Brito v. Colvin

Filing 15

DECISION & ORDER This Court finds that the Commissioner's denial of SSI/DIB was based on substantial evidence and was not erroneous as a matter of law. Accordingly, the ALJ's decision is affirmed. The Commissioner's motion for judgment on the pleadings 11 is granted. Brito's motion for judgment on the pleadings 10 is denied, and Brito's complaint 1 is dismissed with prejudice. Signed by Hon. Marian W. Payson on 3/31/2015. (KAH) -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JAMES CHRISTOPHER BRITO, JR.,
DECISION & ORDER
Plaintiff,
13-CV-6501P
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________

PRELIMINARY STATEMENT
Plaintiff James Christopher Brito, Jr. (“Brito”) brings this action pursuant to
Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final
decision of the Commissioner of Social Security (the “Commissioner”) denying his applications
for Supplemental Security Income and Disability Insurance Benefits (“SSI/DIB”). Pursuant to
28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States
magistrate judge. (Docket # 13).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 10, 11). For the
reasons set forth below, this Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and complies with applicable legal standards. Accordingly,
the Commissioner’s motion for judgment on the pleadings is granted, and Brito’s motion for
judgment on the pleadings is denied.

BACKGROUND
I.

Procedural Background
Brito protectively filed for SSI/DIB on July 15, 2010, alleging disability

beginning on June 7, 2010, as a result of left femur, knee and ankle problems. (Tr. 207,
221-22).1 On November 10, 2010, the Social Security Administration denied both of Brito’s
claims for benefits, finding that he was not disabled.2 (Tr. 104-05). Brito requested and was
granted a hearing before Administrative Law Judge Mary Joan McNamara (the “ALJ”).
(Tr. 114-15, 144-48). The ALJ conducted a hearing on November 18, 2011. (Tr. 52-103). Brito
was represented at the hearing by his attorney, Jason Espinosa, Esq. (Tr. 52, 186). In a decision
dated December 30, 2011, the ALJ found that Brito was not disabled and was not entitled to
benefits. (Tr. 36-48).
On July 25, 2013, the Appeals Council denied Brito’s request for review of the
ALJ’s decision. (Tr. 5-11). In the denial, the Appeals Council indicated that it had considered
additional treatment records submitted by Brito, including school records, treatment records from
Strong Internal Medicine, and records from Genesee Mental Health Center, but determined that
the additional records did not provide a basis for changing the ALJ’s decision. (Tr. 6). Brito
commenced this action on September 17, 2013, seeking review of the Commissioner’s decision.
(Docket # 1).

1

The administrative transcript shall be referred to as “Tr. __.”

2

Brito previously applied for and was denied benefits in a decision dated October 13, 2005. (Tr. 222).

2

II.

Relevant Medical Evidence3
A.

Treatment Records
1.

Strong Memorial Hospital – Emergency Department

Treatment notes indicate that Brito presented to the Emergency Department at
Strong Memorial Hospital (“Strong”) on January 4, 2003 with a stab wound in his right posterior
shoulder. (Tr. 266, 277). Surgery was performed on Brito’s shoulder, he was admitted to the
hospital, provided Keflex and Vicodin and ultimately discharged. (Id.).
On March 15, 2008, Brito was evaluated at Strong after an assault. (Tr. 279).
The treatment notes indicate that he had suffered trauma to his head and was intoxicated. (Id.).
Images were taken of Brito’s head and chest. (Tr. 279-80). The head CT demonstrated no
significant intracranial abnormality. (Id.). The chest x-ray demonstrated a bone fragment near
the inferior aspect of the glenoid. (Id.).
2.

University of Rochester Medical Center –Department of Orthopedics

Treatment notes indicate that on January 29, 2005, Brito visited Strong’s
Emergency Department complaining of pain in his left ankle after slipping on ice. (Tr. 315-16).
He reported that he was able to bear weight and ambulate after his fall, but was experiencing
persistent ankle pain. (Id.). Brito was evaluated by John P. Goldblatt (“Goldblatt”), MD, who
opined that radiographs of the ankle demonstrated an oblique spiral-type proximal fibula
fracture. (Id.). Goldblatt placed Brito’s ankle in a splint and recommended that he return for
syndesmosis screw fixation surgery to repair his ankle. (Id.).
Treatment notes indicate that on February 1, 2005, Michael Maloney
(“Maloney”), MD, a surgeon in the Orthopedics Department of the University of Rochester

3

Those portions of the treatment records that are relevant to this decision are recounted herein.

3

Medical Center (“URMC”) performed surgery on Brito. (Tr. 317). According to the treatment
notes, surgery was recommended based upon a preoperative diagnosis of a fibula fracture. (Id.).
On February 17, 2005, Brito attended a post-operative appointment with
Goldblatt. (Tr. 313-14). Upon examination, Goldblatt noted that Brito did not appear to be in
acute distress and that his cast demonstrated a moderate amount of wear on the bottom despite
the fact that he had been advised to avoid bearing weight with that leg. (Id.). Goldblatt opined
that Brito’s wounds were clean, dry and minimally tender with mild swelling at the surgical
wound site. (Id.). Goldblatt reviewed x-rays taken of his ankle and indicated that they
demonstrated that the two ankle screws were intact with a symmetric left ankle mortise. (Id.).
According to Goldblatt, the x-rays demonstrated that the proximal fibula fracture had not
changed in alignment. (Id.).
Goldblatt placed a leg cast on Brito’s left leg and instructed him to forego any
weight-bearing on his left leg. (Id.). Goldblatt indicated that he should be excused from work
until he was out of his cast and able to bear weight. (Id.).
Brito was seen again by Goldblatt on April 7, 2005. (Tr. 311-12). Goldblatt
recounted Brito’s medical history, indicating that he had undergone surgery for a syndesmotic
injury of the left ankle and an associated high fibula fracture. (Id.). Goldblatt removed his cast
and opined that his incisions were clean, dry and intact. (Id.). According to Goldblatt, there was
mild tenderness over the incision site, but no tenderness over the proximal fibula fracture and no
significant swelling. (Id.). A neurological examination of the left lower extremity was normal.
(Id.). Goldblatt reviewed x-rays taken that day and opined that the position of the screws had not
changed and the mortise appeared acceptable. (Id.). Additionally, Goldblatt noted evidence of
healing of the proximal fibula fracture. (Id.).

4

Goldblatt opined that the proximal fibula fracture was healed, and he transitioned
Brito into a high-tied walking boot and recommended progressive weight-bearing as tolerated.
(Id.). Goldblatt recommended a follow-up appointment in three weeks. (Id.). According to
Goldblatt, if Brito were able to ambulate without crutches at that time, Goldblatt would consider
transitioning him to a lace-up ankle brace and would discuss his return to work. (Id.).
Brito returned for an appointment with Goldblatt on April 28, 2005. (Tr. 309-10).
According to Goldblatt, Brito complained of tenderness to palpation over the skin where the
screws had been placed and over his ankle lateral malleolus distally. (Id.). He reported pain
upon bearing weight and noted that he had not attempted to bear weight without the brace. (Id.).
Upon examination, Goldblatt noted no swelling, but significant tenderness to very light touch
over the skin. (Id.). According to Goldblatt, Brito’s motor and sensory examinations were
within normal limits. (Id.).
Goldblatt reviewed a contemporaneous x-ray of Brito’s ankle, which
demonstrated that the mortise was intact and that the screws had not moved. (Id.). Goldblatt
recommended that Brito continue to bear weight using the fracture walker boot and attend
physical therapy. (Id.). Goldblatt expressed concern that Brito was at risk for developing an
early reflex sympathetic dystrophy-type phenomenon and recommended that he frequently rub
the area. (Id.).
On June 9, 2005, Brito had another appointment with Goldblatt. (Tr. 307-08).
Brito reported that he had been bearing weight on his left leg in his fracture boot and continued
to experience pain along the lateral ankle over the screw heads. (Id.). Upon examination,
Goldblatt noted that Brito did not appear to be in acute distress and that his left lower extremity
appeared benign with no significant swelling or malleoli over the percutaneous pin sites. (Id.).

5

According to Goldblatt, there was no pain with dorsiflexion and plantar flexion of the ankle.
(Id.). Goldblatt opined that the ankle was stable and that Brito was neurovascularly intact. (Id.).
According to Goldblatt, the hypersensitivity of Brito’s skin was in a diffuse area around the
lateral malleoli. (Id.). X-rays revealed that the screws were intact and did not appear to have
moved. (Id.).
Goldblatt cleared Brito to bear weight as tolerated and instructed him to wean
himself from the fracture boot. (Id.). Goldblatt completed disability forms indicating that Brito
continued to be disabled with restrictions until his next appointment. (Id.). Goldblatt prescribed
physical therapy to assist with weight-bearing. (Id.). Goldblatt noted that, from an orthopedic
standpoint, Brito was stable and he would consider referring Brito to a pain clinic if the pain
persisted. (Id.).
On July 21, 2005, Brito returned for a follow-up appointment and was seen by
Lucien M. Rouse (“Rouse”). (Tr. 305-06). He reported that he continued to bear weight on his
left leg as tolerated and continued to intermittently wear the fracture walking boot. (Id.). Brito
complained of “excruciating pain” directly along the lateral ankle, over the screw heads, but
reported that the pain had somewhat diminished since his last visit. (Id.). Upon examination,
Rouse noted that the incisions on Brito’s left leg appeared benign without swelling or erythema.
(Id.). Brito continued to demonstrate tenderness over the screw sites, but had no pain upon
flexion and was neurovascularly intact. (Id.).
Rouse cleared Brito to return to work but restricted his standing and walking to
approximately eight hours. (Id.). Rouse also provided him with a prescription for physical
therapy and instructed him to follow-up in six weeks. (Id.). Rouse informed Brito that if his
pain did not subside by his next appointment, he would be referred to the pain clinic. (Id.).

6

Rouse also discussed the option of removing the ankle screws if Brito’s pain did not resolve.
(Id.).
3.

