McGreevy v. Commissioner of Social Security
Filing
15
DECISION AND ORDER denying plaintiff's 11 Motion for Judgment on the Pleadings and granting Commissioner's 13 Motion for Judgment on the Pleadings. Signed by Hon. Michael J. Roemer on 6/10/2019. (RAZ)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ROBERT PAUL MCGREEVY,
17-CV-01341-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. 6).
Plaintiff Robert Paul McGreevy (“plaintiff”) 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” or “defendant”) denying him 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, plaintiff’s motion
(Dkt. No. 11) is denied and defendant’s motion (Dkt. No. 13) is granted.
BACKGROUND
Plaintiff filed an application for DIB on February 25, 2014 alleging disability since
November 1, 2012 due to chronic neck pain, inability to turn his neck to the side, steel
plates in his left foot and leg, walking with a limp, difficulty walking for more than an hour,
1
The Clerk of Court is directed to amend the caption accordingly.
a head injury, sleep apnea, and depression. 2 (See Tr. 229-38, 265-73). 3 Plaintiff’s
disability benefits application was initially denied on May 28, 2014. (Tr. 141-55). Plaintiff
sought review of the determination, and a hearing was held before Administrative Law
Judge (“ALJ”) Jack McCarthy on June 14, 2016. (Tr. 84-123). ALJ McCarthy heard
testimony from plaintiff, who was represented by counsel, and from Vocational Expert
Jennifer S. LaRue. (Id.). Also during the hearing, the ALJ heard testimony from impartial
medical experts Darius Ghazi, M.D., an orthopedic surgeon, and Thomas H. England,
Ph.D., a psychologist.
(Id.).
At the hearing, plaintiff requested a closed period of
disability, from October 21, 2012, when hardware was removed from his foot following his
2010 fracture, to March 1, 2014, when he started looking for work. (Tr. 10, 87). On
September 20, 2016, ALJ McCarthy issued a decision that plaintiff was not disabled under
the Act from October 31, 2012 through March 1, 2014. (Tr. 10-23). Plaintiff timely sought
review of the decision by the Appeals Council. (Tr. 226). Plaintiff’s request for review of
the decision was denied by the Appeals Council on October 30, 2017. (Tr. 1-6). The
ALJ’s September 20, 2016 denial of benefits became the Commissioner’s final
determination, and the instant lawsuit followed.
Born on November 28, 1968, plaintiff was 43 years old on the alleged disability
onset date. (Tr. 18, 273). He speaks English and has a high school education. (Tr. 18).
Plaintiff served in the United States Navy from 1987 through 1991. (Tr. 103). After that,
he worked as a sous chef, executive chef, assistant chef, and kitchen manager in various
Buffalo restaurants until 2012. (Tr. 118-19, 239-54, 274). Plaintiff indicates that he
2
Plaintiff also filed an application for SSI on February 27, 2014 with a protective filing date of February 25,
2014.
3 References to “Tr.” are to the administrative record in this case.
2
stopped working in 2012 but resumed work again as a chef in April of 2014. (Tr. 86, 103).
Plaintiff is currently employed full-time as an assistant chef and his job duties include
assisting the banquet chef in preparing meals for large functions. (Tr. 103). His earnings
record demonstrates that he was engaged in substantial gainful activity with earnings
from 1992 through 2012 and again in 2014 and 2015. (Tr. 269). Thus, the issue before
this Court is whether there was substantial evidence to support the ALJ’s decision that
plaintiff was not under a disability, as defined by the Act, between October 31, 2012 and
March 1, 2014.
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
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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
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
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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
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
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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
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 their 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.
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III.
The ALJ’s Decision
The ALJ first found that plaintiff met the insured status requirements of the Act
through December 31, 2019. (Tr. 10, 12). The ALJ then followed the required five-step
analysis for evaluating plaintiff’s claim. Under step one, the ALJ found that plaintiff did
not engage in substantial gainful activity from October 31, 2012 to March 1, 2014, the
alleged period of disability. (Id.). At step two, the ALJ found that, during the period in
question, plaintiff had severe impairments consisting of: (1) status post intraarticular distal
tibia fracture with fibula fracture; (2) status post removal of left tibia infection and removal
of hardware; and (3) degenerative disc disease of the cervical spine. 4 (Tr. 12-15). At
step three, the ALJ determined that plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments.
