Rusin v. Commissioner of SS

Filing 19

DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/5/2016. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID RUSIN,
No. 6:15-cv-06593(MAT)
DECISION AND ORDER

Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION
David Rusin (“Plaintiff”), represented by counsel, 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

(“the

Commissioner”)

denying

his

application

for

Disability Insurance Benefits (“DIB”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
PROCEDURAL STATUS
Plaintiff

protectively

filed

an

application

for

DIB

on

August 2, 2012, alleging disability beginning on September 15,
2010. (T.147-50, 1691).1 After the Commissioner initially denied
the application (T.106-09), Plaintiff requested a hearing, which
was held before administrative law judge Connor O’Brien (“the ALJ”)
on December 11, 2013. (T.36-93). Plaintiff appeared with his
attorney and testified, as did impartial vocational expert Peter A.

1

Citations to “T.” in parentheses refer to pages from the certified
transcript of the administrative record, filed electronically by the Commissioner
(Dkt #9).

Manzi (“the VE”). A request for vocational interrogatory was sent
to the VE on March 28, 2014, who replied on April 4, 2014. The VE’s
answers were proffered to Plaintiff on April 7, 2014; however,
Plaintiff did not reply to the proffer. On July 22, 2014, the ALJ
issued a decision finding Plaintiff is not disabled under the Act.
(T.19-35). The Appeals Council denied Plaintiff’s request for
review on August 28, 2015, making the ALJ’s decision the final
decision of the Commissioner. (T.1-5). This timely action followed.
Plaintiff moved for judgment on the pleadings (Dkt #10)
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and
the Commissioner cross-moved (Dkt #12) for the same relief. The
parties

have

comprehensively

summarized

the

administrative

transcript in their briefs (Dkt ##10-1, 12-1), and the Court adopts
and incorporates these factual summaries by reference. The Court
will discuss the record evidence in further detail below, as
necessary to the resolution of the parties’ contentions.
For the reasons discussed below, the Commissioner’s decision
is affirmed.
THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation process
promulgated by the Commissioner for deciding disability claims. At
step

one,

the

ALJ

found

that

Plaintiff

had

not

engaged

in

substantial gainful activity (“SGA”) since September 15, 2010.
(T.21). The ALJ noted Plaintiff’s testimony that he provided
consultative

support

in

the

form
-2-

of

giving

an

opinion

on

investment; this occurred during three-hour conference call, and
Plaintiff did not receive any compensation for it. Additionally,
for the past few years, he has served on RIT’s President’s Circle,
a group that discusses long-term strategies and meets twice per
year. Plaintiff stated that he offers input for these meetings as
well. The ALJ found that these consulting activities do not qualify
as SGA because Plaintiff receives no payment for these essentially
volunteer positions.
At step two, the ALJ found that Plaintiff has the following
“severe impairments”: depressive disorder, anxiety disorder and
personality disorder. (T.21). Plaintiff confirmed at the hearing
that he confirmed at the hearing that he is not alleging any
physical impairments or limitations.
At the third step, the ALJ found that none of Plaintiff’s
impairments, considered singly or in combination, meet or equal the
criteria

of

an

impairment

in

the

Listing

of

Impairments

at

20 C.F.R. Part 404, Subpart P, Appendix 1. (T.22).
Before proceeding to the fourth step, the ALJ found that
Plaintiff has the residual functional capacity (“RFC”) to perform
a full range of work at all exertional levels but with the
following

nonexertional

limitations:

he

has

no

cognitive

limitations and can occasionally make judgments and decisions; he
cannot supervise others or be responsible for another’s work; he
can work toward daily, or monthly goals, but not at an automated,
machine-drive, assembly-line production pace; and he requires up to

-3-

three short, less-than-5-minute breaks in addition to regularly
scheduled breaks. (T.23).
At step four, the ALJ determined that Plaintiff cannot perform
his past relevant work as a chief executive officer of a privatelyheld corporation. (T.29). The VE classified this work, under the
Dictionary of Occupational Titles (“DOT”), as a “president,”
#189.117-026,

sedentary,

skilled,

with

a

specific

DOT

vocational

profile of 8.
At the fifth step, the ALJ found that, considering Plaintiff’s
age, education, work experience, and RFC, he has acquired work
skills, in his past relevant work, that are transferable to other
occupations with jobs that exist in significant numbers in the
national economy. (T.29-30). Accordingly, the ALJ entered a finding
of not disabled under the Act.
SCOPE OF REVIEW
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
supported

by

substantial

record

evidence

and

whether

the

Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
-4-

The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
I.

