Corsi v. Astrue

Filing 11

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 8 Commissioner's Motion for Judgment on the Pleadings; and dismissing the Plaintiff's complaint with prejudice. (clerk to close case.) Signed by Hon. Michael A. Telesca on 10/2/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
MARK CORSI,
DECISION
and ORDER

Plaintiff,

vs.

12-CV-6606T

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________

INTRODUCTION
Plaintiff,

Mark

Corsi

("Corsi"

or

"Plaintiff"),

brings

this

action pursuant to the Social Security Act § 216(i) and § 223,
seeking review of the final decision of the Commissioner of Social
Security

("Commissioner")

denying

his

application

for

Disability

Insurance Benefits ("DIB"). Plaintiff alleges that the decision of
the Administrative Law Judge ("ALJ") is not supported by substantial
evidence in the record and is contrary to applicable legal standards.
On June 4, 2013, Plaintiff moved for summary judgment

seeking

to reverse the Commissioner's decision judgment. On July 19, 2013,
the Commissioner cross-moved for judgment on

the pleadings pursuant

to 42 U.S.C. § 405 (g) on the grounds that the findings of the
Commissioner are supported by substantial evidence.

F o r

t h e

reasons set forth below, this Court finds that there is substantial
evidence

to

support

the

Commissioner's

decision.

Therefore,

the

Commissioner's motion for judgment on the pleadings is granted and
the Plaintiff's motion is denied.
PROCEDURAL HISTORY
On June 1, 2010, Plaintiff filed an application for DIB under
Title II, § 216(i) and § 223 of the Social Security Act, alleging a
disability

since

October

30,

2009

arising

from

morbid

obesity,

diabetes, leg infection, knee pain, high cholesterol, gastric reflux
and back pain.

T. 134-138, 154.

August 23, 2010.

Plaintiff's claim was denied on

T. 88-91. At Plaintiff's request, an administrative

hearing was conducted on August 2, 2011 before an Administrative Law
Judge

("ALJ")

at

which

Corsi

testified

and

was

represented

by

counsel. T. 33-79.
On September 14, 2011, the ALJ issued a Decision finding that
Corsi was not disabled. T. 14-23. On October 25, 2012, the Appeals
Council

denied

Plaintiff's

request

for

review,

making

Decision the final decision of the Commissioner. T. 1-3.

the

ALJ's

This action

followed.
BACKGROUND
Plaintiff is a 47 year old high school graduate with nursing
training at Boces. T. 154-155. He worked as a taxi driver from early
2007 through October 30, 2009. T. 155.

2

Prior to that position,

Plaintiff worked as a resident aide and counselor for an overnight
health care facility from 2001 through 2005, a hall monitor and bus
driver for a school from 1995 through 2003 and a cashier from 2003
until early 2007. T. 155.
Corsi spends a typical day taking medications, making his meals,
watching

television,

showering,

visiting

sporting events. T. 166. He also

friends

and

watching

feeds and cares for his pets.

T. 166. Corsi claims that he can no longer walk long distances, drive
for extended periods of time, shovel snow, cut grass or sit for a
long time. T. 166.

Plaintiff enjoys attending sporting events on a

weekly basis but is limited in his ability to sit or stand for long
periods of time. T. 170.

In his application papers, Corsi indicated

he could walk 100 feet before resting for five to ten minutes.
T. 171.
A. Medical History
Plaintiff was treated for left leg ceullulitis in May, 2007 and
April and May, 2008. T. 262-263.

He was treated with antibiotics and

the issue appeared to be resolved. T. 262-263.
In March, 2009, the medical records from St. Joseph's Hospital
in Elmira, New York outpatient primary care indicate that Plaintiff
was off work for a week because of left knee pain.
also

experiencing

back

pain.

T.

227.

3

Straight

T. 227.

leg

raises

He was
caused

tenderness over lumbar paraspinous muscles.

There was no obvious

swelling noted in the left knee. He was given Amrex samples and
referred to a chiropractor. T. 227.
Corsi was examined by Nurse Practitioner Darlene Baltimore of
St.

