Riley v. Astrue
Filing
16
ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Defendant's Motion for Judgment on the Pleadings; and dismissing Plaintiff's complaint with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 11/6/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________________
RONALD O. RILEY,
Plaintiff,
11-CV-6512T
DECISION
and ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
___________________________________________________
INTRODUCTION
Plaintiff Ronald O. Riley (“Plaintiff”) brings this action
pursuant to the Social Security Act § 216(I) and § 223, seeking
review of a final decision of the Commissioner of Social Security
(“Commissioner”), denying his application for Disability Insurance
Benefits. Specifically, Plaintiff alleges that the decision of the
Administrative Law Judge (“ALJ”) MaryJoan McNamara denying his
application for benefits was not supported by substantial evidence
contained in the record and was contrary to applicable legal
standards.
Plaintiff moves for judgment on the pleadings pursuant to Fed.
R. Civ. P. 12(c)(“Rule 12(c)”) and 42 U.S.C. 405(g) seeking to
reverse the Commissioner’s decision or, in the alternative, remand
to the Commissioner for reconsideration of the evidence.
The
Commissioner cross-moves for judgment on the pleadings pursuant to
42 U.S.C. 405(g) on grounds that the decision of the ALJ was
supported
by
substantial
evidence
in
the
record
accordance with the applicable legal standards.
and
was
in
This Court finds
that the decision of the Commissioner was supported by substantial
evidence in the record and was in accordance with the applicable
legal standards.
Therefore, for the reasons set forth below, the
Commissioner’s motion for judgment on the pleadings is hereby
granted.
BACKGROUND
Plaintiff, an industrial laborer, age 46, filed an application
on
August
24,
2009,
for
disability
and
Disability
Insurance
Benefits under title II, § 216(I) and § 223 of the Social Security
Act (“the Act”) claiming a disability since September 24, 2007, due
to diabetes mellitus, a stomach ulcer, hypertension, ketoacidosis,
an
injury
to
his
right
thumb,
an
injury
to
his
right
leg,
depression, and anxiety.1 Plaintiff’s application was initially
denied by the Social Security Administration (“the administration”)
on October 19, 2009.
Plaintiff then filed a timely request for a
hearing on December 21, 2009.
Plaintiff appeared for a hearing, with counsel, before ALJ
MaryJoan McNamara on February 10, 2011.
Estelle L. Davis, a
vocational expert, also testified at the hearing.
In a decision
dated April 21, 2011, the ALJ determined that Plaintiff was not
disabled within the meaning of the Social Security Act.
The ALJ’s
decision became the final decision of the Commissioner when the
1
Plaintiff later claimed foot pain, leg swelling and edema,
chronic neck and shoulder pain, and gastroesophageal reflux
disease.
Page -2-
Social Security Appeals Council denied Plaintiff’s request for
review on August 26, 2011. On October 14, 2011, Plaintiff filed
this action.
DISCUSSION
I.
Jurisdiction and Scope of Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
This
section directs that when considering such a claim, the Court must
accept the findings of fact made by the Commissioner, provided that
such findings are supported by substantial evidence in the record.
Substantial evidence is defined as, “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938). Section
405(g) thus limits the Court’s scope of review to determining
whether the Commissioner’s findings were supported by substantial
evidence, and whether the Commissioner employed the proper legal
standards in evaluating the plaintiff’s claim. See, Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (finding that a
reviewing Court does not try a benefits case de novo).
The Commissioner asserts that his decision was reasonable and
is supported by substantial evidence in the record and is in
accordance with the applicable legal standards.
Accordingly,
Commissioner moves for judgment on the pleadings pursuant to
Rule 12(c).
Under Rule 12(c), judgment on the pleadings may be
Page -3-
granted where the material facts are undisputed and where judgment
on the merits is possible merely by considering the contents of the
pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d
Cir. 1988).
If, after a review of the record, the Court is
convinced that Plaintiff has not set forth a plausible claim for
relief, judgment on the pleadings may be appropriate.
Atl. Corp.
v. Twombly, 550 U.S. 544 (2007).
