Saj v. Commissioner of Social Security
Filing
27
-CLERK TO FOLLOW UP---DECISION AND ORDER denying Plaintiff's 11 Motion for Judgment on the Pleadings and granting the Commissioner's 8 Motion for Judgment on the Pleadings. The case is dismissed. The Clerk is directed to enter judgment in favor of the Commissioner and to close this case. Signed by Hon. John T. Curtin on 10/8/2014. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KENNETH STANLEY SAJ,
Plaintiff,
-vs-
12-CV-916-JTC
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
APPEARANCES:
LAW OFFICES OF KENNETH HILLER (JAYA ANN SHURTLIFF,
ESQ., of Counsel), Amherst, New York, for Plaintiff.
WILLIAM J. HOCHUL, JR., United States Attorney (GAIL Y.
MITCHELL, Assistant United States Attorney, of Counsel), Buffalo,
New York, for Defendant.
This matter has been transferred to the undersigned for all further proceedings, by
order of Chief United States District Judge William M. Skretny dated August 6, 2014 (Item
26).
Plaintiff Kenneth Stanley Saj initiated this action on June 17, 2013, pursuant to the
Social Security Act, 42 U.S.C. § 405(g) (“the Act”), for judicial review of the final
determination of the Commissioner of Social Security (“Commissioner”) denying plaintiff’s
application for Social Security Disability Insurance (“SSDI”) and Supplemental Security
Income (“SSI”) benefits under Title II and Title XVI of the Act, respectively. Both parties
have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure (see Items 10, 17). For the following reasons, the Commissioner’s motion
is granted, and plaintiff’s motion is denied.
BACKGROUND
Plaintiff was born on May 31, 1967 (Tr. 189).1 He filed an application for SSDI, and
protectively filed an application for SSI, on January 10, 2009, alleging disability due to
status post fracture of his right ankle and heel, with an onset date of February 1, 2008 (Tr.
176-180; see also Tr. 193). The application was denied administratively on March 16,
2009 (Tr. 134). Plaintiff requested a hearing, which was held before Administrative Law
Judge (“ALJ”) Jennifer Whang on September 10, 2010 (Tr. 85-113). Plaintiff appeared and
testified at the hearing, and was represented by counsel. Vocational Expert (“VE”) Jay
Steinbrenner also testified.
In a decision issued on October 28, 2010, ALJ Whang found that plaintiff was not
disabled under the Act (Tr. 116-127). Following the sequential evaluation process outlined
in the Social Security Administration regulations (see 20 C.F.R. §§ 404.1520, 416.920), the
ALJ reviewed the medical evidence in the record and determined that although plaintiff’s
right lower extremity dysfunction constituted a “severe” impairment, it did not meet or
medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix
1 (the “Listings”) (Tr. 122). The ALJ discussed the testimony and documentary evidence
regarding plaintiff’s complaints of pain and other symptoms, including notes and opinions
from treating and consultative medical sources, and determined that while plaintiff is
unable to perform any of his past relevant work, he had the residual functional capacity
1
Parenthetical numeric references preceded by “Tr.” are to pages of the administrative transcript
filed by the Commissioner as part of the answer in this action (Item 7).
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(“RFC”) for sedentary work, as defined in the regulations,2 with certain functional limitations
(id.).
Relying on the VE’s testimony indicating that an individual of plaintiff’s age,
education, work experience, and RFC with these limitations would be able to perform the
requirements of a significant number of jobs existing in the national and local economies
(Tr. 125-26), and using Rule 201.28 of the Medical-Vocational Guidelines, 20 C.F.R. Pt.
404, Subpt. P, App. 2 (the “Grids”), as a framework for decision-making, the ALJ
determined that plaintiff has not been disabled within the meaning of the Act at any time
since the alleged onset date (Tr. 126).
The ALJ’s decision became the final decision of the Commissioner on August 27,
2012, when the Appeals Council denied plaintiff's request for review (Tr. 1-7), and this
action followed.
