Shannon v. Colvin
Filing
20
DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment on the Pleadings; granting 14 Commissioner's Motion for Judgment on the Pleadings and dismissing Plaintiffs complaint in its entirety with prejudice. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 12/13/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
SOMADISHAH SHANNON
Plaintiff,
1:16-cv-06796 MAT
DECISION AND ORDER
-v-
NANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Somadishah Shannon (“Plaintiff”), represented by counsel,
brings this action under 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” or “Defendant”)
denying her applications for Disability Insurance Benefits (“DIB”)
and
Supplemental
Security
Income
(“SSI”).
The
Court
has
jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
Plaintiff’s motion is denied and Defendant’s motion is granted.
PROCEDURAL BACKGROUND
On March 27, 2012, Plaintiff protectively filed applications
for DIB and SSI, alleging disability as of June 1, 2009 due to
spinal disease, depression, arthritis in her feet and hands, and
dental problems. Administrative Transcript (“T.”) 293, 305. The
claims were initially denied on July 16, 2012. T. 140-46. At
Plaintiff’s request, a hearing was conducted on December 16, 2013,
in Rochester, New York by administrative law judge (“ALJ”) John
Costello, with Plaintiff appearing with her attorney. A vocational
expert also testified. T. 76-108. The ALJ issued an unfavorable
decision on January 29, 2014. T. 118-130. Plaintiff appealed the
decision to the Appeals Council (“AC”), which remanded the case on
March 27, 2015 for further development. T. 135-38. A new hearing
was held on November 16, 2015 in Rochester, New York, by ALJ John
Costello. T. 38-75. Plaintiff appeared with her attorney and
testified. An impartial VE also testified. Id.
The ALJ issued an unfavorable decision on January 21, 2016.
T. 14-30. On October 28, 2016, the AC denied Plaintiff’s timely
request for review, making the ALJ’s decision the final decision of
the Commissioner. T. 1-6. This action followed.
THE ALJ’S DECISION
The
ALJ
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520(a) and 416.920(a). Initially, the ALJ
found Plaintiff met the status requirements of the Act through
June 30, 2013. T. 20.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since
June 1, 2009, the alleged onset date. T. 20.
2
At
step
two,
the
ALJ
determined
that
Plaintiff
had
the
following “severe” impairments: lumbar stenosis and mild disc
disease; arthritis, feet; tendonitis, wrists; depression; anxiety;
and obesity. Id. The ALJ also noted that Plaintiff alleged she has
gastritis. However, the ALJ found there was no evidence in the
record indicating gastritis caused more than a minimal limitation
in
Plaintiff’s
ability
to
perform
basic
work
activities.
Accordingly, the ALJ found Plaintiff’s gastritis to be non-severe.
Id.
At step three, the ALJ found that Plaintiff’s impairments did
not singularly or in combination meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Id. 20.
Before proceeding to step four, the ALJ found that Plaintiff
retained the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), with the
following
additional
limitations:
able
to
engage
in
frequent
fingering; limited to performing simple, routine tasks; and limited
to working primarily alone, with only occasional supervision,
because of difficulty handling stress and working with others.
T. 22.
At step four, the ALJ concluded that Plaintiff was unable to
perform any past relevant work. T. 28. At step five, the ALJ relied
on the VE’s testimony to find that, taking into account Plaintiff’s
3
age, education, work experience, and RFC, there are unskilled jobs
existing in the national economy Plaintiff is able to perform,
including the representative occupations of housekeeping/cleaner
and mail clerk. T. 29. The ALJ accordingly found that Plaintiff was
not disabled as defined in the Act. T. 30.
SCOPE OF REVIEW
A
district
court
may
set
aside
the
Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error.
42 U.S.C. § 405(g); see also
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”). “Substantial evidence means ‘such relevant evidence
as
a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation
omitted).
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
Commissioner’s conclusions of law.”