Failure to Give Controlling Weight to Treating Psychiatrist’s
Opinion
Plaintiff asserts that the ALJ erroneously assigned “minimal

weight” (also described by the ALJ as “little weight”) to the
opinion of Dr. Thomas Letourneau, Plaintiff’s treating psychiatrist
since 1998. (T.24, 28).
The Second Circuit has explained that “[a]lthough the treating
physician rule generally requires deference to the medical opinion
of a claimant’s treating physician, the opinion of the treating
physician is not afforded controlling weight where . . . the
treating physician issued opinions that are not consistent with
other substantial evidence in the record. . . .” Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (internal and
other

citations

omitted).

When

an

ALJ

declines

to

accord

controlling weight to a treating physician’s opinion, the ALJ “must
consider various ‘factors’ to determine how much weight to give to
the opinion[,]” id. (quoting 20 C.F.R. § 404.1527(d)(2)), such as

-5-

“(i) the frequency of examination and the length, nature and extent
of the treatment relationship; (ii) the evidence in support of the
treating physician’s opinion; (iii) the consistency of the opinion
with the record as a whole; (iv) whether the opinion is from a
specialist;

and (v) other factors brought to the Social Security

Administration’s attention that tend to support or contradict the
opinion.’” Id. (quoting 20 C.F.R. § 404.1527(d)(2)).
A corollary to the treating physician rule is the so-called
“good reasons rule,” which is based on the regulations specifying
that “the Commissioner ‘will always give good reasons’” for the
weight given to a treating source opinion. Halloran, 362 F.3d at 32
(quoting

20

C.F.R.

§

404.1527(d)(2);

citing

20

C.F.R.

§ 416.927(d)(2); Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir.
1998)). “Those good reasons must be ‘supported by the evidence in
the case record, and must be sufficiently specific . . . .’”
Blakely v. Commissioner of Social Sec., 581 F.3d 399, 406 (6th Cir.
2009) (quoting Social Security Ruling (“SSR”) 96–2p, 1996 WL
374188, at *5 (S.S.A. July 2, 1996)). Because the “good reasons”
rule exists to “ensur[e] that each denied claimant receives fair
process,” Rogers v. Commissioner of Social Sec., 486 F.3d 234, 243
(6th Cir. 2007), an ALJ’s “‘failure to follow the procedural
requirement of identifying the reasons for discounting the opinions
and for explaining precisely how those reasons affected the weight’
given ‘denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.’”

-6-

Blakely, 581 F.3d at 407 (quoting Rogers, 486 F.3d at 243; emphasis
in Blakely).
Here, the regulatory factors regarding the length of the
treatment relationship and the nature of Dr. Letourneau’s practice
support a finding that he is a treating source: Dr. Letourneau is
a specialist in the field of psychiatry, and he treated Plaintiff
on a consistent basis (sometimes weekly) since at least 1998.
Indeed, the ALJ acknowledged that the “frequency, length, nature
and extent of treatment” by Dr. Letourneau qualified him as a
treating source, and the Commissioner here does not dispute that
Dr. Letourneau qualifies as a treating source.
Referring to Dr. Letourneau’s November 2010 report, the ALJ
found that notwithstanding Dr. Letourneau’s “treating relationship
with the claimant, this assessment cannot be given more than
minimal weight.” (T.24). The ALJ explained,
While the claimant reports that he devalued his work for
the last few years as C.E.O., he also testified to making
significant determinations regarding the sale and
distributions of his company, for the benefit of his
employees and against the more self-interested advice of
others. His actions demonstrate independence of thought
and the ability to negotiate the sale. His opinion on
matters of investment and economics continues to be
relied upon by others in the industry. Thus, while Dr.
Letourneau accepts the claimant’s reports of his
inability to function, the claimant’s actions and the
response of others in negotiations and in investment
circles belies the degree of infirmity feared by Dr.
Letourneau.
(T.24). The ALJ proceeded to discuss certain of Dr. Letourneau’s
subsequent

