Scouten v. Commissioner of Social Security

Filing 14

DECISION AND ORDER denying 7 Motion for Judgment on the Pleadings; granting 11 Motion for Judgment on the Pleadings. Clerk of Court directed to close the file. Signed by Hon. Leslie G. Foschio on 2/5/2019. (SDW)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________ 
BARBARA CHERIE SCOUTEN,

v.

DECISION
and
ORDER

NANCY A. BERRYHILL,1 Commissioner of
Social Security,

17-CV-00902F
(consent)

Plaintiff,

Defendant.
______________________________________
APPEARANCES:

LAW OFFICES OF KENNETH R. HILLER, PLLC
KENNETH R. HILLER, and
AMY C. CHAMBERS, of Counsel
Attorneys for Plaintiff
6000 North Bailey Avenue
Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
PRASHANT TAMASKAR
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
and
DENNIS J. CANNING
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
601 E. 12TH Street, Room 965
Kansas City, Missouri 64106

1

Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23,
2017. Pursuant to Fed.R.Civ.P. 25(d), Berryhill is substituted for Carolyn W. Colvin as Defendant in this
case. No further action is required to continue this suit by reason of sentence one of 42 U.S.C. § 405(g).

JURISDICTION
On June 19, 2018, the parties to this action, consented pursuant to 28 U.S.C.
§ 636(c) to proceed before the undersigned. (Dkt. 13). The matter is presently before
the court on motions for judgment on the pleadings filed by Plaintiff on March 11, 2018
(Dkt. 7), and by Defendant on May 22, 2018 (Dkt. 11).

BACKGROUND
Plaintiff Barbara Cherie Scouten (“Plaintiff”), brings this action under the Social
Security Act (“the Act”), 42 U.S.C. § 405(g), seeking judicial review of the Commissioner
of Social Security’s final decision denying Plaintiff’s application filed with the Social
Security Administration (“SSA”), on July 5, 2011, for Disability Insurance Benefits under
Title II of the Act (“SSDI” or “disability benefits”). Plaintiff alleges she became disabled
on April 20, 2010, based on kidney stones, bulging disc in spine, nerve pain, nerve
twitching, depression, anxiety, left leg weakness and pain, chronic pain, B-12
deficiency, and joint dysfunction. AR2 at 303. Plaintiff’s application initially was denied
on October 14, 2011, AR at 128-24, 162-66, and at Plaintiff’s timely request, on
February 8, 2013, a hearing was held in Buffalo, New York, before administrative law
judge William M. Weir (the ALJ”). AR at 40-73. Appearing and testifying at the hearing
were Plaintiff, with legal counsel Kelly Laga, Esq. On September 25, 2013, the ALJ
issued a decision denying Plaintiff’s claim, AR at 135-51 (“the ALJ’s first decision”),
which Plaintiff appealed to the Appeals Council which, by Order dated December 19,
2014, remanded the matter to the ALJ for clarification of Plaintiff’s RFC. AR at 158-61.

2

References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
February 1, 2018 (Dkt. 5).

2 

Upon remand, the ALJ conducted a new hearing on April 13, 2015, at which
appeared Plaintiff, represented by legal counsel Laga, vocational expert Larry Seifert
(“the VE”), and medical expert Allan Levine, M.D. (“Dr. Levine”). AR at 74-126. On
August 17, 2015, the ALJ again issued an unfavorable decision, AR at 16-30 (“the ALJ’s
second decision”), which became the Commissioner’s final decision on July 14, 2017,
when the Appeals Council denied Plaintiff’s request for review. AR at 3-5. On
September 12, 2017, Plaintiff commenced the instant action seeking judicial review of
the ALJ’s second decision.
On March 11, 2018, Plaintiff filed a motion for judgment on the pleadings (Dkt. 7)
(“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 7-1) (“Plaintiff’s Memorandum”). On May 22, 2018,
Defendant filed a motion for judgment on the pleadings (Dkt. 11) (“Defendant’s Motion”),
attaching The Brief in Support of the Commissioner’s Motion for Judgment on the
Pleadings and in Response to Plaintiff’s Brief Pursuant to Local Standing Order on
Social Security Cases (Dkt. 11-1) (“Defendant’s Memorandum”). In further support of
Plaintiff’s Motion, Plaintiff filed on June 14, 2018, Plaintiff’s Response to the
Commissioner’s Brief in Support and in Further Support for Plaintiff’s Motion for
Judgment on the Pleadings (Dkt. 12) (“Plaintiff’s Reply”). Oral argument was deemed
unnecessary.
Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED.

