Ball v. Astrue

Filing 19

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; 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 9/9/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LINDA L. BALL,
Plaintiff,

12-CV-303(MAT)
DECISION
and ORDER

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

INTRODUCTION
Plaintiff Linda L. Ball (“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
applications

for

Supplemental

Security

Income

(“SSI”)

and

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. ##8, 12.

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.

BACKGROUND
On April 8, 1996, Plaintiff filed applications for SSI and DIB
alleging disability beginning on January 2, 1996. T. 106-18.2 Her
claim was denied initially, and then on reconsideration. T. 78-9.
A hearing was held on January 13, 1998, after which an unfavorable
decision was issued dated October 27, 1998. A request for review
was filed with the Appeals Council, which was denied on January 22,
2002. A civil action in this Court was filed on February 4, 2002
(02-CV-097JTE). T. 248-300. Former District Judge John T. Elfvin
reversed the decision of the Commissioner and remanded the matter
for further proceedings on the basis that determination of the
Administrative Law Judge (“ALJ”) was not supported by substantial
evidence. T. 296-300. The Court directed that further consideration
be made of the impact of Plaintiff’s nonexertional limitations.
T. 300.
Upon remand, Plaintiff appeared and testified at two hearings
dated October 10, and November 16, 2007. T. 890-928, 929-49.
Plaintiff’s applications were amended to allege a closed period of
disability from January 1, 1996, to June 20, 2000. T. 895-96. ALJ
Nancy Lee Gregg issued a decision dated December 11, 2008, finding
that Plaintiff was not disabled. T. 227-46.

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-

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 that Plaintiff had not engaged in substantial
gainful activity from January 2, 1996, through June 20, 2000, the
day Plaintiff returned to work. T. 232. Plaintiff had the following
severe impairments: hypothyroidism, gastroesophagel reflux disease
(“GERD”), sliding hiatal hernia, hypertension, some degree of
myofascial pain, vitamin B-12 deficiency, headaches, sinusitis, and
depression. T. 233. 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. Pt. 404, Subpart P, Appendix 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”) to lift, carry, push, and pull up to
20 pounds occassionally and 10 pounds frequently; sit for 2 hours
at a time and 8 hours total with normal breaks; and stand/walk for
about 6 hours total with normal breaks in an 8-hour workday.
T. 235. She further found that Plaintiff should avoid climbing
ladders or scaffolds and working at unprotected heights; and avoid
prolonged concentrated exposure to pollens, excessive dust, fumes,
odors, gases. Id. Plaintiff was unable to perform her past relevant
work as a licensed practical nurse (“LPN”) because the requirements

-Page 3-

of that job exceeded her RFC. T. 242-43. Relying on the MedicalVocational Guidelines and the testimony of a Vocational Expert
(“VE”), the ALJ found that Plaintiff could perform work in the
national economy, and concluded that Plaintiff was not disabled.
T. 243-46.3
Plaintiff filed Exceptions to the ALJ’s Unfavorable Decision
with the Appeals Council on January 13, 2009. T. 221-23. Three
years later, by notice dated February 14, 2012, the Appeals Council
declined jurisdiction. Dkt. #1, Ex. B. Plaintiff then commenced the
instant civil action. Dkt. #1.
In the present motion, Plaintiff alleges that the decision of
the ALJ is erroneous and not supported by substantial evidence on
the grounds that: (1) The ALJ erred when she found Plaintiff’s
alleged

cognitive

disorder

to

be

a

non-severe

impairment;

(2) Plaintiff’s mental RFC finding is not supported by substantial
evidence; (3) the ALJ applied the improper standard in assessing
Plaintiff’s credibility; and (4) the VE testimony did not provide
substantial evidence to support the denial of benefits. Pl. Mem.
(Dkt. #8-1) 8-16. The Commissioner cross-moves for judgment on the
pleadings on grounds that the ALJ’s decision is correct and is
supported by substantial evidence. Comm’r Mem. (Dkt. #13) 17-25.

