Coleman v. Commissioner of Social Security
Filing
21
DECISION and ORDER DENYING 13 Plaintiff's Motion for Judgment on the Pleadings; GRANTING 19 Defendant's Motion for Judgment on the Pleadings. The Clerk of Court is directed to close the file. Signed by Hon. Leslie G. Foschio on 6/19/2019. (TAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
JEAN COLEMAN,
Plaintiff,
v.
ANDREW M. SAUL, 1 Commissioner of
Social Security,
DECISION
and
ORDER
18-CV-109F
(consent)
Defendant.
______________________________________
APPEARANCES:
LAW OFFICES OF KENNETH HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER,
AMY C. CHAMBERS, and
IDA M. COMERFORD, of Counsel
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
BENIL ABRAHAM,
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
1
Andrew M. Saul became Commissioner of the Social Security Administration on June 17, 2019, and,
pursuant to Fed.R.Civ.P. 25(d), is substituted 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).
DENNIS J. CANNING,
ANNE M. ZIEGLER, and
FRANCIS D. TANKARD,
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
601 East 12th Street
Room 965
Kansas City, Missouri 64106
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. 9). The matter is presently before
the court on motions for judgment on the pleadings filed by Plaintiff on August 13, 2018
(Dkt. 13), and by Defendant on November 13, 2018 (Dkt. 19).
BACKGROUND
Plaintiff Jean Coleman (“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 June 12, 2014, for Social Security Disability
Insurance benefits under Title II of the Act (“SSDI” or “disability benefits”). AR 2 at 65,
143-44. Plaintiff alleges she became disabled on March 11, 2014, AR at 143, 212
based on bulging discs, depression, diabetes II, epilepsy, back pain, neuropathy, left
foot drop, chronic day time sleepiness, high cholesterol, sleep apnea, trouble
concentrating, and highly disorganized. AR at 216. Plaintiff’s application initially was
denied on October 7, 2014. AR at 65-81. At Plaintiff’s timely request, on April 4, 2017,
a hearing (“the administrative hearing”), was held in Jamestown, New York, by video
2
References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
May 14, 2018 (Dkt. 6).
2
conferencing before administrative law judge Timothy Belford (“the ALJ”), located in
Lawrence, Massachusetts. AR at 28-64. Appearing and testifying at the administrative
hearing were Plaintiff, represented by non-attorney D.J. Moore, with Plaintiff’s mother,
Anna Coleman, and vocational expert (“VE”) James Sarno (“VE Sarno”) also appearing
and testifying. Id.
On June 14, 2017, the ALJ issued a decision denying Plaintiff’s claim. AR at 727 (“the ALJ’s decision”). Plaintiff requested review of the ALJ’s decision by the
Appeals Council which, on November 24, 2017, issued a decision denying Plaintiff’s
request for review, rendering the ALJ’s decision the Commissioner’s final decision. AR
at 1-6. On January 23, 2018, Plaintiff commenced the instant action seeking judicial
review of the ALJ’s decision.
On August 13, 2018, Plaintiff filed a motion for judgment on the pleadings (Dkt.
13) (“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s
Motion for Judgment on the Pleadings (Dkt. 13-1) (“Plaintiff’s Memorandum”). On
November 13, 2018, Defendant filed a motion for judgment on the pleadings (Dkt. 19)
(“Defendant’s Motion”), attaching Commissioner’s Brief in Support of the Defendant’s
Motion for Judgment on the Pleadings and in Response to Plaintiff’s Brief Pursuant to
Local Standing Order on Social Security Cases (Dkt. 19-1) (“Defendant’s
Memorandum”). On December 3, 2018, Plaintiff filed Plaintiff’s Response to the
Commissioner’s Brief in Support and in Further Support of Plaintiff’s Motion for
Judgment on the Pleadings (Dkt. 20) (“Plaintiff’s Reply”). Oral argument was deemed
unnecessary.
3
Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion is
GRANTED.