(Tr. 15). Before proceeding to step four, the ALJ assessed plaintiff’s RFC from October
31, 2012 to March 1, 2014 as follows:
[T]he [plaintiff] had the residual functional capacity to perform light work, as
defined in 20 CFR 404.1567(b) and 416.967(b), including the ability to lift,
carry, push or pull up to 20 pounds occasionally and 10 pounds frequently.
He could stand and/or walk 6 hours in an 8-hour workday. He had no
limitations on sitting. He needed to avoid climbing, kneeling, crouching and
crawling. He could frequently balance on flat surfaces. He needed to avoid
unprotected heights and reaching overhead.
(Tr. 15-18).
Proceeding to step four, the ALJ concluded, based upon the testimony of VE
LaRue, that plaintiff was unable to perform any past relevant work during the alleged
4 Also at step two, the AJJ noted that he was giving no weight to Dr. Ghazi’s hearing testimony that plaintiff’s
impairment of the lower left leg involving the ankle joint and a portion of the foot met Listing 1.02A (20 CFR
404 Appendix 1) as of October 31, 2012. (Tr. 13-14). The ALJ further found, based on the hearing
testimony of Dr. England and plaintiff’s lack of mental health treatment during the pertinent period, that
plaintiff’s medically determinable mental impairment of depression did not cause more than minimal
limitation in plaintiff’s ability to perform basic mental work activities and therefore was non-severe. (Tr. 14).
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period of disability. (Tr. 18). Proceeding to step five, and after considering testimony from
VE LaRue in addition to plaintiff’s age, work experience and RFC, the ALJ found that
there are other jobs that exist in significant numbers in the national economy that plaintiff
could have performed during the time period in question, such as charge account clerk,
order clerk or document preparer. 5 (Tr. 18-19). Accordingly, the ALJ found that plaintiff
had not been under a disability within the meaning of the Act from October 31, 2012 to
March 1, 2014. (Tr. 19).
IV.
Plaintiff’s Challenges
Plaintiff argues that remand is required because the ALJ dismissed the opinion of
Dr. Ghazi, the only medical opinion in the record regarding plaintiff’s physical capabilities.
(See Dkt. No. 11-1 (Plaintiff’s Memo of Law)). Therefore, plaintiff contends that the RFC
was not supported by substantial evidence. (Id.). During the hearing, the ALJ received
testimony from medical expert Darius Ghazi, M.D., an orthopedic surgeon. Dr. Ghazi,
who never examined or treated plaintiff, testified based upon his review of plaintiff’s
medical records. Dr. Ghazi noted that in August of 2010 plaintiff sustained an injury to
his left leg involving his ankle joints and a portion of his left foot. (Tr. 89). He further
noted that plaintiff developed an infection in the hardware after surgery, which ultimately
healed. (Id.). Dr. Ghazi testified that he was sure the fracture was arthritic and might
need surgery in the future, including either replacement of the ankle joint or fusion. (Tr.
89, 92). Dr. Ghazi further opined that, based on this injury, plaintiff had an impairment
that met Section 1.02(A) of 20 CFR 404, Subpt. P, App. 1 (the Listings) as of October 31,
5 Also at step five, the ALJ noted that the jobs cited by the VE could be performed even if plaintiff were
limited to occasional balance on flat surfaces and could stand and/or walk only 2 of 8 hours, which is more
restrictive than the RFC. (Tr. 19). Thus, even if plaintiff were limited to sedentary work, he would not have
been disabled for 12 months during the requested closed period. (Id.).
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2012. 6 (Tr. 89). The ALJ gave little weight to Dr. Ghazi’s opinion because his findings
were inconsistent with both plaintiff’s medical records and other evidence in the record.