In his motion for judgment on the pleadings, plaintiff contends that the
Commissioner’s determination should be reversed because the ALJ (1) failed to properly
assess the weight to be given the opinions of plaintiff’s treating and consultative medical
sources; (2) failed to properly assess the credibility of plaintiff’s testimony and statements
with regard to his complaints of pain; and (3) improperly relied on the VE’s testimony. See
Item 17-1. The government contends that the Commissioner’s determination should be
affirmed because the ALJ’s decision is based on substantial evidence. See Item 10.
2
“Sedentary work” is defined in the regulations as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 C.F.R. §§ 404.1567(a), 416.967(a).
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DISCUSSION
I.
Scope of Judicial Review
The Social Security Act provides that, upon district court review of the
Commissioner‘s decision, “[t]he findings of the Commissioner . . . as to any fact, if
supported by substantial evidence, shall be conclusive ….”
42 U.S.C. § 405(g).
Substantial evidence is defined as evidence which “a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999). The substantial evidence test applies not only
to findings on basic evidentiary facts, but also to inferences and conclusions drawn from
the facts. Giannasca v. Astrue, 2011 WL 4445141, at *3 (S.D.N.Y. Sept. 26, 2011) (citing
Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)).
Under these standards, the scope of judicial review of the Commissioner’s decision
is limited, and the reviewing court may not try the case de novo or substitute its findings
for those of the Commissioner. Richardson, 402 U.S. at 401; see also Cage v. Comm'r of
Soc. Servs., 692 F.3d 118, 122 (2d Cir. 2012). The court’s inquiry is “whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached” by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982), quoted in Hart v. Colvin, 2014 WL 916747, at *2 (W.D.N.Y. Mar. 10, 2014).
However, “[b]efore the insulation of the substantial evidence test comes into play,
it must first be determined that the facts of a particular case have been evaluated in the
light of correct legal standards.” Klofta v. Mathews, 418 F. Supp. 1139, 1411 (E.D.Wis.
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1976), quoted in Sharbaugh v. Apfel, 2000 WL 575632, at *2 (W.D.N.Y. March 20, 2000);
Nunez v. Astrue, 2013 WL 3753421, at *6 (S.D.N.Y. July 17, 2013) (citing Tejada, 167 F.3d
at 773). “Failure to apply the correct legal standard constitutes reversible error, including,
in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue,
546 F.3d 260, 265 (2d Cir. 2008) (citations omitted).
Thus, the Commissioner’s
determination cannot be upheld when it is based on an erroneous view of the law, or
misapplication of the regulations, that disregards highly probative evidence. See Grey v.
Heckler, 721 F.2d 41, 44 (2d Cir. 1983); see also Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987) (“Failure to apply the correct legal standards is grounds for reversal.”),
quoted in McKinzie v. Astrue, 2010 WL 276740, at *6 (W.D.N.Y. Jan. 20, 2010).
If the Commissioner's findings are free of legal error and supported by substantial
evidence, the court must uphold the decision. 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive, and where a claim has been denied ... the court shall review only the
question of conformity with [the] regulations….”); see Kohler, 546 F.3d at 265. “Where the
Commissioner's decision rests on adequate findings supported by evidence having rational
probative force, [the court] will not substitute [its] judgment for that of the Commissioner.”
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Even where there is substantial
evidence in the record weighing against the Commissioner's findings, the determination will
not be disturbed so long as substantial evidence also supports it. See Marquez v. Colvin,
2013 WL 5568718, at *7 (S.D.N.Y. Oct. 9, 2013) (citing DeChirico v. Callahan, 134 F.3d
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1177, 1182 (2d Cir. 1998) (upholding the Commissioner's decision where there was
substantial evidence for both sides)).
In addition, it is the function of the Commissioner, not the reviewing court, “to
resolve evidentiary conflicts and to appraise the credibility of witnesses, including claimant.”
Carroll v. Sec'y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); cf.
