Dearborn v. Asture et al

Filing 29

-CLERK TO FOLLOW UP-ORDER granting 25 Motion for Judgment on the Pleadings; denying 27 Motion for Judgment on the Pleadings. Clerk to close case.. Signed by Hon. Michael A. Telesca on 02/04/15. (BMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CAROL M. SCHUNK a/k/a
CAROL M. DEARBORN,
Plaintiff,

11-CV-0670T
DECISION
and ORDER

v.
CAROLYN W. COLVIN, Commissioner
of Social Security,1
Defendant.
INTRODUCTION
Plaintiff

Carol

M.

Schunk,

a/k/a

Carol

M.

Dearborn

("Plaintiff"), who is represented by counsel, brings this action
pursuant to the Social Security Act (“the Act”), seeking review of
the final decision of the Commissioner of Social Security (“the
Commissioner”) denying her application for Disability Insurance
Benefits (“DIB”). This Court has jurisdiction over the matter
pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently before the
Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Dkt. ##25, 27.
BACKGROUND
On June 18, 2008, Plaintiff filed a DIB application alleging
disability beginning August 29, 2007, due to back injury, high

1

Carolyn M. Colvin is automatically substituted for the
previously named Defendant Michael Astrue pursuant to Fed.R.Civ.P.
25(d). The Clerk of the Court is requested to amend the caption
accordingly.

blood pressure, anxiety, depression, and fibromyalgia. T. 143-46,
178.

Plaintiff’s

initial

application

was

denied,

and

she

subsequently requested a hearing before an Administrative Law Judge
(“ALJ”). T. 56-59, 62-63. A video hearing was held before ALJ David
S. Pang on September 27, 2010, during which Plaintiff testified and
was represented by counsel. The ALJ also heard testimony from a
Vocational Expert (“VE”). T. 37-54. Afterward, the

ALJ issued a

written decision on October 15, 2010, finding that Plaintiff was
disabled as of October 5, 2010, but not prior thereto. T. 19-39.
In applying the familiar five-step sequential analysis, as
contained in the administrative regulations promulgated by the SSA,
see 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249,
2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five
steps), the ALJ found: (1) Plaintiff had not engaged in substantial
gainful activity since the alleged onset date of August 29, 2007;
(2) she had the severe impairments of degenerative disc disease,
hypertension, adjustment disorder, and pain disorder; (3) her
impairments did not meet or equal the Listings set forth at 20
C.F.R. 404, Subpart P, Appendix 1, and that she retained the
residual functional capacity (“RFC”) to perform sedentary work with
a

sit/stand

option

and

limitations

in

climbing,

kneeling,

crouching, and crawling; (4) she was unable to perform her past
relevant work; and (5) prior to October 5, 2010, Plaintiff was able
to perform jobs that existed in significant numbers in the national

2

economy. At step five, the ALJ further found that beginning October
5, 2010 (the date that Plaintiff’s age category changed to that of
an individual closely approaching advanced age), there were no jobs
that existed in significant numbers in the national economy that
Plaintiff could perform. T. 26-32. He then concluded that Plaintiff
was not disabled prior to October 5, 2010. T. 32.
The ALJ’s determination became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request
for review on June 23, 2011. T. 1-6. This action followed. Dkt.#1.
The Commissioner moves for judgment on the pleadings on the
grounds that the ALJ’s RFC was supported by substantial evidence;
the

ALJ

properly

assessed

Plaintiff’s

credibility;

and

that

substantial evidence supports the ALJ’s finding that Plaintiff was
not disabled prior to October 5, 2010. Comm’r Mem. (Dkt. #25-1) 1726. Plaintiff cross-moves for judgment on the pleadings on the
grounds that the ALJ erred at various of the sequential analysis.
Gaughan Decl. (Dkt. #27) 1-6.2
For

the

following

reasons,

the

Commissioner’s

motion

is

granted, and the Plaintiff’s cross-motion is denied.

