Dingman v. Colvin

Filing 17

DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/24/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GENEVIEVE DINGMAN,
No. 6:16-cv-06107(MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
I.

Introduction
Genevieve

Dingman

(“Plaintiff”),

represented

by

counsel,

brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)1
denying her application for Disability Insurance Benefits (“DIB”)
and

Supplemental

Security

Income

(“SSI”).

This

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
II.

Procedural Status
Plaintiff filed applications for DIB and SSI on September 19,

2012, alleging disability beginning September 18, 2009, due to back
problems, neck problems, shoulder problems, and ankle problems.

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

These applications were denied on February 27, 2013, and Plaintiff
requested a hearing. On May 27, 2014, a videoconference hearing was
held before administrative law judge Roxanne Fuller (“the ALJ”).
(See T.31-54).2 Plaintiff appeared with her attorney and testified,
as did impartial vocational expert, Howard Steinberg (“the VE”).
The ALJ issued an unfavorable decision (T.12-26) on August 15,
2014, finding Plaintiff not disabled under the Act. Plaintiff
sought review of the ALJ’s decision by the Appeals Council, which
denied review on December 21, 2015 (T.1-8). The ALJ’s decision
therefore became the Commissioner’s final decision. This timely
action followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
follow, the Commissioner’s decision is affirmed.
THE ALJ’S DECISION
The ALJ found that Plaintiff’s date last insured, for DIB
purposes, was December 31, 2015. (T.14). At step one of the
sequential evaluation, the ALJ determined that Plaintiff had not

2

Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.

-2-

engaged in substantial gainful activity since her alleged onset
date of September 18, 2009. (Id.). At step two, the ALJ found that
Plaintiff’s degenerative disc disease and partial rotator cuff tear
(right shoulder), were “severe impairments.” (Id.). At step three,
the

ALJ

found

that

Plaintiff

did

not

have

an

impairment

or

combination of impairments that met or medically equaled a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (T.16).
The

ALJ

then

assessed

Plaintiff

as

having

the

residual

functional capacity (“RFC”) to perform light work as defined in the
Commissioner’s

Regulations,3

with

the

following

limitations:

Plaintiff could never climb ramps, stairs, ladders, ropes, or
scaffolds; could occasionally balance, stoop, crouch, kneel, and
crawl, could frequently reach and overhead reach with both arms;
tolerate

occasional

exposure

to

moving

mechanical

parts

and

unprotected heights; and occasionally operate a motor vehicle.
(T.17).
At step four, the ALJ determined that Plaintiff was able to
perform her past relevant work as a teacher aide and production
solderer. (T.24).
Notwithstanding her finding that Plaintiff was capable of
performing her past relevant work, the ALJ continued to step five.
3

“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b),
416.967(b).

-3-

The ALJ found that Plaintiff was a “younger individual,” with at
least a high school education, and ability to communicate in
English. (T.25). The ALJ determined that the transferability of
skills was not material because the Medical-Vocational Guidelines
(“the Grids”), see 20 C.F.R. Part 404, Subpart P, Appendix 2, would
support a finding of “not disabled” regardless of whether Plaintiff
had transferable job skills. (T.25). The ALJ then noted that if
Plaintiff had the RFC for a full range of work at the light level,
then Rule 202.21 of the Grids would direct a finding of “not
disabled.” (Id.). However, Plaintiff’s ability to perform all, or
substantially all, of the requirements of light work was eroded by
additional limitations. (Id.). The ALJ, therefore, considered the
VE’s testimony. (T.26, 49-54).
At the hearing, the VE identified Plaintiff’s past relevant
work as a teacher aide (Dictionary of Occupational Titles (“DOT”)4
No.

249.367-074),

classified

as

light

work;

packer

(DOT

No.

920.587-018), classified as medium work; and production solderer
(DOT No. 813.684-022), classified as light work. (T.50). The ALJ
asked the VE to assume a hypothetical person with Plaintiff’s age,
education, work experience, and the above-described RFC. The VE
testified

that

such

a

person

could

perform

Plaintiff’s

past

relevant work as a teacher’s aide and production solderer. (T.51).

4

U.S. Department of Labor, Dictionary of Occupational Titles, (4th ed. rev.
1991).

-4-

The VE also testified that other jobs existed in the national
economy that a person with Plaintiff’s RFC could perform, including
cashier

(DOT

No.

