Gucinski v. Commissioner of Social Security

Filing 17

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 6 Plaintiff's Motion for Summary Judgment; granting 12 Commissioner's Motion for Judgment on the Pleadings; and dismissing the Complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/17/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PETER GUCINSKI,
Plaintiff,

12-CV-0276(MAT)
DECISION
and ORDER

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

Plaintiff Peter Gucinski (“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 his
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.##6, 12. Plaintiff alleges that the
decision of the Administrative Law Judge (“ALJ”) who heard his case
was erroneous because it was not supported by substantial evidence
contained in the record, or was legally deficient and therefore he
is entitled to judgment on the pleadings. Pl. Mem. (Dkt.#7) 3-13.

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.

The Commissioner cross-moves for judgment on the pleadings on the
grounds that the ALJ's decision was correct, was supported by
substantial evidence, and was made in accordance with applicable
law. Comm’r Mem. (Dkt.#13) 9-20.
BACKGROUND
On January 21, 2005, Plaintiff filed an application for DIB
alleging disability beginning in October, 2003, due to knee and
back conditions caused by a motor vehicle accident. T. 81, 336-58.2
Plaintiff’s application was initially denied, and a hearing was
requested. On April 17, 2008, ALJ Nancy Lee Gregg issued a written
decision finding that Plaintiff was not disabled. T. 12-31. In
July, 2008, the Appeals Council denied Plaintiff’s request for
review, and the ALJ’s determination became the Commissioner’s final
decision. T. 4-6, 7-11.
A civil action in this Court was filed on September 30, 2008
(08-cv-0726WMS). T. 382-86. By Stipulation and Order this Court
remanded Plaintiff’s claims back to the Commissioner for further
administrative proceedings pursuant to 42 U.S.C. §405(g). Gucinski
v. Astrue, 08-cv-0726WMS, Dkt.##6, 8. On May 4, 2009, the Appeals
Council effectuated the Court’s order. T. 382-86.
Following the remand, a hearing was held on April 9, 2010,
wherein Plaintiff appeared with his attorney before ALJ Gregg.

2

Numerals preceded by “T.” refer to pages from the transcript of
the administrative record, submitted by Commissioner as a separately
bound exhibit in this proceeding.

-Page 2-

Vocational

Expert

(“VE”)

Timothy

P.

Janikowski,

Ph.D.,

also

testified. T. 530-33.
In applying the 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 that Plaintiff engaged in substantial gainful
activity from June to September, 2006, and continuously since
January 1, 2007. T. 342. Plaintiff’s counsel requested a closed
period of disability with a trial work period beginning April 7,
2006, through February 1, 2007.3 The ALJ proceeded through the
sequential evaluation process to determine whether Plaintiff was
disabled and entitled to a trial work period. T. 342.
The

ALJ

found

that

Plaintiff

had

the

following

severe

impairments: mild degenerative changes and compression deformity
(possibly old) at T8 and T9 (or D8/D9); disc degeneration with
minimal

annular

bulge

but

no

disc

herniation

at

L3-4;

disc

dessication from T7-8 to T11-12 with slight annular bulging at each
level and degenerative changes with Schmorl’s nodes within the
endplates, but no disc herniation or nerve root or spinal cord
compression; and degenerative changes of both knees, with an

3

Starting October 28, 2003, Plaintiff was unable to perform any
work due to the nature and severity of his injuries and impairments.
T. 349. The period from October 28, 2003, to May 11, 2004, during
which Plaintiff could not work, did not last for the required
durational period.

-Page 3-

antierior cruciate ligament (“ACL”) tear of the left knee. T. 342.
Plaintiff also had a fracture of the left fifth and sixth anterior
ribs;

pulmonary

contusion/atelectasis

and

small

subcutaneous

emphysema along the left lateral chest wall; a Grade II liver
laceration

and

Grade

I

edema/small

pneumothorax;

