Huff v. Commissioner of Social Security

Filing 17

DECISION AND ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/29/19. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHANNON M. HUFF,
n/k/a SHANNON M. FROEHLER
Plaintiff,
-vs-

No. 6:17-cv-06860-MAT
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,
Defendant.

INTRODUCTION
Shannon M. Huff, n/k/a Shannon M. Froehler (“Plaintiff”)
brings this action pursuant to the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner
of

Social

Security

application
Supplemental

for

(“the

Commissioner”)

Disability

Security

Insurance

Income

denying

Benefits

(“SSI”).

This

Plaintiff’s
(“DIB”)

and

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).

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. Dkt. #9, 15.
BACKGROUND
A. Procedural History
Plaintiff filed applications for DIB and SSI on March 8,
2014, alleging disability beginning May 20, 2012. Administrative
Transcript

(“T.”)

183-195.

Plaintiff’s

applications

were

initially denied on May 6, 2014, and Plaintiff filed a timely

request

for

a

hearing

before

an

Administrative

Law

Judge

(“ALJ”). T. 79-98, 107-09.
At Plaintiff’s request, a video hearing was conducted on
May 13, 2016 by the ALJ in Baltimore, MD and Plaintiff appeared
in

Rochester,

NY.

Plaintiff

appeals

from

the

May

26,

2016

decision of the ALJ following a video hearing during which
Plaintiff testified without counsel1 and a Vocational Expert
also testified. The ALJ found the claimant not disabled from May
20, 2012 through the date of the decision. T. 51-78. On October
20,

2017,

the

Agency’s

Appeals

Council

denied

Plaintiff’s

request for review and the ALJ’s decision thus became the final
decision

subject

to

judicial

review.

T.

1-6.

This

action

followed.
B. The ALJ’s Decision
The ALJ applied the five-step sequential evaluation process
promulgated

by

the

Commissioner

for

adjudicating

disability

claims. See 20 CFR §§ 404.1520(a)(4), 416.920(a)(4).
At step one of the evaluation the ALJ found that while the
Plaintiff worked after the alleged disability onset date, the
Plaintiff only worked part-time, and Plaintiff’s earnings did
not exceed the amount required to be “substantial” under the

1

Plaintiff received a two and one half-month continuance on February 23,
2016 in order to obtain counsel. However, counsel did not appear at the May
13, 2016 hearing, but did file on July 11, 2018 an extensive and
comprehensive brief on behalf of the Plaintiff seeking reversal of the ALJ’s
decision.

2

regulations as a self-employed manicurist. 20 CFR §§ 404.1575,
416.975.
At

step

suffered

two

from

of

the

the

analysis,

following

the

ALJ

severe

found

Plaintiff

impairments:

ulnar

neuropathy, degenerative disc disease, sacroiliitis, obesity,
personality
disorder,

disorder,
and

bipolar

polysubstance

disorder,
abuse.

T.

generalized
13;

see

20

anxiety
CFR

§§

404.1520(a)(4)(ii), 416.920(a)(4)(ii). The ALJ did not find the
Plaintiff’s asthma or headaches to be “severe.” T. 13; see 20
CFR §§ 404.1522, 416.922.
At step three, the ALJ determined that Plaintiff did not
have an impairment or combination of impairments that met or
equaled the severity of the impairments listed in 20 CFR Part
404, Subpart P, Appendix 1. See 20 CFR §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). The ALJ considered whether the Plaintiff’s
conditions met or medically equaled Listing 1.04, 11.14, 12.04,
12.06,

12.08,

restriction

in

and

12.09.