office

notes

that

documented

an

improvement

in

Plaintiff’s mood and outlook. For instance, although in October
-7-

2010,

Plaintiff

reported

that

he

had

been

making

funeral

arrangements as part of his suicide plans, by December 2010,
Dr. Letourneau reported an improvement in mood. According to the
ALJ, “[w]hile the claimant reports serious symptoms, and clearly
had been working his way through a painful divorce, the record
establishes

that

he

has

experienced

chronic

depression

since

childhood, and that he kept his negative thoughts at bay by
engaging in activities, albeit from a ‘bucket list’ perspective;
[that is,] describing activities that he needed to complete before
his life was over.” (T.24-25) (citation omitted).
The ALJ noted that Plaintiff continued to treat regularly with
Dr. Letourneau into 2012, and by March 2012, his depression was
reported to be in partial remission. (T.29) (citing T.283). The ALJ
stated that despite “the recognized improvement, Dr. Letourneau
made the following contradictory statements: ‘His depression is
definitely better. But the divorce is life threatening.’” (Id.)
(quoting T.289). However, in May 2013, Dr. Letourneau found “no
serious mental status abnormalities” on examination of Plaintiff
and noted that “for the first time in a long time, [he] was more
hopeful that [Plaintiff] would not commit suicide.” (T.29) (quoting
T.328). Plaintiff was diagnosed with major depressive disorder,
recurrent, in partial remission; and personality disorder. “In
August 2013, post-divorce proceedings,” Dr. Letourneau reported
that Plaintiff was
[m]ore animated, more hopeful. [Plaintiff]’s mood is
euthymic with no signs of depression or manic process.
-8-

His speech is normal in rate, volume, and articulation
and his language skills are intact. Assaultive or
homicidal ideas or intentions are convincingly denied.
Hallucinations and delusions are denied and there is no
apparent thought disorder. Associations are intact,
thinking is generally logical and thought content is
appropriate. Cognitive functioning, based on vocabulary
and fund of knowledge, is intact and age appropriate and
he is fully oriented. There are no signs of anxiety
apparent. He exhibits no signs of attentional or
hyperactive difficulties. Insight and social judgment
appear intact.
(T.30-31) (citing T.347).
Reviewing Plaintiff’s “most recent treatment records with
Dr. Letourneau, the ALJ found they “reveal[ed] that [Plaintiff]
denied suicidal ideas and that his depressive disorder remained in
partial remission.” (T.28) (citing T.395). The ALJ found these
observations “at odds” with Dr. Letourneau’s opinion on December 8,
2013, that Plaintiff “has a poor prognosis with multiple symptoms
of depression, including sleep disturbance, disturbance of mood or
affect, withdrawal and difficulty thinking or concentrating,” “is
unable to remember work-like procedures, maintain attention for
two-hour segments, complete a normal workday without interruptions
from psychologically based symptoms or deal with normal work
stress,” “cannot interact appropriately with the general
public and on average would miss work more than four days per
month.” (T.31) (citing T.398-402).
The ALJ further found Dr. Letoureau’s opinions as being “at
odds with the other medical evidence,” such as treatment notes from
Plaintiff’s primary care doctor, Dr. Christopher Momont, who also
had a treating relationship with Plaintiff. On May 5, 2011, when
-9-

discussing his on-going depression, Plaintiff told Dr. Momont that
he had “‘recently sold his business, and it has given him a more
positive outlook on things.’” (T.28)

