Lipp v. Astrue
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 6 Motion for Judgment on the Pleadings; denying 8 Motion for Judgment on the Pleadings; and dismissing Plaintiff's complaint with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/7/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHEN L. LIPP,
DECISION AND ORDER
-vsMICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY
“Lipp”), brings this action pursuant to Title II of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
his application for disability insurance benefits (“DIB”).
Court has jurisdiction over this action pursuant to 42 U.S.C.
Presently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
For the reasons set forth below, this
Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and is in accordance with the
applicable legal standards.
Accordingly, this Court hereby grants
the Commissioner’s motion for judgment on the pleadings.
On January 10, 2006, Plaintiff filed an application for DIB,
claiming disability since November 3, 2005, for neck and back
problems, and a shoulder injury. Administrative Transcript (“Tr.”)
57, 72-74, 117-118.
Tr. 21, 54-57.
Plaintiff’s claim was denied on March 29,
At Plaintiff’s request, an administrative
hearing was conducted on April 11, 2008 in Buffalo, New York
before Administrative Law Judge (“ALJ”) Lamar W. Davis.
was represented by attorney Lawrence S. Lewis, testified at the
hearing, as did impartial vocational expert Timothy P. Janikowski,
Ph.D. (“Janikowski” or “VE”).
On June 3, 2008, the ALJ issued a decision finding that Lipp
was not disabled during the relevant period.
Tr. 10-20, 252-262.
Lipp requested review of the ALJ’s decision, and the Appeals
Council denied Plaintiff’s request.
Tr. 2-4, 263-265.
Plaintiff then filed a civil action in this Court (09-cv00319).
By Stipulation and Order entered September 28, 2009, the
Court (Hon. H. Kenneth Schroeder, Jr.) remanded the case to the
Commissioner for further proceedings.
By letter dated December 21, 2009, the Appeals Council sent
copies of the exhibits and a duplicate recording of the proceedings
to Plaintiff’s new attorney. The letter also offered Plaintiff the
opportunity to submit additional evidence or a statement about the
facts and law in the case.
On March 1, 2010, the
Appeals Council sent a memorandum to Plaintiff’s counsel indicating
that to date, no additional information had been received, and
information by March 15, 2010.
See Def’s Mem at Ex. A.
Plaintiff’s request for review once more.
Plaintiff has adopted the summary of the relevant medical
evidence set forth in Defendant’s Memorandum of Law (Dkt. No. 7).
Briefly, Plaintiff was involved in a work-related accident on
August 29, 2005.
He immediately underwent a cervical
spine x-ray that showed degenerative changes.
Tr. 174, 217.
In September 2005, Plaintiff was examined by Alfredo Rodes,
M.D. who opined that Plaintiff suffered from neck sprain and
Later that same month, Dr. Rodes examined
Plaintiff, at which time Plaintiff reported that his condition had
been “mostly well controlled” with medication. Dr. Rodes certified
that Plaintiff could return to “regular duty” work on September 26,
In November 2005, Usha Raghavan, M.D. conducted an independent
medical examination of Plaintiff for his employer’s insurance
Tr. 201-03, 206-08, 213-16.
Dr. Raghavan’s examination
revealed that Plaintiff had reduced range of motion in his neck,
and tenderness to palpation in his lower cervical vertebrae.
Tr. 201, 206, 214.
Dr. Raghavan concluded that Plaintiff had
cervical strain “which is causally related to” his August 29, 2005
Tr. 203, 208, 216.
In December 2005, Petitioner began seeing Dr. P. Jeffrey
restricted range of motion in all areas of the cervical, thoracic,
and lumbar spine, and had some restricted range of motion in the
right shoulder in flexion.
Dr. Lewis noted that
Plaintiff began taking physiotherapy on November 25, 2005, and was
also taking Naprosyn and Oxycodone for his pain.
Tr. 176, 204.
January 2006, Dr. Lewis assessed that Plaintiff had a moderate to
marked level of disability and released him to return to “light
Treatment notes from February 8, 2006 from
Dr. Lewis show that Plaintiff had been symptomatic since his work
disability from work.”
Dr. Lewis recommended an anterior cervical
microdiscectomy and fusion with respect to Plaintiff’s spine.
On February 28, 2008, Dr. Lewis assessed that Plaintiff
was “totally disabled” until further notice.
following day, Dr. Lewis and Edward Vargi, RPA, co-signed a report
in which they noted Plaintiff “does not feel he can work,” and they
continued Plaintiff on “total disability.”
