Hamm v. Colvin

Filing 17

DECISION AND ORDER denying plaintiff's 10 Motion for Judgment on the Pleadings and granting Commissioner's 11 Motion for Judgment on the Pleadings. Signed by Hon. Michael J. Roemer on 7/27/2018. (RAZ)-CLERK TO FOLLOW UP- Amend Caption. Close Case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
JOHN WAYNE HAMM,

16-CV-679-MJR
DECISION AND ORDER

Plaintiff,
-vCOMMISSIONER OF SOCIAL SECURITY, 1
Defendant.
________________________________________
Pursuant to 28 U.S.C. §636(c), the parties consented to have a United States
Magistrate Judge conduct all proceedings in this case. (Dkt. No. 16).
Plaintiff John Wayne Hamm (“Hamm”) brings this action pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying him Social Security Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act
(the “Act”). Both parties have moved for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. For the following reasons, Hamm’s motion
(Dkt. No. 10) is denied and the Commissioner’s motion (Dkt. No. 11) is granted.
BACKGROUND
On April 27, 2010, Hamm filed applications for DIB and SSI alleging disability since
February 1, 2010 due to brain, neck, shoulder and leg damage as a result of a motor
vehicle accident, problems with memory, lack of feeling below his knee, deafness in his
left ear and blindness in his left eye. (See Tr. 303). 2 Hamm’s motor vehicle accident

1
2

The Clerk of Court is directed to amend the caption accordingly.
References to “Tr.” are to the administrative record in this case.

occurred on July 7, 1999. (Tr. 531). However, he continued to work full-time from 1999
through his alleged disability onset date of February 1, 2010. (Tr. 107-08, 244, 304).
Born on August 19, 1965, Hamm was 44 years old at the time of the alleged disability
onset date. (Tr. 130).
Hamm’s benefit applications were initially denied on June 25, 2010. (Tr. 119-20,
124).

Hamm sought review of the determination, and a hearing was held before

Administrative Law Judge (“ALJ”) William Weir on September 7, 2011. (Tr. 91-118). On
February 23, 2012, ALJ Weir issued a decision that Hamm was not disabled under the
Act.

(Tr. 124-31).

Hamm sought review of the decision, and the Appeals Council

remanded the case for further proceedings. (Tr. 136-40, 202). Specifically, the Appeals
Council instructed the ALJ to consider whether Hamm has a severe mental impairment,
to reassess Hamm’s residual functional capacity, with particular attention to possible
limitations related to vision loss in Hamm’s left eye, and, if appropriate, to obtain additional
evidence from a medical expert or a vocational expert. (Tr. 138-40).
ALJ Weir conducted a second hearing on September 19, 2013. (Tr. 38-90). During
the hearing, he took testimony from vocational expert (VE) Jay Steinbrenner and
psychological expert (PE) Dr. Jerry Cottone. (Tr. 42-89, 230-37). On September 26,
2014, ALJ Weir issued a decision finding that Hamm was not disabled under the Act. (Tr.
20-32). Hamm’s request for review of the decision was denied by the Appeals Council
on July 6, 2016. (Tr. 1-16). The ALJ’s September 26, 2014 denial of benefits became
the Commissioner’s final determination, and the instant lawsuit followed.

2

DISCUSSION
I.

Scope of Judicial Review

The Court’s review of the Commissioner’s decision is deferential. Under the Act,
the Commissioner’s factual determinations “shall be conclusive” so long as they are
“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as adequate to support [the]
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks
and citation omitted). “The substantial evidence test applies not only to findings on basic
evidentiary facts, but also to inferences and conclusions drawn from the facts.” Smith v.
Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner’s decision
rests on adequate findings supported by evidence having rational probative force,” the
Court may “not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart,
312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “‘whether the record,
read as a whole, yields such evidence as would allow a reasonable mind to accept the
conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp. 3d 570, 574
(W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)).
Two related rules follow from the Act’s standard of review. The first is that “[i]t is
the function of the [Commissioner], not [the Court], to resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). The second rule is that “[g]enuine
conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d
at 588. While the applicable standard of review is deferential, this does not mean that the
Commissioner’s decision is presumptively correct. The Commissioner’s decision is, as

3

described above, subject to remand or reversal if the factual conclusions on which it is
based are not supported by substantial evidence. Further, the Commissioner’s factual
conclusions must be applied to the correct legal standard. Kohler v. Astrue, 546 F.3d
260, 265 (2d Cir. 2008). Failure to apply the correct legal standard is reversible error. Id.
II.