Joseph's

complaining

of

outpatient
increased

primary

care

fatigue

as

unit
well

on
as

November

cold-like

4,

2009

symptoms.

T. 209. His blood sugar levels were running high. Corsi was still
driving a taxi and Ms. Baltimore directed him to stop working because
it was unsafe to drive a taxi with uncontrolled diabetes. T. 209.
Because Plaintiff did not want to go to Endocrinology, Ms. Baltimore
referred Corsi to Nancy Goban, a nurse practitioner from Internal
Medical Associates of the Southern Tier. Ms. Baltimore increased the
Lantus dosage and advised Plaintiff to watch his diet more carefully
and continue to monitor his blood sugar. T. 209.
Ms.

Baltimore

follow up visit.

examined

Plaintiff

on

December

9,

2009

for

a

T. 208. She noted that Corsi had cancelled his

appointment with Nancy Goban for regulation of his sugar levels.
Plaintiff denied any foot problems.

Dr. Baltimore increased the

Lipitor dosage, prescribed Ramipril and Metformin and instructed him
to see Nancy Goban as soon as possible.
Plaintiff

was

treated

by

Nurse

T. 208.
Practitioner

Nancy

Goban

on

December 30, 2009 for diabetes follow up. T. 249. Ms. Goban noted

4

that Plaintiff's efforts to lose weight were unsuccessful and he does
not

exercise

frequent

at

all.

hypoglycemic

T.

249.

episodes,

Although
he

is

Plaintiff

over

160

on

does

not

average

have
2

to

3 times each day. T. 249. She indicated that Plaintiff's glucose
levels

were

condition
318

or

pounds

poorly

controlled

treatment.
and

was

T.

taking

because

249.

At

Lantus,

of

this

misunderstanding

time,

Metformin,

Aciphex, Ramipni and Actoplus Met. T. 249.

Plaintiff
Januvia,

the

weighed
Lipitor,

Ms. Goban recommended

Plaintiff no longer take Metformin but continue with Actosplus Met
and gave guidance as to how much Lantus to take. T. 250.
Corsi was treated by Ms. Baltimore on January 18, 2010 for
diabetes, hypertension and high cholesterol. T. 207. Dr. Baltimore
noted that Plaintiff was feeling better, was off oral medications and
now treating diabetes with Lantus at bed time and a sliding scale of
Januvia and Actoplus.

T. 207. Ms. Baltimore noted that Corsi told

her he was not ready to go back to work and would like to be off
three more weeks. T. 207. Ms. Baltimore cleared him to return to work
in one month as long as his sugars stabilized. T. 207.
In February, 2010, Plaintiff was treated at a podiatric and foot
care facility to educate Plaintiff on diabetic footcare and arrange
regular foot care.

T. 210. Also in February, 2010, medical notes

from St. Joseph's Hospital outpatient primary care facility indicate

5

that Plaintiff expressed his desire to return to work. T. 225. He was
instructed to continue with diabetes management and his sugars were
lower. T. 225.
Plaintiff was treated monthly by Ms. Goban through June, 2010
for

diabetes

management.

T.

251-257.

She

adjusted

the

amount

of

Lantus he would take and guided him on how to best manage his sugar
level.

During June, 2010, Corsi was also treated for left lower leg

cellulitis. T. 259-261.
An

independent

medical

examination

report

Dr. Pranab Datta on August 6, 2010. T. 266-270.

was

prepared

by

Dr. Datta noted that

Corsi told her that he has had diabetes since 2003 with blood sugar
levels ranging between 280 to 300. T. 266. He also claimed to have a
history of low back pain starting around 2006. He claimed to have
pain from prolonged sitting or standing but he could walk about a
quarter of a mile before he feels pain. T. 266.

Corsi told Dr. Datta

that he had intermittent swelling and infection of the left leg and
uses

knee

high

stockings

for

treatment.

T.

266.

During

the

examination, Corsi indicated that he cooked, but does not clean or do
laundry. T. 267. He could shop, shower and dress himself. His weight
at the time of the examination was 329 pounds at 5 feet 7 inches
tall. T. 267. Dr. Datta noted that Plaintiff did not appear to be in
acute distress and exhibited a normal gait although he did at times

6

limp and favor the left leg. T. 267. He needed no assistive devices
and was able to walk on heels with little difficulty. T. 267. The
cervical

spine

showed

full

flexion,

extension,

lateral

flexion

bilaterally and full rotary movement bilaterally. T. 268. Similarly
the lumbar spine was normal. T. 268.
Dr.