(citing T.247). At a routine

health maintenance exam on May 12, 2012, Dr. Momont, while aware of
Plaintiff’s

chronic

depression,

“ha[d]

no

concern

over

[Plaintiff]’s weight or any weight loss” and noted that Plaintiff
“adamantly denie[d] any thoughts of wanting to harm himself in any
way.” (T.28) (citing T.241). Plaintiff told Dr. Momont that “his
only side effect from the depression is that he is slightly
forgetful, with some issues of insomnia,” and he “related that his
insomnia has improved slightly with transcranial therapy.” (T.28).
The ALJ found that Dr. Momont’s “observations are more in line with
the

[Plaintiff]’s

activities—such

as

continuing

to

provide

investment advice to business associates, assisting his mother with
household repairs and the care of his brother, driving himself to
appointments, and going to Boston to visit his daughter’s college.”
(T.28).
Likewise, on April 17, 2012, despite the “reports of impulsive
suicidal thoughts” in the record, Dr. Mahipal Chaudhri indicated
that

“‘[t]he

patient

denies

suicidal

ideations

or

homicidal

ideations, intent or plan. The patient is hopeful and futuristic.’”
(T.25) (citing (T.254).

In April 2012, Plaintiff also saw primary

care physician Dr. Momont, who noted that Plaintiff “appeared
clinically stable from a mental health perspective, and . . .
denied thoughts of harming himself[.]” (T.26) (citing T.243).

-10-

In summary, the ALJ determined that Dr. Letourneau’s opinions
deserved “little weight” because “his own treatment notes, outlined
above,

reveal[ed]

objective

findings,”

including

Plaintiff’s

“depression going into partial remission, the obvious improvements
evidenced,

and

[Plaintiff]’s

disparity
activities

between
that

[Plaintiff]’s

do

not

reports

support

his

versus
extreme

assessments.” (T.28).
Contrary

to

Plaintiff’s

suggestion,

the

Commissioner’s

regulations permit an ALJ to consider an opinion’s consistency with
other evidence in the record when determining how to weight the
opinion. See 20 C.F.R. § 404.1527(c)(4). That said, Plaintiff is
correct that “[c]ourts generally do not take an ALJ’s conclusion
that a treating physician’s own treatment notes contradict the
record

as

mentioning

a
of

whole

at

specific

face

value;

findings

rather,

that

they

would

require

support

such

the
a

conclusion.” Pidkaminy v. Astrue, 919 F. Supp.2d 237, 244 (N.D.N.Y.
2013) (citing Briest v. Comm’r of Soc. Sec., No. 5:07–CV–121, 2010
WL 5285307, at *5 (N.D.N.Y. Dec. 17, 2010) (holding that the ALJ
failed to follow the guidelines for evaluating the opinion of a
treating

physician

by

merely

stating

that

the

claimant’s

psychiatrists’ treatment notes were inconsistent with his overall
ability to engage in gainful activity and failing to consider other
factors found in 20 C.F.R. § 404.1527(d)(2)); other citation
omitted). Here, however,

as discussed above, the ALJ referenced

specific medical evidence and testimonial and explained how it was

-11-

inconsistent with Dr. Letourneau’s highly restrictive statements
about Plaintiff’s mental functioning. For instance, as the ALJ
noted,

Plaintiff

reported

assisting

a

friend

in

political

fundraising, participating in a 3-hour conference call advising
Harvard University’s endowment fund on investment strategies, and
applying for CEO positions. (T.278, 330, 336). See Wavercak v.
Astrue, 420 F. App’x 91, 94 (2d Cir. 2011) (unpublished opn.)
(finding that “the ALJ was not required to defer to [treating
source] Dr. Eppolito’s opinion” where “Dr. Eppolito’s assessments
were called into question by other medical evidence in the record,
including his own earlier reports which did not always conclude
that Wavercak was unable to engage in any sedentary work during the
relevant period . . . [and] conflicted with Wavercak’s description
of

his

daily

activities”)

(citing

20

C.F.R.

