788.) Xrays and straight leg raising (“SLR”) 3 were negative. (Id.) Dr. Siegel diagnosed
contusion of the knee and wrist, and told plaintiff to begin weight bearing to
tolerance and to stay out of work. (Tr. 789.)
Plaintiff returned to Dr. Siegel two weeks later, on July 16, 2007. (Tr. 787.)
She reported that shortly after her fall she had felt some brief back pain, but that
more recently she had begun to feel a sharp pain in her lower back. (Id.) Upon
examination, Dr. Siegel observed significantly diminished range of motion of the
back. (Id.) SLR was negative and plaintiff was neurovascularly intact. (Id.) Dr.
Siegel stated that plaintiff could not return to work, and recommended physical
therapy for her back, wrist, and knee. (Id.)
In connection with her worker’s compensation case, plaintiff underwent an
orthopedic Independent Medical Examination (“IME”) performed by Dr. Lawrence
Foster on October 4, 2007. (Tr. 589-98.) Dr. Foster observed that SLR was
An individual’s “last date insured” establishes the period of coverage during which an individual
must prove they became disabled. Here, it is not in question that plaintiff’s last date insured was
March 31, 2012. Accordingly the “relevant” period for this case is June 12, 2007, the date plaintiff
was injured, to March 31, 2012, the plaintiff’s last insured date.
3 The SLR is a test done to determine whether a patient with low back pain has an underlying
herniated disk.
2

3

negative and motor strength was intact; he further observed that plaintiff’s left
knee had reduced range of motion but no instability, and that plaintiff’s right wrist
had intact sensation and negative Tinel’s sign. 4 (Tr. 593.) He diagnosed right wrist
sprain, post-traumatic right wrist ganglion, and possible left knee derangement, all
causally related to plaintiff’s accident. (Tr. 595.) He could not determine a causal
relationship between the plaintiff’s back injury and the accident, as Dr. Siegel’s
initial report made no mention of back injury. (Tr. 596.) In an addendum to his
report, written on November 15, 2007, Dr. Foster added that plaintiff could engage
in light/sedentary work that would allow standing and sitting as needed and would
not require bending, carrying, or lifting. (Tr. 587.)
Plaintiff returned to Dr. Foster for a second IME on January 31, 2008. (Tr.
580.) Dr. Foster observed that plaintiff had extremely limited range of motion of
the spine, that she moved slowly and deliberately, and had difficulty getting on and
off of the examination table. (Tr. 582.) He further noted reduced motion in her left
knee, an antalgic gait (a limp adopted to avoid pain), and a partial moderate-tomarked disability. He also mentioned that she exhibited signs of symptom
magnification. (Tr. 585.) Based upon a report from Dr. Siegel, Dr. Foster added the
lower back to the list of injuries causally related to plaintiff’s fall. (Tr. 584.) He
reiterated that plaintiff should be restricted to light/sedentary work. (Tr. 586.)
Thus, as of the end of January 2008, Dr. Foster had twice indicated that plaintiff
was capable of light/sedentary work.

4

Tinel’s sign is a way to detect irritated nerves.

4

On April 4, 2008, plaintiff returned to Dr. Siegel. He recommended physical
therapy and magnetic resonance imagings (“MRI”s). (Tr. 781.) He did not reiterate
his prior recommendation that plaintiff not return to work. (Id.)
Plaintiff returned to Dr. Siegel on May 19, 2008, complaining of pain in both
knees and in her lower back. (Tr. 780.) Dr. Siegel observed full range of motion of
the knees, no effusion, 5 strong quads, negative SLR, negative patellofemoral grind 6
and negative stresses. (Id.) He recommended continued exercise and physical
therapy and stated that he was awaiting permission for an MRI. (Id.)
On June 30, 2008, Dr. Siegel observed a positive patellofemoral grind, a full
range of motion, no effusion, and strong peroneals. (Tr. 778.) He prescribed Vicodin
for pain. (Id.)
On September 30, 2008, plaintiff returned to Dr. Siegel, whereupon he
observed equivocal SLR, decreased range of motion in her back, tenderness at the
patella, and no effusion. (Tr. 777.) He noted that she remained unable to do her
normal work. (Id.) He advised her to seek the help of an attorney to obtain her
recommended MRIs. (Id.)
On April 14, 2009, plaintiff underwent a third IME, performed by Dr. Arnold
Goran. (Tr. 574.) Dr. Goran observed that plaintiff had limited range of motion of
the spine, was unable to walk on her heels and toes, and displayed a markedly
antalgic gait. (Tr. 577.) Dr. Goran further reviewed an MRI of the lumbar spine,

5
6

Effusion denotes an excess of liquid around the kneecap.
Patellofemoral grind tests for joint disorder of the knee.