2

In lieu of a memorandum of law, Plaintiff’s counsel, Dennis
Gaughan, Esq., submits an Affirmation Declaration (“Gaughan Decl.”) in
support of her motion. Dkt. #27.

3

DISCUSSION
I.

General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to

hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g) (2007). The section
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by substantial evidence in the record.
Substantial evidence is defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S.
121, 149 (1997).
When

determining whether

the

Commissioner's

findings

are

supported by substantial evidence, the Court's task is “to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits

4

the scope of the Court's review to two inquiries: determining
whether the Commissioner's findings were supported by substantial
evidence in the record as a whole, and whether the Commissioner's
conclusions

are

based

upon

an

erroneous

legal

standard.

Green–Younger v. Barnhart, 335 F.3d 99, 105–06 (2d Cir. 2003); see
also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not
try a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be granted
where the material facts are undisputed and where judgment on the
merits is possible merely by considering the contents of the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
(2d Cir. 1988). A party's motion will be dismissed if, after a
review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
II.

Medical Evidence
A.

Treatment Records from the alleged onset date, August 29,
2007, through October 4, 2010.

An MRI of Plaintiff’s lumbar spine taken on September 6, 2007
showed moderate

L2-3 and L3-4 disc bulging, mild L4-5 disc

bulging, broad-based left foraminal to left posterolateral disc
herniation superimposed on disc bulging at L2-3 and mild-tomoderate left L2-3 neural foramen narrowing. T. 287.

5

At

the

medications,

time

of

including

her

DIB

application,

hydrocodone,

Lyrica,

Plaintiff
Fentanyl

took

8

patches,

Xanax, a beta-blocker, and a diuretic. T. 182, 310.
Beginning September 5, 2007, and various times thereafter,
Plaintiff’s

primary

care

physician

Pricilla

Dale

opined

that

Plaintiff was disabled and unable to work. T. 238, 362, 366, 368,
444, 447, 451.
On September 18, 2007, Plaintiff was examined by neurosurgeon
Loubert Suddaby, who noted Plaintiff’s consumption of narcotic
analgesics for pain had increased and that Plaintiff was seeking
other treatment options. T. 242. Dr. Suddaby’s examination of
Plaintiff revealed that she was well-nourished, well-developed, and
in no acute distress; was alert, oriented, and exhibited normal
mentation. She had moderate to marked restriction in her lumbar
spine range of motion and tenderness of the lumbar paraspinal
muscles; no tenderness of the sacroiliac joints or hip bursae; and
tenderness present in the sciatic notches bilaterally. Straight leg
raising was 80 degrees bilaterally; reflexes were symmetrical;
plantars were downgoing; muscle bulk, tone, and power were normal
as was a sensory examination. Gait and station were normal. T. 242.
Dr. Suddaby noted the previous MRI results and recommended a lumbar
spine CT scan, return to physical therapy, and an epidural nerve
block. He stated that he was concerned about Plaintiff’s narcotic
consumption, and advised against narcotic use for chronic pain in

6

light of her existing addiction to nicotine. T. 243.

Dr. Suddaby

opined that Plaintiff had a “problem with bulging of the discs at
multiple levels with associated spinal stenosis,” and stated that
she would remain on temporary, total disability. T. 243.
Shortly thereafter, Dr. Dale again examined Plaintiff, noting
that she had shuffling gait and moved stiffly. T. 241. She planned
to keep Plaintiff off work until further notice. Id.
Plaintiff saw Dr. Melvin Brothman, an orthopedic surgeon, on
October 29, 2007 for complaints of lower back pain that radiated to
her legs. T. 244-47. She reported that her pain was aggravated by
bending, lifting, walking, standing, and sitting. After examination
and reviewing the diagnostic imaging tests results, Dr. Brothman
diagnosed

Plaintiff

with

spinal

stenosis

with

bilateral

radiculopathy, degenerative disc disease multiple levels. He noted
that Plaintiff’s primary care physician, Dr. Dale, had diagnosed
her with fibromyalgia. T. 244. Her prognosis was fair. Dr. Brothman
opined that her treatment to date treatment was reasonable and
necessary, and she was able to return to work, but was to avoid
excessive bending or lifting over 15 to 20 pounds. He recommended
further treatment, noting that a CT scan and epidural blocks would
be reasonable. T. 246.
Plaintiff next saw Dr. Dale on December 14, 2007, for follow
up

of

fibromyalgia,

anxiety,

depression,

and

elevated

blood

pressure. T. 255, 257. A physical examination was unremarkable. T.