211.462-010,

light

work;

821,000

positions

nationally and 48,000 positions regionally); sales attendant (DOT
No. 299.677-010, light work; 2,152,000 positions nationally and
12,800

positions

regionally);

and

office

helper

(DOT

No. 239.567-010, light work; 188,000 positions nationally and 8,300
positions regionally). (T.26, 52). Based on the VE’s testimony, the
ALJ found that Plaintiff was not disabled under the Act. (T.26).
SCOPE OF REVIEW
A decision that a claimant is not disabled must be affirmed if
it is supported by substantial evidence, and if the ALJ applied the
correct legal

standards.

See

42

U.S.C.

§ 405(g).

“Where

the

Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct
legal standards is grounds for reversal. Id. Therefore, this Court
first reviews whether the applicable legal standards were correctly

-5-

applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
DISCUSSION
I.

Erroneous Weighing of Various Medical Opinions
Plaintiff argues that the ALJ erred in weighing the opinions

of Dr. Rebecca Wadsworth, Dr. Phillip Vitticore, Dr. Karl Eurenius,
and Physical Therapist Kim Jablonski.

As discussed further below,

the Court finds that the ALJ’s assessments of the opinions were not
legally erroneous and were based on substantial evidence in the
record.
A.

Legal Principles

The relevant factors to be considered in determining what
weight to afford a medical opinion include the length, nature and
extent of the treatment relationship; relevant evidence supporting
the opinion; the consistency of the opinion with the record as a
whole; the treating source’s area of specialization, if any; and
any other relevant factors brought to the Commissioner’s attention.
See 20 C.F.R. §§ 404.1527(c), 416.927(c); SSRs 06-03p and 96-2p. A
treating physician’s opinion is due controlling weight only if that
opinion is well-supported by medically acceptable clinical and
laboratory techniques and is not inconsistent with substantial
evidence of record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
When a treating source’s opinion is not afforded controlling
weight, the factors listed above are considered in determining what
-6-

weight to afford the opinion. See 20 C.F.R. §§ 404.1527(c)(2)-(6),
416.927(c)(2)-(6).

SSR

06-03p

states

that

“[i]n

addition

to

evidence from ‘acceptable medical sources,’ [the ALJ] may use
evidence
§§

from

404.1513(d)

other
and

sources,”

416.913(d),

as
“to

defined
show

the

in

20

severity

C.F.R.
of

the

individual’s impairment(s) and how it affects the individual’s
ability to function.” Pursuant to SSR 06-03p, the factors in
20 C.F.R. §§ 404.1527(c) and 416.927(c) are also applicable to the
evaluation of opinion evidence from “other sources.”
B.

The Opinions
1.

On

Dr. Rebecca Wadsworth

November

1,

2012,

Plaintiff

asked

her

primary

care

provider, Dr. Rebecca Wadsworth, to complete a Residual Functional
Capacity

Questionnaire

(“RFC

Questionnaire”)

(T.257-58).

Dr. Wadsworth stated that she saw Plaintiff every one to six
months, but the record does not indicate that frequency of visits
by Plaintiff. The Court notes that Plaintiff’s onset date is
September 18, 2009, the date she was in a motor vehicle accident
(“MVA”) in which she was struck directly on the rear driver’s side
of her car. Following the MVA, she went to the emergency room,
complaining of pain to the head, back, shoulders and right ankle.
A series of x-rays at the hospital revealed some mild degenerative
joint disease to the thoracic spine, but the images of the right
foot, lumbar spine, cervical spine and chest were all unremarkable.

-7-

Plaintiff was diagnosed with cervical and lumbosacral strain, right
ankle sprain, status post-MVA. She was discharged that day from the
hospital. (See T.307-16).
Plaintiff followed up with Dr. Wadsworth, who referred her for
physical therapy on September 21, 2009, for treatment of her back
and shoulder

pain

following

the

MVA.

On

September

23,

2009,

Plaintiff saw the physical therapist, who observed restricted range
of motion (“ROM”) in the neck with tightness and spasms from the
cervical to lumbar region. (T.347-47). On September 30, 2009,
Dr. Wadsworth prescribed a TENS unit for Plaintiff to use at home.
(T.344). On October 12, 2009, the physical therapist stated that
Plaintiff was “doing well.” On October 19th, the physical therapist
noted that Plaintiff “saw MD–can go back to work, no lifting, no
mopping, etc.” (T.341). She was to continue physical therapy.
Plaintiff’s last visit was on November 25, 2009, at which time the
only subjective symptom noted by the physical therapist was that
Plaintiff was “doing okay.” (T.333).
Plaintiff’s

next

records

from

Dr.

