Parker v. Social Security Administration

Filing 22

DECISION AND ORDER. The Commissioner's Motion for Judgment on the Pleadings 19 is GRANTED, and Plaintiff's Motion for Judgment on the Pleadings 11 is DENIED. Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/30/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
COREY PARKER,
Plaintiff,
Case # 15-CV-342-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Corey Parker (“Parker” or “Plaintiff”) brings this action pursuant to the Social Security
Act (“the Act”) seeking review of the final decision of the Acting Commissioner of Social
Security (“the Commissioner”) that denied his application for Supplemental Security Income
(“SSI”) under Title XVI of the Act. ECF No. 1. This Court has jurisdiction over this action
under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 11, 19. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
Parker has applied for SSI with the Social Security Administration (“the SSA”) and
appealed unfavorable decisions several times. Tr.2 622-23. Most recently, on November 15,
2013, Administrative Law Judge Timothy M. McGuan (“the ALJ”) issued a decision finding that
Parker was not disabled within the meaning of the Act. Tr. 622-41. That decision became the
Commissioner’s final decision when the Appeals Council denied Parker’s request for review on

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Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
2
References to “Tr.” are to the administrative record in this matter.

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March 3, 2015. Tr. 613-16. Thereafter, Parker commenced this action seeking review of the
Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation
marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner
is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (internal quotation marks omitted). It is not this Court’s function to “determine de
novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
(internal quotation marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary’s decision is not de novo and
that the Secretary’s findings are conclusive if supported by substantial evidence).
II.

Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it

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imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

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DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Parker’s claim for benefits under the process described

above. At step one, the ALJ found that Parker had not engaged in substantial gainful activity
since the application date. Tr. 625. At step two, the ALJ found that Parker has the following
severe impairments: status post right-sided discectomy due to disc herniation; recurrent or
persistent discogenic and degenerative disc disease of the lumbar spine; severe atrophy of the left
leg; and asthma. Tr. 625-29. At step three, the ALJ found that such impairments, alone or in
combination, did not meet or medically equal an impairment in the Listings. Tr. 629-30.
Next, the ALJ determined that Parker retained the following RFC: he can sit for up to
seven hours and stand or walk for up to one hour in an eight-hour workday, frequently lift 10
pounds, and reach, push, or pull with both upper extremities; he cannot use his left lower
extremity to operate foot controls, but he has no limitation with his right lower extremity; he
cannot climb ropes, ladders, or scaffolds, but he can frequently climb stairs and ramps; he can
occasionally balance, crawl, crouch, kneel, and stoop; and he must avoid concentrated exposure
to fumes, dust, odors, and extreme temperatures. Tr. 630-39.
At step four, the ALJ indicated that Parker had no past relevant work. Tr. 640. At step
five, the ALJ relied on the vocational expert’s (“VE”) testimony and found that Parker can adjust
to other work that exists in significant numbers in the national economy given his RFC, age,
education, and work experience. Tr. 640-41. Specifically, the VE testified that Parker could
work as a telephone solicitor and telephone surveyor. Id. Accordingly, the ALJ concluded that
Parker was not “disabled” under the Act. Id.

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II.

Analysis
Parker argues that remand is required because the RFC determination and the credibility

assessment are not supported by substantial evidence. ECF No. 11-1, at 6-7. These arguments
are addressed in turn below.
A.

RFC Determination

RFC is defined as “what an individual can still do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20, 2012)
(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). To determine a claimant’s RFC “the
ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain
and other limitations that could interfere with work activities on a regular and continuing basis.”
Desmond, 2012 WL 6648625, at *5 (citation omitted); see also 20 C.F.R. § 416.945(a). “An
RFC finding will be upheld when there is substantial evidence in the record to support each
requirement listed in the regulations.” Desmond, 2012 WL 6648625, at *5 (citation omitted).
Parker argues that the RFC determination is not supported by substantial evidence. ECF
No. 11-1, at 6-7. Specifically, Parker asserts that ALJ erred in finding that he could sit for up to
seven hours in an eight-hour workday. Id. at 6. As mentioned above, the ALJ found that Parker
can sit for up to seven hours and stand or walk for up to one hour in an eight-hour workday,
frequently lift 10 pounds, and reach, push, or pull with both upper extremities; cannot use his left
lower extremity to operate foot controls, but he has no limitation with his right lower extremity;
cannot climb ropes, ladders, or scaffolds, but he can frequently climb stairs and ramps; can
occasionally balance, crawl, crouch, kneel, and stoop; and must avoid concentrated exposure to
fumes, dust, odors, and extreme temperatures. Tr. 630.