Datta

hypertension,

concluded

obesity

that

and

Plaintiff

intermittent

suffered

low

back

from
pain

diabetes,

of

unknown

etiology. T. 269. He had no limitations with speech, hearing, sight,
and no limitations with upper extremities for fine and gross motor
activities.
prolonged

Dr. Datta did find Plaintiff had “mild limitations for

sitting,

limitations

for

standing

climbing.”

and
T.

walking”

269.

Dr.

and
Datta

“mild
also

to

moderate

advised

that

Plaintiff avoid heavy lifting, pushing, pulling or carrying. T. 269.
A

radiology

report

dated

August

11,

2010

of

Plaintiff's

lumbosacral spine showed that he had degenerative spondylosis at L2L3 and L4-L5. T. 271.
A Medical Source Statement of Claimant's Ability to Perform
Work-Related

Physical

Activities

form

was

completed

by

Dr.

Paul

Povanda on October 12, 2010. T. 279-283. In this report, Dr. Povanda
indicated that Plaintiff was able to lift or carry on a sustained
basis
20

frequently

pounds.

T.

up

279.

to
He

10
was

pounds
to

but

never

7

only

lift

occasionally

more

than

20

11

to

pounds.

Plaintiff was not limited to use of hands but could only occasionally
reach overhead or push and pull. T. 280. Plaintiff was described as
never able to stoop, bend, crouch, squat, kneel, climb ladders but
was occasionally able to twist or climb stairs. T. 281. Because of
his lumbosacral spine, Plaintiff was limited to sitting, standing or
walking less than two hours in an 8 hour work day and only able to
sit

stand

or

walk

at

any

one

time

up

to

15

minutes.

T.

281.

Dr. Povanda also noted that Plaintiff's pain causes him to frequently
lose attention and concentration and is only able to tolerate stress
for

short

periods

of

time.

T.

282.

Plaintiff

was

to

avoid

all

exposure to heights, temperature extremes and vibrations and avoid
significant exposure to moving machinery, chemicals, humidity, dust
and fumes. T. 282.
On April 28, 2011, Plaintiff presented to St. Joseph's Hospital
in Elmira with complaints of chronic lower back pain. T. 291. He
requested

stronger

Plaintiff

had

without

no

difficulty

pain
edema,
and

medication.
could
could

move
change

The

examination

upper

and

positions

lower
from

showed

that

extremities
sitting

to

standing with little difficulty. T. 291. Plaintiff was continued on
his current medication regimen including continuing with Celebrex.
T. 292. He was also prescribed tramadol as needed for pain relief and
instructed to return for follow up in three months. T. 292.

8

At the follow up examination in August, 2010, Plaintiff again
complained of chronic back pain. T. 298. Ms. Baltimore noted that
Plaintiff

had

mild

to

moderate

limitations

for

climbing,

mild

limitations for prolonged sitting, standing or walking and was to
avoid

heavy

pushing,

pulling,

lifting

or

carrying.

T.

298.

Plaintiff's blood sugar levels were high because he claimed he did
not have the co-pay money to purchase insulin. T. 298.

He was given

samples of Humalog, Lantus, Celebrex, Januvia, ActosPlus Met, and
Zegerid in place of omegrazole. T. 298.
Corsi was next examined by Ms. Baltimore in November, 2010 after
an automobile accident in a parking lot. T. 296. Although CT of the
brain was negative, Plaintiff complained of a headache and pain in
the back of his head and neck. T. 296. Plaintiff had lost 20 pounds
and noted that his treatments with Ms. Goben have helped him better
regulate

his

blood

sugar

levels.

T.

296.

Ms.

Baltimore

advised

Plaintiff to take Ibuprofen for pain and to try Flexeril, warm moist
heat

and

gentle

neck

stretching.

T.

297.