splenic
all

of

laceration;
which

were

and
severe

pulmonary
but

non-

durational. T. 342-43. The ALJ further found that Plaintiff had the
non-severe impairments of small disc protrusions at C3-4 and C4-5
and fatty infiltration of the liver. T. 343.
At step three, the ALJ found that Plaintiff’s impairments did
not meet or equal the requirements of the Listings set forth at
20 C.F.R. Part 404, Subpart P, Appx. 1. T. 23-24. Because Plaintiff
could not be found disabled at the third step, the ALJ proceeded to
determine that Plaintiff retained the residual functional capacity
(“RFC”) by May 11, 2004 to lift, carry, push, and pull up to
20 pounds occasionally and 10 pounds frequently; sit for 6 hours
total in an 8-hour workday with normal breaks; and stand and/or
walk intermittently for 2 hours total in an 8-hour workday with
normal breaks. He could frequently balance and occasionally climb
and descend stairs and stoop, but could not kneel, crouch, or
crawl. T. 349. By May 11, 2004, Plaintiff was

was capable of

performing other jobs that existed in significant numbers including
cashier, bench assembler, and office helper. T. 357.

-Page 4-

By November 30, 2004, Plaintiff could stand and/or walk for
6 hours with normal breaks; occasionally stoop, kneel, crouch, and
crawl; lift, carry, push, and pull up to 20 pounds occasionally and
10 pounds frequently; sit for about 6 hours total with normal
breaks; frequently balance; and occasionally climb and descend
stairs. T. 349. As of this date his impairments had improved, thus
increasing

the

number

of

jobs

available

to

him,

including

additional cashier jobs, packing line worker, cleaner/housekeeper,
and information clerk. T. 358.
On May 28, 2010, the ALJ issued a written decision finding
that during the period from May 11, 2004 through January 31, 2007,
Plaintiff was capable of making a successful adjustment to other
work that existed in significant numbers in the national economy.
T. 358.
Plaintiff requested that the Appeals Council review the ALJ’s
decision. T. 330-32. Nearly two years later, the Appeals Council
declined to assume jurisdiction on February 6, 2012, and the ALJ’s
determination

became

the

final

decision

of

the

Commissioner.

T. 327-29, 330-32. This timely action followed. Dkt.#1.
For the following reasons, Plaintiff’s motion is denied, and
the Commissioner’s cross-motion is granted.

-Page 5-

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

-Page 6-

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.

Hospitalization

Plaintiff was hospitalized from October 28 through November 5,
2003, due to injuries suffered in a motor vehicle accident. T. 13381.

An

examining

physician

observed

left

pelvis

contusions;

laceration of the scalp, left leg, and spleen; multiple left rib
fractures; and abrasions of the abdomen and thorax. T. 133-34, 145.
CT scans of Plaintiff’s pelvis, abdomen, and cervical spine showed

-Page 7-

lacerations of the liver and spleen; multiple left rib fractures;
small pneumothoraces, bilaterally; small subcutaneous emphysema
along the left lateral chest wall; probable pulmonary contusion of
the left base; and small posterior and central disc protrusions at
the C3-C4 and C4-C5 levels. T. 147-48. X-rays of the thoracic spine
revealed

mild

degenerative

changes

along

with

compression

deformities at the D8 and D9 vertebral bodies. T. 149. An x-ray of
the left knee revealed osteoarthritic changes along the medial
aspect and a loose bony body within the knee. T. 150. X-rays of the
lumbrosacral spine, pelvis, left femur, left tibia, and left fibula
were unremarkable. T. 150-51. Chest x-rays taken throughout the
course

of

Plaintiff’s

hospitalization

revealed

bibasilar

atelectatic changes about the left lower lobe, and a possible
pulmonary edema as well as a mild left pleural effusion that
decreased

during

hospitalization.

T.

136-146.

The

discharge

diagnosis was stable liver and spleen lacerations; multiple rib
fractures;

compression

fracture

at

the

T8-T9

level;

head

laceration; and bilateral subjunctival hemorrhage. T. 134.
B.