T.

activities

of

13-14.
daily

The
living

ALJ
due

noted

a

mild

primarily

to

mental impairment, moderate difficulties in social functioning,
moderate difficulties in concentration, persistence, or pace,
and no episodes of decompensation. T. 14-15.
Before proceeding to step four, the ALJ found that the
Plaintiff retained the residual functional capacity (RFC) to
perform light work as defined in 20 CFR §§ 404.1567(b) and
416.967(b),

except

the

Plaintiff
3

can

lift

and

carry

twenty

pounds occasionally and ten pounds frequently; stand and walk
for four out of eight hours; and sit for six out of eight hours.
The ALJ found the Plaintiff able to occasionally push and pull
with the upper extremities; occasionally climb stairs, balance,
stoop, kneel, crouch, and crawl; not climb ladders; frequently
handle but only occasionally finger and feel; not have any
exposure to hazards; is limited to simple, routine tasks and
occasional contact with supervisors, coworkers, and the public;
and

is

capable

of

low

stress

work

defined

as

occasional

decision-making and occasional changes in work setting. T. 15.
At step four, based on the record and the testimony of the
Vocational Expert, the ALJ found that the Plaintiff was unable
to

perform

any

past

relevant

work.

T.

20;

see

20

CFR

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
At step five, taking into consideration Plaintiff’s age,
education, work experience, and RFC, the ALJ found that jobs
exist in significant numbers in the national economy that the
Plaintiff

could

perform,

e.g.,

packer,

sorter,

or

checker/inspector. T. 21. The ALJ accordingly found that the
plaintiff was not disabled as defined in the Act. T. 21; see
20 CFR §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
C. Plaintiff’s Assignments of Error
The Plaintiff argues that 1) the ALJ failed to consider the
severity of Plaintiff’s urinary frequency, migraine headaches,
post-traumatic stress disorder, and other disorders resulting in
4

RFC findings unsupported by substantial evidence, and 2) the ALJ
failed to adequately protect the pro se Plaintiff’s rights by
not developing “evidentiary gaps” in the record. Dkt. #9-1, pp.
14-15, 22.
D. Scope of Review
A federal district court may set aside an ALJ decision to
deny disability benefits only where it is based on legal error
or is not supported by substantial evidence. Balsamo v. Chater,
142

F.3d

75,

79

(2d

Cir.

1998);

see

42

U.S.C.

§§

405(g),

1383(c)(3). 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)(citation omitted).
E. Plaintiff’s Background and Medical History
Plaintiff was born on May 4, 1980 and obtained a high
school

education.

T.

20,

56,

58,

81,

183.

She

received

a

cosmetologist’s license and her past work includes self-employed
part-time manicurist and full-time cosmetologist. T. 20, 58, 5963, 196-207, 233-254.

She was single and had one child. T. 56.

She resided in an apartment, and at times lived with her family.
T. 56. Plaintiff has been incarcerated for robbery (2012) and
has received fines and probation for DWI (2001) and menacing
5

(2010) respectively, all emanating, according to Plaintiff, from
her drug abuse. T. 58-59, 271. She received Medicaid and food
stamps. T. 61; see Dkt. #9-1, p. 4.
Plaintiff attempted to cut her wrists on April 12, 2010,
following a car accident while under the influence of cocaine.
T. 306. Following her suicide attempt, Plaintiff saw, Muhammad
Cheema,

MD,

Tammie

Raucci,

LMSW,

and

Rachel

Ward,

LCSW

at

Rochester Mental Health Center. See Dkt. #9-1, p. 8-10; T. 305321.

Plaintiff

cocaine

use

reported

at

15.

T.

beginning
316.

marijuana

Plaintiff

use

attended

at
4

13

out

and
of

8

scheduled therapy appointments at Rochester Mental Health Center
and met twice with Dr. Cheema for medication management between
April 12 and July 27, 2010. T. 306.
On September 22, 2010 Plaintiff left a voice message for
Rochester Mental Health Center indicating she no longer required
their services. Id. At Plaintiff’s final meeting on July 27,
2010 with Dr. Cheema, the examining doctor at Rochester Mental
Health

Center,

he

found

Plaintiff

alert

and

oriented,

cooperative and friendly, with a euthymic mood, and appropriate
affect congruent with mood. T. 312. Plaintiff denied suicidal or
homicidal ideation or psychosis and Plaintiff’s judgment was
intact.
Disorder

Id.

Dr.

