Williams v. Colvin

Filing 12

DECISION AND ORDER DENYING Plaintiff's 6 Motion for Judgment on the Pleadings; GRANTING Defendant's [8-1] Motion for Judgment on the Pleadings; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 8/7/2017. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DION WILLIAMS,
Plaintiff,
v.

DECISION AND ORDER
14-CV-947S

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

Plaintiff Dion Williams challenges Administrative Law Judge Donald T.

McDougall’s (“ALJ”) determination that he is not disabled within the meaning of the
Social Security Act and therefore not entitled to disabled widower’s benefits (“DWB”) or
disability insurance benefits (“DIB”). Plaintiff alleges that he has been disabled since his
alleged onset date of February 14, 2003, due to his diagnoses of cervical and
lumbosacral strain (Tr. at 232 1); depressive disorder, NOS, and anxiety disorder, NOS
(Tr. at 329); post-traumatic stress disorder (“PTSD”), chronic (Tr. 260, 323, 447); partial
tear of the left shoulder rotator cuff (Tr. at 732); C4 through C7 disc bulge; L4 through
L5 foraminal stenosis (Tr. 467, 1092); and greater occipital neuralgia, muscle spasm,
and lumbar facet arthropathy (Tr. at 1277).
2.

Plaintiff protectively filed an application for DWB and DIB on September

14, 2011, which was denied on January 19, 2012. (Tr. at 171, 100.) Plaintiff thereafter
requested an administrative hearing.

On March 22, 2013, the ALJ conducted an

administrative hearing, at which Plaintiff testified. (Tr. at 43.) The ALJ subsequently
denied Plaintiff’s claim on June 13, 2013. (Tr. at 41-89, 12-40.) On July 13, 2013,

1

Transcript references (Tr. at __) are to the transcript of the administrative record.

1

Plaintiff requested review of the hearing decision, which the Appeals Council later
denied on September 22, 2014. (Tr. at 1-5.)
3.

Plaintiff filed this action on November 10, 2014. (Docket No. 1.) On July

6, 2015, Plaintiff filed a Motion for Judgment on the Pleadings. (Docket No. 6.) On
September 2, 2015, Defendant likewise filed a Motion for Judgment on the Pleadings.
(Docket No. 8.) After full briefing, this Court reserved decision without oral argument.
4.

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, this Court
may reverse a Commissioner’s determination only if it is not supported by substantial
evidence or is based upon legal error. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.
1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)).

Substantial

evidence is that which amounts to “more than a mere scintilla,” which the Supreme
Court defines as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)). Where evidence is deemed
susceptible to more than one rational interpretation, the Commissioner’s conclusion
must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5.

“To determine on appeal whether the ALJ's findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides . . . includ[ing] that which detracts from its weight.” Williams
on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). This Court must
sustain the Commissioner’s finding if supported by substantial evidence “even where
substantial evidence may support the plaintiff's position and despite that the court's
2

independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992).

This Court must give the

Commissioner's determination considerable deference and will not substitute “its own
judgment for that of the [Commissioner], even if it might justifiably have reached a
different result upon a de novo review.” Valente v. Sec’y of Health & Human Servs.,
733 F.2d 1037, 1041 (2d Cir. 1984).
6.

The Commissioner must use a five-step analysis to determine whether an

individual is disabled as defined under the Act.

See 20 C.F.R. §§ 404.1520, 416.920;

Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119
(1987). This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which
is listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a “listed” impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d at 467 (per curiam) (quotations in original); see also 20
C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
7.

The claimant has the burden to prove the first four steps and the

Commissioner has the burden to prove the fifth step. See Bowen, 482 U.S. at 146 n.5;
Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
3

In the fifth step, the

Commissioner must first assess the claimant's job qualifications by considering his
physical ability, age, education, and work experience, then determine whether jobs exist
in the national economy that a person having the claimant's qualifications could perform.
See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S.
458, 460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
8.

