Fagner v Social Security

Filing 16

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,
14-cv-6569

Plaintiff,

DECISION AND
ORDER
-vsNANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

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
Security

(“defendant”

application
(“DIB”).

for

social

or

“the

security

Commissioner”)
disability

denying

his

insurance benefits

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.
PROCEDURAL HISTORY
On December 12, 2011, plaintiff filed an application for DIB,
alleging disability as of September 23, 2010.

Administrative

Transcript (“T.”) 135-41. Following the denial of his application,

1

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
matter.

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”).
T. 34-62.

The ALJ issued a decision dated December 26, 2012, in

which he determined that plaintiff was not disabled as defined in
the Act.

T. 9-28.

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
substantial

gainful

activity

since

September

23,

2010;

(3) plaintiff’s degenerative disc disease of the cervical spine and
lumbar spine and mild tendinopathy of the left shoulder/adhesive
capsulitis

status

post-surgery

were

severe

impairments;

(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
(“RFC”)

to

“perform

sedentary

work

as

defined

in

20

CFR

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
2

moderate exposure to extremes of cold, heat, wetness, or humidity;
avoid all exposure to hazards; perform unskilled work involving
simple

instructions;

regular

work

breaks

approximately

every

2 hours; (6) plaintiff was unable to perform any past relevant
work;

and

(7)

considering

plaintiff’s

age,

education,

work

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.

T. 1-6.

Plaintiff subsequently

filed the instant action.
DISCUSSION
I.

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).

This section

directs that when considering such a claim, the Court must accept
the findings of fact made by the Commissioner, provided that such
findings are supported by “substantial evidence” in the record.
42 U.S.C. § 405(g).

“Substantial evidence means more than a mere

scintilla. It means such relevant evidence as a reasonable mind
3

might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted).
When

determining whether

the

Commissioner’s

findings

are

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.
On

February

6,

2009,

plaintiff

recommendation of his therapist.

saw

Dr.

T. 310.

Cummings

at

the

Plaintiff reported

feeling very depressed and noted that he had been drinking heavily,
but had stopped since January 1st.

Id.

On physical examination,

plaintiff showed a flat affect, but was otherwise unremarkable.
Id. Dr. Cummings assessed plaintiff with depression and prescribed
Cymbalta.

Id.

Plaintiff

followed

up

with

Dr.

Cummings

regarding

depression on March 18, May 7, July 2, and July 30.

his

T. 306-209.

On November 12, 2009, Plaintiff was seen by Dr. Cummings and
4

reported having “crashed mentally” five days prior.

T. 301.

He

stated that his job was in jeopardy from having missed so many days
and reported “momentary” thoughts of self-harm.

Id.

Dr. Cummings

assessed plaintiff with major depression with an acute episode.
Id.

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.

T. 302.

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
concerns.

T. 300.

Apart from flat affect, plaintiff’s physical

examination was unremarkable.
Plaintiff

attended

Id.

inpatient

rehabilitation

for

alcohol,

cocaine, and marijuana dependence from December 16, 2009, to
January 6, 2010.

T. 202-40.

On discharge, plaintiff was assessed

with alcohol dependence, cannabis dependence, cocaine dependence,
nicotine dependence, major depression with anxiety, personality
disorder NOS, and GERD.
Id.

T. 202.

Plaintiff had a GAF score of 34.

Plaintiff’s prognosis was fair.

T. 207.

Plaintiff saw Dr. Cummings on January 21, 2010, to follow up
after his inpatient rehabilitation.

T. 298.

Plaintiff reported

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.
5

Id.

Plaintiff reported having been diagnosed with an enlarged disc in
his back in 2002.

Id.

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.

Id.

On February 25, 2010, plaintiff returned to Dr. Cummings,
complaining of left wrist pain.

T. 296.

Plaintiff reported that

he had been working out at home, doing sit-ups, pull-ups, and
lifting weights.

Id.

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
sciatica.

T. 297.

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.

T. 318-19.

Plaintiff followed up with Dr. Cummings on March 25, 2010.
T. 294.

He continued to report nerve pain.

Id.