[Not

Cheema

Otherwise

gave

the

impression

Specified]”

and

of

“Rule

“Depressive
out

Major

Depressive Disorder, recurrent, moderate.” Id. There was some
indication that Plaintiff might continue to receive treatment
6

through her primary care physician at the time, Leslie Weisbrod,
MD,

however

treatment

by

Dr.

Weisbrod

is

not shown

in

the

record. See Dkt. #9-1, p. 10.
On January 10, 2012, Plaintiff was evaluated at the Strong
Memorial Hospital Pain Center regarding low back and right hip
pain. T. 286; Dkt. #9-1, p.11. Cody Mickelsen, MD, examined
Plaintiff

and

reported

exercise-induced
depression

with

asthma,
prior

her

past

cervical
suicide

medical

history

dysplasia,
attempts,

to

GERD,

and

include
obesity,

ulnar

nerve

compression. T. 288. Dr. Mickelsen noted that Plaintiff saw a
Dr. Elfar and was scheduled for an ulnar nerve decompression but
declined to proceed due to her pregnancy. Id. The Plaintiff
reported smoking a half pack per day of cigarettes for the past
16 years. Id. Dr. Mickelsen recommended physical therapy and
declined to prescribe Vicodin due to Plaintiff’s history of
narcotic abuse, but recommended the continued use of NSAIDs and
follow-up with Orthopaedics for ulnar nerve compression and the
Pain Center for physical therapy and potential injection if
physical therapy proved unavailing. T. 288-89.
Plaintiff saw Odysseus Adamides, MD, on June 1, 2012, for a
psychiatric evaluation at Wayne Behavioral Health because of
increased anxiety due to pending criminal charges and cocaine
abuse related to depression. T. 329-338. Dr. Adamides reported
that Posttraumatic Stress Disorder would explain and amplify
some

of

Plaintiff’s

symptoms

though
7

Plaintiff

declined

to

discuss with him the abuse that he believed gave rise to the
PTSD. T. 337. In addition to PTSD, Dr. Adamides found Cocaine
Dependence,

Cannabis

Abuse

in

remission,

Major

Depression,

Antisocial Personality Disorder, Chronic pain, gallstones, and
neuropathy. Id. Following this one examination, Plaintiff’s case
was closed with Wayne Behavioral Health due to loss of contact
(Plaintiff became incarcerated). Id.
On October 1, 2013, while an inmate at Albion Correctional
Facility,

Plaintiff

was

seen

by

Amy

MacDonald,

MD,

a

gynecologist resident from Strong Memorial Hospital. T. 290.
Plaintiff

complained

of

chronic

pelvic

pain,

stress

urinary

incontinence, and urinary frequency. Id. Dr. MacDonald examined
plaintiff
avoiding

and

recommended

bladder

sweeteners.

T.

irritants
292.

Dr.

a

voiding
such

as

MacDonald

diary,
caffeine
saw

medication,
and

Plaintiff

and

artificial
again

on

November 25, 2013, and discussed a pessary with Plaintiff, which
Plaintiff

was

interested

in,

but

not

until

after

her

incarceration was complete. T. 293. Plaintiff claimed to be
keeping a voiding diary but that the guards at the prison would
not permit her to bring it. Id. Plaintiff continued drinking
multiple cups of coffee and smoking. Id. Dr. MacDonald again
recommended avoiding alcohol and caffeine (no more than one
caffeinated beverage per day), voiding every 2 hours during the
day, normalizing fluid intake to 50 ounces per day on average,

8

and use of pelvic floor muscle contractions to suppress urinary
urgency. T. 294.
On February 20, 2014, Plaintiff saw Charlene Reeves, LMHC,
for a preadmission screening at Genesee Mental Health Center.
T. 265-67. Plaintiff was scheduled to return on March 13, 2014,
but the record does not show a summary of this appointment or
future appointments at this facility. T. 266. Plaintiff filed
her applications for DIB and SSI on March 8, 2014. T. 183-195.
On