5

and found no significant disc herniation, no significant facet arthropathy, 7 and that
it was “not impressive” from a surgical point of view. (Tr. 576.) He diagnosed
plaintiff with acute and chronic lower back pain with right lower extremity
radiculitis causally related to her accident. (Tr. 578.) Dr. Goran’s conclusion was
similar to Dr. Foster’s—that she could not return to her usual work, but that she
was capable of light duty employment with restrictions. (Id.) He based these
restrictions on plaintiff’s self-report, concluding that she could walk for 15 minutes,
sit without change in position for 15 minutes, stand without change in position for
15 minutes, and lift under 10 pounds. (Tr. 576.)
Plaintiff saw Dr. Syed Iqbal Hosain, a pain management specialist, on May
13, 2009. (Tr. 728.) On examination, Dr. Hosain observed that muscle tone was
normal, sensation was intact, reflexes were equal, muscle bulk was preserved, SLR
was negative, and gait was normal. (Tr. 729.) He noted that plaintiff had reduced
motion of the spine. (Id.) Dr. Hosain recommended a lumbar facet injection (Id.);
he administered the injection on June 11, 2009. (Tr. 495.) Upon her return on
September 30, 2009, she complained of renewed tenderness across the lumbar
spine. (Tr. 554.) Dr. Hosain observed a normal gait, no muscle spasm, and negative
SLR. (Id.) He recommended a second facet injection. (Id.)
On October 16, 2009, plaintiff saw a surgeon, Dr. John McLaughlin, for an
evaluation of her left knee. (Tr. 739.) Dr. McLaughlin noted that the X-ray
revealed a lateral meniscus tear and scheduled her for left-knee surgery. (Id.) He
Facet arthropathy denotes arthritis in the facet joints of the spine; when present, it causes lower
back pain.
7

6

performed the surgery on December 1, 2009. (Tr. 791.) In follow-up visits, Dr.
McLaughlin noted that plaintiff could perform straight leg raising and was
neurovascularly intact. (Tr. 602-3, 766.) He further noted that she had not
participated in physical therapy in the post-operative period, although she had been
instructed to do so. (Tr. 768.) He emphasized the importance of future physical
therapy. (Id.)
Plaintiff also sought care from her primary care physician, Dr. Ivette Torres,
during the relevant period. On November 4, 2009, Dr. Torres’s examination
revealed that she was pleasant and in no acute distress. (Tr. 520.) Her blood
pressure was 143/102 and she weighed 257 pounds; Dr. Torres diagnosed her with
hypertension and obesity. (Id.)
Plaintiff returned to Dr. Torres on March 9, 2010, having lost five pounds
since the November appointment through walking six times a week. (Tr. 516.) Dr.
Torres noted that plaintiff’s obesity was improving, and that her hypertension was
adequately controlled. (Tr. 518.) Plaintiff denied weakness, myalgias (muscle
pain), or numbness. (Tr. 516.)
In plaintiff’s following three visits to Dr. Torres, on December 21, 2010,
September 14, 2011, and December 19, 2011, she continued to lose weight and
reported continued daily exercise by walking. (Tr. 502, 507, 510.) Her total weight
loss was 58.6 pounds. (Tr. 502, 520.) Throughout these visits she denied any
myalgias or muscle weakness. (Tr. 502, 507, 510.)