Strong Internal Medicine

On November 4, 2010, Brito attended an appointment with Matthew Wolfe
(“Wolfe”), MD, a resident in Strong’s Internal Practice Department.4 (Tr. 459-60). According
to the treatment notes, the purpose of the appointment was to establish primary care for Brito,
who reported that he had not been treated by a primary care physician for the past five years.
(Id.). Brito complained of worsening leg and knee pain. (Id.). He reported that his knee pain
was worse with activity, particularly ascending stairs. (Id.). He also reported minimal right hip
pain. (Id.). According to Brito, he obtained minor relief through the use of acetaminophen and
ibuprofen. (Id.). Brito reported that he was unemployed and attending an alcohol abuse
program. (Id.). Upon examination, Wolfe noted no clubbing, cyanosis or edema in Brito’s
extremities and assessed no crepitus, effusion or erythema in Brito’s knees, although he noted
that the left knee was tender to palpation. (Id.).
Wolfe assessed hypertension, osteoarthritis and alcohol abuse in remission. (Id.).
He prescribed Amlodipine for the hypertension and Meloxicam for Brito’s knee pain, which he
suspected was due to osteoarthritis. (Id.). He also recommended a trial of physical therapy.
(Id.).
Brito attended a follow-up appointment with Wolfe on January 12, 2011.5
(Tr. 461-62). Brito reported that his left leg pain was marginally better since taking Meloxicam,
but that he had not been to physical therapy. (Id.). He reported that he experienced most of his
4

The notes suggest that Brito was evaluated by Wolfe, who then consulted with his supervising attending
physician, Eric Richard, MD, who concurred with the assessment. (Id.).
5

The notes suggest that Brito was evaluated by Wolfe, who then consulted with his supervising attending
physician, Pricilla Martin, MD, who concurred with the assessment. (Id.).

7

pain in his left leg and bilateral knees during ambulation. (Id.). Brito requested a referral to
Genesee Mental Health Center (“GMHC”). (Id.). He reported that he had previously received
treatment there and wanted to return. (Id.).
Upon examination, Wolfe noted no clubbing, cyanosis or edema in Brito’s
extremities and assessed no effusion or erythema in Brito’s knees, although he noted crepitus in
his knees bilaterally with flexion and extension. (Id.). Wolfe increased the Meloxicam dosage
and recommended physical therapy and acetaminophen as needed. (Id.). Wolfe indicated that he
would consider an orthopedic referral if Brito’s pain did not improve with medication and
physical therapy. (Id.). Wolfe opined that Brito’s hypertension was better controlled and
recommended a weight loss program. (Id.).
On March 17, 2011, Brito returned for another appointment with Wolfe.6
(Tr. 463-64). Brito reported that he had been receiving treatment at GMHC and attending AA
and was happy with his progress. (Id.). He anticipated starting a medication regimen prescribed
by GMHC to address his depression and assist his sleep. (Id.). He also reported continued left
hip and ankle pain. (Id.). He had not attended physical therapy, but had been exercising at the
YMCA, including swimming in the pool. (Id.).
Wolfe opined that Brito’s hypertension was controlled and recommended that
Brito continue to receive treatment at GMHC and to attend AA. (Id.). With respect to Brito’s
osteoarthritis, Wolfe recommended weight loss, physical therapy and continued exercise. (Id.).
Wolfe increased the Meloxicam dosage and provided him with stronger acetaminophen to use as
needed. (Id.).

6

The notes suggest that Brito was evaluated by Wolfe, who then consulted with his supervising attending
physician, Eric Richard, MD, who concurred with the assessment. (Id.).

8

Brito returned for a follow-up appointment with Wolfe on May 12, 2011.7
(Tr. 465-66). Brito reported that he was exercising more regularly, continued to go to the gym
and was using his bicycle for transportation. (Id.). He continued to attend AA and had not
consumed alcohol, and his behavioral counseling was helpful. (Id.). He reported continued knee
pain and requested additional medication. (Id.). Brito indicated that he had not attended
physical therapy. (Id.). Wolfe noted that Brito’s hypertension was uncontrolled and increased
the Amlodipine dosage. (Id.). He encouraged Brito to continue his efforts to lose weight, attend
physical therapy and continue his current pain medication regimen. (Id.).
On October 20, 2011, Brito attended an appointment with Christopher
Montgomery (“Montgomery”), MD, at Strong.8 (Tr. 467-68). Brito reported that he continued
to attend AA meetings twice a week and to abstain from alcohol. (Id.). He anticipated attending
an occupational rehabilitation program and continuing to receive behavioral health treatment.
(Id.). Brito continued to experience leg pain and was taking Nambutone daily and sometimes
used Tylenol. (Id.).
Montgomery opined that Brito’s hypertension was well-controlled. (Id.).
Montgomery recommended that he continue with his current pain medication regimen and
encouraged him to participate in an active lifestyle and to lose weight. (Id.). Brito reported that
he was compliant with his blood-pressure regimen and that he rode his bicycle regularly and
maintained a healthy diet. (Id.).

7

The notes suggest that Brito was evaluated by Wolfe, who then consulted with his supervising attending
physician, Eric Richard, MD, who concurred with the assessment. (Id.).
8

The notes suggest that Brito was evaluated by Montgomery, who then consulted with his supervising
attending physician, Marc Berliant, MD, who concurred with the assessment. (Id.).

9

4.

Strong Recovery Chemical Dependency

Treatment records indicate that Brito attended an intake assessment at Strong
Recovery Chemical Dependency (“Strong Recovery”) on August 4, 2010. (Tr. 449-55). The
records suggest that Brito met with Karen Hospers (“Hospers”), MS, CASAC, and Gloria
Baciewicz (“Baciewicz”), MD. (Id.). Brito was on probation for a 2004 DWI charge and had
previously completed outpatient treatment in 2006, following which he had abstained for six
months from the use of any mood-altering substances. (Id.). Brito was doing well on probation,
but reported relapsing to alcohol use when “things go wrong.” (Id.). Brito reported that his
alcohol consumption had recently increased due to the death of his mother, and he was seeking
assistance before his drinking got “out of hand.” (Id.).
Brito reported that he lived alone and relied on the Department of Health and
Human Services (“DHS”) for financial support, noting that DHS encouraged him to apply for
SSI/DIB benefits due to his leg problems. (Id.). Brito was married in 2007, but separated in
2008 and was not currently in a significant relationship. (Id.). Brito reported that he spent his
days riding his bicycle and staying in his house. (Id.). Brito reported that he was placed in foster
care as a child due to his mother’s physical abuse. (Id.). Brito’s mother died in April 2010, and
his nephew was shot and killed in July 2010. (Id.).
Brito reported that he had completed the twelfth grade and was unemployed.
(Id.). His last employment was in an automobile repair shop, but he was terminated due to his
inability to perform at the required pace. (Id.). According to Brito, he was unable to maintain
pace due to his leg problems. (Id.). He continued to experience pain in his leg after he broke his
ankle and femur during a fall in 2005. (Id.). According to Brito, he began consuming alcohol as

10

a teenager and continues to drink during hard times. (Id.). Brito reported that he currently was
drinking approximately six wine coolers a day. (Id.).
Upon examination, Brito presented as well-groomed with direct eye contact,
normal speech, cooperative attitude, intact thought processes, normal perception, full orientation,
good concentration, intact memory, average intelligence, moderately-impaired judgment and
poor impulse control. (Id.). Brito was diagnosed as having alcohol dependence with
physiological dependence and was assessed a Global Assessment of Functioning (“GAF”) of 55.
(Id.). He was referred to an intensive treatment program at Strong Recovery, and inpatient
treatment was determined to be unnecessary. (Id.).
On August 10, 2010, Brito attended an admission session at Strong Recovery.
(Tr. 456). On October 6, 2010, Brito was discharged from the program. (Tr. 457-58). The
treatment notes indicate that Brito met with his primary therapist for an initial session on August
24, 2010 and began intensive group treatment on August 30, 2010. (Id.). He attended the
following two sessions, but cancelled two consecutive sessions thereafter. (Id.). According to
the notes, Brito’s therapist cautioned him about his absences. (Id.). Brito continued to deny the
extent of his alcohol use and resisted change. (Id.). Brito attended some additional sessions, but
missed four consecutive sessions between September 27, 2010 and October 4, 2010. (Id.). He
was thereafter discharged from treatment, and the notes reflect that he achieved none of his
treatment goals as a result of his non-compliance with program rules. (Id.).
5.

Restart Substance Abuse Services

On October 18, 2010, Brito was referred for outpatient services at Restart
Substance Abuse Services (“Restart”). (Tr. 477). Brito reported that he was legally obligated to
complete a substance treatment program by his probation officer and DHS. (Id.). Brito had

11

recently been enrolled in the Strong Recovery outpatient program but had been discharged due to
absences. (Id.). According to Brito, he had been absent because he needed to care for his ill
wife. (Id.). The treatment notes indicate that Brito was forty-four years old and married. (Id.).
Brito reported that he had previously completed an outpatient rehabilitation program in 2008 but
had later relapsed. (Id.).
Brito denied mental health issues and indicated that he was motivated to become
sober and explore a healthier way of living. (Id.). He was admitted into treatment and scheduled
for a medical screen on October 27, 2010. (Id.).
Brito’s treatment progress was evaluated on September 20, 2011. (Tr. 470-76).
The review notes indicate that Brito had successfully refrained from consuming alcohol since
December 2010. Brito reported that his relationship with his wife had improved, he had
established a primary care physician and he continued to receive mental health treatment through
GMHC. (Id.).
6.

GMHC

Treatment records indicate that Brito attended a pre-admission screening at
GMHC on February 7, 2011. (Tr. 397-99). Brito reported that he lived alone, was unemployed
and had lost his previous job at an automotive repair shop because he was not able to perform the
physical requirements of the job due to pain in his ankle, hip and knees. (Id.). His mother and
nephew had recently passed away, and he reported increased symptoms of depression, which
caused him to consume more alcohol. (Id.). He reported that he was currently attending
substance abuse treatment at Restart approximately three times a week. (Id.). Brito reported a
history of alcohol abuse and stated that he had last consumed alcohol the previous day. (Id.). He
also reported that he was financially dependent on DHS and had applied for SSI/DIB. (Id.).

12

In February and March 2011, Brito completed the pre-admission screening
process at GMHC after meeting twice with his primary therapist, Amanda Rudd (“Rudd”),
LMSW. (Tr. 400-08). During those appointments, Brito complained of negative ruminations,
headaches and sleeplessness, and Rudd noted that he demonstrated racing thoughts, negative
ruminations and a depressed mood. (Id.). Brito reported that he had difficulty sleeping due to
racing thoughts and physical pain. (Id.). The treatment notes also note that Brito was “coming
here to strengthen [his] [SSI/DIB] application.” (Id.).
Brito had been separated from his wife for the past three years. (Id.). He reported
that he had been enrolled in special education classes during high school and had obtained his
GED when he was incarcerated at the age of eighteen. (Id.). Brito reportedly enjoyed riding his
bicycle, “doing physical things” and caring for his dog. (Id.). Brito reported a lengthy work
history, including his most recent employment at an automotive repair shop. (Id.). The position
was obtained through a temporary agency and lasted only four months. (Id.). He stated that
because of his physical impairments, he was only able to work odd jobs and could not maintain
consistent employment. (Id.).
Upon examination, Brito presented as well-groomed and cooperative, with slow
speech, organized thought processes, goal-directed thought content, depressed mood, flat affect,
full orientation, intact memory, good insight, fair judgment, good concentration and fair impulse
control. (Id.). Rudd diagnosed Brito with adjustment disorder with depression, alcohol abuse
and bereavement, and assessed a GAF of 58. (Id.). Brito was admitted into treatment and
attended another session with Rudd on March 30, 2011. (Id.). During that appointment, Brito
reported trouble sleeping and increased stress. (Id.).