3 

FACTS3
Plaintiff Barbara Cherie Scouten (“Plaintiff” or “Scouten”),4 born March 1, 1972,
was 38 years old as of April 1, 2010, her alleged disability onset date (“DOD”). AR at
333. Plaintiff graduated high school, where she was in regular classes, obtained an
Associate’s degree in criminal justice, and has an additional year of college studying
biology. AR at 319, 644. Plaintiff has past work experience as a lab technician and
waitress. AR at 290-300, 304, 319 340-41, 644. Plaintiff is divorced and, as of the
second ALJ hearing, lived with her adult daughter, her daughter’s boyfriend, and two
roommates. AR at 84-85, 107.
It is undisputed that Plaintiff suffers from the severe impairments of Ehler-Danlos
Syndrome (“EDS”) Type 3 (connective tissue disease), a depressive disorder, an
anxiety disorder, a personality disorder, chronic pain syndrome, and obesity. At the
second administrative hearing, Plaintiff described her activities of daily living as doing
laundry which requires Plaintiff to ascend and descend stairs, preparing simple meals,
sweeping once a week, loading lighter dishes into the dishwasher, using a cell phone,
dressing and tending to personal care, grocery shopping, reading, occasionally driving
short distances, and caring for her cats. AR at 85-88, 112-13. Plaintiff has several
braces, including for her back, knees and wrists, and uses a cane when walking. AR at
88-89, 322-26.

3
In the interest of judicial economy, recitation of the Facts is limited to only those facts necessary for
determining the pending motions for judgment on the pleadings.
4
By the second ALJ hearing, Plaintiff was divorced and used “Chappell” as her last name, AR at 76,
which name appears on some of Plaintiff’s medical records. See, e.g., AR at 396. In the interest of
clarity, and because Plaintiff never had her name changed in this action’s caption, the court refers to
Plaintiff as “Scouten.”  

4 

As relevant to this action, Plaintiff has sought medical treatment for various
physical and mental symptoms including pain in her low back, left hip, both knees, neck,
and wrists, decreased range of motion (“ROM”) in her low back and neck, and pain,
anxiety, and depression. From May 28 to June 6, 2013, Plaintiff was hospitalized at
Niagara Falls Memorial Medical Center with suicidal thoughts attributed to her struggles
with chronic medical issues and finances. AR at 919-38. With treatment, including
education on coping with her illness and obtaining medical treatment, Plaintiff’s mood
improved. AR at 920-21. Upon discharge, Plaintiff was diagnosed with depressive
disorder, but major depression was ruled out. AR at 919.
At the second administrative hearing on April 13, 2015, the ALJ elicited testimony
regarding Plaintiff’s EDS Type 3 diagnosis from the testifying medical expert, Dr.
Levine, who explained EDS is a “collagen disorder” which can cause “orthopedically
painful dislocations of joints” which can result in arthritis of the affected joints. AR at 9394. Dr. Levine testified that EDS Type 3 is the most “benign” type of the syndrome, and
observed that Plaintiff’s medical records are devoid of any objective evidence of arthritis
of any of the claimed affected joints. Id. Dr. Levine further testified that despite
references to bulging and herniated discs in Plaintiff’s spine, the medical records also
contain no evidence of any nerve root or spinal cord compromise. Id. Following the
hearing, the ALJ found Plaintiff retains the residual functional capacity (“RFC”), for a
limited range of sedentary work, with limitations to sitting, standing, walking, lifting and
carrying, as well as some postural and fine motor limitations, AR at 23, concluding there
are several occupations within the national economy which Plaintiff could perform such
that Plaintiff is not disabled. AR at 28-29.