In

the

follow

up

examination in December, 2010, Plaintiff had no complaints and his
blood glucose levels were much improved. T. 295.
Dr. Povanda completed a questionnaire on May 25, 2012 regarding
Plaintiff. T. 318-320.

In this report, Dr. Povanda noted that he

treated Plaintiff for a herniated lumbar disc L4-L5 on May 22, 2012.

9

T. 318. Dr. Povanda noted that upon review of Plaintiff's medical
records from his office that Plaintiff was obese and that the obesity
“exacerbates limitations caused by the other medical impairments”
with respect to standing, walking, stooping, bending, work pace and
the need to rest. T. 318.
or

frequency

of

rest

Dr. Povanda indicated that there no amount

periods

would

allow

Plaintiff

to

work.

He

checked the box saying that Plaintiff needed complete freedom to rest
frequently without restriction. T. 319. Dr. Povanda would expect more
than four absences each month if Plaintiff were to return to full
time work. T. 319.

He further found that Plaintiff's ability to work

is severely restricted in his ability to sustain work pace. T. 319.
An MRI of the lumbar spine from May 25, 2012 showed an herniated
disc at L5 and L1 causing spinal stenosis at L5-S1. There was a
moderate disk bulge at L3-L4. T. 321.
B. Plaintiff's Hearing Testimony
Plaintiff testified that he worked as a bus driver, stocker of
shelves

in

Walmart,

home

health

aide,

and

for

a

recreation

association. T. 39-43. As part of his responsibilities working for
the recreation association, Plaintiff set up equipment, signs and the
fields for games. T. 43-44. He was required to carry baseball bases
weighing as much as 15 to 20 pounds and place them on the field.
T. 44. Plaintiff performed this work until November, 2010 when he was

10

let go because he couldn't do the required lifting of heavier items.
T. 44-46.
Plaintiff testified that he can't work because of his diabetes,
back and knee pain. T. 46-47. He was receiving unemployment benefits
until July 11, 2011 and continued looking for work. T. 75. Corsi
testified that he could perform sit down jobs such as a secretary or
answer phones and that he applied for these jobs via the internet.
T. 75. Plaintiff also applied for part-time sales associates jobs at
the mall. T. 77. He claimed that he had back pain all of the time as
well as pain in the legs. T. 63. Corsi testified that he experiences
sweatiness and headaches about one or twice a week from uncontrolled
sugar levels and that he needs to lie down twice a day to relieve
back pain. T. 64. When he sweats and shakes from high blood sugar, it
takes five to ten minutes to stop by drinking water, taking insulin
or changing his eating habits. T. 65.
Plaintiff testified that he experiences no side effects from his
medications and he takes a nap every day for approximately 30 to
45 minutes. T. 66. He can walk 10 to 15 minutes before he has to sit
down because he is tired, out of breath and his back bothers him.
T. 67. He can sit 20 to 30 minutes without becoming uncomfortable and
needing to change position. T. 67. Corsi testified that he could lift

11

20 pounds occasionally and he is able to go up stairs using the rail.
T. 67.
Plaintiff testified that he sees Nurse Practitioner Nancy Goban
every three months for monitoring his diabetes but that it remained
uncontrolled. T. 48-49. When he wakes up in the morning, his blood
sugars were on average 165 or 170 and but his sugar levels were
becoming more controllable. T. 49.
Corsi testified that Dr. Povanda was treating him for back pain
but

most

often

he

was

treated

by

a

nurse

practitioner.

T.

50.

Plaintiff testified that he does not see Dr. Povanda often and thinks
that

he

last

saw

Plaintiff takes

him

nine

months

prior

to

the

hearing.

T.

50.

Tramadol for back pain and had not seen a back

specialist. T. 50.
Dr. Melanowsi was treating

Plaintiff for cellulitis. T. 52.

Plaintiff testified that he was hospitalized for cellulitis in late
2009, early

2010

as well as in 2008. T. 52-53. Plaintiff wears

stockings to keep the swelling down.

T. 53.

Plaintiff testified that his weight was approximately the same
as when he worked as a taxi driver. T. 54. According to Plaintiff,
his weight does not affect him except that he gets tired and affects
his diabetes. T. 54. Plaintiff testified that he cannot walk far
before he has to sit down and rest. T. 55.

