Pferrer-Tuttle v. Commissioner of Social Security
Filing
16
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; and denying 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/30/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TINA PFERRER-TUTTLE,
Plaintiff,
-vs-
No. 1:14-CV-00727 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Represented by counsel, Tina Pferrer-Tuttle (“plaintiff”)
brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
her applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). 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 reasons discussed below, plaintiff’s motion is
granted
to
the
extent
that
this
matter
is
remanded
to
the
Commissioner for further administrative proceedings consistent with
this Decision and Order.
II.
Procedural History
The
record
protectively
reveals
filed
that
applications
in
February
for
DIB
2011,
and
SSI,
plaintiff
alleging
disability as of July 31, 2009 due to back pain and bipolar
disorder. After her application was denied, plaintiff requested a
hearing, which was held before administrative law judge Michael
Friedman (“the ALJ”) on December 13, 2012. The ALJ issued an
unfavorable decision on December 19, 2012. The Appeals Council
denied review of that decision and this timely action followed.
III. Summary of the Evidence
A.
Plaintiff’s Reports
Plaintiff, who was 39 years old at the time of her hearing,
testified that she last worked as a nurse’s assistant in 2008, but
had to stop working due to “problems with [her] back” and a new
diagnosis of bipolar disorder. T. 70. She testified that her back
pain radiated to her legs, and that she had terminated physical
therapy and did not have surgery because her doctor told her it
would do “more damage than good.” Id. at 70-71. She used a TENS
unit daily, with an hour rest in between uses. According to
plaintiff, even when using the TENS unit, her pain was “over a 10,
and in cold weather [it was] even worse.” T. 76.
Plaintiff testified that she could stand and sit for half an
hour to an hour at the most, walk for up to 20 minutes at a time,
and lift five pounds. According to plaintiff, she could not perform
the duties of a “sit-down” job because she could not sit for more
than a half hour to an hour. T. 74.
She testified that she grocery
shopped with her boyfriend and did dishes, but could not vacuum,
2
and that she had to take breaks wen performing household chores
like laundry. She stated that she used to enjoy horseback riding
and drawing, but that she could no longer do these activities
because of her back pain. She testified that she watched television
but that she “really [could not] stay concentrating on a book.”
T. 73. She also stated that she found it hard to concentrate,
focus, and be around people she did not know, but that medication
prescribed by her psychiatrist helped.
In a function report, plaintiff stated that she could cook
only simple meals that did not take long to prepare, and that she
could clean and do dishes and laundry but with breaks due to back
pain.
She
reported
that
she
went
outside
only
for
doctor’s
appointments and grocery shopping. She also stated that she got
“very nervous being around people” and shopped only once a month so
as to avoid interacting with people. T. 216.
B.
Medical Evidence
1.
Treating Sources
Treatment records from Family Health Medical Services (“Family
Health”) covering the time period from approximately May 2011
through August 2012 document plaintiff’s repeated complaints of
back pain and treatment by Dr. Jeremy Riedesel. Plaintiff also
treated with Family Health on at least two occasions for epidural
injections for back pain. Although these treatment notes contain
references to plaintiff’s repeated complaints of back pain, most of
3
the notations of physical examinations during this time period show
essentially normal findings, and often did not include neurological
or
musculoskeletal
findings.
Plaintiff’s
mental
status
was
consistently noted as essentially normal.
In April 2011, plaintiff entered into a pain management
contract with Family Health, in which she agreed to routine drug
testing. Plaintiff’s treatment included prescriptions for several
medications, including Trazodone, Seroquel, and Citalopram for mood
symptoms, naproxen and hydrocodone/acetaminophen for pain, DepoProvera for contraception, Topamax for headaches, and Levothyroxine
for hyperthyroidism. Also in April 2011, plaintiff reported that
her pain improved with physical therapy and use of a TENS unit. At
that time, Dr. Riedesel noted limited ranges of motion (“ROM”) due
to back pain, and a positive straight leg raise (“SLR”) test.
Dr.
Riesedel
noted
that
he
believed
plaintiff’s
“functional
capacity [was] very limited due to her low back pain” and that she
was unable to work at that time. T. 310. He referred plaintiff to
a neurosurgeon for follow-up.
