Freeman v. Commissioner of Social Security
Filing
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DECISION AND ORDER: The Commissioner's Motion for Judgment on the Pleadings 12 is GRANTED and Plaintiff's Motion for Judgment on the Pleadings 8 is DENIED. Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. The Clerk of Court will enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 12/17/2018. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KARRIE V. FREEMAN,
Plaintiff,
v.
Case # 17-CV-6862-FPG
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Karrie V. Freeman brings this action pursuant to the Social Security Act seeking
review of the final decision of the Acting Commissioner of Social Security that denied her
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 moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 8, 12. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On August 19, 2014, Freeman protectively applied for DIB and SSI with the Social
Security Administration (“the SSA”). Tr.1 162-75. She alleged disability since December 1, 2012
due to chronic back pain, left eye blindness, and uncontrolled diabetes. Tr. 199. On May 9, 2016,
Freeman and a vocational expert (“VE”) testified at a video hearing before Administrative Law
Judge Roxanne Fuller (“the ALJ”). Tr. 26-53. At the hearing, Freeman amended her alleged
1
“Tr.” refers to the administrative record in this matter. ECF No. 7.
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disability onset date to July 1, 2014. Tr. 10, 29-30. On October 4, 2016, the ALJ issued a decision
finding that Freeman was not disabled within the meaning of the Act. Tr. 10-21. On October 20,
2017, the Appeals Council denied Freeman’s request for review. Tr. 1-6. This action seeks 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
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proceeds to step two and determines whether the claimant has an impairment, or 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 analyzed Freeman’s claim for benefits under the process described above. At
step one, the ALJ found that Freeman had not engaged in substantial gainful activity since the
alleged onset date of December 1, 2012. Tr. 12. At step two, the ALJ found that Freeman has
macular degeneration, degenerative disc disease, and diabetes mellitus, which constitute severe
impairments. Tr. 12-14. At step three, the ALJ found that these impairments, alone or in
combination, did not meet or medically equal any Listings impairment. Tr. 14.
Next, the ALJ determined that Freeman retains the RFC to perform light work2 with
additional limitations. Tr. 14-20. Specifically, the ALJ determined that Freeman can occasionally
climb ramps or stairs but cannot climb ladders, ropes, or scaffolds; can occasionally balance, stoop,
crouch, kneel, and crawl; cannot operate a motor vehicle or be exposed to moving mechanical
parts or unprotected heights; and can perform work that requires only occasional near and far
acuity and depth perception. Tr. 14-15.
At step four, the ALJ found that this RFC does not preclude Freeman from performing her
past relevant work as a customer complaint clerk. Tr. 20. Accordingly, the ALJ concluded that
Freeman was not disabled under the Act. Tr. 20-21.
“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. To be considered capable of performing a full or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
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II.
Analysis
Freeman argues that remand is required because (1) the RFC determination lacks
substantial evidence; (2) the ALJ improperly weighed the medical opinions; and (3) the ALJ
improperly assessed her testimony. ECF No. 8-1 at 12-17; ECF No. 13. These arguments are
addressed in turn below.
A.
RFC Determination
A claimant’s RFC reflects what he or she “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)); see also 20 C.F.R. § 416.945(a). The ALJ assesses RFC
“based on all of the relevant medical and other evidence.”
20 C.F.R. §§ 404.1545(a)(3),
416.945(a)(3). The RFC assessment does not have to “perfectly correspond” with any of the
medical source opinions cited in the ALJ’s decision; rather, the ALJ is “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). The Court
upholds an RFC finding “when there is substantial evidence in the record to support each
requirement listed in the regulations.” Desmond, 2012 WL 6648625, at *5 (citation omitted).
1.
Visual Limitations
Freeman asserts that the RFC determination is unsupported by substantial evidence in part
because it only accounts for near and far acuity and depth perception and “completely leaves out
any limitation for middle distance vision.” ECF No. 8-1 at 13. Freeman argues, without supporting
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authority, that middle distance vision is “a distance most commonly encountered in a workplace.”
Id. Although Freeman cites treatment records related to her eye issues, which reveal significant
cataracts and limited visual potential, these records do not indicate that she has issues with middle
distance vision or that a more restrictive RFC determination is warranted. See Tr. 262-74, 277-81.