Treating Physicians

Surgeon Dr. William Flynn treated Plaintiff from November,
2003, to February, 2004. During that time, Dr. Flynn assessed that
Plaintiff was disabled through March 11, 2004, due to his injuries.
T. 129, 131-32. A CT scan of Plaintiff’s abdomen and pelvis, taken
on February 5, 2004, revealed primarily healed rib fractures, a

-Page 8-

completely healed liver and spleen, and unremarkable pancreas and
kidneys. T. 130.
Orthopedic surgeon Dr. Anthony Leone treated Plaintiff from
February, 2004 to April, 2005 for complaints of back pain. T. 20817. In February, 2004, Plaintiff’s gait, muscle strength, range of
motion, reflexes, and sensations were normal, with a negative
straight leg raise. T. 217. MRIs of Plaintiff’s thoracic spine and
lumbar spine taken on March 11, 2004, revealed a disc desiccation
from T7-T8 through T11-T12 with slight bulging in the posterior
annulus and no herniation; and L3-L4 disc desiccation with minimal
circumferential annular bulge and no herniation, respectively.
T. 162-63. On February 11, 2005, Dr. Leone assessed that Plaintiff
had mild-to-moderate partial disability with respect to his lumbar
spine and was totally disabled from performing his usual job.
T. 209. The physician further noted that despite a recommendation
for physical therapy for his back, Plaintiff did not attend because
he did not have time due to a new baby. Id. By April, 2005,
Dr. Leone noted that while physical therapy was not helping to
alleviate the reported symptoms, Plaintiff had no lower extremity
or radicular symptoms, and no numbness, tingling, dysesthesias,
paresthesias, or weakness. He stated that Plaintiff was not a
surgical candidate and had no further recommendations. T. 208.
Dr. Anthony Caruso, a chiropractor, treated Plaintiff for
complaints of mid and lower back pain from March to July, 2004.

-Page 9-

T. 164-80. Upon examination, Plaintiff reported pain upon range of
motion and moderate-to-severe spasms and tenderness of the thoracic
and lumbar spine. T. 180. Straight leg raising was positive at
60 degrees in the supine position. Id. On spinal evaluation,
Dr. Caruso noted fixations at the bilateral sacroiliac joints and
the L3, L4, L5, T4, T5, T6, T8, T9, T11, and T12 discs. Id.
Dr. Caruso diagnosed thoracic spine and lumbar spine sprain/strain
complicated by intersegmental dysfunctions. Id.
Plaintiff saw Dr. Joseph Buran, an orthopedic surgeon, from
April to November, 2004 for complaints of left knee pain. T. 189204. Dr. Buran assessed a torn ACL. T. 201-02, 204. X-rays of
Plaintiff’s knees taken on May 27, 2004, revealed moderate bony
degenerative changes in the left knee, and minimal-to-moderate bony
degenerative changes in the right knee. T. 200. ACL surgery was
performed on Plaintiff’s left knee on July 28, 2004. T. 189-90. One
month

later,

disabled.

T.

Dr.
193.

Buran
In

assessed

November,

that
2004,

Plaintiff
Dr.

Buran

was

totally

noted

that

Plaintiff’s left knee was stable and doing well with no buckling or
swelling. T. 191.
Internist Dr. Robert Cotsen examined Plaintiff on December 15,
2004 for complaints of back pain, and observed that Plaintiff
appeared

healthy

with

normal

gait.

Motor

examination

was

symmetrical, reflexes and sensations were normal, and straight leg
raising tests were negative. T. 295. Plaintiff exhibited a limited

-Page 10-

range of motion and some tenderness in his thoracic spine and
lumbar spine, and his left knee exhibited a limited range of motion
with no tenderness. Dr. Cotsen assessed compression fracture of T8
and T9; thoracic sprain/strain; post-surgical repair of the left
ACL; osteoartritis of the left knee; pleural scarring of the left
hemithorax secondary to previous pneumothorax and contusion of the
lung; and healed lacerations of the scalp, and anterior left leg.
T. 296. He opined that Plaintiff’s back pain would not improve but
his left knee pain may improve, and concluded that Plaintiff could
not return to his prior work as a deliveryman but may be able to
perform a part-time sedentary job that allowed him to get up and
move around. Id.
An

abdominal

ultrasound

taken

October

27,

2005,

was

unremarkable but for the suggestion of an underlying diffuse fatty
infiltration of the liver. T. 242. An x-ray of Plaintiff’s right
knee taken on May 24, 2006, was unremarkable. T. 239.
C.

Consultative Examinations

Dr.