In this case, the ALJ made the following findings regarding the five steps:

(1) Plaintiff did not engage in substantial gainful activity since February 14, 2003; (2)
Plaintiff’s full thickness left rotator cuff lesion, status post-surgery; lumbar facet
arthropathy; disc bulges in the cervical spine; PTSD; and depressive disorder were
severe impairments; (3) Plaintiff’s impairments did not meet or equal the severity of
any listed impairments; (4) Plaintiff is unable to perform his past relevant work; and (5)
Plaintiff could perform other jobs in the economy based on his age, education, work
experience, and residual functional capacity. (Tr. at 17, 18, 31, 32.)
9.

Plaintiff claims that the ALJ misapplied the treating-physician rule when he

afforded Plaintiff’s four treating physicians—Dr. Alfonso Tan, Dr. Pamela Hughes, Dr.
Michael Grant, and Dr. Anthony Morgante—less than controlling or great weight.
Defendant argues that the ALJ properly considered all of the medical evidence,
including Plaintiff’s treating physicians’ opinions.
10.

Plaintiff first claims that the ALJ erred when he afforded Dr. Tan less than

controlling or great weight. Dr. Tan is a specialist in psychiatry, saw Plaintiff monthly,
and provided psychiatric evaluations for Plaintiff as his treating physician. (Tr. at 40708, 441, 1268-1892.) Dr. Tan diagnosed Plaintiff with PTSD, depressive disorder NOS,
bipolar disorder, dysthymia, and noted that he feared heights. (Tr. at 393, 408, 444.)
4

Between 2010 and 2013, Dr. Tan noted that Plaintiff’s Global Assessment of
Functioning (“GAF”) scores ranged from 55 to 75, most commonly falling at 65. (Tr. at
390-405.)

Dr. Tan stated that Plaintiff is permanently disabled since 2003. (Tr. 445.)

The ALJ considered and discussed Dr. Tan’s opinion, but afforded it little weight
because it was inconsistent with Dr. Tan’s own office notes and Plaintiff’s GAF scores.
(Tr. at 30.)
11.

The treating-physician rule requires that an ALJ give the medical opinion

of a claimant's treating physician “controlling weight if it is well supported by medical
findings and not inconsistent with other substantial record evidence.” Shaw v. Chater,
221 F.3d 126, 134 (2d Cir. 2000); see 20 C.F.R. § 404.1527(c)(2). The “less consistent
[a treating physician’s] opinion is with the record as a whole, the less weight it will be
given.” Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999). The ALJ must give “good
reasons” for giving a treating physician’s medical opinion less than controlling weight,
and failure to do so is a ground for remand. See 20 C.F.R. § 404.1527(c)(2); Halloran
v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). When the ALJ does not give a treating
physician's medical opinion controlling weight, he must explain how he weighed the
factors in 20 C.F.R. § 404.1527(c).

Reyes v. Barnhart, 226 F. Supp. 2d 523, 529

(S.D.N.Y. 2002).
12.

“In evaluating opinion evidence, an ALJ may properly consider, among

other information, whether a treating source's opinion is consistent with the GAF scores
assessed by that treating source.”

Garcia v. Colvin, No. 13-CV-6433P, 2015 WL

1280620, at *7 (W.D.N.Y. Mar. 20, 2015); see, e.g., Thomas v. Astrue, No. 08 Civ.
8444(PGG), 2010 WL 1388997, *13 (S.D.N.Y. 2010). An ALJ may not rely on any test
5

score alone in making a decision on the extent of a claimant’s limitation. Camille v.
Colvin, 104 F. Supp. 3d 329, 342 (W.D.N.Y. 2015), aff'd, 652 F. App'x 25 (2d Cir. 2016).
13.