Moreover, according to the Dictionary of Occupational Titles, Freeman’s past relevant work as a
customer complaint clerk, which the ALJ found her capable of performing, does not require middle
distance vision. See DOT # 241.367-014 (customer complaint clerk), 1991 WL 672252 (U.S.
Dep’t of Labor Jan. 1, 2016). Instead, the position only occasionally requires near acuity and does
not require far acuity, depth perception, color vision, or field of vision. Id.
The ALJ’s RFC finding that Freeman can perform work that requires only occasional near
and far acuity and depth perception is supported by substantial evidence. Most significantly, it is
consistent with consultative examiner Harbinder Toor M.D.’s opinion that Freeman has moderate
limitation performing a daily routine that requires fine visual acuity. Tr. 281; see Barber v.
Comm’r of Soc. Sec., No. 6:15-CV-0338 (GTS/WBC), 2016 WL 4411337, at *7 (N.D.N.Y. July
22, 2016) (citations omitted) (“It is well established that an ALJ may rely on the medical opinions
provided by State agency consultants and that those opinion[s] may constitute substantial
evidence.”). Dr. Toor is the only medical source who opined as to Freeman’s visual limitations.
The ALJ also considered and summarized the record evidence related to Freeman’s eye
issues. Tr. 15. Although Freeman testified to blurry and reduced vision that impacted her ability
to walk, drive, and cook, the ALJ pointed out that the record contained little treatment notes after
her August 2014 eye surgery and that she did not provide additional evidence after the hearing
even though she had the opportunity to do so. Tr. 18. After considering the available evidence,
the ALJ concluded that Freeman could not climb ladders, ropes, or scaffolds, be exposed to moving
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mechanical parts or unprotected heights, operate a motor vehicle, or perform jobs requiring more
than occasional near and far acuity and depth perception. Id. After reviewing the record, the Court
finds that these limitations adequately account for Freeman’s visual impairments.
2.
Low Back Limitations
Freeman also asserts that the ALJ did not adequately consider her low back pain. ECF No.
8-1 at 13-14. She points out that she had herniated disc disease with objective examination
findings like an abnormal gait, decreased lumbar spine flexion and extension, and tingling and
numbness in the right leg. Id. Freeman also notes that Dr. Toor opined that she has moderate to
severe limitations in her ability to stand, walk, bend, and lift and moderate limitation in her ability
to sit a long time. Tr. 280-81.
As discussed in greater detail below, the ALJ properly discounted Dr. Toor’s opinion based
on its inconsistency with the record evidence. Although Freeman often complained of low back
pain, the ALJ pointed out that record evidence contains relatively stable and benign findings. Tr.
15-19. For example, Freeman’s lumbar spine x-ray was normal and an MRI showed only minor
abnormalities and mild degenerative changes.
Tr. 15-16, 224, 298, 300.
Although some
examinations revealed tenderness, positive straight leg raise (“SLR”) tests3, and abnormal gait,
many treatment notes also document normal stance, gait, range of motion, and muscle strength.
See, e.g., Tr. 279, 289, 299, 304, 356, 361, 365, 375, 437, 455. It was the ALJ’s obligation—and
is not the duty of this Court—to resolve this conflicting medical evidence when she made the RFC
determination. See 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); Cage v. Comm’r of
An SLR test is used to detect disc herniation and is performed by passively flexing the patient’s hip while maintaining
the knee in full extension. See The Student Physical Therapist, Straight Leg Raise Test, available at
https://www.thestudentphysicaltherapist.com/straight-leg-raise-test.html (2018) (last visited Dec. 12, 2018). The test
is considered positive when the patient reports pain at 40 degrees of hip flexion or less. Id.
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Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (when the court reviews a denial of disability benefits
it must “defer to the Commissioner’s resolution of conflicting evidence”).
After discussing the evidence related to Freeman’s back impairment, in addition to
considering her eye impairment and history of seizures, a left foot injury, leg pain, and diabetes,
the ALJ concluded that “the great weight of the medical evidence” demonstrates that Freeman can
perform light work with additional postural limitations. Tr. 19. After reviewing the record, the
Court finds that substantial evidence supports this determination.
B.
Medical Opinions
Freeman also argues that the ALJ improperly weighed the medical opinions of treating
physician Shaula Woz, M.D. and consultative examiner Dr. Toor. ECF No. 8-1 at 14-16.