Cichocki v. Astrue, 534 F. App’x 71, 75 (2d Cir. Sept. 5, 2013). “Genuine conflicts in the
medical evidence are for the Commissioner to resolve,” Veino, 312 F.3d at 588, and the
court “must show special deference” to credibility determinations made by the ALJ, “who
had the opportunity to observe the witnesses’ demeanor” while testifying. Yellow Freight
Sys. Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994).
II.
Standards for Determining Eligibility for Disability Benefits
To be eligible for SSDI or SSI benefits under the Social Security Act, plaintiff must
present proof sufficient to show that he suffers from a medically determinable physical or
mental impairment “which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months …,” 42 U.S.C.
§ 423(d)(1)(A), and is “of such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy ….”
42 U.S.C.
§ 423(d)(2)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). As indicated above, the
regulations set forth a five-step process to be followed when a disability claim comes
before an ALJ for evaluation of the claimant's eligibility for benefits.
See 20
C.F.R.§§ 404.1520, 416.920. First, the ALJ must determine whether the claimant is
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presently engaged in substantial gainful activity. If the claimant is not, the ALJ must decide
if the claimant has a “severe” impairment, which is an impairment or combination of
impairments that has lasted (or may be expected to last) for a continuous period of at least
12 months which “significantly limits [the claimant's] physical or mental ability to do basic
work activities....” 20 C.F.R. §§ 404.1520(c), 416.920(c); see also §§ 404.1509, 416.909
(duration requirement). If the claimant's impairment is severe and of qualifying duration,
the ALJ then determines whether it meets or equals the criteria of an impairment found in
the Listings. If the impairment meets or equals a listed impairment, the claimant will be
found to be disabled. If the claimant does not have a listed impairment, the fourth step
requires the ALJ to determine if, notwithstanding the impairment, the claimant has the
residual functional capacity to perform his or her past relevant work. If the claimant has
the RFC to perform his or her past relevant work, the claimant will be found to be not
disabled. Finally, if the claimant is not capable of performing the past relevant work, the
fifth step requires that the ALJ determine whether the claimant is capable of performing
any work which exists in the national economy, considering the claimant's age, education,
past work experience, and RFC. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000);
Lynch v. Astrue, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008).
The claimant bears the burden of proof with respect to the first four steps of the
analysis. If the claimant meets this burden, the burden shifts to the Commissioner to show
that there exists work in the national economy that the claimant can perform. Lynch, 2008
WL 3413899, at *3 (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)). “In the
ordinary case, the Commissioner meets h[er] burden at the fifth step by resorting to the
applicable medical vocational guidelines (the grids), … [which] take into account the
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claimant's residual functional capacity in conjunction with the claimant's age, education,
and work experience.” Rosa, 168 F.3d at 78 (internal quotation marks, alterations and
citations omitted). If, however, a claimant has non-exertional limitations (which are not
accounted for in the Grids) that “significantly limit the range of work permitted by h[er]
exertional limitations then the grids obviously will not accurately determine disability
status ….” Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (internal quotation marks and
citation omitted). In such cases, “the Commissioner must ‘introduce the testimony of a
vocational expert (or other similar evidence) that jobs exist in the national economy which
claimant can obtain and perform.’ ” Rosa, 168 F.3d at 78 (quoting Bapp, 802 F.2d at 603).
III.
The ALJ’s Disability Determination
In this case, as indicated above, ALJ Whang determined at step one of the
sequential evaluation that plaintiff had not engaged in substantial gainful activity since
February 1, 2008, the alleged onset date (Tr. 121). At steps two and three, the ALJ found
that plaintiff’s “status post right ankle fracture” impairment, while severe, did not meet or
equal the severity of any of the impairments in the Listings (Tr. 122).