13

On April 4, 2011, Brito met with Lewis Mehi-Madrona (“Madrona”), MD, for a
medication evaluation. (Tr. 410-11). Brito reported a history of high blood pressure, arthritis,
chronic pain, trouble sleeping and sometimes hearing “things.” (Id.). He requested medication
to aid his sleep. (Id.). Madrona prescribed Mirtazapine (Remeron). (Id.). Later that month, on
April 18, 2011, Brito attended a medication evaluation with Monika Quistorf (“Quistorf”), a
nurse practitioner. (Id.). Brito reported that Remeron had provided relief. (Id.). He also denied
depressive symptoms and reported that his sleep was somewhat improved. (Id.). Brito missed
an appointment with Rudd on April 21, 2011. (Tr. 417).
In May 2011, Brito attended two appointments with Rudd. (Tr. 418, 420).
During those appointments, Brito continued to exhibit depressed mood, racing thoughts and
negative ruminations. (Id.). Despite this, Rudd indicated that he was calm, cooperative, and
demonstrated good eye contact, logical and goal-directed thoughts, appropriate affect, fair
insight, intact memory and full orientation. (Id.). He reported that his sleep had improved and
he continued to make progress in substance abuse treatment. (Id.). According to Brito, he had
abstained from alcohol consumption since April 22, 2011. (Id.).
Later that month, on May 27, 2011, Brito attended an appointment with Madrona
for review of his medications. (Tr. 421-24). Madrona indicated that he would be leaving
GMHC and that his care would be transferred to another physician. (Id.). Upon examination,
Brito was alert, cooperative, and demonstrated clear speech, logical thoughts, euthymic mood
and affect, full orientation, intact memory, fair insight and good judgment. (Id.). Madrona
increased the Mirtazapine dosage and recommended a follow-up appointment in four weeks.
(Id.).

14

During June 2011, Brito met with Rudd and Quistorf. (Tr. 425-36). Rudd
indicated that Brito continued to progress in his substance abuse treatment program, although he
also continued to demonstrate low mood and grief processing. (Id.). Brito reported to Quistorf
that he was not sleeping well and that he experienced mild depressive symptoms. (Id.). Quistorf
discontinued Remeron and prescribed Oleptro to help with sleep and depression. (Id.).
On July 20, 2011, Brito attended a therapy session with Rudd. (Tr. 427). During
the session, Brito reported racing thoughts and negative ruminations. (Id.). He indicated that his
medications were working and that he was sleeping better. (Id.). He had negative thoughts
concerning an upcoming court date, along with several stressors, including thoughts of his
mother, his SSI/DIB appeal and health issues. (Id.). Brito met with Saleem Ismail (“Ismail”),
MD, on July 26, 2011 for a medication review. (Tr. 428). He reported improved sleep and that
he spent his days attending substance abuse treatment, riding his bicycle and walking his dog.
(Id.). Ismail increased his Oleptro dosage. (Id.).
During August 2011, Brito met with Rudd for two therapy sessions and with
Quistorf once for a medication review. (Tr. 429-31). According to Rudd, Brito continued to
process his grief, experience low moods and have negative ruminations. (Id.). He was
scheduled to finish his substance abuse group therapy that month and was planning to follow-up
with VESID. (Id.). Rudd also encouraged Brito to consider attending the PROS program and
grief groups. (Id.). Brito told Quistorf that he was feeling less depressed and had been sleeping
better. (Id.). Quistorf continued his prescription for Oleptro. (Id.).
During September and October 2011, Brito met with Rudd twice and with Ismail
once. (Tr. 432, 548-49). Brito continued to report racing thoughts and increased stress. (Id.).
Rudd noted that Brito was well-groomed, cooperative and demonstrated good eye contact,

15

appropriate behavior, appropriate speech, logical and goal-directed thought processes,
appropriate affect, fair to good insight, appropriate judgment, full orientation and intact memory.
(Id.). Brito reported increased feelings of depression because a friend had passed away from
drinking. (Id.). Additionally, he continued to feel stress about probation and an upcoming
SSI/DIB hearing. (Id.). Brito told Ismail that he was sleeping better and that he was not feeling
as depressed. (Id.). He spent his days attending AA meetings, riding his bicycle and watching
movies. (Id.). Ismail increased his Oleptro dosage. (Id.).
During November 2011, Brito attended two therapy sessions with Rudd.
(Tr. 550-51). Brito continued to complain of low mood, ruminating thoughts and pain, and
explained that he was struggling with his mood due to the recent loss of a friend and the
upcoming holidays without his mother. (Id.). Rudd noted Brito’s depressed mood and negative
ruminations, but otherwise found him to be cooperative and well-groomed, with appropriate eye
contact, behavior, judgment, affect and speech, goal-directed thoughts, full orientation, fair
insight, intact memory and full orientation. (Id.). Rudd indicated that she had completed
paperwork for Brito’s SSI/DIB proceedings. (Id.).
During January 2012, Brito attended two therapy sessions with Rudd and attended
two medication evaluations. (Tr. 52-55). Brito began the month with positive feelings, noting
that he had finished probation and was continuing to work on his sobriety, but later presented
with a low mood, anger and negative ruminations, explaining that he had some issues since his
last visit. (Id.). Brito told Ismail that he had negative feelings over his inability to obtain work
due to his lack of a high school diploma and his ongoing physical impairments and the
insufficiency of his financial support. (Id.). Additionally, Brito reported that he was frustrated
by the denial of his application for SSI/DIB, but planned to appeal. (Id.). By the end of the

16

month, Quistorf described Brito as only “mildly depressed,” although he continued to express
anger concerning the SSI/DIB determination. (Id.).
During February and March 2012, Brito attended three therapy sessions with
Rudd. (Tr. 556-58). Initially, Brito continued to demonstrate low mood, increased stress and
negative ruminations. (Id.). Despite his low mood, he planned to attend a workshop for job
readiness through the Recovery Network. (Id.). He subsequently reported feeling better and
attributed his positive mood to his plans to attend the workshop twenty hours a week and his
physical therapy at the YMCA pool. (Id.).
During April 2012, Brito attended a therapy session with Rudd and a medication
evaluation appointment with Ismail. (Tr. 559-60). Brito reported to Rudd that things were
“[g]oing great, can’t complain.” (Id.). He was complying with his medication regimen and
attending the workshop through the Recovery Network. (Id.). He continued to experience
ongoing pain in his leg and was appealing the negative SSI/DIB determination. (Id.). Brito told
Ismail that he had run out of his medications, but they were helping him, and he was no longer
depressed and was sleeping more. (Id.). Ismail continued his Oleptro and Cymbalta
prescriptions. (Id.).
In May 2012, Brito attended a therapy session with Rudd and a session with
Patricia Wyjad (“Wyjad”), LMSW, who had replaced Rudd during a leave of absence.
(Tr. 561-64). During the sessions, Brito demonstrated low moods, racing thoughts and worry.
(Id.). He reported that his step-father had recently passed away and he was feeling mildly
distressed. (Id.). He continued to attend the workshop through the Recovery Network and hoped
to return to work, although he continued to pursue SSI/DIB. (Id.).

17

During June and July 2012, Brito met with Wyjad and Ismail each once.
(Tr. 565-67). Brito told Wyjad that his depressive symptoms were stable, although he was
experiencing some anxiety. (Id.). He was frustrated because he was unable to work due to his
physical limitations, and Wyjad encouraged him to attend VESID for vocational assistance.
(Id.). He reported a brief depressive episode arising from the loss of his mother, but reported that
he had spent time with his wife, which had had a positive effect. (Id.). Brito also reported that
he had recently been charged with drug possession. (Id.). Brito told Ismail that he was not
experiencing any depression, and Ismail continued his prescriptions for Oleptro and Cymbalta.
(Id.).
On August 15, 2012, Brito attended another appointment with Wyjad. (Tr. 568).
According to Brito, his recent charge for drug possession had exacerbated his depressive
symptoms, but he continued to attend his workshop and physical therapy. (Id.). After that
session, Brito’s care was transferred back to Rudd. (Tr. 569). Wyjad indicated to Rudd that
Brito’s symptoms remained stable “overall” and that he had been sentenced to ten weekends in
jail for the possession charge. (Id.).
Brito attended two therapy sessions with Rudd during September and October
2012. (Tr. 570-71). He continued to demonstrate depressed mood and ruminating thoughts.
(Id.). Despite his low mood, Brito continued to work on his SSI/DIB appeal, attend the
Recovery Network workshop, stay sober and take his medications. (Id.).
On November 6, 2012, Brito attended a therapy session with Rudd. (Tr. 572).
According to Rudd, although he continued to have ruminating thoughts, he also continued to
work positively and to refocus himself. (Id.). Later that month, Brito attended a medication
evaluation appointment with JoAnn Strub (“Strub”), a nurse practitioner. (Tr. 573). He reported

18

doing well and that his medications were helping him “greatly,” but that the upcoming holidays
were making him feel somewhat down because his mother had died during the holiday season.
(Id.).
B.

Medical Opinion Evidence
1.