7

Plaintiff continued to see Dr. Hosain for back pain throughout 2010 and
2011. (Tr. 494, 535-546, 548, 553.) Throughout this period she complained of
tenderness along the lumbar facet joints; however her gait was normal, her
sensation was intact, she had full muscle strength, the SLR remained negative, and
there was no muscle spasm. (Tr. 541, 543, 546, 548, 553, 563, 599.)
On January 17, 2012, plaintiff received another intra-articular facet injection
from Dr. Hosain (Tr. 493) and reported significant improvement in her February 8,
2012 follow-up appointment. (Tr. 540.) The SLR was negative to 70 degrees,
muscle strength was full, sensation was intact, gait was normal, and there was no
muscle spasm. (Id.) Plaintiff complained of some residual lower back pain, and Dr.
Hosain recommended non-steroidal anti-inflammatory medication, stretching
exercises, and possible trigger injections. (Id.) She returned to Dr. Hosain on
March 7, 2012, displaying a normal gait but now complaining of neck pain. (Tr.
682.)
b. Records after the Relevant Period (After March 31, 2012
Expiration of Insured Status)
On August 1, 2012, four months after the expiration of her insured status,
plaintiff underwent a fourth IME, this time performed by Dr. Robert Mann. (Tr.
567.) Dr. Mann observed reduced motion of the lumbar spine, full motor strength,
equal reflexes, intact sensation, normal gait, and no muscle atrophy. (Tr. 570.) Dr.
Mann concluded that plaintiff had no work restriction in relation to her wrist, but
that due to her left-knee injury, plaintiff should avoid prolonged standing, walking,
kneeling, and squatting. (Tr. 571.) He recommended no further follow-up care,
8

including no physical therapy or injections, and encouraged her to follow up with
her treating physician occasionally. (Tr. 572.) Dr. Mann amended his report on
September 10, 2012, stating that plaintiff had a mild partial disability. (Tr. 564.)
He stated that she could work as long as she avoided prolonged standing, walking,
bending, twisting, and lifting greater than 30 pounds. (Tr. 565.)
Plaintiff returned to Dr. Hosain on August 9, 2012, complaining of tenderness
along the lumbar and cervical facet joints. (Tr. 535.) Dr. Hosain observed full
muscle strength, normal gait, no muscle spasm, and negative SLR to 70 degrees.
(Id.) Dr. Hosain suggested lumbar radiofrequency treatment. (Id.)
In response to a request from plaintiff’s former attorney, Dr. Hosain filled out
a “Summary Impairment Questionnaire” on December 4, 2013. (Tr. 955.) In the
form, he stated that plaintiff could stand for less than one hour per workday and sit
for only one hour per workday. (Id.) He further opined that she could only
occasionally lift up to ten pounds and that these limitations had existed since
September 1, 2007. (Id.)
Dr. Hosain completed a second form, a “Physical Assessment for
Determination of Employability,” for the Orange County Department of Social
Services on September 10, 2014, in which he reiterated these limitations, stating
that plaintiff could occasionally lift up to ten pounds, and could stand or walk for
less than two hours a day. (Tr. 958.) These limitations were consistent with less
than sedentary work. (Id.)

9

Plaintiff returned to Dr. Hosain in September 14, 2014, having fallen and
injured her right knee. (Tr. 973.) Dr. Hosain observed that plaintiff’s knee was
tender and her gait antalgic. (Id.) He advised a consultation with an orthopedist.
(Id.) In her January 16, 2015 follow-up appointment with Dr. Hosain, plaintiff
complained of increasing back pain. (Tr. 975.)
3.

Consultative Opinions

On January 26, 2015, plaintiff was examined by Dr. Rita Figueroa, an
orthopedist, at the request of the Commissioner. (Tr. 959-61.) Plaintiff reported
chronic neck and back pain since 2007. (Tr. 959.) Plaintiff further stated that she
cooked three times a week, shopped once per week, and cleaned once per week. (Tr.
960.) Dr. Figueroa observed that plaintiff walked with a limp, had reduced range of
motion of spine and hips, absent reflexes, and declined to squat or walk on her
heels. (Id.) She further observed that plaintiff had full motor strength, intact
sensation, negative SLR, and no atrophy. (Tr. 961.) Dr. Figueroa opined that
plaintiff had marked limitations for activities requiring prolonged walking,
standing, repetitive bending, lifting, and carrying. (Tr. 962.) She found a moderate
limitation to pushing and pulling. (Id.)
4.

