Evans v. Astrue
Filing
16
DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Defendant's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 12/12/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________________
LAVORIS EVANS,
Plaintiff,
12-CV-6002
DECISION
and ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
___________________________________________________
INTRODUCTION
Plaintiff
Lavoris Evans
(“Plaintiff”)
brings
this
action
pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g) seeking
review of a final decision of the Commissioner of Social Security
(“Commissioner”), denying his application for Supplemental Security
Income (“SSI”).
Specifically, Plaintiff alleges that the decision
of the Administrative Law Judge (“ALJ”) denying his application for
benefits was not supported by substantial evidence and was contrary
to applicable legal standards.
Plaintiff has moved for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure (“Rule 12(c)”)
and 42 U.S.C. 405(g) seeking to reverse the Commissioner’s decision
or, in the alternative, to remand the matter for reconsideration of
the evidence. The Commissioner has cross-moved for judgment on the
pleadings pursuant to 42 U.S.C. § 405(g) on the grounds that the
ALJ’s decision was supported by substantial evidence and was
legally correct.
For the reasons set forth below, this Court finds that the
decision of the Commissioner is supported by substantial evidence
in the record and is in accordance with the applicable legal
standards. Accordingly, this Court hereby grants the Commissioner’s
motion for judgment on the pleadings.
BACKGROUND
Plaintiff filed an application on February 7, 2009, for SSI
claiming a disability since August 25, 2008, due to sciatica and
piriformis syndrome-a neuromuscular disorder in the leg.
At the
time he filed his application, Plaintiff was thirty-eight years old
and had performed past work as a laborer in waste management and in
customer services at a phone company.
Plaintiff’s application was
denied by the Social Security Administration (“the Administration”)
on April 17, 2009.
On May 29, 2009, Plaintiff filed a written
request for a hearing.
Plaintiff appeared for the hearing, with counsel, before ALJ
Barry
Peffley
videoconference.
on
August
18,
2010.
The
ALJ
appeared
via
Richard M. Smith, a vocational expert, testified
by phone at the hearing.
In a decision dated September 20, 2010,
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 Social Security Appeals
Council denied Plaintiff’s request for review on November 18, 2011.
On December 30, 2011, Plaintiff filed this action.
Page -2-
DISCUSSION
I.
Jurisdiction and Scope of Review
Title 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
Commissioner,
accept
provided
the
that
findings
such
of
fact
findings
substantial evidence in the record.
are
made
by
supported
the
by
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); see also Moore v. Sec’y of
Health and Human Services, 778 F.2d 127, 130 (2d Cir. 1985).
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) (stating
that a reviewing court does not decide a benefits case de novo).
Under Rule 12(c), judgment on the pleadings may be 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
Page -3-
relief, judgment on the pleadings may be appropriate.
Atl. Corp.
II.
See Bell
v. Twombly, 550 U.S. 544 (2007).
The Commissioner’s decision to deny the Plaintiff benefits was
supported by substantial evidence in the record.
In his decision, the ALJ adhered to the five-step sequential
analysis for evaluating Social Security disability benefits claims,
which requires the ALJ to consider the following factors:
(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 his ability to work;
(3) whether the claimant’s impairment or combination of
impairments 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 to
do his past work, he is not disabled;
(5) even if the claimant’s impairment or combination of
impairments prevents him from doing past relevant work,
if other work exists in significant numbers in the
national
economy
that
accommodates
his
residual
functional capacity and vocational factors, he 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.
Proceedings (“Tr.”) at 15).
(Transcript
of
Administrative
At Step Two, the ALJ found that
Plaintiff had the following severe impairments: degenerative disc
Page -4-
disease, back pain, leg pain, and leg numbness. (Tr. at 15).
At
Step Three, the ALJ concluded that although severe, the Plaintiff’s
impairments did not meet or equal, alone or in combination, the
criteria listed in Appendix 1, Subpart P of Regulation No. 4.
