Fagner v Social Security
DECISION AND ORDER denying 9 Plaintiff's Motion for Summary Judgment; granting 13 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/30/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEFFREY S. FAGNER,
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Plaintiff Jeffrey S. Fagner (“plaintiff”) brings this action
pursuant to Title II of the Social Security Act (the “Act”),
seeking review of the final decision of the Commissioner of Social
Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
plaintiff’s motion is denied and defendant’s motion is granted.
On December 12, 2011, plaintiff filed an application for DIB,
alleging disability as of September 23, 2010.
Transcript (“T.”) 135-41. Following the denial of his application,
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social
Security on January 23, 2017. The Clerk of the Court is instructed to amend the
caption of this case pursuant to Federal Rule of Civil Procedure 25(d) to reflect
the substitution of Acting Commissioner Berryhill as the defendant in this
a hearing was held at plaintiff’s request on April 20, 2012, before
administrative law judge ("ALJ") William M. Manico, at which
testimony was given by plaintiff and a vocational expert (“VE”).
The ALJ issued a decision dated December 26, 2012, in
which he determined that plaintiff was not disabled as defined in
In applying the required five-step sequential analysis, as
contained in the administrative regulations promulgated by the
Social Security Administration ("SSA") (see 20 C.F.R. §§ 404.1520,
416.920; Lynch v. Astrue, 2008 WL 3413899, at *2 (W.D.N.Y. 2008)
(detailing the five steps)), the ALJ made the following findings,
among others: (1) plaintiff met the insured status requirements of
the Act through December 31, 2016; (2) plaintiff had not engaged in
(3) plaintiff’s degenerative disc disease of the cervical spine and
lumbar spine and mild tendinopathy of the left shoulder/adhesive
(4) plaintiff’s impairments did not meet or medically equal one of
the listed impairments set forth in 20 C.F.R. § 404, Subpart P,
Appendix 1; (5) plaintiff had the residual functional capacity
404.1567(a)” with the following limitations: occasional balancing,
climbing, stooping, crouching, kneeling, and crawling; alternate
sitting and standing every 20 to 25 minutes; never reach overhead
with the left upper extremity; use a cane to ambulate; avoid
moderate exposure to extremes of cold, heat, wetness, or humidity;
avoid all exposure to hazards; perform unskilled work involving
2 hours; (6) plaintiff was unable to perform any past relevant
experience, and RFC, there are jobs that exist in significant
numbers in the national economy that plaintiff could perform.
The ALJ’s decision became the final determination of the
Commission on August 6, 2014, when the Appeals Council denied
plaintiff’s request for review.
filed the instant action.
General Legal Principles
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405(g) provides that the District Court “shall have the
power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
42 U.S.C. § 405(g) (2007).
directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by “substantial evidence” in the record.
42 U.S.C. § 405(g).
“Substantial evidence means more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted).
supported by substantial evidence, the Court's task is “‘to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.’” Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999), quoting Mongeur v. Heckler, 722
F.2d 1033, 1038 (2d Cir. 1983).
Section 405(g) limits the scope of
the Court’s review to two inquiries: whether the Commissioner’s
findings were supported by substantial evidence in the record as a
whole and whether the Commissioner’s conclusions were based upon
the correct legal standard. See Green–Younger v. Barnhart, 335 F.3d
99, 105–106 (2d Cir.2003).
A. Summary of relevant medical evidence.
Plaintiff’s primary care physician is Dr. Kristina Cummings.
recommendation of his therapist.
feeling very depressed and noted that he had been drinking heavily,
but had stopped since January 1st.
On physical examination,
plaintiff showed a flat affect, but was otherwise unremarkable.
Id. Dr. Cummings assessed plaintiff with depression and prescribed
depression on March 18, May 7, July 2, and July 30.