Expert Opinions

Josiah Pearson, a vocational expert (“VE”), provided expert testimony at the
April 7, 2015 administrative hearing based on his review of the record. (Tr. 60-64.)
The ALJ asked him to describe the jobs available to a hypothetical individual with
plaintiff’s vocational profile assuming the following restrictions: sitting for six out of
10

eight hours, with the ability to change positions for two minutes out of every 20,
while not being off task during those minutes; lifting or carrying up to ten pounds;
no climbing ropes, ladders, scaffolds, stairs, or ramps; occasional bending and
stooping; no kneeling, crawling, or crouching. (Tr. 61-62.) In response to this
description, the VE concluded that such an individual could perform sedentary work
as a document preparer, addresser, and order clerk. (Tr. 62-63.) The VE testified
that his conclusion was consistent with the information found in the Dictionary of
Occupational Titles (“DOT”), but that he supplemented based on his own experience
where the DOT was silent; in this case, the DOT did not provide the “moving
changing positions.” (Tr. 64.)
Plaintiff’s attorney asked the VE whether a hypothetical person who could
only sit for one hour a day, stand for less than one hour in a day, and lift less than
ten pounds would have any jobs available. (Tr. 64.) The VE responded that he
knew of no such jobs. (Tr. 64.)
II.

APPLICABLE LEGAL PRINCIPLES
A.

Judgment on the Pleadings

“After the pleadings are closed—but early enough not to delay trial—a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The same
standard applicable to Fed. R. Civ. P. 12(b)(6) motions to dismiss applies to Fed. R.
Civ. P. 12(c) motions for judgment on the pleadings.” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citation omitted). Therefore,
“[t]o survive a Rule 12(c) motion, the complaint ‘must contain sufficient factual

11

matter, accepted as true, to state a claim to relief that is plausible on its face.’” Id.
(quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).
B.

The Disability Standard

The Commissioner will find a claimant disabled under the Act if he or she
demonstrates an “inability 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). The claimant’s
impairment must be “of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.”
Id. § 423(d)(2)(A). The disability must be “demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
The Commissioner uses a five-step process when making disability
determinations. See 20 C.F.R. §§ 404.1520, 416.920. The Second Circuit has
described the process as follows:
First, the Commissioner considers whether the claimant is currently
engaged in substantial gainful activity. Where the claimant is not, the
Commissioner next considers whether the claimant has a “severe
impairment” that significantly limits her 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 that is listed in [Appendix 1]. If the
claimant has a listed impairment, the Commissioner will consider the
claimant 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
12

claimant’s severe impairment, she has the residual functional capacity
to perform her past work. Finally, if the claimant is unable to perform
her past work, the burden then shifts to the Commissioner to
determine whether there is other work which the claimant could
perform.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citation and footnote omitted); see
also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); DeChirico v. Callahan, 134
F.3d 1177, 1179-80 (2d Cir. 1998). The claimant bears the burden of proof in steps
one through four, while the Commissioner bears the burden in the final step.
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
C.

Review of the ALJ’s Judgment

The Commissioner and ALJ’s decisions are subject to limited judicial review.
The Court may only consider whether the ALJ applied the correct legal standard
and whether his or her findings of fact are supported by substantial evidence.
When these two conditions are met, the Commissioner’s decision is final. See
Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008); Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998) (“We set aside the ALJ’s decision only where
it is based upon legal error or is not supported by substantial evidence.” (citation
omitted)); 42 U.S.C. § 405(g).
Substantial evidence means “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted). If the
Commissioner and ALJ’s findings as to any fact are supported by substantial
13

evidence, then those findings are conclusive. 42 U.S.C. § 405(g); Diaz v. Shalala, 59
F.3d 307, 312 (2d Cir. 1995).
While the Court must consider the record as a whole in making this
determination, it is not for this Court to decide de novo whether the plaintiff is
disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater,
104 F.3d 1432, 1433 (2d Cir. 1997); Veino, 312 F.3d at 586 (“Where the
Commissioner’s decision rests on adequate findings supported by evidence having
rational probative force, we will not substitute our judgment for that of the
Commissioner.”). The Court must uphold the Commissioner’s decision upon a
finding of substantial evidence, even when contrary evidence exists. See Alston v.
Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to
support either position, the determination is one to be made by the factfinder.”
(citation omitted)); see also DeChirico, 134 F.3d at 1182-83 (affirming an ALJ
decision where substantial evidence supported both sides).
Finally, it is the function of the Commissioner, not the Court, “to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the
claimant.” Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d
Cir. 1984) (quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642
(2d Cir. 1983)) (internal quotation mark omitted); see also Gernavage v. Shalala,
882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (“Deference should be accorded the
ALJ’s [credibility] determination because he heard plaintiff’s testimony and
observed his demeanor.” (citations omitted)). An ALJ’s decision on credibility “must

14

contain specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.” Soc. Sec. Ruling 96–7p, 61 Fed. Reg.
34484.
D.