See Bell
After reviewing the
entire record, this Court finds that the Commissioner’s decision is
supported
by
substantial
evidence
in
the
record,
accordance with the applicable legal standards.
and
is
in
Therefore, the
Commissioner’s motion for judgment on the pleadings is granted, and
the Plaintiff’s motion is denied.
II.
The Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record.
In her decision, the ALJ adhered to the five step sequential
analysis for evaluating Social Security Disability benefits claims,
which requires the ALJ to consider:
(1) whether the claimant is engaged in any substantial
gainful work activity;
(2)if not, whether the claimant has a severe impairment
that significantly limits her ability to work;
(3)whether the claimant’s impairment(s) meets or
medically equals a listed impairment contained in
Appendix 1, Subpart P, Regulation No. 4; if so, claimant
is considered disabled;
(4)if not, the ALJ determines whether the impairment
prevents the claimant from performing past relevant work;
if the claimant has the residual functional capacity
(“RFC”)to do her past work, she is not disabled;
Page -4-
(5)even if the claimant’s impairment(s) prevent her from
doing past relevant work, if other work exists in
significant numbers in the national economy that
accommodates her residual functional capacity and
vocational factors, she is not disabled.
See 20 C.F.R. §§404.1520 (a) (i)-(iv) and 416.920(a)(4)(i)(iv).
At Step One of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since his
alleged
disability
onset
date.
(Transcript
of
Administrative
Proceedings at page 74) (hereinafter “Tr.”).
At Step Two, the ALJ found that Plaintiff had the following
severe impairments: diabetes mellitus and chronic neck and shoulder
pain. (Tr. at 74). The Plaintiff also had the following non-severe
impairments: hypertension, gastroesophageal reflux disease, lower
extremity
edema,
depressive
disorder,
and
drug
and
alcohol
dependence. (Tr. at 75).
At Step Three, the ALJ concluded that although severe, the
Plaintiff’s impairments due to diabetes mellitus and chronic neck
and shoulder pain did not meet or equal, alone or in combination,
the criteria listed in Appendix 1, Subpart P of Regulations No. 4.
(Tr. at 77).
At Step Four, the ALJ found that Plaintiff’s past work as a
forklift operator, packer, punch press operator, farm laborer, and
carpenter supervisor all exceeded the exertional requirements of
his residual capacity, and therefore, Plaintiff could not perform
his past relevant work. (Tr. at 86).
Page -5-
At Step Five, the ALJ found that, considering Plaintiff’s age,
education, work experience, and residual functional capacity, a
significant number of jobs existed in the national economy that
Plaintiff could perform, such as cashier and mail clerk. (Tr. at
87).
The ALJ concluded that Plaintiff, despite his impairments,
retained the residual functional capacity to perform a significant
range of light work, as long as Plaintiff retained a sit/stand
option.
Specifically, the ALJ found that Plaintiff would need to
keep
low
a
stool
nearby
for
less
than
1/3
of
the
day.
Additionally, Plaintiff had no limitations in his dominant arm, but
could only occasionally reach in all directions with his nondominant arm.
Plaintiff could frequently climb ramps or stairs,
but could never climb ladders, ropes or scaffolds. Plaintiff could
frequently bend, stoop, kneel, crouch, or crawl.
Plaintiff had no
visual or communicative limitations. He could understand and carry
out simple instructions, and he was capable of sustaining attention
and
concentration
interacting
with
as
necessary.
others.
And,
Plaintiff
he
was
was
able
appropriately in the workplace. (Tr. at 77,78).
capable
to
of
interact
Accordingly, the
ALJ found that the Plaintiff was not disabled within the meaning of
the Social Security Act.
(Tr. at 87).
Based on a review of the entire record, I find that the ALJ
properly concluded that Plaintiff was not disabled within the
meaning of the Social Security Act.
Page -6-
A.