5 

DISCUSSION
1.

Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district 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 and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary,5 if supported by substantial

5

Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.

6 

evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
2.

Disability Determination
The applicable regulations set forth a five-step analysis the Commissioner must

follow in determining eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and
416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker,
675 F.2d 464 (2d Cir. 1982). If the claimant meets the criteria at any of the five steps,
the inquiry ceases and the claimant is not eligible for disability benefits. 20 C.F.R. §§
404.1520 and 416.920. The first step is to determine whether the applicant is engaged
in substantial gainful activity during the period for which the benefits are claimed. 20
C.F.R. §§ 404.1520(b) and 416.920(b). The second step is whether the applicant has a
severe impairment which significantly limits the physical or mental ability to do basic
work activities, as defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and
416.920(c). Third, if there is an impairment and the impairment, or its equivalent, is
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or
“the Listings”), and meets the duration requirement,6 there is a presumption of inability
to perform substantial gainful activity, and the claimant is deemed disabled, regardless
of age, education, or work experience. 42 U.S.C. §§ 423(d)(1)(A) and 1382a(c)(3)(A);
20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth step, however, if the impairment
or its equivalent is not listed in Appendix 1, the Commissioner must then consider the
applicant’s “residual functional capacity” (“RFC”), which is the ability to perform physical
or mental work activities on a sustained basis, notwithstanding the limitations posed by

6

The duration requirement mandates the impairment must last or be expected to last for at least a
continuous twelve-month period. 20 C.F.R. §§ 404.1509 and 416.909.

7 

the applicant’s collective impairments, see 20 C.F.R. 404.1520(e)-(f), and 416.920(e)(f), and the demands of any past relevant work (“PRW”). 20 C.F.R. §§ 404.1520(e) and
416.920(e). If the applicant remains capable of performing PRW, disability benefits will
be denied, id., but if the applicant is unable to perform PRW the Commissioner, at the
fifth step, must consider whether, given the applicant’s age, education, and past work
experience, the applicant “retains a residual functional capacity to perform alternative
substantial gainful work which exists in the national economy.” Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (quotation marks and citation omitted); 20 C.F.R. §§
404.1560(c) and 416.960(c). The burden of proof is on the applicant for the first four
steps, with the Commissioner bearing the burden of proof on the final step. 20 C.F.R.
§§ 404.1520(a)(4) and 416.920(a)(4); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.
2008).
In the instant case, the ALJ found Plaintiff meets the Act’s insured status
requirement for SSDI through December 31, 2015, AR at 21, Plaintiff has not engaged
in substantial gainful activity since April 20, 2010, her alleged disability onset date, id.,
that Plaintiff suffers from the severe impairments of EDS Type 3, depressive disorder,
anxiety disorder, personality disorder, chronic pain syndrome, and obesity, id., but that
Plaintiff’s other medically determinable impairment, i.e., a back impairment, dos not
have more than a minimal impact on Plaintiff’s ability to do work activities, id., at 21-22,
that Plaintiff does not have an impairment or combination of impairments meeting or
medically equal to the severity of any listed impairment in 20 C.F.R. Part 404, Subpt. P,
App. 1, id. at 22-23, and that Plaintiff retains the RFC to perform sedentary work limited
to, within an eight-hour day, standing for three hours in 45 minute intervals followed by