3

For purposes of the Act, disability is the “inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).

-Page 4-

For the following reasons, Plaintiff’s motion is denied, and
the Commissioner’s cross-motion is granted.
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,

-Page 5-

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
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 consultative organicity evaluation was administered by David

S. Donofrio, Ph.D., on August 13, 1996, during which Plaintiff
reported issues with memory and confusion that had been linked to
Epstein-Barr virus and chronic fatigue syndrome. T. 199-204. She
further reported that during her job as an LPN, she began making

-Page 6-

mistakes at the hospital, falling asleep, not making nursing notes,
and

administering

Dr.

Donofrio

the

noted

wrong

medication

regression

in

to

patients.

Plaintiff’s

verbal

T.

200.

ability,

confusion, and loss of focus and concentration during testing.
T. 201-03. Plaintiff could not sustain effort consistently with
regard to her cogitative functioning, and she had become somewhat
dependant on family and friends. T. 203. Nonetheless, Plaintiff
could still take care of her children, do most chores, and perform
self-care. Id. Dr. Donofrio concluded that Plaintiff “could be
diagnosed with a cognitive disorder, not otherwise specified,” and
that he could not confirm Epstein-Barr, chronic fatigue, or other
medical issues, but that he could see a cognitive deterioration in
Plaintiff’s verbal ability. T. 203.
State Agency psychiatrist Kelly Chun, M.D., reviewed the
record,

including

Psychiatric
Dr.

Chun

Review

noted

Dr.

Donofrio’s

Technique

Plaintiff’s

form.
history

report,
T.
of

and

146-58,
chronic

completed
212.

a

Therein,

fatigue

and

fibromyalgia, and opined that she had slight restrictions in
activities of daily living and social functioning, no episodes of
decompensation,

and

often

had

deficiencies

of

concentration,

persistence, or pace. T. 153.
Plaintiff underwent a consultative examination by Arun Patel,
M.D. on October 9, 1996. T. 205-08. She reported good health until
February,

1995,

when

she

began

experience

-Page 7-

cold

and

flu-like

symptoms. T. 205. Hip and back pain followed, as well as fatigue,
numbness in the left side of her face, arms, and legs, ongoing sore
throat, persistent

nausea,

vomiting,

and

diarrhea,

stiffness,

muscle spasms in her back, weakness/numbness in her legs, and
recurrent headaches over the course of a year and a half. T. 206.
Dr. Patel could not determine any specific disorder to explain
Plaintiff’s symptoms. T. 208.
Treatment records from the offices of Patrick Collins, M.D.,
and Michael Murray, M.D., dates November 25, 1996 indicate that
Plaintiff reported persistent fatigue for the past year. T. 459.
Those notes indicate that Plaintiff sought a second opinion from
Dr. Wilkinson,4 who told her she had immune deficiency, chronic
fatigue,

and

fibromyalgia,

and

prescribed

B-12

injections,

supplements, Paxil, Robaxin, and Synthroid. Id. Plaintiff stated
that she took frequent names and sometimes slept up to 12 hours at
a time. Id. She had been unable to work due to difficulties
concentrating and forgetfulness at her job. Id.
The following year, Plaintiff commenced treatment with Joseph
A. DiChiara, M.D.5 She reported a history of fibromyalgia, GERD,
Epistein-Barr, chronic fatigue, sinusitis, and hypothyroidism.
T. 217. Treatment notes indicate that Plaintiff exhibited no tender

4

As of the date of Plaintiff’s first supplemental hearing, Dr.
Wilkinson had lost his license to practice medicine. T. 923.
5

Dr. DiChiara surrendered his medical license on October 9,
1998. T. 866-76.

-Page 8-

points that elicited pain during testing, no diminished strength,
and fairly good blood pressure. Id. Dr. DiChiara recommended
additional testing and requested Plaintiff’s past medical records
in order to determine future treatment. Id.6
In 1999, Plaintiff again sought treatment with Drs. Collins
and Murray. On January 12, Plaintiff’s assessment was dysphagia,
hair loss after pregnancy, hypothyroidism, reflux, and eczema.
T. 457.