(Tr. at 15). The ALJ noted specifically that he considered listing
1.04 (disorders of the spine), but he found that the medical
evidence did not support listing-level severity. (Tr. at 15).
At Step Four, the ALJ found that Plaintiff’s past work in
customer services and as a laborer in waste management exceeded the
exertional requirements of his residual functional capacity, and
therefore, Plaintiff could not perform his past relevant work. (Tr.
at 19). The ALJ concluded that Plaintiff, despite his impairments,
retained the residual functional capacity to perform sedentary
work, except that he would need to be able to sit or stand
alternatively, but that he would not need to leave the workstation.
Additionally, the ALJ found that Plaintiff could only occasionally
use ramps and climb stairs, but he could never climb ladders,
ropes, or scaffolds.
Plaintiff also could balance, stoop, kneel,
crouch, bend, or crawl occasionally.
Finally, the ALJ determined
that Plaintiff must avoid concentrated exposure to operational
control of moving machinery and unprotected heights. (Tr. at 15).
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
Page -5-
Plaintiff could perform, such as an assembler of small parts and an
order clerk. (Tr. at 19-20).
Accordingly, the ALJ found that the
Plaintiff
within
was not
disabled
the
meaning
of
the
Social
Security Act. (Tr. at 20).
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.
A.
The ALJ properly determined that Plaintiff did not meet the
listing requirements for Listing 1.04A.
Plaintiff claims that the ALJ committed legal error in finding
that Plaintiff’s impairments do not meet the requirements of
Listing 1.04. (Pl. Mem. of Law at 10-13).
I find, however, that
the ALJ’s determination is supported by substantial evidence found
in the record.
To be considered disabled under Listing 1.04A, Plaintiff must
demonstrate evidence of a disorder of the spine that results in the
compromise of a nerve root or the spinal cord that also includes
evidence of nerve root compression characterized by neuro-anatomic
distribution of pain; limitation of motion of the spine; motor loss
accompanied by sensory or reflex loss; and, if there is involvement
of the lower back, positive straight-leg raising test (both sitting
and supine). 20 C.F.R. Part 404, Subpart P, Appendix 1.
Here, the ALJ specifically noted that he had considered
listing 1.04,
but
that
the
medical
listing-level severity. (Tr. at 15).
Page -6-
evidence
did
not
support
He also found that “no
acceptable medical source has mentioned findings equivalent in
severity to the criteria of any listed impairment, individually or
in combination.” (Tr. at 15).
Before Plaintiff’s back surgery in November 2009, Plaintiff
suffered from some of the symptoms found in Listing 1.04A.
medical
record
shows
some
diminished
range
of
motion,
The
some
instances of positive straight-leg raising, and some slightly
diminished sensation on the left side. (Tr. at 205, 233, 242).
However, these clinical findings were never consistent.
For
example, Plaintiff’s treating physician, Dr. Lisa Hauk found in
January of 2009 that Plaintiff’s sensation was grossly intact.
(Tr. at 205).
Additionally, in March of 2009, Dr. Hauk, found that
Plaintiff’s symptoms were improving. (Tr. at 202).
Dr. George
Sirotenko, who consultatively examined Plaintiff in April of 2009,
found that Plaintiff had full range of motion in the cervical
spine, upper extremities, hips, knees, and ankles. (Tr. at 209).
He also found that Plaintiff’s lower extremity strength was only
slightly diminished.
(Tr. at 209).
Dr. William Cotanch, who
examined Plaintiff for an independent neurosurgical evaluation,
found in June of 2009 that Plaintiff’s range of motion of the neck
and upper extremities was normal. (Tr. at 269).
He also noted that
Plaintiff’s strength, sensation, and reflexes were also normal.
(Tr. at 269).
Page -7-
Post-surgery, Plaintiff could dorsiflex his foot at the ankles
with ease, motor strength was full in the lower extremities, his
gait was normal, and straight-leg raising tests were normal.
(Tr.
at
255-57).