The ALJ’s Residual Functional Capacity finding
supported by substantial evidence in the record.
is
Plaintiff claims that the ALJ’s Residual Functional Capacity
(“RFC”) finding is not supported by substantial evidence. After
considering the medical evidence in the record and Plaintiff’s
testimony, the ALJ found that Plaintiff retained the RFC for light
work as defined by 20 C.F.R. 404.1567(b) and 20 C.F.R. 416.967(b),
except that “the claimant would need a sit/stand option.” (Tr. at
77). In arriving at this conclusion, the ALJ reviewed Plaintiff’s
testimony and many treatment records from Veterans Affairs. The ALJ
then relied on consultative physical evaluations from Dr. Karl
Eurenius
and
Dr.
Harbinder
Toor;
consultative
psychiatric
evaluations from Dr. Lisa Blackwell, Dr. Kavitha Finnity, and Dr.
Christine Ransom; and a medical source statement from treating
physician Dr. Rebecca Drayer.
All of the aforementioned addressed
the Plaintiff’s symptoms and functional limitations.
Dr. Eurenius, who examined Plaintiff, opined in October 2009
that Plaintiff was “not significantly limited in any routine
activities due to his medical problems.” (Tr. at 399).
The ALJ
afforded great weight to his opinion.
Dr. Toor, to whom the ALJ also afforded great weight, opined
in April 2011 that Plaintiff had “mild to moderate” limitations in
standing, walking and sitting for a long time. (Tr. at 522).
Dr.
Toor also found that Plaintiff had “moderate” limitations in
Page -7-
reaching with the left shoulder, twisting, bending, and extending
the cervical spine. (Tr. at 522).
Dr. Blackwell, to whom the ALJ afforded some weight, opined-based upon her review of the record in October 2009--that Plaintiff
had only a mild limitation in activities of daily living and
maintaining social functioning. (Tr. at 414).
found
that
Plaintiff
would
have
moderate
But, Dr. Blackwell
difficulties
in
maintaining concentration, persistence, or pace. (Tr. at 414).
No
episodes of decompensation were noted, and Dr. Blackwell concluded
that Plaintiff could perform simple tasks. (Tr. at 414, 420).
Dr. Finnity, whom the ALJ afforded some weight, opined in
October 2009 that Plaintiff was able to follow, understand, and
perform simple tasks. (Tr. at 402).
concluded
that
Plaintiff
had
Additionally, Dr. Finnity
difficulty
with
attention,
concentration, maintaining a regular schedule, relating to others,
and dealing with stress.
(Tr. at 402).
But, Dr. Finnity opined
that Plaintiff was able to learn new tasks, perform complex tasks,
and make decisions. (Tr. at 402).
Dr. Ransom, whom the ALJ afforded great weight, opined in
April 2011 that Plaintiff could follow, understand, and perform
simple tasks independently, maintain attention and concentration,
maintain a regular schedule, and learn simple new tasks. (Tr. at
533). Additionally, Dr. Ransom concluded that Plaintiff would have
Page -8-
only mild difficulty performing complex tasks, relating adequately
with others, and dealing appropriately with stress. (Tr. at 533).
Dr. Drayer, Plaintiff’s treating physician, to whom the ALJ
afforded less than controlling weight to her opinions, diagnosed
Plaintiff
in
arthralgia(joint
November
pain);
2010
and
with
diabetes
concluded
that
prognosis was fair. (Tr. at 422).
and
the
shoulder
Plaintiff’s
Dr. Drayer’s records indicated
that, based upon the examinations of the Plaintiff, she concluded
that he could walk one or two blocks, sit for more than two hours
at one time, and stand for 45 minutes at a time. (Tr. at 422).
Dr. Drayer also found that Plaintiff could sit for at least six
hours in an eight hour working day and could stand/walk for about
2 hours in an eight hour working day.
(Tr. at 422).
Dr. Drayer
qualified her opinion and provided that Plaintiff would need a job
that permits shifting positions at will from sitting, standing, or
walking. (Tr. at 422).
Dr. Drayer concluded that Plaintiff’s legs
should be elevated with prolonged periods of sitting; specifically,
Plaintiff would need to keep his leg(s) elevated 10 to 20 degrees
for up to 60% of the day. (Tr. at 423).
Dr. Drayer opined that Plaintiff could frequently lift less
than 10 pounds, occasionally lift 10 pounds, and rarely lift 20
pounds, and could occasionally reach with his arms, including
reaching
overhead.