Progress records from January 1999 to June 2000 indicate

many of the same complaints previously noted and an assessment of
sinusitus, migraine headaches, fibromyalgia, hypothyroid, probable
depression symptoms, and GERD. T. 883-85.
Treatment notes from August, 2000, by Yan Liu, M.D., indicate
fatigue associated with weight loss, migraines, and depression.
T. 766-70.
III. Non-Medical Evidence
Plaintiff was born in 1961 and was 10 weeks pregnant at the
time of her hearing in January, 1998. T. 43. She lived at home with
her husband and two minor children. T. 44. Plaintiff worked as an
LPN, and as such, she stood for most of the day and was required to
carry 50 pounds or more at a time. T. 124. She claimed she could no
longer work due to Epstein-Barr, fibromyalgia, chronic fatigue,

6

Plaintiff testified that despite going to his office twice, Dr.
DiChiara never examined her and his report was “made up.” T. 241. The
ALJ noted this, and the physician’s medical license revocation in her
written decision. Id.

-Page 9-

headaches, joint pain, high blood pressure, a hiatal hernia,
periods of excessive sleep, and inability to concentrate. T. 47-50,
55-58, 115-16. Her last day of work was January 2 or 3, 1996.
T. 45.
Plaintiff stated that she slept often, took care of her
personal needs, but did the minimum with regard to household chores
and

duties.

T.

53-54,

118,

134.

She

was

able

to

stand

for

10 minutes, walk for a couple of blocks, and sit for 50 minutes,
and could lift about 10-15 pounds. T. 58-60. Plaintiff testified
that her medications had no side effects. T. 61. Although she
sought mental health treatment for an initial evaluation, she did
not receive ongoing treatment, and took an anti-depressant for
about 6 weeks. T. 68.
Plaintiff’s husband testified that he had known Plaintiff for
2 years, that she was constantly fatigued and forgetful, and
performed household chores sporadically. T. 72-75.
A supplemental hearing was held on October 10, 2007, following
remand. T. 890-928. Plaintiff had begun working as a nurse again in
June, 2000, and asked the ALJ to consider the closed period from
January

2,

1996

through

June

20,

2000.

T.

894-96,

900-01.

Plaintiff’s disabling impairments, resulting in her inability to
work, included chronic fatigue, fibromyalgia, thyroid disorder,
migraine headaches, memory problems, and depression. T. 907-09,
916. She described excessive napping, inability to keep up with

-Page 10-

housework, joint pain and muscle spasms, numbness in her face, and
having to stay home and rest a lot during the relevant period.
T. 915, 917, 919-924. Plaintiff reported no adverse side effects
from her B-12 injections or medications, which included “a lot of
Vicodin,” an opioid painkiler. T. 920-21.
The ALJ heard testimony from VE Peter A. Manzi, Ph.D at a
second supplemental hearing dated November 16, 2007. She posed a
hypothetical involving an individual of Plaintiff’s age with LPN
experience, who could lift 20 pounds occasionally and 10 pounds
frequently, could sit for 2 hours at a time, stand and/or walk for
6 hours in an 8-hour day, frequently balance, and occasionally
climb stairs and ramps. The hypothetical individual would also have
the following limitations: avoid climbing ladders, scaffolds, or
working at unprotected heights; and avoid prolonged concentrated
exposure to pollens and excessive dust, fumes, odors, and gases.
T. 939. The ALJ also included moderate limitations in remembering,
following, carrying out, and completing detailed or complex tasks,
but with a general ability to maintain a regular work schedule.
T. 941. The VE responded that such an individual could work as an
assembler, cashier, cafeteria attendant, or collator operator.
T. 941-42.

-Page 11-

IV.