The Treating Physician Rule

“[T]he treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician,” although an ALJ need not afford
controlling weight to a treating physician’s opinion that is “not consistent with other
substantial evidence in the record, such as the opinions of other medical experts.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citations omitted); see also
Burgess, 537 F.3d at 128. An ALJ who does not accord controlling weight to the
medical opinion of a treating physician must consider various factors, including “(i)
the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician’s opinion; (iii) the
consistency of the opinion with the record as a whole; [and] (iv) whether the opinion
is from a specialist.” Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)).
After considering these factors, the ALJ must “comprehensively set forth reasons for
the weight assigned to a treating physician’s opinion.” Id. at 33.
Although the ALJ will consider a treating source’s opinion as to whether a
claimant is disabled or able to work, the final responsibility for deciding those
issues is reserved to the Commissioner, and the treating source’s opinion on them is
not given “any special significance.” 20 C.F.R. § 416.927(d)(3); see also Soc. Sec.
15

Ruling 96-5p, 1996 WL 374183, at *3 (July 2, 1996); Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999). When a finding is reserved to the Commissioner, “the Social
Security Administration considers the data that physicians provide but draws its
own conclusions as to whether those data indicate disability. A treating physician’s
statement that the claimant is disabled cannot itself be determinative.” Snell, 177
F.3d at 133. It is the ALJ’s duty, as the trier of fact, to resolve conflicting medical
evidence. See Richardson, 402 U.S. at 399.
E.

The ALJ’s Duty to Develop the Record

Although “[t]he claimant has the general burden of proving that he or she has
a disability within the meaning of the Act,” “the ALJ generally has an affirmative
obligation to develop the administrative record.” Burgess, 537 F.3d at 128 (citations
and internal quotation marks omitted). SSA regulations require an ALJ to “inquire
fully into the matters at issue and . . . receive in evidence the testimony of witnesses
and any documents which are relevant and material to such matters.” Id. (quoting
20 C.F.R. § 702.338). “In light of the ALJ’s affirmative duty to develop the
administrative record, ‘an ALJ cannot reject a treating physician’s diagnosis
without first attempting to fill any clear gaps in the administrative record.’” Id. at
129 (citation omitted); see also Calzada v. Astrue, 753 F. Supp. 2d 250, 277
(S.D.N.Y. 2010) (“If the ALJ is not able to fully credit a treating physician’s opinion
because the medical records from the physician are incomplete or do not contain
detailed support for the opinions expressed, the ALJ is obligated to request such
missing information from the physician.” (citing Perez v. Chater, 77 F.3d 41, 47 (2d
Cir. 1996)).
16

III.

DISCUSSION
Plaintiff argues that the ALJ erred when he concluded that she was not

disabled and was capable of performing sedentary work. More specifically, she
argues that the ALJ erred by failing to give appropriate weight to certain of Dr.
Hosain’s opinions, in particular, those contained on the forms he filled out on
December 4, 2013 and September 10, 2014. According to the plaintiff, the ALJ
substituted his own opinion for that of a medical source, selectively evaluated the
evidence before him, and misstated the record. She further argues that the ALJ’s
questioning of the VE was based upon the wrong hypothetical, and therefore that
his conclusion that there are jobs available for plaintiff is unsupported by
substantial evidence. In contrast, defendant argues that the ALJ’s decision is
legally correct and supported by substantial evidence. For the reasons discussed
below, the Court agrees with the defendant.
A.