FACTS 3
Plaintiff Jean Coleman (“Plaintiff” or “Coleman”), born September 20, 1968, was
45 years old as of March 11, 2014, her alleged disability onset date (“DOD”), and 48 as
of the April 7, 2017 administrative hearing. AR at 32, 212. Plaintiff graduated from
college with a bachelor’s degree in Human Resource Management, AR at 32, 216, had
previous work experience as a human resources assistant and as a cashier, AR at 44,
216, 310, and continued to work, part-time, as a cashier through the date of
administrative hearing. 4 AR at 39, 217. As of the date of the administrative hearing,
Plaintiff lived with her elderly mother, who performed most of the household chores,
including shoveling snow, AR at 46, 57, 500, and occasionally socialized with friends,
including a new boyfriend, AR at 46, and enjoyed shopping, watching television, and
reading. AR at 229. Plaintiff had a driver’s license and would drive herself and her
mother to shop and to senior activities which Plaintiff encouraged her mother to attend.
AR at 46-47, 228. Plaintiff assisted her mother with grooming, making appointments,
and also takes care of her pet cats. AR at 226. Plaintiff received much of her regular
medical care, including physical and psychological, through Olean Medical Group
(“OMG”), and attended physical therapy at Olean Physical Therapy Professionals,
PLLC.
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 It is undisputed that although Plaintiff continues to work for a few hours a week, her earnings
consistently are below the monthly threshold for disability benefits eligibility. See AR at 12 (ALJ
commenting “[a] quarterly breakdown of [Plaintiff’s] earnings shows that income has consistently fallen
well below the threshold level for substantial gainful activity in the period after the alleged onset date.”).
4
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.
5
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 (“SGA”) 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 SGA 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.
6
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 relevant work, 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 disability insured status
requirements through June 30, 2020, AR at 12, has not engaged in SGA since March
11, 2014, her alleged disability onset date, id., suffers from the severe impairments of
degenerative disc disease, obesity, an affective disorder, and an anxiety disorder, id. at
12-13, but that other medical conditions for which Plaintiff was treated, including
diabetes mellitus, a seizure disorder, and migraine headaches caused no more than a
minimal degree of limitation in Plaintiff’s ability to work and, thus, by definition are not
severe. AR at 13. Nor does Plaintiff 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 13-15, but retains the RFC to perform sedentary work
limited to occasionally climbing, balancing, stooping, kneeling, crouching, crawling,
7
operating foot controls with her left lower extremity, and reaching overhead with her
right upper extremity, and limited to simple, routine and repetitive tasks, with only
occasional decision-making and workplace changes. AR at 15-22. The ALJ further
found Plaintiff unable to perform any past relevant work, AR at 22, yet given Plaintiff, at
age 45 as of the alleged disability onset date, was considered a younger individual, her
education and ability to communicate in English, with no transferable skills from her past
work experience and RFC, jobs exist in significant numbers in the national economy
that Plaintiff can perform including representative occupations such as document
preparer, table worker, and inspector, such that Plaintiff is not disabled as defined under
the Act. Id. at 22-23.
Plaintiff does not contest the ALJ’s findings with regard to the first three steps of
the five-step analysis, but argues the ALJ erred at step four in evaluating Plaintiff’s RFC
by improperly discounting some treating source opinions in favor of consultative source
opinions, Plaintiff’s Memorandum at 17-24, the RFC failed to account for Plaintiff’s
stress-related limitations, id. at 24-27, and failed to conduct a proper credibility analysis.
Id. at 27-30. Defendant counters that the ALJ considered the opinion evidence in
accordance with the regulations, Defendant’s Memorandum at 19-23, and properly
considered all of Plaintiff’s symptoms and alleged limitations, id. at 23-27. In reply,
Plaintiff essentially reiterates her same arguments asserted in support of Plaintiff’s
Motion.