4
does
not
apply
to
the
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
DISCUSSION
Plaintiff contends that remand is warranted for the following
reasons: (1) the ALJ erred by failing to incorporate difficulties
in maintaining attendance in the hypothetical to the VE or in the
RFC finding; (2) the ALJ erred by not analyzing the opinion of
Dr. Kevin Zhao under the treating physician rule; (3) the ALJ
impermissibly cherry picked the opinions of Dr. Robbyn Upham and
Dr. Karl Eurenius, specifically leaving out any limitation in the
ability to reach from the RFC finding; and (4) the ALJ erred by
failing to ask the VE about limitations in walking, standing,
sitting, pushing, pulling, lifting, and carrying. For the reasons
discussed below, the Court finds Plaintiff’s arguments without
merit and affirms the Commissioner’s final determination.
I.
The Omission of Difficulties Maintaining Attendance in the
Hypothetical and RFC Finding was Not Error.
Plaintiff argues the ALJ committed legal error because he did
not include difficulty maintaining attendance in a hypothetical
presented to the VE at the hearing or in his final RFC finding. For
the reasons discussed below, the Court finds that the ALJ provided
acceptable justification for declining to adopt Plaintiff’s alleged
difficulties in maintaining attendance.
The record in this case contains several medical opinions that
include
limitations
on
maintaining
5
a
regular
schedule
and/or
attendance. Specifically, consultative examiner Dr. Kavitha Finnity
opined
Plaintiff
“is
unable
to
maintain
a
regular
schedule”
(T. 636); non-examining state agency review psychiatrist Dr. R.
Nobel
noted
Dr.
Finnity’s
opinion
and
opined
Plaintiff
was
moderately limited in her ability to perform activities within a
schedule, maintain regular attendance, and be punctual within
customary tolerances (T. 652); and licensed mental health counselor
(“LMHC”) Rose Marshall, mental health counselor (“MHC”) Karyn
Socci, and licensed medical social worker (“LMSW”) Meghan Stich
each opined Plaintiff had moderate limitations regularly attending
to a routine and maintaining a schedule (T. 372, 376, 901).
In his decision, the ALJ summarized each of the opinions noted
above and included specific reference to the portions of the
opinions pertaining to Plaintiff’s ability to maintain a schedule.
See T. 25-27. However, the ALJ chose to give all five of these
opinions limited weight and properly explained his reasoning for
the weight he accorded to each opinion. In particular, he noted
that portions of Dr. Finnity’s opinion were inconsistent with
Plaintiff’s daily activities, including her ability to care for her
children and maintain a partner relationship. T. 26. With respect
to Dr. Nobel’s opinion, although Dr. Nobel opined Plaintiff would
be moderately limited in her ability to maintain regular attendance
and be punctual within normal tolerances, the ALJ noted Dr. Nobel
had also specifically opined Plaintiff was capable of performing
6
simple to semi-skilled work on a sustained basis. Id. The ALJ
further noted that LMHC Marshall had only been treating Plaintiff
for two weeks and seen Plaintiff just twice before issuing her
opinion (T. 25), and that both MHC Socci and LMSW Stich’s opinions
were inconsistent with their reports that Plaintiff had relatively
normal functioning (T. 26-27).
Plaintiff
contends
that
the
ALJ
erred
in
rejecting
the
portions of these opinions related to ability to maintain a regular
schedule. The Court disagrees.
As a threshold matter, the Court notes that Plaintiff has
failed to demonstrate that the moderate limitations in the ability
to maintain a schedule suggested by the above-listed sources are
inconsistent with the assessed RFC. There is significant case law
indicating that the ALJ’s limitation of Plaintiff to “simple,
routine tasks” and “working primarily alone, with only occasional
supervision” accounts for her limitations for performing activities
within a schedule and maintaining regular attendance. See, e.g.,
Lowry v. Comm’r of Soc. Sec., No. 115CV1553GTSWBC, 2017 WL 1290685,
at *4 (N.D.N.Y. Mar. 16, 2017), report and recommendation adopted,
2017 WL 1291760 (N.D.N.Y. Apr. 6, 2017) (moderate limitations in
the ability to maintain concentration or a regular schedule or to
deal with stress do not prevent a claimant from performing simple,
routine work); Landers v. Colvin, No. 14-CV-1090S, 2016 WL 1211283,
at *4 (W.D.N.Y. Mar. 29, 2016) (limitation to “‘simple, repetitive,
7
and routine tasks’ account[ed] for [p]laintiff’s limitations [in]
maintaining attention and concentration, performing activities
within a schedule, and maintaining regular attendance”); Sipe v.