(Tr. 17).
The Court finds that the ALJ did not err in discounting the opinion of Dr. Ghazi. As
noted above, Dr. Ghazi is not plaintiff’s treating physician. Therefore, his opinion is not
entitled to controlling weigh. See 20 C.F.R. §§404.1527(c) and 404.1502. If a medical
opinion is not entitled to controlling weight, an ALJ is to consider several factors in
deciding how much weight to give the opinion, including the nature of the medical source’s
relationship to the plaintiff, the opinion’s supportability and consistency, the source’s
specialization, and any other factor that tends to support or contradict the opinion. See
20 C.F.R. §404.1527(c)(1)-(6). Here, the ALJ thoroughly considered these factors before
rejecting Dr. Ghazi’s findings. The ALJ noted that Dr. Ghazi is an orthopedic surgeon
and medical expert who testified based upon his review of the medical evidence; not
based upon a treating relationship with or examination of plaintiff. He noted that Dr. Ghazi
appeared to miss medical evidence, including evidence of plaintiff’s ability to ambulate
between October 31, 2012 and March 1, 2014. Specifically, during the hearing, the ALJ
explained that in order to have an impairment that meets Section 1.02(A) of the Listings,
an individual must have an inability to ambulate effectively. (Tr. 91-92). The ALJ then
asked Dr. Ghazi if there is any evidence in the medical records that plaintiff was unable
to ambulate effectively between October of 2012 and March of 2014. (Tr. 92). Dr. Ghazi
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Listing 1.02(A) provides, in pertinent part, that a claimant is per se disabled if he or she has “major
dysfunction of a joint(s) (due to any cause) [c]haracterized by gross anatomical deformity…and chronic joint
pain and stiffness with signs of limitation of motion or other abnormal motion of the affected
joints…with…[i]nvolvement of one major peripheral weight bearing joint…resulting in inability to ambulate
affectively.” 20 C.F.R. Pt. 404, Subpt. P. App. 1, § 1.02. See also 20 C.F.R. §404.1520(d).
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acknowledged that he “didn’t see any.” (Id.). Further, as indicated by the ALJ in the
decision, the medical evidence indeed reflects that plaintiff was able to ambulate
effectively between October of 2012 and March of 2014. (Tr. 16). In November of 2012,
a physician assistant from the Veteran’s Administration (“VA”) opined that plaintiff could
return to full weight bearing on his left leg in six weeks, that he had full range of motion,
5/5 strength, and gross stability and neurological functioning in his left leg. (Tr. 422-23).
In December of 2012, plaintiff was again found to have full range of motion, 5/5 strength,
and gross stability and neurological functioning in his left leg. (Tr. 418-19). In March of
2013, plaintiff’s ambulation was described as “independent with a steady gait.” (Tr. 409).
The ALJ then went on to list the other ways in which Dr. Ghazi’s opinion was contradicted
by the record as a whole. Indeed, plaintiff reported both looking for work and working
during the time period at issue. (Tr. 408-409, 420, 428). Thus, Dr. Ghazi’s finding of a
severe impairment was inconsistent with plaintiff’s work during the alleged period of
disability. (Tr. 17). Also in October of 2013, plaintiff sustained an injury when he fell off
a ladder while retrieving shingles from a roof. (Tr. 395). Thus, plaintiff’s reported activities
during the alleged period of disability indicate that he was capable of both ambulation and
significant physical exertion. Finally, plaintiff testified that doctors prescribed orthopedic
insoles which helped him to bear weight on his leg and that medication helped alleviate
his pain. (Tr. 111, 114). For these reasons, the Court finds that the ALJ did not err when
he gave little weight to the opinion of Dr. Ghazi.
The Court further finds that, contrary to plaintiff’s argument, the RFC is supported
by substantial evidence. Generally, when assessing a plaintiff’s RFC, “[a]n ALJ must rely
on the medical findings contained within the record and cannot make his own diagnosis
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without substantial medical evidence to support his opinion.” Goldthrite v. Astrue, 535 F.