In arguing the ALJ erred in assessing her RFC at step four, Plaintiff takes
particular issue with the ALJ’s limited consideration of Plaintiff’s mental health providers
8
Syed Shamsi, M.D. (“Dr. Shamsi”), Joyce Bilotta-Kline, T.A.A., 7 (“Bilotta-Kline”), and
Joseph H. Ramsey, MSW (“Ramsey”), while according greater consideration to the
opinion of one-time consultative examiner Michael P. Santa Maria, Ph.D. (“Dr. Santa
Maria”), and partial consideration to consultative examiners and state assigned review
physicians. Plaintiff’s Memorandum at 17-24, Plaintiff’s Reply at 1-9. Defendant argues
neither Bilotta-Kline nor Ramsey qualifies under the regulations as an “acceptable
medical source,” Defendant’s Memorandum at 20, the administrative record does not
establish a regular treating relationship with Ramsey, id. at 20-21, the opinions of
Bilotta-Kline and Ramsey are not well-supported and are inconsistent with the record as
a whole, id. at 21, and Dr. Shamsi, although a treating source under the regulations,
never identified any specific functions of Plaintiff that were impaired and also limited his
assessment that Plaintiff was unable to work to a four-month period which is insufficient
to establish disability. Id. at 22-23. In contrast, Dr. Santa Maria’s consultative opinion is
consistent with the record, including the consultative assessment of E. Kamin, Ph.D.
(“Dr. Kamin”), which supports the ALJ’s decision. Id. at 21-23.
Preliminarily, “[a]ccording to Social Security Ruling 06-3p, ‘only ‘acceptable
medical sources’ can be treating sources . . . whose medical opinions may be entitled to
controlling weight.’” Genier v. Astrue, 298 Fed.Appx. 105, at 108 (2d Cir. Nov. 5, 2008)
(quoting SSR 06-03p, 8 2006 WL 2329939, at *1-2 (Aug. 9, 2006)). As relevant here, an
“acceptable medical source” includes a licensed physician or a licensed psychologist.
For what T.A.A. is an abbreviation is not in the record, but it is undisputed that Bilotta-Kline was somehow
involved in Plaintiff’s mental health counseling.
8
“SSR” is the acronym for “Social Security Rulings” which are agency rulings “published under the
authority of the Commissioner of Social Security and are binding on all components of the Administration.
Such rulings represent precedent final opinions and orders and statements of policy and interpretations
that [the SSA] ha[s] adopted.” 20 C.F.R. § 402.35(b)(1).
7
9
20 C.F.R. § 404.1502(a)(1) and (2); SSR 06-3p, 2006 WL 2329939, at *1-2.
Accordingly, because neither Bilotta-Kline nor Ramsey is a licensed physician or
licensed psychologist, neither qualifies as an acceptable medical source under the
regulations, and their opinions “do not demand the same deference of those of a
treating physician.” Genier, 298 Fed.Appx. at 108 (citing Mongeur v. Heckler, 722 F.2d
1033, 1039 n. 2 (2d Cir. 1983)). Rather, Bilotta-Kline and Ramsey are considered
“other medical sources,” whose information “cannot establish the existence of a
medically determinable impairment” but which “may provide insight into the severity of
the impairment(s) and how it affects the individual’s ability to function.” SSR 06-3p,
2006 WL 2329939, at *2.
With regard to Billota-Kline, the administrative record contains a progress note
dated December 14, 2016, concerning an Individual Recovery Plan Bilotta-Kline
established December 9, 2015 for Plaintiff to complete by January 31, 2016, AR at 766773, and a Work Activity Questionnaire for Treatment Providers (“Work Activity
Questionnaire”) dated February 17, 2017. AR at 710-12. Although the Individual
Recovery Plan was “continued” on December 14, 2016, it provides little, if any,
assessment of Plaintiff’s ability to work and does not reflect any changes that were
made to the plan. AR at 766-73. On the Work Activity Questionnaire Bilotta-Kline
indicated that Plaintiff could then perform work activity limited to 5 hours a week by her
questionable insight and judgment, indecisiveness, and distractibility, needed restricted
access to merchandise because of her hoarding and impulse shopping, but that
Plaintiff’s mental restrictions would be removed if Plaintiff developed better coping skills,
10
AR at 710-11, but does not specify the source of such assessments. Bilotta-Kline’s
opinion thus was not entitled to more than the little weight the ALJ gave it.