At step four, the ALJ found that although plaintiff was unable to perform his past
relevant “medium exertional” work as a forklift operator or carpenter, he had the RFC to
perform sedentary work with the following limitations:
[T]he claimant requires a sit/stand option permitting him to alternate between
a sitting and standing position every hour; only occasional use of ramps and
climbing stairs, but never climbing ladders, ropes, or scaffolds; only
occasional stooping, kneeling, crouching, and crawling; no push/pull with the
right lower extremity; should avoid concentrated exposure to extreme cold;
and should avoid hazards, including moving machinery and unprotected
heights.
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(Tr. 122). At the final step, based on the testimony of the VE regarding the extent to which
these limitations might erode the occupational base for unskilled sedentary work, the ALJ
determined that there are jobs existing in significant numbers in the national economy that
plaintiff could perform, considering his age, education, work experience, and RFC (Tr. 12526).
IV.
Plaintiff’s Motion
A.
Consideration of Medical Source Opinions
The Social Security regulations provide that, in determining eligibility for SSDI or SSI
benefits, the ALJ must consider various factors in deciding how much weight to give to any
medical opinion in the record, “[r]egardless of its source,” including:
(i) the frequency of examination and the length, nature and extent of the
treatment relationship; (ii) the evidence in support of the … physician's
opinion; (iii) the consistency of the opinion with the record as a whole; (iv)
whether the opinion is from a specialist; and (v) other factors brought to the
Social Security Administration's attention that tend to support or contradict
the opinion.
Halloran v. Barnhart, 362 F.3d 28, 32 (2d. Cir. 2004) (citing 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2)).3 Under these rules, the opinions of treating physicians as to the nature and
severity of the claimant’s impairments are generally given “more weight” than other medical
source opinions, and “controlling weight” if based upon well-supported, medically
acceptable clinical and laboratory diagnostic techniques and not inconsistent with other
3
20 C.F.R. §§ 404.1527 and 416.927 were amended effective March 26, 2012, with the result that
subsection (d) was re-designated as subsection (c), without substantive change. With regard to this case,
the ALJ’s decision was issued before the effective date of the amendment, and the Appeals Council’s
ruling was issued after the effective date. For continuity, the court will herein refer to 20 C.F.R.
§§ 404.1527(c) and 416.927(c), presently in effect.
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substantial evidence. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). This is because treating
sources “are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.”
Id.
The regulations also specify that the
Commissioner “will always give good reasons in [her] notice of determination or decision
for the weight [she] give[s] [claimant's] treating source's opinion.” Id.; see also Halloran,
362 F.3d at 32; Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir. 1998) (stating that the
Commissioner must provide a claimant with “good reasons” for the lack of weight attributed
to a treating physician's opinion).
The regulations further recognize that:
State agency medical and psychological consultants and other program
physicians, psychologists, and other medical specialists are highly qualified
physicians, psychologists, and other medical specialists who are also experts
in Social Security disability evaluation. Therefore, administrative law judges
must consider findings and other opinions of State agency medical and
psychological consultants and other program physicians, psychologists, and
other medical specialists as opinion evidence ….
20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i). Thus, the opinions of consulting sources
“may constitute substantial evidence if they are consistent with the record as a whole.”
Barringer v. Commissioner of Social Sec., 358 F. Supp. 2d 67, 79 (N.D.N.Y. 2005) (citing
Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Saelee v. Chater, 94 F.3d 520,
522 (9th Cir. 1996); SSR 96–6p).
In this case, the ALJ’s written decision reflects a thorough consideration of the
medical source evidence in the record, including the reports of plaintiff’s treating
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orthopedist, Dr. Paul Mason, who saw first saw plaintiff on December 22, 2005, the day
after plaintiff suffered a “comminuted calcaneal fracture” of his right foot (Tr. 296-97). Dr.
Mason’s reports of follow-up examinations in January-March 2006 indicate “interval
healing” with work status of “total disability” (Tr. 304). In September 2006, plaintiff reported
that he had returned to work with some intermittent pain (Tr. 271). Physical examination
of the right foot revealed no obvious deformity, no tenderness, and near normal range of
motion. Dr. Mason’s impression was healed right calcaneus fracture, with unrestricted full
duty work status (id.).