7

255. Dr. Dale diagnosed Plaintiff with severe anxiety depressive
disorder aggravated by a Workmen’s Comp injury, and added that
Plaintiff had active fibromyalgia, some osteoarthritis in her
spine, and degenerative disc disease. T. 255. One month later,
Plaintiff showed difficulty rising from a chair and reported “some
good

days

and

some

bad

days.”

T.

254.

Dr.

Dale

assessed

exacerbation of spinal pain, probably due to a herniated disc, and
refilled Plaintiff’s prescription medications. Id.
Plaintiff saw Dr. Suddaby again for ongoing back pain on
January 29, 2008. Upon examination, Plaintiff had a moderate
restriction in her lumbar spine range of motion and tenderness of
the lumbar paraspinal muscles. An epidural nerve block, therapy, a
discogram, and a pain management physician were recommended. T.
292. Dr. Suddaby opined that Plaintiff was temporarily, totally
disabled. Id.
Plaintiff returned to Dr. Dale one month later, stating that
the epidural helped for a week and a half, and that her back felt
better. Her examination was unremarkable. Plaintiff was advised to
see Dr. Suddaby regarding another epidural. T. 253.
A physical examination by Dr. Suddaby on March 18, 2008, was
essentially unchanged. T. 291. A repeat epidural was recommended,
and Plaintiff’s disability status on that date was “temporary
total.” Id. She visited Dr. Suddaby again on June 12, August 14,
and November 20, 2008. During these visits, Plaintiff exhibited

8

moderate restrictions in the lumbar spine, and her condition
remained

unchanged.

Dr.

Suddaby

assessed

temporary,

total

disability, and continued to recommend pain management and home
exercises.

T.

237,

349,

432.

Plaintiff

told

Dr.

Suddaby

in

November, 2008, that she wanted to avoid surgery. T. 432. Though
Dr. Suddaby repeatedly advised Plaintiff to receive a discogram and
undergo physical therapy, Plaintiff did not follow-up on those
procedures. T. 185, 235, 238, 240, 244, 290, 294, 298.
Plaintiff continued to see her primary care physician Dr. Dale
between June 26, 2008 and October 21, 2009, during which time her
condition remained unchanged. T. 238, 353, 437, 438, 440, 442, 444,
446, 448. Plaintiff continued to complain of being unable to sit,
stand, or walk for any length of time. She moved stiffly upon
evaluation, although many of her examination results were normal,
and

she

exhibited

no

acute

distress.

Id.

Dr.

Dale

refilled

Plaintiff’s prescription medications, including Fentanyl patches
for

pain

relief.

T.

238.

Plaintiff

received

trigger

point

injections on November 11, 2008 for her back pain, and told Dr.
Dale that they helped somewhat. T. 351, 432.
Dr. Dale noted that as of January, 2009, Plaintiff’s pain was
controlled with medications and injections. However, Dr. Dale noted
concerns about Plaintiff “over-taking” her medication. T. 238, 353.
Due to Plaintiff’s need to change positions, Dr. Dale opined that
Plaintiff could not perform sedentary work, and had disabling back