Standards for Determining “Disability” Under the Act

A “disability” is an “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. §423(d)(1)(A). The Commissioner may find the
claimant disabled “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” Id. §423(d)(2)(A). The Commissioner
must make these determinations based on “objective medical facts, diagnoses or medical
opinions based on these facts, subjective evidence of pain or disability, and . . . [the
claimant’s] educational background, age, and work experience.” Dumas v. Schweiker,
712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration in original) (quoting Miles v. Harris,
645 F.2d 122, 124 (2d Cir. 1981)).
To guide the assessment of whether a claimant is disabled, the Commissioner has
promulgated a “five-step sequential evaluation process.” 20 C.F.R. §404.1520(a)(4).
First, the Commissioner determines whether the claimant is “working” and whether that

4

work “is substantial gainful activity.” Id. §404.1520(b). If the claimant is engaged in
substantial gainful activity, the claimant is “not disabled regardless of [his or her] medical
condition or . . . age, education, and work experience.” Id. Second, if the claimant is not
engaged in substantial gainful activity, the Commissioner asks whether the claimant has
a “severe impairment.” Id. §404.1520(c). To make this determination, the Commissioner
asks whether the claimant has “any impairment or combination of impairments which
significantly limits [the claimant’s] physical or mental ability to do basic work activities.”
Id. As with the first step, if the claimant does not have a severe impairment, he or she is
not disabled regardless of any other factors or considerations. Id. Third, if the claimant
does have a severe impairment, the Commissioner asks two additional questions: first,
whether that severe impairment meets the Act’s duration requirement, and second,
whether the severe impairment is either listed in Appendix 1 of the Commissioner’s
regulations or is “equal to” an impairment listed in Appendix 1. Id. §404.1520(d). If the
claimant satisfies both requirements of step three, the Commissioner will find that he or
she is disabled without regard to his or her age, education, and work experience. Id.
If the claimant does not have the severe impairment required by step three, the
Commissioner’s analysis proceeds to steps four and five.

Before doing so, the

Commissioner must “assess and make a finding about [the claimant’s] residual functional
capacity [“RFC”] based on all the relevant medical and other evidence” in the record. Id.
§404.1520(e). RFC “is the most [the claimant] can still do despite [his or her] limitations.”
Id. §404.1545(a)(1). The Commissioner’s assessment of the claimant’s RFC is then
applied at steps four and five. At step four, the Commissioner “compare[s] [the] residual
functional capacity assessment . . . with the physical and mental demands of [the

5

claimant’s] past relevant work.” Id. §404.1520(f). If, based on that comparison, the
claimant is able to perform his or her past relevant work, the Commissioner will find that
the claimant is not disabled within the meaning of the Act. Id. Finally, if the claimant
cannot perform his or her past relevant work or does not have any past relevant work,
then at the fifth step the Commissioner considers whether, based on the claimant’s RFC,
age, education, and work experience, the claimant “can make an adjustment to other
work.” Id. §404.1520(g)(1). If the claimant can adjust to other work, he or she is not
disabled. Id. If, however, the claimant cannot adjust to other work, he or she is disabled
within the meaning of the Act. Id.
The burden through steps one through four described above rests on the claimant.
If the claimant carries his burden through the first four steps, “the burden then shifts to
the [Commissioner] to show there is other gainful work in the national economy which the
claimant could perform.” Carroll, 705 F.2d at 642.
III.

The ALJ’s Decision

The ALJ first found that Hamm met the insured status requirements of the Act
through June 30, 2014. (Tr. 23). The ALJ then followed the required five-step analysis
for evaluating Hamm’s claim. Under step one, the ALJ found that Hamm has not engaged
in substantial gainful activity since the alleged onset date of February 1, 2010. (Id.). At
step two, the ALJ found that Hamm has severe impairments consisting of monocular
vision, cervicalgia (neck pain), lumbago (lower back pain), and depression. 3 (Id.). At step
three, the ALJ determined that Hamm does not have an impairment that meets or

3

Also at step two, the ALJ concluded that Hamm’s hearing loss, carpal tunnel syndrome, and leg and
shoulder pain have not posed more than minimal functional limitations on Hamm’s ability to do basic work
activities and are not severe impairments.