Ramsey is a social worker with Cattaraugus County Department of Community
Services who, on March 27, 2015, completed a Mental Residual Functional Capacity
Assessment of Plaintiff (“Mental RFC Assessment”), on which Plaintiff is diagnosed with
bipolar II, borderline personality features, seizure disorder, herpes, hypercholesteremia
(high cholesterol), diabetes type II, moderate family and social problems, and a Global
Assessment of Functioning (“GAF”) Scale 9 of 62 to 65. AR at 694-97. Of the 21
individual categories of work activities Ramsey assessed, Plaintiff was noted as
markedly limited in only two, both related to sustaining concentration and persistence,
and moderately limited in only four, including understanding and remembering detailed
instructions, maintaining a schedule, attendance, punctuality in the workplace,
completing a normal workday and workweek, and tolerating normal stress levels, and
being either mildly or not at all limited in the remaining 16 categories, and Ramsey
opined Plaintiff would miss three to five days of work each month, but should continue
working part-time, and could manage her funds. AR at 695-97. Not only is Ramsey’s
assessment of Plaintiff’s inability to work full-time inconsistent with the assessment that
in 16 of the work-related categories he found Plaintiff either mildly or not at all impaired,
9
The GAF Scale was “promulgated by the American Psychiatric Association to assist ‘in tracking the
clinical progress of individuals [with psychiatric problems] in global terms.’” Kohler v. Astrue, 546 F.3d
260, 262 n. 1 (2d Cir. 2008) (alterations in original) (quoting Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders (“DSM”), 32 (4th ed. 2000). Although GAF scores are intended only
to make treatment decisions, rather than disability determinations, and are considered relevant to the
ALJ’s RFC determination, Gonzalez v. Colvin, 2016 WL 4009532, at *5 (W.D.N.Y July 27, 2016), the GAF
scale is “no longer in use,” Kaczowski v. Colvin, 2016 WL 5922768, at * 12 n.5 (S.D.N.Y. Oct. 11, 2016)
(citing DSM (5th ed. 2013), yet “the Commissioner may still consider GAF scores as one factor among
others.” Pena Lebron v. Comm’r of Soc. Sec., 2019 WL 1429558, at * 3 n. 3 (S.D.N.Y. Mar. 29, 2019)
(citation and quotation marks omitted).
11
but the GAF scores of 62 to 65 are consistent with only mild to moderate deficits, and
the record is devoid of any treatment notes from Ramsey rendering it impossible to
ascertain the treating relationship between Plaintiff and Ramsey. Accordingly, the ALJ
did not err in giving little weight to Ramsey’s opinion.
Dr. Shamsi treated Plaintiff for a psychiatric hospitalization from February 11,
2016 till February 18, 2016, indicated Plaintiff was unable to work because of her
illness, but his opinion is unsupported by any specific functional findings. AR at 742-44.
Moreover, Dr. Shamsi specifically limited Plaintiff’s work restriction to a four-month
period from February 8, 2016 to June 1, 2016, AR at 742, which does not establish an
inability to perform substantial gainful activity for the threshold 12 months set forth under
the regulations. See 20 C.F.R. § 404.1505(a) (“The law defines disability as the inability
to do any substantial gainful activity by 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.”). Despite being
from an acceptable medical source, Dr. Shamsi’s opinion does not establish disability.
Further, Dr. Santa Maria, a neuropsychologist, is an acceptable medical source
as defined under 20 C.F.R. § 404.1502(a)(2), who despite not having a treating
relationship with Plaintiff, performed a detailed neuropsychological examination the
results of which were “relatively unremarkable.” AR at 346-49. In particular, Plaintiff
demonstrated normal range general intellectual abilities, normal to high normal on most
memory measures, and on attention and processing speed, although Plaintiff did
demonstrate a slowed basic reaction time, relative weakness on basic visual attention,
and “a couple of scattered weaknesses on memory assessment,” albeit “in the context
12
of generally normal to high normal memory functioning.” AR at 351. Dr. Santa Maria
interpreted that “[t]his subtle pattern potentially reflects minor mood-related variability in
attention,” id., and opined that the examination showed no evidence of any cognitive or
psychological condition interfering with Plaintiff’s ability to handle “her current work
duties on a part time or full time basis,” although Plaintiff’s “mood symptoms and to a
lesser extent some personality traits . . . may adversely impact [Plaintiff] reliably
maintaining adequate performance in other more demanding work roles.” Id.
