Bryant v. Colvin

Filing 18

DECISION AND ORDER. The Commissioner's Motion for Judgment on the Pleadings 16 is GRANTED and Plaintiff's Motion for Judgment on the Pleadings 12 is DENIED. Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/30/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHEN ELLIS BRYANT,
Plaintiff,
Case # 16-CV-6109-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Stephen Ellis Bryant (“Bryant” or “Plaintiff”) brings this action pursuant to the Social
Security Act (“the Act”) seeking review of the final decision of the Acting Commissioner of
Social Security (“the Commissioner”) that denied his applications for disability insurance
benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act.
ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 10, 11. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On November 13, 2012, Bryant applied for DIB and SSI with the Social Security
Administration (“the SSA”). Tr.2 192-201. He alleged that he had been disabled since January
17, 2011 due to a back injury. Tr. 240. On June 19, 2014, Bryant and a vocational expert
(“VE”) appeared and testified at a hearing before Administrative Law Judge Michael W. Devlin
(“the ALJ”). Tr. 73-96. On July 25, 2014, the ALJ issued a decision finding that Bryant was not

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Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
2
References to “Tr.” are to the administrative record in this matter.

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disabled within the meaning of the Act. Tr. 58-68. On December 21, 2015, the Appeals Council
denied Bryant’s request for review. Tr. 1-5. Thereafter, Bryant commenced this action seeking
review of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (quotation marks omitted). It is not the Court’s function to “determine de novo
whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the Secretary’s
findings are conclusive if supported by substantial evidence).
II.

Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or

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combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

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DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Bryant’s claim for benefits under the process described

above. At step one, the ALJ found that Bryant had not engaged in substantial gainful activity
since the alleged onset date. Tr. 60. At step two, the ALJ found that Bryant has the following
severe impairments: lumbar sprain/strain, lumbar disc bulges, and lumbar radiculopathy. Tr. 6062. At step three, the ALJ found that these impairments, alone or in combination, did not meet
or medically equal an impairment in the Listings. Tr. 62.
Next, the ALJ determined that Bryant retained the RFC to perform sedentary work3 with
additional limitations. Tr. 62-66. Specifically the ALJ found that Bryant can occasionally lift,
carry, push, and pull up to 10 pounds and frequently lift and carry less than 10 pounds; can sit for
about six hours and stand and walk for at least two hours in an eight hour workday; must be able
to stand for one to two minutes after sitting for approximately 30 minutes and sit for one to two
minutes after standing for approximately 15 minutes; and can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl, but never climb ladders, ropes, or scaffolds. Tr.
62.
At step four, the ALJ relied on the VE’s testimony and found that this RFC prevents
Bryant from performing his past relevant work as a materials handler. Tr. 66. At step five, the
ALJ relied on the VE’s testimony to determine that Bryant can adjust to other work that exists in
significant numbers in the national economy given his RFC, age, education, and work
experience. Tr. 66-67. Specifically, the VE testified that Bryant could work as a telephone

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“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).

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quotation clerk and telephone solicitor. Tr. 67. Accordingly, the ALJ concluded that Bryant was
not “disabled” under the Act. Tr. 67-68.
II.

Analysis
Bryant argues that remand is required because (1) a portion of the RFC assessment is

highly specific and not supported by substantial evidence; and (2) the ALJ violated the treating
physician rule. ECF No. 12-1, at 19-26. These arguments will be addressed in turn below.
1.

RFC Assessment

Bryant argues that the ALJ improperly determined that he could perform sedentary work
as long as he could stand for one to two minutes after sitting for approximately 30 minutes and
sit for one to two minutes after standing for approximately 15 minutes. ECF No. 12-1, at 19-23.
Bryant asserts that the medical opinions of record and his testimony contradict this highly
specific finding and thus it is not supported by substantial evidence. Id. The Commissioner
maintains that the ALJ properly weighed all the evidence before him and that substantial
evidence supports this limitation. ECF No. 16-1, at 14-21.
RFC is defined as “what an individual can still do despite his or her limitations.”
Desmond v. Astrue, No. 11-CV-0818 (VEB), 2012 WL 6648625, at *5 (N.D.N.Y. Dec. 20, 2012)
(quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). To determine a claimant’s RFC “the
ALJ considers a claimant’s physical abilities, mental abilities, symptomatology, including pain
and other limitations that could interfere with work activities on a regular and continuing basis.”
Id. (citing 20 C.F.R. § 404.1545(a)); 20 C.F.R. § 416.945(a). “An RFC finding will be upheld
when there is substantial evidence in the record to support each requirement listed in the
regulations.” Id. (citation omitted).