6

medically equals the severity of one of the listed impairments. (Tr. 24-26). Before
proceeding to step four, the ALJ assessed Hamm’s RFC as follows:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) 4 except he has monocular
vision and is limited to jobs involving simple, repetitive tasks.
(Tr. 26-30). Proceeding to step four, the ALJ determined that Hamm is unable to perform
any past relevant work. (Tr. 29-30). In considering step five, the ALJ heard testimony
from VE Steinbrenner. (Tr. at 31-32). Based upon Steinbrenner’s testimony, which took
into account Hamm’s age, education, work experience and RFC, the ALJ concluded that
Hamm can perform jobs that exist in significant numbers in the national economy, such
as usher and cafeteria attendant. (Id.). Accordingly, the ALJ found that Hamm has not
been under a disability within the meaning of the Act from February 1, 2010 through the
date of his decision.
IV.

Hamm’s Challenges

Hamm first argues that remand is necessary because the ALJ failed to provide
good reasons as to why he did not give significant or controlling weight to the opinion of
Dr. MacLean, Hamm’s treating physician. (See Dkt. No. 10-1 (Hamm’s Memo. of Law)).
The opinion of a treating physician is to be given controlling weight if it is “wellsupported by medically acceptable evidence and is not inconsistent with other substantial
evidence in the record.” 20 C.F.R. §404.1527(c)(2); Snell v. Apfel, 177 F.3d 128, 132-33
(2d Cir. 1999). “When other substantial evidence in the record conflicts with the treating

4
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range or
light work, [the claimant] must have the ability to do substantially all of these activities.” 20 C.F.R.
§§404.1567(b) and 416.967(b).

7

physician’s opinion, however, that opinion will not be deemed controlling…[a]nd the less
consistent that opinion is with the record as a whole, the less weight it will be given.”
Snell, 177 F.3d at 133; accord 20 C.F.R. §404.1527(d)(4). In addition, the ultimate finding
as to whether a claimant is disabled and cannot work is reserved to the Commissioner.
Id. at §404.1527(d)(1). To that end, “the Social Security Administration considers the
data that physicians provide but draws its own conclusions as to whether those data
indicate disability..[and a] treating physician’s statement that the claimant is disabled
cannot itself be determinative.” Snell, 177 F.3d at 133. Indeed, the Commissioner is
required to explain the weight it gives to the opinions of a treating physician and to provide
“good reasons” for not crediting the opinion of a treating physician.

20 C.F.R.

§404.1527(c)(2).
Here, the ALJ provided good reasons for giving little weight to the findings and
opinions of Dr. MacLean as to Hamm’s limitations. To that end, ALJ Weir described how
Dr. MacLean’s assessments of Hamm’s condition were both internally inconsistent and
unsupported by other substantial evidence in the record. On June 9, 2010, Hamm, who
had been involved in a serious car accident in July of 1999, requested that Dr. MacLean
complete a Residual Functional Capacity Questionnaire for purposes of obtaining
disability benefits. (Tr. 531). On the Questionnaire, Dr. MacLean noted that Hamm had
significant work-related limitations, including frequent pain and other symptoms severe
enough to interfere with attention and concentration, the need to frequently change
positions at will and the need to take unscheduled breaks. (Tr. 29, 483-87). Dr. MacLean
further noted that Hamm could only sit for 15 minutes at a time. (Id.). A little less than
one year later, in May of 2011, Dr. MacLean completed a Commercial Driver Fitness

8

Determination on Hamm’s behalf to be submitted to the Department of Transportation for
recertification of Hamm’s commercial driver’s license. (Tr. 29, 538-43). In contrast to his
previous assessment, Dr. MacLean certified that Hamm had little to no physical
limitations. (Id.). He specifically indicated that Hamm had no impaired vision, no chronic
low back pain, and no limitation of motion or tenderness related to his spine or
musculoskeletal system. (Id.). Dr. MacLean certified that the numbness in Hamm’s leg
as well as his “visual field cut of the upper outer quadrant” should not interfere with his
ability to drive a truck. (Id.). He also certified that Hamm had no nervous or psychiatric
symptoms such as depression. (Id.). A few months later, on August 17, 2011, Hamm
visited Dr. MacLean complaining of low back pain. (Tr. 581). At that time, Dr. MacLean
completed a Mental Residual Functional Capacity Questionnaire for Hamm. (Tr. 566,
581).