9

pain. T. 438. Though her back condition was stable, it was not
improving. T. 440. Vocational rehabilitation was recommended. T.
442. By July 30, 2009, Plaintiff’s functional limitations remained
the same, and Dr. Dale opined that she was unable to work in any
setting. T. 444.
III. Non-Medical Evidence
Plaintiff was born in 1960 and had an 11th grade education. T.
47, 147. She lived at home with her husband. T. 186. Her last job
was at Tops Markets, where she worked as a meat clerk for 20 years.
That position required her to carry up to 80 pounds at a time. T.
42-43. When she stopped working on August 29, 2007, due to back and
body pain, she was unable to sit or stand for more than 30 minutes.
T. 43, 178. Plaintiff testified that Tops did not have any light
duty work available for her when she stopped working. T 43.
Beginning in August, 2007, she received Worker’s Compensation. T.
48.
Plaintiff

told

the

ALJ

that

she

was

unable

to

perform

housecleaning or grocery shopping, and that she would perform light
housekeeping and lay on a heating pad most of the day. T. 44, 48.
She took 8 or 9 medications, all of which made her drowsy. T. 4446. Her husband drove her to the hearing. T. 46. Though Dr. Suddaby
recommended surgery, Plaintiff felt she was too young and declined.
T. 47. Unless she took her medication, she was unable to get out of
bed. T. 48.

10

The ALJ also heard testimony from VE Alina Kurtanich, to whom
he posed a hypothetical regarding an individual of Plaintiff’s age,
work experience, and education, who could perform light work
the

following

limitations:

(1)

a

sit/stand

option

with

at

the

workstation; (2) never climbing ladders, ropes, or scaffolds; (3)
occasionally climbing ramps or stairs; (4) occasionally stooping,
kneeling, crouching, or crawling; and (5) avoiding concentrated
exposure to unprotected heights and heavy moving machinery. T.
49-50.

T.

The VE responded that such an individual could not perform

Plaintiff’s past work, but could perform work as a ticket taker or
garment sorter. T. 50.
The ALJ posed a second hypothetical that involved the same
facts with the exertional level reduced to sedentary. T. 50.

In

response, the VE stated that the jobs of surveillance system
monitor,

ticket

checker,

and

document

preparer

existed

in

significant numbers in the national economy. T. 50.
Finally, the VE testified that if the hypothetical individual
would be off-task for 20 percent of the workday due to medication
side effects, there would be no jobs available to that individual.
T. 51.

11

IV.

The Decision of the Commissioner that Plaintiff was not
disabled prior to October 5, 2010, is supported by substantial
evidence.
A.

Step Two Finding: Severity of Impairment

Plaintiff contends that the ALJ was incorrect in disputing her
alleged daignosis of fibromylagia and not finding it to be a severe
impairment. Gaughan Decl. 5.
For an impairment to be considered severe, it must more than
minimally limit the claimant's functional abilities, and it must be
more than a slight abnormality. 20 C.F.R. § 416.9249(c). It must
also be “medically determinable,” established through medically
acceptable

clinical

or

laboratory

diagnostic

techniques

demonstrating the existence of a medical impairment. Skiver v.
Colvin, No. 12–CV–899, 2014 WL 800228, *6 (W.D.N.Y. Feb.28, 2014);
42 U.S.C. § 423(d)(3). A physical or mental impairment must be
established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by the individual's statement of
symptoms. 20 C.F.R. § 416.908.
Here, the ALJ found that Plaintiff had the following severe
impairments: degenerative disc disease, hypertension, adjustment
disorder, and pain disorder. T. 26. In so finding, he noted that
there were no medical signs or laboratory findings to support a
conclusion that Dr. Dale’s diagnosis was a medically determinable
impairment under the regulations. Id. The ALJ further pointed out
that Plaintiff’s trigger points were not documented in the record,
12

no tenderness in the back was noted in her treatment notes from
2008 and 2009, and no clinical findings were present in the record
to support the diagnosis. Id.
The

Court

is

cognizant

that

rejecting

a

fibromyalgia-claimant's allegation of disability based in part on
a

perceived

lack

of

objective

evidence

has

been

held

to

be

reversible error. See Grenier v. Colvin, No. 13–cv–484, 2014 WL
3509832, at *3–4 (N.D.N.Y. July 14, 2014). Nonetheless, a “mere
diagnosis of fibromyalgia without a finding as to the severity of
symptoms and limitations does not mandate a finding of disability.”
Rivers

v.

Astrue,

280

Fed.

Appx.

20,

22

(2d

Cir.