Diagnostic
instability. (Tr. at 254, 255).
tests
showed
no
evidence
of
Plaintiff’s treating physician,
Dr. Clifford Everett, even found that Plaintiff’s radicular pain
complaint had been resolved completely. (Tr. at 238).
In April
2010,
surgery,
the
surgeon
who
performed
Plaintiff’s
back
Dr. Robert Molinari, found that Plaintiff’s motor strength in the
lower extremity muscle groups was full, Plaintiff’s sensation was
intact to light touch, and Plaintiff’s knee and ankle reflexes were
normal. (Tr. at 252).
X-rays of Plaintiff’s lumbar spine from
April 2010 were “suspicious” for disc herniation/protrusion, but
there was only minimal evidence of impression on the thecal sac.
(Tr. at 251).
Based upon all the medical evidence in the record, the Court
finds that the ALJ correctly determined that Plaintiff does not
meet the requirements under Listing 1.04.
B.
The ALJ’s residual functional capacity finding is supported by
substantial evidence in the record.
Plaintiff claims that the ALJ’s residual functional capacity
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 residual
functional capacity for sedentary work as defined by 20 C.F.R.
Page -8-
416.967(a). However, the ALJ found that due to his impairments, he
“should
work
in
a
job
where
alternatively.” (Tr. at 15).
he
is
able
to
sit
or
stand
I find that the record provides
substantial evidence to support the ALJ’s residual functional
capacity finding.
In April 2009, state disability analyst M. Hessberger, after
a
review
of
the
medical
record,
found
that
Plaintiff
could
occasionally lift ten pounds, could stand for at least two hours of
an eight hour working day, could sit for at least six hours of an
eight hour working day, and had no limitations in pushing or
pulling. (Tr. at 213).
Dr. Sirotenko, also in April of 2009 found
that Plaintiff had full range of motion in the cervical spine,
upper extremities, hips, knees, and ankles. (Tr. at 209). He noted
that
Plaintiff’s
diminished.
should
avoid
lower
extremity
(Tr. at 209).
prolonged
strength
was
only
slightly
Dr. Sirotenko opined that Plaintiff
standing
and
walking.
(Tr.
at
210).
Additionally, Dr. Sirotenko opined that Plaintiff should avoid
repetitive lumbar spine forward flexion, extension, and rotation.
(Tr. at 210).
After decompressive surgery in November 2009, Dr. Molinari
noted that Plaintiff was recovering “nicely,” and that his pain and
symptoms were significantly improved. (Tr. at 256).
Plaintiff’s
muscle strength in the lower extremities was full, reflexes were
unimpaired, and Plaintiff’s gait was normal. (Tr. at 254).
Page -9-
In
April 2010, Plaintiff was noted to be in no acute distress and was
observed ambulating easily. (Tr. at 252).
that
Plaintiff’s
surgery
had
Dr. Everett even found
completely
radicular complaint. (Tr. at 238).
resolved
Plaintiff’s
Dr. Molinari also found that
surgery had resolved Plaintiff’s leg pain. (Tr. at 252). Plaintiff
still complained of lower back pain and some pain in his lower
extremities, (Tr. at 238-39, 252), but after an evaluation at the
Physical Therapy Center at Strong Memorial Hospital in April of
2010, Plaintiff’s rehab potential was marked as “good.” (Tr. at
246).
This
evidence
supports
the
ALJ’s
finding
that
Plaintiff
retained the residual functional capacity to perform sedentary work
with the restrictions as noted by the ALJ.
C.
The ALJ did not err in evaluating the medical opinions in the
record.
Plaintiff argues that the ALJ’s residual functional capacity
determination, insofar as it is contrary to the opinion of treating
physician Dr. Hauk, is inconsistent with the treating physician
rule.
The Court is not persuaded by this argument.
An ALJ is generally required to give deference to the medical
findings and reports of the physician who has provided primary
treatment to the patient. Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003); see also 20 C.F.R. § 404.1527(d)(2).
