Alvarez v. Colvin
Filing
22
-CLERK TO FOLLOW UP-ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 18 Commissioner's Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 09/30/2016. (JKT) (Main Document 22 replaced on 9/30/2016) (JHF).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MAYPA ALVAREZ,
Plaintif.f,
DECISION & ORDER
15-CV-6193
v.
CAROLYN W. COLVIN,
Defendant.
Preliminary Statement
Plaintiff
Mayda
Alvarez
brings
this
action
pursuant
to
Titles II and XVI of the Social Security Act seeking review of
the final decision of the Commissioner of Social Security ("the
Commissioner")
denying
disability
disability,
security income.
her
for
applications
insurance
benefits
and
period
of
supplemental
Presently before
(Docket # 1) .
See Complaint
a
the Court are the parties' competing motions for judgment on the
pleadings pursuant to Rule 12 (c)
of the Federal Rules of Civil
See Docket ## 10, 18.
Procedure.
Background and Procedural History
On
July
20,
2012
plaintiff
disability and disability
security income.
claims
were
Plaintiff
for
insurance benefits,
Administrative Record ("AR.")
denied
timely
applied
on
filed
October
a
30,
request
l
2012.
for
a
a
period
of
and supplemental
at 288-89.
AR.
hearing
at
The
292-307.
before
an
Administrative Law Judge
was
held on July 10,
( "ALJ") .
2013,
AR.
at 308-09.
The hearing
before ALJ Rosanne M.
Dummer,
appeared via video teleconference from Falls Church, VA.
219-63.
Plaintiff appeared in Rochester,
Justin Goldstein.
Id.
an
unfavorable
Id.
decision,
AR. at
NY with her attorney,
Dian Lee Haller,
testified at the hearing.
who
a Vocational Expert,
On July 24, 2013, the ALJ issued
determining
that. claimant
was
not
disabled under sections 216(i), 223(d), and 1614(a) (3) (A) of the
Social Security Act.
AR. at 170-88.
Plaintiff requested review
of the ALJ's decision with the Appeals Council.
On
February
2,
2015,
request for review,
Commissioner's
followed.
the
Appeals
denied
plaintiff's
thereby adopting the ALJ' s decision as the
decision.
The
Council
AR. at 168-69.
Court
AR.
heard
at
1-4.
oral
This
argument
federal
on
the
lawsuit
competing
motions on May 20, 2016.
Medical History
On
February
11,
2011,
plaintiff
Strong Memorial Hospital for pain,
right hand and forearm.
plaintiff's
saw
Dr.
John
Elfar
at
numbness and tingling in her
AR. at 1023-24.
electromyography and nerve
Dr.
Elfar noted that
conduction studies were
negative and that she walked with a normal gait and had a normal
mood and appropriate affect.
AR.
at 1023.
He reported Tinel's
sign at the right hand and that plaintiff had signs and symptoms
2
consistent
Id.
Dr.
later
with
carpal
Elfar
gave
reported
Plaintiff
did
saw
NP
tunnel
syndrome
plaintiff
not
a
improve
Lesley
steroid
her
Johnson
2011,
Internal Medicine
been
present
for
for
on
March
AR.
25,
2011,
Dr.
Kulik
four
years.
Dr.
AR.
at
554-55.
so severe that
·Plaintiff
it kept her up at
Kulik noted hyppallesthesia in right
remarked
August
that
plaintiff
had
2011
and
January
On
Spaziani
August
complaining
of
19,
2011,
low
caused her to quit her job.
AR.
plaintiff
Plaintiff
forward
reported
had
tenderness
flexion,
2+
sensation.
chronic
no
to
AR. at 547-48, 545-
radiation of
at
546.
Dr.
pain
her
full
back
to
Dr.
pain
NP
but
symptoms,
Michelle
which
Karen
no
had
a
2011,
Mazza.
spasms,
negative
motor strength,
Spaziani
3
saw
On November 15,
palpitation
deep tendon reflexes,
AR.
at 548.
back
sought
Her lower back muscles
AR. at 547.
were tender to palpitation.
Id.
plaintiff
plaintiff
progressive
AR. at
self-discontinued
2012,
treatment on three occasions for back pain.
461-62.
her
Id.
therapy, and suggested she start taking Gabapentin.
Between
1038.
and
but otherwise plaintiff's physical exam was normal.
555.
test,
at
she
which she reported had
554.
46'
which
chronic arm pain,
night.
arm,
injection,
pain.
Tobias Kulik at Strong
the pain was
at
forearm
plaintiff saw Dr.
complained that
AR.
some
symptoms.
physical exam was essentially normal.
On June 8,
and
full
SLR
and intact
saw plaintiff
again on
January
9,
2012,
movement.
back
AR.
was
for
at
tender
complaints
462.
to
of
back pain
On physical
palpation
over
bilaterally in the lumbar region.
examination,
the
AR. at 462.
and
plaintiff's
rotation.
pain
could
inflammatory arthritis
Id.
Plaintiff
Id.
was
be
with a
advised
Medical
saw
Center
in
PA
exam
Amy
2,
extension,
assessed
nature
element
continue
lateral
or
of
that
possibly
depression.
physical
therapy
and
Id.
Kallio
February
on March
possible
to
and
resulting from a fall on ice.
physical
in
muscles
Plaintiff had a
Spaziani
somatic
increase her Cymbalta dose.
Plaintiff
Dr.
her
plaintiff's
paraspinous
guarded but good range of motion on f lexion,
movement
restricting
at
University
March,
2012,
of
for
Rochester
knee
pain
AR. at 464-45, 468-89, 470-71.
2012
revealed a
somewhat
A
depressed
affect, palpable tenderness along the radial and ulnar aspect of
the proximal forearm and at the medial edge of the patella,
and
discomfort with range of motion in plaintiff's right knee.
AR.
at 468.
PA Kallio prescribed Paxil for plaintiff's depression.
On March 26,
2012,
PA Kallio's exam revealed minimal soft tissue
swelling in plaintiff's right knee, and she noted that Paxil had
helped improve plaintiff's depression.
Also
on
assessment
She
opined
March
for
26,
2012,
determination
that
plaintiff
PA
of
was
Kallio
completed
employment.
unable
4
AR. at 470-71.
to
AR.
a
physical
at
824-827.
participate
in
any
activities other than treatment for the next six months.
at
PA Kallio noted that plaintiff had an abnormal gait and
824-25.
was unable to perform a heel and toe walk or squat.
She
AR.
assessed
plaintiff's
being "very limited"
ability to walk,
estimated
functional
AR. at 826.
limitations
(1-2 hours in an eight hour workday)
stand,
sit,
push,
pull,
bend,
as
in her
lift and carry.
AR. at 827.
On
May
Nicandri
pain.
and Dr.
lateral
joint
insertion
Andrew Bogle
at 535.
AR.
plaintiff
2012,
10,
line
at
tenderness
tenderness,
knee
cortisone shot.
by
Dr.
