Scouten v. Colvin

Filing 16

DECISION AND ORDER DENYING Plaintiff's 7 Motion for Judgment on the Pleadings; GRANTING Defendant's 14 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 5/10/2016. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ALISA ANNE SCOUTEN,
Plaintiff,
v.

DECISION AND ORDER
15-CV-76S

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff Alisa Anne Scouten challenges an Administrative Law Judge’s

(“ALJ”) decision dated June 19, 2013, wherein the ALJ determined that Plaintiff was not
disabled under the Social Security Act (the “Act”).

Plaintiff now contends that this

determination is not based upon substantial evidence, and remand is warranted.
2.

Plaintiff filed an application for disability insurance benefits under Title II of

the Act on October 20, 2011, alleging a disability beginning on February 19, 2011. The
claim was initially denied on January 9, 2012. Plaintiff thereafter requested a hearing
before an ALJ, and, on April 1, 2013, Plaintiff appeared and testified in Buffalo, NY. The
ALJ subsequently found on June 19, 2013 that Plaintiff was not disabled within the
meaning of the Social Security Act. Plaintiff filed an administrative appeal and the
Appeals Council denied Plaintiff’s request for review on November 28, 2014, rendering
the ALJ’s determination the final decision of the Commissioner. Plaintiff filed the instant
action on January 26, 2015.
3.

Plaintiff and the Commissioner each filed a Motion for Judgment on the

Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket Nos.

1

7, 14). Judgment on the pleadings is appropriate where material facts are undisputed
and where a judgment on the merits is possible merely by considering the contents of
the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
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, the

Commissioner’s determination will be reversed only if it is not supported by substantial
evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.
1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that
which amounts to “more than a mere scintilla,” and it has been defined 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) (internal quotation marks and citation omitted).

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), cert. denied, 459 U.S. 1212 (1983).
5.

To determine whether the ALJ’s findings are supported by substantial

evidence, “a reviewing court considers the whole record, examining the evidence from
both sides, because an analysis of the substantiality of the evidence must also include
that which detracts from its weight.” Williams on Behalf of Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner’s
finding must be sustained “even where substantial evidence may support the plaintiff’s
position and despite that the court’s independent analysis of the evidence may differ

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from the [Commissioner’s].”
1992).

Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y.

In other words, this Court must afford 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 United States Supreme Court recognized the validity of this analysis

in Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119
(1987), and it remains the proper approach for analyzing whether a claimant is disabled.
7.

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 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8.

Although the claimant has the burden of proof as to the first four steps, the

Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this
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inquiry is, in turn, divided into two parts. First, the Commissioner must assess the
claimant’s job qualifications by considering his physical ability, age, education, and work
experience.

Second, the Commissioner must 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(g); Heckler v. Campbell, 461 U.S. 458,
460-61, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).
9.

In this case, the ALJ determined that Plaintiff last met the insured status

requirements of the Act on June 30, 2012. (R. 45.) 1 He then made the following
findings with regard to the five-step process set forth above:

(1) Plaintiff had not

engaged in substantial gainful activity since February 19, 2011, the alleged date on
which she became disabled (id.); (2) Plaintiff’s severe impairments include
vertebrogenic disorders and status-post whiplash (id.); (3) Plaintiff did not have an
impairment or combination of impairments that met or medically equaled a recognized
disabling impairment under the regulations (R. 46-47); (4) Plaintiff had the residual
functional capacity (“RFC”) to perform a full range of light work except she must be able
to change position from sitting to standing every half hour, avoid extreme cold
temperatures, never climb ropes, ladders, or scaffolds, and never climb, balance, stoop,
kneel, crouch, or crawl, and that this RFC precluded Plaintiff from performing any past
relevant work (R. 47-51); and (5) considering the Plaintiff’s age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform (R. 51-53).
10.

Plaintiff’s primary complaint is pain in her back and shoulder. (R. 367.)

Plaintiff was involved in an automobile accident, in which she states that she suffered
1

Citations to the underlying administrative record are designated as “R.”

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“side to side” whiplash resulting in torn muscles and herniated discs in her lumbar spine.
(R. 63.) She suffered from shooting pain and tingling on her right side, as well as lower
back pain which radiated down into her right lower extremities. (R. 67-68.) Plaintiff has
stated that being in one position (i.e. sitting, standing, or lying down) for “any length of
time” exacerbates her pain. (R. 69.) Plaintiff has also stated that she suffers from
anxiety since the accident, which has led to difficulty sleeping and panic attacks. (R. 6667.) Plaintiff advances three challenges to the ALJ’s decision.
11.