Tr. 129, 134.
In January 2006, Plaintiff underwent MRIs of his cervical
spine and right shoulder.
The MRI of his cervical spine revealed
moderate disc herniation in two locations, and the MRI of his right
shoulder revealed acromioclavicular joint atropathy along with a
small tendon tear.
Tr. 154, 155.
Also at this time, x-rays were
taken of Plaintiff’s cervical spine and right shoulder. The x-rays
of Plaintiff’s cervical spine revealed cervical spondylosis in two
locations, and the x-ray of his right shoulder revealed some
changes of the acromioclaviculare joint.
Plaintiff began seeing registered physician assistant (“PA”)
Jason D. Fabianksi and Michael T. Grant, M.D. in January 2006.
cervical spine showed “decrease in tender range” and his right
shoulder revealed reduced range of motion, but no deformity.
Tr. 182, 198.
At a subsequent examination, Plaintiff’s right
PA Fabianski and Dr. Grant co-
signed a report, dated November 21, 2007, in which they noted that
Plaintiff was status post a second shoulder arthroscopy.
After a physical examination, they concluded that Plaintiff
was “persistently symptomatic following a work related injury to
his cervical spine and right shoulder.”
On January 24,
2008, they re-evaluated Plaintiff again, at which time Plaintiff
complained of persistent pain and discomfort in his right shoulder
Upon physical examination, PA Fabianksi and
On March 25, 2008, PA Fabianksi and
Dr. Grant co-signed a report in which they asserted that Plaintiff
remains “totally disabled.”
In January 2006, Plaintiff was examined by Paul F. Updike,
M.D. for workers’ compensation purposes.
reported that his pain was “very well-controlled” and manageable
Tr. 191-192, 194.
Dr. Updike noted that, upon
examination, he “really did not see much evidence of significant
radicular component to his pain or really significant shoulder
Dr. Updike also noted that Plaintiff’s
history and presentation were “unusual,” and that Plaintiff refused
any change in his care.
Dr. Updike recommended close monitoring
and urine toxicology to rule out illicit drug use.
In February 2006, Plaintiff underwent another MRI of his
lumbar spine, which showed moderate spondylolisthesis, advanced
disc degeneration with mild herniation, severe bilateral neural
foramen stenosis, and minimal bulging of the annulus fibrosus.
In January 2008, Plaintiff began receiving behavioral pain
coping skills training from Jeffrey Lackner, Psy.D.
a report dated March 5, 2008, Dr. Lackner stated that six sessions
were scheduled with Plaintiff, but that Plaintiff cancelled three
Due to Plaintiff’s poor compliance with Dr. Lackner’s
“behavioral homework,” Dr. Lackner discharged Plaintiff from his
Edward P. O’Brien III, M.D. provided an undated report, in
which he indicated that he began treating Plaintiff in September
2005 for cervical neck pain.
Plaintiff was taking pain medication.
Dr. O’Brien noted that
He conducted a
physical examination of Plaintiff, noting Plaintiff’s complaints of
cervical neck and right shoulder pain.
assessed that Plaintiff could lift and carry zero pounds, could
d/walk less than two hours in an eight hour work day, and could sit
He also noted that Plaintiff was limited in
his ability to push and pull. Dr. O’Brien concluded that Plaintiff
was “disabled as per Dr[s]. Lewis/Grant.”
testimony, is discussed below in further detail, as necessary.
Scope of Review
Title 42 U.S.C., Section 405(g) directs the Court to accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is “such relevant evidence as a reasonable
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Court’s scope of review is limited to whether the Commissioner’s
findings were supported by substantial evidence in the record, and
whether the Commissioner employed the proper legal standards in
evaluating the plaintiff’s claim. See Mongeur v. Heckler, 722 F.2d
1033, 1038 (2d Cir. 1983) (finding that a reviewing Court does not
try a benefits case de novo).
Judgment on the pleadings pursuant to Rule 12(c) may be
granted where the material facts are undisputed and where judgment
on the merits is possible merely by considering the contents of the
Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d
Cir. 1988). If, after reviewing the record, the Court is convinced
that plaintiff has not set forth a plausible claim for relief,
judgment on the pleadings may be appropriate.