On physical

examination, he had tenderness in the lower spine and showed
discomfort with flexion, abduction of the hip, and straight leg
lift,

though

he

was

able

to

complete

all

of

them.

Dr. Cummings prescribed Lortab, diclofenac, and gabapentin.
On

June

15,

2010,

plaintiff

began

management specialist Dr. Ashraf Sabahat.

treating

T. 364-65.

with

Id.
Id.
pain

On physical

examination, plaintiff exhibited significant tenderness with deep
palpitation over his right sacroiliac joint and no tenderness with
6

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.
Id.

Dr. Sabahat noted that the severity of the symptoms reported

by plaintiff did not correlate with his MRI findings.
Dr.

Sabahat

recommended

an

epidural

steriod

prescribed Lyrica, Naprelan, and Darvocet-N.

T. 365.

injection

and

Id.

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
well.

T. 362. That same day, plaintiff saw Dr. Sabahat, who

changed

his

T. 361.

prescription

for

Darvocet

to

one

for

oxycodone.

On palpation, plaintiff showed mild tenderness over the

right sacroiliac joint and severe tenderness over the left side.
Id.

Straight leg tests were negative in his lower extremities.

Id.
An MRI of plaintiff’s lumbar spine was performed on August 19,
2010.
MRI.

T. 318-19.
T. 358.

The results were unchanged from the March 2010

Dr. Sabahat referred plaintiff to neurosurgeon Dr.

Shakeel Durrani for consultation.

Id.

Dr. Durrani saw plaintiff on September 8, 2010.

T. 262-63.

Dr. Durrani noted that plaintiff had “mild disc degeneration at L4L5" and that his MRI was otherwise normal.

T. 263.

Dr. Durrani

opined that plaintiff’s “clinical symptoms do not correlate with
his radiological studies” and that there was no indication for
7

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
physician.
send

Id.

plaintiff

Dr. Durrani.
On

Dr. Sabahat subsequently asked Dr. Cummings to
for

a

psych

assessment

as

recommended

by

T. 355.

September

23,

2010,

plaintiff

saw

Dr.

Cummings

and

suggested that his pain might be attributable to a neck injury he
suffered as a child.

T. 287.

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.

T. 354.

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.

Id.

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.

T. 340-41.

Plaintiff saw Dr. Cummings on December 2, 2010, and expressed
frustration with his pain management.

T. 282-84.

Dr. Cummings

noted that plaintiff had refused to see another pain management
specialist as she had recommended.

T. 282.

On December 30, 2010,

plaintiff suggested to Dr. Cummings that he begin using a cane.

8

T. 280.

Dr. Cummings recommended that plaintiff see another

neurosurgeon, a neurologist, and a chiropractor.

T. 281.

On January 7, 2011, plaintiff presented at the emergency room
at

Schuyler

extremity.

Hospital

complaining

T. 241-43.

of

pain

in

his

left

lower

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.

T. 243.

Plaintiff received an epidural steroid injection in his spine
on January 11, 2011.

T. 352-53.

He reported to Dr. Cummings that

the injection had worked only for a few hours.

T. 278-79.

further reported that he had decided to use a cane.

He

T. 278.

Lumbar x-ray, myelogram, and post-myelogram lumbar CT scans of
plaintiff were performed on March 8, 2011 and were normal.

T. 245-

47, 315-17, 368-70.
On April 29, 2011, plaintiff saw neurologist Dr. Ziad Rifai.
T. 255-59.

On physical examination, plaintiff had antalgic gait

but was otherwise normal.
studies were normal.
no

neurologic

T. 256.

T. 256-59.

explanation

for

EMG and nerve conduction

Dr. Rifai opined that “[t]here is
[plaintiff’s]

pain

and

sensory

symptoms” and that “[t]he possibility of somatization2 associated
with depression should be considered.”

T.

256.

2

Somatization is “the expression of mental phenomena as physical (somatic)
symptoms.”
Merck Manual, Professional Version, “Overview of Somatization,”
https://www.merckmanuals.com/professional/psychiatric-disorders/somatic-sympto
m-and-related-disorders/overview-of-somatization (last accessed May 26, 2017).