Strong Orthopedics
as
and
well
However,
as
Gregg
for
knee
pain
had
pes
anserinus
medial
and
and
lateral
IT
band
femoral
plaintiff had full extension and
Id.
was able to flex to 110 degrees.
right
treated
Plaintiff's physical exam showed medial and
condyle tenderness.
her
was
unclear
The doctors assessed that
etiology
and
gave
her
a
AR. at 536.
Plaintiff saw PA Kallio on September 10, 2012 for radiating
back and knee pain,
right elbow joint pain,
depression,
back spasms, galactorrhea, and recurrent knee pain.
lower
AR. at 705.
Plaintiff reported that her back pain was worse during the day,
and
became
aggravated
standing or twisting.
described as
when
AR.
bending,
at 709.
"stabbing and aching."
5
lying
down,
sitting,
Plaintiff's knee pain was
Id.
On examination,
PA
Kallio noted decreased range of motion, swelling and tenderness.
AR. at 709-10.
On September 29,
2012,
plaintiff underwent a consultative
internal
medicine
557~60.
Plaintiff complained of pain in her lower back,
arm and wrist,
examination by Dr.
and right knee.
was able to cook,
clean,
AR.
Harbinder Toor.
at 557.
AR.
at
right
She said that she
do laundry and shop,
but did not do
child care, read, or socialize, and had no hobbies.
AR. at 558.
Dr. Toor noted on physical examination that plaintiff's gait was
abnormal and she limped toward her right side.
Id.
She had
difficulty getting out of her chair and changing for the exam,
and declined to squat or perform a heel-to-toe walk.
Toor
noted
restriction
in
plaintiff's
lumbar
Id.
spine
Dr.
forward
flexion and that plaintiff was unable to perform extension.
at 559.
AR.
Her right elbow flexion/extension was restricted as was
Id.
her forearm supination/pronation.
Plaintiff had tenderness
in her right
elbow and wrist,
right knee and leg.
right
palmar
dorsif lexion,
wrist
deviation
were
flexion/extension
tingling
and
f lexion,
all
Toor
Id.
was. restricted.
numbness
dexterity was not intact.
Dr.
limited.
diagnosed
in
her
and
Her
hand,
and
Her
ulnar/radial
right
Plaintiff
Id.
right
Id.
knee
described
her
finger
Id.
plaintiff
with
a
history
of
chronic
lower back pain, a history of pain in the right knee, arthritis,
6
history of pain in the right elbow,
hand with numbness,
medical
source
moderate
squatting,
and a history of depression.
statement,
severe
to
buttoning
objects
with
the
opined
that
Also
on
sitting
writing,
buttons,
right
forearm
interfered
and
plaintiff
long
tying
a
pushing,
shoes,
zipping
and
holding
He
further
hand.
plaintiff's.
had
walking,
time,
coin,
right
with
In his
standing,
a
manipulating
and right
Id.
that
with
holding,
pain
physical routine.
Toor opined
lifting,
grasping,
zippers,
Dr.
limitations
bending,
pulling,
right lower arm,
balance
and
Id.
September
plaintiff
2012,
29'
underwent
a
consultative psychiatric evaluation with Dr. Christine Ransom at
the behest of the Social Security Administration.
Dr.
64.
Ransom
medication
Plaintiff
for
noted
that
depression
complained
of
plaintiff
for
the
had
last
difficulty
been
year.
falling
AR. at 561treated
with
AR.
561.
asleep,
at
decreased
appetite, weight loss, frequent crying spells, irritability, low
energy,
difficulty concentrating and having "too many thoughts
in her mind at once."
Id.
Plaintiff stated that she did not
socialize outside of her family and avoided being around people.
AR.
at
motor
562.
Dr.
behavior,
moderately
attention,
Ransom observed that plaintiff had lethargic
downcast
dysphoric
eye
Id.
speech.
concentration,
cognitive
7
slow,
halted,
Plaintiff's
contact,
memory,
and
functioning,
insight
and
judgment were all adequate.
plaintiff
could
instructions,
follow
perform
AR. at 563.
and
Dr. -Ransom opined that
understand
simple
tasks
simple
directions
independently,
and
maintain
attention and concentration for simple tasks,
maintain a simple
regular schedule and learn simple new tasks.
Dr. Ransom stated
that plaintiff would have difficulty performing complex tasks,
relating adequately with others and appropriately dealing with
Id.·
stress.
She
diagnosed plaintiff
disorder, currently moderate.
with major
depressive
Id.
Plaintiff followed up with Dr. Spaziani on October 8,
for constant radiating back and knee pain.
Spaziani
found
mild
effusion
Her
back
was
tender
in plaintiff's
to
Dr.
AR. at 565-66.
right
knee,
tenderness to palpation over the knee's medial aspect.
566.
2012
palpation over
the
with
AR.
at
paraspinous
muscles in the lumbar region and up the thoracic spine, but she
did not complain of tenderness when strong pressure was applied
with a stethoscope.
AR.
at 565-66.
physical therapy and the pain center.
reviewed
the
examination
syndrome in a young woman.
notes,
Plaintiff was referred to
AR. at 566.
commenting
Dr. Martin
"chronic
pain
Certainly too young to be disabled.
May need psych referral to help with depression and motivation
in addition to the Pain Treatment Center and physical therapy.
Agree with no narcotics."
AR. at 722.
8
On
October
psychiatrist,
26,
2012,
M.
reviewed the
Apacible,
M.D.,
Kallio
November 15,
was
authored
2012.
"very limited"
AR.
at
hours
831.
another
stand,
Plaintiff
concluded
AR. at 273-75.
employability
at 828-31.
was
push,
that
met
pull,
bend,
lift,
plaintiff
was
unable
with
LMSW
Lynne
AR.
at 810-18.
in
and carry.
(two to
in her ability to sit.
four
PA
Id.
to participate
in
AR. at 829.
DeLilli
Mental Health Center on December 11,
safety plan.
on
She opined that plaintiff
activities other than treatment for six months.
Plaintiff
assessment
"moderately limited"
in .an eight hour day)
Kallio
Agency
(one to two hours in an eight hour day)
her ability to walk,
AR.
State
record and concluded that plaintiff
retained the ability to perform unskilled work.
PA
a
at
the
Rochester
2012 to create an initial
Plaintiff indicated that she was
working on her tearfulness,
negative thoughts,
and thoughts of
self-harm.
reported that
had experienced
Id.
Plaintiff
she
symptoms of depression and anxiety for several years and had a
history
abuse.
of
sexual
AR. at 818.
assault,
domestic
violence,
and
physical
Plaintiff confessed to thoughts of suicide.
LMSW DeLilli diagnosed plaintiff with depressive disorder.
Id.
On December 18, 2012, plaintiff was examined on referral by
Joel Kent,
M.D.
at the Pain Treatment Center at the University
of Rochester Medical Center.
right arm pain,
AR. at 779-84.
Plaintiff reported
low and mid-back pain and right leg pain.
