Foote v. Commissioner of Social Security

Filing 13

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 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 7/28/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TROY J. FOOTE,
Plaintiff,

13-CV-0275(MAT)
DECISION and ORDER

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

Introduction
Represented

by

counsel,

Troy

J.

Foote

(“plaintiff”)

has

brought this action pursuant to Title XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying his
application

for

disability

insurance

benefits

(“DIB”)

and

Supplemental Security Income (“SSI”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
II.

Procedural History
The record reveals that on June 10, 2009, plaintiff filed an

application for DIB, and on June 30, 2009, plaintiff filed an
application for SSI, alleging in both applications a disability
onset date of December 31, 2006. Plaintiff’s applications were
denied, and he requested a hearing before an Administrative Law
Judge (“ALJ”), which was held on April 13, 2011, before ALJ William
M. Weir. The ALJ issued an unfavorable decision on August 22, 2011.
Plaintiff’s request for review of this decision was denied by the
Appeals Council on February 8, 2013. Thereafter, plaintiff timely
filed this action seeking review of that denial. Doc. 1.

Presently before the Court are the parties' cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules

of

Civil

Procedure.

For

the

following

reasons,

the

Commissioner’s motion is granted, and plaintiff’s cross-motion is
denied.
III. Summary of Administrative Transcript
A.

Medical Evidence

Prior to the time period relevant to this case, plaintiff had
a history of treatment for back pain dating back to 1993, in which
year he suffered an employment-related back injury. T. 297, 419-34,
441-42, 450-52, 472-73, 480. Plaintiff suffered another workrelated back injury in 1995. T. 237, 263, 437. In the years leading
up to this claim, plaintiff received treatment for back pain and
repeated evaluations for workers compensation benefits. T. 418-574.
In

January

2000,

plaintiff

underwent

a

bilateral

L5-S1

instrumentation and fusion, after which he participated in physical
therapy and progressed well post-operatively. T. 237, 256-58, 26771,

273-77,

503-08,

512-14,

516,

520,

522-23,

525,

527-28.

Throughout this time period prior to plaintiff’s claims, during
which plaintiff continued to work, plaintiff was rated as having a
moderate partial disability for workers compensation evaluation
purposes. T.

245, 409, 446-49, 478-79, 486-87, 488-90, 494-96,

534-35.
During the time period relevant to this case, plaintiff
continued to treat for back pain. The record also reveals evidence
2

of an eye impairment and substance abuse issues. Progress notes
from Brylin Hospital for the time period February 8, 2007 through
July 13, 2007 indicate that plaintiff participated in chemical
dependency treatment in connection with a drug court order related
to a DWI conviction. T. 576-88. Plaintiff completed the program
with “maximum benefit” and was discharged July 10, 2007. T. 577.
Dr. Samuel Balderman completed an internal medicine evaluation
on

September

17,

2009,

upon

referral

from

the

Division

of

Disability Determination. T. 615-25. Plaintiff’s gait was normal,
although he reported that he could not walk on his toes due to heel
pain. T. 616. Dr. Balderman noted that plaintiff had monocular
vision, moderate limitation in bending and lifting due to lumbar
spine disease, and continued “difficulty with alcohol abuse.”
T. 618. He found plaintiff to have full ranges of motion of his
cervical spine, negative straight leg raise (“SLR”) test, and full
strength in all limbs and extremities but limitation in lumbar
spine range of motion. Id. Dr. Balderman diagnosed plaintiff with
status post lumbar spine surgery, learning disability, active
alcohol abuse, and no detectable vision in the right eye. T. 617.
He noted a stable prognosis. Id.
Dr.

Thomas

Ryan

completed

a

psychiatric

evaluation

on

November 9, 2009. T. 626-29. Dr. Ryan concluded that the evaluation
results

were

“consistent

with

psychiatric

problems

which

may

interfere to some degree on a daily basis,” noting specifically
that plaintiff appeared to have “moderate limitation in his ability
3

to make appropriate decisions” and had “mild to moderate limitation
in his ability to deal with stress.” T. 628. However, Dr. Ryan
noted that plaintiff “demonstrate[d] no significant limitation in
his ability to follow and understand simple directions, perform
simple tasks, maintain attention and concentration, maintain a
regular schedule, learn new tasks, and perform some complex tasks,”
and that he could generally relate with others. Id. Dr. Ryan
diagnosed

plaintiff

with

polysubstance

abuse

and

depressive

disorder, not otherwise specified, and noted that he questioned
plaintiff’s “ability to manage benefit payments due to the ongoing
substance abuse.” Id.
Dr. Hillary Tzetzo, a state agency psychiatrist, reviewed the
record and completed a psychiatric review technique form dated
December 1, 2009. T. 630-43. Dr. Tzetzo assessed mild limitations
in

activities

maintaining
persistence,

of

social
or

daily

living

functioning

pace.