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

Severity of Impairment

Plaintiff

first

contends

that

the

ALJ

erred

in

finding

Plaintiff’s cognitive disorder to be a non-severe impairment.
Pl. Mem. (Dkt. #8-1) at 8-10.
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.

§

416.924(c).

The

“severity regulation” is intended only “to screen out de minimis
claims.’” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995).
On this record there was simply no diagnosis of cognitive
disorder. The only testing for such was conducted by consultative
examiner Dr. Donofrio, who opined that Plaintiff “could have” a
cognitive disorder. T. 199-204; 234-35. Based on this fact alone,
Plaintiff has not submitted medical evidence of a diagnosis of a
disorder as is her burden to do. See 42 U.S.C. § 423(d)(5)(A) (“An
individual shall not be considered to be under a disability unless
he furnishes such medical and other evidence of the existence
thereof as the Commissioner of Social Security may require.”);
20 C.F.R. § 404.1512(a)(“In general, you have to prove to us that
you are blind or disabled. Therefore, you must bring to our
attention everything that shows that you are blind or disabled.
This means that you must furnish medical and other evidence that we

-Page 12-

can use to reach conclusions about your medical impairment(s) and,
if material to the determination of whether you are disabled, its
effect on your ability to work on a sustained basis.”) (emphasis
added). State Agency psychiatrist Dr. Chun reviewed the record in
November,

1996,

and

opined

that

while

Plaintiff

had

some

deficiencies in concentration, persistence, or pace, they were
moderate, not marked limitations. T. 153, 155-57.
Based on the evidence cited above and in the record as a
whole,

the

ALJ's

finding

that

Plaintiff's

alleged

cognitive

disorder was not severe was supported by substantial evidence.
Moreover, because the ALJ concluded that Plaintiff had established
other impairments considered severe under the Act and continued
with the sequential analysis, any arguable errors in the findings
at step two of the analysis were harmless. Tryon v. Astrue,
No. 0–CV–537, 2012 WL 398952, at *3 (N.D.N.Y. Feb. 7, 2012).
B.

RFC Finding

Plaintiff

next

contends

that

the

ALJ’s

RFC

finding

is

unsupported by substantial evidence and that she did not apply the
correct legal standards in evaluating the limitations resulting
from Plaintiff’s mental impairments. Pl. Mem. at 10-13.
An ALJ's evaluation of a claimant's mental impairments must
reflect her application of the “special technique” set out in
20 C.F.R. § 404.1520a, which requires consideration of “four broad
functional

areas

...

[a]ctivities

-Page 13-

of

daily

living;

social

functioning; concentration, persistence, or pace; and episodes of
decompensation.” 20 C.F.R. § 404.1520a(c)(3). The first three areas
are rated on a five-point scale—“[n]one, mild, moderate, marked,
and extreme.”

Id.

at

§

404.1520a(c)(4). “[I]f

the

degree

of

limitation in each of the first three areas is rated ‘mild’ or
better, and no episodes of decompensation are identified, then the
[ALJ] generally will conclude that the claimant's mental impairment
is not ‘severe.’” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir.
2008) (quoting 20 C.F.R. § 404.1520a(d)(1)).
The ALJ applied the special technique described above and
considered Plaintiff’s functioning in the four broad areas, after
which she summarized the evidence and found that Plaintiff had mild
restrictions in activities of daily living and social functioning,
moderate difficulties in maintaining concentration, persistence, or
pace, and no repeated episodes of decompensation of extended
duration.