Plaintiff argues that the ALJ should have given Dr. Tan’s opinion

controlling weight because he was Plaintiff’s treating physician. Alternatively, Plaintiff
argues that the ALJ should have given Dr. Tan’s opinion great weight under the factors
in 20 C.F.R. § 404.1527, because he had a treatment relationship with Plaintiff, saw
Plaintiff monthly, his opinion is consistent with the record and other providers’ opinions,
and he is a specialist in psychiatry. (Tr. at 441, 1268-1892.) Plaintiff further argues that
Dr. Tan’s opinion is consistent with the record, in part because GAF scores are not
useful in assessing his residual functional capacity (“RFC”) and are no longer used by
the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. See Corporan
v. Comm’r of Soc. Sec., No. C10–5103, 2011 WL 321832, at *22 n. 9 (S.D.N.Y. Jan. 23,
2015).
14.

In response, Defendant argues that the ALJ reasonably gave Dr. Tan’s

opinion less than controlling weight, because Dr. Tan’s notes were inconsistent with his
opinion. Defendant further argues that Dr. Tan’s GAF findings indicated at worst, mild
limitations, which is inconsistent with his determination that Plaintiff had significant
limitations and was unable to work. (Tr. at 30.)
15.

In this Court’s view, substantial evidence supports the ALJ’s decision to

give Dr. Tan’s opinion little weight. On February 15, 2013, Dr. Tan concluded that
Plaintiff had been permanently disabled since 2003, and was unable to work because
he had anxiety related to heights. (Tr. at 394, 445.) Dr. Tan also concluded that
Plaintiff was seriously limited in his ability to travel to new places, use public
6

transportation, complete a normal work schedule without interruption, perform at a
consistent pace, and interact with coworkers and supervisors. (Tr. at 443-45.)
16.

But after Dr. Tan diagnosed Plaintiff with PTSD, depressive disorder NOS,

and bipolar disorder on February 25, 2010, his office notes from 2011 to 2012 reflect
that Plaintiff’s mood was “getting better,” that he was “doing better,” and that he was
“keeping [him]self busy.”

(Tr. at 391, 403, 405.)

Dr. Tan’s objective evaluation

indicated that Plaintiff’s affect was appropriate; his speech was normal; his thought
process was organized; his memory, concentration, and attention were good; his
orientation was alert; and his judgment and insight were good. (Tr. at 390-405, 438-39.)
These findings remained unchanged throughout Plaintiff’s appointments, except for
Plaintiff’s mood, which Dr. Tan rated as euthymic 11 times, depressed six times, and
elevated once. (Id.) Plaintiff’s GAF scores ranged from 55 to 75, indicating some mild
symptoms or some difficulty in social, occupational, or school functioning, but generally
functioning pretty well, with some meaningful interpersonal relationships. (Tr. at 390405, 438-39; see American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 34 (4th ed., text revision 2000). Here, the ALJ did not err when he
considered Plaintiff’s GAF scores, because he considered the whole of Dr. Tan’s office
notes, not just Plaintiff's GAF scores, in finding that Dr. Tan's opinions were inconsistent
with and unsupported by his treatment notes.

(Tr. at 28.)

Dr. Tan’s subjective

comments, objective evaluations, and assessment of Plaintiff’s GAF scores are all
inconsistent with his opinion that Plaintiff is permanently disabled and unable to work.
The ALJ’s decision to discount Dr. Tan’s opinion is therefore supported by substantial
evidence in the record.
7

17.

Plaintiff’s second claim is that the ALJ erred when he afforded Dr. Hughes

less than controlling or great weight. Dr. Hughes is a specialist in psychology, saw
Plaintiff weekly or biweekly for six months, and provided therapy for Plaintiff as his
treating physician.

(Tr. at 447, 450.)

Dr. Hughes diagnosed Plaintiff with major

depressive disorder, assessed Plaintiff’s GAF score at 50, indicated Plaintiff had fear
associated with heights, and opined that Plaintiff was unable to meet standards of work.
(Tr. 452.) The ALJ gave Dr. Hughes’ opinion little weight because her opinion did not
correlate with the specific problems she identified and was inconsistent with Dr. Tan’s
office notes. (Tr. at 28-29, 30.)
18.