Samuel Balderman, MD

On September 8, 2010, state examiner Samuel Balderman (“Balderman”), MD,
conducted a consultative internal medicine examination of Brito. (Tr. 333-38). Brito reported
intermittent, moderate, sharp pain in his left ankle since his 2005 surgery. (Id.). Medications
provided partial relief for his pain. (Id.). Brito also reported that he was attending an alcohol
rehabilitation program two to three times a week. (Id.). Brito reported that he had last worked in
July 2010 at an automobile repair shop. (Id.). According to Brito, he was able to cook and
clean, care for his personal hygiene and enjoyed watching television, listening to the radio and
reading. (Id.).
Upon examination, Balderman noted that Brito did not appear to be in acute
distress and had a slight limp that favored his left side. (Id.). Brito was able to walk on his
heels, but not his toes and could squat fully. (Id.). He used no assistive devices and had no
difficulty getting on and off the exam table and changing for the exam. (Id.). He was able to rise
from his chair without difficulty. (Id.).
Balderman noted that Brito’s cervical and lumbar spine showed full flexion,
extension, lateral flexion bilaterally and full rotary movement bilaterally. (Id.). Balderman
identified no scoliosis, kyphosis or abnormality in his thoracic spine. (Id.). The straight leg raise
was negative bilaterally. (Id.). Balderman found full range of motion in the shoulders, elbows,
forearms and wrists. (Id.). He also found full range of motion in Brito’s hips, knees and ankles

19

bilaterally. (Id.). Balderman noted mild tenderness of the left ankle but no redness, heat,
swelling or effusion. (Id.). Balderman assessed strength as five out of five in the upper and
lower extremities with no sensory deficits or evidence of atrophy. (Id.). Balderman found
Brito’s hand and finger dexterity to be intact and his grip strength to be five out of five
bilaterally. (Id.). Balderman also reviewed an x-ray of Brito’s left leg that indicated a healed or
healing nondisplaced fracture of the proximal fibular shaft, but was otherwise unremarkable.
(Id.). He also reviewed an x-ray of Brito’s left ankle that demonstrated two orthopedic screws
with postsurgical or posttraumatic calcification at the tibiofibular syndesmosis, but was
otherwise unremarkable. (Id.).
Balderman diagnosed Brito with a history of alcohol and marijuana abuse and
status post left ankle fracture. (Id.). He opined that Brito’s prognosis was stable and that he had
mild limitations for climbing and prolonged walking due to the old left ankle fracture. (Id.). He
noted that the x-ray of the left ankle should be reviewed. (Id.).
2.

Adele Jones, PhD

On October 19, 2010, state examiner Adele Jones (“Jones”), PhD, conducted a
consultative psychiatric evaluation of Brito. (Tr. 339-43). Brito reported that he took a bus to
the examination. (Id.). Brito also reported that he had completed the tenth grade and had been in
special education classes after eighth grade for a learning disability in reading and math. (Id.).
Brito had been employed most recently in May 2010 at a temporary job unloading tractor
trailers. (Id.). He had held that job on and off for approximately six months before being laid
off. (Id.). He reported previous employment as a janitor and indicated that he had once been
fired due to alcohol use. (Id.).

20

According to Brito, he had been hospitalized in 2004 for two days for
detoxification and was not currently receiving mental health treatment. (Id.). He reported pain
in his knee and ankle since having surgery after he fell on ice. (Id.). Brito reported waking
during the night and loss of appetite. (Id.). During the evaluation, he reported feeling both
“pretty good” and always depressed. (Id.). He explained that he had experienced three losses
that year – the deaths of this mother and nephew, and the loss of his job. (Id.). He described
feeling down for hours at a time, and experiencing crying episodes, increased irritability,
chronically diminished self-esteem and occasional diminished sense of pleasure. (Id.). He
reported fleeting thoughts of suicide but no history of attempts, and intoxication-related
hallucinations. (Id.). He reported short and long term memory deficits, concentration difficulties
and chronic difficulty learning new material. (Id.).
Brito reported a fifteen-year history of alcohol consumption and that he had last
used alcohol two days prior to the evaluation. (Id.). His longest period of sobriety had been five
months and he was scheduled to begin a substance abuse treatment program the following week.
(Id.).
Brito reported that he had been living with his sister for the previous four months.
(Id.). He was able to care for his personal hygiene, but his sister performed all the cooking and
household chores. (Id.). According to Brito, his sister did not permit him to use the stove
because he had previously left it on when intoxicated. (Id.). Additionally, his sister did not
permit him to use her cleaning supplies and appliances. (Id.). Brito had previously mismanaged
his money by spending it on alcohol. (Id.). He reported that he no longer drove, but was able to
use public transportation. (Id.). He indicated that he gets along well with his family and friends.

21

(Id.). His hobbies include bicycling and making plastic models. (Id.). He used to play
basketball, but has not played since his 2005 surgery. (Id.).
Upon examination, Jones noted that Brito appeared casually dressed and
groomed. (Id.). Jones opined that Brito had fluent and clear speech with adequate language,
coherent and goal-directed thought processes, full range affect, neutral mood, clear sensorium,
full orientation, fair insight, fair judgment and low average intellectual functioning with a
somewhat limited general fund of information. (Id.). Jones noted that Brito’s attention and
concentration were intact. (Id.). According to Jones, Brito could count, perform simple
calculations and complete the serial threes, although he made some mistakes. Jones opined that
Brito’s mistakes owed to his limited education and history of a learning disability. (Id.). Brito’s
memory skills were mildly impaired likely due to his low intellectual functioning. (Id.).
According to Jones, Brito could recall three objects immediately, two out of three objects after
five minutes and could complete seven digits forward and three digits backward. (Id.).
According to Jones, Brito could follow and understand simple directions and
instructions, perform simple and complex tasks independently, maintain attention and
concentration, maintain a regular schedule and learn new tasks, make appropriate decisions, and
relate adequately with others. (Id.). Jones opined that Brito had chronic problems learning new
tasks and that he was unable to appropriately deal with stress, “as he only does so by drinking.”
(Id.). According to Jones, Brito appeared to suffer from psychiatric and substance abuse
problems, although they did not appear to interfere with his ability to function on a daily basis.
(Id.). Jones opined that Brito’s prognosis was good given treatment and sobriety. (Id.).

22

3.

L. Blackwell, Psychology

On November 1, 2010, agency medical consultant L. Blackwell (“Blackwell”),
MD, completed a Psychiatric Review Technique. (Tr. 356-69). Blackwell concluded that
Brito’s mental impairments did not meet or equal a listed impairment. (Tr. 356, 359, 364).
According to Blackwell, Brito suffered from mild limitations in his activities of daily living and
ability to maintain social functioning, and moderate limitations in his ability to maintain
concentration, persistence or pace. (Tr. 366). According to Blackwell, Brito had not suffered
from repeated episodes of deterioration. (Id.). Blackwell completed a mental Residual
Functional Capacity (“RFC”) assessment. (Tr. 370-73). Blackwell opined that Brito suffered
from moderate limitations in his ability to perform activities on a schedule, maintain regular
attendance and be punctual within customary tolerances, complete a normal workday and
workweek without interruptions from psychologically-based symptoms, and to perform at a
consistent pace without an unreasonable number and length of rest periods. (Tr. 371).
In support of her assessment, Blackwell reviewed Brito’s school records and the
consultative examination performed by Jones. (Tr. 371-72). Blackwell opined that Brito
appeared able to sustain employment, but that his level of alcohol use might cause moderate
limitations in his ability to sustain a regular schedule and complete a normal workday. (Id.).
4.

Montgomery’s Opinion

On October 27, 2011, Montgomery completed a medical source statement
regarding Brito’s physical ability to perform work-related activities. (Tr. 438-43). Montgomery
opined that Brito was able frequently9 to carry up to twenty pounds and occasionally10 to carry
up to one hundred pounds. (Id.). He further opined that Brito could sit for up to four hours at a
9

10

“Frequently” was defined as “one-third to two-thirds of the time.” (Id.).
“Occasionally” was defined as “very little to one-third of the time.” (Id.).

23

time without interruption and could stand or walk up to one or two hours at a time without
interruption.11 (Id.). According to Montgomery, Brito was able to sit for up to six hours, stand
for up to four hours, and walk for up to four hours during an eight-hour workday. (Id.).
Montgomery opined that Brito did not need a cane to ambulate. (Id.).
According to Montgomery, Brito could frequently reach, handle, finger, feel,
push, pull, operate foot controls, and balance. (Id.). He could occasionally stoop, kneel, crouch,
crawl, and climb stairs, ramps, ladders or scaffolds. (Id.). Additionally, Brito could frequently
be exposed to unprotected heights, moving mechanical parts, humidity, wetness and vibrations.
(Id.). Montgomery opined that Brito could occasionally be exposed to extreme cold or heat and
could tolerate moderate noise in the workplace. (Id.). Montgomery also completed a medical
source statement regarding Brito’s mental ability to perform work-related functions and opined
that Brito did not suffer from any mental limitations. (Tr. 445-47).
5.

Rudd’s Opinion

On November 10, 2011, Rudd completed a medical source statement regarding
Brito’s mental ability to do work-related activities. (Tr. 434-36). Rudd opined that Brito
suffered from moderate12 limitations in his ability to understand and remember complex
instructions, mild13 limitations in his ability to make judgments on simple and complex
work-related decisions and carry out complex instructions, and no limitations14 in his ability to
11

The medical source statement is unclear as to whether Montgomery believed Brito was limited to one or
two hours; both boxes were checked on the form, and this Court cannot determine which box was the intended
response and which was checked in error. (Id.).
12

“Moderate” was defined to indicate that there “is more than a slight limitation in this area but the
individual is still able to function satisfactorily.” (Id.).
13

“Mild” was defined to indicate that there “is a slight limitation in this area but the individual can
generally function well.” (Id.).
14

“None [no limitations]” was defined to indicate that limitations were “absent or minimal” or “if
limitations [were] present[,] they are transient and/or expected reactions to psychological stresses.” (Id.).

24

understand, remember and carry out simple instructions. (Id.). According to Rudd, she assessed
these limitations because Brito’s depression affected his ability to concentrate on, and his
motivation to carry out, tasks and roles. (Id.).
Rudd also opined that Brito suffered from moderate limitations in his ability to
respond appropriately to usual work situations and to changes in a routine work setting, and no
limitations in his ability to respond appropriately to the public, supervisors or coworkers. (Id.).
According to Rudd, she assessed moderate limitations in Brito’s ability to respond to usual work
situations and changes in a routine work setting because Brito suffered from “mood instability”
that caused him “difficulty managing routine[s] at times.” (Id.). Additionally, Rudd noted that
some of his medications might have adverse side effects and that his sleep was “strongly
impacted without medication.” (Id.). According to Rudd, Brito also might experience difficulty
talking with others due to his difficulty concentrating. (Id.). Finally Rudd noted that Brito had a
history of alcohol abuse, but had been abstinent for approximately ten months with continuing
symptoms of depression. (Id.).

III.

Non-Medical Evidence
A.

School Records
School records indicate that Brito repeated the third grade once and the eighth

grade twice. (Tr. 259). During the ninth grade, Brito demonstrated poor attendance and was
failing Math, Science and English. (Id.). He was evaluated for special education services that
year by Harold A. Schwarz (“Schwarz”), a certified school psychologist. (Tr. 260). Testing
demonstrated that Brito had a Full Scale Intelligence Quotient of 83. (Tr. 491). Schwarz noted
that Brito had an unstable home life and had been placed in multiple foster homes. (Tr. 259).

25

Schwarz recommended that Brito be classified as “ED” and placed into programming to assist
his performance in school. (Tr. 261).
B.

Application for Benefits
In his application for benefits, Brito reported that he had been born in 1966.