12

Corsi lives in a single family house with his wife. T. 55-56.
The house has stairs that Corsi goes up twice a day to go to his
bedroom on the second floor. T. 56. Corsi can wash, dress and get his
own meals. Plaintiff testified that he sometimes does indoor house
chores but these were most often done by his wife. He shops for
groceries at times but most often it is done by his wife. Plaintiff
spends his days watching television, napping and visiting friends. He
is able to drive his car 20 to 25 minutes without a break. T. 57-60.
Plaintiff last worked as a taxi driver on October 30, 2009 after
three years when he stopped because of his back pain and diabetes.
T. 61.
DISCUSSION
I. Scope of Review
Title 42 U.S.C. §405(g) directs the Court to accept the findings
of fact made by the Commissioner, provided that such findings are
supported

by

substantial

evidence

in

the

record.

Substantial

evidence is "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938).
limited

to

determining

whether

The Court's scope of review is
the

Commissioner's

findings

were

supported by substantial evidence in the record, and whether the
Commissioner employed the proper legal standards in evaluating the

13

plaintiff's claim. Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.
1983).
Judgment on the pleadings pursuant to Rule 12(c) may be granted
where the material facts are undisputed and where judgment on the
merits

is

pleadings.
(2d

Cir.

possible
Sellers
1988).

merely
v.

M.C.

If,

after

by

considering

Floor

the

Crafters,

reviewing

contents

of

the
639

842

F.2d

record,

the

Inc.,

the

Court

is

convinced that the plaintiff has not set forth a plausible claim for
relief, judgment on the pleadings may be appropriate. see generally
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
II. The Commissioner's Determination of the Onset Date is Supported
by Substantial Evidence in the Record

The ALJ found that Plaintiff was not disabled within the meaning
of the Social Security Act.
Social

Security

In doing so, the ALJ adhered to the

Administration's

five

step

evaluating disability benefits. (Tr. 12-18)

sequential

analysis

The five step analysis

requires the ALJ to consider the following: 1) whether the claimant
is performing substantial gainful activity; 2) if not, whether the
claimant has a severe impairment which significantly limits his or
her

physical

or

mental

ability

to

do

basic

work

activities;

3) whether the claimant suffers a severe impairment that has lasted
or is expected to last for a continuous period of at least twelve

14

months, and his impairment(s) meets or medically equals a listed
impairment contained in Appendix 1, Subpart P, Regulation No. 4, if
so, the claimant is presumed disabled;

4) if not, the ALJ next

considers whether the impairment prevents the claimant from doing
past relevant work given his or her residual functional capacity;
5) if the claimant's impairments prevent his or her from doing past
relevant work, whether other work exists in significant numbers in
the

national

functional

economy

capacity

that

and

accommodates

vocational

the

factors,

claimants

the

residual

claimant

is

not

disabled. 20 C.F.R. §§404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v).
Under step one of the process, the ALJ found that the Plaintiff
had not engaged in substantial gainful activity at any time during
the period from his alleged onset date of October 30, 2009. T. 16.
The ALJ next found that the Plaintiff suffered from the following
severe

impairments:

obesity,

diabetes,

cellulitis

extremities, and chronic back pain. T. 17.

in

the

lower

At step 3, The ALJ found

that Plaintiff's impairments did not meet or medically equal the
listed impairments in Appendix 1, Subpart P. T. 18.

Further, the ALJ

found that Plaintiff had the residual functional capacity to perform
the full range of sedentary work in that the Plaintiff was able to
occasionally

lift

or

carry

ten

frequently, stand or walk for

pounds

and

less

than

ten

pounds

about two hours in an eight hour

workday and sit for about six hours in an eight hour work day. T. 19.

15

The ALJ next determined that Plaintiff was not able to perform his
past

relevant

work.

T.

22.

Finally,

the

ALJ

determined

that

considering Plaintiff's age, education, past relevant work experience
and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could
perform. T. 22.
Plaintiff argues that the ALJ erred by: 1)failing to properly
apply the treating source rule; 2) failing to properly evaluate the
medical

evidence;

Plaintiff's

residual

and

3)

failing

functional

to

properly

capacity.