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The RFC determination is consistent with several consultative medical opinions of
record. “It is well established that an ALJ may rely on the medical opinions provided by State
agency consultants and that those opinion[s] may constitute substantial evidence.” Barber v.
Comm’r of Soc. Sec., No. 6:15-CV-0338 (GTS/WBC), 2016 WL 4411337, at *7 (N.D.N.Y. July
22, 2016) (citing 20 C.F.R. §§ 416.912(b)(6), 416.913(c), 416.927(e) and Baszto v. Astrue, 700
F. Supp. 2d 242, 249 (N.D.N.Y. 2010) (“[A]n ALJ is entitled to rely upon the opinions of both
examining and non-examining State agency medical consultants, since such consultants are
deemed to be qualified experts in the field of social security disability.”)). It is also important to
note that “[a]lthough [an] ALJ’s conclusion may not perfectly correspond with any of the
opinions of medical sources cited in his decision, he [i]s entitled to weigh all of the evidence
available to make an RFC finding that [i]s consistent with the record as a whole.” Matta v.
Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (citation omitted) (summary order); see also Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the medical evidence are for
the Commissioner to resolve.”) (citation omitted).
First, the RFC determination is consistent with the opinion of consultative examiner John
Schwab, D.O. (“Dr. Schwab”) who opined that Parker must avoid respiratory irritants, is
moderately limited in walking due to left foot drop, and is mildly limited in lifting. Tr. 263. The
RFC assessment accounted for all of these limitations. Tr. 630. The ALJ gave “significant
weight” to this opinion because Dr. Schwab is “familiar with Social Security’s rules and
regulations . . . [and] [h]is opinion was also supported by relatively mild to moderate
abnormalities on clinical examination.” Tr. 638. These are both valid reasons for affording
significant weight to Dr. Schwab’s opinion. See 20 C.F.R. §§ 416.927(c)(6) (stating that the
SSA will consider “the amount of understanding” that the medical source has of its “disability

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programs and their evidentiary requirements” when it weighs a medical opinion), 416.927(c)(3)
(“The more a medical source presents relevant evidence to support a medical opinion,
particularly medical signs and laboratory findings, the more weight we will give that medical
opinion.”).
The RFC determination is also consistent with the opinion of consultative examiner
Nikita Dave, M.D. (“Dr. Dave”) who examined Parker on two occasions. Tr. 515-20, 538-42.
On March 30, 2009, Dr. Dave opined that Parker cannot climb ladders or be exposed to
respiratory irritants. Tr. 519-20. She also opined that Parker was limited in his left lower
extremity, lifting moderately heavy objects, and prolonged standing. Tr. 520. The ALJ’s RFC
determination included these limitations. Tr. 630. The ALJ gave “significant weight” to this
opinion because Dr. Dave is familiar with Social Security’s rules and regulations and it was
supported by objective findings and the medical record as a whole. These were all proper
reasons to afford significant weight to Dr. Dave’s opinion. See 20 C.F.R. §§ 416.927(c)(6)
(stating that the SSA will consider “the amount of understanding” that the medical source has of
its “disability programs and their evidentiary requirements” when it weighs a medical opinion),
416.927(c)(3) (“The more a medical source presents relevant evidence to support a medical
opinion, particularly medical signs and laboratory findings, the more weight we will give that
medical opinion.”), 416.927(c)(4) (“Generally, the more consistent a medical opinion is with the
record as a whole, the more weight we will give to that medical opinion.”).
On April 26, 2010, Dr. Dave opined that Parker was limited in his left lower extremity,
his ability to engage in prolonged standing, walking, and sitting, and his ability to lift, carry,
push, and pull moderately heavy objects. Tr. 542. Dr. Dave also opined that Parker must avoid
respiratory irritants. Id. The ALJ’s RFC determination accounted for these limitations. Tr. 630.

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The ALJ gave “significant weight” to this opinion because Dr. Dave “thoroughly examined”
Parker on two occasions within approximately one year (Tr. 639), which is a factor the ALJ was
entitled to consider. See 20 C.F.R. §§ 416.927(c)(1) (“Generally, we give more weight to the
medical opinion of a source who has examined you than to the medical opinion of a medical
source who has not examined you.”), 416.927(c)(6) (stating that the SSA will consider “the
extent to which a medical source is familiar with the other information in your case record” when
it weighs a medical opinion).
Dr. Dave also completed a check box medical source statement as to Parker’s physical
ability to do work-related activities. Tr. 543-543-48. She indicated on that form that Parker
could only sit for 15 minutes at a time without interruption. Tr. 544. Parker argues that this
opinion is inconsistent with the ALJ’s RFC determination that he could sit for up to seven hours
in an eight-hour workday. ECF No. 11-1, at 6. However, Dr. Dave also indicated on that same
form that Parker could sit for seven hours total in an eight-hour workday, which is entirely
consistent with the RFC determination. Tr. 544, 630. Moreover, at Parker’s hearing the VE
testified that Parker could still perform the jobs identified even if he needed to change positions
and could only sit or stand for no more than 15 minutes at a time. Tr. 892-93.
Parker also argues that the ALJ should not have given “significant weight” to the opinion
of Donald I. Goldman, M.D. (“Dr. Goldman”), an orthopedic surgeon who testified as a medical
expert at Parker’s administrative hearing. ECF No. 11-1, at 6; Tr. 632, 639. The ALJ noted in
his decision that Dr. Goldman testified that Parker’s foot drop is a permanent impairment but is
not incapacitating and that Parker did not meet any of the musculoskeletal Listings. Tr. 632.
The ALJ pointed out that although Dr. Goldman would not propose an RFC assessment “in light
of a lack of recent objective musculoskeletal examination findings,” Dr. Goldman noted that