9
AR.
at 779.
pain
Her right arm pain had begun two years prior,
dated
stemmed
stated
to
from
that
current
an
a
injury
from
January 2012
her
pain,
July
fall.
that
she
that
she
was
unable
was
used
occasionally crutches to walk.
Kent
AR.
daily functioning
and
2011,
AR.
to
and
at
her
her back
knee
779-80.
pain
Plaintiff
severely limited by her
a
knee
at 780.
complete
immobilizer
.and
Plaintiff told Dr.
any
activities
of
daily
living at home due to her pain and that she relied on her two
daughters
to
with
sleep.
her
stress
and
generally
complete
AR.
anxiety,
household
at
chores.
Plaintiff
well-controlled
she
by
described
increased
indicated
782.
though
Pain interfered
Id.
that
mood
her
Id.
medication.
Dr.
was
Kent's
recommendation and treatment plan detailed plaintiff's extensive
pain
response
and
pronounced
symptoms
appeared to be minor orthopedic problems
AR.
pathology.
psychosocial
at
784.
factors
He
were
stated
in
to
what
and benign underlying
that
negatively
response
it
was
likely
modulating
her
responses, and recommended physical therapy and medication.
that
pain
Id.
Plaintiff saw PA Amy Kallio throughout 2013 with continued
complaints
of
chronic
back,
and chronic
upper
and
pain
in
diffuse pain
1091.
trigger
points
On
of
January
28,
plaintiff's
right
knee,
right
arm
and
in her upper back and neck and
AR.
lower extremities.
987-96,
her
at
2013
back,
10
121-22,
PA
798-804,
Kallio
chest
wall
noted
and
972-83,
multiple
upper
and
lower
extremities,
assessed
and
prescribing · Gabapentin.
February 18,
2013
Gabapentin,
AR.
scheduling
a
chronic
pain,
letter
conditions"
804.
fibromyalgia,
Plaintiff
returned
on
and PA Kallio slowly increased the dosage of
conduction studies.
drafted
at
probable
a
one-month
AR. at 983.
stating
that
fibromyalgia,
which were
follow
On February 20,
plaintiff
depression
a
history
anxiety,"
"not well controlled."
nerve
2013 PA Kallio
"ha [d]
and
for
up
of
"chronic
The letter
Id.
concluded that plaintiff was unable to perform jury service for
the
next
April
eighteen months.
16,
2013
Plaintiff
reporting
a
recent
returned to
emergency
increased upper and lower back pain.
dosage
of
Gabapentin was
again
AR.
PA Kallio on
room
and
for
Plaintiff's
at 995.
increased,
visit
PA Kallio
noted
that plaintiff had an upcoming mental health appointment.
AR.
at 996.
On May 20,
she
has
times a
Dr.
plaintiff saw Dr. Spaziani,
2013,
been walking
two
miles
to
her mother's
week in an attempt to exercise more.
Spaziani
paraspinous
identified
muscles
and
multiple
anterior
tender
trunk
and
switched plaintiff from Gabapentin to Lyrica.
At a
follow up on June
11,
2013,
11
at
the
She
AR. at 1012.
PA Kallio noted diffuse
right
AR.
along
extremities.
tenderness
knee.
several
at 1000-12.
points
some decreased range of motion,
the
house
AR.
muscle tenderness,
of
reporting that
121-22.
and increased
In a
July 22,
2013
employability assessment,
PA Kallio opined that plaintiff
was very limited (one to two hours in an eight hour workday)
her ability to walk,
stand, push, pull,
pend, use hands,
in
or use
AR. at 1091. 1
public transportation.
Throughout 2013 plaintiff received mental health treatment,
primarily from LMSW DeLilli and NPP Amanda Lewis.·
79,
820,
2013,
821,
834-35,
plaintiff
839-41,
tearfully
842,
1083-86.
described
psychiatric
evaluation
with
NPP
Lewis
On
on
at . 78,
January
11,
stress
family
difficulties setting limits in relationships.
AR.
and
AR. at 820.
February
22,
At a
2013,
plaintiff described family stressors and ongoing depression for
the prior three years.
AR. at 839.
She reported social anxiety
and not wanting to be around too many people.
wrote
that
quite a
plaintiff
few stressors,
for major depressive
840.
had
a
felt
significant
history
Id.
NPP Lewis
of
trauma and
that she appeared to meet criteria
disorder,
and prescribed Prozac.
AR.
at
At a follow up with NPP Lewis on April 19, 2013, plaintiff
said that she did not take the Prozac and was
Paxil.
AR.
active
during
cleaning and
at 842.
the
Plaintiff reported that she was remaining
day
attending
doing yard work.
again on June 12,
instead back on
her
Id.
2013 and August 7,
appointments,
Plaintiff
2013,
cooking,
saw NPP
Lewis
the notes of which
'These two reports were submitted to the Appeals Counsel only.
12
were consistent with prior treatment and were submitted only to
the Appeals Counsel.
On
June
assessment
1085.
14,
for
2013,
LMSW
determination
DeLilli
of
issued
a
employability.
psychological
AR.
1083-
She concluded that plaintiff was unable to participate in
any activities except
treatment for six months.
AR.
She assessed that plaintiff would be very limited,
to function 25% or more of the time,
routine and maintain a
simple tasks.
Ms.
Id.
schedule,
at 1085.
i.e.
unable
in her ability to maintain
attention and concentration for rote tasks,
a
at
regularly attend to
and perform low stress and
DeLilli did not
indicate any area in
which plaintiff could function normally.
LMSW
DeLilli
filled
out
a
Mental
Residual
Functional
Capacity Questionnaire on September 26,
2013,
the Appeals Council.
She opined· overall that
AR.
plaintiff could not engage
on a sustained basis.
at 156-60.
in full-time
AR. at 160.
which was sent to
competitive employment
She wrote that plaintiff was
unable to meet competitive standards in her ability to deal with
stress of semiskilled or skilled work, and was seriously limited
in
her
ability
to
carry
out
detailed
instructions
realistic goals or make plans independently of others.
159.
DeLilli
competitive
attendance
also
described
standards
and
be
in
plaintiff
her
punctual,
ability
work
13
in
as
to
unable
maintain
coordination
and
set
AR.
to
at
meet
regular
with
or
proximity
to
others,
complete
a
normal
workday/week
interruptions from psychologically based symptoms,
consistent
rest
pace
periods,
without
get
appropriately to
an unreasonable
along
with
changes
with normal work stress.
in a
number
co-workers
or
routine work
AR. at 158.
without
perform at a
and
length of
respond
peers,
setting,
and deal
Plaintiff's prognosis was
fair.
Hearing Testimony
Testimony of Plaintiff:
On July 10,
held before ALJ Rosanne M. Dummer.