In January 2007, plaintiff saw Dr. Mason for his Workers’
Compensation “Percentage Scheduled Loss of Use Exam” (Tr. 270). Dr. Mason reported
his opinion that, according to Workers’ Compensation Board medical guidelines, plaintiff’s
right calcaneal fracture resulted in 40% loss of use, but work status was full duty with no
restrictions (id.).
The ALJ also considered Dr. Mason’s May 7, 2009, report to the Workers’
Compensation Board indicating plaintiff’s “interest[ ] in setting up a permanent disability
with his right ankle” (Tr. 289). Plaintiff reported that he had returned to work, with “rather
significant pain about the foot” (id.). Physical examination revealed “approximately 50%
decrease in subtalar range of motion” with lateral tenderness, and diagnostic imaging
revealed a well healed fracture with “post-traumatic changes” (id.). Dr. Mason reiterated
his opinion that the fracture resulted in 40% loss of use (id.). According to the ALJ, this
treating source evidence indicates that “while the claimant suffers from some residual
pain/limitation related to his right ankle fracture this does not result in a finding that the
claimant is disabled” (Tr. 123).
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The ALJ also discussed the report of a consultative internal medical examination
performed by Dr. Cindrea Bender on March 4, 2009, in connection with plaintiff’s claim for
SSDI and SSI (Tr. 273-276). Plaintiff reported a history of a shattered right heel and
fractured right ankle, currently causing sharp lateral right heel pain radiating up to his
ankle, reduced by medication (Tr. 273). He also complained of a sharp right hip pain with
walking long distances, which lasted about one half hour, also reduced by medication (id.).
Dr. Bender’s examination revealed no acute distress (Tr. 274). Plaintiff’s gait was noted
as abnormal, with a limp favoring his left foot (Tr. 274). He was not able to walk on his
heels or toes, but could squat 100% (id.). His stance was normal. He had a cane that was
prescribed by his doctor, but he did not use the cane during the examination, and in Dr.
Bender’s opinion the cane was not medically necessary (id.). Plaintiff did not need help
changing for the examination, getting on and off the exam table, or arising from his chair
(Tr. 274-275). Musculoskeletal findings were reported as normal, including the right ankle
“despite history” (Tr. 275), as confirmed by a right ankle x-ray revealing possible
posttraumatic subtalar degenerative joint disease, but was otherwise normal findings (Tr.
276-77). Dr. Bender’s impression was heel and ankle pain, per history, with fair prognosis
(Tr. 276). In Dr. Bender’s opinion, plaintiff had moderate limitation with walking prolonged
distances, lifting excessively large objects, climbing an excessive number of stairs, and
squatting secondary to ankle and heel pain, but no limits with reaching, bending, pushing,
pulling, speaking, sitting, traveling, hearing, or seeing (id.).
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The ALJ noted that plaintiff’s treating physician, Dr. George Haddad, completed a
Physical Residual Functional Capacity Questionnaire form4 on September 2, 2010,
indicating that plaintiff could sit 8 hours in an 8-hour workday; stand one-half hour at a
time, or one hour total in an 8-hour workday; lift up to 20 pounds occasionally, and up to
10 pounds frequently; and could not bend, squat, or climb (Tr. 339). Pain medication
would occasionally impair and/or preclude performance of even simple work tasks, and he
would need to lie down or recline for 5 hours during an 8-hour workday to relieve pain (Tr.
340). As indicated on the questionnaire, in Dr. Haddad’s opinion plaintiff was likely to miss
four or more days of work per month due to pain symptoms, and he was therefore
“disabled from full-time competitive employment five days per week, eight hours per day
on a sustained basis” (id.).
ALJ Whang accorded this opinion “little weight noting that Dr. Haddad is an internist
and not a specialist” (Tr. 124). The ALJ noted further that Dr. Haddad’s opinion “relies
heavily on the claimant’s subjective reports of disability rather than the objective evidence”
(id.).