On November 12, 2009, Plaintiff was seen by Dr. Cummings and
reported having “crashed mentally” five days prior.
stated that his job was in jeopardy from having missed so many days
and reported “momentary” thoughts of self-harm.
assessed plaintiff with major depression with an acute episode.
She made him an appointment the following day with a social
worker and encouraged him to stay with a friend.
Id. Dr. Cummings
wrote plaintiff a note to be out of work from November 6th to the
23rd so that he could work on his mental health.
Plaintiff returned to Dr. Cummings on November 23, 2009, and
reported that he was feeling better with his depression, but that
his work was very stressful and exacerbating his mental health
Apart from flat affect, plaintiff’s physical
examination was unremarkable.
cocaine, and marijuana dependence from December 16, 2009, to
January 6, 2010.
On discharge, plaintiff was assessed
with alcohol dependence, cannabis dependence, cocaine dependence,
nicotine dependence, major depression with anxiety, personality
disorder NOS, and GERD.
Plaintiff had a GAF score of 34.
Plaintiff’s prognosis was fair.
Plaintiff saw Dr. Cummings on January 21, 2010, to follow up
after his inpatient rehabilitation.
that he had begun having pain in his left hip, radiating down his
left buttocks and into his leg.
Id. Plaintiff stated that sitting
and driving hurt and that standing and laying down helped.
Plaintiff reported having been diagnosed with an enlarged disc in
his back in 2002.
Dr. Cummings assessed plaintiff with left
sciatica with possible disc disease. Id.
She instructed him to
take ibuprofen for 7-10 days, and then on an as-needed basis, and
to stretch and place warm compresses on the area.
On February 25, 2010, plaintiff returned to Dr. Cummings,
complaining of left wrist pain.
Plaintiff reported that
he had been working out at home, doing sit-ups, pull-ups, and
Plaintiff told Dr. Cummings that his lower
back was still bothering him and that ibuprofen did not help the
pain. Id. Dr. Cummings assessed plaintiff with left wrist pain and
On March 5, 2010, a magnetic resonance imaging study (“MRI”)
of plaintiff’s lumbar spine revealed mild disc bulging at L4-5 and
L5-S1, but no significant herniation.
Plaintiff followed up with Dr. Cummings on March 25, 2010.
He continued to report nerve pain.
examination, he had tenderness in the lower spine and showed
discomfort with flexion, abduction of the hip, and straight leg
Dr. Cummings prescribed Lortab, diclofenac, and gabapentin.
management specialist Dr. Ashraf Sabahat.
examination, plaintiff exhibited significant tenderness with deep
palpitation over his right sacroiliac joint and no tenderness with
deep palpitation over the left sacroiliac joint. T. 364. Straight
left raise tests were negative and plaintiff did not demonstrate
any weakness in any other muscle groups in his lower extremities.
Dr. Sabahat noted that the severity of the symptoms reported
by plaintiff did not correlate with his MRI findings.
prescribed Lyrica, Naprelan, and Darvocet-N.
Plaintiff continued to treat with Drs. Cummings and Sabahat
throughout the relevant time period.
On July 12, 2010, plaintiff
received a caudal epidural steroid injection, which he tolerated
T. 362. That same day, plaintiff saw Dr. Sabahat, who
On palpation, plaintiff showed mild tenderness over the
right sacroiliac joint and severe tenderness over the left side.
Straight leg tests were negative in his lower extremities.
An MRI of plaintiff’s lumbar spine was performed on August 19,
The results were unchanged from the March 2010
Dr. Sabahat referred plaintiff to neurosurgeon Dr.
Shakeel Durrani for consultation.
Dr. Durrani saw plaintiff on September 8, 2010.
Dr. Durrani noted that plaintiff had “mild disc degeneration at L4L5" and that his MRI was otherwise normal.
opined that plaintiff’s “clinical symptoms do not correlate with
his radiological studies” and that there was no indication for
surgical intervention. Id. Dr. Durrani further opined that it was
“possible that there might be an underlying psychological issue”
and recommended that plaintiff follow up with his primary care
Dr. Sabahat subsequently asked Dr. Cummings to
suggested that his pain might be attributable to a neck injury he
suffered as a child.