9

An MRI of plaintiff’s cervical spine on May 31, 2011 showed
left

posterior

impingement.

disc

T.

herniation

at

313-14, 366-67.

C5-C6

with

no

visible

Additional epidural steroid

injections were performed on June 8, 2011, June 28, 2011, August 2,
2011, and August 17, 2011.

T. 347-48.

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.

T.

260.

Dr. Durrani opined

that there was “no correlation between [plaintiff’s] clinical and
radiological picture” and encouraged him to seek a second opinion.
Id.
On

December

1,

2011,

Dr.

Cummings

Examination for Employability form.

T.

completed
267-68.

a

Medical

Dr. Cummings

assessed plaintiff with no limitations regarding the use of his
hands, seeing, hearing, speaking, understanding and remembering
simple

instructions,

maintaining

socially

interacting
appropriate

appropriately
behavior,

with

others,

maintaining

basic

standards of grooming and hygiene, making simple decisions, and
performing simple tasks.
limitations
instructions,

regarding

Id.

She assessed plaintiff with some

understanding

maintaining

and

concentration

remembering
and

complex

attention

when

depressed, and using public transportation when in pain, and severe
limitations with walking, sitting, standing, lifting/carrying,
pushing/pulling,

bending/squatting,
10

and

climbing

stairs.

Id.

Dr. Cummings opined that plaintiff could not work because he
required constant position changes.

Id.

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.

Id.

Dr. Cummings further opined that it would be unsafe for plaintiff
to return to his prior work as an electrician.
Plaintiff

was

seen

by

consultative

Finnity, Ph.D., on February 3, 2012.

Id.

psychologist

T. 325-28.

reported headaches, left arm pain, and leg pain.

Id.

Kavitha

Plaintiff
He also

reported depressive symptoms, including difficulty sleeping and
loss of appetite.
personal

needs,

T. 325.
did

Plaintiff stated that he cared for his

laundry,

shopped,

drove,

friends, read, and played video games. T. 327.

socialized

with

Dr. Finnity opined

that plaintiff could follow and understand simple directions,
perform

simple

tasks,

maintain

attention

and

concentration,

maintain a regular schedule, learn new tasks, perform complex
tasks,

and

make

appropriate

decisions.

Id.

Plaintiff

difficulty relating with others and dealing with stress.

had
Id.

Dr. Finnity diagnosed plaintiff with major depressive disorder,
anxiety disorder NOS, polysubstance abuse in sustained remission,
chronic pain, and headaches.

Id.
11

His prognosis was fair.

Id.

Also on February 3, 2012, plaintiff was seen by consultative
physician Dr. Harbinder Toor.

T. 330-34.

constant

left

lower

back

pain

and

Plaintiff reported

shoulder

pain.

T.

330.

Plaintiff further reported that he had headaches daily.

Id.

Plaintiff told Dr. Toor that he did not clean, cook, perform
childcare, play sports, or engage in hobbies.

T. 331.

He stated

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.

Id.

Id.

On

Plaintiff

could rise from a chair without difficulty but had trouble changing
for the exam and getting on and off the examination table.

Id.

Neurological findings were normal apart from numbness and tingling
in the left extremities.

T.

332.

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.

Id.

Plaintiff had slightly reduced (4/5) grip strength with his left
hand and no deficits with respect to his right hand.

T. 333.

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.

Id. Dr. Toor opined that

plaintiff had moderate to severe limitations for standing, walking,
squatting, heavy lifting, pushing, pulling, and reaching with the
left shoulder.

Id.

Plaintiff had moderate limitations on sitting
12

for a long time and mild limitations for grasping and holding with
the left hand, twisting, bending, and extending the cervical spine.
Id.
On February 6, 2012, Dr. Sabahat completed a questionnaire
related to plaintiff.

T. 335-38.

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.
T. 337.

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.

T. 335-36.

On March 8, 2012, Dr. Cummings recommended that plaintiff see
another neurosurgeon.

T. 513.

On March 20, 2012, plaintiff

reported to Dr. Sabahat that he had seen a second neurosurgeon,
Dr.