Therein, he indicated that Hamm suffered from major depression including

generalized persistent anxiety and difficulty thinking or concentrating. (Tr. 29, 565-70).
In May of 2013, Dr. MacLean completed, on Hamm’s behalf, a Medical Examination for
Employment Ability Assessment for the New York State Office of Temporary Disability
Assistance. (Tr. 604-05). He opined that Hamm was very limited with regard to walking,
standing, lifting, carrying, pushing, pulling, seeing and using stairs as well as moderately
limited as to sitting and using his hands. (Id.). He also found Hamm to be moderately
limited with respect to carrying out instructions, maintaining attention and concentration
and functioning in a work setting at a consistent pace. (Id.). Dr. MacLean further noted
that Hamm had back pain, balance problems, and numbness and sensory loss in his
lower extremities. (Id.).

9

In sum, Dr. MacLean found: (1) in June of 2010 that Hamm had significant workrelated limitations, needed to frequently change positions, and could only sit for 15
minutes at a time; (2) in May of 2011 that Hamm had virtually no limitation of motion, no
visual impairments and no condition that would impact his ability to drive a truck; and (3)
in May of 2013 that Hamm was very limited as to seeing, walking, standing, was
moderately limited as to sitting and had back pain and balance problems. The ALJ
correctly noted that there is no evidence in the record, including in Dr. MacLean’s own
progress notes, of improvements or deteriorations in Hamm’s conditions that would
account for these changing assessments of Hamm’s abilities and functional limitations.
(Tr. 29). Indeed, the car accident, which is the source of Hamm’s impairments, occurred
in 1999 and Dr. MacLean found that Hamm “recuperated remarkably well from those
injuries.” (Tr. 587-88). The ALJ also noted inconsistencies in Dr. MacLean’s assessment
of Hamm’s mental health. (Tr. 29). In August of 2011, Dr. MacLean found that Hamm
suffered from major depressive disorder. However, just a few months prior, Dr. MacLean
certified to the Department of Transportation that Hamm did not suffer from depression.
Moreover, while Dr. MacLean’s August 2011 assessment indicates that Hamm’s
depression causes him to be limited or seriously limited in a number of work-related
capacities, Dr. MacLean also stated that Hamm’s mental health conditions were wellcontrolled with medication and assigned him a global assessment functioning (GAF)
score of 70. 5 (Id.). See Michels v. Astrue, 297 Fed. Appx. 74, 75-76 (2d Cir. 2008) (a

5

A GAF score of between 61 and 70 indicates some mild symptoms…but generally functioning pretty
well, with some meaningful interpersonal relationships. See American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders, at 34 (4th ed. 2000) (DSM-IV). Dr. Cottone, the psychological
expert, testified that a GAF score of 70 would indicate mild symptoms, while a GAF score below 50
“would start to indicate more serious symptoms.” (Tr. 45).

10

physician’s opinions are given less weight when those opinions are internally
inconsistent).
Moreover, the ALJ accurately concluded that Dr. MacLean’s opinions as to
Hamm’s significant limitations were not only internally inconsistent, but also at odds with
other substantial evidence in the record. The ALJ noted that after undergoing treatment
for injuries sustained in the 1999 accident, the clinical findings and treatment as to
Hamm’s physical condition have been relatively modest.

Dr. Miller, an osteopath,

performed a consultative examination on Hamm on June 11, 2010. (Tr. 488-91). She
found that Hamm was in no acute distress and walked with a normal gait, that he had
some limited range of motion in his lumbar spine, shoulders, knees and feet, that he had
full range of motion in his elbows, wrists and hips, that his joints were stable and
nontender, that he had full strength in his extremities, that he had no muscle atrophy and
that his prognosis was stable. (Tr. 488-91). A magnetic resonance imaging (MRI) scan
on Hamm’s cervical spine on August 1, 2013 showed a disc bulge at C6-7 but no evidence
of spinal stenosis and satisfactory alignment of cervical segments. (Tr. 607). An x-ray of
Hamm’s neck on August 3, 2013 showed loss of normal cervical lordosis with no evidence
of acute hardware failure. (Tr. 606). During a visit to Lake Shore Health Center on
November 15, 2014 due to stomach pain, Hamm denied any musculoskeletal or
psychiatric symptoms. (Tr. 735). The examination revealed normal range of motion in
his neck, a normal back examination, and normal upper and lower extremities. (Tr. 735).
During a physical exam on April 5, 2013 for treatment of dizziness and blurred vision,
Hamm reported no musculoskeletal or psychiatric problems. (Tr. 599). Medical evidence
in the record as to Hamm’s cognitive abilities is also inconsistent with the limitations noted