Dr. Cummings ordered x-rays of
plaintiff’s hips and neck, which were performed on September 24,
2010 and were normal.
T. 320, 542.
Plaintiff saw Dr. Sabahat on October 11, 2010.
Dr. Sabahat indicated that he was going to send plaintiff to
another neurosurgeon for a second opinion. Id. He also reiterated
that he intended to send plaintiff for psych assessment as soon as
he got permission from Dr. Cummings.
It is not clear from the
record whether Dr. Cummings ever gave such permission.
On November 8, 2010, nerve conduction and electromyelogram
studies were negative for radiculopathy.
Plaintiff saw Dr. Cummings on December 2, 2010, and expressed
frustration with his pain management.
noted that plaintiff had refused to see another pain management
specialist as she had recommended.
On December 30, 2010,
plaintiff suggested to Dr. Cummings that he begin using a cane.
Dr. Cummings recommended that plaintiff see another
neurosurgeon, a neurologist, and a chiropractor.
On January 7, 2011, plaintiff presented at the emergency room
His physical examination was normal.
T. 242. Plaintiff was assessed with chronic pain in the lower left
extremity and discharged with a prescription for Torodol.
Plaintiff received an epidural steroid injection in his spine
on January 11, 2011.
He reported to Dr. Cummings that
the injection had worked only for a few hours.
further reported that he had decided to use a cane.
Lumbar x-ray, myelogram, and post-myelogram lumbar CT scans of
plaintiff were performed on March 8, 2011 and were normal.
47, 315-17, 368-70.
On April 29, 2011, plaintiff saw neurologist Dr. Ziad Rifai.
On physical examination, plaintiff had antalgic gait
but was otherwise normal.
studies were normal.
EMG and nerve conduction
Dr. Rifai opined that “[t]here is
symptoms” and that “[t]he possibility of somatization2 associated
with depression should be considered.”
Somatization is “the expression of mental phenomena as physical (somatic)
Merck Manual, Professional Version, “Overview of Somatization,”
m-and-related-disorders/overview-of-somatization (last accessed May 26, 2017).
An MRI of plaintiff’s cervical spine on May 31, 2011 showed
Additional epidural steroid
injections were performed on June 8, 2011, June 28, 2011, August 2,
2011, and August 17, 2011.
Plaintiff reported varying
levels of relief from these injections.
Plaintiff returned to Dr. Durrani on August 21, 2011. T. 26061.
On physical examination, the only abnormalities were cane use
and reduced left shoulder motion.
Dr. Durrani opined
that there was “no correlation between [plaintiff’s] clinical and
radiological picture” and encouraged him to seek a second opinion.
Examination for Employability form.
assessed plaintiff with no limitations regarding the use of his
hands, seeing, hearing, speaking, understanding and remembering
standards of grooming and hygiene, making simple decisions, and
performing simple tasks.
She assessed plaintiff with some
depressed, and using public transportation when in pain, and severe
limitations with walking, sitting, standing, lifting/carrying,
Dr. Cummings opined that plaintiff could not work because he
required constant position changes.
Dr. Cummings authored a letter dated February 2, 2012, in
which she acknowledged that “[plaintiff’s] past findings do not
correlate with his physical objective findings.” T. 322. She went
on to opine that standing for more than 30 to 60 minutes caused
plaintiff excruciating pain and numbness down the back of his leg,
and that he had seemed to be in pain when seen in her office.
Dr. Cummings further opined that it would be unsafe for plaintiff
to return to his prior work as an electrician.
Finnity, Ph.D., on February 3, 2012.
reported headaches, left arm pain, and leg pain.
reported depressive symptoms, including difficulty sleeping and
loss of appetite.