Plaintiff argues that the ALJ should have given Dr. Hughes’ opinion

controlling weight because Dr. Hughes was Plaintiff’s treating physician. Alternatively,
Plaintiff argues that the ALJ should have given Dr. Hughes’ opinion great weight under
the factors in 20 C.F.R. § 404.1527 because she had a treatment relationship with
Plaintiff, saw Plaintiff weekly or biweekly for six months, her opinion is consistent with
the record and other providers’ opinions, and she is a specialist in psychology. (Tr. at
447, 448.) Plaintiff further argues that Plaintiff’s GAF scores reported by Dr. Tan are not
inconsistent with Dr. Hughes’ opinion because GAF scores are not useful in assessing
his RFC.
19.

In response, Defendant argues that the ALJ reasonably afforded Dr.

Hughes’ opinion less than controlling weight because her opinion is inconsistent with
her office notes and with Dr. Tan’s office notes. Defendant argues that Dr. Hughes’
opinion that Plaintiff had significant limitations and was unable to work was inconsistent
with her office notes because they indicated most of Plaintiff’s problems involved
8

anxiety surrounding heights. (Tr. at 30, 447-48, 450-54.) Defendant further argues that
Dr. Hughes’ opinion was also inconsistent with Dr. Tan’s assignment of GAF scores that
indicated, at worst, only mild limitations. (Tr. at 30.)
20.

In this Court’s view, substantial evidence supports the ALJ’s decision to

give Dr. Hughes’ opinion little weight. Dr. Hughes opined that Plaintiff is unable to meet
competitive standards in his ability to understand and remember short and simple
instructions; maintain attention for two-hour segments; maintain attendance; be
punctual; complete a normal workday or workweek without interruptions from
symptoms; perform at a consistent pace; and interact with co-workers. (Tr. at 452-53.)
She opined that Plaintiff is seriously limited in his ability to accept instructions and
respond appropriately to criticism. (Tr. at 453.) But when Dr. Hughes described the
effects of Plaintiff’s PTSD symptoms, she specified only that Plaintiff was limited in his
ability to cross bridges, ride elevators, fly, and climb ladders more than five steps. (Tr.
at 448.) Moreover, Dr. Hughes’ opinion is inconsistent with Dr. Tan’s opinion, which
indicates that Plaintiff was “doing better,” and showing good or appropriate functioning.
(Tr. at 390-405, 438-39.) Dr. Tan also indicated that Plaintiff’s aptitude for unskilled
work was most commonly “limited but satisfactory” in a Mental Residual Functional
Capacity Questionnaire (“MRFCQ”) on February 15, 2013, unlike Dr. Hughes’ MRFCQ
on February 27, 2013, which indicates that Plaintiff was mostly “unable to meet
competitive standards.”

(Tr. at 443-44, 453-54.) Thus, Dr. Hughes’ description of

Plaintiff’s PTSD symptoms and Dr. Tan’s office notes are both inconsistent with Dr.
Hughes’ opinion that Plaintiff is unable to meet standards of work. The ALJ’s decision

9

to discount Dr. Hughes’ opinion on this basis is therefore supported by substantial
evidence in the record.
21.

Plaintiff’s third claim is that the ALJ erred when he afforded Dr. Grant’s

opinion less than great weight. Dr. Grant is a specialist in orthopedic surgery who
examined Plaintiff and saw him for four years. (Tr. 1283-1309.) Dr. Grant opined that
Plaintiff was totally disabled from work.

(Tr. 1283-1309.)

The ALJ found that Dr.

Grant’s opinion is not supported by the EMG and nerve conduction tests noted in his
records. (Tr. at 29.)
22.