First, Plaintiff contends that the ALJ failed to properly incorporate the

medical opinion of Dr. Donna Miller, a consulting examiner, into Plaintiff’s RFC. An
individual’s RFC is her “maximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198 F.3d 45,
52 (2d Cir. 1999) (quoting SSR 96-8p, 1996 WL 374184, *2 (July 2, 1996)). Here, after
considering the entire record, the ALJ determined that Plaintiff had the RFC to perform
light work 2 with certain limitations. (R. 47.) The RFC was based, in part, on Dr. Miller’s
assessment that Plaintiff had moderate limitations for heavy lifting, bending, and
carrying, as well as mild limitations for repetitive reaching, pushing and pulling. (See R.
50 (citing Dr. Miller’s opinion at R. 370).) Plaintiff asserts that the ALJ’s incorporation of
Dr. Miller’s opinion was improper because: (1) Dr. Miller’s use of “moderate” and “mild”
to describe Plaintiff’s limitations rendered the opinion too vague to be relied upon; (2)
Dr. Miller’s assessment of a “moderate limitation” on heavy lifting is inconsistent with the
ALJ’s RFC of light work; and (3) the ALJ improperly interpreted Dr. Miller’s silence as to

2

Light work is defined in the regulations as “lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.” SSR 83-10, 1983 WL 31251, at *5 (S.S.A.1983).

5

limitations on sitting to mean that Plaintiff has no limitations on sitting. For the following
reasons, none of these arguments constitute grounds for remand.
In this case, Dr. Miller’s opinion was not impermissibly vague. Plaintiff cites to
Curry v. Apfel, in which the Second Circuit case held that the opinion from a
consultative examiner that a claimant has “mild” or “moderate” limitations, “without
additional information,” is “so vague as to render [the opinion] useless[.]” 209 F.3d 117,
123 (2d Cir. 2000), superseded by statute on other grounds, as recognized in Douglass
v. Astrue, No. 11-3325-cv, 2012 WL 4094881, at *1 (2d Cir. Sept. 19, 2012) (summary
order) (emphasis added.). However, unlike the opinion in Curry, Dr. Miller’s opinion is
“generally supported by [her] individual examination[ ] of Plaintiff, and . . . also
consistent with the other evidence in the medical record.” See Henry v. Colvin, No. 14CV-0838 (MAT), 2015 WL 8074299, at *6 (W.D.N.Y. Dec. 4, 2015). In her examination
notes, Dr. Miller noted that although Plaintiff had some difficulty walking on her heels
and toes, she was not in any distress and her gait and stance were normal, she did not
use any assistive devices, did not need help changing for the examination or getting on
or off the examination table, and rose from a chair without difficulty. (R. 368.) Further,
although Plaintiff had reduced movement in her cervical and lumbar spine, she had no
abnormalities in her thoracic spine and her straight leg raising test was negative
bilaterally.

(R. 369.)

She also had full range of motion in her elbows, wrists, left

shoulder, hips and ankles, intact hand and finger dexterity and full grip strength
bilaterally, normal deep tendon reflexes, no sensory deficits in her upper and lower
extremities, and no muscle atrophy, significant varicosities, or trophic changes. (R.
370.) “Where, as here, the opinion[ ] of the consultative examiner[ ] [was] based on [a]

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thorough medical examination[ ] and [was] not inconsistent with the primary treatment
records or the remainder of the record evidence, the reasoning supporting Curry is
inapplicable.” Henry, 2015 WL 8074299, at *6. There was therefore no error in the
ALJ’s reliance on Dr. Miller’s opinion.
Nor was there any inconsistency between the ALJ’s RFC of light work and Dr.
Miller’s opinion as to moderate limitations on lifting. Indeed, moderate limitations—such
as those assessed by Dr. Miller—have often been found to be consistent with an RFC
for a full range of light work. See, e.g., Harris v. Comm’r of Soc. Sec., No. 09-CV-1112
NAM/VEB, 2011 WL 3652286, at *5 (N.D.N.Y. July 27, 2011) report and
recommendation adopted, No. 1:09-CV-1112, 2011 WL 3652201 (N.D.N.Y. Aug. 17,
2011) (finding “slight to moderate limitations in activities that require lifting, carrying, and
reaching . . . consistent with the ALJ’s conclusion that Plaintiff could perform light
work”); Vargas v. Astrue, No. 10 CIV. 6306 PKC, 2011 WL 2946371, at *12 (S.D.N.Y.
July 20, 2011) (finding “moderate limitations for lifting, carrying, handling objects, and
climbing stairs” consistent with RFC for full range of light work); see also Harrington v.
Colvin, No. 14-CV-6044P, 2015 WL 790756, at *14 (W.D.N.Y. Feb. 25, 2015) (gathering
cases). Furthermore, the ALJ discussed and provided “reasons tending to support the
finding that, despite the moderate limitations . . . . [Plaintiff] could still perform light
work.” See Carroll v. Colvin, No. 13-CV-456S, 2014 WL 2945797, at *4 (W.D.N.Y. June
30, 2014) (noting that, although RFC for light work might be consistent with moderate
physical limitations, ALJ was required to “discuss and provide reasons tending to
support the finding”). The ALJ cites to the full notes from Dr. Miller discussed above, in
which Dr. Miller noted that Plaintiff “exhibited difficulty heel- and toe-walking, . . .

