Edwards v. Commissioner of Social Security
Filing
15
DECISION AND ORDER denying Plaintiffs motion for judgment on the pleadings (Docket No. 9) and granting the Commissioners motion for judgment on the pleadings (Docket No. 13). Plaintiffs complaint is dismissed in its entirety with prejudice. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 4/17/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
FREDERICK TYRONE EDWARDS,
Plaintiff,
6:18-cv-06221-MAT
DECISION AND ORDER
-vCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
INTRODUCTION
Frederick
Tyrone
Edwards
(“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
Commissioner
of
Social
Security
(“the
Commissioner”
or
“Defendant”) denying his 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 August 11, 2014, Plaintiff protectively filed applications
for DIB and SSI, alleging disability as of December 31, 2006, due
to
back
problems,
depression,
and
high
blood
pressure.
Administrative Transcript (“T.”) 50. The claims were initially
denied on October 28, 2014. T. 98-104. At Plaintiff’s request, a
video hearing was conducted on July 11, 2016, in Falls Church,
Virginia, by administrative law judge (“ALJ”) Hortensia Haaversen,
with Plaintiff appearing pro se via video conference in Rochester,
New York. A vocational expert (“VE”) also testified. T. 28-49. The
ALJ issued an unfavorable decision on February 7, 2017. T. 9-27.
Plaintiff appealed the decision to the Appeals Council, which
denied Plaintiff’s request for review on January 18, 2018, making
the ALJ’s decision the final determination of the Commissioner.
T. 1-4. 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
determined that Plaintiff met the insured status requirements of
the Act through June 30, 2009. T. 15.
At step one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since the
alleged onset date. T. 15.
At
step
two,
following
“severe”
substance
abuse.
the
ALJ
determined
impairments:
Id.
The
that
affective
ALJ
also
Plaintiff
disorder
considered
had
and
the
poly-
Plaintiff’s
hypertension and complaints of back pain. The ALJ determined that
Plaintiff’s
hypertension
remained
in
control
throughout
the
relevant period and that there was no evidence suggesting it caused
2
more than minimal limitations on Plaintiff’s ability to perform
work-related activities. Accordingly, the ALJ found Plaintiff’s
medically determinable impairment of hypertension was non-severe.
Id. The
ALJ
further determined
that
the
record
contained
no
evidence of treatment for or assessment of any back impairment.
Accordingly, the ALJ found that Plaintiff’s alleged back impairment
did not rise to the level of a medically determinable impairment.
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. T. 20. The ALJ specifically considered the
listings under Section 12.00 (Mental Disorders). T. 15-16.
Before proceeding to step four, the ALJ found that Plaintiff
retained the residual functional capacity (“RFC”) to perform a full
range of work at all exertional levels, with the following nonexertional limitations: he is able to remember locations and worklike procedures; understand, remember, and carry-out very short and
simple instructions;
maintain
attention
and
concentration
for
extended periods within a schedule; maintain regular attendance and
be
punctual
within
customary
tolerances;
sustain
an
ordinary
routine without special supervision; work in coordination with or
in proximity to others without being distracted by them; make
simple
work-related
decisions;
complete
a
normal
workday
and
workweek without interruptions from psychologically based symptoms;
3
and perform at a consistent pace without an unreasonable number and
length of rest periods. T. 17.
At step four, the ALJ concluded that Plaintiff was unable to
perform his past relevant work as a roofer. T. 21. At step five,
the ALJ relied on the VE’s testimony to find that, taking into
account Plaintiff’s age, education, work experience, and RFC, there
are light, unskilled jobs that exist in significant numbers in the
national
economy
that
Plaintiff
can
perform,
including
the
representative occupations of bagger, garment sorter, and marker.
T. 22. The ALJ accordingly found that Plaintiff was not disabled as
defined by the Act. Id.
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
4
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) (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 failed to meet her duty to develop the record;
(2) the ALJ’s RFC assessment is unsupported by substantial evidence
and is inconsistent with the applicable legal standards; and
(3) the ALJ failed to properly evaluate Plaintiff’s credibility.
I.
The ALJ’s Duty to Develop the Record
Plaintiff first argues that the ALJ failed to meet her duty to
develop the record, which was heightened given Plaintiff’s pro se
status at the hearing. For the reasons set forth below, the Court
finds this argument lacks merit.
A.