I

find

establish
that

the

there

is

substantial evidence in the record to support the ALJ conclusion that
the Plaintiff was not disabled within the meaning of the Social
Security Act.
A. Substantial Evidence in
the Record
Evaluation of the Medical Evidence

Supports

the

ALJ's

Plaintiff first contends that the ALJ failed to properly apply
the treating physician rule. He argues that the ALJ failed to accord
controlling weight to the opinion of Plaintiff's treating physician,
Dr. Povanda, concerning his functional capacity assessment.
Pursuant to the treating physician rule, the medical opinion of
the physician engaged in the primary treatment of a claimant is given
“controlling weight” if it is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent

16

with the other substantial evidence in the case record. 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2). An ALJ may decline to give controlling
weight

to

a

treating

physician’s

opinion

based

on,

inter

alia,

“(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;
and (iv) whether the opinion is from a specialist.” Shaw v. Chater,
221 F.3d 126, 134 (2d Cir. 2000); Clark v. Commissioner of Social
Security,
§

143

F.3d

404.1527(d)).

115,

The

118

Second

(2d

Cir.

Circuit

1998)

(citing

requires

that

20

C.F.R.

the

ALJ's

consideration of the treating source evidence be explicit in the
record. Burgin v. Astrue, 2009 WL 3227599 (2d Cir. October 8, 2009).
Here,

the

ALJ

properly

considered

the

weight

to

be

given

the

conflicting medical opinions and articulated good reasons for not
giving Dr. Povanda's opinion controlling weight.
The ALJ gave significant weight to the opinion of Dr. Datta, the
consultative examiner. Dr. Datta found Plaintiff to be mildly limited
for prolonged sitting, standing, and walking and that he should avoid
heavy

lifting,

pushing

and

pulling.

T.

21,

269.

Dr.

Datta's

observations of Plaintiff walking with a normal gait, having negative
straight

leg

Plaintiff's
ankles

were

raising,

shoulders,
consistent

and

finding

elbows,
with

a

full

forearms,
performing

17

range

wrists,

of

hips,

sedentary

motion
knees

work.

T.

of
and
21,

268-269.

The

consistent

ALJ

with

specifically
Plaintiff's

found

that

activities

of

Dr.

Datta's

daily

report

living

is

and

the

conservative medical treatment by his treatment providers. Plaintiff
indicated that he shopped, cooked, dressed and bathed himself, and
socialized with friends. He was also able to climb stairs at home
twice a day. T. 19-20. Moreover, Plaintiff testified that he sought
part-time work, and even certified that he was ready willing and able
to

work

during

the

time

period

that

he

collected

unemployment

benefits. T. 74-75.
Conversely, the ALJ accorded no weight to Dr. Povanda's finding
that Plaintiff could sit, stand and walk for two hours with the need
to change positions every 15 minutes because it was not consistent
with the medical evidence. T. 21.

First, the ALJ noted that there is

no evidence that Dr. Povanda was a regular treatment provider for
Plaintiff. Plaintiff's treatment at Dr. Povanda's office was almost
entirely conducted by nurse practitioners or physicians' assistants.
T. 21.

Plaintiff could not remember the last time he saw Dr. Povanda

and there were no medical reports that showed he ever actually was
seen

by

this

doctor.

T.

21.

There

were

few

office

notes

from

Dr. Povanda and there was no clinical examination imaging studies or
other evidence that Dr. Povanda considered any source of Plaintiff's
functional limitations other

than Corsi's own statements. T. 21.