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“[A]n ALJ is not qualified to assess a claimant’s RFC on the basis of bare medical
findings, and as a result an ALJ’s determination of RFC without a medical advisor’s assessment
is not supported by substantial evidence.” Wilson v. Colvin, No. 13-CV-6286P, 2015 WL
1003933, at *21 (W.D.N.Y. Mar. 6, 2015) (citation omitted). However, “[a]lthough the ALJ’s
conclusion may not perfectly correspond with any of the opinions of medical sources cited in his
decision, he [i]s entitled to weigh all of the evidence available to make an RFC finding that [i]s
consistent with the record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013)
(citation omitted) (summary order); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)
(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”) (citation
omitted).
Bryant relies on Cosnyka v. Colvin, 576 F. App’x 43, 46 (2d Cir. 2014), to argue that the
sit/stand limitation in the RFC assessment is “based on the ALJ’s own surmise.” ECF No. 12-1,
at 19. In Cosnyka, the ALJ credited an orthopedic examiner’s opinion that the plaintiff would
require “regular comfort breaks.” Cosnyka, 576 F. App’x at 46. The ALJ interpreted this
opinion to mean that the plaintiff would need a six minute break every hour. Id. The Second
Circuit determined that remand was appropriate because the record—including the medical
evidence and the plaintiff’s testimony—did not support the ALJ’s conclusion and some evidence
was “to the contrary.” Id. Here, however, the medical opinions and Bryant’s own testimony
support the ALJ’s RFC assessment. See Kirkland v. Colvin, No. 15-CV-6002P, 2016 WL
850909, at *12 (W.D.N.Y. Mar. 4, 2016) (finding that the ALJ did not err by assessing specific
limitations that did not precisely correspond to any medical opinion because the plaintiff’s daily
activities, treatment history, and a consultative examiner’s evaluation supported those
limitations).

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For example, the ALJ afforded “great weight” to the opinion of Walter Hoffman, M.D.
(“Dr. Hoffman”) that Bryant could work if he was allowed to “change positions frequently.” Tr.
64, 387. The ALJ also gave “great weight” to the opinion of Clifford Everett, M.D. (“Dr.
Everett”) that Bryant could work if he was allowed to “sit-to-stand alternately” and “change
position as needed.” Tr. 64, 349. Similarly, the ALJ gave “significant weight” to the opinion of
Matthew Grier, O.D. (“Dr. Grier”) that Bryant could work if he was able to “change position at
will.” Tr. 64, 463. The ALJ also afforded “significant weight” to multiple opinions from
treating physician Svetlana Trounina, M.D. (“Dr. Trounina”) who never imposed a specific
limitation as to changing positions. Tr. 64-65, 390, 393, 395, 415, 424-430, 457, 460.
Bryant argues that the above opinions establish that he needs a sit/stand option, but do not
support the ALJ’s specific determination that he must be able to stand for one to two minutes
after sitting for approximately 30 minutes and sit for one to two minutes after standing for
approximately 15 minutes. ECF No. 12-1, at 19-23. Although Bryant is correct that “the RFC
must be supported by medical opinions, it is ultimately the ALJ’s duty to formulate the RFC
after evaluating the opinion evidence, treatment records, and the testimony of the claimant.”
Davis v. Colvin, No. 15-CV-6695P, 2017 WL 745866, at *11 (W.D.N.Y. Feb. 27, 2017) (finding
that the ALJ did not err by assessing a one-hour standing limitation even though it did not
precisely correspond to any medical opinion because the plaintiff’s daily activities, treatment
history, and a consultative examiner’s evaluation supported that limitation).
There are several references in the record to Bryant’s ability to sit and stand before he
needs to change positions. Bryant testified at his hearing, for example, that he can sit for 10 to
15 minutes at a time before he has to get up and stretch for a few minutes. Tr. 84. He also
testified that he can stand for five or 10 minutes at a time before he has to sit down. Id.

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Additionally, Bryant reported how long he could sit and stand at several appointments with Dr.
Everett. Tr. 350, 355-56, 358. In January 2011, he reported that he could sit and stand for 10
minutes at a time. Tr. 358. In February 2011, he reported that he could sit for 30 minutes and
stand for 10 minutes at a time. Tr. 355-56. In March 2011, he reported that he could sit and
stand for 30 minutes at a time. Tr. 350. Based on the above medical opinions and these
variations as to how long Bryant can sit and stand at a time, the ALJ reasonably concluded that
Bryant could sit for 30 minutes and stand for 15 minutes before needing to change positions. See
Quinn v. Colvin, 199 F. Supp. 3d 692, 713 (W.D.N.Y. 2016) (finding that the RFC assessment
as to the plaintiff’s ability to sit and stand was supported by substantial evidence where the
record varied as to the plaintiff’s ability to sit and stand); see also Veino, 312 F.3d at 588
(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”) (citation
omitted). Accordingly, for the reasons stated above, the Court finds that the ALJ did not err and
that the sit/stand limitation is supported by substantial evidence.
2.