Wadsworth

are

from

October 10, 2012, a month after she filed the instant disability
claim, when she sought treatment for lower back pain and neck pain,
as well as an acute episode of viral bronchitis.5 (T.384-85).

5

Plaintiff presented to the Clifton Springs Hospital and Clinic’s emergency
department complaining of shortness of breath on September 28, 2012. (T.478-81).
A chest x-ray revealed bilateral interstitial disease, suspected bronchiectatic
changes, and osteopenia.

-8-

Dr. Wadsworth noted that Plaintiff continued to smoke half a pack
of cigarettes a day despite being ill with bronchitis. Plaintiff
reported she had trouble lifting more than 10 pounds at a time, or
twisting, without pain. On examination, Plaintiff’s neck ROM was
restricted by about 20 degrees in either direction. She had been
prescribed Flexeril, but felt it was not working, and wanted to try
Soma (a narcotic). Dr. Wadsworth declined to provide narcotics
despite because she felt Plaintiff needed to stay active as much
possible. (T.384). Plaintiff expressed her intention to seek out
another physician because she was unhappy with Dr. Wadsworth’s
care. Although she refused to prescribe narcotics, Dr. Wadsworth
did approve a parking permit for Plaintiff to use on campus,
characterizing

Plaintiff’s

lower

back

pain

as

a

“permanent

disability.” Later in October 2012, Dr. Wadsworth noted that
Plaintiff’s

drug

test

was

“positive

for

Vicodin

wh[ich]

she

reportedly had not had for months . . . [I]t is clear she is
getting it by diversion” (T.380), since Dr. Wadsworth had refused
to prescribe it for her.
Plaintiff next saw Dr. Wadsworth on November 1, 2012 visit,
when

she

her

to

complete

the

RFC

Questionnaire.

In

the

RFC

Questionnaire, Dr. Wadsworth stated that Plaintiff had “constant”
pain which would frequently interfere with her attention and
concentration. (T.257). For medications, Plaintiff took Naprosyn
and Tylenol, with no side effects. During a normal workday, in

-9-

additional to normal breaks, Plaintiff would need to recline or lie
down, for an unspecified amount of time. (T.257). Plaintiff could
sit for 10 to 15 minutes at a time, and stand/walk for 5 to
10 minutes at a time. (Id.). During an 8-hour workday, she could
sit for a total of 4 hours and stand/walk for a total of 3 to 4
hours (Id.). She would also need to shift positions at will and
take unscheduled 5-minute breaks every 15 minutes. (Id.). Plaintiff
was only able to lift/carry less than 10 pounds. (T.258). She could
use her right hand 10% of the day to grasp or perform fine
manipulation, but could never reach with her right arm (Id.).
Plaintiff could use her left hand 50% of the time to grasp or
perform fine manipulation, and reach with her left arm 40% of the
time. (Id.). She would miss work more than 4 times a month, and,
according to Dr. Wadsworth, was incapable of working full-time on
a sustained basis. (Id.).
The ALJ accorded Dr. Wadsworth’s opinion “little weight”
finding that it was “quite conclusory, providing very little
explanation of the evidence relied on in forming that opinion.”
(T.23). The ALJ accurately noted that Dr. Wadsworth “did not
document positive objective clinical or diagnostic findings to
support the functional assessment.” (Id.). The degree of support
given by a treating source for his or her opinion is a proper
factor to consider. See 20 C.F.R. § 404.1527(d)(3), 416.927(d)(3)
(“The better an explanation a source provides for an opinion, the

-10-

more weight [the Commissioner] will give that opinion.”).

While

the Second Circuit has held that “the lack of specific clinical
findings in the treating physician’s report did not, standing by
itself,

justify

the

ALJ’s

failure

to

credit

the

physician’s

opinion[,]” Clark v. Commissioner of Social Sec., 143 F.3d 115, 118
(2d Cir. 1998) (citation omitted), the ALJ here did not solely rely
on

the

lack

of specific

clinical

findings.