2008).

Accordingly, the Commissioner has instructed that in cases of
chronic fatigue syndrome, a condition that, like fibromyalgia, is
based

largely

on

self-reported

symptoms,

“[p]ersistent,

reproducible muscle tenderness on repeated examinations, including
the presence of positive tender points” is an example of a medical
sign that establishes the existence of a medically determinable
impairment. Social Security Ruling (“SSR”) 99–2p, 1999 WL 271569
(1999).
The

ALJ

in

this

case

specifically

applied SSR

99-2p in

reaching his finding. The Court further notes that the absence of
the evidence mentioned above is especially significant here, where
the Plaintiff has substantial and thorough medical records from a
longstanding treating physician. To the contrary, the only evidence

13

in support of Plaintiff’s allegation appears to be Dr. Dale’s
passing references to an undated diagnosis of fibromyalgia in her
various treatment notes. T. 255, 260-62.
For these reasons the ALJ's finding at step two of the
sequential analysis was supported by substantial evidence.
B.

Treating Source Opinion

Plaintiff next contends that the ALJ failed to address the
opinions of her treating physicians that she was totally disabled.
Gaughan Decl. 3-4.
Under the Commissioner's regulations, a treating physician's
opinion is entitled to controlling weight, provided that it is
well-supported in the record:
If we find that a treating source's 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. § 416.927(d)(2); 20 C.F.R. § 404.1527(d)(2). However,
“[w]hen other substantial evidence in the record conflicts with the
treating physician's opinion ... that opinion will not be deemed
controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.” Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing 20 C.F.R. §
404.1527(d)(4)).

14

The

Court

controlling

adds

weight

that

to

a

the

Commissioner

treating

need

physician's

not

opinion

grant
to

the

ultimate issue of disability, as this decision lies exclusively
with the Commissioner. See 20 C.F.R. § 404.1527(d)(1); Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician's
statement

that

the

claimant

is

disabled

cannot

itself

be

determinative.”).
On the outset, Plaintiff’s contention that the ALJ “fail[ed]
to

address

the

reiteration

of

the

finding of

disability”

by

Plaintiff’s treating sources is belied by the decision. Gaughan
Decl. 3. ALJ Pang discussed the opinions from Plaintiff’s primary
sources, Dr. Dale and Dr. Suddaby, and specifically acknowledged
that each has “consistently” and “repeatedly” opined that Plaintiff
was completely or totally disabled. T. 30. He went on to state,
however, that those opinions were conclusory because they were not
a

function-by-function

limitations,

which

assessment

would

be

of

required

Plaintiff’s
for

a

abilities

or

determination

of

disability under the Act. Id. Further, the ALJ noted that these
physicians had an “extensive history” with Plaintiff, and in fact
agreed with their assessments to a certain extent. Their opinions
of whether Plaintiff was disabled was ultimately afforded “some,
very limited weight” by the ALJ. Id.
More importantly, the determination of whether an individual
is

disabled

is

unequivocally

15

a

matter

reserved

for

the

Commissioner. See Taylor v. Barnhart, 83 Fed.Appx. 347 at 349 (2d
Cir.2003)

(treating

physician's

opinion

that

claimant

is

“temporarily totally disabled” is entitled to no weight, because
the ultimate issue is reserved solely for the Commissioner) (citing
20

C.F.R.

§

404.1527(e)(1))

(unpublished

opinion).

The

ALJ

therefore did not err in affording those opinions “little” weight.
Moreover, the opinions of Drs. Dale and Suddaby on the issue
of

disability

were

rendered

in

the

context

of

Worker’s

Compensation, which invokes a different standard of disability than
the standard under the Act for social security purposes. See Rosado
v. Shalala, 868 F.Supp. 471, 473 (E.D.N.Y. 1994) (citing Coria v.
Heckler, 750 F.2d 245, 247 (3d Cir. 1984) (“[T]he standards which
regulate

workers'

requirements

which

compensation
govern

relief

the

award

are
of

different
disability

from

the

insurance

benefits under the Act. Accordingly, an opinion rendered for
purposes

of

workers'

compensation

is

not

binding

on

the

Secretary.”)); accord, Crowe v. Comm'r, No. 01–CV–1579, 2004 WL
1689758, at *3 (N.D.N.Y. July 20, 2004) (the ALJ was not required
to

adopt

a

treating

physician's

opinion

that

Plaintiff

was

“totally” disabled, in part, because the opinions were rendered in
the context of the plaintiff’s Worker’s Compensation claim).
Here, the ALJ applied the appropriate legal standards when he
considered the full record and properly evaluated Plaintiff's