(Tr. 221). He reported that he had completed the twelfth grade in a special education classroom
setting. (Tr. 207-08). According to Brito, he had previously been employed as a forklift
operator, an assembly line worker, a maintenance employee, a painter and a sorter in a junk yard.
(Id.).
Brito reported that he lived in a house by himself. (Tr. 225). He was able to care
for his own personal hygiene and did not take care of other people or pets. (Tr. 226). Brito was
able to prepare his own meals daily and could perform household chores, without assistance,
including watering the grass, painting, laundry and cleaning. (Tr. 227). Brito reported that he
left his house almost every day and used public transportation. (Tr. 228). Brito no longer had a
driver’s license because he owed fines. (Id.). Brito reported that he went shopping monthly for
groceries and clothing. (Id.). Brito was able to handle his own finances. (Tr. 229).
According to Brito, he enjoyed watching television and movies and was no longer
able to play sports. (Id.). He also spent time with others and went to the library once a week.
(Id.). Brito reported that he did not have any problems getting along with others, had no
problems paying attention and could follow written and spoken directions. (Tr. 229, 231). Brito
reported that stress could cause his mood to change and that he sometimes had memory
problems. (Tr. 232).
Brito reported that his physical impairments limited his ability to bend down,
stand, walk, sit, climb stairs, kneel and squat. (Tr. 230). He sometimes used a non-prescribed

26

cane to ambulate when walking distances. (Tr. 231). Brito estimated that he could walk about
two hundred feet before needing to rest for five minutes. (Id.).
Brito reported that he had first begun experiencing ankle and knee pain after he
broke his ankle and femur during an accident. (Tr. 232). He described the pain as a stabbing
ache. (Id.). He reported that he continued to experience daily pain, which was exacerbated by
walking and climbing stairs. (Tr. 233). The pain lasted all day, and he took Tylenol and aspirin
three to four times daily to alleviate the pain. (Id.). According to Brito, the medication relieved
his pain for up to two hours and did not cause any side effects. (Id.). He also used a cane and an
ace bandage to relieve his pain. (Tr. 234).
C.

Administrative Hearing Testimony
During the administrative hearing, Brito testified that he had completed the tenth

grade and had not obtained his GED. (Tr. 62). Brito testified that he had previously worked as a
maintenance worker in 2010. (Tr. 63). Brito worked with his brother-in-law and performed
tasks including plumbing, painting, installing dry wall, and other miscellaneous home repair
tasks. (Id.). He stopped working when the company went out of business. (Tr. 63-64).
According to Brito, his leg started to bother him due to the physical exertions of the job. (Id.).
He was taking Tylenol at that time to manage his pain, and he decided to seek medical treatment.
(Id.).
Brito testified that he had been treated by several different primary care
physicians at Strong. (Tr. 65-66). His doctors told him that his increased weight was adding
pressure on his leg and prescribed medication, including Amlodipine and Meloxicam. (Id.).
They diagnosed arthritis in his hip and in both knees. (Id.). According to Brito, his doctors
advised him to take long walks and, after learning that he experienced leg pain when walking,

27

instructed him to use a cane. (Id.). Brito testified that he walks approximately three times a
week. (Id.).
Brito testified that he attends group recovery therapy twice a week in the
mornings and attends another group therapy program four times a week in the evenings.
(Tr. 69-70). According to Brito, he must attend the evening group therapy in order to maintain
his DHS benefits. (Id.). Brito testified that he used to drink heavily, but stopped drinking in
December 2010, although he admitted he had consumed a wine cooler two days before the
hearing. (Tr. 73-75).
Brito lives with his sister, who does the household cooking, cleaning and laundry
with assistance from her husband. (Tr. 66-67). According to Brito, his sister does not allow him
to help with the chores, but he cleans his own room. (Id.). When the weather is nice, Brito
spends his days exercising his leg or riding his bicycle. (Tr. 72). When it is colder, Brito stays
indoors watching movies or reading. (Tr. 72, 76, 91).
Brito testified that he also receives mental health treatment twice a week at
GMHC. (Tr. 70). Brito was initially prescribed Remeron to assist his sleep, but he was bothered
by “weird” dreams. (Tr. 84). He was subsequently prescribed Oleptro to aid his sleep and
address his depression. (Tr. 75, 77). According to Brito, the Oleptro has improved his sleep, and
he is now able to sleep through the night. (Id.). Brito reported that Oleptro relaxes him and is
more effective than Remeron. (Tr. 84, 90). Brito reported that he experienced bad
hallucinations when intoxicated, and since he has been sober, he sometimes “hear[s] things” like
somebody talking. (Tr. 76, 90).
Brito testified that he experiences increased stress during the holidays because his
mother passed away during the holiday season. (Tr. 80). He also experiences depression.

28

(Tr. 82-83). From time to time, he thinks about negative experiences from his past, especially if
he sees something that triggers a memory. (Tr. 83, 86). These episodes occur approximately
three times a week and cause him to cry for approximately twenty minutes. (Tr. 85-86).
Brito testified that he also suffers from high blood pressure and headaches.
(Tr. 77). According to Brito, he experiences headaches when his blood pressure is too high and
is able to obtain relief by taking his medication and lying down. (Tr. 77-78). Brito testified that
he does not have any problems with his hands, but sometimes experiences pain in his lower back.
(Tr. 79-80). Brito testified that he does not experience any other symptoms or problems.
(Tr. 80). Brito believes that he is unable to work due to its physical demands, including
standing, stooping, walking up and down steps and bending over. (Tr. 92). Brito does not
believe he would be able to perform a job that requires sitting for most of the day because he
would need to alternate between standing and sitting every thirty minutes due to his arthritis.
(Tr. 92-93).
Vocational expert, James R. Newtown (“Newton”), also testified during the
hearing. (Tr. 95-102, 171). The ALJ asked Newton to characterize Brito’s previous
employment. (Tr. 95) According to Newton, Brito previously had been employed as a clean-up
worker, a general laborer and a forklift operator. (Id.).
The ALJ asked Newton whether a person would be able to perform Brito’s
previous jobs who was the same age as Brito, with the same education and vocational profile,
and who was able to perform the full range of light work, who could stand, walk or sit up to six
hours during an eight-hour workday, push and pull without limitation, only occasionally climb
ramps and stairs and never climb ladders ropes or scaffolds, occasionally balance, stoop, kneel,
crouch and crawl, who could understand simple and complex instructions, carry out complex

29

tasks independently, maintain attention and concentration, maintain a regular schedule, relate
appropriately with others, and who should be in a low-stress environment. (Tr. 96). Newton
testified that such an individual would be unable to perform the previously-identified jobs, but
would be able to perform other positions in the national economy, including table worker,
conveyor line baker and gate attendant. (Tr. 96-97).
The ALJ then asked Newton whether jobs would exist for the same individual
with the same limitations, except that the individual would need to be able to sit and stand at
will. (Tr. 97). Newton opined that such an individual could perform the previously-identified
jobs of table worker, conveyor line baker and gate attendant. (Tr. 97-98). The ALJ then asked
Newton whether jobs would exist for the same individual with the same limitations, except that
the individual would be off-task approximately twenty percent or more of the workday. (Tr. 98).
Newton opined that such an individual would not be able to maintain full-time competitive
employment. (Id.). Brito’s attorney then asked Newton whether a similarly-limited individual
who would experience two, unscheduled twenty-minute disruptions during the workday would
be able to maintain competitive employment. (Tr. 101). Newton testified that he would not.
(Id.).

DISCUSSION
I.

Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s

determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether

30

the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).

31

A person is disabled if he or she is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A). When assessing
whether a claimant is disabled, the ALJ must employ a five-step sequential analysis. See Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). The five steps are:
(1)

whether the claimant is currently engaged in substantial
gainful activity;

(2)

if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;

(3)

if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;

(4)

if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform his past work; and

(5)

if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
A.

The ALJ’s Decision
In her decision, the ALJ followed the required five-step analysis for evaluating

disability claims. (Tr. 36-48). Under step one of the process, the ALJ found that Brito had not
32

engaged in substantial gainful activity since June 7, 2010, the alleged onset date. (Tr. 38). At
step two, the ALJ concluded that Brito has the severe impairment of osteoarthritis of the knee.
(Id.). The ALJ determined that Brito’s status post-open reduction and internal fixation in the left
ankle and hypertension were nonsevere. (Id.). Further, the ALJ determined that Brito’s mental
impairments, including alcohol abuse in remission, learning disability and depression, were
nonsevere. (Tr. 39-42). With respect to Brito’s mental impairments, the ALJ found that Brito
suffered from mild limitations in maintaining concentration, persistence and pace, and social
functioning, and in performing activities of daily living. (Id.). At step three, the ALJ determined
that Brito does not have an impairment (or combination of impairments) that meets or medically
equals one of the listed impairments. (Tr. 42). The ALJ concluded that Brito has the RFC to
perform light work, except that he would need a sit/stand option, could only occasionally climb
ramps and stairs, never climb ladders ropes or scaffolds, occasionally balance, stoop, kneel,
crouch and crawl, and that he could follow and understand both simple and complex instructions,
perform complex tasks independently, maintain attention and concentration as necessary,
maintain a regular schedule, relate appropriately with others, but should work in a low-stress
environment. (Id.). Finally, at steps four and five, the ALJ determined that Brito was unable to
perform his previous work, but that other jobs existed in the national and regional economy that
he could perform, including the positions of table worker, conveyor line bakery worker and gate
attendant. (Tr. 46-47). Accordingly, the ALJ found that Brito was not disabled. (Id.).
B.

Brito’s Contentions
Brito contends that the ALJ’s disability RFC determination is not supported by

substantial evidence and is the product of legal error. (Docket # 10-1). First, he contends that
the Appeals Council erred by failing to properly consider GMHC treating records submitted on

33

appeal. (Id. at 12-16). Next, Brito argues that the ALJ mischaracterized the medical evidence.
(Id. at 16-19). Additionally, Brito challenges the physical RFC assessment on the grounds that it
failed to account for limitations assessed by Montgomery and was not otherwise supported by
substantial evidence. (Id. at 19-23). Further, he challenges the mental RFC assessment on the
grounds that it failed to account for Rudd’s opinion and was not supported by substantial
evidence. (Id. at 23-27). Finally, Brito contends that the ALJ’s step five determination was not
based upon substantial evidence because the hypothetical posed to the vocational expert was
based upon a flawed RFC analysis. (Id. at 27-29).

II.

Analysis
A.

Mental RFC Assessment
Brito challenges the ALJ’s determination that his mental impairments were not

severe and the ALJ’s mental RFC assessment. First, Brito contends that the Appeals Council
erred by failing to properly consider the GMHC mental health treatment records submitted on
appeal.15 (Id. at 12-16). Brito also contends that the ALJ failed to assign a specific weight to
Rudd’s opinion and improperly relied upon Jones’s opinion. (Id. at 23-26). Finally, Brito
maintains that the ALJ inaccurately described the medical evidence of record, resulting in error.
(Id. at 16-19).