8 

sitting for two minutes, can walk for two hours in 30 minute intervals followed by sitting
for two minutes, sitting for six hours, and lifting and carrying 10 lbs. frequently, and 20
lbs. on occasion. AR at 23. Further, Plaintiff requires use of braces on her lower
extremities, is unable to walk on uneven surfaces, occasionally can climb stairs and
ramps with a railing, and kneel, crouch, stoop, and bend, but cannot climb ladders,
ropes, or scaffolds, crawl, work at unprotected heights, use heavy vibratory machinery,
or be exposed to extreme cold, is unable to engage in overhead reaching, but has no
limitations with fine and gross manipulations, and should avoid manual twisting,
torqueing, or gripping more than 32 lbs., is limited to unskilled jobs, and can tolerate
only occasional contact with the general public, but frequent contact with co-workers
and supervisors. Id. The ALJ concluded Plaintiff is incapable of performing her PRW
as a laboratory technician, id. at 28, but given Plaintiff’s age of 38, which is defined as a
younger individual, her education, ability to communicate in English, and RFC, jobs
exist in the national economy that Plaintiff can perform, including table worker, ampoule
sealer, and bench hand, such that Plaintiff is not disabled. Id. at 28-30.
Plaintiff does not contest the ALJ’s findings with regard to the first step of the
five-step analysis, but argues that at steps two and beyond, the ALJ failed to consider
evidence pertaining to numerous impairments, including mental health, neurological,
chronic pain, degenerative, joint dysfunction, and genetic disorders, as well as urinary,
gynecological, and digestive issues, Plaintiff’s Memorandum at 19-22, failed to properly
evaluate medical opinions resulting in an RFC unsupported by substantial evidence, id.
at 22-29, and failed, upon remand after the ALJ’s first decision, to comply with the
direction of the Appeals Council. Id. at 29-30. In opposition, Defendant argues the ALJ

9 

properly considered Plaintiff’s severe impairments, Defendant’s Memorandum at 22-24,
properly weighed the medical opinions of record, id. at 24-28, and properly assessed
Plaintiff as capable of a limited range of sedentary work. Id. at 28-30. In further support
of her motion, Plaintiff reiterates the same arguments set forth in arguing the ALJ’s RFC
findings are unsupported by substantial evidence. Plaintiff’s Reply at 1-10. There is no
merit to Plaintiff’s arguments as substantial evidence in the record supports the ALJ’s
conclusions.
Insofar as Plaintiff maintains the ALJ failed to consider numerous of Plaintiff’s
impairments as severe at step 2, Plaintiff’s Memorandum at 19-22, as Defendant
asserts, Defendant’s Memorandum at 22-24, many of the conditions Plaintiff maintains
should have been considered at step 2 as severe impairments are either mere
symptoms or synonyms of the severe impairments the ALJ considered, or side effects
of medication. Defendant’s Memorandum at 22-24. In particular, Plaintiff lists as the
impairments the ALJ failed to consider as severe a plethora of conditions such as
genetic disorders, cognitive defects, myelopathy, ganglion cyst, lithotripsy, and
constipation. Plaintiff’s Memorandum at 19-22 & nn. 30-35. None of these are,
however, separate from those impairments the ALJ considered to be severe
impairments, significantly limits Plaintiff’s physical or mental ability to perform basis
work activities as defined in the relevant regulations. For example, that “suicidal
ideation” is not a separate impairment, but a symptom of Plaintiff’s depressive disorder
is consistent with the fact that it is not noted as a diagnosis on the medical records
pertaining to Plaintiff hospitalization in 2013 for suicidal thoughts, see AR at 917-38, and
that Plaintiff’s subsequent medical records do not mention suicidal ideation

10 

demonstrates such symptom did not continue for the requisite 12 months. A reference
in the record to “hyperextensible joints” is intended as a symptom possibly indicative of
“hypermobility syndrome,” AR at 360, 684, which is considered consistent with the EDS
diagnosis. AR at 799 (describing Plaintiff’s EDS as “benign joint hypermobility
syndrome” with clinical manifestations of, inter alia, pain, generalized hypermobility
affecting both large and small joints, recurring joint subluxations and dislocations,
arthralgia, and tender muscle contractures or “trigger points”). Id. Furthermore, the
ALJ’s determination that Plaintiff’s back impairment is not severe is consistent with the
complete absence in the record of any spinal cord or nerve root compression. AR at 94.
Accordingly, the ALJ did not err in failing to consider such symptoms and conditions as
severe impairments at the second step of the analysis.
Nor did the ALJ fail to properly evaluate the medical opinions in the record;
rather, a plain review of the record establishes the ALJ considered Plaintiff’s entire
medical record, which is extensively discussed in the ALJ’s second decision. In
particular, the ALJ considered medical records from neurologist George Kalonaros,
M.D. (“Dr. Kalonaros”), who treated Plaintiff for left flank and kidney pain, concluding
Plaintiff was neurologically intact, AR at 446-47, Debra Bergfeld, M.D. (“Dr. Bergfeld”),
who treated Plaintiff for low back and neck pain, who observed Plaintiff with an
essentially normal, nonantalgic and nonataxic gait, and a normal neurologic exam, and
assessed ankle, back and sacroiliac pain, sacroiliac joint dysfunction, and lumbosacral
neuritis, AR at 457, Mark Perry, M.D. (“Dr. Perry”), who ordered an MRI of Plaintiff’s
cervical spine, performed June 3, 2014, and showed multilevel disc dessication and
annular bulge without focal herniation, sequestered fragment, or spinal stenosis, and no