16

treating source opinions. His determination was therefore based
upon substantial evidence.
C.

Plaintiff’s Credibility

Plaintiff also challenges the ALJ’s credibility determination
in her motion for judgment on the pleadings. Gaughan Decl. 6.
To establish disability, there must be more than subjective
complaints.

There

must

be

impairment,

demonstrable

an

underlying

by medically

physical

acceptable

or

mental

clinical

and

laboratory diagnostic techniques that could reasonably be expected
to produce the symptoms alleged. 20 C.F.R. § 416.929(b); accord
Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). When a
medically

determinable

impairment

exists,

objective

medical

evidence must be considered in determining whether disability
exists,

whenever

416.929(c)(2).

If

such

evidence

is

the

claimant's

available.

symptoms

20

suggest

C.F.R.
a

§

greater

restriction of function than can be demonstrated by objective
medical evidence alone, consideration is given to such factors as
the claimant's daily activities; the location, duration, frequency
and intensity of pain; precipitating and aggravating factors; the
type,

dosage,

effectiveness,

and

adverse

side-effects

of

medication; and any treatment or other measures used to relieve
pain. 20 C.F.R. § 416.929(c)(3); see SSR 96–7p, (July 2, 1996),
1996 WL 374186, at *7. It is well within the Commissioner's
discretion to evaluate the credibility of Plaintiff's testimony and

17

render an independent judgment in light of the medical findings and
other evidence regarding the true extent of symptomatology. Mimms
v. Sec’y, 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v. Shalala,
882 F.Supp. 1413, 1419 (S.D.N.Y. 1995).
“If the ALJ decides to reject subjective testimony concerning
pain

and

other

symptoms,

he

must

do

so

explicitly

and

with

sufficient specificity to enable the Court to decide whether there
are legitimate reasons for the ALJ's disbelief and whether his
determination is supported by substantial evidence.” Brandon v.
Bowen, 666 F.Supp. 604, 608 (S.D.N.Y. 1987) (citing, inter alia,
Valente v. Sec’y of HHS, 733 F.2d 1037, 1045 (2d Cir. 1984);
footnote omitted).
Here, the ALJ found that Plaintiff’s statements concerning the
intensity, persistence, and limiting effects of her symptoms were
not entirely credible to the extent they were inconsistent with the
residual functional capacity assessment. T. 28.
In addition to the objective medical and clinical findings,
which

did

not

complaints,

the

support
ALJ

the

extent

considered

prescription

medication

conservative

treatment

usage,
(as

of

Plaintiff’s

also

Plaintiff’s

her

preference

opposed

to

subjective
history
to

recommended

of

receive
surgical

intervention), and her failure to undergo physical therapy and to
schedule her approved discogram to further determine an appropriate
course of treatment. T. 29. He also viewed her strong work history

18

and limited daily activities as supporting her allegation that she
was no longer able to work. Id. The ALJ properly considered the
factors set forth at SSR 96-7p. Thus, despite using the frownedupon boilerplate language in his decision, the ALJ’s credibility
determination was nonetheless supported by substantial evidence.
See Diakogianis v. Astrue, 975 F.Supp.2d 299, 318–19 (W.D.N.Y.
2013) (determining the ALJ's credibility assessment was supported
by substantial evidence where the ALJ assessed the plaintiff's
subjective complaints “in the context of a comprehensive review of
the entire medical record,” despite the use of the boilerplate
language that the plaintiff's complaints were “inconsistent with
the above residual functional capacity”); Luther v. Colvin, No.
12–CV–6466, 2013 WL 3816540, at *7–8 (W.D.N.Y. July 22, 2013)
(finding ALJ properly assessed plaintiff's credibility despite
boilerplate language in opinion that plaintiff's alleged symptoms
were “inconsistent with the above residual functional capacity”);
Abdulsalam

v.