T. 233-35.

She further found that Plaintiff was able to

understand, remember, follow, and carry out and complete simple,
repetitious tasks and maintain attention and concentration for such
tasks;

sustain

an

ordinary

work

routine

without

special

supervision; make appropriate work-related decisions regarding
simple, unskilled repetitive work; and perform work in close
proximity

to

co-workers

without

being

distracted

by

them

or

distracted them. T. 236. Plaintiff could respond appropriately to
changes in an unskilled work setting and to typical work stress

-Page 14-

related to unskilled repetitious work. She was, however, moderately
limited in the ability to remember, follow, carry out, and complete
detailed or complex tasks and in maintaining focus, attention, and
concentration on detailed or complex tasks. She was also moderately
limited, but generally able to satisfactorily maintain a regular
work schedule. Id.
The ALJ based the mental portion of her RFC finding on
Dr. Donofrio’s examination findings, Dr. Chun’s opinion of slight
restrictions, Plaintiff’s subjective complaints, and the fact that
Plaintiff did not seek mental health treatment during the relevant
period. T. 234, 238-39. The ALJ included Plaintiff’s moderate
limitations in her hypothetical posed to the VE in determining her
RFC, thus properly considering the combined effect of all of
claimant's

impairments

pursuant

to

20

C.F.R.

§

404.1523,

in

addition to employing the special analysis technique. T. 236, 244.
See Tryon, supra.
Accordingly, the ALJ did apply the special analysis technique
in determining whether Plaintiff’s mental impairments were severe,
and that her RFC finding is supported by substantial evidence.
C.

Plaintiff’s Credibility

Plaintiff contends that the ALJ did not use the appropriate
standards set forth in 20 C.F.R. § 416.929, 404.1529, and Social
Security Ruling (“SSR”) 96-7p in assessing her credibility. Pl.
Mem. 13-15. Specifically, she contends that the ALJ did not provide

-Page 15-

a rationale in determining whether Plaintiff’s credibility was
undermined. Pl. Mem. 15.
To establish disability, there must be more than subjective
complaints.

There

must

be

an

underlying

physical

or

mental impairment, demonstrable by medically acceptable 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

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

-Page 16-

v. Sec’y, 750 F.2d 180, 186 (2d Cir. 1984); Gernavage v. Shalala,
882 F.Supp. 1413, 1419 (S.D.N.Y. 1995).
Plaintiff

alleged

disability

based

on

Epstein-Barr,

fibromyalgia, chronic fatigue, headaches, joint pain, high blood
pressure, a hiatal hernia, periods of excessive sleep, and an
inability to concentrate. T. 47-50, 55-58, 115-16. In making her
finding, the ALJ considered Plaintiff’s testimony, her subjective
complaints concerning her disabling conditions, activities of daily
living, medications, and other treatments. T. 236-42. The ALJ found
Plaintiff’s

allegations

concerning

her

symptoms

were

not

all

reasonably related to medically determinable impairments, and her
statements

regarding

the

intensity,

persistence,

and

limiting

effects of her symptoms were not fully credible. T. 238.
Contrary

to

Plaintiff’s

contention,

the

ALJ

provided

a

thorough analysis in support of her credibility finding. T. 236-42.
The ALJ observed that Plaintiff did some shopping, performed
housework,

attended

school

functions,

cared

for

her

children

(including an infant), went to church, socialized, cooked, and
drove a car, despite her numerous ailments and complaints of
debilitating fatigue. T. 236-37. The ALJ also pointed out several
instances

where

Plaintiff

appeared

to

have

exaggerated

her

symptoms, such as her testimony stating that she would have to
“crawl” up the stairs on bad days and her assertion of knee pain
and multiple sclerosis, neither of which found any support in the

-Page 17-

medical record. T. 237, 240. She further noted that some of
Plaintiff’s copious complaints could have been attributable to
other sources, for example, heart palpitations and vomiting twice
per day, while reporting that she drank four pots of coffee per
day, and tiring easily during the time she was taking Tylenol-3
with codeine, an opiate analgesic.

T. 239-40.

It is worth noting that the ALJ did not negate Plaintiff’s
subjective complaints entirely. She reduced Plaintiff’s RFC to
light

work

with

several

depression,

and,

giving

nonexertional
Plaintiff

the

limitations
benefit

of

based
the

on

doubt,

determined myofascial pain as a severe impairment. T. 233, 235-36,
242.
In response to her attorney’s argument that Plaintiff’s work
history served to enhance her credibility, the ALJ noted that there
was “some evidence that Plaintiff was in legal trouble over some
care she did or did not provide to a patient, so that it would be
to [Plaintiff’s] benefit to establish that a mistake was attributed
to [Plaintiff’s] mental disability rather than negligence.”