2013,
a hearing was
Plaintiff testified that she
went as far as the eleventh grade and did not have her GED.
at 224-25.
as
a
She had previously worked as an office cleaner and
wedding favor maker,
problems
AR.
with
her
right
but had to stop working because of
She
arm.
described
swollenness
and
tingling in her right hand that made it difficult to grab and
grasp things,
give out.
and swelling in her right knee that caused it to
AR.
at 227.
Plaintiff testified that she couldn't
afford the brace that was prescribed for her arm,
stopped using a
sleep.
and that she
knee brace because it gave her cramps
AR. at 227-28.
in her
She said that she was seeking treatment
for a recent diagnosis of fibromyalgia.
Id.
Plaintiff stated that she could walk about a block before
stopping,
depending on the pain.
14
AR.
at 230.
She lives with
her two teenage daughters who help her around the house.
233-34.
She
also
cares
for
special needs,
though she
take
him
care
of
limitations.
by
a
lot
because
organizations,
about
partially
strength in her right hand.
does
not
crowds.
watch TV but
of
vocational expert
245-62.
her
not been able
pain
and
to
physical
social
life,
plaintiff
she
AR. at 235.
listening
does
not
have
much
She also said that she
to music.
She
avoids
Vocational
Dian
Expert:
Haller,
("VE"), also testified at the hearing.
2,
DOT
skilled,
(2)
#
light work,
commercial cleaner,
381.687-014;
SVP of 6,
skilled,
(3)
heavy work,
manager
DOT # 189.167-018;
SVP
novelty maker,
semi-skilled,
of
7,
light work,
#
DOT
(1)
SVP of 4, DOT #
unskilled,
trainee,
SVP
work,
retail manager,
(4)
light
light
185.167-046;
unskilled,
a
AR. at
The VE described plaintiff's past work as follows:
270.357-030;
022.
with
car and does not belong to
because
likes
the
furniture salesperson,
work,
her
grandson
AR. at 238.
Testimony
of
old
she has
of
explained that she does not have a
any
year
She has trouble sleeping but is aided
Asked
Id.
two
said that
AR. at 234.
medication.
her
AR. at
SVP of 2,
and
(5)
paper
DOT # 794.684-
AR. at 248-49.
For
the
first
hypothetical,
the
ALJ
asked
the
VE
to
consider a person of the claimant's age, education and past work
history
who
is
able
to
lift
and
15
carry
about
twenty
pounds
occasionally and ten pounds frequently;
about six of eight hours;
the light level work;
unprotected
stand and walk
can push and pull commensurate with
can occasionally climb ramps and stairs;
can occasionally balance,
avoid
can sit,
stoop,
heights;
kneel,
right
is
crouch,
hand
and crawl; must
dominant
and
can
perform frequent, but not continuous or repetitive, handling and
fingering with right
limitations,
the
ALJ
understand, remember,
attention
for
dominant upper extremity.
simple
included
that
the
As
person
for mental
is
able
to
and carry out simple instructions; sustain
tasks
for
segments in an eight hour day;
extended periods
of
two
hour
can tolerate at least brief and
superficial contact with others; and is able to adapt to changes
as needed for unskilled,
responded
that
such
plaintiff's past work,
a
simple work.
person
would
AR.
not
The VE
at 250-51.
be
able
to
perform
but that such a person could work as an
usher or lobby attendant with 55,000 jobs available nationally;
a
sub
assembler
for
available nationally;
small
electrical
parts
with
29,000
jobs
a housekeeper with 220,000 jobs available
nationally; a parking lot attendant with 110,000 jobs available
nationally;
a
nationally;
an
final
assembler
inspector,
with
packer,
140,000
and
jobs
polisher
of
available
eyeglass
equipment with 45,000 jobs available nationally; and a packager
of small plastic products with 60,000 jobs available nationally.
AR. at 252-54.
16
The ALJ then asked the VE to consider the same hypothetical
person
with
the
additional
option every hour.
limitation
at 254.
AR.
of
a
brief
sit/stand
The VE responded that such a
person could perform the previously listed jobs except parking
lot attendant.
that
such
hours.
a
AR.
AR.
person
at 255.
could
at 256.
The ALJ added a further limitation
stand and
walk
only
four
of
eight
The VE responded that such a person could
not work as an usher,
lobby attendant,
or housekeeper.
AR.
at
256-57.
The
ALJ
asked
if
there
would
be
an
impact
on
the
jobs
identified by the VE if the hypothetical person were limited to
lifting ten pounds only.
that
the
impacted.
For
jobs
listed
AR. at 257.
at
the
To this the VE responded
sedentary
level
would
not
be
VE
to
Id.
her
final
hypothetical,
the
ALJ
asked
the
consider an individual with very limited to no ability to have
contact
with
other
people,
who
may
be
off-task
as
much
as
twenty-five percent of the workday and may need two unscheduled
breaks a day in addition to scheduled breaks.
AR. at 258.
The
VE responded that such a person could not perform any jobs in
the national economy.
Id.
Determining Disability Under the Social Security Act
17
The Evaluation Process:
The Social Security Act provides
that a claimant will be deemed to be disabled "if he is unable
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which .
has lasted or can be expected to last for a continuous period of
not less than twelve months."
U.S.C.
42
§
The
1382c(a) (3) (A).
impairments must be "of such severity that he is not only unable
to
do
his
education,
previous
and
work
work
but
cannot,
experience,
engage
considering
in any
other
his
age,
kind
of
substantial gainful work which exists in the national economy
"
The
42 u.s.c.
§
1382c(a) (3) (B).
determination
of
disability
entails
a
five-step
sequential evaluation .process:
1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
If not, the Commissioner considers whether the
claimant has a "severe impairment" which limits his or
her mental or physical ability to do basic work
activities.
· 2.
If the claimant has a "severe impairment," the
Commissioner must ask whether, based solely on medical
evidence,
claimant
has
an
impairment
listed
in
Appendix 1 of the regulations. If the claimant has one
of these enumerated impairments, the Commissioner will
automatically
consider
him
disabled,
without
considering vocations factors such as age, education,
and work experience.
3.
impairment
is
not
"listed"
in
the
If
the
the
Commissioner then asks
whether,
regulations,
despite the claimant's severe impairment, he or she
4.
18
has residual functional capacity to perform his or her
past work.
5.
If the claimant is unable to perform his or her
past work, the Commissioner then determines whether
there is other work which the claimant could perform.
The Commissioner bears the burden of proof on this
last step, while the claimant has the burden on the
first four steps.
Shaw v.
C.F.R.
Chater,
221
F.3d 126,
404.1520,
§§
132
416.920.
(2d Cir.
Plaintiff
2000);
bears
proving his case at steps one through four.
is
a
"limited burden
shift
to
the
see also 20
the
burden
At step five,
Commissioner"
to
of
there
"show that
there is work in the national economy that the claimant can do."
Poupore v. Astrue,
Commissioner
566 F.3d 303,
"need
not
306
provide
(2d Cir.