Plaintiff stated that he cared for his
friends, read, and played video games. T. 327.
Dr. Finnity opined
that plaintiff could follow and understand simple directions,
maintain a regular schedule, learn new tasks, perform complex
difficulty relating with others and dealing with stress.
Dr. Finnity diagnosed plaintiff with major depressive disorder,
anxiety disorder NOS, polysubstance abuse in sustained remission,
chronic pain, and headaches.
His prognosis was fair.
Also on February 3, 2012, plaintiff was seen by consultative
physician Dr. Harbinder Toor.
Plaintiff further reported that he had headaches daily.
Plaintiff told Dr. Toor that he did not clean, cook, perform
childcare, play sports, or engage in hobbies.
that he did dress himself, do laundry, shop, shower, socialize with
friends, read, watch television, and listen to the radio.
examination, plaintiff reported moderate pain.
could rise from a chair without difficulty but had trouble changing
for the exam and getting on and off the examination table.
Neurological findings were normal apart from numbness and tingling
in the left extremities.
Straight leg test was positive
and plaintiff had reduced flexion, extension, lateral flexion of
the cervical and lumbar spines, along with reduced flexion and
extension of the left knee and reduced forward flexion, abduction,
and external and internal rotation of the left shoulder.
Plaintiff had slightly reduced (4/5) grip strength with his left
hand and no deficits with respect to his right hand.
Dr. Toor assessed plaintiff with history of chronic low back pain,
history of left shoulder pain, and history of headaches.
Plaintiff’s prognosis was guarded.
Id. Dr. Toor opined that
plaintiff had moderate to severe limitations for standing, walking,
squatting, heavy lifting, pushing, pulling, and reaching with the
Plaintiff had moderate limitations on sitting
for a long time and mild limitations for grasping and holding with
the left hand, twisting, bending, and extending the cervical spine.
On February 6, 2012, Dr. Sabahat completed a questionnaire
related to plaintiff.
Dr. Sabahat declined to answer
several questions on this questionnaire, including whether the pain
affected plaintiff’s activities of daily living and whether the
physical findings were consistent with plaintiff’s level of pain.
Dr. Sabahat reported that plaintiff had constant pain
brought on by activity and that he was taking Dilauded, which
provided “some” relief for approximately four hours.
On March 8, 2012, Dr. Cummings recommended that plaintiff see
On March 20, 2012, plaintiff
reported to Dr. Sabahat that he had seen a second neurosurgeon,
On March 21, 2012, plaintiff saw orthopedic surgeon Dr. James
Mark regarding his shoulder pain.
Dr. Mark ordered a
shoulder MRI, which was performed on March 25, 2012 and showed mild
to moderate tendinopathy of the supraspinatus without any discrete
Mark ordered physical/occupational therapy,
which plaintiff began on March 30, 2012.
An MRI of plaintiff’s cervical spine on April 16, 2012 was
T. 432, 483.
An MRI of plaintiff’s lumbar spine on
April 17, 2012 showed minimal degenerative disc disease with
minimal posterior bulges from L3-L4 and L5-S1, with mild neural
foaminal narrowing on the left at L3-L4 and L4-L5.
There was no progression or significant interval change in the
appearance of plaintiff’s lumbar spine from the previous studies.
Dr. Sabahat ordered a urine toxicology screen
and recommended that plaintiff begin to wean off narcotics.
The toxicology screen came back “essentially within normal limits.”
Plaintiff saw physicians assistant (“PA”) Mark Siditsky on
May 18, 2012.
Plaintiff reported that his left shoulder
pain was radiating to his fingers and requested pain medications.
PA Siditsky ordered a myelgram and post-myelogram CT, which
were performed on May 31, 2012 and showed minimal disc degeneration
of the cervical and lumbar spines and slight bulging of the lumbar
X-rays performed on May 31, 2012 showed a
normal cervical spine and an intact lumbar spine with mild anterior
compression at T11. T. 441-42.