April

9,

2014

consultative

examiner

Kristina

Luna,

Psy.D. conducted a mental exam of Plaintiff on behalf of the
state. T. 270-74; see Dkt. #9-1, p. 4. Plaintiff reported having
been seen continually at Genesee Mental Health Center once every
two weeks since February 2014. T. 270. Plaintiff’s attention and
concentration

were

mildly

impaired

due

to

anxiety

and

nervousness and she failed to perform serial 3s from 20. Id.
Plaintiff could only recall 1 of 3 objects after 5 minutes. T.
273. Dr. Luna found the Plaintiff had no limitations in e.g.,
following

simple

instructions,

but

mild

limitations

in

her

ability to maintain attention and concentration and deal with
stress. Id. Overall Dr. Luna found psychiatric problems not
“significant

enough

to

interfere

with

claimant’s

ability

to

function on a daily basis.” Id.
On April 9, 2014, Plaintiff was examined by Aharon Wolf,
MD, a consultative medical examiner for the state. T. 275-80.
Dr. Wolf diagnosed back pain and ulnar nerve entrapment and
9

found Plaintiff had “moderate limitation for repetitive use of
bilateral hands when gripping.” T. 279.
On May 6, 2014, T. Harding, PhD, state assigned review
psychologist, found her psychiatric impairment was non-severe.
Dkt. 9-1, p. 5; see T. 84-94.
On January 21, 2015, Harbinder Toor, MD completed a Monroe
County Department of Social Services physical assessment for
determination

of

employability.

T.

345-49,

357-62.

Dr.

Toor

found Plaintiff to be Very Limited (one to two-hour limit) in
walking, standing, pushing, pulling, bending, using hands, and
stairs or other climbing, with lifting permissible of 10 lb.
occasionally. T. 360. Dr. Toor indicated that Plaintiff was
unable to participate in any activities except treatment or
rehabilitation for a period of three to six months. T. 361.
On February 20, 2016, Laurence E. Torpey, MD, completed a
residual functional capacity physical form for Plaintiff. T.
363-70. Dr. Torpey also completed a mental RFC assessment for
Plaintiff. T. 371-74. Dr. Torpey had seen Plaintiff previously
for new patient intake on November 2, 2015 and for a “GYN Visit”
on January 4, 2016. T. 364. Dr. Torpey reported that he would
expect Plaintiff’s impairment to last one year or more, and that
her impairment would prevent Plaintiff from standing for six to
eight hours. T. 365. Dr. Torpey found Plaintiff could not stand
for longer than 10 minutes before having to sit. Id. Plaintiff
could sit for one hour at a time before having to stand. Id.
10

This was due to pain in the sacroiliac joint radiating to the
buttocks. Id.
Due to back pain, Dr. Torpey found Plaintiff could rarely
reach toward the floor, and due to neuropathy of fingers, rarely
carefully handle objects. T. 366. Dr. Torpey suggested Plaintiff
could work part-time until she had an ulnar release. T. 369.
Dr. Torpey opined that the Plaintiff’s disability was not likely
to change “unless intervention.” Id.
On his mental RFC assessment, Dr. Torpey indicated marked
limitations

in

ability

to

remember

locations

and

work-like

procedures, noting “bad at directions;” marked limitation in
ability to understand and remember short instructions, noting
“telephone
limitations

numbers.”
in

T.

ability

372.
to

Dr.

Torpey

understand

and

also

noted

remember

marked

detailed

instructions, ability to maintain attention, ability to work in
coordination with others, ability to make simple work-related
decisions, ability to complete a normal workday, ability to
interact with the general public, ability to maintain socially
appropriate behavior, ability to be aware of normal hazards, and
ability to set realistic goals. T. 373. When asked to record any
elaboration

or

explanation

for

his

summary

conclusions,

Dr. Torpey left the area blank. T. 374.
DISCUSSION
A. Plaintiff Argues the ALJ’s Decision is Not Supported by
Substantial Evidence and Remand is Warranted
11

“Substantial evidence ‘means such relevant evidence as a
reasonable

mind

conclusion.’”

might

accept

Green-Younger

v.