Baladi v. Barnhart, 33 Fed. Appx. 562, 564 (2d Cir. 2002) (ALJ not

18

required

to

give

controlling

weight

to

opinion

based

upon

only

subjective complaints and unremarkable test results).
I find that the ALJ correctly held that Dr. Povanda’s opinion
concerning

Plaintiff’s

residual

functional

capacity

was

not

consistent with the record as a whole and, therefore, not entitled to
greater weight than the findings of Dr. Datta.
B. Substantial Evidence Supports the ALJ’s Analysis of Obesity and
Diabetes
in
Determining
Plaintiff’s
Residual
Functional
Capacity
Plaintiff next argues that the ALJ failed to properly assess the
effect of Plaintiff's obesity in determining his residual functional
capacity.
Social Security Ruling 02-1p directs ALJs to consider whether a
claimant's obesity significantly limits his or her ability to do work
activities, including whether it makes other ailments worse. The
ruling provides: “[o]besity can cause limitation of function . . . An
individual may have limitations in any of the exertional functions
such as sitting, standing, walking, lifting, carrying, pushing, and
pulling.” SSR 02-1p(8). The ruling also provides that “[t]he combined
effects of obesity with other impairments may be greater than might
be expected without obesity . . . As with any other impairment, we
will explain how we reached our conclusions on whether obesity caused
any physical or mental limitations.” Id.

19

Here, the ALJ's decision explains that plaintiff's obesity was
considered in determining his residual functional capacity. In his
decision, the ALJ listed morbid obesity as one of Plaintiff's severe
impairments.

T.

22.

The

ALJ

acknowledged

that

the

examiners

who

offered an opinion as to Plaintiff's residual functional capacity all
specifically noted Plaintiff's obesity and factored it into their
medical opinions.
considered

the

“By weighing those opinions I have likewise fully
Claimant's

obesity.

To

assign

any

additional

limitations due to the Claimant's weight would be an impermissible
substitution of my own medical opinion.” T. 22.
Here, the ALJ discussed the medical providers' diagnoses and
opinions including their repeated acknowledgement that Plaintiff was
obese.

Obesity

limitations

and

was

part

these

of

their

opinions

assessments

were

as

incorporated

to

Plaintiff's

into

the

ALJ's

assessment as to Plaintiff's residual functional capacity. The ALJ's
conclusion of the overall effect of Plaintiff's obesity is supported
by
(2d

the

medical

Cir.

records.

2011)(“[T]he

Drake

ALJ

v.

Astrue,

implicitly

443

factored

F.App'x
[the

653,

657

plaintiff's]

obesity into his RFC determination by relying on medical reports that
repeatedly noted [the plaintiff's] obesity and provided an overall
assessment of her work-related limitations.”)

20

Accordingly, the record clearly reflects that the ALJ adequately
considered Plaintiff's obesity and its impact on his other conditions
in compliance with with SSR 02-1p. See, Talavera v. Commissioner of
Social Security, 2011 WL

3472801, at *12 (E.D.N.Y. Aug. 9, 2011)

(The ALJ properly considered the plaintiff's obesity because,inter
alia, she listed “'obesity' as one of [the plaintiff's] impairments,
which she assumed to be severe.”), aff'd in separate opinions, 697
F.3d 145 and 2012 WL 4820808 (2d Cir. 2012); Cruz v. Barnhart, 2006
WL 1228581, at *9 (S.D.N.Y. May 8, 2006)(no error where “the ALJ made
specific

mention

of

[the

plaintiff's]obesity

in

his

findings

of

fact”).
Similarly, Plaintiff also argues that the ALJ failed to properly
evaluate the effect of diabetes on his Residual Functional Capacity.
He contends that the medical records show poor control of sugar
levels.

The ALJ acknowledged that the medical records reflect that

Plaintiff has had high blood sugars and indeed lists diabetes as one
of Plaintiff's severe impairments. However, the ALJ also noted that
Plaintiff's

statements

regarding

the

intensity,

frequency

and

limiting nature of his impairments to be partially credible. T. 21.
Plaintiff's medical treatment had been conservative, Plaintiff made
little to no attempt to exercise, lose weight, be compliant with
diabetes medications or control his eating habits. T. 20, 21. I find

21

substantial evidence to support the ALJ's evaluation of Plaintiff's
condition with regard to diabetes.
C. Substantial Evidence in the Record
Supports the ALJ's
Determination of Plaintiff's Residual Functional Capacity to
Perform Sedentary Work
Finally, Plaintiff contends that the ALJ erred by resting the
residual

functional

capacity

finding

on

the

exertional

level

of

sedentary work without taking into account Plaintiff's limitation
with regard to his ability to reach overhead

or

push and pull.