Stephen

Joyce

conducted

an

independent

orthopedic

examination at the request of the Worker’s Compensation Board on
March 22, 2005. T. 205-07. Plaintiff reported that his left knee
was “a lot better,” that he could handle stairs well, had no
difficulty walking, and had no swelling. He complained of lower
back

pain

exacerbated

by

prolonged

sitting

or

standing.

Dr. Joyce assessed a moderate partial disability. T. 207.

-Page 11-

Id.

Consultative physician Fenwei Meng, M.D., examined Plaintiff
in June, 2005, and assessed mild limitations in heavy lifting,
walking, standing, running, and walking up and down stairs; and
moderate limitations in bending, extension, and twisting. T. 22728. Plaintiff’s physical examination yielded normal results, with
the exception of 90-degree flexion extension of the left knee and
muscle strength and grade 5-/5 in the left leg. T. 227. Plaintiff
reported that he cooked, cleaned, did laundry, showered, dressed
himself, and took care of his infant child. T. 226. Plaintiff was
diagnosed with back pain with spinal compression fracture; left
knee status-post torn ligament; and status-post motor vehicle
accident with lacerations. T. 227.
III. Non-Medical Evidence
Plaintiff is a high school graduate who was 41 years old at
the close of his requested period of disability. T. 78, 86. His
past work experience included employment as a security guard and
delivery truck driver. T. 82, 465.
In January 12, 2006, Plaintiff self-reported the intensity of
his back condition as moderate. T. 265. He stated that he could
neither sit nor stand for more than one hour without difficulty,
had difficulty walking for more than one mile at a time, and could
not lift heavy weights off of the floor, but could manage light-tomedium weights if they were placed on a table. Id. He could not
perform his usual work, but his social life was not significantly

-Page 12-

affected. Id. Plaintiff rated the intensity of his neck condition
as very mild, which caused slight difficulty with reading and
concentration as well as moderate problems with driving. T. 264. He
could engage in most, but not all of his usual recreational
activities and had slight, but infrequent headaches. Id.
Three

months

later,

Plaintiff

again

self-reported

the

intensity of his back condition as moderate. T. 261. He stated that
he could neither sit nor stand for more than thirty minutes
continuously without difficulty, had some difficulty walking, which
did not increase with distance. He reported no problems with
personal care, but could not lift heavy weights from the floor. His
social life was not significantly affected and his condition was
slowly improving. Id.
From May to October, 2006, Plaintiff was seasonally employed
at Darien Lake Theme Park as a patrolman. T. 427-30. Plaintiff then
worked at PCB Piezotronics, Inc., for the month of January, 2007,
before resigning. From February, 2007, to the time of the ALJ’s
post-remand decision, Plaintiff was employed full-time as a New
York State corrections officer. T. 441-47.
At

the

disability

hearing

in

November,

2007,

Plaintiff

testified that he was disabled due to injuries sustained in his
October, 2003 car accident. T. 305, 315. He stated that he was able
to walk within two or three months of the accident. T. 316.
Plaintiff claimed that he experienced severe back pain, ranging, on

-Page 13-

a scale of 10, from 6 out of 10 to 9 out of 10 for one year
following the accident. T. 316-17. He experienced exacerbations of
his back pain about three to four times per week, at which times he
took medication and laid on the floor for 1.5 to 2 hours at a time.
T. 317.
Plaintiff underwent left knee surgery in July, 2004, and
thereafter walked with a limp and was unable to walk on uneven
terrain for about three months. T. 318.
Plaintiff testified that prior to April, 2006, he was unable
to stand and sit for long periods of time and occasionally needed
to lay down. T. 322. Although his back pain did not completely
subside, he was able to return to full-time work in April, 2006.
T. 318-19, 320-22. From the date of the accident until he returned
to work, Plaintiff alleged that he was incapable of performing
household chores, could hardly lift anything, and could barely get
out of bed on occasion. T. 320.
Following remand, the ALJ heard testimony from VE Timothy
Janikowski on April 9, 2010. She asked the VE to consider a
hypothetical individual of Plaintiff’s age, educational background,
and

work

experience

with

the

following

limitations:

lifting/carrying 20 pounds occasionally and 10 pounds frequently;
sitting for about 6 hours and standing and/or walking for about
2 hours intermittently with normal breaks; frequently balance;
occasionally climb, descend stairs, and stoop; and no crouching,

-Page 14-

kneeling, or crawling. T. 530. The VE responded that such an
individual could perform the jobs of cashier, bench assembler, and
office helper.
IV.