The ALJ’s Decision

The ALJ evaluated plaintiff’s claim pursuant to the five-step sequential
evaluation process and concluded that plaintiff was not disabled within the
meaning of the Act between June 12, 2007 and March 31, 2012, her date last
insured.
At step one, the ALJ found that plaintiff had not engaged in substantial
gainful activity since June 12, 2007, the alleged onset date, through March 31,
2012, her date last insured. (Tr. 30.) At step two, he determined that
plaintiff had severe impairments consisting of degenerative joint disease of the

17

knee, degenerative joint/disc disease of the lumbosacral spine, and obesity. (Tr. 30.)
The ALJ determined at step three that none of plaintiff’s impairments, nor any
combination of those impairments, was of a severity to meet or medically equal one
of the listed impairments in Appendix 1 of the regulations. 8 (Tr. 30-31.)
Before proceeding to step four, the ALJ determined that plaintiff had the
residual functional capacity (“RFC”) to perform “sedentary work” as defined in the
regulations. 9 (Tr. 31.) He specified that he found that plaintiff could occasionally
lift and carry 10 pounds, stand and walk for two hours and sit for six hours per
eight-hour day. (Tr. 31.) He further concluded that additional limitations should
apply. (Tr. 31.) Specifically, he concluded that plaintiff must be afforded the
opportunity to change positions for two minutes out of every 20, could occasionally
balance and stoop, and could not work at unprotected heights, kneel, crouch, crawl,
or climb ropes, ladders, scaffolds, stairs, or ramps. (Tr. 31.) In making this finding,
the ALJ considered plaintiff’s symptoms, objective medical evidence, and other
evidence, as well as opinion evidence. (Tr. 31.) The ALJ concluded that plaintiff’s
“medically determinable impairments could reasonably be expected to cause the
alleged symptoms” but further concluded that plaintiff’s statements concerning the
“intensity, persistence and limiting effects of these symptoms are not entirely
credible . . . .” (Tr. 31-32.)

The ALJ noted that he considered and rejected Listings 1.04 and 1.02. (Tr. 30-31.)
20 CFR 404.1567(a) defines sedentary work as follows: “Sedentary work involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.”
8
9

18

The ALJ further explained the weight he accorded various medical opinions.
He noted that he was giving “great weight” to the opinions of Drs. Foster, Goran,
and Mann, the three independent physicians who examined plaintiff during or just
following her insured period. (Tr. 35.) He gave “no weight” to Dr. Hosain’s
December 2013 and 2014 opinions, “no weight” to Dr. McLaughlin’s August 2010
opinion, and “no weight” to Dr. Figueroa’s 2015 consultative opinion. (Tr. 34-35.)
Based on plaintiff’s RFC, the ALJ concluded at step four that plaintiff had
been unable to perform her past relevant work. (Tr. 35.)
At the fifth and final step, based on his review of the entire record, including
the testimony of a vocational expert, the ALJ determined that “there were jobs that
existed in significant numbers in the national economy that the claimant could have
performed,” such as document preparer, addresser, and order clerk. (Tr. 35-36.) He
thus found that she was not disabled under the Act and denied her claim. (Tr. 3637.)
1.

Plaintiff’s Residual Functional Capacity

Plaintiff argues that the ALJ erred as a matter of law in determining her
RFC. She sets forth two arguments. First, she argues that the ALJ did not provide
good reasons for giving no weight to Dr. Hosain’s December 2013 and 2014 opinions.
(Pl.’s Mem. in Supp. at 17-18.) Secondly, she asserts that the ALJ improperly
substituted his judgment for that of a medical source. The Court finds both of these
arguments unavailing.
First, plaintiff argues that the ALJ erred by giving no weight to Dr. Hosain’s
opinion. (Pl.’s Mem. in Supp. at 17.) She argues that as the treating physician, Dr.
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Hosain’s opinions should be given significant, if not controlling, weight. (Pl.’s Mem.
in Supp. at 19.)
A treating source’s opinion as to the ultimate conclusion of whether a
claimant is disabled “cannot itself be determinative.” Snell, 177 F.3d at 133.
Indeed, “[t]he opinion of a treating physician is not binding if it is contradicted by
substantial evidence.” Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983).
However, in his consideration of the record, the ALJ must “comprehensively set
forth reasons for the weight assigned to a treating physician’s opinion.” Halloran,
362 F.3d at 33. As discussed below, the ALJ found that certain of Dr. Hosain’s
opinions were contradicted by substantial evidence; in addition, he comprehensively
explained the weight given to each opinion.
The ALJ examined records from Dr. Hosain dating from 2009 through 2015.
He noted that plaintiff was treated for chronic back pain with injections and
medications, and had been diagnosed with lumbar and cervical facet disease and
lumbar spondylosis. (Tr. 32.)
The ALJ then proceeded to weigh the other medical opinions, specifically
those of the three independent doctors. He considered Dr. Foster’s medical
examinations in 2007 and 2008, Dr. Goran’s in 2009, Dr. Mann’s in August and
September of 2012, and Dr. Figueroa’s in 2015. (Tr. 33.) In his decision, the ALJ
gave “great weight” to three of the four independent examiners, finding both that