§§ 404.1527(d)(2)(i)–(ii), (d)(3)–(6) (explaining that deference
accorded to treating physician’s opinion may be reduced based on
consistency of opinion with rest of medical record, and any other
elements “which tend to . . . contradict the opinion”)); Pidkaminy,
919 F. Supp.2d at 245 (ALJ did not err in explaining decision not
to give controlling weight to the opinion of disabilitiy claimant’s
treating physician; ALJ specified what weight he accorded to the
physician’s opinion and provided sufficient reasons for doing so,
considered the length of the treating relationship, the fact that
the physician was a specialist, and all the evidence on which the

-12-

physician relied to support his opinions, and noted and explained
the various
records,

inconsistencies

claimant’s

own

between

the

statements,

physician’s
and

the

treatment

opinions

of

non-examining State agency consultants).
Plaintiff
Dr.

argues

Letourneau’s

that

opinions

contrary
are

to

the

supported

ALJ’s

by

the

assertions,
reports

of

consultative psychologist Sherry Schwartz, Ph.D.; and independent
medical examiner John Langfitt, Ph.D., who conducted a two-day
neurological examination of Plaintiff on behalf of Plaintiff’s
insurer.

The Court finds that the ALJ’s conclusion that these

opinions did not support Dr. Letourneau’s opinion is underpinned by
substantial evidence in the record, and that the ALJ adequately
explained

this

decision.

Turning

first

to

Dr.

Schwartz’s

consultative opinion, the results of her mental status examination,
apart from noting Plaintiff’s depressed mood and restricted affect,
were largely normal: Plaintiff’s speech and language were fluent,
clear and adequate; his thoughts were coherent and goal-irected
with no hallucinations, delusions or paranoia; he was oriented,
with intact attention and concentration, and intact recent and
remote memory; his cognitive function was above average; and his
insight and judgment were good. Dr. Schwartz opined that Plaintiff
can follow and understand simple directions and instructions,
perform simple tasks independently, maintain concentration and
attention, maintain a regular schedule, learn new tasks, and

-13-

perform complex tasks independently; but he cannot make appropriate
decisions, relate adequately with others, or appropriately deal
with stress. The ALJ rejected Dr. Schwartz’s assessment regarding
Plaintiff’s ability to interact with others and deal with stress
because it was “based on what the claimant reported and not on her
observations over time” and failed to “provide specific limitations
in decision making, relating or stress.” The ALJ explained that
“[t]o the extent that Dr. Schwartz suggests that [Plaintiff] can
have no interaction [with people], make no decisions, and handle no
stress, such an interpretation is unsupportable” because “[e]ven
the basic activities of daily life—choosing clothing, driving to
the store and making a purchase—require some degree of these
functions,” and Plaintiff “acknowledges his capacity for multiple
activities requiring some functioning . . . .” (T.27).
Similarly, the ALJ’s evaluation of Dr. Langfitt’s report is
supported by substantial evidence. Notably, the question posed to
Dr. Langfitt by Plaintiff’s insurer was fairly narrow—that is,
whether Plaintiff still can function, notwithstanding his mental
impairments,

in

a

CEO-type

role.

The gist

of

Dr.

Langfitt’s

narrative opinion is that Plaintiff is currently very limited in
performing most of the tasks required of a typical CEO; he works
extremely slowly on cognitive tasks and projects a very negative
emotional tone. However, Dr. Langfitt did not perform a functionby-function assessment of Plaintiff’s abilities to perform basic

-14-

work activities such as what would be required in an unskilled or
semiskilled job. While Dr. Langfitt opined that Plaintiff should be
restricted from making major life decisions without advice from
people who knew him well, he qualified those as being decisions
involving
Plaintiff’s

large

amounts

living

of

money,

situation.

While

Plaintiff’s
decisions

estate

involving

and
large

amounts of money are typically required in an executive leadership
employment

position,

they

are

not

involved

in

most

jobs.