The Decision of the Commissioner that Plaintiff was not
disabled is supported by substantial evidence.
A.

Findings at Steps Four and Five

Plaintiff first contends that the ALJ erred in her findings at
steps four and five of the sequential analysis because the period
of April 7, 2006 through February 1, 2007 should have been regarded
as a trial work period. Pl. Mem. 5-7.
A trial work period is defined in the regulations as “a period
during which [the DIB applicant] may test [his] ability to work and
still be considered disabled.” 20 C.F.R. § 404.1592(a). The period
may last up to nine months, and the months do not necessarily have
to be consecutive. Id. “The trial work period begins with the month
in which [the applicant] become[s] entitled to disability insurance
benefits...” 20 C.F.R. § 404.1592(e).
In the instant case, a finding that Plaintiff's 2006-07 work
activity was a trial work period could not have been made because
there had been no determination that plaintiff became entitled to
DIB in April of 2006, the month in which he began to work.

A DIB

applicant must be disabled in the first instance to qualify for a
trial work period. See 20 C.F.R. 404.1592(d)(1) (“You are generally
entitled to a trial work period if you are entitled to disability
insurance benefits ...”); Miller v. Astrue, 538 F.Supp.2d 641, 653
-Page 15-

(S.D.N.Y. 2008). Because the ALJ's determination that plaintiff was
not entitled to disability benefits in April 2006 is supported by
substantial evidence,4 the determination that plaintiff is not
entitled to a trial work period is also supported by substantial
evidence.
Second, Plaintiff challenges the ALJ’s RFC determination with
regard to her assessment of Plaintiff’s exertional limits. Pl.
Mem. 5-7.
Here, the ALJ determined at steps two and three that Plaintiff
had severe impairments that did not meet the levels required by the
Listings. T. 342-49. She then went on to find that from October 28,
2003 to May 10, 2004, Plaintiff was unable to perform any work due
to his injuries and impairments. He was not, however, entitled to
DIB during this time since the time period did not satisfy the
12-month durational requirement of the Act. See 32 U.S.C. § 423(d)
(entitlement to DIB requires claimant to demonstrate disability for
a period of at least 12 months).
The ALJ then properly determined that, as of May 11, 2004,
Plaintiff retained the RFC to perform a range of light exertional
work. T. 349. She based her RFC determination on the evidence from

4

The ALJ determined that Plaintiff engaged in substantial
gainful activity in June, July, August, and September, 2006, during
which he earned in excess of $870.00. T. 342, 430. See 20 C.F.R.
§ 404.1574(b)(2)(ii)(B). Moreover, the ALJ found that Plaintiff’s work
at Darien Lake Theme Park was not an unsuccessful work attempt since
it ended due to seasonal closure rather than Plaintiff’s impairment.
T. 342. See 20 C.F.R. § 404.1574.

-Page 16-

Dr. Meng, a consultative examiner, and Drs. Leone and Cotsen,
Plaintiff’s treating physicians,5 who observed that Plaintiff’s
physical examinations and test results were largely normal with
mild

to

moderate

limitations.

T.

204,

217,

227,

350-53.

Specifically, Dr. Meng noted a 90-degree flexion extension of the
left knee and muscle strength at grade 5-/5 in the left leg,
resulting in a finding of mild limitations in heavy lifting,
walking,

standing,

running,

walking

up

and

down

stairs;

and

moderate limitations in bending, extension, and twisting. T. 22728. Likewise, Dr. Leone observed that Plaintiff had normal gait,
full muscle strength, full range of motion, and normal reflexes.
T. 355. Dr. Cotsen also noted that Plaintiff’s gait was normal and
his motor functions and deep tendon reflexes were symmetrical, and
stated that the Plaintiff appeared healthy. Id. The ALJ also
considered objective imaging tests, in particular an x-ray of
Plaintiff’s right knee taken in May, 2006, which was negative.
T. 355. Finally, she evaluated Plaintiff’s own statements and
alleged functional limitations in determining his RFC. T. 349-52.
In determining a claimant’s RFC, the ALJ must consider “all
relevant medical and other evidence,” including objective medical
evidence, such as x-rays and MRIs; the opinions of treating and
consultative physicians; and statements by the claimant and others

5

The ALJ also considered the opinion of treating physician
Dr. Buran, but rejected his opinion on the issue of disability for
reasons discussed in further detail below. See Discussion at IV.B.