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
See generally Bell
The Commissioner’s Decision to Deny the Plaintiff Benefits was
Supported by Substantial Evidence in the Record
In his decision, the ALJ followed the required five-step
analysis for evaluating disability claims.1
1 of the process, the ALJ found that Plaintiff did not engage in
substantial gainful activity during the relevant period.
At steps 2 and 3, the ALJ concluded that, through the date
last insured, Plaintiff had the severe combination of impairments
Plaintiff did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments.
At steps 4 and 5, the ALJ concluded that Plaintiff had
the residual functional capacity (“RFC”) to perform light work2
with certain restrictions.3
Id. at 17.
Moreover, the ALJ found
The five-step analysis requires the ALJ to consider the following:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) if not, whether the claimant has a severe impairment which significantly
limits his or her physical or mental ability to do basic work activities; (3) if
the claimant suffers a severe impairment, the ALJ considers whether the claimant
has an impairment which is listed in Appendix 1, Subpart P, Regulation No. 4, if
so, the claimant is presumed disabled; (4) if not, the ALJ considers whether the
impairment prevents the claimant from doing past relevant work; (5) if the
claimant’s impairments prevent his or her from doing past relevant work, if other
work exists in significant numbers in the national economy that accommodate the
claimant’s residual functional capacity and vocational factors, the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v).
Light work requires the capacity to lift no more than twenty pounds at a
time with frequent lifting or carrying of objects weighing up to ten pounds,
standing or walking, off an on, for six hours out of an eight-hour workday.
20 C.F.R. § 404.1567(b); see also Social Security Ruling (SSR) 83-10.
These restrictions are as follows: “[Plaintiff] cannot reach overhead,
perform unsupported forward extension or perform rapid, repetitive motion with
the dominant right upper extremity; he can incidentally (up to a sixth of the
workday) perform postural activities; he should avoid unprotected heights and
that, through the date last insured,
Plaintiff was unable to
perform any past relevant work, but that considering Plaintiff’s
age, education, work experience, and RFC, there were jobs that
Plaintiff could have performed.
Id. at 18-19.
Plaintiff argues that the ALJ’s decision was not supported by
substantial evidence. Specifically, Plaintiff maintains that: the
ALJ erred as a matter of law by not re-contacting the Plaintiff’s
treating doctors, Drs. Lewis, Grant, and O’Brien (Point I); the ALJ
failed to properly assess the opinion of the Plaintiff’s treating
doctors (Point II); the ALJ erred by substituting his opinion for
medical expert opinion (Point III); and that the ALJ did not
properly assess the Plaintiff’s subjective complaints (Point IV).
See Plaintiff’s Memorandum of Law (“Pl’s Mem.”), Points I-IV (Dkt.
The Court rejects Plaintiff’s arguments for the reasons
discussed below, and affirms the ALJ’s decision denying Plaintiff
The ALJ Did Not Err by Not Re-Contacting Plaintiff’s
Plaintiff alleges that the ALJ erred by not re-contacting
Specifically, he argues that “the ALJ was under a duty to complete
dangerous machinery; and he should avoid working at a piece work production pace.
He should be allowed to alternate between sitting and standing as needed. He can
understand, remember and carry out simple, routine repetitive tasks involving
incidental use of independent judgment or discretion and no more than incidental
changes in work processes.” Tr. 17.
the record by recontacting Drs. Lewis, Grant, and O’Brien for a
more specific medical interpretation of why the Plaintiff was
See Pl’s Mem. at 4-8.
The Court rejects
Re-contacting medical providers is necessary when the ALJ
cannot make a disability determination based on the evidence of
20 C.F.R. § 404.1512(e).
But the ALJ is not prevented
from making a disability determination even if “the evidence . . .,
evidence or is internally inconsistent, [so long as the ALJ weighs]
all of the evidence and see[s] whether [he] can decide whether
Further, Social Security Ruling 96-5p, 1996 SSR
LEXIS 2 instructs adjudicators that opinions from any medical
source about issues reserved to the Commissioner, such as those
regarding whether Plaintiff meets the statutory definition of
disability, must never be ignored.
Here, there is no indication that the ALJ had insufficient
evidence or could not reach a conclusion based on the record before
him. The record contained various reports, notes, and examinations
by Drs. Lewis, Grant and O’Brien.