Furthermore, decisions involving end of life planning and domestic
situations are likewise not involved in most jobs. The ALJ thus
accurately characterized Dr. Langfitt’s report when she stated that
“the limitations offered by Dr. Langfitt may preclude [Plaintiff]’s
past work [as a CEO], but [they] do[ ] not necessarily preclude
other work activities.” (T. 26).
Neuropsychologist Dr. Michael Santa Maria, Ph.D. conducted in
independent medical examination of Plaintiff on January 9, 2012, at
the request of his attorney (not the attorney or firm representing
him in connection with the present disability claim and appeal).
Dr. Santa Maria noted that Plaintiff has history of a difficult
childhood involving ongoing abuse in the home through childhood
with lingering prominent symptoms of depression and anxiety. While
Dr. Santa Maria considered Plaintiff to meet diagnostic criteria
for Posttraumatic Stress Disorder (PTSD) which is an Anxiety
Disorder, based on his childhood experiences, and Major Depresssive

-15-

Disorder, Severe Without Psychotic Features, Chronic, he found
there was not evidence, based on the clinical interview, the
records review, and the comprehensive personality inventory, of any
comorbid Personality Disorder. Dr. Santa Maria also performed an
extensive battery of neuropsychological tests, including the Benton
Temporal Orientation Test, Mini Mental State Exam, various tests
assessing sensory and motor functioning, tests to measure premorbid
intelligence

such

as

the

North

American

Adult

Reading

Test,

multiple WAIS-4 intelligence tests to measure current intelligence,
and

numerous

tests

measuring

academic

abilities,

language

abilities, spatial abilities, learning and memory, memory/effort,
and executive functioning. Dr. Santa Maria found that Plaintiff’s
performance on the current cognitive evaluation was “compatible
with some scattered mild-range impact of mood and anxiety symptoms
on
Dr.

some

aspects

Santa

Maria

of
was

memory,

attention

presented

with

a

and

processing

specific

speed.”

question,

to

“identify any psychiatric diagnoses; conditions or personality
disorders that may be present, and to the extent possible, assess
the severity of any condition identified and the impact that
condition might be expected to have on [Plaintiff]’s work capacity
and, in particular, his ability to competitively perform the duties
of a CEO.” In answer to that question, Dr. Santa Maria did “not
foresee” Plaintiff “effectively demonstrating attentional focus,
motivation and follow-through to effectively handle CEO duties in

-16-

a

typical

company

full-time/greater

than

full-time

at

least

5 days/week as would be expected of a CEO for a typical company,
given his prominent current depression and anxiety/PTSD.” However,
Dr.

Santa

Maria

concluded,

the

“cognitive

data

support

that

[Plaintiff] demonstrates adequate cognitive capacity to handle a
variety of modestly demanding work roles in various sectors of the
economy.” Thus, while Dr. Santa Maria’s opinion supports a finding
that Plaintiff can no longer function effectively as a CEO, his
opinion does not actually support Plaintiff’s claim of being
totally disabled as defined by the Act.
To the extent that Plaintiff argues that the ALJ’s decision
must be overturned because he did not give controlling weight to
any medical opinion in particular, the Second Circuit has found the
failure of an RFC to align completely with an acceptable source’s
medical opinion, standing alone, does not amount to reversible
error.

See, e.g., Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.

2013) (unpublished opn.) (“[The claimant] asserts that the ALJ
substituted his own medical judgment for these expert opinions in
concluding that ‘substantial evidence revealed [the claimant’s]
condition stabilized and at the most, he had moderate symptoms.’ We
disagree.

Although

the

ALJ’s

conclusion

may

not

perfectly

correspond with any of the opinions of medical sources cited in his
decision, he was entitled to weigh all of the evidence available to
make an RFC finding that was consistent with the record as a

-17-

whole.”) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)
(“We therefore are presented with the not uncommon situation of
conflicting medical evidence. The trier of fact has the duty to
resolve that conflict.”)).
II.

Erroneous Credibility Assessment
When assessing a claimant’s credibility, the ALJ must consider

both his medical records and his reported symptoms. See 20 C.F.R.
§ 404.1529. “Under the regulations, an individual’s statement(s)
about his or her symptoms is not enough in itself to establish the
existence of a physical or mental impairment or that the individual
is disabled.” SSR 96–7p, 1996 WL 374186, at *1 (S.S.A. July 2,
1996). The ALJ employs a two-step process to evaluate a claimant’s
self-reported symptoms. See 20 C.F.R. § 404.1529(a); SSR 96–7p, at
*2. First,

the

ALJ

determines

if

the

claimant

has medically

determinable impairments that could produce the alleged symptoms.
Second, if such impairments exist, the ALJ evaluates the intensity,
persistence, and limiting effects of the symptoms to determine the
extent to which those symptoms limit the claimant’s ability to
work. See id. In so doing, the ALJ considers (1) the claimant’s
daily

activities;

intensity
(3)

of

(2)

the

precipitating

and

the

location,

claimant’s
aggravating

duration,

pain

or

factors;

frequency,

other
(4)

and

symptoms;

type,

dosage,

effectiveness, and side effects of any medication the claimant
takes or has taken to relieve his pain or other symptoms; (5) other