Instead,

the

ALJ

appropriately took into consideration Plaintiff’s benign objective
test results and her conservative treatment, as well as the absence
of any treatment for years at a time, and found them inconsistent
with the extremely restrictive limitations in Dr. Wadsworth’s
opinion. Notably, despite alleging disabling limitations since her
September 18, 2009 MVA, Plaintiff only attended physical therapy
sessions from August 12, 2009, to November 25, 2009. (T.333). She
had been released to go back to work on October 19, 2009, with “no
lifting, mopping, etc.” (T.341). Even though she had been treating
with Dr. Wadsworth since 2009, she did not seek other

medical

treatment from Dr. Wadsworth or any other source for her alleged
back,

neck,

reasonably

and

shoulder

concluded

that

pain
Dr.

until

October

Wadsworth’s

2012.

opinion

The

ALJ

“apparently

relied quite heavily” on the subjective report of symptoms and
limitations provided by [Plaintiff],” which Dr. Wadsworth appeared
to accept “uncritically.” However, ALJ found that “there exist good
reasons for questioning the reliability of [Plaintiff’s] subjective

-11-

complaints,” (id.), as she discussed elsewhere in her decision
(id.).
Finally, the ALJ found that Dr. Wadsworth’s RFC Questionnaire
was “inconsistent with the subsequent records from 2013 and 2014,
which do not list [sic] the claimant as quite so limited.” This is
not a misrepresentation of the record. For instance, on January 16,
2013, Plaintiff saw primary care physician Dr. Debbie Heit to
establish care; Plaintiff’s primary concern was an itchy rash on
her hands and chest. (T.461). She reported shoulder, neck, and back
pain,

with

a

pain

level

of

6/10,

but

on

musculoskelatal

examination, Dr. Heit recorded that her “gait” and “station” were
“normal.” (T.461). She returned to Dr. Heit on February 15, 2013,
and stated that she was unable to lift her right arm past her
shoulder without pain. (T.463). On examination, her gait, station,
head, and neck were normal. (T.458). A March 20, 2013 x-ray of
Plaintiff’s

right

shoulder

revealed

no

evidence

of

fracture,

dislocation, or significant arthritic changes (T.303), although an
April 12, 2013 MRI scan showed a partial rotator cuff tear in
Plaintiff’s right shoulder (T.294). However, also on April 12,
2013, Plaintiff saw physician’s assistant Timothy Button (“PA
Button”), and she had no pain in her neck, and range of motion in
her cervical spine was normal. (T.298). She saw Dr. Heit on April
23,

2013,

and

denied

any

musculoskeletal

symptoms.

Upon

examination, she had full range of motion in her neck. (T.472).

-12-

On June 4, 2013, Plaintiff referred to Olaf Lieberg, M.D. for
further evaluation of her right shoulder, neck and lower back pain.
She claimed that she did not leave the house due to her pain6 and
that she was a non-smoker.7 On examination, her neck displayed some
limited motion inflexion and lateral bending. Her neurological
examination

was

grossly

normal.

The

right

shoulder

displayed

tenderness to palpitation over the anterolateral aspect, with
flexion of shoulder to 85 degrees and abduction to 70 degrees. Her
lower

back

showed

discomfort

to

palpitation

with

flexion

of

40 degrees, extension of 5 degrees, and lateral bending of 10
degrees. Dr. Lieberg sent Plaintiff for additional studies, which
were generally unremarkable. A June 7, 2013 cervical spine MRI
displayed

minimal

cervical

disc

degeneration

with

slightly

decreased disc signal intensity and C3-C4 and C4-C5, as well as
slight anterior spurring at C4-C5. These findings were described as
“truly minimal,” with no remarkable facet degeneration. A lumbar
MRI showed no evidence of disc degeneration, no herniation, and no
6

About a month prior to seeing Dr. Lieberg, Plaintiff saw her primary care
physician, Dr. Heit. She reported doing “very well” and said she was experiencing
less stress since completing her final examinations at college. (T.444).
7

On April 24, 2013, Plaintiff saw Dr. Heit in follow-up after being in the
emergency room for shortness of breath with palpitations. She noted that
Plaintiff was a “heavy smoker” and smoked two packs a day. Plaintiff said she
“would like a note for class today.” (T.448). Plaintiff presented to Dr. Heit on
May 1, 2013, complaining of trouble walking far without shortness of breath. At
that appointment, Plaintiff was diagnosed with tobacco dependence, and Dr. Heit
again counseled her on smoking cessation. Plaintiff said she was down to less
than a pack per day. Nonetheless, there is nothing in the record to indicate that
Plaintiff ever quit smoking during the period at issue, much less at the time she
saw Dr. Lieberg.