On follow-up with neurosurgeon Dr. Walter Grand in May 2011,
plaintiff had increased lordosis of the spine, but no definitive
abnormality. She had limited ROM upon bending and moving side to
side, but could stand on heels and toes, had a normal gait, and
demonstrated good muscle and motor strength. Dr. Grand noted that
he saw “no clear-cut focal signs” for plaintiff. T. 434. Plaintiff
4
next saw Dr. Jody Leonardo, another neurologist, who noted full
motor strength but a positive Hoffman’s sign in the left arm, for
which an MRI showed no etiology. The MRI also showed a normal skull
base and a high cervical portion within normal limits. Flexion
extension x-rays showed no instability with flexion or extension.
In July 2011, Dr. Leonardo reviewed a March 2011 MRI which showed
a centrally herniated disc at L4-L5. Upon examination, plaintiff
had
full
motor
strength
but
uneven
reflexes
and
a
positive
Hoffman’s sign. Dr. Leonardo recommended conservative treatment
including physical therapy and epidural steroid injections.
In April 2011, plaintiff was seen at the Westfield Memorial
Hospital ER for a seizure secondary to an accidental overdose of
Ultram, a pain medication. Plaintiff reported having run out of
Vicodin and taking an overdose of Ultram to compensate. An MRI of
her brain was normal, and plaintiff was discharged after a one-day
stay at Saint Vincent Health Center.
As noted above, most of the treatment notes from Family Health
did
not
note
findings
of
neurological
or
musculoskeletal
examinations, with the following exceptions. In October 2011,
neurological examination was normal. In June 2012, neurological and
musculoskeletal examinations were normal, plaintiff had an even
gait, and plaintiff demonstrated five out of five strength of upper
and
lower
neurological
extremities.
and
Later
that
musculoskeletal
5
month,
symptoms
plaintiff
and
was
denied
noted
as
displaying comfort throughout the neurological exam. In July 2012,
plaintiff had a slow gait, but spinal landmarks and spinal contour
were noted as normal. In August 2012, plaintiff had a normal gait,
but reported being “[e]xtremely limited due to pain”; Dr. Riedesel
increased her hydrocodone dosage. T.624-25.
Plaintiff treated with Dr. Ralph Walton at Family Health for
psychiatric symptoms. Dr. Walton noted a diagnosis of bipolar
disorder, and his treatment notes, dated March 2011 through October
2012,
discuss
boyfriend.
He
plaintiff’s
prescribed
repeated
Seroquel
relationships
for
mood
with
symptoms,
her
which
plaintiff reported helped to stabilize her moods. Dr. Walton’s
treatment
records
do
not
contain
notes
of
mental
status
examinations, but rather narrative summaries of treatment sessions.
After the ALJ’s decision, Plaintiff submitted a medical source
statement
from
Dr.
statement,
dated
depressive
Walton
March
episodes,
27,
and
to
the
2013,
opined
Appeals
Dr.
that
Council.
Walton
noted
plaintiff
had
In
that
frequent
a
marked
limitation making judgments on complex work-related decisions;
moderate limitation in understanding, remembering, and carrying out
complex
instructions;
and
mild
limitation
in
interacting
appropriately with the public, supervisors, and coworkers and in
responding appropriately to work situations and changes in a
routine setting. According to Dr. Walton, plaintiff was not capable
of working “in any capacity” at that time. T. 10. Dr. Walton also
6
checked
boxes
indicating
that
it
was
“not
recommended”
that
plaintiff be exposed to noise, a high rate of working speed,
responsibility for others, or responsibility for decisions.
2.
Consulting Sources
Dr. Nikita Dave completed a consulting internal medicine
examination in April 2011. Plaintiff reported the ability to cook,
shower, bathe, and dress daily, and stated that she did “limited
cleaning,
laundry,
and
shopping.”
T.
313.
Plaintiff
reported
tenderness in the lumbar spine, and straight leg raise of the
bilateral lower extremities was positive at 65 to 70 degrees.
Otherwise, physical exam was essentially normal. Dr. Dave opined
that plaintiff had “[m]oderate limitation for prolonged sitting,
standing, walking, repetitive bending to the lumbar spine, lifting,
carrying,
pushing,
pulling
of
heavy
objects,
pending
further
consults and plan.” T. 315.