Whether a claimant is “disabled” or “unable to work” is an issue reserved

to the Commissioner, not a medical source. 20 C.F.R. § 404.1527(d)(1). Although the
ALJ must consider opinions from medical sources on issues reserved to the
Commissioner and apply the factors in 20 C.F.R. § 404.1527(d), the ALJ is not required
to give controlling weight or special significance to these opinions. 20 C.F.R. §
404.1527(d)(2); Snell, 177 F.3d at 133; SSR 96-5P, 1996 WL 374183 at *2, *3 (July 2,
1996).
23.

Plaintiff argues that the ALJ should have given Dr. Grant’s opinion great,

although not controlling, weight under the factors in 20 C.F.R. § 404.1527, because he
was Plaintiff’s treating physician, saw Plaintiff for four years, his opinion is consistent
with the record and other providers’ opinions, and he is a specialist in orthopedic
surgery. (Tr. at 1283-1309.) Plaintiff further argues that the ALJ erred when he did not
state what weight he afforded Dr. Grant’s opinion and did not apply the factors in 20
C.F.R. § 404.1527. Defendant argues that the ALJ reasonably afforded Dr. Grant’s
opinion less than controlling weight because a treating physician’s opinion concerning
10

Plaintiff’s disabled status is an issue reserved for the Commissioner, so it is not entitled
to controlling weight or special significance.
24.

In this Court’s view, substantial evidence supports the ALJ’s decision to

give Dr. Grant’s opinion less than controlling or great weight. The ALJ considered Dr.
Grant’s opinion, but found that his “dire opinion is not supported by the findings noted.”
(Tr. at 29.) In particular, the ALJ noted the inconsistency in Dr. Grant’s opinion that
Plaintiff was totally disabled and his report indicating “normal EMG and nerve
conduction tests and relatively mild limitations in the left shoulder.” (Tr. at 29.) Given
this inconsistency, substantial evidence in the record supports the ALJ’s decision to
discount Dr. Grant’s opinion.
25.

Plaintiff’s fourth claim is that the ALJ erred when he afforded Dr. Morgante

relatively little weight. Dr. Morgante is Plaintiff’s chiropractor, who saw Plaintiff twice in
2011 and twice in 2013. (Tr. 430, 432) Dr. Morgante noted that Plaintiff had pain in the
neck, head, mid-back, low back, left leg, and left shoulder. (Tr. at 432.) He opined that
Plaintiff was incapable of low-stress jobs; had limited ability to move, sit, stand, carry, or
reach; and would miss more than four days of work per month. (Tr. 432-35.) Dr.
Morgante further opined that Plaintiff was unable to perform competitive, full-time
employment. (Tr. 30, 432-36.) The ALJ gave “relatively little weight” to Dr. Morgante
because his opinion was not consistent with the objective evidence of record and
because chiropractors are not considered acceptable medical sources. (Tr. at 30.)
26.

Chiropractors are not “acceptable medical sources,” thus their opinions

are not entitled to any special weight.

20 C.F.R. § 404.1513.

Rather, they are

considered “other medical sources,” and an ALJ may consider their opinion of the
11

severity of the claimant's impairment and ability to work. Knight v. Astrue, 32 F. Supp.
3d 210, 221 (N.D.N.Y. 2012); see 20 C.F.R. § 404.1513. An ALJ has the discretion to
determine the appropriate weight to accord a chiropractor's opinion based on all the
evidence before him, but is not required to give the chiropractor controlling weight. Diaz
v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995). But a chiropractor’s opinion should not be
lightly dismissed where it is “completely consistent” with the opinions of other treating
physicians. Ilarda v. Chater, No. CIV.A. CV-95-2180 DG, 1996 WL 389366, at *12
(E.D.N.Y. July 8, 1996).
27.