Further, the ALJ did not ignore
“the opinions of total disability” altogether, but rather, found
that they were not entitled to great weight “because they [were]
either limited to the claimant’s past work as a roofer or are based
on the claimant’s subjective complaints.”
“disabled” was not based on his own assessment of Plaintiff, but,
determination made by Drs. Lewis and Grant.
below, the ALJ properly assessed the opinions of Plaintiff’s
treating physicians, and determined that Plaintiff maintained the
RFC to perform “light work” with certain restrictions.
Accordingly, there was no basis for the ALJ to seek additional
information from Drs. Lewis, Dr. Grant, and Dr. O’Brien concerning
their opinions that Plaintiff was disabled.
Plaintiff’s claim is
The ALJ Properly Assessed the Opinion of Plaintiff’s
Treating Doctors Pursuant to SSR 96-2p
Plaintiff argues that “the ALJ failed to comply with the
controlling law in this circuit, as well as the Commissioner’s own
regulations, in failing to provide any reasons, much less good
cause, for his obvious rejection of the opinions and assessments of
the Plaintiff’s [treating] doctors.”
See Pl’s Mem. at 8.
Court is unpersuaded by this argument.
Under the Regulations, a treating physician’s opinion is
entitled to “controlling weight” when it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with substantial evidence in [the] case
20 C.F.R. § 404.1527(d)(2);
see also Schisler v.
Sullivan, 3 F.3d 563, 567 (2d Cir. 1993);
see also Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (treating physician’s
opinion is not controlling when contradicted “by other substantial
evidence in the record”);
20 C.F.R. § 404.1527(d)(2).
consistent an opinion is with the record as a whole, the less
weight it is to be given.
362 (N.D.N.Y. 2007);
Stevens v. Barnhart, 473 F.Supp.2d 357,
see also Otts v. Comm’r of Social Sec., 249
Fed.Appx. 887, 889 (2d Cir. 2007) (an ALJ may reject such an
opinion of a treating physician “upon the identification of good
An ALJ may refuse to consider the treating physician’s
opinion controlling if he is able to set forth good reason for
Barnett v. Apfel, 13 F. Supp.2d 312, 316 (N.D.N.Y.
When an ALJ refuses to assign a treating physician’s
opinion controlling weight, he must consider a number of factors to
determine the appropriate weight to assign, including:
frequency of the 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; (iv) whether the opinion is from a
specialist; and (v) other factors brought to the Social Security
Administration’s attention that tend to support or contradict the
20 C.F.R. § 404.1527(d)(2).
controlling weight where the treating physician issued opinions
that are 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); see also Filoramo v.
(E.D.N.Y. 1999) (holding that the ALJ properly discounted the
assessment of a treating physician as it was inconsistent with
opinions of other treating and consulting physicians).
conclusion provides a proper basis under SSR 96-2p, 1996 SSR LEXIS
9 for rejecting a treating physician’s conclusion.
Astrue, 2008 U.S. Dist. LEXIS 46619, 2008 WL 3884356, at *11
(N.D.N.Y. 2008). Further, an opinion that is not based on clinical
findings will not be accorded as much weight as an opinion that is
20 C.F.R. §§ 404.1527(d)(3), 416.927 (d)(3).
Here, the ALJ properly afforded less than controlling weight
to the opinions of treating physicians Lewis, Grant and O’Brien
because their opinions of total disability were not well-supported
by relevant evidence.
With respect to Dr. Lewis, for example, he examined Plaintiff
in December 2005 and found that he had restricted range of motion
in all areas of his spine.
Yet, Dr. Lewis also opined, at that
same time, that Plaintiff “really did not participate in the exam
Also in December 2005, Dr. Lewis assessed
that Plaintiff’s sensory exams were unremarkable and his deep
tendon reflexes were normal bilaterally.
He noted no myelopathic
findings, and shortly thereafter released him to return to “light
Similarly, upon physically examining Plaintiff, Dr. Grant
“tenderness to resisted motion,” but also consistently failed to
describe the clinical degree of Plaintiff’s weakness. Tr. 127-128,
137, 179, 183.
Further, Dr. Grant’s physical exams consistently
confirmed that Plaintiff’s range of motion improved passively.
Tr. 127-128, 135, 137.
Likewise, the clinical findings of Dr. O’Brien’s examination
limitations, as set forth above.