1.
Treating Physician Dr. Woz
The treating physician rule instructs the ALJ to give controlling weight to a treating
physician’s opinion when it is “well-supported by 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). An ALJ may discount a treating physician’s opinion if it does not meet this
standard, but she must “comprehensively set forth [her] reasons for the weight assigned to a
treating physician’s opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); see also 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.”).
When a treating physician’s opinion is not given controlling weight, the ALJ must consider
the following factors in determining how much weight it should receive: “the length of the
treatment relationship and the frequency of examination; the nature and extent of the treatment
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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); see also 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6).
On May 31, 2016, Dr. Woz completed a Medical Source Statement. Tr. 470-75. She
opined that Freeman can sit for four hours total in an eight-hour workday and for less than 15
minutes at one time before needing to alternate positions; can stand and walk for two hours total
in an eight-hour workday and for 15 minutes at one time before she needs to lie down for 30
minutes; and must rest for two hours total in an eight-hour workday in addition to normal breaks.
Tr. 470-72. Dr. Woz also opined that Freeman can occasionally lift and carry up to 10 pounds,
can balance for less than 15 minutes, cannot stoop, and should not work around heights, moving
machinery, or chemicals. Tr. 472-74.
The ALJ credited Dr. Woz’s opinion that Freeman should not work around heights or with
moving machinery and has difficulty balancing and adopted these limitations into the RFC
assessment. Tr. 20. The ALJ otherwise afforded only “limited weight” to Dr. Woz’s opinion. Tr.
19-20.
The ALJ discounted Dr. Woz’s opinion in part because she did not provide any restrictions
related to Freeman’s vision issues, even though the record revealed visual limitations. Tr. 19.
Freeman asserts that this was improper because “there is no indication that Dr. Woz treated the
serious conditions regarding [her] eyesight, so it is not surprising at all that Dr. Woz did not
quantify any eyesight related impairments.” ECF No. 8-1 at 15. The ALJ was entitled, however,
to discount Dr. Woz’s opinion based on how much knowledge she had about Freeman’s
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impairments. See 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii) (“[T]he more knowledge a
treating source has about [the claimant’s] impairment(s) the more weight [the ALJ] will give to
the source’s medical opinion.”). Accordingly, the ALJ did not err when she discounted Dr. Woz’s
opinion on this basis.
Moreover, the ALJ did not use this as the sole reason to discount Dr. Woz’s opinion. In
accordance with the regulations, the ALJ also discounted Dr. Woz’s opinion because she found it
unsupported by Dr. Woz’s own treatment notes. Tr. 19; see also 20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3) (the ALJ will give more weight to a medical opinion that is supported by relevant
evidence). The record contains few treatment notes from Dr. Woz. In November of 2014, Dr.
Woz noted that Freeman complained of low back pain, had a positive right side SLR, and an
abnormal gait, but she also found full strength in all of Freeman’s extremities and indicated that
Freeman’s lumbar spine MRI showed only mild changes. Tr. 298-300. In December of 2014, Dr.
Woz indicated that she reviewed Freeman’s right hip MRI, which revealed only mild degenerative
changes. Tr. 314. In March of 2015, Dr. Woz noted that Freeman’s electromyography (“EMG”)
results were normal.4 Tr. 426, 443. Other record evidence from Dr. Woz merely indicates that
she reviewed Freeman’s medical chart or made an entry on her “problem list.” Tr. 424, 427, 441,
443-44.
The mild findings listed above do not support Dr. Woz’s highly restrictive opinion and her
Medical Source Statement form lacked any supporting explanation. The form included a space
where Dr. Woz could describe the findings supporting her opinion, but she left that area blank. Tr.
4
An EMG assesses the health of muscles and the nerve cells that control them. See Mayo Clinic, Electromyography
(EMG), available at https://www.mayoclinic.org/tests-procedures/emg/about/pac-20393913 (May 5, 2018) (last
visited Dec. 12, 2018). The results of an EMG can reveal nerve or muscle dysfunction or problems with nerve-tomuscle signal transmission. Id.
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473-74. Accordingly, the ALJ did not err when she discounted Dr. Woz’s opinion as unsupported
by Dr. Woz’s own treatment notes.