2009)
additional
(noting that
evidence
claimant's residual functional capacity" at step five);
20 C.F.R.
the
see also
404.1560(c) (2)
§
The ALJ' s
evaluation,
first
of
In applying the
Decision:
five-step
sequential
At the
the ALJ made the following determinations.
step,
the
ALJ
found
that
plaintiff
had
substantial gainful activity since December 1,
onset date.
AR. at 175.
At the second step,
not
2010,
engaged
in
the alleged
the ALJ found that
plaintiff has the following severe impairments: major depressive
disorder,
pain
medial
neuropathy,
the
anxiety,
third
history
epicondyle,
knee
step,
ALJ
drug- seeking,
right
arthritis
the
of
wrist
right
tendinitis,
and fibromyalgia.
found
that
19
plaintiff
AR.
does
elbow
joint
right
at
hand
176.
not
have
At
a
listed
impairment
which
would
social security listings.
moved
to
the
plaintiff
has
fourth
the
her
disabled
AR. at 176-77.
step,
residual
perform her past work,
render
which
Accordingly,
requires
functional
under
asking
capacity
the
the ALJ
whether
("RFC")
to
notwithstanding her severe impairments .
. The ALJ concluded that plaintiff has the RFC to perform light
work, with the following limitations:
[Plaintiff] can lift/carry about twenty pounds
occasionally and ten pounds frequently; sit about
six of eight hours; and stand/walk about six of
eight hours.
She can perform pushing and pulling
commensurate with light level work.
She can
occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl.
She should
avoid unprotected heights.
She is right-hand
dominant,
and she can perform. frequent
(not
continuous/ repetitive) handling and fingering
with
the
right
dominant
upper
extremity.
Secondary to mental limitations, the claimant is
able to understand,
remember,
and carry out
simple instructions.
She is able to sustain
attention for simple tasks for extended periods
of two-hour segments in an eight-hour day.
She
is
able
to
tolerate
at
least
brief
and
superficial contact with others.
She is able to
adapt to changes as needed for unskilled simple
work.
She should have the option to sit or stand
briefly on the hour, at the workstation.
AR. at 177.
Lastly, the ALJ moved to the fifth step, which is comprised
of
two
parts.
plaintiff's
job
AR.
at
186-88.
qualifications
by
First,
the
ALJ
assessed
considering . her
physical
ability, age, education, and previous work experience.
Id.
The
ALJ next determined whether jobs exist in the national economy
20
that
a
person
perform.
Id.;
404 .1520 (f)'
with
plaintiff's
qualifications
see also 42 U.S.C.
416: 920 (f).
423 (d) (2) (A);
§
The ALJ
and
found
that
RFC
could
20 C.F.R.
"there are
§§
jobs
that exist in significant numbers in the national economy" that
plaintiff can perform,
specifically usher/lobby attendant,
assembler of small electric parts, housekeeper,
sub-
final assembler,
inspector/packer/polisher of eyeglass equipment,
or packager of,
AR. at
small plastic products, pursuant to the VE's testimony.
187.
Standard of Review
The
denying
scope
of
benefits
this
to
Court's
plaintiff
review
is
of
the
ALJ' s
It
limited.
is
decision
not
the
function of the Court to determine de novo whether plaintiff is
disabled.
Brault v. Soc. Sec. Admin., Comm'r,
(2d
2012).
Cir.
administrative
evidence
record
supporting
Commissioner
Rather,
so
confirms
the
applied
long
as
that
a
"there
Commissioner's
the
683 F.3d 443, 447
correct
review
is
and
"the
standard,"
the
Commissioner's determination should not be disturbed.
Barnhart,
U.S. 1132.
It
means
475 F.3d 77,
80-81
(2d Cir.
2007),
the
substantial
decision,"
legal
of
cert.
Acierno v.
denied,
551
"Substantial evidence is more than a mere scintilla.
such
relevant
evidence
as
a
reasonable
accept as adequate to support a conclusion."
21
mind
Brault,
might
683 F.3d
at
447-48
"Even
(internal
where
support
the
citation
and
administrative
contrary
findings
on
quotation
record
marks
may
particular
omitted).
also
adequately
issues,
the
ALJ's
factual findings must be given conclusive effect so long as they
are
supported by substantial evidence."
F.3d 46, 49
(2d Cir. 2010)
Genier v.
Astrue,
(internal quotation marks omitted).
This deferential standard of review does not mean,
that
the Court
determination.
it
should simply
"rubber stamp"
claimants
Moran v.
unlike a
569
Apfel,
F.3d
198
trial,
develop
non-adversarial
Astrue,
Melville v.
the Commissioner's
in our circuit that the social
judge in a
affirmatively
essentially
however,
"Even when a claimant is represented by counsel,
is the well-established rule
security ALJ,
606
the
nature
108,
hearing on disability benefits
record
of
112
F.3d 45,
51
is
must on behalf of all
a
light
benefits
(2d
Cir.
(2d Cir.
a
in
of
the
proceeding."
2009);
1999)
see
also
("Because a
nonadversarial proceeding,
the ALJ generally has an affirmative obligation to develop the
administrative record.") .
the
record need be
factors
explicitly reconciled by
in any determination must be set
specificity
the
While not every factual
to
enable
determination
Ferraris
determine
v.
is
Heckler,
whether
[the
the
reviewing
supported
728
F.2d
582,
findings
22
are
ALJ,
to
decide
substantial
587
in
"crucial
forth with sufficient
court]
by
the
conflict
(2d
Cir.
supported
by
whether
evidence.
1984).
11
"To
substantial
evidence,
record,
the reviewing court is required to examine the entire
including contradictory evidence and evidence from which
conflicting inferences can be drawn."
F.2d 1033,
1038
(2d Cir.
1983).
Mongeur v.
Moreover,
Heckler,
722
" [w] here there is a
reasonable basis for doubt whether the ALJ applied correct legal
principles,
application of the substantial evidence standard to
uphold a finding of. no disability creates an unacceptable risk
that
a
claimant
disability
will
be
determination
principles."
Johnson
v.
deprived
made
of
the
according
Bowen,
817
right
to
F.2d
the
983,
to
have
correct
986
her
legal
(2d
Cir.
1987).
Discussion
Plaintiff challenges the ALJ's decision on the grounds that
the ALJ improperly weighed medical opinions and evidence in her
physical and mental RFC analysis,
and argues that therefore the
ALJ' s decision is not supported by substantial evidence on the
record.
See
Plaintiff's
Memorandum of
Plaintiff's Reply (Docket # 19).
Law
(Docket
#
10-1);
For the reasons that follow,
I
find that the ALJ appropriately analyzed the medical evidence of
record and issued a decision that was supported by the record.
I.
step four,
residual
Plaintiff's Physical Residual Functioµal Capacity:
At
the ALJ found that plaintiff retained the physical
functional
capacity
to
23
perform
light
work
with
occasional
and
a
postural
brief
limitations,
sit/stand
option
frequent
on
the
handling/fingering,
hour.
AR.
at
177.