The Development of the Record
In his initial disability report, Plaintiff named Rochester
General Hospital (“RGH”) as the provider managing his prescriptions
for his high blood pressure and mental health conditions. T. 185.
He specifically named a “Dr. Karent” as his treating primary care
doctor at RGH. T. 186. Plaintiff also named Rochester Mental Health
5
Center (“RMHC”) as a treatment provider for his depression from
2009 through 2013. T. 187.
On September 23, 2014, the Social Security Administration
(“SSA”) sent record requests to RMHC and RGH. See T. 257, 267. RMHC
supplied progress notes dated March 15, 2006, to March 6, 2008.
T. 258-66. RGH supplied outpatient records dated March 19, 2011, to
September 2, 2014. T. 268-89. The SSA also ordered a consultative
psychological examination, which was performed on October 16, 2014
by
Dr.
Yu-Ying
Lin;
and
an
internal
medicine
consultative
examination, which was performed the same day by Dr. Harbinder
Toor. See T. 291-99.
As
part
of
his
appeal
of
the
initial
denial,
Plaintiff
completed an SSA form regarding his recent medical treatment and
medications, which was received by the SSA on November 12, 2015.
T. 221-22. On the form, Plaintiff stated “I have had several
different doctors since I have been injured. I don’t know how I can
get the records. No one is helping me.” T. 221. In the Hearing
Notice sent by the ALJ dated May 3, 2016, Plaintiff was advised he
was entitled to have a representative help him prepare his case.
T. 126. The notice also advised Plaintiff of the ALJ's ability to
issue subpoenas to require a person to submit documents or testify
at the hearing, and instructions on how to request that the ALJ do
so. T. 127-28. On May 6, 2016, Plaintiff acknowledged receipt of
the Hearing Notice, but made no additional requests for assistance.
T. 143-44.
6
At the hearing, Plaintiff appeared pro se. He acknowledged
that the SSA had referred him to lawyers, and that he attempted to
contact a lawyer, but did not get a return call. T. 30. The ALJ
offered to postpone the hearing to allow him more time to retain
counsel, but Plaintiff declined, stating he “wanted to do it [his]
way.” T. 31. The ALJ provided a document explaining a claimant’s
right to
counsel;
Plaintiff
signed
it
and
testified
that
he
understood and that he still wished to waive his right to counsel.
Plaintiff
testified
he
received
his
outpatient
medical
treatment from RGH on Portland Avenue. T. 39. Plaintiff was unable
to remember the names of his doctors, but testified he had an
upcoming appointment for blood pressure management on Wednesday of
that week. T. 40. Plaintiff also testified he received mental
health treatment from RMHC. T. 40-42. At the close of the hearing,
the ALJ informed Plaintiff that she would contact these medical
providers and attempt to obtain further medical documentation from
them. T. 48-49. The ALJ instructed Plaintiff to contact the SSA if
he remembered any other providers that he had not mentioned. Id.
Following the hearing, the SSA made requests to RMHC and
Rochester Regional Health (a network of hospitals that RGH is
affiliated with) for “[a]ll medical records on Frederick Tyrone
Edwards” for dates ranging from 1/1/2006 through current for RMHC,
7
and
1/1/2000
through
current
for
Rochester
Regional
Health.1
T. 233, 249.
On August 4, 2016, the SSA received medical records from RMHC
dated from March 15, 2006, to March 6, 2008. T. 305-30. On
August 5, 2016, the ALJ forwarded the medical records received from
RMHC to Plaintiff for his review. T. 253-54. In the cover letter,
the ALJ advised Plaintiff that he had the right to submit written
comments concerning the evidence, a written statement of facts and
law applicable to the evidence, and any additional records he
wished for the ALJ to consider. The ALJ also informed Plaintiff
that he was entitled to request a supplemental hearing, which the
ALJ would grant unless evidence was received that supported a fully
favorable decision. T. 253. Furthermore, the ALJ offered to issue
subpoenas for witnesses or documents, as long as Plaintiff supplied
the address or location of the witnesses or documents, and the ALJ
deemed
the
subpoena
was
reasonably
necessary
for
the
full
presentation of the case. T. 254.
On August 22, 2016, the SSA received more than 300 additional
pages of Plaintiff’s medical records from RGH, spanning from
March 9, 2006, to August 15, 2016. T. 338-643. While these records
contained references to treatment Plaintiff received for mental
1
The Court notes that the medical evidence of record refers
to Plaintiff as both Frederick Tyrone Edward and Frederick Tyrone
Edwards. Requests for records were sent including Plaintiff’s
Social Security number, so the Court will assume Plaintiff was
properly identified by the medical facilities that supplied
records. See, e.g., T. 233-34.