-13-

stenosis. On June 13, 2013, Dr. Lieberg relied on these studies and
his clinical observations to diagnose Plaintiff with tendonitis,
right rotator cuff, supraspinatus and infraspinatus tendons with
partial tear; ligamentous strains, lumbosacral and cervical spine;
and a mild bulging disc at L4-L5, which Dr. Lieberg noted was
“sometimes considered normal.” He opined that the “only one that
has some real pathology is the right shoulder MRI, which shows
partial thickness tear and tendinitis.” Nonetheless, Dr. Lieberg
stated, surgery was not recommended; Plaintiff “is going to have to
learn to live with it.” (T.290). He commented, “She has had this
now for a total of almost four years and thinking that doing
surgery on her shoulder is going to help . . . with her having
tendinitis, it probably will not, and since her MRIs of the
cervical spine and the lumbosacral spine do not show any surgical
lesions, surgery is also not going to help and is not indicated.”
(T.290).
Plaintiff returned to Dr. Heit on August 7, 2013, complaining
of pain from the rotator cuff tear, but she acknowledged that
surgery had not been recommended. She asked Dr. Heit to fill out
disability paperwork. Dr. Heit declined, noting that Plaintiff had
“an old claim and [she] [did] not feel comfortable with her
‘paperwork.’”

(T.435).

Dr.

Heit

recommended

continuation

of

physical therapy and using a TENS unit. The ALJ’s finding that
Dr.

Wadsworth’s

RFC

Questionnaire

-14-

was

“inconsistent

with

the

subsequent records from 2013 and 2014” was supported by substantial
evidence, and was a proper factor to consider in declining to
assign

controlling

weight

to

Dr.

Wadsworth’s

opinion.

See

20 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4) (“Generally, the more
consistent a medical opinion is with the record as a whole, the
more

weight

[the

Commissioner]

will

give

to

that

medical

opinion.”).
2.

Physical Therapist Kim Jablonski

On April 24, 2014, physical therapist Kim Jablonski (“PT
Jablonski”)

completed

an

RFC

Questionnaire.

(T.368-69).

PT Jablonski stated that she had seen Plaintiff for “several8
courses of [PT] between 2009 [and] 2014.” (T.368). Diagnoses
included chronic cervical pain, low back pain, and right shoulder
pain.

(Id.).

Other

symptoms

included

headaches,

and

general

weakness and instability. Her symptoms were severe enough to
constantly interfere with her attention and concentration (Id.).
During an 8-hour workday, she would need to recline or lay down, in
addition to

normal

breaks;

she

could

sit

and

stand/walk

for

10 minutes at a time; and could sit for a total of 2 hours and and
stand/walk for a total of 2 hours out of an 8-hour day. (T.368).
She would also need to be able to shift positions at will and take

8

The record actually indicates that Plaintiff saw PT Jablonski in 2009 for
about 15 sessions, between August 12, 2009, and November 25, 2009. (T.334-53).
Plaintiff did not return to PT Jablonski until 2014, at which time she saw PT
Jablonksi for only two sessions, on April 22nd and April 24th (the date PT
Jablonski completed the RFC Questionnaire). (T.359, 362).

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unscheduled five-minute breaks every 15-20 minutes (Id.). She could
not lift any weight and was severely limited in her abilities to
use her hands for gross and fine manipulation and in her ability to
reach with either arm (T.369). She would miss work more than four
times a month (Id.). PT Jablonski concluded that Plaintiff was
unable to work a full-time job. (Id.). As the ALJ noted, a physical
therapist is not an “acceptable medical source” as defined by the
Commissioner’s Regulations. Because the regulations do not classify
physical therapists as either physicians or “other acceptable
medical sources,”

physical

therapists

cannot

provide

“medical

opinions.” See Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995).
The ALJ accordingly considered PT Jablonski’s RFC Questionnaire as
an

opinion

provided

by

an

“other

source”

under

20

C.F.R.

§§ 404.1513(a), (d); 416.913(a), (d); SSR 06-03p. The ALJ assigned
it

“little

weight,”

finding

that,

as

was

the

case

with

Dr.