11 

spinal cord impingement or spinal abnormality, AR at 951-54, Kevin J. Gibbons, MD.
(“Dr. Gibbons”), who ordered an EMG and nerve conduction study of her cervical and
thoracic spine which was performed on June 19, 2015, and showed no cervical
compression fracture, spondylolisthesis, moderate/advanced degenerative disc space
narrowing, or evidence for dynamic instability, AR at 1056, and a cervical spine MRI
performed on July 15, 2015, that was normal. AR at 1063. The ALJ considered
medical records from Luther Robinson, M.D. (“Dr. Robinson”), who first diagnosed
Plaintiff with EDS Type 3 on April 20. 2012. AR at 796-800. The ALJ considered the
medical evidence of Plaintiff’s mental impairments, including records from Wonhoon
Park, M.D. (“Dr. Park”), who diagnosed Plaintiff with depressive disorder on February
28, 2011, AR at 527-28, records pertaining to Plaintiff’s May 28 to June 6, 2013,
hospitalization for suicidal ideation, AR at 919-38, consultative psychiatric examinations
by Renée Baskin, Ph.D. (“Dr. Baskin”), on August 30, 2011, AR at 644-47, J.
Echevarria, M.D. (“Dr. Exhevarria”), on October 7, 2011, AR at 652-69, and Richard
Wolin, M.D. (“Dr. Wolin”), on April 20, 2015. AR at 982-88. Also considered by the ALJ
were the records of Plaintiff’s treating physician, Donald Gullickson, M.D. (“Dr.
Gullickson”). AR at 811-42. Significantly, the ALJ is not required to discuss every piece
of evidence in the record. Brault v. Social Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d
Cir. 2012).
Moreover, in reaching his conclusion in the ALJ’s second decision, the ALJ also
considered the testimony from the administrative hearing of the medical expert, Dr.
Levine, on whom the ALJ relied in determining the impact Plaintiff’s EDS had on her
ability to perform work activities. See AR at 92-100 (Dr. Levine’s hearing testimony

12 

regarding EDS and the manifestation of its symptoms in Plaintiff). In particular, Dr.
Levine testified that although EDS Type 3 “can result in orthopedically painful
dislocations of joints and/or the subsequent development of arthritis as a result of those
dislocations, with [sic] result in pain, inflammation, and swelling,” AR at 93, Dr. Levine
found no evidence of such painful swelling, inflammation, or arthritis of any joints
despite Plaintiff’s assertions of diffuse pain. Id. Dr. Levine observed, AR at 94, that
insofar as Plaintiff complained of a bulging disc in her spine, the only evidence
supporting such impairment is a single reference in treatment notes from Buffalo Spine
and Sports Institute, dated November 2, 2010, that Paul R. Olizarowicz, RPA C,
reviewed an MRI scan without contrast of Plaintiff’s lumbo-sacral spine, taken June 11,
2010, which showed disc bulges at L3-4 and L4-5, AR at 461, but the MRI report is not
in the record. Dr. Levine further observed the absence in the record of any evidence of
nerve root or spinal cord compromise, AR at 94, and attributed Plaintiff’s back and neck
pain to “mild degenerative changes.” Id. X-rays taken October 31, 2011, showed
Plaintiff’s left ankle, knees and hip were normal and did not show any arthritic changes,
although some minimal displacement of the kneecaps was consistent with the EDS
diagnosis, id. at 94-95, and Plaintiff’s carpal tunnel syndrome was not shown in an EMG
to be severe, with Plaintiff reporting on March 6, 2012, that the symptoms has largely
resolved. Id. at 95-96. According to Dr. Levine, the whole body bone scan Plaintiff
underwent on March 9, 2010, which was normal, is “an extremely sensitive, although
pretty non-specific type of test” on which “even mild arthritis” would be detected. Id. at
96 (citing AR at 413).