Significantly, the data collected by Dr. Santa Maria in connection with the
neuropsychological examination of Plaintiff is largely consistent with Ramsey’s findings
on the Mental RFC Assessment. Relevantly, the opinion of a consultative examiner
assessed after examining a claimant can be considered substantial evidence on which
the ALJ may rely in assessing a claimant’s RFC. See Sloan v. Colvin, 244 F.Supp.3d
315, 324-26 (W.D.N.Y. 2014) (noting “consultative physician’s opinion may serve as
substantial evidence” and finding no error in ALJ’s reliance on consultative examining
physician’s opinion in assessing the claimant’s RFC). Accordingly, the ALJ did not err
in giving Dr. Santa Maria’s opinion greater weight than the opinions of Dr. Shamsi,
Bilotta-Kline and Ramsey.
Similarly, Dr. Kamin, the state agency psychology consultant, found Plaintiff with
severe affective disorders, but further found such disorders posed only mild restrictions
to Plaintiff’s activities of daily living, and moderate difficulties to social functioning, and
maintaining concentration, persistence or pace. AR at 70. Accordingly, the ALJ’s
reliance on Dr. Kamin’s assessment was not error. To summarize, the ALJ’s
consideration of the medical opinions in the record was not in error.
13
Insofar as Plaintiff argues the RFC fails to account for Plaintiff’s stress-related
limitations, including Plaintiff’s inability to handle and manage the stress of even an
unskilled job, AR at 24-27, the record is devoid of evidence establishing Plaintiff had
any stress-related limitations. Even in his Mental RFC Assessment of Plaintiff, Ramsey
reports only moderate limitation in Plaintiff’s ability to tolerate normal stress levels, and
attributes Plaintiff’s inability to work more than part time to frustration and pain caused
by Plaintiff’s diabetic neuropathy. AR at 694-96. Further, although Ramsey assessed
Plaintiff with an inability to carry out instructions beyond one or two steps, in assessing
Plaintiff’s RFC, the ALJ restricted Plaintiff to simple, routine and repetitive tasks, with
only occasional decision-making and occasional workplace changes, AR at 15, thus
accounting for the impact of Plaintiff’s stress on her inability to follow detailed
instructions, and the ALJ therefore sufficiently accounted for Plaintiff’s stress-related
limitations.
Nor did the ALJ err in assessing Plaintiff’s credibility as Plaintiff argues. Plaintiff’s
Memorandum at 27-30. The ALJ is not required to accept without question the
claimant’s subjective complaints but, rather, “may exercise discretion in weighing the
credibility of the claimant’s testimony in light of the other evidence in the record.”
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The assessment of a disability
claimant’s credibility is for the ALJ and will be upheld where supported by other
evidence in the record. Campbell v. Astrue, 465 Fed.Appx. 4, 6 (2d Cir. Jan. 6, 2012).
Here, the ALJ’s assessment that Plaintiff’s reported symptoms were not entirely
consistent with the evidence is supported by the record. In particular, although both
Bilotta-Kline and Ramsey opined Plaintiff is capable of working only 5 hours a week,
14
with Ramsey further indicating Plaintiff would be expected to be absent three to five
days during the month, nothing in the record even remotely suggests Plaintiff missed
working on the days she was assigned to work the limited hours. Nor does Plaintiff
explain why, despite her claims of constant fatigue, she is able to get to work when
scheduled, and the record is devoid of any reports that Plaintiff ever left work because
of fatigue. Significantly, “[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). Accordingly, the ALJ’s
finding that Plaintiff’s self-reported symptoms are not entirely consistent with the
objective medical findings is supported by substantial evidence in the record.
The ALJ’s assessment of Plaintiff’s RFC at step four thus is supported by
substantial evidence in the record.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 13) is DENIED; Defendant’s
Motion (Dkt. 19) 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:
June 19th, 2019
Buffalo, New York
15
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