Wadsworth’s opinion, PT Jablonski’s opinion was “quite conclusory,
providing very little explanation of the evidence relied on in
forming that opinion.” Again, the Court finds that the ALJ did not
misapply the relevant legal standards for weighing PT Jablonski’s
“other source” opinion; nor did the ALJ mischaracterize the record
when she found that Plaintiff’s daily living activities and the
physical therapy records on file did not support the “severe
limitations” assessed by PT Jablonski. (T.24).

-16-

3.

Consultative Physician Dr. Karl Eurenius

Plaintiff faults the ALJ for assigning only“partial weight” to
the

report

of

consultative

physician

Dr.

Karl

Eurenius,

who

examined her on February 19, 2013. (T.259-62). Dr. Eurenius noted
that Plaintiff alleged neck, back, and right-arm pain since her
September 2009 MVA. She took only over-the-counter medications at
the time. She lived with her brother and sister, whom she said did
all the cooking, cleaning, laundry and shopping. She bathed daily,
but needed help washing her hair. Her daily activities included
watching television. On examination, Plaintiff was in no acute
distress. Her gait was extremely slow, unsteady, and somewhat
broad-based. She appeared unable to walk on heels or toes or to
squat. Her station was bent slightly forward. She used no assistive
device. She was slow in changing, and needed help getting on and
off the examination table. She was able to rise from her chair only
with difficulty. She displayed slightly limited ROM in her cervical
spine, and limited ROM in her lumbar and thoracic spines. She had
only slight limitations in her right shoulder ROM. She displayed
full lower extremity ROM. There was marked reduction in sensation
to touch and vibration in both legs, but deep tendon reflexes were
normal. Dr. Eurenius diagnosed Plaintiff with chronic neck pain
with occipital headaches; chronic low back pain with profound
neuropathic symptoms in both legs, with poor documentation of her
neck and back injuries; and right shoulder pain and limitation of

-17-

motion, uncertain etiology. For his medical source statement,
Dr.

Eurenius

standing,

opined

walking,

that

Plaintiff

climbing,

was

bending,

markedly

lifting,

limited

carrying

in
and

kneeling due to her back pain. She was also moderately to markedly
limited in lifting, carrying and reaching objects, especially with
her

right

arm.

Dr.

Eurenius

stated

that

her

neuropathy

was

“profound if can be documented.” (T.262) (emphasis supplied).
However, Plaintiff’s alleged neuropathy was not able to be
documented. In particular, the ALJ noted that subsequent nerve
conduction studies were normal, with no evidence of peripheral
nerve neuropathy or cervical radiculopathy. In particular, on
March 7, 2014, Plaintiff saw Dr. Ziad Rifal, complaining of neck
and

right

arm

pain.

An

examination

was

normal,

except

for

“giveaway” in the right arm; an electrodiagnostic test was normal
with no evidence of cervical radiculopathy, brachial plexopathy, or
peripheral nerve entrapment. (T.276). Also, on March 12, 2014,
Plaintiff saw Dr. Andrew Ritting, complaining of right arm pain,
numbness,

and

tingling.

A

nerve

conduction

test

revealed

no

evidence of median nerve compression or any peripheral nerve
impingement or compression. (T.287).
The ALJ also found Plaintiff’s daily activities and overall
treatment record, fully discussed above in her decision, suggested
that Plaintiff was not “markedly” limited in postural activities.
The Court agrees that this conclusion is supported by substantial

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evidence in the record. For instance, when Plaintiff saw Dr. James
Inzerillo on August 6, 2014, he could not determine any cause for
Plaintiff’s right shoulder pain in light of a normal MRI and EMG.
(T.504). Dr. Inzerillo noted that her shoulder pain and back pain
“appear[ed] to be skewed and exaggerated” and that her limited
range of motion in the shoulder was due to “poor effort.” (T.504).
He reported that Plaintiff’s “complaint of pain in so many areas
palpated [did] not strike [him] as correlating to her lack of
guarding of that limb,” and she also showed no “apparent pain with
ambulation or movement.” (T.504). According to Dr. Inzerillo,
Plaintiff’s complaints of “very significant decrease in sensation
throughout her [right arm and leg made] no neurological sense,
especially with normal deep tendon reflexes.” (T.505). Though she
complained

of

an

inability

to

raise

her

right

“arm

to

the

horizontal position,” she “tested with strong motor strength.”
(T.505). Dr. Inzerillo also noted that Plaintiff’s complaints of
neck

pain

appeared

to

be

“exaggerated.”

(T.505).