However,
where the opinion of the treating physician is not consistent with
other substantial evidence in the medical record, the opinion may
Page -10-
be given less than controlling weight. Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002).
When determining what weight should be
given to the treating physician’s opinion, 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 (2d
Cir. 1998)(citing 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2)).
Here, Dr. Hauk had provided treatment to the plaintiff for
only one
Capacity
month
prior
to
Questionnaire.
filling
(Tr.
at
out
271).
the
Residual
Functional
Furthermore,
although
Dr. Hauk determined that Plaintiff would need to lie down during
the workday in addition to taking normal work breaks, nothing in
Dr. Hauk’s treatment notes is consistent with such a limitation.
See (Tr. at 202-205). Dr. Hauk found indications and symptoms that
were consistent with the record, but conspicuously absent–outside
of Plaintiff’s own description of the injury–is any indication from
Dr. Hauk that lying down would help alleviate Plaintiff’s pain.
(Tr. at 204). In addition, Dr. Hauk only prescribed Wal-profen and
Flexeril for the pain. (Tr. at 205).
Moreover, there is evidence in the record that is inconsistent
with Dr. Hauk’s opinion.
For instance, in April of 2010, the
Physical Therapy Center at Strong Memorial Hospital noted that
Page -11-
although Plaintiff’s symptoms worsened with sitting, standing, and
walking, Plaintiff’s symptoms were not “better” with lying down.
(Tr. at 245).
In fact, Dr. James Hildebrand, D.C. noted that
Plaintiff’s discomfort was aggravated by lying down. (Tr. at 231).
As
to
Dr.
Hauk’s
opinion
that
Plaintiff
was
“currently
considered to be totally disabled,” (Tr. at 271), I find that the
ALJ was correct in noting that the ultimate issue of Plaintiff’s
legal disability is an issue reserved for the Commissioner. (Tr. at
18); see Snell v. Apfel, 177 F.3d 128 (2d Cir. 1999)(finding that
whether a claimant is disabled is reserved to the Commissioner);
SSR 96-5p(stating that the responsibility for deciding whether an
individual is disabled under the Social Security Act is reserved to
the Commissioner).
Plaintiff
assigned
to
also argues
Dr.
that
Sirotenko’s
the
ALJ
opinion.
erred
The
in
ALJ
the
found
weight
that
Dr. Sirotenko’s opinion was supportive of the ALJ’s residual
functional capacity assessment, and the ALJ clearly stated that
insofar as Dr. Sirotenko’s opinion was consistent with the residual
functional capacity, it was given significant weight. (Tr. at 18).
I find that the ALJ did not err in this regard.
In April 2009, Dr. Sirotenko concluded that Plaintiff suffered
from
low
back
pain
with
features
radiculopathy. (Tr. at 209).
of
left
lower
extremity
He also found that there were some
features of beginning atrophy of the left lower extremity, as well
Page -12-
as associated weakness. (Tr. at 210). However, Dr. Sirotenko noted
that Plaintiff had a full range of motion in the cervical spine,
shoulders, elbows, forearms, wrists, hips, knees, and ankles.
(Tr. at 209). Additionally, Plaintiff had 4/5 strength in his left
lower extremity. (Tr. at 209).
Finally, Dr. Sirotenko noted that
Plaintiff appeared to be in no acute distress. (Tr. at 209).
Dr. Sirotenko opined that Plaintiff should avoid prolonged
standing, walking, stairs, inclines, or ladders on a repetitive
basis. (Tr. at 210).
Dr. Sirotenko also opined that Plaintiff
should limit repetitive lumbar spine forward flexion, extension,
and rotation. (Tr. at 210).
None of these limitations would preclude Plaintiff from being
able
to
perform
sedentary
work.
20
C.F.R.
416.967(a).
Additionally, Dr. Sirotenko’s opinion was consistent with the
balance of the medical record.
giving
significant
weight
to
Accordingly, the ALJ did not err in
Dr.
Sirotenko’s
opinion
in
his
residual functional capacity assessment.