11

by Dr. MacLean. Dr. Cottone, the psychological expert, testified at the hearing that he
saw no evidence depicting a decline in Hamm’s memory or cognitive functioning since
the 1999 accident and that Hamm could perform simple, repetitive tasks on a routine
basis. (Tr. 44, 48). In June of 2011, Dr. Ryan, a licensed psychologist, performed a
consultative evaluation. (Tr. 494-497). Dr. Ryan concluded that Hamm could follow and
understand simple directions, perform simple tasks, generally maintain attention and
concentration, and maintain a regular schedule. (Tr. 496).
Finally, Hamm’s own testimony and long-term work history is inconsistent with the
significant limitations found by Dr. MacLean. Hamm treated his pain with Ibuprofen, rest
and stretching exercises. (Tr. 53-54, 320). Hamm testified before the ALJ that following
the car accident in 1999, he continued to work as a truck driver until 2005. (Tr. 107-108).
Hamm further testified that he worked as a mechanic from 2005 through February of
2010. (Id.). Hamm first testified that he left his job because he had difficulty remembering
things and was afraid he would hurt someone if he made a mistake. (Tr. 51, 97, 109,
112). However, Hamm also testified that he left his last position because the company
laid-off all employees in 2010. (Id.).
Thus, the Court finds that the ALJ provided good reasons to support his conclusion
that many of Dr. MacLean’s findings were internally inconsistent and not supported by the
substantial evidence in the record. See Micheli v. Astrue, 501 F. App’x 26, 28-29 (2d Cir.
2012) (holding that it was not error for ALJ to decline to afford controlling weight to a
treating physician when the opinion was internally inconsistent as well as inconsistent
with other substantial evidence in the record); Manning v. Colvin, 13-CV-497, 2014 U.S.
Dist. LEXIS 147546 (WDNY Oct. 16, 2014) (finding that the ALJ properly gave little weight

12

to the treating physician’s opinion and “great weight” to the consultative examiner’s
prognosis where the latter was more consistent with the medical evidence in the record).
Hamm also argues that the ALJ’s physical RFC assessment is unsupported by
substantial evidence because it assumes that Dr. Miller’s assessment of moderate
limitation is commensurate with light work and because it rejects medical opinion
evidence regarding his ability to reach. (See Dkt. No. 10-1 (Hamm’s Memo. of Law)).
Following a consultative examination on June 11, 2010, Dr. Miller concluded that
Hamm has moderate limitations with repetitive bending, turning, twisting, lifting, carrying,
reaching, pushing, and pulling, and also recommended that Hamm avoid heights
secondary to his vision impairment as well as anything requiring depth perception. (Tr.
491). ALJ Weir credited Dr. Miller’s findings that Hamm has moderate limitations with
lifting and carrying as well as a vision impairment.

(Tr. 28).

Contrary to Hamm’s

argument, the ALJ went on to explain how these limitations allowed for a RFC of light
work with some additional restrictions related to Hamm’s monocular vision. Specifically,
the ALJ explained that Hamm should not do more than moderate amounts of lifting and
carrying and should avoid heights and anything requiring depth perception. (Id.). These
findings are consistent with the Commissioner’s definition of light work as requiring lifting
no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up
to 10 pounds. This assessment is also consistent with other evidence in the record as to
Hamm’s capabilities. In June of 2012, Dr. MacLean opined that Hamm could frequently
lift 10 pounds and Hamm testified that he could lift 10 to 15 pounds. (Tr. 103, 485).
Indeed, courts in this Circuit have found that mild or moderate limitations in general, and
specifically as to a plaintiff’s ability to lift, are consistent with the ability to perform light

13

work. See Burnette v. Colvin, 564 Fed. Appx. 605, 608 (2d Cir. 2014) (concluding that
substantial evidence supported the ALJ’s finding that plaintiff could perform limited light
work, where “ALJ relied on the evaluations…that suggest[e]d [plaintiff’s] physical and
mental limitations were mild or moderate[.]”); Harris v. Comm’r of Soc. Sec., 09-CV-1112,
2011 U.S. Dist. LEXIS 92366 (NDNY July 27, 2011) (upholding ALJ’s determination that
slight to moderate limitations in activities that require lifting, carrying, and reaching are
consistent with plaintiff’s ability to perform light work); Vargas v. Astrue, 10 Civ. 6306,
2011 U.S. Dist. LEXIS 78819 (SDNY July 20, 2011) (moderate limitations for lifting,
carrying, handling objects and climbing stairs are “consistent with a conclusion that
plaintiff can perform light work”).
Further, the ALJ’s decision to give little weight to Dr. Miller’s opinion that Hamm
has moderate limitations in repetitive bending, turning, twisting and reaching is supported
by substantial evidence in the record. See Pellam v. Astrue, 508 F. App’x 87, 89 (2d Cir.
2013) (there is no requirement that an ALJ accept every limitation found by a consultative
examiner). ALJ Weir correctly noted that MRI’s and x-rays of Hamm’s cervical spine
taken in 2013 were largely benign. (Tr. 28, 606-07). ALJ Weir further reasoned that Dr.
Miller noted a negative straight leg raising test, normal deep tendon reflexes and strength
of upper and lower extremities, normal gait and stance, no sensory deficits and no
evidence muscle atrophy. (Tr. 28-29). The ALJ noted that Hamm reported cleaning,
doing laundry, and shopping once a week, carrying out child-care needs daily, and
performing self-care tasks. (Id.). In January of 2014, Dr. McLean reported that Hamm
had full extension in his right arm and normal strength in his hands and arms. (Tr. 640641). Other evidence in the record as to Hamm’s general capabilities and condition