Dr
Drayer
concluded
that
Plaintiff
could
frequently twist, stoop(bend), crouch/squat, look down (sustained
Page -9-
flexion of neck), turn his head to the right or left, look up, or
hold his head in a static position but that he could rarely climb
ladders and occasionally climb stairs. (Tr. at 423, 424).
Dr. Drayer also found that Plaintiff was mentally capable of
low stress jobs and that he had no serious limitations regarding
mental abilities and aptitudes which were required to perform
unskilled work. (Tr. at 422, 424-25).
The record reveals that an
MRI performed upon the Plaintiff showed a large extruded disk at
C5-6 causing narrowing of the left neural foramen with deformity of
the thecal sac.
The same report noted that there was no evidence
of cord compression.
(Tr. at 83).
In a later episode, Dr. Drayer observed that the claimant had
signs of mild muscle spasms but with no sign of acute distress.
The ALJ noted that Dr. Drayer felt that the claimant and his wife
“were seeking short-term disability and suggested the possibility
of
some
secondary
gain
in
the
claimant’s
persistent shoulder and neck pain.”
reporting
of
the
(Tr. at 83).
The ALJ emphasized that, in addition to taking strong pain
medications such as Furosemide, Hydrocodone, along with Insulin,
Lidocaine, Omeprazole, Ranitidine, and Vardenafil, the Plaintiff
also admitted to smoking a pack of cigarettes a day and “he also
uses marijuana regularly.”
(Tr. at 83).
Dr. Christine Ransom, PhD., in a post-hearing psychiatric
examination
on
April
1,
2011,
stated
Page -10-
that,
not
withstanding
Plaintiff’s complaint of fluctuating appetite, fatigue, difficulty
concentrating, and social withdrawal, he was still capable of
performing self-care tasks and relied upon his wife to handle most
of the household tasks.
(Tr. at 84).
Again, the Plaintiff
admitted to using marijuana several times per week.
In response to Dr. Drayer’s conclusion that the Plaintiff’s
legs
should
specifically
be
elevated
that
the
with
prolonged
Plaintiff would
period
need to
of
sitting
keep
-
his legs
elevated 10 to 20 degrees for up to 60% of the day, the ALJ felt
that Dr. Drayer’s treatment notes suggested that the claimant’s
symptoms and impairments were mild at best.
month
later,
Dr.
Drayer
stated
she
(Tr. at 85).
believed
Also, a
Plaintiff
was
exaggerating his symptoms to receive benefits. (Tr. at 432). This
inconsistency with the record is a valid basis to afford a treating
source’s opinion less than controlling weight.
See 416.927,
SSR 96-2p.
Plaintiff’s
admission
to
various
treating
and
examining
medical sources that he regularly used marijuana, led to the ALJ’s
conclusion that, even though it is likely the claimant might miss
work because of his physical and possibly mental difficulties, it
appeared to the ALJ that “. . . it would be as likely to be because
of the claimant’s dependence on marijuana as it would be because of
any physical impairment.”
Page -11-
Thus, reviewing the record as a whole, this Court finds that
the ALJ’s RFC was supported by substantial evidence in the record.
B. The ALJ gave proper weight to the medical opinions in the
record.
Plaintiff argues that the ALJ did not assign appropriate
weight
to
the
opinion
of
Plaintiff’s
treating
physician,
Dr. Drayer.
In the RFC determination, the ALJ gave Dr. Drayer’s opinion
“some weight.” (Tr. at 85). Ultimately, Plaintiff argues that the
ALJ’s RFC, insofar as it is contrary to Dr. Drayer’s opinion that
Plaintiff would need a stool to elevate his legs for up to 60% of
the day is inconsistent with the treating physician rule, and
therefore is legal error. (Tr. at 423). The Court is not persuaded
by this argument.