15

The records submitted to the Appeals Council consisted of GMHC treatment records between September
2011 and November 2012 and comprised seventy-nine pages. (Tr. 500-78). The Appeals Council stated that it
considered the records dated between September 2011 and November 2011, presumably because those records
predate the ALJ’s decision and the remaining records do not. (Tr. 6). Yet, the Appeals Council also stated that it
considered all seventy-nine pages. (Id.). Thus, the record is unclear as to whether the Appeals Council considered
all of the GMHC records submitted on appeal. That ambiguity, however, is immaterial because this Court has
reviewed and considered all of them.

34

1.

GMHC Records

Brito challenges the ALJ’s determination that his mental impairments were not
severe and the mental RFC assessment on the grounds that his mental health treatment records
were not properly evaluated by the Appeals Council.
The regulations require the Appeals Council to consider “new and material”
evidence if “it relates to the period on or before the date of the [ALJ’s] hearing decision.” 20
C.F.R. §§ 404.970(b), 416.1470(b); see Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). The
Appeals Council, after evaluating the entire record, including the newly-submitted evidence,
must “then review the case if it finds that the [ALJ’s] action, findings, or conclusion is contrary
to the weight of evidence currently of record.” 20 C.F.R. §§ 404.970(b), 416.1470(b); Rutkowski
v. Astrue, 368 F. App’x 226, 229 (2d Cir. 2010). If “the Appeals Council denies review after
considering new evidence, the [Commissioner’s] final decision necessarily includes the Appeals
Council’s conclusion that the ALJ’s findings remained correct despite the new evidence.” Perez
v. Chater, 77 F.3d at 45 (internal quotation omitted). The newly-submitted evidence then
becomes part of the administrative record and is subject to review. See id. “The role of the
district court is to review whether the Appeals Council’s action was in conformity with [the]
regulations.” Ahearn v. Astrue, 2010 WL 653712, *4 (N.D.N.Y. 2010) (citing Woodford v.
Apfel, 93 F. Supp. 2d 521, 528 (S.D.N.Y. 2000)).
To require consideration by the Appeals Council, the evidence must be both
“(1) new and not ‘merely cumulative of what is already in the record’ and (2) material, meaning
‘both relevant to the claimant’s condition during the time period for which benefits were denied
and probative.’” Shields v. Astrue, 2012 WL 1865505, *2 (E.D.N.Y. 2012) (quoting Jones v.
Sullivan, 949 F.2d 57, 60 (2d Cir. 1991)). To be material, there must be “a reasonable possibility

35

that the new evidence would have influenced the [Commissioner] to decide claimant’s
application differently.” Jones v. Sullivan, 949 F.2d at 60. “If the Appeals Council fails to
consider new, material evidence, ‘the proper course for the reviewing court is to remand the case
for reconsideration in light of the new evidence.’” Ahearn v. Astrue, 2010 WL 653712 at *4
(quoting Shrack v. Astrue, 608 F. Supp. 2d 297, 302 (D. Conn. 2009)).
I find that the Appeals Council did not err. Having reviewed the entire record, I
conclude that there is no reasonable possibility that the GMHC records would have altered the
ALJ’s decision. The ALJ reviewed records from GMHC reflecting Brito’s treatment between
February and September 2011. (Tr. 51). Those records included Brito’s intake appointments,
therapy sessions treatment notes and reports, and medication evaluations. (Tr. 397-432).
According to the records, Brito commenced mental health treatment to address depressed moods
and trouble sleeping. (Id.). He was provided therapy and medication, which generally improved
his mood and assisted his sleep, although he continued to report some low moods and feelings of
grief. (Id.). The ALJ recounted the treatment notes, recognizing that Brito reported depressive
symptoms due to grief, but that his mental health examinations were otherwise generally
unremarkable. (Tr. 40).
The records submitted by Brito on appeal contain treatment notes from his
continued mental health treatment at GMHC between October 2011 and November 2012.
(Tr. 548-73). As described in detail above, those treatment notes reflect that his mental health
remained stable with treatment, that his sleep improved and that he sometimes experienced
improvement in his depressive symptoms, although he continued to report some symptoms,
including low moods and ruminating thoughts. (Tr. 552-55, 559-60, 565-67, 573). The notes do

36

not suggest that Brito’s mental health deteriorated or that he experienced any new symptoms.
(Id.).
In reaching her step two determination, the ALJ relied upon the GMHC treatment
notes and Rudd’s opinion that demonstrated that Brito suffered from only mild to moderate
mental limitations. (Tr. 40-41). In formulating Brito’s mental RFC assessment, the ALJ also
relied upon Jones’s evaluation that concluded that Brito had the mental capacity to perform
simple and complex work and to function adequately in the workplace. (Tr. 45). The ALJ
determined that Brito’s mental impairments did not cause more than minimal limitations in his
ability to perform basic mental work activities and were thus nonsevere. (Id.). The ALJ
nonetheless proceeded to consider Brito’s mental limitations throughout the remainder of the
sequential evaluation, including the RFC assessment.16 (Tr. 42-46).
Brito maintains that the ALJ would not have concluded that his mental health
evaluations were “consistently within normal limits” had the ALJ reviewed the additional
GMHC records. According to Brito, the additional GMHC records reflect mental health
evaluations that were not normal, including indications of increased medication dosages,
depressed moods, negative ruminations and racing thoughts. (Docket # 10-1 at 14). The
symptoms described in the additional GMHC treatment records, however, are materially
identical to the symptoms described in the original GMHC treatment records. In other words,

16

To the extent that Brito argues that the ALJ erred at step two by determining that his mental impairments
were not severe, I conclude that any purported error was harmless because the ALJ considered Brito’s mental
impairments during the remainder of the sequential analysis. See Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d
Cir. 2013) (an error at step two may be harmless if the ALJ identifies other severe impairments at step two, proceeds
through the remainder of the sequential evaluation process and specifically considers the “nonsevere” impairment
during subsequent steps of the process); Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 311-12 (W.D.N.Y. 2013)
(“[a]s a general matter, an error in an ALJ’s severity assessment with regard to a given impairment is harmless . . .
when it is clear that the ALJ considered the claimant’s [impairment] and their effect on his or her ability to work
during the balance of the sequential evaluation process”) (internal quotations omitted).

37

the records show that Brito’s mental health was generally stable, if not somewhat improved, with
treatment.
Brito also maintains that the additional GMCH records conflict with Jones’s
opinion17 because Jones diagnosed Brito as being alcohol dependent, but the GMHC records
demonstrate that by March 2012 Brito had maintained sobriety for over one year. (Id. at 14-15).
Although far from clear, Brito seems to be contending that both the ALJ and Jones opined that
his mental health impairments were caused solely by his alcohol consumption – an opinion
belied by the fact that he continued to have mental health issues a year after he stopped drinking.
(Id.). The record does not support Brito’s argument. (Id.). Although Jones evaluated Brito
before he achieved sobriety, she nevertheless opined that he suffered from both alcohol
dependence and depressive disorder. (Id.). Jones opined that Brito’s substance abuse problems
were not “significant enough to interfere with [his] ability to function on a daily basis.”
(Tr. 342). In her decision, the ALJ explicitly discussed Brito’s chemical dependence treatment
and noted that “by November 2011, the claimant had remained alcohol-free for almost 11
months.” (Tr. 40-41). The ALJ specifically found that Brito’s alcohol abuse was in remission
and thus was nonsevere. (Tr. 39).
In sum, I discern no conflict between the GMHC records submitted on appeal and
Jones’s opinion or the ALJ’s determination. Thus, there is no reasonable possibility that they
would have altered the ALJ’s determination. See Ferguson v. Astrue, 2013 WL 639308, *4
(N.D.N.Y. 2013) (remand not required where “the opinions and diagnoses offered by both the
therapists and psychiatrist [did] not contradict any of the ALJ’s findings” and where “[t]he new
evidence [was] clearly not probative and, even if received prior to the decision of the ALJ, would

17

Brito also contends that the ALJ mischaracterized a portion of Jones’s opinion. (Id.). That contention is
addressed infra.

38

not have influenced the decision”); Duross v. Comm’r of Soc. Sec., 2008 WL 4239791, *4
(N.D.N.Y. 2008) (the new evidence “is not material because there is no reasonable possibility
that it would have influenced the Commissioner to decide [plaintiff’s] application differently”).
2.

Evaluation of Opinion Evidence

I turn next to Brito’s contentions that the ALJ erred by failing to assign a
particular weight to Rudd’s opinion. (Docket # 10-1 at 23-25). According to Brito, the ALJ’s
error was not harmless because Rudd opined that Brito suffered from limitations greater than
those incorporated into the ALJ’s RFC determination. (Id.).
An individual’s RFC is his “maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198
F.3d 45, 52 (2d Cir.1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (1996)). In making an
RFC assessment, the ALJ should consider “a claimant’s physical abilities, mental abilities,
symptomology, including pain and other limitations which could interfere with work activities
on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221 (N.D.N.Y. 2009)
(citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider all the relevant
evidence, including medical opinions and facts, physical and mental abilities, non-severe
impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue, 2009 WL
1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 380 F. App’x 231 (2d
Cir. 2010).
An ALJ should consider “all medical opinions received regarding the claimant.”
See Speilberg v. Barnhart, 367 F. Supp. 2d 276, 281 (E.D.N.Y. 2005) (citing 20 C.F.R.
§ 404.1527(d)). In evaluating medical opinions, regardless of their source, the ALJ should
consider the following factors:

39

(1)

the frequency of examination and length, nature, and extent
of the treatment relationship;

(2)

the evidence in support of the physician’s opinion;

(3)

the consistency of the opinion with the record as a whole;

(4)

whether the opinion is from a specialist; and

(5)

whatever other factors tend to support or contradict the
opinion.