T.

242. The ALJ also pointed out, in detail, a summary of other
relevant

factors

in

the

record

in

assessing

Plaintiff’s

credibility.
Given that it is the responsibility of the Commissioner, not
the reviewing Court, to assess a Plaintiff’s credibility, the Court
finds that the ALJ’s credibility determination is supported by

-Page 18-

substantial evidence in the record. See Yellow Freight Sys. Inc. v.
Reich, 38 F.3d 76, 81 (2d Cir. 1994) (reviewing court “must show
special deference” to credibility determinations made by the ALJ,
“who had the opportunity to observe the witnesses' demeanor” while
testifying.”)
Accordingly,

the

Court

finds

that

the

ALJ's

credibility

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

Vocational Expert Testimony

Plaintiff also avers that the testimony of the VE cannot
provide substantial evidence to support her denial of disability
benefits. Pl. Mem. 15-16.
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 properly may 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

-Page 19-

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).
Plaintiff

argues

that

the

opinion

evidence

of

Dr.

Chun

commands a finding of disability. Pl. Reply. Mem. (Dkt. #14) 3-4.
The Court finds this to be unsupported by the record.
Dr. Chun reviewed the record, which included the report of
Dr. Donofrio, and opined that while Plaintiff would often have
deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely manner, those deficiencies
were considered moderate and not marked. T. 153, 155-57. She was
not significantly limited in her ability to carry out very short
and simple instructions, to sustain an ordinary routine without
special supervision, to work in coordination with or in proximity
to others without being distracted by them, and to make simple work
related decisions. T. 155. Nor was she significantly limited in her
ability to remember locations and work-like procedures or in her
ability to understand and remember short and simple instructions.

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T. 155, 157. Her ability to socially interact was not significantly
limited. T. 157.

Contrary to Plaintiff’s contention, Dr. Chun’s

opinion provides substantial evidence in support of the ALJ’s
finding that Plaintiff did not have a severe cognitive disorder,
and

that

Plaintiff

was

able

to

perform

basic

work-related

activities of unskilled, light work.
For the same reasons, the ALJ’s hypothetical was based on an
accurate RFC finding. Pl. Mem. 16.

Born in 1961, Plaintiff was

considered to be a “younger person” as of the date of the ALJ’s
decision with a high school education and was able to communicate
in English. T. 43, 243. After considering Plaintiff’s vocational
profile along with her RFC, she applied the corresponding MedicalVocational Rule 202.20-202.22 and found Plaintiff not disabled. To
determine the extent to which Plaintiff’s nonexertional limitations
(including the moderate limitations noted in Dr. Chun’s report)
eroded the unskilled light occupational base, the ALJ asked the VE
whether jobs existed in the national economy for an individual with
Plaintiff’s age, education, work experience, and RFC. T. 244, 93941.

The

VE

testified

that

given

all

of

these

factors

the

hypothetical individual would be able to perform jobs in the
national

economy,

including

assembler,

cashier,

and

collator

operator. T. 244, 941-42. Because the hypothetical question posed
to the VE was based on an RFC that accurately described Plaintiff's

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limitations, the VE's testimony provides substantial evidence to
support the ALJ's finding of no disability.
Accordingly, the Court finds that the ALJ's conclusion at Step
5 was supported by substantial evidence.

CONCLUSION
The Court finds that the Commissioner's decision to deny SSI
and DIB benefits for the alleged disability period from January 2,
1996 through June 20, 2000, was supported by substantial evidence
in the record. Accordingly, Plaintiff's motion for judgment on the
pleadings (Dkt. #11) is denied, and the Commissioner's cross-motion
for judgment on the pleadings (Dkt. #14) 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 _9, 2014

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