Plaintiff argues that the ALJ should have given Dr. Morgante’s opinion

great weight because it is supported by objective evidence, such as Plaintiff’s MRI and
EMG in 2003. Plaintiff further argues that although Dr. Morgante is not an acceptable
medical source, the ALJ should consider his opinion to evaluate the severity of Plaintiff’s
impairments and how they affect his ability to work. Plaintiff also argues that the ALJ
cannot reject Dr. Morgante’s opinion outright solely because he is a chiropractor. See
Losquadro v. Astrue, No. 11–CV–1798 (JFB), 2012 WL 4342069, at *1 (E.D.N.Y. Sept.
21, 2012). Defendant argues that the ALJ correctly rejected Dr. Morgante’s statements
and medical assessments because they are contrary to the record and chiropractors’
opinions are not entitled to deference.
28.

In this Court’s view, substantial evidence supports the ALJ’s decision to

give relatively little weight to Dr. Morgante’s opinion.

On February 12, 2013, Dr.

Morgante opined that Plaintiff was unable to perform any competitive employment on a
full-time basis (even in a low-stress job) because of his limitations: he could only walk
one half block; sit or stand five minutes at one time; sit, stand, or walk less than two
12

hours in an 8-hour day. (Tr. at 30, 433-434.) Dr. Morgante further found that, Plaintiff
was unable to look down (sustained flexion) or hold his head in a static position. (Tr. at
434-35.) Dr. Morgante therefore opined that Plaintiff could occasionally turn his head or
look up; rarely stoop or climb stairs; and could never twist or climb ladders. (Tr. at 435.)
Yet just months earlier, on June 8, 2012, Dr. Joshua Usen, Plaintiff’s osteopathic doctor,
noted that Plaintiff had full range of motion in his neck and head, (Tr. at 385.) and Dr.
Samuel Balderman, a consultative physician who examined Plaintiff on January 5,
2012, noted full flexion, extension, and rotary movement of the cervical spine. (Tr. at
332.) Dr. Balderman also opined that Plaintiff had only a mild limitation bending and
lifting due to pain. (Tr. 332.)
29.

Dr. Morgante’s opinions were thus inconsistent with medical evidence in

the record, and the ALJ did not discount them solely because Dr. Morgante is a
chiropractor. Rather, the ALJ considered Dr. Morgante’s opinion and simply determined
that it was inconsistent with portions of the objective evidence of record. (Tr. at 29-30.)
Substantial evidence therefore supports the ALJ’s decision to discount Dr. Morgante’s
opinion.
30.

Plaintiff’s fifth claim is that the ALJ erred when he discounted Dr. Tracy’s

opinion based on Plaintiff’s description of his ability to perform activities of daily living.
Dr. Tracy is a pain-treatment specialist, saw Plaintiff from August 2006 through July
2007, and provided him pain evaluations and treatment plans. (Tr. at 1272.) Dr. Tracy
noted locations of Plaintiff’s pain and tenderness; commented on Plaintiff’s range of
motion; opined that Plaintiff was unable to return to past work; and opined that Plaintiff
had temporary marked disability for other work. (Tr. at 1256-73.) The ALJ determined
13

that Plaintiff’s descriptions of having a moderate functional capacity to complete all
household tasks without difficulty contradicted Dr. Tracy’s opinion. (Tr. at 31.)
31.

The ability to perform basic self-care activities “do[es] not by [itself]

contradict allegations of disability.” McGregor v. Astrue, 993 F. Supp. 2d 130, 142
(N.D.N.Y. 2012) (quoting Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000)).
An ALJ’s decision will be remanded if the ALJ relies on the plaintiff’s performance of
basic activities in his home to discount a treating physician’s opinion, without explaining
the reasons for doing so. Miller v. Colvin, 122 F. Supp. 3d 23, 28, 29-30 (W.D.N.Y.
2015). But an ALJ may consider Plaintiff's daily activities, symptoms, and objective
medical evidence together to determine whether a treating physician is credible.
Kirkham v. Comm'r of Soc. Sec., No. 6:14-CV-0711 GTS, 2015 WL 3504889, at *9
(N.D.N.Y. June 3, 2015).
32.