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squatted 25% of normal . . . [,] displayed a normal gait and stance, used no assistive
devices, alighted to and from the examination table independently, and rose from her
chair without difficulty.”

(R. 50 (citing Dr. Miller’s opinion).)

In addition, the ALJ

addressed treatment notes and opinions from each of the medical sources, reviewed
the diagnostic imaging and found “claimant’s cervical impairment to be, at most, mild,”
with “normal” shoulder x-rays, and that the “lumbar spine diagnostic imaging showed
evidence of degenerative disc disease.” (R. 51.) In this case, as the ALJ thoroughly
explained, an RFC for light work is consistent with Dr. Miller’s moderate limitation on
lifting.
Finally, the ALJ did not err in finding that Plaintiff could sit half an hour before
changing positions, even though Dr. Miller did not address this point in her medical
opinion.

During the hearing, Plaintiff acknowledged that she is able to sit for

approximately half an hour before changing positions. (R. 72.) There is no error where,
as here, an ALJ bases his RFC on Plaintiff’s own testimony. See Rossow v. Colvin, No.
14-CV-526S, 2015 WL 5089058, at *5 (W.D.N.Y. Aug. 27, 2015) (finding no reversible
error where “the ALJ also expressly relied to an extent on Plaintiff’s own testimony
regarding his abilities and limitations”); see also Mulrain v. Comm’r of Soc. Sec., 431 F.
App’x 38, 39 (2d Cir. 2011) (“The medical evidence in the record concerning [plaintiff]’s
condition and his own testimony provide substantial evidence to support the
administrative law judge’s . . . determination that [plaintiff] was not disabled under the
Act.”).
The ALJ thoroughly discussed and considered Plaintiff’s treatment history, her
statements concerning daily activities, as well as the medical opinions in the record

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regarding Plaintiff’s limitations, and incorporated them into the RFC.

(R. 47-51.)

Accordingly, the Court finds that the RFC is consistent with Dr. Miller’s opinion and the
record as a whole.
12.

Second, Plaintiff contends that the ALJ failed to properly incorporate the

opinion of Dr. J. Echevarria, a non-examining reviewer.

Dr. Echevarria reviewed

Plaintiff’s treatments records and opined that she had moderate limitations in a number
of areas, ultimately concluding that she “would be able to perform simple, low contact
job tasks in a routine work setting.” (R. 372-74.) In his RFC assessment, the ALJ
stated that he “largely agreed” with Dr. Echevarria’s opinion, and that it “seems
supported by the weight of the psychological evidence.” (R. 50.) The ALJ did not find
that Plaintiff had any severe mental impairments, nor did he limit Plaintiff to “simple, low
contact” work, and the Plaintiff claims that the ALJ therefore erred in not providing
reasons for his dismissal of Dr. Echevarria’s opinion.
The ALJ is required to evaluate and weigh the medical findings of non-treating
physicians. See 20 C.F.R. § 416.927(c) (“[W]e will evaluate every medical opinion we
receive. . . .”); 20 C.F.R. § 416.927(e)(2)(ii) (“Unless a treating source’s opinion is given
controlling weight, the administrative law judge must explain in the decision the weight
given to the opinions of a State agency medical or psychological consultant . . . , as the
administrative law judge must do for any opinions from treating sources, nontreating
sources, and other nonexamining sources who do not work for us.”). However, the
Second Circuit has explained that “‘[w]hen . . . the evidence of record permits us to
glean the rationale of an ALJ’s decision, we do not require that he have mentioned
every item of testimony presented to him or have explained why he considered