-Page 17-

concerning

the

claimant's

impairments,

symptoms,

physical

limitations, and difficulty performing daily activities. Genier v.
Astrue,

606

F.3d

46,

49

(2d

Cir.

2010);

(citing

20

C.F.R.

§ 404.1545(a)(3)); see also 20 C.F.R. §§ 404.1512(b), 404.1528,
404.1529(a), 404.1545(b). In this case, I find that the ALJ applied
the proper standard for determining the Plaintiff’s RFD, and that
her determination is supported by substantial evidence.
Third,

Plaintiff

contends

that

the

ALJ’s

credibility

determination of Plaintiff was incorrect. Pl. Mem. 5.
To establish disability, there must be more than subjective
complaints.

There

must

impairment,

demonstrable

be

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

such

evidence

is

available.

20

C.F.R.

§ 416.929(c)(2). If the claimant's symptoms suggest 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

-Page 18-

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. Thus, it is well within the Commissioner's
discretion to evaluate the credibility of Plaintiff's testimony and
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).
After evaluating the evidence, the ALJ found that Plaintiff’s
allegations regarding his functional limitations were not entirely
credible.

T.

352.

She

pointed

out

Plaintiff’s

inconsistent

statements regarding his capabilities, such as performing household
chores, lifting objects, and performing self-care and child care.
T. 352-53. She evaluated the objective medical evidence, including
x-rays, CT scans, and MRIs, most of which were unremarkable or
otherwise revealed minor abnormalities. She also considered the
opinions of Plaintiff’s treating physicians, as well as Plaintiff’s
medications

and

course

of

treatment,

noting

that

Plaintiff

ultimately stopped taking pain medication altogether. T. 352, 35455.

Accordingly,

the

ALJ

properly

evaluated

Plaintiff’s

credibility, see 20 C.F.R. § 416.929(c)(3), and her assessment was
supported by substantial evidence.
Fourth, Plaintiff avers that since the ALJ’s hypothetical to
the

vocational

expert

did

not

include

-Page 19-

each

of

his

alleged

limitations, it was incomplete and therefore the VE’s opinion
cannot constitute substantial evidence. Pl. Mem. 7-12.
At step five, the burden is on the Commissioner to prove that
“there is other gainful work in the national economy which the
claimant could perform.” Balsamo v. Chater, 142 F.3d 75 (2d Cir.
1998). The ALJ may properly rely on an outside expert, but there
must be “substantial record evidence to support the assumption upon
which the vocational expert based his opinion.” Dumas v. Schweiker,
712 F.2d 1545, 1554 (2d Cir. 1983). The ALJ is entitled to rely on
the vocational expert's testimony that Plaintiff could perform
other jobs that exist in significant numbers in the national
economy. 20 C.F.R. § 404.1560(b)(2).
For the opinion of a VE to constitute substantial evidence,
the hypothetical questions posed to the VE must include all of the
claimant's limitations that are supported by medical evidence in
the record. See Aubeuf v. Schweiker, 649 F.2d 107, 114 (2d Cir.
1981) (a “vocational expert's testimony is only useful if it
addresses whether the particular claimant, with his limitations and
capabilities, can realistically perform a particular job”); see
also Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002) (“A
hypothetical question posed to a vocational expert must reflect all
of a claimant's impairments....”) (internal citations and quotation
marks omitted).