Zuprak,

who

intervention.

had

also

declined

to

offer

any

surgical

T. 480.

On March 21, 2012, plaintiff saw orthopedic surgeon Dr. James
Mark regarding his shoulder pain.

T. 423-34.

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
tear.

T.

425.

Dr.

Mark ordered physical/occupational therapy,

which plaintiff began on March 30, 2012.

T.

492.

An MRI of plaintiff’s cervical spine on April 16, 2012 was
normal.

T. 432, 483.

An MRI of plaintiff’s lumbar spine on

April 17, 2012 showed minimal degenerative disc disease with
13

minimal posterior bulges from L3-L4 and L5-S1, with mild neural
foaminal narrowing on the left at L3-L4 and L4-L5.

T.

431, 482.

There was no progression or significant interval change in the
appearance of plaintiff’s lumbar spine from the previous studies.
Id.

Dr.

negative.

Sabahat
T.

opined

479.

that

these studies

were

essentially

Dr. Sabahat ordered a urine toxicology screen

and recommended that plaintiff begin to wean off narcotics.

Id.

The toxicology screen came back “essentially within normal limits.”
T. 478.
Plaintiff saw physicians assistant (“PA”) Mark Siditsky on
May 18, 2012.

T.

433.

Plaintiff reported that his left shoulder

pain was radiating to his fingers and requested pain medications.
Id.

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
spine.

T. 337-39.

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.

T. 443.

He reported some improvement in his

shoulder pain from a cortisone injection, but none from physical
therapy or NSAIDs.
surgery.

Id.

PA Kyle and Dr. Mark recommended shoulder

Id.

Dr. Mark performed arthroscopic surgery on plaintiff’s left
shoulder on June 28, 2012.

T. 454-60.
14

Pre-operatively, Dr. Mark

assessed

plaintiff

with

painful left shoulder.

significant

T.

453.

impingement

syndrome

and

Post-operatively, the diagnosis

was severe adhesive capsulitis, chondromalacia, and impingement
syndrome.

Id.

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.

T. 449.

Dr. Mark

recommended physical therapy to avoid further adhesive capsulitis,
which plaintiff began on July 2, 2012.

T. 450, 488.

Against

medical advice, plaintiff discontinued physical therapy on July 19,
2012, after eight sessions.
Mark

that

he

had

T.

discontinued

insurance would not pay for it.
his condition

had

460, 486-88.

regressed.

physical

therapy

T. 463-64.
Id.

Plaintiff told Dr.
because

his

As of July 30, 2012,

Dr. Mark

recommended

that

plaintiff appeal the insurance company’s decision and begin a home
exercise program.
Plaintiff

Id.

saw

August 14, 2012.

orthopedic

T. 465-66.

surgeon

Dr.

Steven

Lasser

on

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.

T. 466.

Dr. Lasser opined that plaintiff might have fibromyalgia and
recommended that he seek employment that was not very physically
demanding.

Id.

Plaintiff saw Dr. Cummings on August 23, 2012.

T.

505-506.

Dr. Cummings diagnosed low back pain, chronic left shoulder pain,
depression, and tobacco use.

T. 506.
15

She stated that plaintiff

might

have

depression

fibromyalgia
is

unmanageable.”
On

.

.

.

and

making

that

she

“suspect[ed]

his

pain

that

tolerance

bit

a

his
more

Id.

November

8,

2012,

Dr.

Cummings

completed

a

Residual Functional Capacity assessment for plaintiff.

Physical

T. 471-74.

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.

T. 471.

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
ramps/stairs/ladders/ropes/scaffolds,

occasionally

stoop,

frequently balance, crouch, crawl, and reach in all directions, and
occasionally handle, finger, and feel.

T. 471-72.

Dr. Cummings

noted no visual or communicative limitations, and recommended that
plaintiff avoid moderate exposure to extreme cold or heat, wetness,
and

humidity,

avoid

concentrated

exposure

to

gases

and

poor

ventilation, and avoid all exposure to vibration and hazards such
as machinery and heights.