Plaintiff was seen by PA Meredith Kyle at Dr. Mark’s office on
June 20, 2012.
He reported some improvement in his
shoulder pain from a cortisone injection, but none from physical
therapy or NSAIDs.
PA Kyle and Dr. Mark recommended shoulder
Dr. Mark performed arthroscopic surgery on plaintiff’s left
shoulder on June 28, 2012.
Pre-operatively, Dr. Mark
painful left shoulder.
Post-operatively, the diagnosis
was severe adhesive capsulitis, chondromalacia, and impingement
Plaintiff was discharged and given a prescription
for Norco. T. 454-55. Plaintiff’s incision healed well and he
showed a much improved range of motion.
recommended physical therapy to avoid further adhesive capsulitis,
which plaintiff began on July 2, 2012.
T. 450, 488.
medical advice, plaintiff discontinued physical therapy on July 19,
2012, after eight sessions.
insurance would not pay for it.
Plaintiff told Dr.
As of July 30, 2012,
plaintiff appeal the insurance company’s decision and begin a home
August 14, 2012.
Dr. Lasser stated that plaintiff’s
myelogram and post-myelogram CT scans were essentially normal and
that the imaging did not explain plaintiff’s symptoms.
Dr. Lasser opined that plaintiff might have fibromyalgia and
recommended that he seek employment that was not very physically
Plaintiff saw Dr. Cummings on August 23, 2012.
Dr. Cummings diagnosed low back pain, chronic left shoulder pain,
depression, and tobacco use.
She stated that plaintiff
Residual Functional Capacity assessment for plaintiff.
Dr. Cummings diagnosed plaintiff with chronic lower back pain with
disc bulges and L4-L5 and L5-S1, cervical disc herniation with neck
pain, leg radiculopathy/sciatica, and cluster headaches.
She opined that plaintiff could occasionally lift less than ten
pounds, could stand and/or walk for less than two hours in an eight
hour workday, sometimes used a cane for stability, could sit for
less than about six hours in an eight hour workday, would need to
periodically alternate sitting and standing, was limited in pushing
or pulling with his lower extremities, could occasionally climb
frequently balance, crouch, crawl, and reach in all directions, and
occasionally handle, finger, and feel.
noted no visual or communicative limitations, and recommended that
plaintiff avoid moderate exposure to extreme cold or heat, wetness,
ventilation, and avoid all exposure to vibration and hazards such
as machinery and heights.
Dr. Cummings stated that pain
and fatigue were both major factors in plaintiff’s ability to
sustain activities of daily living and that he need to lie down for
every ten to fifteen minutes of activity.
further opined that plaintiff would be absent from work as a result
of his impairments for more than four days per month.
She noted that “findings on testing appear mild” but stated that
plaintiff’s pain was severe and that she suspected he had pathology
that was not visible on x-ray.
B. Non-medical evidence.
Plaintiff was born on August 17, 1973, and was 39 years old on
the date of the ALJ’s decision.
T. 9-28, 135.
He received a high
school diploma and underwent vocational training in the electrical
Plaintiff lived with his father.
his DIB application, plaintiff reported that he had difficulty
working, walking, sleeping, and lifting due to his pain.
Plaintiff could care for his hair, feed himself, and use the
toilet, but had some difficulty dressing and showering. T. 188-89.
He prepared his own meals in the microwave, did laundry, and
cleaned his room without assistance.
He drove and rode in
a car, shopped for food monthly, and did not do other house or yard
work due to pain. T. 189-90.
His hobbies included reading the
Bible, watching television, listening to music, and playing video
games, but he had to stop after thirty minutes due to pain.
At the hearing before the ALJ, plaintiff testified that he
experienced pain in his neck, lower back, and left shoulder.
He reported being able to lift a gallon of milk with his
right arm, but claimed he could not lift even a piece of paper with
his left arm.