Astrue,
873
F.
limitations
in
attendance”
were
Supp.
2d
471,
“relating
consistent
481
to
with
(N.D.N.Y.
2012)
instructions,
unskilled
(moderate
concentration,
work).
Moreover,
Dr. Nobel expressly opined that Plaintiff was capable of performing
simple to semi-skilled work on a sustained basis, despite her
moderate attendance difficulties. Accordingly, the Court finds that
the ALJ’s RFC finding accounts for Plaintiff’s moderate limitations
in maintaining a schedule.
Even assuming that the ALJ did in fact reject the portions of
the previously discussed opinions regarding Plaintiff’s attendance
difficulties, the Court would still find no error. With respect to
Dr. Finnity and Dr. Nobel’s opinions, an ALJ has discretion to
weigh the opinions of consultative examiners and attribute the
appropriate weight based on his or her review of the entire record.
See Burnette v. Colvin, 564 F. App’x 605, 605 (2d Cir. 2014)
(finding that the ALJ properly exercised his discretion in giving
little weight to the consultative examiner’s opinion, as it was
inconsistent with the record as a whole). Furthermore, the ALJ may
properly discount a medical opinion where it is inconsistent with
the claimant’s own testimony regarding her “daily functioning.”
Domm v. Colvin, 579 F. App’x 27, 28 (2d. Cir. 2014). Here, the
8
ALJ’s finding that Plaintiff’s activities were inconsistent with
limitations
for
maintaining
a
schedule
was
reasonable
and
consistent with the evidence of record. Specifically, the ALJ noted
Plaintiff’s ability to care for her five children and maintain a
partner
relationship,
functioning
therefore
to
her
as
well
treating
appropriately
as
displaying
sources.
explained
his
See
T.
opinion
overall
26-27.
to
normal
The
credit
ALJ
only
portions of Dr. Finnity and Dr. Nobel’s opinions.
With regard to the opinions of Plaintiff’s mental health
counselors, the Court notes that mental health counselors are “not
an acceptable treating source as defined by the Commissioner.”
Esteves v. Barnhart, 492 F. Supp. 2d 275, 281 (W.D.N.Y. 2007). An
ALJ may reject the opinion of a mental health counselor where it is
inconsistent with the other evidence of record. See Bulavinetz v.
Astrue, 663 F. Supp. 2d 208, 212 (W.D.N.Y. 2009).
Here, and as the ALJ noted in his decision, MHC Socci’s
assessment was internally inconsistent in finding Plaintiff had
normal functioning in four of the six areas of functioning and
moderate limitations in only two areas of functioning, yet would be
unable to work for three months. T. 27. Likewise, the ALJ found
LMSW Stich’s opinion that Plaintiff would be unable to work for
six months inconsistent with her report that Plaintiff had normal
functioning and the ability to understand simple instructions,
perform simple and complex tasks independently, and maintain basic
9
standards of hygiene and grooming. Id. These explanations are
consistent
with
the
record
and
adequately
support
the
ALJ’s
decision to afford the opinions in question only limited weight.
See Kelsey v. Comm’r of Soc. Sec., 335 F. Supp. 3d 414 (W.D.N.Y.
2018) (“It is an appropriate exercise of discretion for an ALJ to
afford little weight to a medical opinion that is internally
inconsistent.”). Accordingly, the Court finds that, to the extent
the ALJ decided to omit any limitation in maintaining a schedule
from the hypotheticals to the VE and the ultimate RFC finding, it
was a permissible exercise of discretion.
II.