The ALJ accorded “appropriate” weight to Dr. Bender’s opinion on plaintiff’s
functional limitations, finding the opinion consistent with the objective medical evidence.
Considering the totality of the treating source evidence in the record, the ALJ assessed
plaintiff’s RFC to accommodate plaintiff’s symptomatology and functional limitations at the
lowest threshold, “[g]iving the claimant the benefit of the doubt related to his disability” (id.).
Based on this review, the court concludes that the ALJ’s assessment reflects proper
consideration of the appropriate weight to be accorded the opinions of treating and
4
Notwithstanding plaintiff’s testimony that he treated with Dr. Haddad once a month (Tr. 101), the
RFC Questionnaire is the only report from Dr. Haddad contained in the record presented to the court.
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consultative medical sources in determining plaintiff’s residual functional capacity and
limitations, in a manner calculated to provide good reasons to the claimant and the
reviewing court for the lack of weight attributed to Dr. Haddad’s functional limitation
findings. As discussed by the ALJ, the limitations indicated by Dr. Haddad on the RFC
questionnaire form were based primarily on plaintiff’s self-reporting, with no reference to
objective medical evidence for support. Notably, Dr. Haddad is an internist, and despite
being identified as plaintiff’s treating physician, there are no treatment notes, examination
reports, or other evidence in the record to indicate that he ever examined plaintiff’s ankle.
In contrast, Dr. Mason was plaintiff’s treating orthopedist, and the record reflects that both
he and Dr. Bender conducted comprehensive physical examinations of plaintiff, reporting
on the status of plaintiff’s impairment and offering medical opinions as to its nature and
severity. See 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5) (“We generally give more weight
to the opinion of a specialist about medical issues related to his area of specialty than to
the opinion of a source who is not a specialist.”). As noted by the Second Circuit,
“[r]esolution of genuine conflicts between the opinion of the treating source, with its extra
weight, and any substantial evidence to the contrary remains the responsibility of the
fact-finder.” Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir. 1988); see also Snell v. Apfel, 177
F.3d 128, 133 (2d Cir. 1999) (“When 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.”).
Accordingly, the court finds that the ALJ’s RFC determination was made in the light
of correct legal standards for considering the opinions of treating and consultative medical
sources, and is based on substantial evidence in the record.
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B.
Credibility
Plaintiff also contends that the ALJ failed to properly assess the credibility of
plaintiff’s testimony regarding his complaints of disabling pain and limitations of function.
The general rule in this regard is that the ALJ is required to evaluate the credibility of
testimony or statements about the claimant's impairments when there is conflicting
evidence about the extent of pain, limitations of function, or other symptoms alleged. See
Paries v. Colvin, 2013 WL 4678352, at *9 (N.D.N.Y. Aug. 30, 2013) (citing Snell v. Apfel,
177 F.3d 128, 135 (2d Cir. 1999) (“Where there is conflicting evidence about a claimant's
pain, the ALJ must make credibility findings.”)). The Commissioner has established a
two-step process to evaluate a claimant's testimony regarding his or her symptoms:
First, the ALJ must consider whether the claimant has a medically
determinable impairment which could reasonably be expected to produce the
pain or symptoms alleged by the claimant. Second, if the ALJ determines
that the claimant is impaired, he then must evaluate the intensity,
persistence, and limiting effects of the claimant's symptoms. If the claimant's
statements about his symptoms are not substantiated by objective medical
evidence, the ALJ must make a finding as to the claimant's credibility.
Matejka v. Barnhart, 386 F. Supp. 2d 198, 205 (W.D.N.Y. 2005), quoted in Hogan v.
Astrue, 491 F. Supp. 2d 347, 352 (W.D.N.Y. 2007); see 20 C.F.R. §§ 404.1529, 416.929.
The regulations outline the following factors to be considered by the ALJ in
conducting the credibility inquiry: (1) the claimant's daily activities; (2) the location, duration,
frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medications taken to alleviate the pain; (5)
any treatment, other than medication, that the claimant has received; (6) any other
measures that the claimant employs to relieve the pain; and (7) other factors concerning
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the claimant's functional limitations and restrictions as a result of the pain. 20 C.F.R.