Plaintiff argues that this RFC analysis is inappropriate because
it
does
not
conform
Harbindor Toor.
the
only
residual
to
the
medical
opinion provided
by
Dr.
According to plaintiff, since Dr. Toor provided
medical
opinion
functional
related
capacity,
to
the
plaintiff's
must
ALJ
physical
"provide
an
overwhelmingly compelling lay justification" in order to reject
Dr. Toor's opinion.
See Plaintiff's Memorandum of Law (Docket #
10-1) at 34.
Dr.
Toor examined plaintiff on September 29,
behest of
2012
at the
at
557-60.
AR.
the Social Security Administration.
After performing a full social history, assessment of activities
of daily living,
and physical examination,
Dr.
Toor authored a
medical source statement describing plaintiff as having moderate
to severe limitations standing, walking, squatting, bending, and
lifting;
moderate
limitations
sitting
for
a
long
time
and
stating that pain would interfere with her balance and physical
routine;
holding,
and
moderate
writing,
limitations
tying
shoes,
buttons, manipulating a coin,
forearm
and
right
hand.
AR.
pushing,
zipping
pulling,
zippers,
grasping,
buttoning
or holding objects with the right
at
560.
The ALJ
rejected Dr.
Toor's assessment of plaintiff's moderate to severe limitations
as inconsistent with the overall evidence,
24
explaining that "Dr.
opinion
Toor's
appears
be
to
based· on
the
reports and is entitled to little weight."
claimant's
self-
AR. at 184.
Plaintiff contends that the ALJ erred by using her own lay
.opinion to discount Dr.
that
it
was
subjective
inappropriate
assessments
fibromyalgia,
primarily
Toor's opinion.
ALJ
to
pain because
of
for
the
she
recognized
a
through
Plaintiff also argues
disorder
subjective
objective medical findings.
reject
is
diagnosed with
which
experiences
of
plaintiff's
identified
is
pain
rather
See Plaintiff's Memorandum
than
(Docket
# 10-1) at 36-37; Plaintiff's Reply {Docket# 19) at 3.
As
a
one-time
entitled to
the
same
Burgess v. Astrue,
that
treating
consultative
deference as
537 F.3d 117,
physician's
"controlling weight") .
consulting
given
record.
weight
See Cruz v.
see also Camille v.
it
Citing Giddings v. Astrue,
Cir.
2009),
plaintiff
argues
that
2
is
not
report
should
with
Supp.
other
13
given
found that a
generally
be
opinions
of
{2d Cir.
3d 329,
See
{explaining
generally
are
912 F.2d 8,
104 F.
2008)
Circuit has
conflicts
Sullivan,
Colvin,
(2d Cir.
this
or
Dr .. Toor
treating physician.
opinions
opinion
if
a
128
Indeed,
physician's
little
examiner,
343
1990);
(W.D.N.Y.
333 F. App'x.
649,
652
(2d
the
required
to
ALJ
was
0f course, in some circumstances, a consultative examiner's
opinion may constitute substantial evidence to support an ALJ' s
decision, provided it is supported by evidence on the record.
See Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995).
25
provide
an
discounting
"overwhelmingly
Dr.
Toor's
(Docket # 10-1)
the
Second
district court,
one-time
opinion.
at 35.
Circuit
compelling
I
See
justification"
Plaintiff's
respectfully disagree.
remanded
a
disability
for
Memorandum
In Giddings,
case
back
to
the
finding in part that the ALJ's rejection of a
examiner's
opinion
was
unsupported
by
the
record.
Important to the Second Circuit was the fact that the one-time
examiner's
opinion
was
"the
only medical
opinion"
explicitly
addressing the effects of plaintiff's impairments on her ability
to
work
and
because
the
ALJ
opinion
that
Giddings,
333 F. App'x at 652
the
foregoing,
stands
contradicted
the
court
uncontradicted,
physicians,
"did
however
the
that
thorough
537 F.3d 117, 129
to
any medical
[consultative]
"when
circumstantial
overwhelmingly compelling .
v. Astrue,
refer
opinion.
(emphases in original)
found
' [a]
not
or
'"
a
responsible,
Id. at 652
(2d Cir. 2008)
Based on
medical
critique
11
opinion
by
must
nonbe
(quoting Burgess
(additional internal
quotation marks omitted))
The
instant case stands
in contrast to Giddings.
. Though
plaintiff criticizes the ALJ for discounting Dr. Toor's opinion,
that opinion is but one piece of a voluminous medical history
and record.
medical
Moreover, in her decision, ALJ Dummer cited several
opinions
and other record evidence
that
supported her
RFC determination, whereas the ALJ in Giddings cited none.
26
For
example, ALJ Dummer pointed specifically to an examination from
an emergency room visit on November 15,
findings on exam were noted,
right
knee
from
February
2011,
AR. at 546,
24,
2012
in which no acute
an MRI of plaintiff's
that
Dr.
Gregory
Diedonne
noted was "essentially unremarkable," AR. at 467, and a November
30,
2012 x-ray of plaintiff's right knee that did not show any
obvious
abnormalities,
referenced
AR.
plaintiff's
at
945.
treating
AR.
at
184.
physicians
ALJ Dummer
who
questioned
plaintiff's self-reports of pain, pointing out that Dr. Carroll
noted "pain is out of proportion to the clinical findings," and
Dr.
Martin
wrote
"may
need
psych
referral
depression and motivation in addition
PT.
II
AR.
at
184,
534,
919.
ALJ
to
to
help
with
the pain clinic and
Dummer
also
relied
upon
plaintiff's own· statement that she had been walking two miles
several times a week in an effort to increase her exercise.
at
184,
opinions,
1011.
and
contrast Dr.
These
plaintiff's
Toor' s
objective
own
medical
subjective
findings,
reporting
AR.
medical
certainly
single consultative opinion that plaintiff
had moderate to severe limitations with standing and walking and
moderate limitations with sitting for a long time.
Evidence cited elsewhere in the ALJ' s
record provides evidentiary support
for
opinion and in the
the ALJ' s
RFC finding
that plaintiff could sit stand and walk six of eight hours a day
with
brief
hourly
intervals.
27
Plaintiff's
own
treating
physician,
Dr.
Michelle
Spaziani
assessed
on
January
9,
2012
that plaintiff's back pain and various aches and pains could be
somatic in nature.
9,
2012
that
depression."
at 462.
Dr. Spaziani wrote on October
had
medical
AR.
patient
at 566.
AR.
plaintiff had full
"no
In June 2012,
AR.
plaintiff's physical
Joe
plaintiff
extremities
therapist
had
and
aside
full
that
functional limits.
Dr. Bogle stated that
her
AR.
and
at 534,
536.
Griseta
in May 2013
active
lower
range
extremity
at 858.
A report from
of
motion
"all
goals
exercise program."
states
in
strength was
her
within
PT Griseta's report was final
because plaintiff was discharged from physical therapy,
that
from
range of motion and the ability to toe and
heel walk without difficulty.
that
problems
achieved and patient
stating
independent with a
home
Id.