T.

and
and

640.

She

moderate
maintaining
concluded

limitations

in

concentration,
that

plaintiff

“appear[ed] capable of adhering to a normal work schedule and
performing simple repetitive work,” which conclusion she based in
part on her completion of a mental residual functional capacity
(“RFC”) evaluation. T. 642, 644-45.
On December 1, 2009, Dr. K. Barrera completed a physical RFC
assessment which found that plaintiff could occasionally lift
and/or carry 20 pounds; frequently lift and/or carry 10 pounds;
stand and/or walk for a total of about six hours in an eight-hour
4

workday; sit (with normal breaks) for a total of about six hours in
an eight-hour workday; and push and/or pull to an unlimited extent.
T. 89. The RFC found that plaintiff suffered “moderate pain” status
post lumbar spine surgery five years ago. Id. On examination,
plaintiff had a normal gait, could walk on heels but not toes, and
required no assistive devices for ambulating. Id. Plaintiff had
some limitation in extension of the lumbar spine, but no limitation
in the cervical or thoracic spine, negative SLR test, and full
range of motion of all joints and extremities. T. 90. Dr. Barerra
opined that plaintiff’s allegations regarding limitations due to
pain were “disproportionate to objective physical findings and
physical

exam.

Although

it

can

be

believed

that

claimant

experiences symptoms and limitations, they cannot be taken to the
degree alleged.” T. 92. Dr. Barerra concluded that plaintiff
remained capable of performing light repetitive work, requiring the
use of one eye in a low contact setting. Id.
Treatment records from Dr. Paul Garg cover the time period
from July 2, 2010 through March 29, 2011. T. 674-737. During that
time

frame,

Dr.

depression,

Garg

diagnosed

borderline

gastroesophageal

reflux

plaintiff

with

hypertension,
disorder

(“GERD”),

chronic

tobacco

pain,
abuse,

hemorrhoids,

and

anxiety. T. 675-79, 682. Notes contained within Dr. Garg’s records
indicate that plaintiff was not truthfulat least once, about taking
pain medication, and that a pharmacy contacted the doctor’s office
with

concerns

regarding

plaintiff’s
5

abuse

of

prescription

medications. T. 678, 680; see also T. 697 (consulting physician
noted that plaintiff continued to report pain although physician
“would have thought by now he would be fully healed”).
Although plaintiff complained of pain, objective examination
and imaging results during this time period showed relatively few
underlying issues. An X-ray of plaintiff’s lumbar spine taken
August 18, 2010 showed degenerative disc disease at L4-L5 and L5S1,

with

evidence

of

posterior

fusion

at

L5-S1,

which

was

consistent with plaintiff’s past surgery. T. 727. The vertebral
bodies were described as “normal in height and alignment,” and the
degenerative changes in the sacroiliac joint described as mild. Id.
On August 24, 2010, plaintiff had a colonoscopy, during which two
polyps were removed which were determined to be “most likely the
source of the bleeding”; plaintiff “tolerated the procedure quite
well.” T. 669, 708.

Physical examination on September 27, 2010

found no objective medical results to support plaintiff’s report of
continued chronic pain. T. 684.
On November 8, 2010, plaintiff saw Dr. Garg in follow-up for
hospitalization for epididymitis, and reported that swelling and
redness in his left testicle as a result of that condition “ha[d]
mostly gone”; Dr. Garg approved plaintiff for return to work with
light duty. T. 682. Upon examination November 10, 2010, plaintiff
showed

no

abnormalities

abnormalities

in

the

or

heart

tenderness

in

or

but

chest,

the
had

spine,

and

swelling

no
and

discomfort associated with the prior epididymitis, which condition
6

was “dramatic[ally] improv[ing].” T. 701. On January 3, 2011,
plaintiff reported that his depression had improved, and his
physical examination showed no abnormalities, although plaintiff
reported