Supp. 2d. 329, 339 (W.D.N.Y. 2008). However, when the medical evidence shows only
minor impairments, “an ALJ permissibly can render a common-sense judgment about
functional capacity even without a physician’s assessment.” Wilson v. Colvin, 13-CV6286, 2015 WL 1003933, *21 (W.D.N.Y. Mar. 6, 2015). See also Matta v. Astrue, 508 F.
App’x 53, 56 (2d Cir. 2013) (“Although the ALJ’s conclusion may not perfectly correspond
with any of the opinions of medical sources cited in his decision, he was entitled to weigh
all of the evidence available to make an RFC finding that was consistent with the record
as a whole.”). As explained below, the ALJ properly considered the record as a whole,
including all testimony, medical records and treatment notes, when he determined that,
between October 31, 2012 and March 1, 2014, plaintiff could perform light work with some
additional restrictions as outlined in the RFC. The Court finds substantial evidence in the
record exists to support these findings.
Plaintiff sustained left lower leg fractures in a motorcycle accident on August 4,
2010. (Tr. 325-26). He underwent surgery to repair the fracture on August 6, 2010,
including closed reduction manipulation of a distal tibial-fibular fracture with application of
a multiplanar external fixation system and intraoperative fluoroscopy.
(Tr. 331-33).
Plaintiff had another surgery on August 14, 2010, involving open reduction and internal
fixation of his intra-articular distal tibia fracture, removal of external fixator, open treatment
of a right calcaneus fracture, open reduction and internal fixation of a calcaneocuboid
joint dislocation, and intraoperative fluoroscopy. (Tr. 334-37). Plaintiff regularly saw
Christopher Ritter, M.D. for follow-up care after his surgeries. In April of 2011, plaintiff’s
x-rays showed healed tibia and fibula fractures and stable calcaneocuboid joint. (Tr. 347,
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462). In August of 2011, plaintiff’s x-rays reflected a healed and remodeled tibia and
fibula fracture. (Tr. 310, 345). Dr. Ritter recommended hardware removal. (Tr. 310-11).
In August of 2012, x-rays showed healed fracture deformities in the left fibula and tibula
and intact hardware. (Tr. 444-45).
On October 31, 2012, the start of the alleged period of disability, Elizabeth Nolan,
M.D. diagnosed plaintiff with a left tibia hardware infection.
(Tr. 435-36).
Plaintiff
underwent surgery and a wound VAC to treat the infection. (Id.). On November 8, 2012,
plaintiff saw Douglas Schurr, a physician assistant with the VA. (Tr. 430). Schurr found
that plaintiff had an open wound without signs of infection, mild wound tenderness, full
range of motion, 5/5 strength, and grossly intact functioning in his left leg. (Tr. 430-31).
He diagnosed left tibia hardware removal and placement of a wound VAC. (Tr. 431).
Schurr indicated that plaintiff could return to light duty work and recommended sedentary
or desk work. (Tr. 429). He noted that plaintiff should avoid prolonged standing when
possible and not climb, and could “progress to expected job duties over the next four
weeks.” (Tr. 429-30). On November 15, 2012, Schurr found that plaintiff had a wound
VAC in place without signs of infection. (Tr. 422). He again noted that plaintiff had full
range of motion, 5/5 strength, and gross stability and neurological functioning in his left
leg. (Tr. 422). He opined that plaintiff could fully weight bear on his left ankle in six weeks.
(Tr. 423). Plaintiff saw Dr. Nolan again on November 29, 2012. (Tr. 420). Plaintiff
reported no complaints, that he was doing well with his wound VAC and that he was
looking for work. (Tr. 420). Dr. Nolan diagnosed plaintiff’s status as post-right tibia
hardware removal for infection with well-healing wound. (Tr. 420).
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Plaintiff saw another physician assistant with the VA on December 18, 2012. (Tr.