Dr. Sandra Jensen, Ph.D., completed a psychiatric evaluation
in April 2011. Plaintiff reported that with the addition of a
recent new medication, Seroquel, her bipolar disorder symptoms had
improved, but stated that she “still [had] some ups and downs,” and
was
“more
depressed
examination,
than
plaintiff’s
manic.”
T.
317.
“[m]otor behavior
On
was
mental
status
restless,”
eye
contact was poor, speech was “prosodic [and] fast in rate,” thought
processes were “[a] little circumstantial, but coherent,” affect
was irritable, mood was neutral, and plaintiff was oriented times
7
three. T. 317-18. Her attention and concentration were mildly
impaired due to anxiety, she was able to do one-step but not twostep calculations, and she could perform serial threes only with
great concentration. Recent and remote memory skills were intact,
and she demonstrated average intellectual functioning. Plaintiff
reported being able to “do all ADLs except as limited by pain.”
T. 318.
Regarding vocational functional capacity, Dr. Jensen opined
that plaintiff was “able to follow and understand simple directions
and instructions, perform simple tasks independently, maintain
attention and concentration, maintain a regular schedule, learn
tasks, and perform complex tasks with supervision within normal
limits.”
T.
318-19.
Dr.
Jensen
also
opined
that
plaintiff’s
“ability to make appropriate decisions, relate adequately with
others, and appropriately deal with stress [would] be mildly to
markedly
impaired
because
of
bipolar
disorder
and
resultant
anxiety.” T. 319.
Dr. T. Andrews completed a psychiatric review technique form
in
June
2011.
Dr.
Andrews
concluded
that
plaintiff’s
mental
impairment was not severe, and opined that she had no limitations
in
ADLs,
no
difficulties
concentration,
repeated
episodes
maintaining
social
persistence,
or
of
decompensation,
functioning
pace.
Based
and
on
and
mild
maintaining
a
review
of
plaintiff’s medical record, Dr. Andrews found that plaintiff was
8
“psychiatrically able to perform [substantial gainful activity],
but may benefit from work in a low stress, low contact occupation.”
T. 448. Dr. Andrews specifically stated that he gave “little
weight” to Dr. Jensen’s conclusion that plaintiff would be mildly
to markedly limited in making appropriate decisions, relating with
others, and appropriately dealing with stress, opining that “this
statement [was] not consistent with [Dr. Jensen’s] own findings and
diagnosis (no anxiety [disorder]).” Id.
In May 2012, Dr. Edward Layne, a consulting neurosurgeon,
reviewed plaintiff’s medical record and affirmed a June 14, 2011
disability assessment performed by single decision maker J. Davie,
specifically noting that he affirmed the assessment of credibility
assessment as well as functional capacity. The June 2011 assessment
noted conflicts in plaintiff’s reports of pain due to headaches,
and opined that plaintiff’s medical record “warrant[ed] restriction
to light work due to ongoing low back pain.” T. 84. The assessment
also found that plaintiff could occasionally lift 20 pounds,
frequently lift 10 pounds; sit, stand, and/or walk for six hours in
an
eight-hour
workday;
push
and
pull
without
limitation;
occasionally climb ladders, ropes, and scaffolds; occasionally
stoop and crawl; and frequently climb stairs, balance, kneel, and
crouch.
9
IV.
The ALJ’s Decision
The ALJ followed the well-established five-step sequential
evaluation
promulgated
by
the
Commissioner
for
adjudicating
disability claims. See 20 C.F.R. § 404.1520. Initially, the ALJ
found that Plaintiff met the insured status requirements of the Act
through December 31, 2009. At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since
July 31, 2009, the alleged onset date. At step two, the ALJ found
that plaintiff’s back pain/lumbago and bipolar disorder were severe
impairments. At step three, the ALJ found that plaintiff did not
have an impairment or combination of impairments that met or
medically equaled a listed impairment. In assessing the effects of
plaintiff’s bipolar disorder on her functioning and applying the
“B” criteria of the listings, the ALJ concluded that plaintiff had
no restrictions in activities of daily living (“ADLs”), mild
restrictions
in
social
functioning,
and
moderate
difficulties
maintaining concentration, persistence or pace. The ALJ found that
plaintiff had no prior episodes of decompensation.