Gunter v. Comm’r of Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010); see Speilberg v. Barnhart,
367 F. Supp. 2d at 281 (“factors are also to be considered with regard to non-treating sources,
state agency consultants, and medical experts”) (citing 20 C.F.R. §§ 404.1527(d) and (e)); House
v. Astrue, 2013 WL 422058, *3 (N.D.N.Y. 2013) (“[m]edical opinions, regardless of the source
are evaluated considering several factors outlined in 20 C.F.R. §§ 404.1527(c), 416.927(c)”).
Licensed clinical social workers are not considered “acceptable medical sources”
under the regulations. 20 C.F.R. § 404.1513(a). Instead, clinical social workers are considered
to be “other sources” within the meaning of 20 C.F.R. §§ 404.1513(d) and 416.913(d). As such,
their opinions “cannot establish the existence of a medically determinable impairment.” See SSR
06-03P, 2006 WL 2329939, *2 (2006). Their opinions may be used, however, “to show the
severity of the individual’s impairment(s) and how it affects the individual’s ability to function.”
See id.
Social Security Ruling 06-03P recognizes that “[m]edical sources . . . , such as . . .
licensed clinical social workers, have increasingly assumed a greater percentage of the treatment
and evaluation functions previously handled primarily by physicians and psychologists.” Id. at
*3. The ruling recognizes that such opinions are “important and should be evaluated on key
issues such as impairment severity and functional effects, along with the other relevant evidence

40

in the file.” Id. The ruling directs the ALJ “to use the same factors for evaluation of the
opinions of acceptable medical sources to evaluate the opinions of medical sources who are not
acceptable medical sources, including licensed social workers.” Genovese v. Astrue, 2012 WL
4960355, *14 (E.D.N.Y. 2012) (internal quotations omitted). “An ALJ is not required to give
controlling weight to a social worker’s opinion; although he is not entitled to disregard it
altogether, he may use his discretion to determine the appropriate weight.” Cordero v. Astrue,
2013 WL 3879727, *3 (S.D.N.Y. 2013); Jones v. Astrue, 2012 WL 1605566, *5 (N.D.N.Y.)
(“the Second Circuit has held that ‘the ALJ has discretion to determine the appropriate weight to
accord the [other source’s] opinion based on all the evidence before him”) (quoting Diaz v.
Shalala, 59 F.3d 307, 313-14 (2d Cir. 1995)), report and recommendation adopted, 2012 WL
1605593 (N.D.N.Y. 2012).
As an initial matter, it is unclear whether Brito is correct that the ALJ failed to
assign a particular weight to Rudd’s opinion. In her decision, the ALJ discussed Rudd’s opinion
at length and concluded that the opinion was “instructive” and supported the other opinions
relied upon by the ALJ in reaching her conclusion that Brito’s “mental impairments cause only
mild to moderate limitations in his ability to function.” (Tr. 41). This statement suggests that the
ALJ concluded that Rudd’s opinion was consistent with her step two determination, RFC
assessment and the other credited opinions of record regarding Brito’s mental impairments.
In any event, the ALJ thoroughly discussed Rudd’s findings, which were
generally consistent with the ALJ’s RFC assessment; any failure to assign a specific weight to
the opinion was thus harmless and does not require remand. See Arguinzoni v. Astrue, 2009 WL
1765252, *9 (W.D.N.Y. 2009) (ALJ’s failure to assign weight to medical opinions was harmless;
“[t]he ALJ engaged in a detailed discussion of the medical opinions in the record and his

41

determination that the plaintiff was not disabled does not conflict with the medical opinions”);
Pease v. Astrue, 2008 WL 4371779, *8 (N.D.N.Y. 2008) (“[t]he ALJ provided a detailed
summary and analysis of the reports and records of all treating and examining physicians[;] . . .
[t]herefore, the ALJ’s failure to comment on the weight of the evidence was harmless error, and
does not provide a basis for a remand to the Commissioner”); Jones v. Barnhart, 2003 WL
941722, *10 (S.D.N.Y. 2003) (“[the ALJ] engaged in a detailed discussion of [the opinions], and
his decision does not conflict with them[;] [t]herefore, the ALJ’s negligence was harmless error,
and does not provide a basis for a remand to the Commissioner”); see also Ryan v. Astrue, 650
F. Supp. 2d 207, 217 (N.D.N.Y. 2009) (“despite granting little weight to [the doctor’s] opinions,
[the ALJ] accounted for [p]laintiff’s difficulties with concentration and stress in his RFC[;]
[t]herefore, had the ALJ opted to grant [the doctor] a greater weight, it would not have affected
his RFC”).
Brito contends that the ALJ’s purported failure to assign a specific weight to
Rudd was not harmless because Rudd found greater limitations than those incorporated into the
ALJ’s RFC. Specifically, Brito contends that Rudd assessed him to have limitations in his
ability to maintain concentration, interact with others and respond appropriately to usual work
situations and to changes in a routine work setting. (Docket # 10-1 at 19). According to Brito,
the ALJ’s assessment failed to incorporate these limitations. (Id.). I disagree with Brito that
Rudd’s opinion conflicts with the ALJ’s RFC assessment.
In explaining her assessed limitations, Rudd stated that Brito’s depression
“impact[ed]” his ability to concentrate on tasks, but nevertheless opined that he was able to
understand and remember simple instructions and could carry out both simple and complex
instructions. (Tr. 434). Rudd also opined that Brito’s concentration deficiency caused him to

42

have a moderate limitation – i.e., “more than a slight limitation but still able to function
satisfactorily” – in his ability to understand and remember complex instructions. (Id.).
Consistent with Rudd’s opinion, the ALJ concluded that Brito retained the mental RFC to
maintain attention and concentration as necessary to perform simple and complex instructions
and perform complex tasks independently. (Tr. 42). The ALJ’s RFC assessment is thus
consistent with Rudd’s assessed limitations.
Rudd likewise noted that Brito’s ability to interact with others was “impacted” by
his depression, but nevertheless concluded that he had no limitations in his ability to interact with
the public, supervisors or coworkers. Rudd also opined that Brito had a moderate limitation for
responding appropriately to usual work situations and to changes in a routine work setting. The
ALJ’s RFC accounted for that limitation by limiting Brito to a low-stress work environment.
(Id.). In sum, Brito has failed to identify any conflict between Rudd’s opinion and the ALJ’s
RFC assessment.
Brito also maintains that the ALJ’s RFC assessment was flawed because she
improperly accorded “great weight” to the opinion of Jones, a one-time examining physician.
(Docket # 10-1 at 26-27). According to Brito, Jones’s opinion was inconsistent with the mental
status examinations of his treating providers and Rudd’s opinion. (Id.).
As an initial matter, I disagree that Jones’s opinion is not entitled to “great
weight” because she only examined him on one occasion. “The opinion of a consultative
examiner can constitute substantial evidence supporting an ALJ’s decision.” See Fuentes v.
Colvin, 2015 WL 631969, *8 (W.D.N.Y. 2015) (quoting Leisten v. Colvin, 2014 WL 4275710,
*14 (W.D.N.Y. 2014) (“[t]he report of a consultative physician who examines the [p]laintiff and

43

reaches conclusions based upon a one-time examination may constitute substantial evidence in
support of the ALJ’s decision”)).
I also disagree that Jones’s opinion is inconsistent with Brito’s mental health
treatment records or Rudd’s opinion. As discussed above, the treatment records reflect that Brito
suffered from depression, often triggered by grief, but that he appeared to be generally stable
with therapy and medication. Although the treatment records reflect that Brito continued to have
low moods and negative thoughts, his mental health examinations routinely demonstrated
otherwise normal findings.
Rudd’s opinion is not to the contrary. While recognizing that Brito suffered from
depression, Rudd assessed few limitations in mental work-related activities, and none were
marked or extreme. Those that she did assess were primarily mild, with two moderate
limitations noted. Rudd opined that despite his mental impairments, Brito was able to interact
with others and perform simple and complex tasks in a routine work setting. Similarly, Jones
assessed that Brito suffered from alcohol dependence and depressive disorder, but could follow
and understand simple directions and perform simple and complex tasks while interacting
adequately with others, maintaining concentration and a regular schedule. I conclude that
Jones’s opinion is consistent with Rudd’s opinion and the treatment records, and that the ALJ
applied the correct legal standard in according Jones’s opinion “great weight” and properly
concluded that Jones’s opinion was consistent with the other medical evidence of record,
including the treatment notes and Rudd’s opinion.
In any event, after an independent review of the existing record, including Rudd’s
and Jones’s opinions and the treatment records, I conclude that the ALJ’s mental RFC
assessment was supported by substantial evidence. As discussed above, the treatment records

44

reveal that Brito suffered from depression but was generally stable, if not somewhat improved,
with treatment and medication. Both Rudd and Jones opined that Brito was able to perform
simple and complex tasks in a routine work setting and that he suffered from generally mild
mental limitations, although they noted that Brito might have some difficulty dealing with stress
or changes in a work routine. The ALJ’s decision accounted for those limitations by concluding
that Brito could perform simple and complex tasks, but only in a low-stress environment. The
ALJ’s RFC assessment was based upon a thorough review of the record and was supported by
substantial record evidence; accordingly, remand is not warranted. Zabala v. Astrue, 595 F.3d
402, 410 (2d Cir. 2010) (“[n]one of the clinicians who examined [claimant] indicated that she
had anything more than moderate limitations in her work-related functioning, and most reported
less severe limitations[;] [a]lthough there was some conflicting medical evidence, the ALJ’s
determination that [p]etitioner could perform her previous unskilled work was well supported”).
3.

Mischaracterization of Medical Evidence

Brito also challenges the ALJ’s step two determination and mental RFC
assessment on the grounds that the ALJ incorrectly characterized some of the medical evidence.
(Docket # 10-1 at 16-19). Brito identifies four alleged mischaracterizations: (1) the ALJ
improperly characterized the GMHC treatment records as reflecting that Brito’s mental status
was consistently within normal limits; (2) the ALJ failed to fully discuss Rudd’s opinion and
improperly concluded that it demonstrated only mild to moderate mental limitations; (3) the ALJ
improperly discounted Blackwell’s opinion on the grounds that it was inconsistent with Jones’s
findings of intact memory and concentration; and, (4) the ALJ misinterpreted Jones’s opinion
that Brito had difficulty dealing with stress by stating that Brito’s stress-related limitations were
due solely to his alcohol use. (Id.).