Insofar
as
there
was
medical
evidence
in
the
record
inconsistent with portions of Dr. Hauk’s opinion, the ALJ was
entitled
to
give
those
portions
of
her
opinion
less
than
controlling weight. Additionally, the Court finds that the ALJ did
not err in weighing the opinion of Dr. Sirotenko.
Page -13-
D.
The ALJ had no additional duty to re-contact Plaintiff’s
treating physicians.
Plaintiff argues that the ALJ erred by failing to request
treating source opinions regarding Plaintiff’s function-by-function
limitations
from
two
of
Plaintiff’s
treating
physicians,
Dr. Everett and Dr. Molinari. (Pl. Mem. of Law at 19).
An ALJ is required to “re-contact” a claimant’s physician for
additional information regarding plaintiff’s impairments when the
evidence from a claimant’s treating physician is inadequate for the
ALJ to determine whether the claimant is disabled. 20 C.F.R.
§416.912(e)(1).1
However, where “there are no obvious gaps in the
administrative record, and where the ALJ already possesses a
complete medical history, the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.”
Crawley-Nunez v. Astrue, 08-CV-0295-A, 2009 WL 5171880, at *6
(W.D.N.Y. Dec. 22, 2009) (citing Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir.1999)).
Here, the record is replete with extensive treatment notes
from treating physicians Dr. Hauk, Dr. Everett, and Dr. Molinari
and multiple consultative examinations all opining on Plaintiff’s
1
Effective March 26, 2012, the Commissioner amended 20
C.F.R. §416.912 to remove the duty imposed on an ALJ in former
paragraph (d) to re-contact a disability claimant’s treating
physician under certain circumstances. The Commissioner’s
directives as to how an ALJ will consider evidence are now found
at 20 C.F.R. §416.920b. Here, however, the Court will apply the
version in effect when the ALJ adjudicated Plaintiff’s disability
claim, §416.912(e).
Page -14-
impairments and his functional limitations.
Accordingly, I find
that there are no gaps in the medical record, and that the evidence
from Plaintiff’s treating sources and the consultative physicians
constitutes substantial evidence to support the ALJ’s conclusion
that Plaintiff is not disabled.
See 20 C.F.R. § 416.913(b)(6).
Therefore, I find that the ALJ did not err by failing to re-contact
Plaintiff’s treating physicians.
E.
The ALJ properly evaluated Plaintiff’s credibility.
Plaintiff argues that the ALJ erred in his evaluation of
Plaintiff’s credibility.
The credibility of witnesses, including
the claimant, is primarily determined by the ALJ and not the
courts.
Carroll v. Secretary of Health and Human Services, 705
F.2d 638, 642 (2d Cir. 1982) (citations omitted).
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]
capacity
inconsistent
assessment.”
(Tr.
with
the
at
above
16).
residual
Contrary
to
functional
Plaintiff’s
allegations, I find that the ALJ’s statement that Plaintiff’s
symptoms
were
not
credible
to
the
extent
that
they
were
inconsistent with the residual functional capacity finding is not
erroneous.
Page -15-
Here, Plaintiff’s residual functional capacity was based on
all the evidence in the record, which included not only the
opinions of the examining and consulting physicians, but also
Plaintiff’s subjective complaints, treatment history, activities of
daily
living,
and
other
factors
as
enumerated
at
20
C.F.R.
§ 416.929(c)(3). (Tr. at 16-18).
Plaintiff lived alone and needed no special help or reminders.
(Tr. at 177, 179).
Plaintiff also claimed that he had no problem
getting along with others and that he had no problems with paying
attention. (Tr. at 182-83).
Plaintiff could wash dishes, do light
cooking and cleaning, and bathe and dress himself.
(Tr. at 33,
208). Although he testified that driving was a problem for him, he
was capable of driving himself to medical appointments. (Tr. at 32,
231).
Post-surgery, Plaintiff’s treatment was minimal, consisting of
physical therapy, as needed, and over-the-counter ibuprofen and
non-steroidal anti-inflammatories, also as needed. (Tr. at 255).