Treating Physician Rule

Bryant also argues that the ALJ improperly rejected an opinion from his treating
physician Dr. Trounina. ECF No. 12-1, at 23-26. Specifically, Bryant asserts that the ALJ failed
to provide the requisite “good reasons” for discounting Dr. Trounina’s opinion that he could
stand and walk less than two hours and sit less than six hours in an eight hour workday. Id.
The “treating physician rule” is “a series of regulations set forth by the Commissioner . . .
detailing the weight to be accorded a treating physician’s opinion.” De Roman v. Barnhart, No.
03 Civ. 0075 (RCC) (AJP), 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003) (citing 20 C.F.R.
§ 404.1527); 20 C.F.R. § 416.927. Under the treating physician rule, the ALJ must give
controlling weight to a treating physician’s opinion when that opinion is “well-supported by

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medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see
also Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). While an ALJ may discount a
treating physician’s opinion if it does not meet this standard, the ALJ must “comprehensively set
forth [his or her] reasons for the weight assigned to a treating physician’s opinion.” Halloran v.
Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (“We will
always give good reasons in our notice of determination or decision for the weight we give [the
claimant’s] treating source’s opinion.”).
Even when a treating physician’s opinion is not given “controlling” weight, the ALJ
must still consider several factors in determining how much weight it should receive. The ALJ
must consider “the length of the treatment relationship and the frequency of examination; the
nature and extent of the treatment relationship; the relevant evidence, particularly medical signs
and laboratory findings, supporting the opinion; the consistency of the opinion with the record as
a whole; and whether the physician is a specialist in the area covering the particular medical
issues.” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (quotation marks, alterations, and
citations omitted); 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
Here, Dr. Trounina provided several medical opinions to which the ALJ afforded
“significant weight” based on their consistency with Dr. Trounina’s objective findings and her
status as a treating specialist. Tr. 64-65 (citing Tr. 390, 393, 395, 415, 424-430, 457, 460); see
20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (an ALJ will give more weight to a medical opinion
supported by relevant evidence and a thorough explanation), 404.1527(c)(2), 416.927(c)(2) (an
ALJ will give more weight to a medical opinion from a treating source). However, the ALJ
specifically rejected Dr. Trounina’s opinion that Bryant could stand and walk less than two hours

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and sit less than six hours in an eight hour workday, because the ALJ found that “these particular
limitations were not supported by the record.” Tr. 65 (citing Tr. 427). This was a proper reason
to discount Dr. Trounina’s opinion, because an ALJ is entitled to discount a medical opinion that
he or she finds inconsistent with the record as a whole. See 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4).
Bryant asserts that the ALJ’s reason for discounting this portion of Dr. Trounina’s
opinion is conclusory and frustrates meaningful review because it lacks further explanation.
ECF No. 12-1, at 25. However, the Court finds that the ALJ did not err because his reasoning on
this issue is apparent from other portions of his decision. See Mongeur v. Heckler, 722 F.2d
1033, 1040 (2d Cir. 1983) (“When . . . the evidence of record permits us to glean the rationale of
an ALJ’s decision, we do not require that he have mentioned every item of testimony presented
to him or have explained why he considered particular evidence unpersuasive or insufficient to
lead him to a conclusion of disability.”).
The ALJ’s discussion of the other medical opinions of record allows the Court to glean
the rationale as to why the ALJ found Dr. Trounina’s opinion as to standing, walking, and sitting
inconsistent with the record as a whole. Dr. Trounina’s opinion, if adopted, would preclude
Bryant from performing sedentary work. Vinson v. Colvin, No. 6:15-CV-06006(MAT), 2015
WL 8482783, at *4 (W.D.N.Y. Dec. 9, 2015) (noting that sedentary work usually requires “up to
two hours of standing or walking and six hours of sitting in an eight-hour work day”) (citation
omitted). Dr. Everett opined, however, that Bryant was capable of light work. Tr. 349, 371.
Unlike Dr. Trounina, Dr. Everett did not opine that Bryant would only be able to stand and walk
less than two hours and sit less than six hours in an eight hour work day. Id. The ALJ afforded
“great weight” to this opinion because Dr. Everett is “a treating source familiar with [Bryant]’s

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impairments and how they affect his functioning.” Tr. 64; see 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2) (an ALJ will give more weight to a medical opinion from a treating source).
Similarly, Dr. Hoffman opined that Bryant could return to work with certain restriction, but he
did not indicate that Bryant could only stand and walk less than two hours and sit less than six
hours in an eight hour work day. Tr. 387. The ALJ gave this opinion “significant weight”
because he found it “generally consistent with the objective record.” Tr. 64; see 20 C.F.R. §§
404.1527(c)(4), 416.927(c)(4) (an ALJ will give more weight to a medical opinion that is
consistent with the record as a whole). On a separate occasion, Dr. Hoffman specifically opined
that Bryant was capable of sedentary work, which is what the ALJ ultimately determined in the
RFC assessment. Tr. 62, 343.
The ALJ’s reasoning for rejecting Dr. Trounina’s limitation as to standing, walking, and
sitting is apparent based on his analysis of the medical opinions discussed above. Because those
opinions conflicted with Dr. Trounina’s opinion, it was reasonable for the ALJ to discount Dr.
Trounina’s opinion as inconsistent with the record as a whole.
CONCLUSION
For the reasons stated, the Commissioner’s Motion for Judgment on the Pleadings (ECF
No. 16) is GRANTED, and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 12) is
DENIED. Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of
Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: May 30, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 
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