Plaintiff argues that his ability to perform activities of daily living does not

contradict Dr. Tracy’s opinion, because the ability to perform basic activities of daily
living and house repair work is not indicative of an ability to complete a normal workday
or workweek. Plaintiff further argues that the ALJ’s decision should be remanded so
that his activities of daily living can be properly considered. Defendant argues that the
ALJ reasonably found that Plaintiff’s admissions to a moderate functional capability to
include performing all household tasks without difficulty contradicts Dr. Tracy’s opinion
that Plaintiff has a marked temporary disability.
33.

In this Court’s view, substantial evidence supports the ALJ’s decision to

discount Dr. Tracy’s opinion. The ALJ considered Plaintiff’s admissions of his daily
activities, Dr. Tracy’s notes of Plaintiff’s symptoms, and the objective medical evidence
14

of record. (Tr. 30-31.) Additionally, the ALJ concluded that Plaintiff’s description of his
daily activities contradicted Dr. Tracy’s opinion of a marked temporary disability after he
noted that Dr. Tracy “did not give any specific limitations” of Plaintiff’s disability. (Tr. at
29, 31.) Thus, while the ALJ considered Plaintiff’s ability to perform basic activities
when he determined that it contradicted Dr. Tracy’s opinion, he also considered
Plaintiff’s symptoms and the objective medical record. The ALJ’s decision to discount
Dr. Tracy’s opinion is therefore supported by substantial evidence in the record.
34.

Plaintiff’s sixth claim is that the ALJ erred when he afforded significant

weight to consultative physicians—Dr. Lynch, Dr. Balderman, Dr. Ferrick, and Dr.
Santarpia—instead of giving controlling or great weight to Plaintiff’s treating physicians.
Dr. Lynch was a consultative examiner who examined Plaintiff on September 19, 2005,
and opined that he had a mild to moderate mental impairment. (Tr. at 249, 261.) Dr.
Balderman performed a consultative medical examination on Plaintiff on January 5,
2012, and noted well-developed muscles and full range of motion in the upper left
extremity and symptom magnification.

(Tr. at 332.)

Dr. Ferrick performed an

independent medical examination for worker's compensation for Plaintiff on June 19,
2006, and noted symptom magnification and that Plaintiff’s pain was out of proportion
with his MRI findings. (Tr. at 1098, 1100.) Dr. Santarpia performed a consultative
psychiatric evaluation of Plaintiff on January 5, 2012, and diagnosed depressive
disorder, NOS; anxiety disorder, NOS, mild impairment; and opined that the diagnoses
were not sufficient to interfere with Plaintiff’s ability to function on a daily basis. (Tr. at
326, 329.)

15

35.

The ALJ gave Dr. Lynch some weight, because his opinion seemed

consistent with the other credible mental evidence.

(Tr. at 30.)

The ALJ gave

significant weight to Dr. Balderman, because his opinion was consistent with his
examination and largely consistent with other evidence of record. (Id.) And the ALJ
stated that Dr. Ferrick’s findings “called into question other examination findings.” (Id.)
The ALJ gave some weight to Dr. Santarpia, because testimony and other evidence
demonstrated that Plaintiff had more significant limitations in social functioning and
concentration than what she indicated in her evaluation. (Id.)
36.

The Second Circuit has cautioned that “ALJs should not rely heavily on

the findings of consultative physicians after a single examination.” Selian v. Astrue, 708
F.3d 409, 419 (2d Cir. 2013); see Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990). But
treating physicians’ opinions are not afforded controlling weight where the opinions are
not consistent with other substantial evidence in the record, in which case the opinions
of consultative examiners may constitute substantial evidence.

Diaz v. Shalala, 59

F.3d 307, 315 (2d Cir.1995); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)
(citing Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981); Petrie v. Astrue, 412 F. App'x
401, 405 (2d Cir. 2011); Cabrero-Gonzalez v. Colvin, No. 13-CV-6184-FPG, 2014 WL
7359027, at *20 (W.D.N.Y. Dec. 23, 2014). Consultative physicians’ opinions are “a
valid basis for rejecting a treating physician’s opinion” where they are part of other
substantial evidence that is inconsistent with the treating physician’s opinion. Giles v.
Colvin, No. 1:14-CV-00684 (MAT), 2017 WL 2533191, at *3 (W.D.N.Y. June 12, 2017).
37.