On numerous occasions, it was noted that surgery and treatment
post-operatively helped resolve his leg pain and symptoms. (Tr. at
252, 255, 256). As recent as April 2010, treating sources assessed
that Plaintiff’s “rehab” potential was “good.” (Tr. at 246).
This
Court
is
compelled
to
uphold
the
ALJ’s
decision
discounting a claimant’s testimony if the finding is supported by
substantial
evidence,
as
it
is
here.
Page -16-
Aponte
v.
Secretary
of
Department of Health and Human Services, 728 F.2d 588, 591 (2d Cir.
1984) (citations omitted). Accordingly, based on the above, I find
that the totality of the evidence in the record supports the ALJ’s
assessment of Plaintiff’s credibility.
F.
The ALJ posed a complete hypothetical to the vocational
expert.
Plaintiff argues that the ALJ provided the vocational expert
with an incomplete hypothetical that omitted some of Plaintiff’s
limitations,
which
yielded
job
recommendations
that
were
inconsistent with his actual residual functional capacity.
The Court finds that the hypothetical question posed to the
vocational
expert
accurately
reflected
profile and residual functional capacity.
determining
properly
Plaintiff’s
evaluated
the
residual
entire
Plaintiff’s
As discussed above, in
functional
record
vocational
and
capacity,
the
declined
to
ALJ
give
controlling weight to the medical opinions to the extent that they
were inconsistent with the record as a whole.
Specifically, the
ALJ properly found that the limitation opined by Dr. Hauk, that
Plaintiff would need to recline or lie down during an eight-hour
workday in excess of the typical work breaks, was not supported in
the record.
include
in
Accordingly, the ALJ did not err in declining to
his
hypothetical
this
limitation
or
any
other
limitations for which he found inadequate record support. See,
e.g., Priel v. Astrue No. 10-566-cv, 453 Fed. Appx. 84, 87 (2d Cir.
2011) (finding that the ALJ properly declined to include in his
Page -17-
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
residual
functional capacity assessment).
With respect to Plaintiff’s argument that the ALJ’s residual
functional capacity assessment was not specific as to the frequency
of Plaintiff’s need to alternate positions between sitting and
standing, as required by SSR 96-9p, I find that the ALJ's residual
functional capacity finding of “sit or stand alternatively,” the
ALJ’s hypothetical question, and the testimony of the vocational
expert were all consistent with an at-will sit/stand option,
(Tr. at 15, 18, 44-5, 47, 49, 51), and accordingly, no greater
specificity was required.
See Thompson v. Astrue, 442 Fed. Appx
804, 807 (4th Cir. 2011) (finding that an at-will sit/stand option
required no greater specificity under SSR 96-9p); See also, Magee
v. Astrue, No. 05-CV-413, 2008 WL 4186336, at *5 (N.D.N.Y. Sept. 9,
2008).
Here, although the ALJ's residual functional capacity finding
did not specifically state the frequency with which Plaintiff must
alternate between sitting and standing in terms of hours, the ALJ
did determine that Plaintiff must be able to change positions
alternatively. (Tr. 15, 18).
Based upon the substantial medical
evidence in the record and the degree of flexibility with which
Plaintiff would be able to alternate positions, I find that the
Page -18-
ALJ's hypothetical question was consistent with the applicable
legal principles.
Because the ALJ’s residual functional capacity finding was
supported by substantial evidence in the record, the hypothetical
posed to the vocational expert was complete. Therefore, I conclude
that the ALJ’s decision at Step Five was supported by substantial
evidence.
CONCLUSION
For the reasons set forth above, I conclude that the ALJ’s
decision was supported by substantial evidence in the record and,
therefore, grant the Commissioner’s motion for judgment on the
pleadings.
This Court denies Plaintiff’s motion for judgment on
the pleadings and dismisses Plaintiff’s complaint with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
December 12, 2012
Rochester, New York
Page -19-
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