418-19). Plaintiff was again found to have no signs of infection, full range of motion, 5/5
strength, and gross stability and neurological functioning in his left leg. (Id.). That same
day, Dr. Jonathan Graff of the VA found that plaintiff had a nicely healing wound but might
need “an element of compression” probably forever. (Tr. 417-18). Plaintiff returned to
the VA in March of 2013. (Tr. 407-09). Plaintiff’s ambulation status was described as
“independent with a steady gait.” (Tr. 409). He was found to have a normal gait, normal
muscle strength and tone, but limited range of motion in his spine. (Tr. 411). At that time,
plaintiff reported to his treatment provider that he was recently fired from a job and had a
job interview prior to his medical appointment that day. (Tr. 407-08).
On October 6, 2013, plaintiff visited the emergency room at the VA after falling off
a ladder while retrieving shingles from a roof. (Tr. 395-05, 440-41). He complained of
right hand swelling and rib pain, and was later diagnosed fractures at the base of his
thumb. (Tr. 395, 437-38). Plaintiff later underwent hand surgery to repair the fracture.
(Tr. 390). Plaintiff saw Dr. Nolan on November 15, 2013 for his left ankle impairment.
(Tr. 378).
Plaintiff reported that he was “doing well” but that he still sometimes
experienced soreness and swelling. (Tr. 378). Dr. Nolan indicated that he could not work
as a chef because of his inability to stand for long periods of time. (Tr. 378).
At an appointment with the VA in August of 2014, approximately four to five months
after the close of alleged disability period, plaintiff indicated that he was working as a chef
at a casino. (Tr. 545). His ambulation status was described as “[i]ndependent with steady
gait, [n]o assistance needed.” (Tr. 546-47). Plaintiff was found to have normal gait and
muscle strength and no neurological deficits, but some neck and left foot pain. (Tr. 548).
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The VA provider recommended orthopedic or prosthetic devices to reduce swelling and
support plaintiff’s left ankle and arches. (Tr. 536). An x-ray of plaintiff’s left foot in
September of 2014 showed no acute fracture or dislocation. (Tr. 482).
In sum, the medical evidence from October of 2012 to March of 2014 demonstrates
that plaintiff was able to perform light work with some additional restrictions as outlined
by the RFC. X-rays demonstrated that his left ankle fracture healed after the August 2010
surgeries. While he sustained an infection from the hardware in 2012, the infection
responded well to treatment and healed. During the alleged period of disability, plaintiff
was able to ambulate and found to have a steady gait. He was also found to have full
range of motion and full strength as well as stability and neurological functioning in his
left leg. Treatment providers noted that he was capable of light duty work provided he
avoided prolonged standing and climbing if possible. Further, the record shows that
plaintiff reported both working and actively looking for work during the alleged disability
period. Moreover, plaintiff engaged in other physically demanding activities during this
time. His fall from a ladder while retrieving shingles in 2013 shows that he was performing
medium to heavy work during the period at issue. Indeed, plaintiff returned to full-time
work as a chef the month after the alleged period of disability ended, an occupation which
requires greater physical exertion than light duty work. Plaintiff received little treatment
for his leg between March of 2013 and October of 2013, which indicates that the wound
was not causing him problems. Finally, plaintiff testified that he responded well to his
treatment, which included orthotics and medication.
For all of these reasons, the Court finds that the RFC was supported by substantial
evidence. See Monroe v. Comm’r of Soc. Sec., 676 Fed. Appx. 5 (2d Cir. 2017) (because
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the ALJ based her RFC determination on the treating physician’s years worth of treatment
notes, it was not necessary for the ALJ to seek additional medical information regarding
claimant’s RFC); Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d Cir. 2013)
(affirming ALJ’s RFC determination based on extensive medical record despite the fact
that the record did not include formal opinions as to claimant’s RFC).
CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings (Dkt.
No. 11) is denied and the Commissioner’s motion for judgment on the pleadings (Dkt. No.
13) is granted.
The Clerk of Court shall take all steps necessary to close this case.
SO ORDERED.
Dated:
June 10, 2019
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge
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