Plaintiff points to the residual functional capacity form that was
completed by Dr. Povanda in support of his position that he was
limited in these capacities.

Further, Plaintiff argues that the

ALJ's residual functional capacity analysis failed to account for
Plaintiff's limitations in his ability to sit, stand, walk, stoop,
bend, crouch, squat, kneel and climb ladders or stairs.
In assessing a claimant's RFC, the ALJ must consider all of the
relevant medical and other evidence in the case record to assess the
claimant's ability to meet the physical, mental, sensory and other
requirements of work. 20 C.F.R. § 404.1545(a)(3)-(4).

It is within

the province of the ALJ to weigh conflicting evidence in the record
and credit that which is more persuasive and consistent with the
record as a whole. See, e.g., Veno v Barnhart, 312 F. 3d 578, 588 (2d
Cir. 2002) ("Genuine conflicts in the medical evidence are for the

22

Commissioner to resolve.") (citing Richardson v. Perales, 402 U.S.
389, 399 (1971)); Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)
("It is for the SSA, and not this court, to weigh the conflicting
evidence in the record.")
Here,

the

ALJ

concluded

that

although

Plaintiff

had

some

limitations, the evidence did not support the presence of limitations
that would preclude Plaintiff from performing a range of sedentary
work.
ten

(Tr.

19)

pounds

and

§ 404.1567(a).

Sedentary
involves

work

limited

involves
walking

lifting
or

no

standing.

more
20

than

C.F.R.

The ALJ reached this conclusion from a review of all

of the relevant medical evidence as well as evaluating Plaintiff's
subjective complaints.
The ALJ properly considered both Dr. Datta's and Dr. Povanda's
assessments of Plaintiff's functioning. T. 21-22. As noted above, the
ALJ accorded probative weight to Dr. Datta's opinion finding it was
consistent with the record as a whole.
the

weight

articulated

to

be

good

given

reasons

the
for

The ALJ properly considered

conflicting
not

giving

medical
Dr.

opinions

Povanda's

and

opinion

controlling weight.
Moreover,

the

ALJ

noted

that

Plaintiff

showed

consistent

improvement with treatment and there was a lack of objective evidence
suggestive of back pain other than an x-ray of the lumbosacral spine

23

showing

degenerative

spondylosis.

The

ALJ

considered

Plaintiff's

activities of daily living; that he cooked, shopped intermittently,
attended to personal care independently, and socialized with friends.
Plaintiff

appeared

in

no

distress

exhibiting

a

normal

gait

and

stance, walked on heels with little difficulty and required no help
getting on or off the examination table.

Nurse Practitioner Gonzalez

noted Plaintiff being able to move his upper and lower extremities
without

difficulty,

changed

positions

from

sitting

to

standing

without difficulty and having muscle strength in his upper and lower
extremities.

The ALJ noted that Dr. Datta's findings of a mostly

normal gait, negative straight leg raising, and finding a full range
of motion in Plaintiff's shoulders, elbows, forearms, wrists, hips,
knees and ankles were all consistent with sedentary work. T. 21. It
is noted that, although the ALJ did not give weight to Dr. Povanda's
opinion, Dr. Povanda's own finding that Plaintiff could lift and
carry up to 20 pounds occasionally and ten pounds frequently is
actually less restrictive than the ALJ's finding of sedentary work.
I find substantial evidence in the record to support the ALJ finding
of Plaintiff's residual functional capacity.
CONCLUSION
After careful review of the entire record, and for the reasons
stated, this Court finds that the Commissioner's denial of DIB was

24

based on substantial evidence and was not erroneous as a matter of
law. Accordingly, the Commissioner's decision is affirmed. For the
reasons stated above, the Court grants Commissioner's motion for
judgment

on

the

pleadings

(Dkt.

No.

8).

Plaintiff's

motion

for

judgment on the pleadings is denied (Dkt. No. 7), and Plaintiff's
complaint (Dkt. No. 1) is dismissed with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
_____________________
Honorable Michael A. Telesca
United States District Judge

DATED:

October 2, 2013
Rochester, New York

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