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they were consistent with each other and that they were supported by clinical
findings. 10 (Tr. 35.)
Specifically, he relied in part upon Dr. Foster’s 2007 and 2008 opinions that
plaintiff was able to perform sedentary/light work that would allow sitting and
standing as needed, and would not involve lifting, bending, or carrying. (Tr. 33.)
He noted also that Dr. Foster observed that plaintiff exhibited signs of possible
symptom magnification. (Id.)
The ALJ further relied upon Dr. Goran’s 2009 report and opinion, which
reported both positive findings—antalgic gait and reduced range of motion of the
spine—but also intact sensation and motor strength. (Tr. 33.) In addition, the ALJ
noted that Dr. Goran found plaintiff to be capable of performing light work. (Id.)
The ALJ also relied on Dr. Mann’s 2012 report and opinion. (Id.) He noted
that in Dr. Mann’s opinion, the plaintiff could lift up to 30 pounds, but should avoid
prolonged standing, walking, kneeling, and squatting. (Id.) He further noted that
Dr. Mann recommended no further care. (Id.)
After having reviewed all of the evidence, he stated that he would give no
weight to Dr. Hosain’s December 2013 opinion, both because it contradicted medical
evidence in the record and also because it reported plaintiff’s limitations as dating
from 2007, despite the fact that Dr. Hosain only began treating plaintiff in 2009.
(Tr. 34.) The ALJ also gave no weight to Dr. Hosain’s 2014 opinions, since they

The ALJ gave no weight to Dr. Figueroa’s 2015 examination, stating both that it was rendered too
long after the last-insured date, and also that it was internally inconsistent with plaintiff’s selfreport of activities she routinely performed. (Tr. 35.)
10

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were distant in time from the plaintiff’s last-insured date and because there was “no
evidence prior to that to support [such] marked limitations.” (Tr. 34.)
Plaintiff adds that it was error to refuse to credit Dr. Hosain’s December 2013
opinion in its entirety based upon the fact that it was retrospective to two years
before plaintiff began treatment. A retrospective opinion must be evaluated in
terms of: 1) whether it is predicated upon a “medically acceptable clinical diagnostic
technique;” and 2) whether, considered in the light of the entire record, it
establishes the existence of a physical impairment prior to the date that doctor
began treating plaintiff. Dousewicz v. Harris, Sec’y of Health, Education, and
Welfare, 646 F.2d 771, 772 (2d Cir. 1981). In this case, the ALJ found that Dr.
Hosain’s retrospective opinion was unsupported by the evidence—including the
objective diagnostic tests and plaintiff’s subjective claims. (Tr. 34-35). Thus, the
Court finds no error in the ALJ’s statement that he rejected the opinion both
because it was retroactive and because it was contradicted by substantial evidence.
Plaintiff’s second argument is that the ALJ erred by substituting his own
opinion for that of a medical source. (Pl.’s Mem. of Supp. at 16.) More specifically,
plaintiff argues that the ALJ erred in including in his RFC the requirement that
plaintiff change positions every two minutes out of 20. (Id.) She asserts that this
was an improper substitution of the ALJ’s opinion for those of doctors who opined
that plaintiff needed to sit and stand at will. (Id.) The Court disagrees.
The Commissioner is authorized to resolve conflicts between conflicting
medical opinions. Veino, 312 F.3d at 588. Furthermore, there is no requirement

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that the ALJ’s determination must mirror the medical opinions cited in his decision.
“Although the ALJ’s conclusion may not perfectly correspond with any of the
opinions of medical sources cited in his decision, he [is] entitled to weigh all of the
evidence available to make an RFC finding that [is] consistent with the record as a
whole.” Matta v. Astrue, 508 Fed App’x 53 (2d Cir. 2013). Plaintiff argues that
“nothing in the record” allows the ALJ to turn Dr. Foster’s opinion that plaintiff
should be able to sit or stand at will into the requirement that plaintiff be able to
change position two minutes out of every 20. (Pl.’s Mem. of Supp. 16.) On the
contrary, the ALJ explained in detail how he weighed the varying opinions of the
medical professionals in reaching this determination. (Tr. 31-35.) As such, the
Court finds plaintiff’s argument lacking.
2.