T. 41-50. Plaintiff further testified that his pain
medications lessened his pain from an8-9/10 to a 5-6/10, but also
gave him dry mouth, constipation, headaches, and mental fogginess.
Plaintiff claimed that he could not drive, that he had
headaches lasting six months, and that weather changes increased
his pain and limited his mobility.
that there was no reason he could not be exposed to gases, fumes,
or other irritants.
In his motion, plaintiff contends that the Commissioner’s
decision was not supported by substantial evidence because (1)the
ALJ failed to accord controlling weight to the opinion of treating
physician Dr. Cummings; (2) the ALJ failed to properly evaluate
plaintiff’s subjective complaints of pain and made a conclusory
credibility finding; and (3) the ALJ failed to pose correct and
discussed below, the Court finds that these arguments are without
The ALJ did not violate the treating physician rule
The treating physician rule requires an ALJ to give controlling
weight to a treating physician’s opinion when that opinion is
“well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2);
see also Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003). However, an ALJ may give less than controlling weight to a
treating physician's opinion if it does not meet this standard, so
long as he sets forth the reasons for his determination.
Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); 20 C.F.R.
§ 404.1527(c)(2) (“We will always give good reasons in our notice
claimant's] treating source's opinion.”).
In this case, the ALJ gave little weight to Dr. Cummings’
opinion. T. 21-22.
The ALJ found that Dr. Cummings’ assessment of
plaintiff’s condition was unsupported by, and in fact in direct
including the April 2012 MRI that showed plaintiff’s cervical spine
to be in essentially normal condition.
The ALJ explained
that “[Dr. Cummings’] conclusions regarding the claimant’s physical
capabilities are far more stringent than the medical evidence,
including her own clinical observations[,] would suggest.”
The Court finds that the ALJ adequately articulated his
reasons for affording less than controlling weight to Dr. Cummings’
Dr. Cummings herself acknowledged that the findings on
testing did not account for the severe pain plaintiff claimed to be
T. 474; see also T. 322 (“I do know that unfortunately
his past findings do not correlate with his physical objective
findings.”). This is consistent with the assessment of plaintiff’s
neurologist Dr. Rifai that “[t]here is no neurologic explanation
for [plaintiff’s] pain and sensory symptoms” and that “[t]he
possibility of somatization associated with depression should be
Similarly, Dr. Durrani, a neurosurgeon,
found that there was “no correlation between [plaintiff’s] clinical
and radiological picture,” and that “it is possible there might be
an underlying psychological issue we are not dealing with at this
T. 260, 263.
Orthopedic surgeon Dr. Lasser also observed
that plaintiff did not have “any evidence of his spinal cord or .
. . vertebral axis to explain his symptoms” and recommended that
plaintiff “seek employment that is not very physical.”
Finally, treating pain management physician Dr. Sabahat observed
that plaintiff’s cervical MRI was essentially normal and referred
plaintiff for a toxicology urine screen.
The record thus
observed that his claims of pain were unsupported by any diagnostic
techniques, and that several physicians opined that plaintiff’s
pain was likely related to a psychological issue.
In short, the
ALJ’s conclusion that Dr. Cummings’ opinion was unsupported by the
medical evidence of record was well-founded.
See, e.g., Lewis v.
Colvin, 548 F. App’x 675, 678 (2d Cir. 2013) (ALJ is not required
to give controlling weight to treating physician’s opinion were “it
was unsupported by the objective medical evidence” and “based on
[the plaintiff’s] subjective complaints”).
The ALJ properly assessed
complaints and credibility
Plaintiff also contends that the ALJ committed legal error in
his assessment of plaintiff’s subjective complaint of pain and that
the ALJ’s assessment of plaintiff’s credibility was conclusory.
The Court disagrees.