as

adequate

Barnhart,

to

335

support

F.3d

99,

a
106

(2d Cir. 2003)(quoting Curry v. Apfel, 209 F.3d 117, 122 (2d
Cir. 2000)).
Plaintiff first argues that Plaintiff’s urinary frequency,
migraines, post-traumatic disorder, asthma, chronic pain, and
combined effects were not properly addressed by the ALJ in
making her RFC findings. However, Plaintiff fails to show how
any of these disorders or effects would have necessitated an RFC
finding different from that made by the ALJ.
Regarding

urinary

frequency,

the

recommendation

of

Dr. MacDonald, the gynecologist who treated the Plaintiff at
Albion

Correctional

Facility,

was

to

avoid

alcohol

and

caffeine, void every two hours during the daytime, normalize
fluid intake to 50 ounces per day on average, and use pelvic
floor muscle contractions to suppress urinary urgency. T. 294.
None

of

these

would

interfere

with

Plaintiff’s

ability

to

perform basic work activities, as required for a finding of a
severe impairment. 20 CFR §§ 404.1522, 416.922. In particular,
breaks every two hours are considered normal in the workplace
and would not have required a more limited finding of available
jobs by the Vocational Expert. See SSR 96-9p, 1996 WL 362208
(July 2, 1996)(“In order to perform a full range of sedentary
work, an individual must be able to remain in a seated position
12

for approximately 6 hours of an 8-hour workday, with a morning
break, a lunch period, and an afternoon break at approximately
2-hour intervals.”)(emphasis added).

Therefore the ALJ’s not

having

in

included

impairments

of

urinary
the

frequency

Plaintiff

is

her

list

supported

by

of

severe

substantial

evidence in the record.
The

ALJ

considered

Plaintiff’s

testimony

regarding

migraines several times a week and her statements to Dr. Toor
that she had migraines up to three times a week and lasting for
days at a time. T. 358. However, Plaintiff did not describe at
any

time

associated

symptoms

such

as

photophobia,

nausea,

dizziness, or vomiting, that may have led to a finding of severe
impairment.
Plaintiff’s

Therefore,
migraines

while

severe

the
under

ALJ
the

did

not

regulations,

consider
the

ALJ

considered the migraines in determining the Plaintiff’s RFC.
Headaches without severe symptoms for which the Plaintiff takes
no medication are not severe under the regulations.
The Plaintiff also alleges that the ALJ failed to properly
consider

evidence

of

post-traumatic

stress

disorder.

While

Plaintiff acknowledges that “there is no medical opinion related
to limitations from PTSD” in the record, Plaintiff argues that
some limitation is suggested by the opinion of Dr. Adamides, who
evaluated Plaintiff on June 1, 2012 at Wayne Behavioral Health,
that

Plaintiff

antisocial

“suppressed

conduct,

and

PTSD

through

self-destructive
13

substance
behavior;

abuse,
and

it

amplified

her

depression.”

Dkt.

#9-1,

p.

18.

Even

if

Dr. Adamides’s opinion had been given significant weight, the
alleged

limitations

from

PTSD:

substance

abuse,

antisocial

conduct, self-destructive behavior, and depression, are covered
adequately by the ALJ’s findings regarding severe impairments
and considered by the ALJ in making her RFC determination.
Polysubstance abuse, personality disorder, bipolar disorder, and
generalized anxiety disorder were all found to be severe by the
ALJ. In the ALJ’s RFC determination, the ALJ found that, while
the Plaintiff “at times showed symptoms including a depressed or
irregular mood, she also had a euthymic mood in May 2012 and
generally intact memory, good concentration, and fair to good
insight and judgment in February 2014.” Dkt #15-1, p.10 (citing
T. 17-18, 266, 272-73, 334, 337).
Similar

to

the

ALJ’s

treatment

of

Plaintiff’s

migraine

headaches, the ALJ fully considered Plaintiff’s asthma symptoms
at step two and in determining the RFC. Plaintiff fails to show
how

her

asthma

Plaintiff’s

should

asthma

has

have
never

changed
been

the

severe

RFC

determination.

enough

to

require

emergency treatment according to Dr. Toor, and Dr. Wolf noted
that the claimant had clear lungs and normal movement of the
diaphragm. T. 278, 358. Therefore, the ALJ’s findings regarding
lack of severity of asthma are supported by substantial evidence
in the record.