-18-

treatment the claimant receives or has received to relieve his pain
or other symptoms; any measures the claimant takes or has taken to
relieve his pain or other symptoms; and (6) any other factors
concerning the claimant’s functional limitations and restrictions
due

to

his

pain

or

other

symptoms.

See

20

C.F.R.

§ 416.929(c)(3)(i)-(vii); SSR 96–7p, at *3.
The ALJ, in evaluating Plaintiff’s subjective symptomatology,
found that while “the objective medical evidence does provide a
basis for finding that [he] has more than minimal restrictions
arising from his impairments,” “[t]he objective medical evidence
does not support the extent of the limitations alleged.” (T.29).
Section 404.1529(c)(2) permits an ALJ to consider objective medical
evidence,

which,

although

not

dispositive,

can

be

“a

useful

indicator to assist . . . in making reasonable conclusions about
the intensity and persistence of [the claimant’s] symptoms and the
effect those symptoms, such as pain, may have on [the] ability to
work.”

The ALJ noted that “the treatment notes and observations

offered

by

Dr.

Momont,

Dr.

Chaudhri,

Dr.

Langfitt,

and

Dr. Letourneau indicate that Plaintiff has suffered from chronic
mental impairments that pre-date his disability claim,” and that
while

Plaintiff

grooming

and

“has

command

sometimes
of

a

presented

CEO,

mental

with

less

status

than

the

examinations

throughout treatment reflect a greater capacity than alleged.”
(T.29). Plaintiff’s mental status examinations, as discussed above,

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consistently showed that he had logical and goal-directed thought
processes, intact cognitive functioning and memory, fair or good
judgment, normal attention span and concentration. (T.326, 328,
330, 332, 334, 336, 338, 351, 395).
The ALJ also properly considered the nature and extent of
Plaintiff’s daily activities in finding that his subjectively
reported symptoms were not as severe as he alleged. (T.24, 29). See
20 C.F.R. §§ 404.1529(c)(3)(i) (allowing an ALJ to consider a
claimant’s

daily

activities

subjective

complaints).

In

when

evaluating

particular,

the

the
ALJ

severity
noted

of

that

Plaintiff’s “actions demonstrate independence of thought and the
ability to negotiate the sale” of his business in 2010, and
Plaintiff’s

“opinion

on

matters

of

investment

and

economics

continues to be relied upon by others in the industry” (T.24), as
evidenced by his participating in political fundraising, providing
high-level input on investments and strategy to Harvard’s endowment
fund on investments and RIT’s President’s Circle, and providing
input to lawyers and accountants on the viability of companies
(T.54, 278, 330, 336). There is substantial evidence in the record
to support a finding that Plaintiff’s day-to-day activities were
inconsistent

with

his

reports

to

treating

psychiatrist

Dr. Letourneau and other providers that he has a near complete
inability to function due to his depression and anxiety. In sum,
the ALJ did not misapply the relevant legal standards in evaluating

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the credibility of Plaintiff’s subjective complaints, and the Court
finds substantial evidence in the record to support the ALJ’s
credibility assessment.
CONCLUSION
For the foregoing reasons, the Court finds that the ALJ’s
decision was free of legal error and supported by substantial
evidence. Accordingly, Plaintiff’s Motion for Judgment on the
Pleadings

is

denied,

Defendant’s

Motion

for

Judgment

on

the

Pleadings is granted, and the Commissioner’s decision is affirmed.
The Clerk of the Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

January 5, 2017
Rochester, New York.

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