13 

Furthermore, the ALJ’s conclusion regarding Plaintiff’s RFC is entirely consistent
with Dr. Levine’s medical testimony, AR at 98-100, and largely consistent with Dr.
Gullickson’s assessment dated January 23, 2013, AR at 873-78, diagnosing Plaintiff
with anxiety and lower lumbar tenderness. Although Dr. Gullickson found Plaintiff to be
“incapable of even ‘low stress’ jobs,” id. at 875, and Dr. Wolin, on April 20, 2015,
assessed Plaintiff as unable to maintain regular attendance at work, make simple workrelated decisions, travel to unfamiliar places, use public transportation, or complete a
normal workday or workweek without interruptions from her psychologically-based
symptoms, particularly, her history of depression and anxiety characterized by panic
attacks, AR at 982-88, the ALJ found such assessments as unsupported by the other
evidence in the record pertaining to Plaintiff’s mental impairment. AR at 28. In
particular, Dr. Park found Plaintiff to have “no major functional deficit,” AR at 527, Dr.
Baskin assessed that Plaintiff, once her adjustment disorder stabilized, might consider
vocational training and rehabilitation, id. at 647, and Dr. Echevarria assessed Plaintiff
with only mild to moderate limitations, id. at 666-67, opining that Plaintiff “retains the
capability to perform simple work in a low contact setting.” Id. at 664. The standard of
review of the Commissioner’s decision is “a very deferential standard of review – even
more so than the ‘clearly erroneous’ standard.” Brault v. Social Sec. Admin., Comm’r,
683 F.3d 443, 448 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).
“The substantial evidence standard means once an ALJ finds facts, we can reject those
facts ‘only if a reasonable factfinder would have to conclude otherwise.’” Id. (quoting
Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994) (italics added and quotation
marks omitted). In the absence of legal error, and provided there is substantial

14 

evidence supporting the Commissioner’s determination, the decision must be upheld
even if the record also contains substantial evidence supporting the claimant’s position.
Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996). Accordingly, the ALJ did not
improperly weight the medical opinions of record, and the RFC with which the ALJ
assessed Plaintiff is supported by substantial evidence in the record.
Insofar as Plaintiff challenges the ALJ’s determination that Plaintiff’s subjective
complaints were not credible, Plaintiff’s Memorandum at 28, Plaintiff’s Reply at 1,
assessment of credibility is a function of the ALJ, and not the court, Tankisi v. Comm’r
of Soc. Sec., 521 Fed.Appx. 29, 35 (2d Cir. 2013), and a claimant’s testimony as to
subjective complaints is entitled to great weight only when consistent with and
supported by objective medical evidence, Hall v. Astrue, 677 F.Supp.2d 617, 630
(W.D.N.Y. 2009), not found in the instant case, as discussed, supra. Furthermore, “[a]
lack of supporting evidence on a matter for which the claimant bears the burden of
proof, particularly when coupled with other inconsistent record evidence, can constitute
substantial evidence supporting a denial of benefits.” Barry v. Colvin, 606 Fed.Appx.
621, 622 (2d Cir. Apr. 21, 2015).
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 7) is DENIED; Defendant’s Motion
(Dkt. 11) is GRANTED. The Clerk of Court is directed to close the file.
SO ORDERED.
/s/ Leslie G. Foschio  
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

February 5, 2019
Buffalo, New York

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