-Page 20-

After

finding

that

Plaintiff’s

RFC

precluded

him

from

performing any of his past relevant work, the ALJ proceeded to the
fifth and final step of the sequential analysis and determined that
Plaintiff was not disabled since he retained the RFC to perform
work which existed in significant numbers in the national economy.
T. 355-57. Specifically she found that Plaintiff retained the RFC
to

perform

light

work,

lifting/carrying/pushing/pulling

20

which
pounds

included

occasionally

and

10 pounds frequently. During the course of an 8-hour workday,
Plaintiff could sit for about 6 hours and stand and/or walk for
3 hours. He could frequently balance as well as occasionally
climb/descend stairs and stoop, but could not kneel, crouch, or
crawl. T. 349. Plaintiff had a high school education and was a
younger

individual

at

the

close

of

his

requested

period

of

disability. The transferability of job skills was not an issue
since the Medical-Vocational Guidelines (“the Grids”) directed a
conclusion of “not disabled” for a claimant with Plaintiff’s
vocational factors and RFC, regardless of transferability of job
skills. T. 356. See 20 C.F.R. Part 404, Subpart P, Appx. 2,
Rules 201.28-29, 202.21-22; 20 C.F.R. § 404.1565. To determine the
extent of erosion of the unskilled light occupational base caused
by non-exertional limitations, the ALJ asked the VE whether jobs
existed in the national economy for an individual of Plaintiff’s
age with his level of education, past relevant work, and RFC. The

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VE testified that the individual would be capable of performing the
occupations of cashier, bench assembler, and office helper. T. 53132.
Contrary to Plaintiff’s assertion, “[t]he ALJ is not required
to submit to the vocational expert every limitation alleged by the
claimant,

but must

only

convey

all

of

a

claimant's

credibly

established limitations.” Collins v. Comm’r, No. 13-CV-0412, 2014
WL 4167012, at *14 (N.D.N.Y. Aug. 20, 2014). The ALJ’s hypothetical
properly

included

each

of

Plaintiff’s

credibly

established

limitations and mirrored his RFC which, as previously discussed, is
supported by substantial evidence. See Dumas, 712 F.2d at 1553-54.
For all of these reasons, the Court finds that the ALJ's
determinations at steps four and five were supported by substantial
evidence.
B.

Treating Source Evidence

Plaintiff also argues that under the proper application of the
“treating

physician rule,”

a

finding

that

he

is

disabled

is

warranted for a closed period and a trial work period. Pl. Mem. 13.
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
record.” 20 C .F.R. § 404.1527(c)(2); see also Rosa v. Callahan,
168 F.3d 72, 78–79 (2d Cir. 1999); Schisler v. Sullivan, 3 F.3d

-Page 22-

563, 567 (2d Cir. 1993). An ALJ may refuse to consider the treating
physician's opinion only if he is able to set forth good reason for
doing so. Saxon v. Astrue, 781 F.Supp.2d 92, 102 (N.D.N.Y. 2011).
The less consistent an opinion is with the record as a whole, the
less weight it is to be given. Otts v. Comm'r, 249 Fed. Appx. 887,
889 (2d Cir. 2007) (an ALJ may reject such an opinion of a treating
physician

“upon

the

identification

of

good

reasons,

such

as

substantial contradictory evidence in the record”).“While the final
responsibility

for

deciding

issues

relating

to

disability

is

reserved to the Commissioner, the ALJ must still give controlling
weight to a treating physician's opinion on the nature and severity
of a plaintiff's impairment when the opinion is not inconsistent
with substantial evidence.” Martin v. Astrue, 337 Fed. Appx. 87, 89
(2d Cir. 2009).
ALJ Gregg did consider the opinions of Plaintiff’s treating
physicians Drs. Flynn and Buran, whose diagnoses and treatment
patterns were largely consistent with one another and with the
objective medical evidence. T. 354. She did, however, reject their
conclusions that Plaintiff was disabled. T. 353. Citing to SSR 965p, 1996 WL 374183, at *5, she reasoned that the opinion on the
ultimate issue of disability is reserved to the Commissioner and
thus did not afford the opinions “any significant weight.” Id. The
ALJ did not err in rejecting these opinions, see Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (a treating physician's statement

-Page 23-

that

claimant

seeking

social

security

disability

benefits

is

disabled cannot itself be determinative on that issue.), and
provided the requisite “good reasons” for doing so. See Otts,
supra.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on
the pleadings (Dkt.#6) is denied, and the Commissioner's crossmotion for judgment on the pleadings (Dkt.#12) is granted. 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
September 17, 2014

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