Misrepresentation of the Evidence

Plaintiff further asserts that the ALJ erred both by misstating the evidence,
and by selectively evaluating the evidence before him. (Pl.’s Mem. in Supp. 19-21.)
Specifically, she argues that any medical improvements were short-lived, that the
ALJ inaccurately described her treatment as conservative, and that the ALJ
misstated her activities of daily living. (Pl.’s Mem. in Supp. 20-21.) The Court
disagrees.
The ALJ’s statement that injections provided relief to the plaintiff’s
symptoms is accurate. He does not opine on the duration or completeness of the
relief, but rather notes that treatment did provide relief. (Tr. 32.) While the
plaintiff may indeed continue to suffer pain, a disability requires “pain so severe, by

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itself or in conjunction with other impairments, as to preclude any substantial
gainful employment.” Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983).
The ALJ further notes that plaintiff was treated for her back pain with
injections rather than surgeries. (Tr. 34.) The ALJ is entitled to consider
conservative treatment history as additional evidence to support his disability
determination where his decision does not rely exclusively on the treatment history
to overcome an otherwise valid medical opinion. Netter v. Astrue, 272 Fed. App’x
54 (2d Cir. 2008). In this case, the treatment history was considered alongside the
testimony of several physicians, including Dr. Mann, who found that follow-up care
was entirely unnecessary. (Tr. 32-35.)
The Court acknowledges that in her hearing, plaintiff testified to severe
limitations on her daily activities. (Tr. 54-60.) However, the ALJ weighed the
credibility of this testimony alongside plaintiff’s statements in other contexts that
she faced significantly fewer limitations and found it lacking. (Tr. 33.) It is well
within the ALJ’s discretion to compare contradictory statements of daily activities.
See SSR 16-3p (“The adjudicator must compare statements made by the individual
in connection to his or her claim for disability benefits with statements . . . she
made under other circumstances.”).
The plaintiff alleges that the ALJ is “selective” in his evaluation of the
evidence. (Pl.’s Mem. of Supp. 20.) Specifically, she alleges that the ALJ’s
statement that progress reports show relief with injections is a mischaracterization
of the record as a whole. (Id.) The Court is not convinced. That plaintiff was

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relieved after the injections is well-supported by the record. (Tr. 535, 538, 539,
541.)
The Court therefore finds that the ALJ did not err by misrepresenting the
evidence.
3.

Vocational Testimony

Finally, plaintiff argues that the ALJ erred in his questioning of the
vocational expert. In essence, plaintiff’s argument is that the ALJ elicited
vocational testimony that failed to relate with precision to plaintiff’s physical
impairments and also that the ALJ failed to use the VE’s response to the most
appropriate hypothetical question. (Pl.’s Mem. of Supp. 21-23.)
It was not necessary for the ALJ to include the response to a hypothetical
containing limitations not supported by the record. McIntyre v. Colvin, 758 F.3d
146, 151 (2d Cir. 2014). The ALJ instead posed a hypothetical question that
mirrored his RFC, which, as discussed above, was supported by substantial
evidence. (Tr. 60-63.) He was therefore correct to rely on the VE’s opinion, which
constituted substantial evidence sufficient to meet his burden in the fifth step of the
sequential evaluation. McIntyre, 758 F.3d at 151-52.
In short, the Court finds that the ALJ’s RFC determination was supported by
substantial evidence and the ALJ applied the correct legal standards in concluding
that plaintiff was not disabled. The Court must uphold the Commissioner’s decision
upon a finding of substantial evidence, even when contrary evidence exists. See
Alston, 904 F.2d at 126; DeChirico, 134 F.3d at 1182-83.

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IV.

CONCLUSION
For the reasons discussed above, defendant’s motion for judgment on the

pleadings is GRANTED and plaintiff’s cross-motion for judgment on the pleadings
is DENIED.
The Clerk of Court is directed to terminate the motions at ECF Nos. 11 and
13 and to terminate the action.
SO ORDERED.
Dated:

New York, New York
September 28, 2017
______________________________________
KATHERINE B. FORREST
United States District Judge

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