Plaintiff received generally conservative treatment and her
healthcare
providers
repeatedly
avoided
recommending
She was instead referred to physical therapy,
splints,
medication,
immobilizer, and ice.
steroid
AR.
told to use wrist
back
exercises,
knee
at 123, 182, 460, 462, 512, 534, 536,
546, 555-56, 578, 615-16, 757,
1038.
injections,
surgery.
766-67, 784, 798, 804, 844, 1023,
Several times it appears that plaintiff was referred to
physical
attending.
therapy
but
did
not
go,
or
went
but
then
stopped
Conservative treatment may be taken into account "as
28
additional evidence supporting the ALJ's determination."
v. Astrue, 272 F. App'x 54, 55
Plaintiff's
that
plaintiff
counsel
has
been
Netter
(2d Cir. 2008).
highlights,
and
diagnosed with
the
Court
recognizes
fibromyalgia,
which
is
characterized by a noted absence of objective abnormality on xrays
and
other
(Docket#
335
laboratory
at
10-1)
F.3d 99,
disabling
tests.
see
107
36-37;
(2d Cir.
impairment) .
presence of multiple
See
argues
2003)
Fibromyalgia
disability,
I
her
is
diagnosed
by
which were present
the
in many
However to the extent that
fibromyalgia
respectfully disagree.
fibromyalgia diagnosis,
Barnhart,
(recognizing fibromyalgia as a
tender points,
that
Memorandum
also Green-Younger v.
of plaintiff's medical examination.
plaintiff
Plaintiff's
requires
a
finding
of
The ALJ noted plaintiff's
referenced it many times
throughout the
opinion,
and accounted for plaintiff's physical restrictions due
to pain
in the RFC.
AR.
at
176-85.
Unlike
in Green-Younger
where the ALJ failed to credit a physician's findings related to
the
disease,
in this
case,
the ALJ accepted the diagnosis
but
based on the totality of the record did not find it disabling.
In
self-reports,
money,
at
plaintiff
ride a bus,
563.
mother's
She
home
cook,
stated
clean,
that
several
stated
shop,
she
times
that
about
week.
Plaintiff described caring for her mother,
29
is
able
to
manage
and launder clothes.
walked
a
she
AR.
two
at
miles
858,
AR.
to
her
1011.
grandson with special
needs and other family members.
for
a
young
child
light work.
is
AR. at 78-79, 782, 839.
consistent with
See Poupore v. Astrue,
2009); see also Rivers v. Astrue,
2008)
(determining
light
work
ability
to
that
wherein
remain
ALJ
active,
566 F.3d 303,
was
capable
properly
and
despite having fibromyalgia)
ability
to perform
307
(2d Cir.
22
(2d Cir.
280 F. App'x 20,
plaintiff
the
the
engage
of
performing
considered
in
an
Caring
plaintiff's
exercise
regimen
There is substantial evidence in
the record supporting the ALJ's physical RFC finding, and I find
no error.
II.
capable
The
of
ALJ's
Mental
performing
RFC:
simple,
ALJ
Dummer
unskilled
superficial contact with others.
found
work
with
AR. at 177.
plaintiff
brief
and
To support this
assessment, she cited opinions from Dr. Apacible and Dr. Ransom,
along with other treating opinions and medical findings on the
record.
Plaintiff argues that the ALJ erred in relying on the
opinions of Dr.
Ransom,
a psychiatric consultative examiner who
met with plaintiff once, and Dr. Apacible, a reviewing physician
who
never met
plaintiff.
Both opinions
found
that plaintiff
could perform unskilled work on a sustained basis,
74,
563,
and
the
ALJ
opinion and found Dr.
by
the"
Apacible' s
RFC.
AR.
gave
"great
weight"
to
AR. at 273-
Dr.
Apacible's
Ransom's opinion to be "not contradicted
at
opinion was
184-85.
Plaintiff
argues
that
Dr.
rendered prior to other notable mental
30
heal th opinions and therefore was made on an incomplete record
and
cannot
Chater,
on
amount
to
substantial
94 F.3d 34, 36
an
incomplete
evidence).
(2d Cir.
record
evidence.
See
Pratts
v.
1996) (a medical opinion rendered
does
not
constitute
substantial
As to Dr. Ransom's opinion, plaintiff argues that it
is too vague to be the basis of substantial evidence for the RFC
analysis.
should
In place of these opinions, plaintiff argues,
have
plaintiff's
afforded
treating
greater
weight
therapist,
to
LMSW
the
Lynne
two
the ALJ
opinions
DeLilli,
who
from
found
that plaintiff had disabling mental health limitations and was
unable
to
arguments
work.
AR.
at
unpersuasive,
156-60,
and
find
1083-86.
I
that
record
the
find
plaintiff's
as
a
whole
supports the ALJ's RFC analysis.
After
examining
plaintiff
consultative examiner Dr.
on
September
29,
2012,
Christine Ransom wrote that plaintiff
could
follow and understand simple directions and
instructions,
perform
simple
tasks
independently,
maintain
attention
and
concentration for simple tasks, maintain a
simple regular schedule and learn simple new
tasks.
She will have moderate difficulty
performing
complex
tasks,
relat[ing]
adequately
with others
and appropriately
deal[ing]
with
stress
due
to
major
depressive disorder, currently moderate.
AR.
at
record
563.
to
One month
date,
state
later,
based on a
agency reviewing
31
review of
the
physician Dr.
entire
Apacible
opined that plaintiff "retains ability to perform unskilled work
on sustained basis."
AR. at 274.
Plaintiff began seeking mental health treatment in December
2012,
and
saw
LMSW
Lewis
six
to
DeLilli
and
eight
indicating
weeks,
nor
840,
plaintiff
therapy
that
the
claimant's
exhibited
AR.
at
840,
no
assessments
for
engage
in
thought
full-time
that
manage
that
the
these
2013,
LMSW DeLilli
good
had
eye
calm
contact,
motor
processes,
appropriate
AR. at 820-21.
2013,
and
plaintiff
had
hallucinations,
other on September 26,
issues
indicate
stressors
In January
employment,
health
treatment notes
cooperative,
logical
speech,
mental
AR. at 185 (referencing AR.
helping
behavior,
appropriate
content,
on
842.
was
intact long term memory.
two
for
the ALJ noted that
physical
psychosocial
focused
plaintiff
appropriate
thought
various
sessions
that
NPP Lewis'
843).
has
stressors.
noted
Lewis
"debilitating
no
required such extreme restriction."
836,
Amanda
scheduled follow ups with plaintiff averaging every
impairments
at
NPP
In support of her decision,
ongoing care .
Ms.
Lynne
activity,
goal-directed
judgment,
and
LMSW DeLilli authored
one on June
14,
2012
and the
opining that plaintiff could not
competitive
employment.
AR.
at
156-60,
1083-85.