that

he

had

hemorrhoids

which

“[o]ccasionally

[get]

painful” and sometimes resulted in a “little bit [of] bleeding.”
T. 679. On January 8, 2011, plaintiff’s examination showed no
neurovascular deficits and no abnormalities in plaintiff’s neck,
lungs, or heart, although plaintiff reported tenderness in the
lumbar spine. T. 677. Throughout his treatment with Dr. Garg,
plaintiff was prescribed medications including Lortab, Prilosec,
Lexapro, Nucynta, and ibuprofen. T. 679, 682, 684.
Plaintiff’s

counsel

submitted

a

medical

report

from

Dr. Jeffrey Lewis, dated May 3, 2011. T. 750-52. Upon examination,
Dr. Lewis found that plaintiff had “severe restricted range of
motion of the lumbar spine,” a positive SLR, altered sensation in
both lower extremities, and a slow and antalgic gait. T. 751.
Dr. Lewis recommended imaging of the lumbar spine, and noted that
he would reevaluate plaintiff once the necessary imaging had been
performed. T. 752.
Additional evidence submitted by plaintiff’s counsel to the
Appeals Council following the ALJ’s decision included an August 18,
2011 MRI, which showed no evidence of spinal canal stenosis; mild
bilateral foraminal stenosis at L4-L5 and left foraminal stenosis
at L5-S1; facet arthropathy at L4-L5 and L5-S1; and no abnormal
vertebral, paraspinal comment dural, or nerve enhancement. T. 761.
7

Dr. Lewis followed up with plaintiff on September 4, 2011 to review
this MRI, and noted that the MRI “show[ed] a good fusion at L5-S1
with severe disc space degeneration” and that posterolateral fusion
was “well healed,” but recommended removing screws from the prior
fusion as this would have a good chance of reducing plaintiff’s
reported pain. T. 759.
B.

Non-Medical and Vocational Evidence

Plaintiff testified that he suffered an on-the-job back injury
“[a] long time ago.” T. 55. According to plaintiff, prior to
settling his workers compensation claim, he experienced “[p]ain
shooting down [his] left leg, numbness in [his] left buttocks,
numbness in [his] feet, and just – just pain.” Id. Plaintiff
testified that he did not feel better following his back surgery.
T. 56. He stated that he tried to work after that surgery but he
could not because of pain. T. 57. Plaintiff testified that he began
treating with Dr. Garg after receiving Medicaid benefits. Id. He
testified that he could not perform repetitious lifting, twisting,
or bending, because “[the pain] gets real bad.” T. 60-61. Plaintiff
stated that he could not stand or sit for too long a period of time
because the pain would worsen. T. 60-61. In a disability report,
plaintiff reported that he had problems sitting and standing too
long in one place and that he had sharp pains down his legs and
numbness in the arms. T. 174. Plaintiff reported that he stopped
working on December 31, 2006, because of “lack of work.” Id.

8

Plaintiff testified that he drank alcohol and smoked marijuana
to lessen pain. T. 64-65. According to plaintiff, alcohol and pain
medications helped him sleep, and marijuana helped him relax. Id.
He stated that on a scale from zero to ten, his pain level was
eight on an average day. T. 68. However, he stated that this was
only if he was required to be up and moving around; if he had the
ability to lay down or recline when needed, his pain level was
“less than that.” T. 68.

Plaintiff testified that when he takes

his medicine, his gastroesophageal reflux does not bother him on a
regular basis. T. 71. He stated that although his hemorrhoids
caused him to “bleed now and then,” it did not affect his ability
to sit. T. 72. Since his colonoscopy, he had “[not] had the
bleeding in a while.” Id.
When asked why he alleged disability as of December 31, 2006,
plaintiff testified: “I was probably disabled before that. I mean
– when I realized that I couldn’t really do a job without having
any – no pain, then I realized I was disabled. . . . [b]ecause the
small little things I was having problem with – I just – I don’t
know, that’s when it clicked, and I just figured I was disabled.”
T. 79. Plaintiff testified that he felt pain “in [his lower back”
and “radiat[ing] up to [his] neck,” and that the pain puts him “in
a bad mood pretty much.” T. 82.
Plaintiff testified that he suffered from depression, stating
when asked to explain, “I’m just depressed”; however, plaintiff
stated that he “usually can get along with anybody” and that he had
9