Evaluation of Dr. Kevin Zhao’s Medical Opinion
Plaintiff’s second argument is that the ALJ failed to properly
evaluate the medical opinion of Plaintiff’s treating physician,
Dr. Zhao. Specifically, Plaintiff contends the ALJ committed legal
error by failing to assess Dr. Zhao’s opinion under the treating
physician rule. For the reasons discussed below, the Court finds
the ALJ’s failure to acknowledge that Dr. Zhao was a treating
physician harmless.
In April 2009, prior to Plaintiff’s alleged onset date of
June 1, 2009, Dr. Zhao completed a physical assessment of Plaintiff
for the Monroe County Department of Human Services. T. 656-59.
Using
the
check-the-box
form,
Dr.
Zhao
opined
Plaintiff
was
moderately limited in her ability to walk, stand, sit, push, pull,
bend,
see,
hear,
speak,
lift,
10
and
carry.
T.
657.
However,
Dr.
Zhao’s
contemporary
physical
examination
of
Plaintiff
demonstrated normal results in all areas except for Plaintiff’s
squat, which
Dr.
Zhao noted
was abnormal
due
to
Plaintiff’s
“passive pain.” T. 658. The Court notes that Dr. Zhao signed the
form “Kevin Zhao” with no indication of his medical credentials or
Plaintiff’s treating relationship with him. T. 657.
In his decision, the ALJ gave little weight to Dr. Zhao’s
opinion that Plaintiff would be moderately limited in all areas of
functioning, including seeing, hearing, and speaking. T. 25. The
ALJ noted that the assessment did not indicate whether Dr. Zhao was
an acceptable medical source or what his treatment relationship
with Plaintiff was. Id. He further reasoned the opinion was general
and vague in its assessment of limitations, and that the record as
a whole, including Plaintiff’s own assertions, gave no support to
the finding Plaintiff was limited in her ability to see, hear, or
speak. Id.
Pursuant to the regulations applicable to Plaintiff’s claim,
an ALJ is required to give controlling weight to the opinion of a
treating physician so long as it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(c)(2). However, the Second Circuit
has repeatedly held that it is permissible for an ALJ to give less
than controlling weight to a treating physician’s opinion he or she
11
finds
does
not
meet
this
standard,
provided
he
or
she
“comprehensively set[s] forth [his or her] reasons for the weight
assigned to a treating physician’s opinion.” Burgess v. Astrue, 537
F.3d 117, 129 (2d Cir. 2008) (quoting Halloran v. Barnhart, 362
F.3d 28, 33 (2d Cir. 2004); see 20 C.F.R. § 404.1527(c)(2) (stating
the
agency
“will
determination
or
always
give
decision
good
for
the
reasons
in
our
weight
we
give
notice
to
of
[the
claimant’s] treating source’s opinion”).
Here, it does appear from the record that Dr. Zhao was a
treating physician and that the ALJ erred by not assessing his
opinion under the treating physician rule. However, the Court finds
that this error was harmless, because the ALJ thoroughly discussed
and assessed Dr. Zhao’s opinion. See Ortiz v. Colvin, 298 F. Supp.
3d 581, 591 (W.D.N.Y. 2018) (misattribution of treating source
opinion was harmless error where the ALJ’s “evaluation of that
opinion would not have changed had he credited the opinion” to the
correct source). The ALJ set forth several legitimate reasons for
giving little weight to Dr. Zhao’s opinion, which predated the
alleged onset date. Specifically, the ALJ noted Dr. Zhao’s opinion
was conclusory and did not provide detailed medical explanations
for the limitations in the assessment. T. 25. Furthermore, the ALJ
correctly noted that the medical evidence of record does not
support Dr. Zhao’s opinion that Plaintiff has limitations with her
ability to see, hear, or speak, particularly in light of the fact
12
that
Dr.