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work, except that she could perform only simple
work requiring occasional contact with others. At step four, the
ALJ found that plaintiff did not have the ability to perform past
relevant work. At step five, the ALJ determined that, considering
10
plaintiff’s age, education, work experience, and RFC, jobs existed
in significant numbers in the national economy that plaintiff could
perform. The ALJ found that plaintiff’s nonexertional impairments
did not significantly erode the occupational base of unskilled
sedentary work, and referenced the Medical-Vocational Guidelines
(“the grids”), specifically grid rule 204.00, in determining that
jobs existed which plaintiff could perform. Accordingly, the ALJ
concluded that plaintiff was not disabled.
V.
Discussion
A
district
court
may
set
aside
the Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff contends that (1) the Appeals Council erred in
declining to find a treating psychiatrist opinion, submitted after
the hearing decision, to be new and material evidence; (2) the
ALJ’s mental RFC finding was unsupported by substantial evidence;
(3) the ALJ erred in failing to call a vocational expert (“VE”);
and (5) the ALJ improperly assessed plaintiff’s credibility.
11
A.
Evidence Submitted to Appeals Council
Plaintiff
argues
that
the
March
27,
2013
from
treating
psychiatrist Dr. Walton was new and material evidence and that the
Appeals Council should have reviewed the ALJ’s decision based on
this evidence. The Appeals Council considered the opinion, but
found that it related to a time period after the ALJ’s decision,
and therefore did not affect it.
“If the new evidence relates to a period before the ALJ's
decision, the Appeals Council ‘shall evaluate the entire record
including the new and material evidence submitted . . . [and] then
review the case if it finds that the administrative law judge’s
action, findings, or conclusion is contrary to the weight of the
evidence currently of record.’”•Perez v. Chater, 77 F.3d 41, 44 (2d
Cir. 1996) (citing 20 C.F.R. §§ 404.970(b), 416.1470(b)). Evidence
is
“new”
when
it
has
not
been
considered
previously
in
the
administrative process. See Ovitt v. Colvin, 2014 WL 1806995, *3
(N.D.N.Y. May 7, 2014). New evidence is “material” where it is both
relevant to the plaintiff’s condition during the relevant time
period, and
probative.
Pollard
v.
Halter,
377
F.3d
183, 193
(2d Cir. 2004). “The concept of materiality requires, in addition,
a
reasonable
possibility
that
the
new
evidence
would
have
influenced the [Commissioner] to decide claimant's application
differently.” Id.
12
Dr. Walton’s report was new, as it was prepared after the date
of the ALJ’s decision. Contrary to the Appeals Council’s finding,
however, Dr. Walton’s report was relevant to the applicable time
period. The
report
applicability,
but
does
not
specifically state
plaintiff
had
a
any
longstanding
dates of
treatment
relationship with Dr. Walton which predated the ALJ’s decision and
which was apparent from the administrative record. See, e.g.,
Davidson v. Colvin, 2013 WL 5278670, *7 (N.D.N.Y. Sept. 18, 2013)
(holding that evidence was not merely cumulative, where record had
not previously contained an opinion from a treating psychiatrist);
cf. Collins v. Comm’r of Soc. Sec., 960 F. Supp. 2d 487, 501
(S.D.N.Y. 2013) (holding that new evidence was not material,
because none of the medical professionals had treated claimant
during the relevant time period).
Additionally,
Dr.
Walton’s
report
was
probative,
as
it
constituted an opinion from a treating psychiatric source, which
evidence was absent from the record at the time the ALJ issued his
decision. Finally, there is a reasonable possibility that this
report may have changed the ALJ’s decision, because it provides a
treating source’s
capabilities
which
functional
is
assessment
considerably
more
of
plaintiff’s mental
restrictive
than
any
evidence previously in the record. This is especially significant
in light of the fact that the only functional assessments relied
upon by the ALJ came from consulting sources, and Dr. Walton’s
13
report would be entitled to controlling weight under the treating
physician rule. See, e.g., Davidson, 2013 WL 5278670, at *8-9
(“[W]here newly submitted evidence consists of findings made by a
claimant's treating physician, the treating physician rule applies,
and the Appeals Council must give good reasons for the weight
accorded to a treating source's medical opinion. . . . Failure to
provide good reasons for not crediting the opinion of a claimant’s
treating physician is grounds for remand”) (internal quotation
marks omitted).