In accordance with the regulations, the ALJ also discounted Dr. Woz’s opinion because
she found it inconsistent with other record evidence. Tr. 19; see 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4) (the ALJ will give more weight to a medical opinion that is consistent with the
record as a whole). Specifically, the ALJ noted that “the evidence does not support the extreme
limitations regarding [Freeman]’s need to rest, as there are no objective findings or opinions from
other physicians that suggest that [she] would require the breaks opined by Dr. Woz.” Tr. 19.
Moreover, other providers often documented benign findings like normal gait, range of motion,
and muscle tone, no sensory deficits, and full muscle strength.
Tr. 356, 365, 375, 437.
Accordingly, the ALJ did not err when she discounted Dr. Woz’s opinion based on its
inconsistency with other record evidence.
For all the reasons stated, the Court finds that the ALJ did not err and that she properly
discounted Dr. Woz’s opinion in accordance with the treating physician rule.
2.
Consultative Examiner Dr. Toor
The SSA’s regulations require the ALJ to “evaluate every medical opinion [she] receives,
regardless of its source.” Pena v. Chater, 968 F. Supp. 930, 937 (S.D.N.Y. 1997), aff’d, 141 F.3d
1152 (2d Cir. 1998) (citing 20 C.F.R. § 404.1527(c)); see also 20 C.F.R. § 416.927(c). Unless a
treating source’s opinion is given controlling weight, the ALJ must consider: (1) whether the
source examined the claimant; (2) the length, nature, and extent of the treatment relationship; (3)
whether the source presented relevant evidence to support the opinion; (4) whether the opinion is
consistent with the record as a whole; (5) whether a specialist rendered the opinion in his or her
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area of expertise; and (6) other factors that tend to support or contradict the opinion. 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6).
On November 12, 2014, Dr. Toor examined Freeman and opined that she has moderate to
severe limitation in her ability to stand, walk, bend, and lift; pain that interferes with her balance
and physical routine; and moderate limitation in her ability to sit for a long time, engage in a daily
routine that requires fine visual acuity, and exert herself due to cardiac disease. Tr. 280-81.
The ALJ summarized this opinion and afforded it only “little weight,” because after
Freeman “had her stents implanted, treatment notes consistently showed no abnormalities in her
heart and lungs and there have been no reported symptoms related to her cardiac issues.” Tr. 19
(citing Tr. 467-68). The ALJ also noted that Freeman’s “back pain was treated conservatively and
records show that her gait has been normal with no signs to suggest significantly reduced muscle
strength.” Id. (citing Tr. 372-75, 467-68). But the ALJ did not completely reject Dr. Toor’s
opinion; instead, she acknowledged that the record evidence corroborated Dr. Toor’s opinion as to
Freeman’s vision. Tr. 19. Accordingly, the RFC determination limits Freeman to performing
work that requires only occasional near and far acuity and depth perception. The RFC limitation
restricting Freeman to only occasional balancing is also consistent with Dr. Toor’s opinion that
pain affects Freeman’s ability to balance. Tr. 14, 280.
Freeman merely asserts, without any support, that “[t]here is just no reason to give little or
reduced weight” to Dr. Toor’s opinion. ECF No. 8-1 at 14. The Court rejects this argument. The
ALJ adopted much of Dr. Toor’s opinion and, in accordance with the factors set forth above,
discounted the remainder of Dr. Toor’s opinion based on its inconsistency with the record
evidence. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Accordingly, the Court finds that the
ALJ did not err in her evaluation of Dr. Toor’s opinion.
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C.
Evaluation of Freeman’s Testimony
In determining whether a claimant is disabled, the ALJ considers all of her alleged
symptoms, including pain, and the extent to which they are consistent with the record evidence
and affect her daily activities and ability to work. 20 C.F.R. §§ 404.1529(a), 416.929(a) (effective
June 13, 2011 to Mar. 26, 2017); see also S.S.R. 16-3p, 2016 WL 1119029, at *2 (S.S.A. Mar. 16,
2016). But the claimant’s statements alone will not establish disability. 20 C.F.R. §§ 404.1529(a),
416.929(a). Thus, the ALJ follows a two-step process when considering the claimant’s alleged
symptoms and how they affect her ability to work. The ALJ must first consider whether the
medical evidence shows any impairment that “could reasonably be expected to produce the pain
or other symptoms alleged.” Id. If such an impairment is shown, the ALJ must evaluate the
“intensity and persistence” of the claimant’s symptoms to determine the extent to which they limit
her work capacity. Id. §§ 404.1529(c)(1), 416.929(c)(1).