§§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)–(vii); see also Meadors v. Astrue, 370 F.App’x
179, 184 n.1 (2d Cir. 2010). The Commissioner’s policy interpretation ruling on this
process provides further guidance:
The finding on the credibility of the individual’s statements cannot be based
on an intangible or intuitive notion about an individual’s credibility. The
reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not sufficient to make a
conclusory statement that “the individual’s allegations have been considered”
or that “the allegations are (or are not) credible.” It is also not enough for the
adjudicator simply to recite the factors that are described in the regulations
for evaluating symptoms. The determination or decision must contain
specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave
to the individual’s statements and the reasons for that weight.
Social Security Ruling (“SSR”) 96-7p, 1996 WL 374186, at *4 (S.S.A. July 2, 1996).
In this case, the ALJ found that plaintiff’s impairment could reasonably be expected
to cause the limitations testified to, but that his statements concerning the intensity,
persistence and effect of those limitations were not credible to the extent they were
inconsistent with the ALJ’s RFC assessment. According to the ALJ, plaintiff was “less than
credible” in testifying about the severity of his pain, as demonstrated by the treating
orthopedist’s reports and opinions as to work status and loss of use, as well as Dr.
Bender’s consultative examination report indicating that the pain decreased significantly
when plaintiff took his medication (see Tr. 123-24).
In addition, as the above discussion demonstrates, the ALJ’s assessment of
plaintiff’s residual functional capacity and limitations is supported by the findings of treating
sources and other substantial medical evidence in the case record. This assessment is
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sufficiently grounded in the evidence and articulated in the ALJ’s determination to make
clear to the claimant, to this court, and to subsequent reviewers the weight given to
plaintiff’s statements about his functional limitations, and the reasons for that weight.
As such, and upon review of the record as a whole, the court finds that the ALJ’s
credibility assessment in this case was performed in accordance with the requirements of
the Social Security Act, its implementing regulations, and the weight of controlling authority.
Accordingly, plaintiff is not entitled to reversal or remand on this ground.
C.
Vocational Expert Testimony
Finally, plaintiff contends that the Commissioner failed to meet her burden at step
five of the sequential evaluation to show that there exists work in the national economy that
the plaintiff can perform because the hypothetical presented to the VE by the ALJ was
based on an incomplete and inaccurate portrayal of plaintiff’s functional limitations. The
court’s review of the hearing testimony reveals otherwise.
The transcript reveals that the ALJ asked the VE to assume an individual of
plaintiff’s age, education, and experience capable of performing sedentary work, with the
following additional limitations:
Requires a sit/stand option allowing alternating between a sitting and
standing position every one hour, only the occasional use of ramps and
climbing stairs, but never climbing ladders, roes, or scaffolds. Only
occasional stooping, kneeling, crouching, and crawling. No push pull with
the right lower extremity, and no foot control operations with the right lower
extremity. Should also avoid concentrated exposure to extreme cold, and
should avoid hazards including moving machinery and unprotected heights.
(Tr. 106; 107-08). This is an entirely accurate portrayal of plaintiff’s RFC as determined
by the ALJ, based on substantial evidence in the record as indicated above.
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Accordingly, plaintiff is not entitled to remand on the basis of improper reliance on
the VE’s testimony.
CONCLUSION
For the foregoing reasons, the court finds that the ALJ's decision is based on correct
legal standards and supported by substantial evidence, and the Commissioner’s
determination must therefore be upheld. Accordingly, plaintiff’s motion for judgment on the
pleadings (Item 11) is denied, the Commissioner’s motion for judgment on the pleadings
(Item 8) is granted, and the case is dismissed.
The Clerk of the Court is directed to enter judgment in favor of the Commissioner,
and to close the case.
So ordered.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated:
October 8, 2014
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