not received any counseling for depression. T. 66-67. Regarding his
eye condition, plaintiff testified that he had no vision in his
right eye and that this caused depth perception issues. T. 48-49.
He testified that he could see out of his left eye but this vision
was “sketchy” at night. T. 49. He stated that due to eye strain, he
had to rest his eyes frequently. T. 50-51. He testified that he
could read fonts in the sizes of newspaper headlines, but had
trouble reading smaller print. T. 75.
In a function report completed in August 2009, plaintiff
reported that on a daily basis he could make coffee, “go to work
(if available),” and then come home and immediately get off of his
feet. T. 183. He reported that if no work was available, he could
clean the house, do laundry, and get off of his feet. Id. He also
took care of his son by cooking, cleaning, and doing laundry. Id.
He reported that he could prepare any meal he could “afford to
make,” and that he prepared meals daily, but tried not to be on his
feet too long. T. 184. He listed hobbies of fishing and watching
TV. T. 186. He reported that he could not lift more than 50 pounds,
could only stand for 15-20 minutes at a time without having pain,
had difficulty climbing stairs, kneeling, squatting, and reaching,
and that he was legally blind in his right eye. T. 187.
IV.

Applicable Law
A.

Standard of Review

The Commissioner’s decision that a claimant is not disabled
must be affirmed if it is supported by substantial evidence, and if
10

the ALJ applied the correct legal standards. 42 U.S.C. § 405(g);
see also, e.g., Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.
2002). “Substantial evidence” has been 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. N.L.R.B., 305 U.S. 197, 229 (1938)). “[I]t is not the
function of a reviewing court to decide de novo whether a claimant
was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
“Where the Commissioner’s decision rests on adequate findings
supported

by

evidence

having

rational

probative

force,

[the

district court] will not substitute [its] judgment for that of the
Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
However, the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984) (“Failure to apply the correct
legal standards is grounds for reversal.”).
B.

Five-Step Sequential Evaluation

To be considered disabled within the meaning of the Act, a
claimant must establish an “inability to engage in any substantial
gainful activity by reason of any 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). Furthermore,
11

the claimant’s physical or mental impairments must be of such
severity as to prevent engagement in any kind of substantial
gainful

work

which

exists

in

the

national

economy.

Id.,

§ 423(d)(2)(A).
In

determining

whether

a

claimant

is

disabled,

the

Commissioner follows the five-step analysis set forth in the Social
Security Administration Regulations. 20 C.F.R. § 404.1520; see
also, e.g., Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The burden of proof lies with the claimant on steps one through
four to show that her impairment or combination of impairments
prevents a return to previous employment. Berry, 675 F.2d at 467.
If the claimant meets that burden, the Commissioner bears the
burden at step five of establishing, with specific reference to the
medical evidence, that the claimant’s impairment or combination of
impairments

is

not

of

such

severity

as

to

prevent

her

from

performing work that is available in the national economy. Id.; 42
U.S.C. § 423(d)(2)(A); see also, e.g., White v. Secretary of Health
and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990).
V.

The ALJ’s Decision
At step one, the ALJ found that plaintiff had not engaged in

substantial gainful activity since December 31, 2006. T. 30. At
step two, the ALJ found that plaintiff’s status post back surgery
and limited vision in the right eye constituted severe impairments
within the meaning of the regulations. Id. At step three, the ALJ
found that plaintiff did not have an impairment or combination of
12

impairments that met or medically equaled the severity of a listed
impairment. T. 30-31. At that step, the ALJ found that plaintiff’s
depression and substance abuse were not severe because they did not
produce more than a minimal effect on plaintiff’s ability to
perform work activities. T. 31.
At step four, the ALJ determined that plaintiff had the
residual functional capacity to perform light work as defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b), and that he retained the
ability to perform his past relevant work as a cashier. T. 31-34.
After a thorough review of the record, the ALJ found that plaintiff
had medically determinable impairments that could reasonably be
expected to produce plaintiff’s pain or other symptoms, but that
plaintiff’s statements concerning the intensity, persistence, and
limiting effects of his symptoms were not credible to the extent
that they were inconsistent with the objective medical evidence and
RFC assessment. T. 32-34. In making the RFC determination, the ALJ
gave significant weight to Dr. Balderman’s and Dr. Ryan’s opinions
based on consistency with the medical record. T. 34. The ALJ gave
some weight to Dr. Tzetzo’s psychiatric consultation, noting that
she did not examine plaintiff. Id. The ALJ gave limited weight to
Dr. Lewis’s opinion, and gave significant weight to the treatment
notes of Dr. Garg, as Dr. Garg was plaintiff’s treating physician.
Id.