The treating physician rule provides that
“a treating physician’s opinion on
the subject of medical disability,
i.e. diagnosis and nature and degree
of impairment, is (i) binding on the
fact-finder unless contradicted by
substantial
evidence,
and
(ii)
entitled to some extra weight . . .
although
resolution
of
genuine
conflicts between the opinion of the
treating physician, with its extra
weight, and any substantial evidence
to
the
contrary,
remains
the
responsibility of the fact-finder.”
Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir. 1986). The rule,
generally, gives deference to the physician who has provided the
Page -12-
primary treatment for the patient. 20 C.F.R. § 404.1527(d)(2);
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
When determining whether a treating physician’s opinion should
be given controlling weight, the ALJ must evaluate: “(i) the
frequency of examination and the length, nature, and extent of the
treatment
relationship;
(ii)
the
evidence
in
support
of
the
opinion; (iii) the opinion's consistency with the record as a
whole; (iv) whether the opinion is from a specialist; and (v) other
relevant factors.” Schaal v. Apfel, 134 F.3d 496, 503 (citing
20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2)).
Therefore, the opinion of a treating physician may be given
less than controlling weight when it is not consistent with other
substantial evidence in the medical record. Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002).
Plaintiff also argues that the ALJ improperly gave great
weight to the consultative opinions of Dr. Toor and Dr. Ransom.
“It is an accepted principle that the opinion of a treating
physician is not binding if it is contradicted by substantial
evidence, and the report of a consultative physician may constitute
such evidence."
Monguer
v.
Heckler,
722
F.2d
1033,
1039 (2d
Cir.1983) (citations omitted); Provost-Harvey v. Comm'r of Soc.
Sec., 2008 WL 697366, at *6 (N.D.N.Y. Mar. 13, 2008) (McAvoy, S.J.)
("The
evaluations
of
non-examining
State
agency
medical
and
psychological consultants may constitute substantial evidence.")
Page -13-
(citations omitted). "It is the function of the ALJ to weigh
conflicting evidence and resolve any discrepancies.”
Martin v.
Commissioner of Social Sec., 2008 WL 4793717, at *10 n. 9 (N.D.N.Y.
Oct. 30, 2008) (Sharpe, J. and Peebles, M.J.) (citation omitted).
With respect to Dr. Drayer’s opinion that Plaintiff had a
limitation of needing a stool for elevating his legs for 60% of the
working day, the Court finds that this opinion is lacking for
substantial evidence in the record.
In fact, this opinion is
contrary to not only the entire medical record, but also to Dr.
Drayer’s own treatment notes that the Plaintiff’s impairments were
mild at best. (Tr. at 85).
This Court also finds that the
respective opinions of Dr. Toor and Dr. Ransom are supported by
substantial evidence in the medical record.
Insofar as the medical evidence in the record was inconsistent
with Dr. Drayer’s opinion, the ALJ was entitled to give that
opinion less than controlling weight.
Additionally, the ALJ did
not err in giving great weight to the opinions of the consultative
physicians, Dr. Toor and Dr. Ransom.
C.
The ALJ properly evaluated Plaintiff’s credibility.
Plaintiff argues that the ALJ erred in her evaluation of
Plaintiff’s credibility.
Specifically, Plaintiff argues that the
ALJ erred in finding a claimant’s statements not fully credible
because those statements are inconsistent with the ALJ’s own RFC
finding. (Plaintiff’s Brief, at 19).
Page -14-
The Social Security regulations provide that “in determining
the credibility of the individual statements, the adjudicator must
consider the entire record.”
SSR 96-7p.
The ALJ found that
plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [his] symptoms [were] not credible to the
extent that they [were] inconsistent with the above residual
functional
capacity
assessment.”
(Tr.
at
78).
Also,
the
credibility of witnesses is primarily determined by the ALJ and not
the courts. See Carroll v. Secretary of Health and Human Services,
705 F.2d 638, 642 (2d Cir. 1982).
Thus, contrary to Plaintiff’s
allegations, the ALJ’s statement that Plaintiff’s symptoms were not
credible to the extent that they were inconsistent with the RFC
finding is not erroneous.
The RFC was based on all the evidence in
the record, including Plaintiff’s subjective complaints and the
opinions of the examining and consulting physicians which the ALJ
considered.