As

far

Plaintiff’s daily activities, as the ALJ noted, she
was able to attend classes, drive herself back and forth
to school, and earn an associate’s degree during the
period at issue. By self-report, she was also able to do
light house chores such as washing dishes, walk, drive or
ride in a car, perform very basic food preparation, and
help with pet care (Ex. 5E and 7E). More recently, she
has applied for multiple jobs in such environments as
fast food and supermarkets (Ex. 14F at 5-7; Hearing
Testimony). In all, she appears to have maintained a
somewhat normal level of daily activity and interaction.
. . .

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as

(T.22-23). The ALJ reasonably determined that these activities were
inconsistent with Dr. Eurenius’s assessment of “markedly” limited
abilities

in

standing,

walking,

climbing,

bending,

lifting,

carrying and kneeling due to her back pain.
4.

Dr. Phillip Vitticore

Plaintiff alleges that the ALJ erred in failing to accord a
specific amount of weight to Dr. Phillip Vitticore’s opinion.
(T.12). On April 8, 2014, Plaintiff saw Dr. Vitticore for her
migraine headaches. His physical examination of Plaintiff was
largely normal: she had full power upon shoulder shrug, she was
sensory grossly intact to light touch and vibration, and she had
good grip strength. (T.270-71). Dr. Vitticore assessed migraine,
without aura, intractable, severe and debilitating. (T.271). At her
second appointment a month later, on May 13, 2014, Plaintiff asked
Dr. Vitticore to complete an RFC Questionnaire. (T.487-88). In the
RFC Questionnaire, Dr. Vittocore’s diagnoses included migraines
with a poor prognosis. He stated that her symptoms would frequently
interfere with her attention and concentration. During a normal
workday, in additional to normal breaks, Plaintiff would need to
recline or lie down. She would miss work more than 4 times a month,
and was incapable of working full-time on a sustained basis.
Dr. Vitticore “treated” Plaintiff, and arguably the ALJ should
have determined whether he was a treating source for purposes of
the treating physician’s rule of deference. However, the brevity of

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Dr. Vitticore’s treatment of Plaintiff weighs against such a
finding; the length of the treatment relationship and the frequency
of examination is one of the most important factors in determining
whether a treating physician’s opinion is entitled to controlling
weight. See Ramos v. Comm’r of Soc. Sec., No. 13-CV-6561 AJN, 2015
WL 708546, at *15 (S.D.N.Y. Feb. 4, 2015) (“Affording a treating
physician’s

opinion

controlling

weight

reflects

the

reasoned

judgment that treating physicians are “most able to provide a
detailed,

longitudinal

picture

of

[the

claimant’s]

medical

impairment(s) . . . .”) (quoting 20 C.F.R. § 404.1527(c)(2);
citation omitted; emphasis supplied). Here, Dr. Vitticore only saw
Plaintiff twice, and at the second appointment, he agreed to fill
out the RFC Questionnaire.
While the ALJ should have assigned a particular weight to
Dr. Vitticore’s opinion, she clearly considered it at step two, and
accorded it no significant weight. (T.15). As the ALJ noted,
Dr. Vitticore saw Plaintiff only once prior to completing the
questionnaire in May 2014, and provided no support for his opinion
that Plaintiff was unable to work, other than a recitation of
Plaintiff’s reported symptoms. (T.15, 487-88). Dr. Vitticore also
declined to offer any opinion on functional limitations (T.15,
487-88). Notably, migraines were the only medical condition for
which Plaintiff sought treatment from Dr. Vitticore. The ALJ did
not determine that Plaintiff’s alleged migraines were a “severe”

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impairment, a finding that Plaintiff does not challenge on this
appeal. Since Dr. Vitticore did not treat Plaintiff for any of the
other impairments that the ALJ did find to be “severe,” the Court
cannot see how the ALJ’s failure to assign a specific weight to
Dr. Vitticore’s opinion, after clearly considering it, had any
effect on the ultimate decision. See Zabala v. Astrue, 595 F.3d
402, 409 (2d Cir. 2010) (“[W]here application of the correct legal
principles to the record could lead [only to the same] conclusion,
there is no need to require agency reconsideration.”) (quotation
omitted).
II.