Zhao’s
own
examination
of
Plaintiff
revealed
no
difficulties in these areas. Id. These are appropriate reasons for
affording less than controlling weight to the opinion of a treating
physician. See, e.g., Gigliotti v. Berryhill, No. 3:17-CV-00028
(MPS), 2018 WL 354597, at *11 (D. Conn. Jan. 10, 2018) (holding
that an ALJ may afford a treating physician’s opinion less than
controlling weight where it fails to provide useful information in
assessing Plaintiff’s functional limitations); Bulavinetz, 663
F. Supp. 2d at 211 (finding that the ALJ appropriately rejected the
opinion of a treating physician where it was unsupported by medical
evidence in the record). The ALJ adequately supported his weighing
of Dr. Zhao’s opinion with “good reasons,” as required by the
treating
physician
rule.
See
20
C.F.R.
§
404.1527(c)(2).
Accordingly, the ALJ’s error of not recognizing Dr. Zhao as a
treating source was harmless.
III. Evaluation of the Medical Opinions of Dr. Robbyn Upham and
Dr. Karl Eurenius
Plaintiff next argues the ALJ impermissibly cherry picked the
opinions of Dr. Upham and Dr. Eurenius by excluding limitations on
reaching from the RFC. For the reasons set forth below, the Court
finds this argument without merit.
Dr. Upham completed a physical assessment of the Plaintiff for
the Monroe County Department of Human Services on September 20,
2011. T. 362-65. In the assessment, Dr. Upham opined Plaintiff was
able to work with reasonable accommodations for thirty hours per
13
week. T. 362. Plaintiff had normal findings in all areas of her
physical examination. T. 363. Dr. Upham opined Plaintiff should be
able to sit in a calm work environment and should avoid standing
all day and working in a high stress environment. T. 364. Dr. Upham
further opined Plaintiff had no limitations for sitting, and was
moderately limited in her ability to walk, stand, push, pull, bend,
see, hear, speak, lift, and carry. T. 365.
In his decision, the ALJ gave “significant weight to most of
Dr. Upham’s opinion.” T. 24. However, he noted he did not find any
support in the record for Dr. Upham’s opinion Plaintiff would be
able to work thirty hours instead of forty hours. Id. Indeed,
despite the fact that the form requested that an explanation be
provided for any opinion that an individual was able to work for
less than forty hours, Dr. Upham left that portion of the form
blank.
See T. 362. Furthermore, as the ALJ noted, Dr. Upham found
no cause to refer Plaintiff to a rheumatologist, as Plaintiff had
requested, and instead referred Plaintiff to counseling. See T. 27
referring to T. 694-95. The ALJ also noted that Dr. Upham had
diagnosed Plaintiff with benign lower back pain and ankle pain,
most likely due to excess weight causing increased stress on her
joints. Dr. Upham encouraged Plaintiff to quit smoking, change her
diet, and exercise. See T. 24 referring to T. 623-24.
On June 24, 2012, Plaintiff was examined by consultative
examiner, Dr. Karl Eurenius. T. 629-633. Upon physical examination,
14
Plaintiff appeared in no acute distress. She walked slowly and
appeared to limp on both feet. T. 631. Plaintiff had difficulty
standing on her toes due to pain and was able to squat threefourths of full due to back pain. Id. Otherwise, Plaintiff’s stance
was normal and she needed no help changing, getting on or off the
examination table, or rising from her chair. Id. Plaintiff had
sixty degrees of flexion of the lumbar spine and a straight leg
raising test was positive at forty-five degrees on both sides. Id.
Plaintiff had full range of motion of her elbows, forearms, and
wrists, though she had decreased grip in her right wrist. T. 632.
Plaintiff complained of bilateral pain in her shoulders, but was
able to elevate them approximately one hundred ten degrees. Id. She
had full range of motion in her hips, knees, and ankles on both
sides. Id.
Dr. Eurenius opined Plaintiff had some limitations in reaching
and handling objects with her dominant right hand due to pain in
her right wrist and forearm. T. 633. He further opined Plaintiff
had some limitations in prolonged walking and climbing stairs due
to pain in her feet and may have mild difficulty lifting and
carrying due to back pain secondary to arthritis. Id.
In
his
decision,
the
ALJ
gave
Dr.
Eurenius’
opinion
significant weight, noting it was generally supported by the
medical evidence of record showing Plaintiff has some subjective
symptoms of pain with very little evidence to explain the pain.