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particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.’”
Lowry v. Astrue, 474 F. App’x 801, 805 (2d Cir. 2012) (quoting Mongueur v. Heckler,
722 F.2d 1033, 1040 (2d Cir. 1983)); see Christina v. Colvin, 594 F. App’x 32, 33-34 (2d
Cir. 2015) (summary order) (rejecting the plaintiff’s argument that the ALJ committed
reversible error by dismissing a portion of an opinion by a consultative examiner and
failing to discuss portions of the state-agency psychologist’s opinion in light of the fact
that the ALJ’s determination was consistent with both consultative examiner’s report
and the state agency psychologist’s opinion).
Here, the ALJ determined that Plaintiff’s anxiety and depression did not
constitute medically determinable impairments that were severe. (R. 45-46.) The ALJ
concluded that Plaintiff’s anxiety and depression did not meet this threshold in light of
evidence demonstrating that Plaintiff’s mental impairment did not cause more than a
“minimal limitation” to her ability to perform basic mental work activities, including
evidence, which the ALJ specifically cited to and referenced, demonstrating that: (1)
Plaintiff testified and told the psychological examiner that “her main blocks to performing
activities of daily living are physical, not mental,” and that Plaintiff is not currently
receiving psychological treatment; (2) Plaintiff “exerted control over her social
interactions” and remarried during the relevant period, which reflects a “capacity to
socialize”; (3) Plaintiff demonstrated “no mental deficit” during her consultative
examination, and “reported that her main hobby was reading psychological thrillers and
murder mysteries”; (4) Plaintiff has never experienced an episode of decompensation.
(R. 45-46 (citing treatment records from Dr. Hill and Plaintiff’s testimony).) The ALJ’s
detailed explanation of, and citation to, the evidentiary record as it relates to his

10

determination regarding the severity of Plaintiff’s mental impairment, permits this Court
to glean the rationale of the determination. Under these circumstances, the ALJ was
not required to specifically distinguish Dr. Echevarria’s opinion. 3 See Lowry, 474 F.
App’x at 805 (finding that the ALJ did not err by failing to “meaningfully explain” reasons
for not crediting certain evidence where the rationale for his decision was evident from
review of the record, and where there was substantial evidence supporting the ALJ’s
decision); LaRock ex rel. M.K.v. Astrue, No. 10-CV-1019, 2011 WL 1882292, at *6
(N.D.N.Y. Apr. 29, 2011) (noting that “there is no obligation for the ALJ to discuss every
piece of evidence contained in the record,” and finding that because the ALJ “engaged
in a thorough review of [the plaintiff’s] medical and educational history,” he did not err by
failing to specifically refer to, inter alia, various emergency room visits, plaintiff’s
separate diagnosis of a separate anxiety disorder, and a specific opinion from the
plaintiff’s therapist), report and recommendation adopted, 2011 WL 1883045 (N.D.N.Y.
May 17, 2011).
Moreover, contrary to Plaintiff’s argument, Dr. Echevarria’s findings are not
inconsistent with the ALJ’s disability determination. Dr. Echevarria did not conclude, as
Plaintiff contends, that Plaintiff “needed to be limited to a simple, repetitive, low contact
work environment.” (Pl. Mem. at 25.)

Rather, Dr. Echevarria noted, as part of his

3

Furthermore, the ALJ had strong grounds for affording greater weight to the opinions of those
medical sources who had a treating relationship with, or at least examined, the Plaintiff. See Vargas v.
Sullivan, 898 F.2d 293, 295-96 (2d Cir. 1990) (“The general rule is that the written reports of medical
advisors who have not personally examined the claimant deserve little weight in the overall evaluation of
disability.”) (internal citations and quotations omitted); Social Security Ruling 06-03p, 2006 WL 2329939,
at *4 (S.S.A. Aug. 9, 2006) (in weighing a medical source opinion, the ALJ should consider “[h]ow long
the source has known and how frequently the source has seen the individual”). This is especially so
when weighing the opinions of psychiatric examiners. See Velazquez v. Barnhart, 518 F. Supp. 2d 520,
524 (W.D.N.Y. 2007) (“A psychiatric opinion based on a face-to-face interview with the patient is more
reliable than an opinion based on a review of a cold, medical record . . . .”); O’Connor v. Astrue, No. 07CV-141, 2009 WL 3273887, at *6 (W.D.N.Y. Oct. 9, 2009) (“Particularly where psychiatric status is at
issue, the opinions of non-examining physicians should be accorded less weight than those of treating
physicians.”).