14

This Court also finds that Plaintiff’s chronic pain was
considered by the ALJ at step two and during the RFC findings at
step four. The ALJ considered and found severe impairments due
to

ulnar

neuropathy,

degenerative

disc

disease,

and

sacroiliitis, which according to the record, were the causes of
Plaintiff’s chronic pain. T. 13. Additionally, Plaintiff’s pain
was discussed in detail throughout the ALJ’s determination of
her RFC findings. T. 15-20.
The ALJ considered all symptoms and the extent to which
those symptoms, along with other evidence in determining her
RFC, were based on the requirements of 20 CFR §§ 404.1529 and
416.929 and SSR 96-4P. T. 15. As the Commissioner points out,
the ALJ “need not discuss every possible factor.” Dkt. #15-1,
p.11 (citing Delk v. Astrue, 2009 WL 656319 (W.D.N.Y. Mar 11,
2009)(“Although his findings do not explicitly indicate whether
he

considered

each

of

the

factors...,

the

court

finds

the

reasons given by the ALJ sufficiently specific....”). The ALJ
carefully weighed the opinions, giving lighter weight not only
to the marked mental limitations findings of Dr. Torpey, who was
not

a

psychiatric

specialist,

but

also

to

the

mild

mental

limitations findings of Dr. Harding, who never examined the
Plaintiff. T. 19-20. In sum, the ALJ justified her weighing of
the various opinions and Plaintiff’s complaints of limitations
and supported her findings with substantial evidence. T. 15-18.
Plaintiff’s claim that the ALJ’s failure to name specific severe
15

impairments
evidence

at

for

step

the

two

ALJ’s

results
RFC

in

findings

a
is

lack

of

substantial

unsupported

by

the

record.
B. ALJ’S DUTY TO DEVELOP THE RECORD
Plaintiff also argues that the ALJ erred by failing to
fulfill her regulatory duty to develop the record by not recontacting the sources of opinions to which she gave lesser
weight

in

her

analysis

due

to

their

lack

of

supporting

observations. Plaintiff argues that this duty is of heightened
importance to this case because Plaintiff appeared pro se at her
hearing. In particular, Plaintiff cites Thompson v. Sullivan, a
Seventh Circuit case, that “...when a claimant appears at his or
her hearing before an ALJ without representation, the ALJ has a
heightened duty to assist Plaintiff with developing the record
by ‘scrupulously and conscientiously’ probing and exploring ‘for
all relevant facts.’” Dkt. #9-1, p. 23 (quoting Thompson v.
Sullivan, 933 F.2d 581, 585-86 (7th Cir. 1991)); see also Gold
v. Secretary of Health, Ed. and Welfare, 463 F.2d 38, 43 (2d
Cir. 1972).
However, the actions of the ALJ in Gold are distinguishable
from the actions of the ALJ in the present case. In Gold, “the
examiner did not suggest when [claimant] appeared alone, that
she obtain legal aid,” and showed “intolerance of [claimant’s]
confusion.” Id. at 43.

16

In

the

present

case,

the

ALJ

carefully

discussed

the

benefit of representation with the Plaintiff and gave her an
almost three-month postponement of her case to obtain counsel:
[B]efore we go any further, I want to discuss
with you your right to representation in a Social
Security disability hearing. You have the right to be
represented by an attorney or by a non-attorney who is
familiar with Social Security disability law. A
representative can be helpful in a number of ways. He
or she can assist you in gathering together the
documents that are necessary to support your claim and
a representative can also assist you in presenting
your claim at the hearing. ... Because I can see your
record that it looks like there’s only medical records
in here really that go up to 2014, and it appears that
from what you just submitted a couple weeks ago, that
you are seeing doctors and receiving medical treatment
since then, is that correct? ... So would you like me
to grant you a postponement so that you’ll have an
opportunity to obtain a representative to help you
gather together all the evidence and help you with the
hearing?
T. 45. The ALJ carefully explained to the Plaintiff the
lack of evidence in the file, guided her on how to obtain and
present

the

evidence,

and

made

photocopies

of

additional

evidence the Plaintiff brought with her. Her case was postponed
until May 13, 2016. T. 46, 47.