Having

determined

that

plaintiff

did

not

disability, the ALJ did not proceed to step five.

13

suffer

from

a

VI.

Discussion
Plaintiff contends that the ALJ and Appeals Council erred in

(1) assessing plaintiff’s credibility; (2) evaluating the severity
of plaintiff’s pain; and (3) evaluating plaintiff’s combination of
impairments and finding that he could perform his past relevant
work as a cashier. Doc. 22.
A.

Credibility Assessment

The ALJ considered both the objective medical evidence and
plaintiff’s own statements concerning his symptoms. T. 31-34.
Ultimately,

the

ALJ

found

that

“the

[plaintiff]’s

medically

determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the [plaintiff]’s statements concerning
the intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the . .
. residual functional capacity assessment.” T. 32. Contrary to
plaintiff’s

contention,

the

ALJ’s

decision

reflects

proper

application of the appropriate credibility standard. See 20 C.F.R.
§§ 404.1529, 416.929; SSR 96-4p, 96-7p.
Plaintiff argues, first, that the ALJ erroneously failed to
determine that plaintiff’s hemorrhoids, learning disability, and
vision issues in the left eye (as opposed to blindness in his right
eye) were severe impairments. Substantial record evidence, however,
supports the ALJ’s finding that the plaintiff’s allegations as to
the symptoms associated with these impairments did not line up with
objective medical evidence. As to hemorrhoids, plaintiff himself
14

testified that, after a colonoscopy procedure which removed two
polyps, he had “[not] had the bleeding in a while.” T. 72. A report
of the colonoscopy also concluded that the procedure was successful
and that plaintiff tolerated it well. 669, 708. As to plaintiff’s
learning disability, this impairment received little more than
passing reference in the record (see, e.g., T. 45-46, 52-53), and
moreover, there is no record evidence that this alleged impairment
had any effect on plaintiff’s ability to perform light work as
found by the ALJ. Finally, as to plaintiff’s eye impairments, the
ALJ did find plaintiff’s right eye impairment to be severe, and
noted that this condition restricted plaintiff to monocular work.
T. 31. As to any associated left eye impairments, there is no
objective medical evidence in the record indicating that these
issues would limit plaintiff’s ability to perform light work with
the above monocular restriction. Considering the medical evidence,
the

ALJ

was

within

appropriate

bounds

in

failing

to

credit

plaintiff’s testimony and reports regarding the severity of any
left eye impairments. See, e.g., T. T. 741 (Atwal Eye Care record
noting that plaintiff reported vision was blurry in the right eye
worse than the left); 743 (noting plaintiff’s report that vision
had always been poor in the right eye).
Plaintiff also challenges the ALJ’s statement that plaintiff
“ha[d] not generally received the type of medical treatment one
would expect for a totally disabled individual.” T. 34. Although
the Court agrees that the ALJ is required to consider potential
15

explanations for noncompliance with or lack of treatment (see SSR
96-7p), the medical evidence in this case indicates that prior to
the ALJ’s decision, plaintiff was treating with Dr. Garg on a
continuing basis, his examinations were within normal bounds, his
prior back surgery was well-healed, and his colonoscopy had given
him

relief

from

hemorrhoid

symptoms.

T.

669,

674-737,

759.

Plaintiff’s medical records simply do not indicate a need for
treatment which he was not receiving.
The Court notes that the ALJ’s finding regarding plaintiff’s
credibility was consistent not only with the objective medical
evidence,

but

also

supported

by

the

factors

in

20

C.F.R.