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narrative RFC assessment, that Plaintiff “would be able to perform simple, low contact
job tasks in a routine work setting,” and provided no indication that Plaintiff was limited
in any respect. (R. 374.) Dr. Echevarria’s observation that Plaintiff “would be able to
perform simple, low contact job tasks” as well as his other conclusions that Plaintiff is
not “markedly limited” in any area, are consistent with the ALJ’s conclusion that
Plaintiff’s anxiety and depression “did not cause more than minimal limitation in the
claimant’s ability to perform basic mental work activities and were, therefore, nonsevere.” 4 (R. 45, 372-74.) “Thus, to the extent that Plaintiff asserts that the ALJ’s
conclusion is contradicted by [Dr. Echevarria]’s findings, the Court rejects this
mischaracterization of the record.” See Jermyn v. Colvin, No. 13-CV-5093 MKB, 2015
WL 1298997, at *16 (E.D.N.Y. Mar. 23, 2015) (non-examining reviewer’s assessment
that the plaintiff “can perform simple tasks independently” was not a limitation and
therefore consistent with ALJ’s finding of no severe mental impairment).
If there was any error in failing to explicitly distinguish Dr. Echevarria’s opinion,
such error was harmless. See LaRock, 2011 WL 1882292, at *10 (“[E]ven if [the nonexamining consultant’s] opinion of a marked limitation in this domain had been
accepted, it would not have resulted in a finding of disability” and so “the ALJ’s failure to
offer a specific explanation as to why this particular finding . . . was rejected, at most
amounts to harmless error.”) (citing Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998);
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“[W]here application of the correct
legal principles to the record could lead to only one conclusion, there is no need to
4

The record suggests that Dr. Echevarria’s findings were based on medical reports from
Plaintiff’s file, including the assessment notes from Dr. Hill, whose records the ALJ explicitly relied on in
his decision as to whether Plaintiff’s anxiety and depression are severe impairments. (See R. 374
(narrative from Dr. Echevarria indicating that Plaintiff’s “recent ce [consulting examiner] mse [mental
status examination] wnl [within normal limits].”).)

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require” remand.)). Accordingly, because the ALJ’s RFC determination is supported by
substantial evidence in the record, it will not be disturbed.
13.

Finally, Plaintiff contends that the ALJ failed to properly develop the record

and seek out a treating source opinion. “[W]here there are deficiencies in the record, an
ALJ is under an affirmative obligation to develop a claimant’s medical history even when
the claimant is represented by counsel or by a paralegal.”

Rosa, 168 F.3d at 79

(internal alterations and quotation marks omitted). The ALJ’s duty to develop the record
reflects “the essentially non-adversarial nature of a benefits proceeding.”

Pratts v.

Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal quotation marks omitted); see also Sims
v. Apfel, 530 U.S. 103, 111, 120 S. Ct. 2080, 147 L. Ed. 2d 80 (2000) (“It is the ALJ’s
duty to investigate the facts and develop the arguments both for and against granting
benefits. . . .”). However, “where there are no obvious gaps in the administrative record,
and where the ALJ already possesses a ‘complete medical history,’ the ALJ is under no
obligation to seek additional information in advance of rejecting a benefits claim.” Rosa,
168 F.3d at 79 n. 5 (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).
Here, the ALJ based his findings on opinions from a consultative doctor who
personally examined Plaintiff, as well as Plaintiff’s complete medical history and
treatment notes. “Although the Social Security regulations express a clear preference
for evidence from the claimant’s own treating physicians over the opinion rendered by a
consultative examiner, this Court does not always treat the absence of a medical source
statement from claimant’s treating physicians as fatal to the ALJ’s determination.”
Swiantek v. Comm’r of Soc. Sec., 588 F. App’x 82, 84 (2d Cir. 2015) (citing 20 C.F.R. §
416.912; Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 33-34 (2d Cir. 2013)). There

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were no “obvious gaps” in Plaintiff’s medical record, nor any significant inconsistencies
between Plaintiff’s treating physician and the ALJ’s RFC, and therefore no requirement
to remand solely on the ground that the ALJ failed to obtain a formal opinion from one of
Plaintiff’s treating physicians. See Rosa, 168 F.3d at 79 n. 5.
14.

Having considered Plaintiff’s challenges, this Court is satisfied that the

ALJ committed no reversible error, and that his decision is based on substantial
evidence. Defendant’s Motion for Judgment on the Pleadings is therefore granted and
Plaintiff’s motion seeking the same relief is denied.

IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 7) is DENIED;
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No.
14) is GRANTED;
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: May 10, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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