The burden of establishing disability through evidence falls on
the Plaintiff. 20 CFR §§ 404.1512, 416.912. This burden includes
an

ongoing

evidence

duty

that

to

inform

relates

to

the

agency

whether

or

about
not

or

the

submit

Plaintiff

all
is

disabled. Id. The record reflects that the agency contacted the
providers

listed

by

the

Plaintiff,

17

ordered

consultative

examinations, and offered the help of the hearing office in
retrieving evidence. See T. 111-113, 215-217, 244-245, 255, 260,
270-280. Of note, the Plaintiff has not submitted new evidence
that would undermine the ALJ’s determination, but argues that
such evidence could be “logically deduced” to exist. Dkt. #9-1,
pp. 26-27. If such evidence existed it was incumbent upon the
Plaintiff to provide it or notify the agency of its existence,
not the ALJ to infer its existence. Plaintiff had the assistance
of counsel who submitted on her behalf a detailed memorandum of
law of 29 pages on July 11, 2018.

Regarding any duty of the ALJ to extract more detailed analysis
specifically from Dr. Torpey, the Plaintiff points to Cruz v.
Sullivan and the Second Circuit’s admonition that “[w]e have
repeatedly stated that when the ALJ rejects the findings of a
treating physician because they were conclusory or not supported
by specific clinical findings, [the ALJ] should direct a pro se
claimant to obtain a more detailed statement from the treating
physician.” Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990).
However, as the Commissioner points out, Dr. Torpey was not a
treating
Dr.

physician

Torpey

saw

within

Plaintiff

the

meaning

only

twice

of

the

before

regulations.

rendering

his

opinion. T. 19, 364. Therefore, Dr. Torpey “did not have a
longitudinal view of Plaintiff’s alleged impairments and was not

18

a treating source under the regulations.” Dkt #15-1, p. 12;
20 CFR §§ 404.1527(a)(2), 416.927(a)(2).

While

the

Second

Circuit

has

been

clear

that

it

is

necessary to direct a pro se Plaintiff to recontact a treating
physician whose findings are discounted due to their conclusory
nature,

it

is

less

clear

that

Dr.

Torpey,

a

non-treating

physician, needed to be recontacted. Notably, Dr. Torpey had
sufficient opportunity to elaborate on his summary conclusions
and declined to do so. T. 374. Because Dr. Torpey’s opinion was
not

that

of

a

treating

physician

“the

relevant

inquiry

is

whether the record was sufficient to support the ALJ’s RFC
assessment.” Jasen v. Commissioner of Social Security, 2017 WL
3722454, *12 (W.D.N.Y. 2017)(quoting Ayers v. Astrue, 2009 WL
4571840, *2 (W.D.N.Y. 2009). Any gap created by Dr. Torpey’s
failure to explain his conclusions was provided for by the other
opinions and the medical record relied upon by the ALJ.

The ALJ’s conclusions as to the Plaintiff’s disability and
the RFC finding are all supported by the complete medical record
and

Plaintiff’s

testimony

given

at

her

hearing.

Although

Plaintiff’s attorney was not present at the adjourned hearing or
the hearing on May 13, 2016, Plaintiff’s position was carefully
and thoroughly presented in her attorney’s brief dated July 11,
2018.
19

CONCLUSION
For

the

foregoing

reasons,

this

Court

finds

that

the

Commissioner’s decision is free of legal error and is supported
by

substantial

evidence

and

it

is

therefore

affirmed.

Plaintiff’s motion for judgment on the pleadings is denied and
the

Commissioner’s

motion

for

judgment

on

the

pleadings

granted. The Clerk of 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:

Rochester, New York
January 29, 2019

20

is