The ALJ was under no duty to afford great weight to either
LMSW
DeLilli
or
NPP
Lewis
because
32
they
are
not
acceptable
medical
sources.
therapists
she
as
granted
because
See
"other
little
they
were
20
C.F.R.
sources")
weight
to
416. 913 (d) (1) (listing
§
Here,
LMSW
inconsistent
the
DeLilli' s
with
the
satisfies
satisfies
this
"treating
physician's
her
Court.
duty
under
Further,
statement
that
cannot itself be determinative."
F.3d 99,
128,
106
(2d Cir.
2003)
133
(2d
Cir.
plaintiff
was
disabled
deference
the
claimant
entitled
Commissioner
83 F. App'x 347,
349
(2d Cir.
treating physician's opinions as
177
F.3d
discretion
at
133).
to
place
relatively minimal
of LMSW DeLilli,
272
the
F.
App'x
district
treatment
Overall,
54,
it
greater
was
weight
Such an
to
and
that
a
is . disabled
Apfel,
177
F.3d
opinions
any
335
that
particular
makes
the
ultimate
See,
e.g.,
Taylor v.
2003)
to the
not given any weight)(citing 20 C.F.R.
from
Barnhart,
DeLilli's
determination on the issue of disability.
Barnhart,
record
regulations,
Green-Younger v.
not
part
well-settled
the
that
in
AR. at 185.
is
LMSW's
were
the
opinions
(quoting Snell v.
1999)).
because
it
explained
treatment
NPP Lewis, and with the record as a whole.
explanation
ALJ
(establishing that
issue of disability is
§
404.1527(e)(l);
well
on
within
the
Snell,
the
ALJ's
findings
and
treatment of NPP Lewis than on the opinions
and no error is found.
55
court
(2d Cir._ 2008)
relied
regimen merely as
on
(finding no error
Dr.
additional
33
See Netter v.
Regalla's
evidence
Astrue,
"because
conservative
supporting
the
ALJ's
determination
sufficient
in
itself
rather
to
than
overcome
as
an
"compelling"
"otherwise
evidence
valid
medical
opinion") .
Despite
Dr.
plaintiff's
urging,
the
Court
does
not
find
that
Ransom's statements regarding plaintiff's mental limitations
are overly vague.
10-1)
at
42-43;
See Plaintiff's Memorandum of Law
Plaintiff's
Reply
(Docket#
19)
(Docket #
at
3-4.
Dr.
Ransom opined that plaintiff had moderate difficulty performing
complex
tasks,
appropriately
opinion
records,
in
relating
with
adequately
with
others
AR.
563.
The
stress.
congruence
with
at
the
other
and limited plaintiff's RFC
mental
not
contradicted
misplaced.
explain
by
In
the
[RFC]
Here,
her
evidence,
plaintiff's
Dr.
AR.
at
to
functional
Ransom's
"
AR.
the
do[]
Second
health
this
treatment
ALJ Dummer
177.
184.
123-24
Circuit
'moderate'
and
not
the
permit
considerable
make
at
209 F.3d 117,
terms
information,
notwithstanding
medical
Curry,
"the
that
additional
read
Ransom's opinion was "not work precluding and
reliance on Curry v. Apfel,
is
ALJ
dealing
to simple work with brief
and superficial contact with others.
noted that Dr.
and
the
and
necessary
capacity.
assessment
Id.
of
at
Plaintiff's
(2d Cir.
made
a
'mild,
ALJ,
constant
a
2000)
point
to
without
I
layperson
exposure
inference[s]"
123
[]
to
about
(emphasis added).
plaintiff's
moderate
limitations was not the only opinion relied on in ALJ Dummer' s
34
RFC analysis.
medical
well
As discussed above,
history with medical
as
the
notes
health providers
NPP
595
mental
RFC
F.3d 402,
analysis
2010,
Lewis
The ALJ was able to assess Dr.
opinion in light of all of the other evidence.
Astrue,
substantial
opinions dating back to
from mental
LMSW DeLilli in 2013.
she possessed a
410
that
(2d Cir.
was
2010)
as
and
Ransom's
See Zabala v.
(upholding an ALJ's
based on clinical
findings
that
plaintiff had no more than "mild" or "moderate" limitations)
Finally, the Court disagrees that the ALJ erred in applying
great
weight
to Dr.
which
stated
that
unskilled
work
on
Apacible's
plaintiff
a
opinion from October 26,
retained
sustained
the
ability
AR.
basis.
to
at
2012,
perform
274.
185,
Plaintiff argues that because Dr. Apacible based his opinion off
of
an
incomplete
cannot
amount
See Plaintiff's Memorandum of Law
evidence.
41-42;
it
record,
see
Pratts
v.
Chater,
94
F.3d
34,
to
substantial
(Docket # 10-1)
38
(2d
Cir.
at
1996)
(finding that a non-examining, non-consultative opinion made off
of an incomplete record does not form the basis for substantial
evidence) .
It
is
true
that
Dr.
Apacible
did
not
have
the
benefit of viewing treatment notes dated after he rendered his
opinion,
opinions.
Dr.
including
LMSW
DeLilli's
assessments
and
NPP
Lewis'
That fact, however, does not invalidate his opinion.
Apacible
predating his
had
the
assessment,
benefit
of
including Dr.
35
examining
Ransom's
the
records
findings,
AR.
at
561-64,
Dr.
plaintiff's
1023,
Elfar's notes
from February 11,
mood and affect
NP Johnson's
affect,
AR.
noting
that
findings
at 556,
and Dr.
plaintiff's
as
normal
2011 describing
and appropriate,
from April
6,
2011 noting a
mood,
affect,
475.
PA
wrote
depression
was
in March 2012
behavior,
Kelly
stable
on
2012.
AR.
at
affect,
mood,
October 2012.
497.
Dr.
behavior,
stable
Cymbal ta
thought
affirmed
Davis
and
AR.
that plaintiff
judgment and
Romanofsky
at
Spaziani's opinions in January 2012
that her mood and interest in activities was good,
PA Lauren Owens
AR.
those
also
thought
at 461.
had normal
AR.
content.
findings
found
that
content
and
in
at
April,
plaintiff's
were
normal
in
In short, Dr. Apacible's opinion was
AR. at 625.
based off of a sufficient medical record and the ALJ did not err
See Tankisi v.
in relying on his opinion.
521
Fed.Appx.
granting
was
35
"substantial
supported
examinations,
sure,
29,
by
(2d
weight"
the
remainder
articulates
weighing of the evidence,
the
to
2013)
a
(finding
no
non-examining
of
the
record
opinion
and
Court
from
strong disagreement
Sec.,
error
in
that
post-dated
To be
with no suggestion of later deterioration).
plaintiff
precludes
Cir.
Comm'r of Soc.
with the ALJ' s
but the deferential standard of review
re-weighing
it.
Sec. Admin., Comm'r, 683 F.3d 443, 447-48
36
See
Brault
(2d Cir. 2012).
v.
Soc .
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