The record reveals that the ALJ’s decision was properly based
upon the objective medical evidence and the factors set forth in 20
CFR § 404.1529(c), including the history of his treatment, the
medications taken and their effectiveness, inconsistent statements
made by the Plaintiff to the treating and examining sources, and
his capability to perform daily activities.
(Tr. at 78, 86).
The
ALJ took note of Plaintiff’s failure to be compliant with treatment
particularly with regard to his diabetes, and his continued smoking
Page -15-
of cigarettes and marijuana despite being told by his physician to
stop.
Dr.
(Tr.
Drayer,
at 78,
the
86).
The
Plaintiff’s
ALJ
also
treating
properly
that
stated
physician,
noted
that
Plaintiff might be exaggerating symptoms to receive disability
benefits.
(Tr. at 85, 434).
Plaintiff also admitted that leg
swelling was no longer an issue and that he was able to take care
of his self-care needs.
(Tr. at 34, 83, 85).
The ALJ also
considered that the Plaintiff admitted in January 2010 that he was
feeling much better despite pain in his left shoulder.
(Tr. at 83,
494).
The Court is compelled to uphold the Commissioner’s decision
in discounting claimant’s complaint of pain if the finding is
supported by substantial evidence, as it is here in this case.
See
Aponte v. Secretary of Department of Health and Human Services, 728
F.2d 588, 591 (2d Cir. 1984).
Based on the above, the Court finds
that the totality of the evidence in the record supports the ALJ’s
assessment of Plaintiff’s credibility and his RFC finding.
D.
The ALJ posed a complete hypothetical to the vocational expert
in determining the Plaintiff’s RFC.
Plaintiff argues that the ALJ provided the vocational expert
with an incomplete hypothetical that omitted some of Plaintiff’s
limitations which yielded job results that were inconsistent with
his actual residual functional capacity.
In
questioning
a
vocational
expert,
a
hypothetical
must
precisely and comprehensively set out every physical and mental
Page -16-
impairment of the Plaintiff that the ALJ accepts as true and
significant.
Varley v. Sec’y of Health & Human Services, 820 F.2d
777, 779 (6th Cir. 1987).
Additionally, “an ALJ may rely on a
vocational expert's testimony regarding a hypothetical as long as
the facts of the hypothetical are based on substantial evidence.”
See Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir.1983).
Here, the vocational expert suggested, in her answers to the
second
hypothetical,
that
an
individual
who
had
the
same
limitations as Plaintiff, but who would need to elevate his legs
for 60% of the day would be unemployable. (Tr. at 60).
hypothetical
was
properly
excluded
from
the
ALJ’s
This
vocational
decision-making process because the ALJ found that the restrictions
it was based upon--elevating Plaintiff’s legs for a substantial
part of the day--were not supported by substantial evidence in the
record.
See Priel v. Astrue No. 10-566-cv, 453 Fed.Appx.84, 87(2d
Cir. 2011)(where the Court decided that the ALJ properly declined
to include in his hypothetical question symptoms and limitations
suggested by the treating physician that both conflicted with other
substantial evidence in the record and were discounted in the RFC
assessment).
In hypothetical three, the ALJ asked the vocational expert if
a hypothetical individual of the claimant’s age, education, and
work experience who can lift and carry at the light exertion level;
has no limitations in his dominant arm; can occasionally reach in
Page -17-
all directions with the non-dominant arm; should not climb ladders,
ropes, and scaffolds; can frequently climb ramps and stairs; can
frequently bend, stoop, kneel, crouch, and crawl; has no visual nor
communicative limitations; is capable of understanding and carrying
out simple instructions; is capable of sustaining attention and
concentration as necessary; is capable of interacting with others;
is capable of maintaining an appropriate schedule; and is capable
of interacting appropriately at the workplace could find work
within the national economy, as long as that person had a sit/stand
option and as long as that person could keep a low stool nearby for
part of the day. (T. at 60).
The vocational expert indicated that
even with those limitations, a person could still perform work in
the national economy as a mail clerk or cashier.
(Tr. at 61-62).
This Court finds that the ALJ was correct in not relying on
the
second
hypothetical
posed
to
the
vocational
expert.