T. 473.

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.
16

Id.

Dr. Cummings

further opined that plaintiff would be absent from work as a result
of his impairments for more than four days per month.

T.

474.

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.

T. 474.

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
field.

T. 155-56.

Plaintiff lived with his father.

T. 188.

In

his DIB application, plaintiff reported that he had difficulty
working, walking, sleeping, and lifting due to his pain.

T. 188.

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.

T. 190.

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.
T. 191.
At the hearing before the ALJ, plaintiff testified that he
experienced pain in his neck, lower back, and left shoulder.
T. 37-38.

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
17

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.
T. 51.

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.

T. 49-51.

Plaintiff testified

that there was no reason he could not be exposed to gases, fumes,
or other irritants.
II.

T. 47.

The Commissioner’s
evidence.

decision

is

supported

by

substantial

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
complete hypothetical

questions

to

the

VE.

For

the

reasons

discussed below, the Court finds that these arguments are without
merit.
A.

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);

18

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.

See

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
of

determination

or

decision

for

the

weight

we

give

[the

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
contradiction

to,

the

objective

medical

evidence

of

record,

including the April 2012 MRI that showed plaintiff’s cervical spine
to be in essentially normal condition.

T. 21.

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.”

T. 22.

The Court finds that the ALJ adequately articulated his
reasons for affording less than controlling weight to Dr. Cummings’
opinion.

Dr. Cummings herself acknowledged that the findings on

testing did not account for the severe pain plaintiff claimed to be
suffering.

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
19

for [plaintiff’s] pain and sensory symptoms” and that “[t]he
possibility of somatization associated with depression should be
considered.”

T.

256.

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
time.”

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.”

T. 466.

Finally, treating pain management physician Dr. Sabahat observed
that plaintiff’s cervical MRI was essentially normal and referred
plaintiff for a toxicology urine screen.
reveals

that

virtually

every

T.

physician

479.

who

The record thus

treated

plaintiff

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”).

20

B.

The ALJ properly assessed
complaints and credibility

plaintiff’s

subjective

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
objective

medical

evidence

and

other

evidence.”

20

C.F.R.

§ 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
plaintiff's

credibility:

(1) the

claimant’s

daily

activities;

(2) the location, duration, frequency, and intensity of the pain;
(3) precipitating and aggravating factors; (4) the type, dosage,
effectiveness,

and

side

effects

of

any

medications

taken

to

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
the pain.

Hughes v. Colvin, 2017 WL 1088259, at *4 (W.D.N.Y.

21

Mar.

23,

2017).

“An

[ALJ]

may

properly

reject

[subjective

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
substantial evidence.”

Id.

(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
with

the

RFC.

T.

16.

The

ALJ

explained

that

plaintiff’s

physicians had offered him only conservative treatments, likely due
to

the

T.

23.

lack

of

documented

strongly

clinical

physical

signs.

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
alcohol

problems

were

threatening

his

employment.

T.

23.

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
22

independent judgment, in light of medical findings and other
evidence, regarding the true extent of the pain alleged by the
claimant.’”

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.”

Id.

(internal quotation omitted).

The

ALJ in this case has done so, pointing to multiple legitimate
reasons for his assessment of plaintiff’s credibility.

As a

result, the Court finds that the ALJ’s assessment of plaintiff’s
credibility was free from legal error and adequately supported by
the evidence.
C.

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.

A

review of the hearing transcript shows that plaintiff is incorrect.
The

ALJ

posed

a

hypothetical

to

restrictions set forth in the RFC.
that

plaintiff

contends

that

the

VE

that

See T. 55-57.
the

ALJ’s

included

the

To the extent

questioning

was

inappropriate because it was inconsistent with the restrictions set
forth by Dr. Cummings, the Court has already concluded, for the
reasons

discussed

above,

that
23

the

ALJ

properly

afforded

Dr. Cummings’ opinion less than controlling weight.

As a result,

plaintiff’s arguments based on the ALJ’s hypothetical questions are
without merit.
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.

As a

result, the Court upholds the Commissioner’s final decision.
CONCLUSION
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

24

The