Dr. O’Brien reported relatively benign findings with respect to
Plaintiff’s spine and shoulder impairments:
strength, rapid alternating movements, and fine manipulation were
all normal; his sensory exam was normal in all areas tested, his
deep tendon reflexes were normal; and, his range of motion was near
full in both shoulders and in his lumbar spine.
Tr. 160-163, 165-
Moreover, as discussed above, Dr. O’Brien concluded that
Plaintiff was “disabled as per Dr. Lewis/Grant,” and not based on
his own assessment of Plaintiff.
However, as set forth
above, the opinions of Dr. Lewis and Dr. Grant did not support
their own objective findings.
Further, the opinions of Drs. Lewis, Grant and O’Brien are
inconsistent with the other substantial evidence in the record that
supports the ALJ’s determination that Plaintiff could perform a
range of light work.
See Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999) (“[T]he less consistent [an] opinion is with the record
as a whole, the less weight it will be given.”).
Plaintiff’s neck, full muscle strength in his upper and lower
extremities, no spasm, normal muscle tone, and normal neurological
Tr. 209, 211.
Dr. Rodes also opined that Plaintiff
could return to “regular duty” work at the end of September 2005.
Similarly, Dr. Ragahavan’s November 2005 examination of
Plaintiff showed reduced range of motion in Plaintiff’s neck with
tenderness, but also showed that Plaintiff’s muscle strength was
full without atrophy, and range of motion in both shoulders was
Further, Dr. Updike’s January 2006 physical
examination of Plaintiff was noted as “fairly unremarkable,” as
normal, and his range of motion in both shoulders was normal.
Dr. Updike reported that his examination did not reveal “much
evidence of significant radicular component to [Plaintiff’s] pain
or really significant shoulder pathology.” Tr. 194. Additionally,
“motivational profile is at odds with people with genuine pain
problems who want help and do what it takes to put their injury
behind them.” Consequently, Dr. Lackner discontinued his treatment
Accordingly, the Court finds that the ALJ properly assessed
the opinion of the Plaintiff’s treating doctors, affording them
less than controlling weight because they were unsupported by
relevant evidence and were inconsistent with the other substantial
evidence of record.
Accordingly, the Court rejects Plaintiff’s
The ALJ Did Not Substitute his Opinion for Medical Expert
Plaintiff argues that the ALJ erred in substituting his
opinion for medical expert opinion in making his RFC finding.
support his claim, Plaintiff points to diagnostic testing performed
on him, and asserts that “these objective medical reports could
reasonably cause the Plaintiff’s chronic shoulder and neck pain, as
[Plaintiff] testified, but the ALJ appears to have interpreted
these reports as not being severe enough to support the Plaintiff’s
See Pl’s Mem. at 11.
The Court finds this
claim is not supported by the record.
Residual functional capacity is a medical factor as to what a
claimant is physically capable of doing, and is determined by the
ALJ based on the medical evidence.
20 C.F.R. § 404.1546.
the ALJ may not substitute his opinion in place of objective
medical evidence. Eiden v. Secretary of Dept. of Health, Education
and Welfare, 616 F.2d 63 (2d Cir. 1980).
The record does not support Plaintiff’s claim that the ALJ
substituted his judgment for that of the medical experts.
carefully reviewed and weighed the medical evidence of record, and
determined that Plaintiff retained the RFC to perform a range of
determining Plaintiff’s RFC, the ALJ properly weighed the medical
opinions in the record, and declined to afford controlling weight
to treating doctors Lewis, Grant, and O’Brien that Plaintiff was
evidence and because they were inconsistent with other evidence in
Specifically, Dr. Rodes assessed that Plaintiff had
full range of motion in his neck, full muscle strength in his upper
findings, and exhibited no spasm.
Tr. 209, 211.
November 2005, Dr. Raghavan opined that although Plaintiff had
reduced range of motion in his neck, his muscle strength was full
and his range of motion in both his shoulders was normal.
Likewise, Dr. Updike reported in January 2006 that Plaintiff’s
physical examination was “fairly unremarkable,” specifically noting
that Plaintiff’s upper extremity reflexes and his motor strength
Moreover, the ALJ properly assessed Plaintiff’s subjective
Plaintiff’s RFC (as discussed in detail below), finding that said
complaints were inconsistent with the objective evidence in the
consistent with his alleged level of pain, that he was taking
examination findings, that he refused change in his care, and that
he was not compliant with pain management therapy.