When the objective medical evidence alone does not substantiate the claimant’s alleged
symptoms, the ALJ will consider: (1) the claimant’s daily activities; (2) the location, duration,
frequency, and intensity of the claimant’s symptoms; (3) precipitating and aggravating factors; (4)
the type, dosage, effectiveness, and side effects of any medication taken to alleviate symptoms;
(5) other treatment received to relieve symptoms; (6) any measures the claimant has taken to
relieve symptoms; and (7) any other factors concerning the claimant’s functional limitations and
restrictions due to symptoms. Id. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii).
When the ALJ evaluates the claimant’s symptoms, she cannot “make a single, conclusory
statement” indicating that she considered the claimant’s statements or that the statements are
unsupported or inconsistent. S.S.R. 16-3p, 2016 WL 1119029, at *9. The ALJ also cannot “simply
. . . recite the factors described in the regulations for evaluating symptoms.” Id. The ALJ’s
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decision “must contain specific reasons for the weight given to the individual’s symptoms, be
consistent with and supported by the evidence, and be clearly articulated so the individual and any
subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Id.
Freeman asserts that the ALJ inaccurately described her daily activities and provided “no
specific reasons . . . to support findings on credibility.” 5 ECF No. 8-1 at 16-17. It is untrue that
the ALJ failed to provide specific reasons to support her assessment of Freeman’s statements. In
accordance with the regulations, the ALJ compared Freeman’s allegations and testimony to the
treatment notes, objective evidence, and medical opinions, considered Freeman’s conservative
treatment history and the effect of medication, and discussed Freeman’s daily activities. Tr. 1819; see 20 C.F.R. §§ 404.1529(c)(3)(i), (iv)-(vii), 416.929(c)(3)(i), (iv)-(vii).
As to Freeman’s daily activities, the ALJ cited Dr. Toor’s report and noted that Freeman
“has no difficulty managing her personal care, including dressing, grooming, and bathing,”
“performs household chores, including cooking and cleaning, with little difficulty,” and “enjoys
crafting and singing.” Tr. 13 (citing Tr. 277-81). Freeman asserts that this is inaccurate because
Dr. Toor’s report states that she cleans four days a week—not that she does so without difficulty—
and that her hobbies are crafting and singing—not that she “enjoys” these activities. ECF No. 81 at 17. The Court finds these minor discrepancies insignificant to the ALJ’s analysis of Freeman’s
statements.
The ALJ also noted that Freeman testified that she manages her personal care and can clean
her home with some difficulty sweeping and vacuuming. Tr. 19 (referring to Tr. 43-44). Although
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S.S.R. 16-3p, which became effective on March 16, 2016 and applies in this case, superceded S.S.R. 96-7p and
“eliminate[d] the use of the term credibility from sub-regulation policy.” Kearney v. Berryhill, No. 1:16-CV-00652MAT, 2018 WL 5776422, at *6 (W.D.N.Y. Nov. 2, 2018) (citation omitted). The former Ruling put a “stronger
emphasis” on the ALJ’s duty to make a credibility finding regarding the claimant’s statements. Id. (citation omitted).
The current Ruling makes it clear that the ALJ is not evaluating the claimant’s character when she evaluates the
claimant’s subjective symptoms. Id. (citation omitted).
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the claimant “need not be an invalid” to be disabled under the Social Security Act, Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citation omitted), the ALJ may properly consider the
claimant’s daily activities when assessing her statements.
20 C.F.R. §§ 404.1529(c)(3)(i),
416.929(c)(3)(i). Moreover, as mentioned above, the ALJ did not use Freeman’s daily activities
as the sole reason to discount her statements. Thus, the Court finds that the ALJ did not err by
finding that Freeman’s daily activities weighed against her disability allegations and that she
properly analyzed Freeman’s statements in accordance with the regulations.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings (ECF No. 12) is GRANTED
and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 8) is DENIED. Plaintiff’s
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter
judgment and close this case.
IT IS SO ORDERED.
Dated: December 17, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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