45

With respect to the first two alleged mischaracterizations, I disagree with Brito for
the reasons explained at length above. As articulated supra, my review of the GMHC records
reveals that the ALJ’s characterization of them was not erroneous. Further, I conclude that the
ALJ fully discussed and accurately recounted Rudd’s opinion that Brito suffered from some mild
to moderate mental limitations.
Regarding Blackwell’s opinion, I conclude that any mistake by the ALJ was
ultimately harmless. In the opinion, Blackwell assessed that Brito suffered from moderate
limitations in his ability to maintain attention, concentration and pace. (Tr. 366). Blackwell
further assessed that Brito would have moderate limitations maintaining a regular schedule and
completing a normal workday or workweek without interruptions due to his impairments.
(Tr. 370-72). Blackwell explained that Brito appeared capable of sustaining employment while
sober but that his “level of alcohol use might cause moderate limitations in his ability to sustain a
regular schedule and complete a normal work day.” (Tr. 372). The ALJ rejected Blackwell’s
limitations, concluding that they were inconsistent with Jones’s examination that demonstrated
that Brito’s attention and memory were intact. (Tr. 40). The ALJ alternatively concluded that
the limitations assessed by Blackwell were based solely upon Brito’s alcohol use, which, if
credited, would require a finding that Brito’s alcohol use was material. (Id.).
Brito maintains that Jones’s examination did not demonstrate that his memory
was intact, but instead demonstrated that it was “mildly impaired.” (Tr. 341). Brito is correct,
and the ALJ misstated Jones’s findings in this respect. The misstatement, however, was
harmless because the ALJ alternatively discounted Blackwell’s limitations on the grounds that
they were based solely on Brito’s continued alcohol consumption. As discussed above, the
record demonstrates that Brito had made significant progress in achieving sobriety subsequent to

46

Blackwell’s evaluation. Those efforts were well-documented in the GMHC treatment notes and
in Rudd’s opinion. The ALJ recognized Brito’s efforts and progress and concluded that his
alcohol use was not material to the disability evaluation. Accordingly, the limitations assessed
by Blackwell, which were based upon Brito’s continued use of alcohol at the time, were properly
rejected by the ALJ as unsupported by the record as a whole.
Finally, I agree with Brito that the ALJ may have mischaracterized Jones’s
stress-related assessment, but conclude that any mischaracterization was harmless. Jones opined
that Brito “cannot appropriately deal with stress, as he only does so by drinking.” (Tr. 342). In
discussing Jones’s opinion, the ALJ stated that Jones had assessed Brito with difficulty
“appropriately dealing with stress – but because of his drinking.” (Tr. 45). I agree with Brito
that the language suggests the possibility that the ALJ understood Jones’s assessment to mean
that Brito suffered from stress-related limitations only when he was consuming alcohol – a
conclusion not reasonably supported by the language of Jones’s opinion.18 Even if the ALJ’s
decision is read to reflect this improper interpretation, however, the ALJ nonetheless accounted
for stress-related limitations by limiting Brito to a low-stress work environment. Any error was
thus harmless.
B.

Physical RFC Assessment
Brito challenges the ALJ’s physical RFC assessment on three separate grounds.

First, he maintains that the ALJ’s conclusion that Brito required the option to sit and stand at will

18

The hearing examination, by contrast, suggests that the ALJ correctly understood Jones’s opinion:
Q: How do you -- how are you going with the stress? It says in the record
that -- at least one person, one of the doctors who saw you thought that you
dealt with stress by drinking. Was that so?
A: Yes, ma’am.

(Tr. 80).

47

was not supported by any medical opinion of record and thus constituted the ALJ’s own lay
opinion. (Docket # 10-1 at 21). Next, Brito maintains that the ALJ improperly relied upon the
“vague” opinion provided by Balderman. (Id. at 22). Finally, Brito contends that the ALJ failed
to account for some of the limitations assessed by Montgomery. (Id. at 22-24). These
contentions are entirely devoid of merit.
The record overwhelmingly supports the ALJ’s physical RFC assessment. The
medical records demonstrate that after his surgery in 2005, x-rays of Brito’s leg and ankle were
unremarkable and showed a successful surgery. Brito did not seek any further treatment for his
leg or ankle pain for approximately five years, until November 2010, well after he had filed his
application for benefits. (Tr. 189-99, 459-60). Brito stated that he is able to complete
housework and yardwork, go shopping, ride his bicycle and that his physicians encouraged him
to take long walks. (Tr. 67, 72, 227-28). The last physician at Strong to examine Brito opined
that he could frequently lift and carry up to twenty pounds and occasionally lift up to one
hundred pounds, could stand or walk for a total of eight hours a day and could sit for a total of
six hours a day. (Tr. 438-39). The consulting examiner’s physical examination was generally
unremarkable and he assessed a mild limitation for climbing and prolonged walking. (Tr. 335).
I easily conclude that the medical evidence of record supports the ALJ’s conclusion that Brito
was capable of performing the requirements of light work with a sit/stand option and some
postural limitations.19

19

Given the treatment notes and medical opinion evidence in the record, Brito’s counsel’s decision to
challenge the ALJ’s physical RFC assessment is surprising. As an advocate for a client, it is the attorney’s duty to
“objectively consider points to be raised . . . and to eliminate those points that have little or no merit.” United States
v. Visinaiz, 428 F.3d 1300, 1317 (10th Cir. 2005), cert. denied, 546 U.S. 1123 (2006). See Jones v. Barnes, 463
U.S. 745, 751-53 (1983) (“[a] brief that raises every colorable issue runs the risk of burying good arguments . . . in a
verbal mound made up of strong and weak contentions”). See also Henriksen v. Astrue, 2009 WL 2588695, *4-5
(N.D. Ill. 2009); Seamon v. Barnhart, 2006 WL 517631, *7 (W.D. Wis. 2006).

48

The ALJ’s decision makes clear that she assessed a sit/stand option based upon
Brito’s testimony during the hearing that he needed to shift positions to relieve his knee pain.
(Tr. 46). Specifically, Brito testified that he would have to be able to alternate between sitting
and standing every half hour. (Tr. 92-93). To suggest that the ALJ’s decision to credit Brito’s
testimony warrants remand is as frivolous as it is meritless. See Matta v. Astrue, 508 F. App’x
53, 56 (2d Cir. 2013) (“[a]lthough the ALJ’s conclusions may not perfectly correspond with any
of the opinions of medical sources cited in his decision, he was entitled to weigh all of the
evidence available to make an RFC finding that was consistent with the record as a whole”).
I similarly conclude that Brito’s argument that the ALJ improperly relied upon the
“vague” opinion of Balderman is meritless. Although an expert opinion may describe a
claimant’s impairments in terms that are so vague as to render the opinion useless, see Selian v.
Astrue, 708 F.3d 409, 421 (2d Cir. 2013), the use of vague phrases by a consultative examiner
does not automatically render an opinion impermissibly vague, see Rosenbauer v. Astrue, 2014
WL 4187210, *16 (W.D.N.Y. 2014) (collecting cases). In this case, Balderman provided an
assessment after conducting a thorough examination of Brito. During the examination,
Balderman noted that Brito did not appear to be in acute distress, was able to stand on his heels
but not his toes, could fully squat, had a normal stance and a mild limp, had full flexion,
extension, lateral flexion and full rotary movement in his cervical and lumbar spine.
(Tr. 333-38). Additionally, Balderman reviewed images of Brito’s left ankle and leg. (Id.).
Accordingly, Balderman’s opinion that Brito would have mild limitations in climbing and
prolonged walking “was based upon medical examination, evaluation and observation, and the
ALJ thus properly relied upon [Balderman’s] opinion to support [his] RFC assessment.” See
Rosenbauer v. Astrue, 2014 WL 4187210 at *17 (collecting cases). In any event, as described

49

above, the physical RFC assessment is consistent with and supported by other substantial
evidence in the record, including the treatment notes and Montgomery’s opinion.
Finally, I reject Brito’s contention that a remand is warranted because the ALJ did
not account for the upper extremity limitations (including frequent reaching, handling, fingering,
feeling, pushing and pulling limitations) or the temperature and noise limitations assessed by
Montgomery. As noted by the ALJ, the treating records demonstrate that Montgomery evaluated
Brito on a single occasion, and the ALJ thus properly determined to accord Montgomery’s
opinion “great, but not controlling weight.” See Wearen v. Colvin, 2015 WL 1038236, *14
(W.D.N.Y. 2015) (“I disagree with [plaintiff’s] characterization of [the doctor] as a treating
doctor because the record reflects that [the doctor] only treated [plaintiff] on one occasion before
rendering her opinion”) (citing Hamilton v. Astrue, 2013 WL 5474210, *11 (W.D.N.Y. 2013)
(“it is not clear that [the doctor] may be considered a treating physician because [plaintiff]
testified that the first time she was examined by [the doctor] was when he completed her
disability paperwork”) (collecting cases)). A review of Montgomery’s treatment records reveal
that he evaluated Brito for his hypertension, osteoarthritis and alcohol abuse. (Tr. 467-68).
Nothing in those records suggest that Brito suffered from any limitations in his upper extremities
or that he had any sensitivities to noise or temperature. (Id.).
Indeed, the record is devoid of any suggestion that Brito suffered from upper
extremity, temperature or noise limitations. The remainder of Brito’s treatment records contain
nothing to suggest that Brito had any such limitations. Further, Balderman’s examination
demonstrated full range of motion and strength in the upper extremities and intact hand and
finger dexterity. (Tr. 335). Similarly, the disability report that Brito completed in connection
with his application for benefits was silent as to any upper extremity or environmental

50

limitations. (Tr. 225-34). Significantly, Brito did not indicate any limitations with reaching,
using his hands or hearing. (Tr. 230). Finally, during the administrative hearing, Brito did not
testify that he suffered from such limitations. In fact, the ALJ specifically asked Brito whether
he suffered from any limitations that had not been discussed. (Tr. 80 (“[a]re you having any
other symptoms or problems that we haven’t already talked about?”)). Brito replied that he did
not. (Id.).
In sum, I conclude that the ALJ properly evaluated Montgomery’s opinion and
that her RFC assessment adopted those limitations assessed by Montgomery that were supported
by the record evidence in the record. The ALJ’s physical RFC assessment was reasonable and
supported by substantial evidence. Pellam v. Astrue, 508 F. App’x 87, 90-91 (2d Cir. 2013)
(“even if the ALJ did not credit all of [the doctor’s] findings, [the doctor’s] medical opinion
largely supported the ALJ’s assessment of [claimant’s] [RFC]”).
C.

Step Five Assessment
Finally, I turn to Brito’s contention that the ALJ erred in relying on the vocational

expert because the hypothetical posed to the expert was based upon a flawed RFC assessment.
(Docket ## 10-1 at 27-29; 14 at 5-6). Having determined that substantial evidence supports the
ALJ’s RFC determination, this argument is rejected. See Wavercak v. Astrue, 420 F. App’x 91,
95 (2d Cir. 2011) (“[b]ecause we have already concluded that substantial record evidence
supports the RFC finding, we necessarily reject [plaintiff’s] vocational expert challenge”).

CONCLUSION
After careful review of the entire record, this Court finds that the Commissioner’s
denial of SSI/DIB was based on substantial evidence and was not erroneous as a matter of law.

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Accordingly, the ALJ’s decision is affirmed. For the reasons stated above, the Commissioner’s
motion for judgment on the pleadings (Docket # 11) is GRANTED. Brito’s motion for
judgment on the pleadings (Docket # 10) is DENIED, and Brito’s complaint (Docket # 1) is
dismissed with prejudice.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
March 31, 2015

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