Additionally, as discussed below, the ALJ properly discounted
Plaintiff’s subjective complaints because they were supported by
his own admissions in the record and the inconsistencies reflected
in his testimony.
Accordingly, the Court rejects Plaintiff’s argument that the
ALJ erred in substituting his opinion for medical expert opinion in
making his RFC finding.
The ALJ Properly
Plaintiff claims that the ALJ failed to properly assess his
subjective complaints. Specifically, he argues that his subjective
complaints should have been given “great weight.”
He also claims
that the ALJ erred in not complying with Social Security Ruling 967p.
See Pl’s Mem. at 12-13.
In determining Plaintiff’s RFC, the ALJ considered Plaintiff’s
disability [were] not supported by the record.”
determining the claimant’s credibility, the SSA explains that a
strong indication of the credibility of an individual’s statements
is their consistency, both internally and with other information in
the case record.
In doing so, the adjudicator must consider such
the degree to which the individual’s statements are
consistent with the medical signs and laboratory findings and other
information provided by medical sources, including information of
medical history and treatment, and the consistency of
the claimant’s own statements.
The adjudicator must compare
statements made by the individual in connection with his claim for
circumstances, when such information is in the case record.
SSR 96-7p, 1996 SSR LEXIS 4. In rejecting a claimant’s credibility
with respect to allegations of pain and other symptoms, an ALJ may
inconsistencies between the claimant’s statements and the record as
Davis v. Apfel, 149 F. Supp. 2d 99, 107 (D. Del. 2001).
Here, the ALJ discounted Plaintiff’s subjective complaints of
Plaintiff’s assessment of his “pain at the level of 10/10 on the
standard pain scale,” he “neither required nor received a level of
treatment consistent with [that] level of pain.”
medications” given that Plaintiff “has been taking strong narcotic
unremarkable’ physical examination findings.”
the ALJ noted, that Plaintiff “has refused any change in his care”
and that he was not compliant with pain management therapy.
Plaintiff’s own admissions in the record and the inconsistencies
reflected in his testimony.
For example, Plaintiff testified at
his hearing that he stopped working because he could no longer lift
However, treatment notes from Dr. Raghavan
reflect that Plaintiff stopped working because he was laid off on
Tr. 201. Similarly, Plaintiff testified at his hearing that he had
looked for work subsequent to being laid off and mailed out
resumes, but had received no responses.
notes from Drs. Lewis and Grant reflect that Plaintiff told them
that he was physically unable to work.
Tr. 129, 137.
The record also reflects that while Plaintiff told Drs. Lewis
and Grant that he was physically unable to work, he also related to
Dr. Rodes and Dr. Updike that his condition had been “mostly well
controlled” or “very well controlled” with medication.
Plaintiff reported that, with medication, his pain was manageable
at a level “2/10” on the pain scale.
testified at his hearing that he experienced memory loss as a side
effect of his pain medication, he related to Dr. Rodes that he had
no side effects.
Tr. 209, 235.
Additionally, Plaintiff testified at his hearing that his
girlfriend cooked and did the household chores.
However, this testimony is inconsistent with Plaintiff’s responses
on his disability function assessment form (Tr. 90-100) in which he
indicated that he cooked his own meals daily, cared for his pet,
and had no difficulty with personal care.
Plaintiff reported on this same form that he went outside “everyday
for physical therapy and computer classes,” and that he walked or
used public transportation.
It is significant that throughout the record Plaintiff often
denied musculoskeletal and neurological symptoms.
Based on these inconsistencies and that the record does
not adequately support Plaintiff’s subjective complaints, this
Court finds that the ALJ correctly found that the Plaintiff’s
regarding the credibility of Plaintiff’s testimony must be accepted
by the Court where, as here, it is supported by substantial
evidence in the record.
Aponte v. Secretary of Health and Human
Services, 728 F.2d 588, 591 (2d Cir. 1984). Accordingly, the Court
rejects this argument.
After careful review of the entire record, this Court finds
that the Commissioner’s denial of DIB was based on substantial
evidence and was not erroneous as a matter of law.
the ALJ’s decision is affirmed.
For the reasons stated above, the
Court grants Commissioner’s motion for judgment on the pleadings
(Dkt. No. 6).
Plaintiff’s motion for judgment on the pleadings is
denied (Dkt. No. 8), and Plaintiff’s complaint (Dkt. No. 1) is
dismissed with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
May 7, 2013
Rochester, New York
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