Erroneous Credibility Assessment
Plaintiff argues that the ALJ’s credibility determination was

not supported by substantial evidence. It is within the purview of
the administrative law judge to reject a claimant’s subjective
complaints

of

severe,

disabling

pain,

after

evaluating

the

objective medical evidence in the record, the claimant’s demeanor,
and other indicia of credibility. E.g., Aponte v. Sec’y, Dept. of
Health and Human Servs., 728 F.2d 588, 591–92 (2d Cir. 1984)
(citation omitted). However, the credibility assessment must set
forth with “sufficient specificity” to enable the reviewing court
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Here, the ALJ’s credibility determination complies with the
applicable legal principles and is supported by substantial record

-22-

evidence. Plaintiff argues that the ALJ should not have factored
her ability to attend college into the credibility assessment,
because

she

disability

required
office.

certain
While

accommodations

the

Regulations

by

the

provide

college’s
that

the

Commissioner generally does not consider activities like taking
care

of

oneself,

household

tasks,

hobbies,

therapy,

school

attendance, club activities, or social programs to be “substantial
gainful activity,”

20 C.F.R. § 404.1572(c), the ALJ did not

improperly equate Plaintiff’s ability to attend college classes,
with some accommodations, as conclusive evidence that she can
engage

in

substantial

gainful

activity.

The

ALJ

reasonably

determined that Plaintiff’s activities of daily living suggested
that she had greater ability to perform work-related activities
than she testified to. For instance, Plaintiff alleged an inability
to sit for more than 10 to 15 minutes at a time, but, as the ALJ
noted,

she

was

able

to

attend

college,

take

12

credits

per

semester, and complete an associate’s degree, and was able to drive
for up to an hour on her commute to campus. (T.22-23, 37, 41).
Courts in this Circuit have found that an ALJ may properly consider
a claimant’s ability to attend college or other schooling—even with
accommodations—as among the claimant’s “daily activities” that are
relevant under 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). See,
e.g., Wynn v. Astrue, 617 F. Supp.2d 177, 184 (W.D.N.Y. 2009);
Fernandez v. Astrue, No. 1:06-CV-00479(LEK), 2009 WL 961492, at *13

-23-

(N.D.N.Y. Apr. 7, 2009). The ALJ further noted that Plaintiff
collected

unemployment

insurance

during

the

relevant

period.

(T.23). Courts in this Circuit “have held that an ALJ may consider
evidence that the claimant received unemployment benefits and/or
certified that [s]he was ready, willing, and able to work during
the time period for which [s]he claims disability benefits as
adverse factors in the ALJ’s credibility determination.” Felix v.
Astrue, No. 11-CV-3697 KAM, 2012 WL 3043203, at *10 (E.D.N.Y.
July 24, 2012) (citations omitted).
Plaintiff argues that the ALJ should not have drawn an adverse
inference regarding her credibility based on her lack of medical
treatment

between

the

2009

MVA

car

accident

and

her

2012

applications for disability benefits. However, the Commissioner’s
regulations state that among the relevant factors to be considered
in making a credibility determination are the frequency and types
of

treatment

a

claimant

§§

404.1529(c)(3)(iv),

has

(v),

received.

See

416.929(c)(3)(iv),

20

C.F.R.

(v);

see

also Heagney-O’Hara v. Comm’r of Soc. Sec., 646 F. App’x 123,
125–26 (2d Cir. 2016) (unpublished opn.) (rejecting claimant’s
argument that “the ALJ improperly considered her decision not to
pursue surgery when making his credibility determination” because
“[a]n ALJ is required to consider a variety of factors when
assessing a claimant’s credibility, including whether the claimant
has received treatment, other than medication, to relieve her

-24-

symptoms”)

(citation

omitted).

As

the

Commissioner

argues,

Plaintiff’s purported reason for failing to seek treatment during
the three-year period—that Dr. Lieberg told her that she was “going
to have to learn to live with [the pain]”—is illogical: Dr. Lieberg
made this statement on June 13, 2013, well after the gap in
treatment. (T.290).
In sum, the Court finds that the ALJ’s adverse credibility
determination is not legally erroneous. The Court further finds
that it is supported by substantial evidence in the record, and is
set forth with sufficient specificity to permit the Court to “glean
the rationale of [the] ALJ’s decision.” Mongeur v. Heckler, 722
F.2d 1033, 1040 (2d Cir. 1983).
V.

Conclusion
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s decision is not legally flawed and is based on
substantial evidence. Accordingly, it is affirmed. Defendant’s
motion for judgment on the pleadings is granted, and Plaintiff’s
motion for judgment on the pleadings is denied. The Clerk of Court
is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 24, 2017
Rochester, New York.
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