Tomczak v. Commissioner of Social Security

Filing 17

DECISION AND ORDER: For the reasons stated, the Commissioner's Motion for Judgment on the Pleadings (ECF No. 15 ) is GRANTED and Plaintiff's Motion for Judgment on the Pleadings (ECF No. 10 ) is DENIED. Plaintiff's Complaint (ECF No. 1 ) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/9/19. (JO)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM TOMCZAK,
Plaintiff,
v.

Case # 18-CV-64-FPG
DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
On September 16, 2013, Plaintiff William Tomczak applied for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security Act. Tr. 1
20. After his claims were initially denied, he testified at a video hearing before Administrative
Law Judge Brian LeCours (the ALJ) on April 18, 2016. Tr. 20. The ALJ issued a decision finding
Plaintiff not disabled on August 1, 2016. Tr. 20-37. On November 14, 2017, the Appeals Council
declined to amend the ALJ’s conclusion, thereby rendering it the Commissioner’s final decision.
Tr. 1-7.
Plaintiff brings this action seeking review of that decision. ECF No. 1. 2 Both parties
moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). ECF Nos. 10,
15. For the following reasons, the Commissioner’s motion is GRANTED and Plaintiff’s motion
is DENIED.
LEGAL STANDARD
“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

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“Tr.” refers to the administrative record in this matter. ECF No. 7.

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The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c).

correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing 42 U.S.C. §
405(g)) (other citation omitted). The Act holds that the Commissioner’s decision 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) (citations
omitted). It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”
Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).
DISCUSSION
Plaintiff’s sole argument is that the ALJ improperly assigned the opinion of Jeffrey D.
Kashin, M.D., little weight based on Plaintiff’s substance abuse. ECF No. 10-1 at 15-19.
Plaintiff’s argument fails for three reasons. First, an ALJ may consider recorded drugseeking behavior in evaluating the reliability of a claimant’s subjective complaints.

E.g.,

Pidkaminy v. Astrue, 919 F. Supp. 2d 237, 250 (N.D.N.Y. 2013).
The record supports the ALJ’s finding that Plaintiff’s subjective complaints were unreliable
based on his drug-seeking behavior. Plaintiff repeatedly appeared at emergency departments
complaining of severe pain—and requesting pain medication—that was not corroborated by
clinical and diagnostic examinations. Tr. 26-27. More directly, one medical source refused to
prescribe medication to Plaintiff based on concerns over substance abuse, Tr. 30, and two medical
sources concluded that Plaintiff was “drug seeking.” Tr. 27, 29. The ALJ’s evaluation of
Plaintiff’s subjective complaints is thus supported by both the law and the record.
Second, an ALJ may assign a treating source’s opinion little weight if it is based on a
claimant’s questionable, subjective complaints. Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir.
2016). To be clear, an ALJ cannot lawfully reject a medical source’s opinion solely because it

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relies on subjective complaints. Mahon v. Colvin, No. 15-CV-398-FPG, 2016 WL 3681466, at *4
(W.D.N.Y. July 6, 2016). But he can reject the opinion if he previously found the claimant’s
subjective complaints unsound and the medical source relied on those complaints when reaching
his opinion. See Jackson v. Astrue, No. 1:05-CV-01061 (NPM), 2009 WL 3764221, at *7
(N.D.N.Y. Nov. 10, 2009).
The latter is what occurred here. The ALJ reviewed the medical source opinions in the
record and concluded that Plaintiff’s subjective complaints were unreliable based on documented
drug-seeking behavior. Tr. 31-32. After making that finding, the ALJ assigned little weight to Dr.
Kashin’s opinion because, in part, it relied on Plaintiff’s subjective complaints. Tr. 32. That
determination was proper.
Third, the ALJ properly considered another factor—the length, nature, and extent of the
treatment relationship—when he assigned Dr. Kashin’s opinion little weight. When a treating
physician’s opinion is not given controlling weight, the ALJ considers a number of factors to
determine how much weight it should receive; one of them is the length, nature, and extent of the
treatment relationship. 20 C.F.R. § 416.927(c)(1)-(6).
The ALJ assigned little weight to Dr. Kashin’s opinion because the opinion relied on
Plaintiff’s dubious subjective complaints and Dr. Kashin’s treatment of Plaintiff consisted of only
two treatment “episodes.” Tr. 32. The ALJ found that treatment relationship insufficient to
provide Dr. Kashin with a complete view of Plaintiff, and lawfully assigned little weight to Dr.
Kashin’s opinion based, in part, on that finding. Id.
CONCLUSION
For the foregoing reasons, the Commissioner’s Motion for Judgment on the Pleadings
(ECF No. 15) is GRANTED and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10)

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is DENIED. Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk
of Court will enter judgment and close this case.
IT IS SO ORDERED.
Dated: May 9, 2019
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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