In determining whether a plaintiff is disabled, the ALJ
considers “[the plaintiff's] symptoms and the extent to which
[those] symptoms can reasonably be accepted as consistent with the
§ 404.1529(a). An ALJ will not reject a plaintiff's statements
about the intensity and persistence of pain or other symptoms
“solely because the available objective medical evidence does not
substantiate [his or her] statements.” 20 C.F.R. § 404.1529(c)(2).
“If a claimant’s contentions are not supported by objective medical
evidence,” the ALJ considers the following factors in assessing the
(2) the location, duration, frequency, and intensity of the pain;
(3) precipitating and aggravating factors; (4) the type, dosage,
alleviate the pain; (5) any treatment, other than medication, that
the claimant has received; (6) any other measures that the claimant
employs to relieve the pain; and (7) other factors concerning the
claimant’s functional limitations and restrictions as a result of
Hughes v. Colvin, 2017 WL 1088259, at *4 (W.D.N.Y.
complaints] after weighing the objective medical evidence in the
record, the claimant’s demeanor, and other indicia of credibility,
but must set forth his or her reasons with sufficient specificity
to enable us to decide whether the determination is supported by
(internal quotations omitted).
In this case, the ALJ found that plaintiff’s statements
concerning the intensity, persistence and limiting effects of his
symptoms were not credible to the extent they were inconsistent
physicians had offered him only conservative treatments, likely due
The ALJ further noted that plaintiff’s claims regarding
his physical limitations, including that he was incapable of
lifting even a piece of paper with his left hand, were inconsistent
with his admitted activities of daily living.
Finally, the ALJ
observed that plaintiff’s claim that his drug and alcohol problems
were unrelated to his having ceased employment was inconsistent
with his having reported to Dr. Cummings in 2010 that his drug and
Plaintiff’s medical record does in fact contain numerous instances
where plaintiff reported employment issues prior to experiencing
his current symptoms.
See, e.g., T. 202-03, 300, 301.
“The ALJ retains discretion to assess the credibility of a
claimant’s testimony regarding disabling pain and ‘to arrive at an
independent judgment, in light of medical findings and other
evidence, regarding the true extent of the pain alleged by the
Young v. Astrue, 2008 WL 4518992, at *11 (N.D.N.Y.
Sept. 30, 2008) (quoting Marcus v. Califano, 615 F.2d 23, 27
(2d Cir. 1979)).
If an ALJ rejects a plaintiff’s subjective
complaints of pain, he must do so with “with sufficient specificity
to enable the Court to decide whether there are legitimate reasons
for the ALJ’s disbelief.”
(internal quotation omitted).
ALJ in this case has done so, pointing to multiple legitimate
reasons for his assessment of plaintiff’s credibility.
result, the Court finds that the ALJ’s assessment of plaintiff’s
credibility was free from legal error and adequately supported by
The ALJ appropriately questioned the VE
Plaintiff’s final argument is that the ALJ failed to pose
appropriate hypothetical questions to the VE.
In support of this
claim, plaintiff contends that “the hypothetical in this case was
posed as a full range of sedentary. . . .”
Docket No. 9 at 14.
review of the hearing transcript shows that plaintiff is incorrect.
restrictions set forth in the RFC.
See T. 55-57.
To the extent
inappropriate because it was inconsistent with the restrictions set
forth by Dr. Cummings, the Court has already concluded, for the
Dr. Cummings’ opinion less than controlling weight.
As a result,
plaintiff’s arguments based on the ALJ’s hypothetical questions are
For the reasons set forth above, and upon its review of the
record in its entirety, this Court finds that the record contains
substantial evidence to support the ALJ’s determination.
result, the Court upholds the Commissioner’s final decision.
For the foregoing reasons, defendant’s motion for judgment on
the pleadings (Docket No. 13) is granted, and plaintiff's motion
for judgment on the pleadings (Docket No. 9) is denied.
complaint is dismissed in its entirety with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
May 30, 2017
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