The Appeals Council erred in failing to consider the report,
as it became part of the administrative record at the time of its
submission to the Appeals Council:
The regulations require the Appeals Council to “evaluate
the entire record including the new and material evidence
submitted . . . [and] review the case if it finds that
the [ALJ's] action, findings, or conclusion is contrary
to the weight of the evidence currently of record.” [20
C.F.R. §§ 404.970(b) [and] 416.1470(b)]. Therefore, even
when the Appeals Council declines to review a decision of
the ALJ, it reaches its decision only after examining the
entire record, including the new evidence submitted after
the ALJ's decision.
Perez, 77 F.3d at 45. The Appeals Council did not conduct the
required examination of the record here, because it dismissed of
the new evidence as applying to a time period after the ALJ’s
decision, rather than properly considering the new evidence as part
of the administrative record. The case is therefore remanded for
consideration of this new evidence, with proper application of the
treating physician rule.
14
B.
Mental RFC; Weight Accorded to Dr. Jensen’s Opinion
At the time the ALJ made his decision, the administrative
record contained two consulting opinions regarding plaintiff’s
mental functional capacity. The first, by Dr. Jensen, was based on
Dr. Jensen’s examination of plaintiff. The second, by Dr. Andrews,
was based on Dr. Andrews’ evaluation of plaintiff’s medical record,
including Dr. Jensen’s report. Although Dr. Jensen stated, rather
vaguely, that plaintiff would be “mildly to markedly” impaired in
making appropriate decisions, relating adequately with others, and
appropriately dealing with stress, Dr. Andrews opined that these
limitations were not supported by plaintiff’s overall medical
record and by Dr. Jensen’s examination specifically.
Plaintiff contends that the ALJ erred in formulating a mental
RFC and in so doing, giving little weight to Dr. Jensen’s opinion
regarding plaintiff’s limitations. However, Dr. Andrews, also a
qualified consulting medical professional, concluded that plaintiff
had
mild
limitations
in
maintaining
social
functioning
and
maintaining concentration, persistence, and pace. The ALJ, in turn,
actually concluded that plaintiff’s limitations were greater than
those assessed by Dr. Andrews: the ALJ found that while plaintiff
had mild limitations in social functioning, she had moderate
limitations in maintaining concentration, persistence, or pace. The
ALJ then incorporated Dr. Andrews’ opinion that plaintiff could
work “but may benefit from work in a low stress, low contact
15
occupation” when he found that plaintiff could perform simple work
requiring only occasional contact with others.
Considering the record before the ALJ, it cannot be said that
the ALJ’s finding was not based on substantial evidence. However,
with
the
addition
of
the
functional
assessment
submitted
by
treating psychiatrist Dr. Walton, the ALJ’s interpretation of the
two consulting opinions may have changed. On remand, the ALJ is
directed to reassess plaintiff’s mental RFC with reference to all
of the relevant medical opinions, and accord each the weight he
deems appropriate under the regulations, considering the entire
administrative record.
C.
Failure to Call Vocational Expert
Plaintiff contends that the ALJ erred in failing to call a VE.
Where a claimant's nonexertional impairments significantly diminish
her ability to work beyond any incapacity caused solely from
exertional limitations, and she is unable to perform the full range
of employment under the grids, a VE must be consulted. See Bapp v.
Bowen, 802 F.3d 601, 603 (2d Cir. 1986). However, "the mere
existence of a nonexertional impairment does not automatically
require the production of a vocational expert nor preclude reliance
on the guidelines." Id. at 602. To establish that reference to the
grids is inadequate and that the use of a vocational expert is
mandatory, nonexertional impairments must "so narrow[] a claimant's
16
possible
range
of
work
as
to
deprive
[her]
of
a
meaningful
employment opportunity." Id.