Comm'r,

No. 12–CV–1632,

2014 WL

420465,

at

*7

(N.D.N.Y. Feb. 4, 2014) (“this erroneous boilerplate language does
not merit remand if the ALJ offers specific reasons to disbelieve
the claimant's testimony”) (internal quotation omitted).
The

Court

therefore

finds

that

the

ALJ's

credibility

determination was proper as a matter of law and supported by
substantial evidence in the record.

19

D.

Step Five Finding: VE Testimony

Plaintiff challenges the ALJ's determination at step five on
the basis that the VE testified that jobs existed in the national
economy, but “fail[ed] to state the number of jobs available in the
Western New York economy.” Gaughan Decl. 2-3.
The controlling statutes and federal regulations suggest that
the proper focus generally must be on jobs in the national, not
regional, economy. In 42 U.S.C. § 423(d)(2)(A), for example,
Congress prescribed that “[a]n individual shall be determined to be
under a disability only if ... [he cannot] engage in any other kind
of substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area ....
‘[w]ork which exists in the national economy’ means work which
exists in significant numbers either in the region where such
individual
(emphasis

lives

or

in

added); see

several

also 20

regions
C.F.R.

§

of the

country.” Id.

416.966(c)

(“We

will

determine that you are not disabled if your residual functional
capacity and vocational abilities make it possible for you to do
work which exists in the national economy.”).
Likewise, district courts in this Circuit have held that a
purported failure in this regard does not warrant remand. See
Updike v. Colvin, No. 12–CV–6506, 2014 WL 2435613, *11–12 (W.D.N.Y.
May 30, 2014) (rejecting claimant's challenge to ALJ's step five
determination on the grounds that vocational expert provided only

20

national and statewide numbers; “a claimant's inability to obtain
such work, the unavailability of work in the claimant's local area,
or

the

unavailability

of job

openings,

among others,

do

not

constitute grounds for a disability finding”) (internal quotation
omitted); Colon v. Comm'r, No. 00-CV-0556, 2004 WL 1144059, *8
(N.D.N.Y. Mar. 22, 2004) (rejecting claimant's contention that
remand

was

warranted

because

vocational

expert's

testimony

established significant number of jobs in national economy, but
failed

to

establish

significant

jobs

in

regional

economy;

“[a]lthough [claimant] argues that those jobs are unavailable in
the regional economy, the truth of that assertion is irrelevant
because it fails to consider the proper legal standard”); Kemp v.
Comm'r, No. 10-CV-1244, 2011 WL 3876526, *13 (N.D.N.Y.) (ALJ
properly relied upon number of jobs in national economy at step
five where vocational expert provided testimony concerning number
of jobs in national economy and state of Connecticut where claimant
originally filed claim, despite absence of testimony concerning the
number of jobs in New York state where claimant had moved), report
and recommendation adopted, 2011 WL 3876419 (N.D.N.Y. Aug. 31,
2011).
Finally, the Court notes that no evidence has been proffered
at any stage of the proceedings to rebut the ALJ’s conclusion that
the jobs stated by the VE existed in significant numbers in the

21

national economy. The step five determination, therefore, was not
legally erroneous or unsupported by substantial evidence.
CONCLUSION
For

the

foregoing

reasons,

the

Comissioner’s

motion

for

judgment on the pleadings (Dkt.#25) is granted, and Plaintiff’s
cross-motion for judgment on the pleadings (Dkt.#27) is denied. The
ALJ’s finding that Plaintiff was not disabled prior to October 5,
2010 within the meaning of the Act is supported by substantial
evidence in the record, and accordingly, the Complaint is dismissed
in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
February 4, 2015

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