15
T. 25. However, the ALJ specifically gave little weight to the
portion
of
the
opinion
that
Plaintiff
would
have
difficulty
reaching, noting there was no evidence to support that finding. Id.
The Court finds no error in the ALJ’s consideration of the
opinions of Dr. Upham and Dr. Eurenius. As noted above, an ALJ is
permitted to discount portions of a consultative examiner’s opinion
where it is not supported by the medical evidence of record. See
Christina v. Colvin, 594 F. App’x 32, 33 (2d Cir. 2015) (ALJ did
not commit reversible error “by dismissing a portion of the opinion
of [the] consultative examiner”). Moreover, even with respect to a
treating physician such as Dr. Upham, the ALJ need not adopt those
portions of the opinion that are inconsistent with the medical
evidence
of
record.
See
Davis
v.
Comm’r
of
Soc.
Sec.,
No. 2:17-CV-54-JMC, 2018 WL 1061449, at *8 (D. Vt. Feb. 26, 2018)
(ALJ properly adopted portions of treating physicians’ opinions
that
were
consistent
with
the
other
medical
evidence,
while
rejecting those that were not).
In
this
case,
the
ALJ
set
forth
legitimate
reasons
for
declining to adopt certain aspects of Dr. Upham and Dr. Eurenius’
opinions, identifying those specific portions of the opinions that
were not
supported
by
medical
evidence.
With
respect
to
the
specific issue of reaching, the Court notes in particular that
Dr. Upham’s physical examination of Plaintiff completed the same
day she issued her opinion showed that Plaintiff’s musculoskeletal
16
system, extremities, and hands were all normal. T. 353, 365. The
ALJ’s incorporation
of
only
those
portions
of
Dr.
Upham
and
Dr. Eurenius’ opinions that were supported by the medical record
was appropriate and is not a basis for remand.
IV.
The ALJ’s Hypotheticals to the VE were Appropriate
Plaintiff’s final argument is that the ALJ erred when he
failed
to
ask
the
VE
about
all
the
limitations
included
in
Dr. Upham’s medical opinion. Specifically, Plaintiff contends the
ALJ was required to include limitations to walking, standing,
sitting, pushing, pulling, lifting, and carrying in his questions
to the VE at the hearing, or, in the alternative, explain in his
decision why those limitations were omitted. The Court finds this
argument without merit.
As
previously
noted,
Dr.
Upham
opined
Plaintiff
had
no
limitations for sitting, and was moderately limited in her ability
to walk, stand, push, pull, bend, see, hear, speak, lift, and
carry. T. 365. However, the ALJ rejected certain portions of
Dr. Upham’s opinion. T. 24. As discussed above, the ALJ was within
his discretion to credit those portions of Dr. Upham’s opinion that
were supported by the medical evidence of record and to reject
those portions that were not. Furthermore, there is no need for an
ALJ to present a hypothetical to a VE that includes limitations
that the ALJ has declined to accept. See, e.g., McAllister v.
Commissioner of Social Sec., No. 13–cv–940, 2015 WL 164783 at *10
17
(N.D.N.Y. Jan. 13, 2015) (A hypothetical need only incorporate
“limitations that the administrative law judge finds credible and
which are supported by substantial evidence.”); Rivera v. Astrue,
No. 11 Civ. 4132, 2012 WL 3307342 at *3, *5, *10 (E.D.N.Y. Aug. 11,
2012) (because the ALJ was entitled to disregard the opinions of
the plaintiff’s treating physicians, the ALJ’s hypothetical to the
VE was not required to incorporate added limitations based on those
opinions). Here, having determined that only part of Dr. Upham’s
opinion was supported by the medical evidence, the ALJ did not err
in
failing
to
incorporate
the
rejected
portions
into
his
hypotheticals to the VE. Accordingly, the Court finds remand is not
warranted on this basis.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 11) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 14) is granted.
Plaintiff’s complaint is dismissed in its entirety with prejudice.
The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
December 13, 2018
Rochester, New York
18
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