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Parker’s “continued long treatment with primarily pain medication, lack of recent abnormal
clinical findings from treating sources and lack of additional treatment modalities, suggests that
[Parker]’s impairments are not incapacitating.” Id. The ALJ properly gave “significant weight”
to Dr. Goldman’s opinion because he is a board certified orthopedist and a member of the
American Academy of Disability Evaluating Physicians. Tr. 639; 20 C.F.R. §§ 416.927(c)(5)
(“We generally give more weight to the medical opinion of a specialist about medical issues
related to his or her area of specialty than to the medical opinion of a source who is not a
specialist.”), 416.927(c)(6) (stating that the SSA will consider “the amount of understanding”
that the medical source has of its “disability programs and their evidentiary requirements” when
it weighs a medical opinion). Moreover, as explained above, the ALJ also relied on Dr. Schwab
and Dr. Dave’s opinions when he created the RFC assessment and did not use Dr. Goldman’s
opinion as the sole reason to find Parker not disabled.
Accordingly, for the reasons stated, this Court finds that the ALJ did not err and that the
RFC determination was supported by substantial evidence.
B.

Credibility Assessment

“The ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an
independent judgment, in light of medical findings and other evidence, regarding the true extent
of the pain alleged by the claimant.” Jackson v. Astrue, No. 1:05-CV-01061 (NPM),  2009 WL
3764221, at *7 (N.D.N.Y. Nov. 10, 2009) (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.
1979)).

“[T]he court must uphold the ALJ’s decision to discount a claimant’s subjective

complaints of pain” if the finding is supported by substantial evidence. Id. (quotation marks and
citation omitted). “It is the function of the Commissioner, not the reviewing court, to ‘resolve

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evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.’” Id.
(quoting Caroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).
When the objective medical evidence alone does not substantiate the claimant’s alleged
symptoms, the ALJ must assess the credibility of the claimant’s statements by analyzing the
following factors: (1) the claimant’s daily activities; (2) the location, duration, frequency, and
intensity of the claimant’s symptoms; (3) precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other
treatment received to relieve symptoms; (6) any measures the claimant has taken to relieve
symptoms; and (7) any other factors concerning the claimant’s functional limitations and
restrictions due to symptoms. 20 C.F.R. §§ 416.929(c)(3)(i)-(vii).
Parker argues that the ALJ’s credibility assessment is not supported by substantial
evidence. ECF No. 11-1, at 7. The ALJ found Parker “not credible” because his daily activities
and medical treatment were inconsistent with his allegations of disabling symptoms and
incapacitating pain. Tr. 637.
As to Parker’s daily activities, the ALJ noted that he maintains personal hygiene, does
household chores, visits with family and friends, watches television, cooks three times a week,
listens to the radio, and grocery shops. Id. The ALJ concluded that these daily activities are
“inconsistent with allegations of disabling symptoms and functional limitations.” Id. Although
the claimant “need not be an invalid” to be disabled under the Social Security Act, Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citation omitted), the ALJ may properly consider the
claimant’s daily activities when assessing his or her credibility. 20 C.F.R. § 416.929(c)(3)(i).
This Court finds that the ALJ properly considered Parker’s daily activities in accordance with the

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standards articulated above and did not err in finding that such activities weakened his
credibility.
As to Parker’s medical treatment, the ALJ noted that Parker has “only consulted with a
neurosurgeon on one occasion,” has “not undergone additional surgery since 2006,” has not been
treated by a pain management specialist, and has not received invasive or even conservative
treatment. Tr. 637. The ALJ concluded that Parker’s medical treatment is “inconsistent with his
description of debilitating and completely incapacitating pain.” Id. The ALJ was entitled to
consider treatment that Parker received (or did not receive) to relieve his symptoms, see 20
C.F.R. § 416.929(c)(3)(v), and this Court finds that he did not err in finding that Parker’s
treatment history weakened his credibility.
Accordingly, for the reasons stated, this Court finds that the ALJ’s credibility assessment
is supported by substantial evidence.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings (ECF No. 19) is GRANTED,
and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 11) is DENIED. Plaintiff’s
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to
enter judgment and close this case.

IT IS SO ORDERED.
Dated: March 30, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 

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