Plaintiff argues that Dr. Lynch, Dr. Balderman, Dr. Ferrick, and Dr.

Santarpia should be given little weight because they are not treating providers and were
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consultative examiners who each saw Plaintiff only once.
1097-1106, 326-29.)

(Tr. at 1077-90, 330-34,

Defendant counters that the ALJ properly considered their

opinions, particularly because they were largely consistent with the record evidence.
38.

In this Court’s view, substantial evidence supports the ALJ’s consideration

of the consulting physicians’ opinions because they were consistent with other opinions
in the medical record. Dr. Lynch’s opinion that Plaintiff had a mild to moderate mental
impairment is consistent with Dr. Tan’s GAF scores and objective evaluations. (Tr. at
390-405, 438-39.) Dr. Balderman’s opinion that Plaintiff had only mild limitations in
bending, lifting, and in the left shoulder (Tr. 332) is consistent with Dr. Usen’s
assessment of normal spine movement, normal gait, (Tr. at 29, 385, 359) and the light
to moderate functional capacity Plaintiff described to Dr. Tracy. (Tr. at 1256-65.) Dr.
Balderman’s opinion that Plaintiff was magnifying symptoms and had a muscular left
extremity (Tr. at 332-33) was consistent with Dr. Ferrick’s opinion that Plaintiff was
magnifying symptoms (Tr. at 1100, 1104) as well as with Dr. Patterson’s opinion of
excellent rotator cuff strength (Tr. at 762) and Dr. Usen’s opinion of normal strength and
tone in the left upper extremity (Tr. at 359), the ALJ did not evaluate Dr. Ferrick’s
opinion apart from considering that Dr. Ferrick’s opinion was consistent with Dr.
Balderman’s. The ALJ only afforded Dr. Santarpia’s opinion some weight, because
although Dr. Santarpia believed that Plaintiff’s impairments were not sufficient to
interfere with his ability to function on a daily basis, the ALJ found that Dr. Santarpia’s
assessment was inconsistent with the greater limitations found in the medical record,
such as Dr. Lynch’s opinion and Dr. Tan’s GAF scores and objective evaluations. (Tr.
at 261, 390-405, 438-39.) The ALJ’s decision to afford the opinions of Dr. Lynch, Dr.
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Baldman, and Dr. Santarpia this respective weight is therefore supported by substantial
evidence in the medical record.
39.

The treating-physician rule requires that an ALJ give the medical opinion

of a claimant's treating physician “controlling weight if it is well supported by medical
findings and not inconsistent with other substantial record evidence.” Shaw v. Chater,
221 F.3d 126, 134 (2d Cir. 2000). Plaintiff’s treating physicians’ opinions are
inconsistent with substantial record evidence such as their own office notes, Plaintiff’s
GAF scores, and Plaintiff’s comments to Dr. Tracy. The ALJ’s decision to discount and
not give controlling weight to Plaintiff’s treating physicians’ opinions is therefore
permissible under the governing law.
40.

After carefully examining the administrative record, this Court finds that

the ALJ’s decision in this case is supported by substantial evidence, including the
objective medical evidence and medical opinions rendered therefrom. In this Court’s
view, the ALJ thoroughly examined the record and afforded appropriate weight to all of
the medical evidence in rendering his decision that Plaintiff is not disabled within the
meaning of the Act. Finding no reversible error in the ALJ’s decision, this Court will
grant Defendant’s Motion for Judgment on the Pleadings and deny Plaintiff’s motion
seeking the same relief.
IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the
Pleadings (Docket No. 8-1) is GRANTED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 6)
is DENIED.

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FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.

Dated:

August 7, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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