14

further support the ALJ’s decision not to credit all of the limitations found by Dr. Miller. In
August of 2012 Dr. MacLean opined that Hamm recovered remarkably well after the 1999
car accident. (Tr. 587). As noted by the ALJ, there is no medical evidence in the record
of a significant deterioration in Hamm’s condition from 1999 until his alleged disability
onset date of February 1, 2010. The ALJ reasons that Hamm’s treatment has been
conservative, his pain has been treated with over-the-counter medication rather than
prescription drugs and there is no evidence that he has difficulty ambulating. (Tr. 30,
631). Moreover, Hamm worked as a truck driver and a mechanic for ten years after the
accident and testified that he left his position in 2010 because the company laid off all
employees. (Tr. 28).
Lastly, Hamm argues that remand is required because the ALJ elevated his own
judgment above the medical opinions with respect to Hamm’s social functioning. 6 (See
Dkt. No. 10-1 (Hamm’s Memo. of Law)).
The Court finds that the ALJ cited sufficient evidence in the record to support his
determination that Hamm is not significantly limited in social functioning. The ALJ noted
that Hamm has not treated with any mental health specialists and that his primary care
physician found his depression to be well-controlled by medication. (Tr. 28-29). The ALJ
explained that in August of 2011, Hamm was assigned a GAF score of 70, reflecting mild
symptoms. (Tr. 29, 566). In fact, in a Mental Residual Functional Capacity Questionnaire
on August 17, 2011, Dr. MacLean rated Hamm as satisfactory or better in his ability to
interact with members of the general public and to maintain socially appropriate behavior.

6

Consultative Examiner Thomas Ryan, Ph.D. found that Hamm had moderate limitations in his ability to
deal with others. (Tr. 496). However, ALJ Weir found very little support in the overall record for this
opinion. (Tr. 29). Likewise, the ALJ found that state agency psychological consultant T. Andrews
assessed more difficulties in social functioning than are established by the overall record. (Tr. 30, 519).

15

(Tr. 569). Likewise, on May 21, 2013, Dr. MacLean found that Hamm was not limited in
his abilities to make simple decisions, interact appropriately with others, and maintain
socially appropriate behavior. (Tr. 605). In May of 2010, Hamm completed an Activities
of Daily Living Questionnaire wherein he stated that he has no issues getting along with
bosses, teachers, police, landlords, or other people in authority, and that he never lost a
job due to an inability to get along with others. (Tr. 316-17). The ALJ further noted that
Hamm told Dr. Miller that he “enjoyed socializing with friends” and there is no indication
that he cannot get along with his doctors. (Tr. 25, 489). Thus, the Court finds that there
is substantial evidence to support ALJ Weir’s findings that Hamm is no more than mildly
limited in social functioning. See Moxham v. Comm’r of Soc. Sec., 3:16-CV-1170, 2018
U.S. Dist. LEXIS 35157 (NDNY Mar. 5, 2018) (“There is no legal requirement that the ALJ
rely on a medical opinion in every case to formulate the RFC. Rather, the ALJ has the
responsibility of reviewing all the evidence, resolving inconsistencies, and making a
determination consistent with the evidence as a whole.”).
CONCLUSION
For the foregoing reasons, Hamm’s motion for judgment on the pleadings (Dkt. No.
10) is denied and the Commissioner’s motion for judgment on the pleadings (Dkt. No. 11)
is granted.
The Clerk of Court shall take all steps necessary to close this case.
SO ORDERED.
Dated:

July 27, 2018
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge
16