Specifically, I find that the third hypothetical posed to the
vocational expert included all of Plaintiff’s physical and mental
impairments which were supported by substantial evidence in the
record.
(Tr. at 60).
Accordingly, the Court finds that the ALJ
properly relied on the opinion of the vocational expert in response
to the hypothetical presented to her. See Dumas, 712 F.2d at 1554.
E.
The Appeals Council did not err by failing to remand the case.
The Appeals Council did not err by failing to remand the case
in light of receiving “new and material” evidence post-hearing of
Page -18-
a
neurological
consultation
and
opinion
letter
submitted
by
neurosurgeon, Dr. Jennifer Jennings dated April 29, 2011.
“If new and material evidence is submitted to the Appeals
Council, the Council will consider it ‘only if it relates to the
period on or before the date of the administrative law judge
hearing decision.’” Soto v. Astrue, 09 CIV. 9862 HB, 2011 WL
1097392, *3 (S.D.N.Y. Mar. 23, 2011); 20 C.F.R. § 416.1470(b). See
also Richardson v. Apfel, 44 F. Supp. 2d 556, 562 (S.D.N.Y. 1999).
To obtain a review of a submission of additional evidence, the
claimant must establish that “the proffered evidence is (1) new and
not merely cumulative of what is already in the record, and that it
is (2) material, that is, both relevant to the claimant's condition
during
the
probative.”
time
period
Sergenton
for
v.
which
Barnhart,
benefits
470
were
F.Supp.2d
denied
and
194,
204
(E.D.N.Y.2007) (citing Lisa v. Sec'y of Health & Human Servs., 940
F.2d 40, 43 (2d Cir.1991)).
In addition, there “must be a ‘reasonable possibility that the
new evidence would have changed the outcome of” the ALJ's decision
“had it been before him.” Gamer v. Secretary of Health and Human
Services, 815 F.2d 1275, 1280 (9th Cir. 1987).
Here, the Appeals Council correctly found that even with the
new evidence, the ALJ's decision still was not contrary to the
weight of the substantive evidence in the record (Tr. at 2).
Page -19-
Dr. Jennings stated, in her letter dated April 29, 2011, that
Plaintiff was under her care for herniated spinal discs with
radiculopathy.
She opined that Plaintiff “should not be lifting
anything greater than five pounds, operate machinery requiring
concentration or work that prohibits him from standing as needed.”
(Tr. at 272).
The letter report by Dr. Jennings did not contain new evidence
concerning Plaintiff's limitations or disability. The record, even
without this new material, makes clear that Plaintiff had neck and
shoulder pains stemming from an extruded disc at C5-6 which he
claimed limited him from working.
The ALJ took note of these
limitations
as
and
Plaintiff’s RFC.
considered
them
severe
in
determining
(Tr. at 74, 77, 79, 82-83,85-86).
Furthermore, the limitations espoused by Dr. Jennings directly
comply with and are consistent with Plaintiff’s residual functional
capacity
found
by
the
ALJ.
Specifically,
there
are
no
new
limitations given by Dr. Jennings that are not already covered by
Plaintiff's residual functional capacity. See,(Tr. at 77) (“The
claimant would need a sit/stand option.”); (Tr. at 77-78)(The
claimant “is capable of sustaining attention and concentration as
necessary.”)(emphasis added); (Tr. at 86)(“The claimant is not
capable of
returning
to
work
that
requires heavy
lifting
or
carrying, the claimant is likely capable of performing other work
Page -20-
so
long
as
his
neck
and
left
shoulder
limitations
are
accommodated.”).
Therefore, this Court finds that the Appeals Council did not
err in finding that the new information provided no basis to change
the Commissioner’s decision.
CONCLUSION
For the reasons set forth above, I find that the ALJ’s
decision denying Plaintiff’s claim for disability benefits is
supported by substantial evidence in the record.
Accordingly,
Defendant’s motion is granted and Plaintiff’s motion for judgment
on the pleadings is denied.
Plaintiff’s complaint is dismissed
with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
______________________________
MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
November 6, 2012
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