There was no such evidence before the ALJ in this case. See,
e.g., Velez v. Astrue, 2013 WL 474281, *12 (N.D.N.Y. Feb. 7, 2013)
(“Plaintiff does not cite to any portion of the record or any
treatment
note that
impairments
indicates
significantly
that
impacted
plaintiff's
his
non-exertional
ability
to
perform
work-related functions.”). As the Court has already found, based
upon the record before him, the ALJ’s mental RFC was supported by
substantial evidence. Therefore, the ALJ was entitled to rely on
the grids. See Medley v. Colvin, 2015 WL 4112477, at *5 (W.D.N.Y.
July 8, 2015) ("[S]ince Plaintiff's non-exertional limitations did
not significantly erode her occupational base for work at all
exertional levels, the ALJ properly applied Grid Rule 204.00 as a
framework for determining that Plaintiff was not disabled within
the meaning of the Act.").
This finding by the Court should not be taken to mean that a
VE will be unnecessary upon consideration after remand. On remand,
taking the entire record into consideration, including Dr. Walton’s
treating opinion, “when considering nonexertional impairments, the
ALJ must first consider the question – whether the range of work
the plaintiff could perform was so significantly diminished as to
require the introduction of vocational testimony.” Velez, 2013 WL
474281, at *11. If the ALJ so finds, the “Secretary must introduce
17
the testimony of a vocational expert (or other similar evidence)
that jobs exist in the economy which claimant can obtain and
perform.” Bapp, 802 F.2d at 603.
E.
Credibility
Plaintiff
contends
that
the
ALJ
improperly
assessed
plaintiff’s credibility, arguing that the ALJ failed to explicitly
consider the various factors laid out in 20 C.F.R. § 404.1529.
However, an ALJ’s failure to address each particular factor “does
not necessarily mean it was not considered.” Dillingham v. Colvin,
2015 WL 1013812, *7 (N.D.N.Y. Mar. 6, 2015) (emphasis in original).
“Reviewing courts are more concerned with whether administrative
decisions reflect that the entire record was considered, whether
the
substance
traversed,
and
of
the
whether
prescribed
the
analytical
ultimate
finding
protocol
is
was
supported
not
by
substantial evidence.” Id. (citing Cichocki v. Astrue, 729 F.3d
172, 177–78 (2d Cir. 2013) (declining to adopt a per se rule that
failure to provide a prescribed function-by-function analysis of
residual functional capacity is grounds for remand)).
The
ALJ
found
plaintiff
not
fully
credible
as
to
the
“intensity, persistence and limiting effects of [her] symptoms.”
T. 52. In the context of his discussion of plaintiff’s credibility
and review of the record, the ALJ cited, among other sources,
20 C.F.R. §§ 404.1529 and 416.929, and SSR 96-7p. The ALJ's
decision, which incorporates his review of the testimony, indicates
18
that the ALJ used the proper standard in assessing credibility,
especially in light of the fact that the ALJ cited relevant
authorities in that regard. See Britt v. Astrue, 486 F. App'x 161,
164
(2d
Cir.
2012)
(finding
explicit
mention
of
20
C.F.R.
§ 404.1529 and SSR 96-7p as evidence that the ALJ used the proper
legal standard in assessing the claimant's credibility); Judelsohn
v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y. June 25, 2012) ("Failure
to expressly consider every factor set forth in the regulations is
not
grounds
for
remand
where
the
reasons
for
the
ALJ's
determination of credibility are sufficiently specific to conclude
that he considered the entire evidentiary record."). Although there
was evidence
in
the
record
to
support
an
underlying medical
impairment which resulted in plaintiff’s complaints of pain, there
was also evidence to indicate that these complaints were not
supported by the medical record as a whole. Although Dr. Riedesel
intermittently recorded plaintiff’s limited range of motion and
pain upon examination, he also often recorded normal findings, and
other treating sources, including Drs. Leonardo and Grand, also
made essentially normal findings. After a review of the record
evidence and the ALJ’s decision, the Court concludes that the ALJ’s
credibility determination was based on a proper application of the
law and is supported by substantial record evidence.
19
VI.
Conclusion
For the foregoing reasons, the Commissioner’s cross-motion for
judgment on the pleadings (Doc. 13) is denied, and plaintiff’s
motion for judgment on the pleadings (Doc. 9) is granted to the
extent that this matter is remanded to the Commissioner for further
administrative proceedings consistent with this Decision and Order.
The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
September 30, 2015
Rochester, New York.
20
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