§ 404.1529(c). The record reveals plaintiff himself reported that
he was able to perform daily activities such as cleaning, preparing
any meal as long as it did not require him to stand too long, and
laundry. T. 183-87. Also significantly, plaintiff reported that he
stopped working because of “lack of work,” and that he was able to
go to work, as long as work was available. T. 174, 183. Plaintiff
also contends that the ALJ erroneously found that plaintiff made
inconsistent
disability;

statements
however,

the

regarding
record

matters

does

reveal

relevant

to

inconsistency

his
in

plaintiff’s reports regarding disability, inasmuch as plaintiff
indicated that he could continue working if work was available.
T.

174,

183.

Therefore,

plaintiff’s

contention

that

the

ALJ

improperly gave no weight to plaintiff’s “continued efforts to
continue working” is inconsistent with the record which indicates
16

that plaintiff actually had the ability to perform at least light
work, but did not do so because he apparently could not find work
and not because of inability to perform work.
Although plaintiff argues that the ALJ erred in finding that
plaintiff was vague in describing his symptoms, a review of the
hearing transcript reveals several instances in which plaintiff was
quite vague. T. 68 (plaintiff testified his pain level was “less
than” an eight on an average day, but did not give a number); 82
(plaintiff could not describe why he alleged he became disabled at
the end of 2006: “I just figured I was disabled”); 66 (when asked
to

describe

his

depression,

plaintiff

stated,

“I’m

just

depressed”). Moreover, to the extent that plaintiff did adequately
describe his pain (see T. 82 [describing pain in lower back
radiating

up to

neck]),

the

ALJ’s decision reflects

that

he

considered these allegations properly alongside objective medical
evidence and the factors outlined in

20 C.F.R. § 404.1529(c). In

summary, the ALJ’s decision reflects proper application of the
credibility standard and there is thus no basis for disturbing the
credibility finding. The evidence submitted by plaintiff’s counsel
to the Appeals Council does not alter the validity of the ALJ’s
credibility determination.
B.

Evaluation of Pain

Plaintiff next contends that the ALJ and Appellate Council
erred

in

evaluating

the

severity

of

plaintiff’s

pain.

This

contention is essentially an echo of plaintiff’s argument that the
17

ALJ erred in assessing plaintiff’s credibility. As recounted above,
the objective medical evidence, along with the factors outlined in
20 C.F.R. § 404.1529(c), indicate that plaintiff had certain
underlying medical impairments, but that these impairments did not
substantiate

the

degree

of

symptoms

about

which

plaintiff

complained at the hearing and in reports. See also 20 C.F.R.
§ 416.929. This conclusion is bolstered by the record evidence
indicating that plaintiff had multiple substance abuse problems
including at least one prior DWI, and documented concerns from
physician and pharmacy offices regarding plaintiff’s drug-seeking
behavior.

See, e.g.,

T.

576-88,

678,

680,

697.

The

evidence

submitted by plaintiff’s counsel to the Appeals Council does not
alter the validity of the ALJ’s evaluation.
C.

Determination That Plaintiff Could Perform Past Relevant
Work as Cashier

Plaintiff contends that the ALJ erred in assessing plaintiff’s
RFC and determining that plaintiff could perform past relevant work
as a cashier. Once again, plaintiff relies heavily on his own
testimony and reports in supporting the argument that the ALJ
should have found him unable to perform this past relevant work.
The

ALJ’s

finding

regarding

RFC,

however,

is

supported

by

substantial evidence. The ALJ properly gave significant weight to
the opinions of plaintiff’s treating physician, Dr. Garg, and gave
significant weight to the consultative examination completed by
Dr. Balderman, whose conclusions were wholly consistent with the

18

objective medical evidence contained within Dr. Garg’s treatment
records. Dr. Balderman noted that plaintiff had an essentially
normal exam with the exception of a limited range of motion in the
lumbar spine. T. 617-23. The ALJ’s conclusions were also consistent
with the physical RFC assessment, which found that plaintiff could
perform light repetitive work, requiring the use of one eye in a
low

contact

setting.

T.

92.

The

ALJ’s

conclusions

regarding

plaintiff’s RFC and ability to perform past relevant work are
therefore supported by substantial record evidence. The evidence
submitted by plaintiff’s counsel to the Appeals Council does not
alter the validity of the ALJ’s conclusion.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 7) is granted, and plaintiff’s
cross-motion (Doc. 8) is denied. The ALJ’s finding that plaintiff
was not disabled is supported by substantial evidence in the
record, and accordingly, the Complaint is dismissed in its entirety
with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
July 28, 2015

19