8
health, hypertension, and other incidental complaints, there were
no treatment records for back pain or back-related impairments. See
T. 268-89, 338-643. Moreover, the treatment notes from RGH that
included
references
to
Plaintiff’s
musculoskeletal
system
consistently showed a normal range of motion and no tenderness to
palpation. See, e.g., T. 268, 273-74, 275, 277-78, 283-84.
On August 23, 2016, the ALJ forwarded the additional medical
evidence received from RGH to Plaintiff, with reminders of all the
options Plaintiff had available to him for obtaining additional
evidence and the assistance the ALJ was willing to provide, as was
discussed in her August 5, 2016 letter. T. 255-56. The record
contains no requests from Plaintiff for additional assistance prior
to the ALJ issuing her decision on February 7, 2017.
Plaintiff
retained
counsel
after
receiving
the
adverse
decision and is currently representing Plaintiff in this action. On
March 2, 2017, Plaintiff’s attorney made a request to the Appeals
Council
for
additional
additional
evidence.
time
T.
to
149.
submit
The
a
legal
Appeals
argument
Council
or
granted
Plaintiff’s request on March 22, 2017. T. 6. No additional evidence
was submitted by Plaintiff prior to the Appeals Council rendering
its final decision. T. 1-4.
B.
The ALJ Met Her Duty to Develop the Record on Behalf of
the Pro Se Plaintiff
Generally, the claimant has the burden of producing evidence
to establish disability; however, because a hearing on disability
9
benefits
is
a
non-adversarial
proceeding,
the
ALJ
has
an
affirmative duty to develop the administrative record. Perez v.
Charter, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v.
Secretary of Health & Human Servs., 685 F.2d 751, 755 (2d Cir.
1982)). This duty is heightened when, as here, the claimant is not
represented by counsel at the administrative hearing. Moran v.
Astrue, 569 F.3d 108, 113 (2d Cir. 2009) (“The ALJ must ‘adequately
protect a pro se claimant’s rights by ensuring that all of the
relevant facts are sufficiently developed and considered’ and by
‘scrupulously and conscientiously prob[ing] into, inquir[ing] of,
and explor[ing] for all the relevant facts.’”) (internal quotation
marks omitted). However, “[t]he ALJ’s duty to develop the record is
not infinite, and where, as here, evidence in hand is consistent
and sufficient to determine whether a claimant is disabled, further
development of the record is unnecessary.” Tatelman v. Colvin, 296
F. Supp.3d 608, 612 (W.D.N.Y. 2017) (internal quotation marks and
citations omitted); see also Perez, 77 F.3d at 48 (where the
evidence in the record is “adequate for [the ALJ] to make a
determination as to disability,” he or she is not required to
further develop the record).
Furthermore, it is axiomatic that there will be no medical
record showing a disabling condition if that condition does not in
fact
exist,
nonexistent
nor
is
evidence.
an
ALJ
See
nonetheless
Schaal
v.
obliged
Apfel,
134
to
F.3
seek
such
496, 505
(2d Cir. 1998) (finding ALJ adequately developed the record where
10
there was little indication in the record suggesting claimant had
a
disabling
mental
disorder
during
the
relevant
period).
In
determining a disability claim, “[t]he [Commissioner] is entitled
to rely not only on what the record says, but also on what it does
not say.” Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983).
Plaintiff contends the ALJ failed to follow the appropriate
legal standards to ensure the record was complete and instead
relied on gaps in the record to make negative and unsupported
inferences against Plaintiff. The Court disagrees.
During the initial application process, Plaintiff identified
Dr. Karent from RGH and Dr. Kranes, located on Portland Avenue
(where RGH is located), as treatment providers. T. 186, 200-01. At
the hearing level, the ALJ explicitly asked Plaintiff to list all
medical providers who had treated him during the relevant period
which he identified as RGH and RMHC. T. 39-42. The ALJ made
requests to both providers for all medical records prior to and
during the relevant period on Plaintiff’s behalf. See T. 233, 249.
The records received from RGH and RMHC contain no reference to or
treatment records from a Dr. Kranes or Dr. Karent. However, they do
contain treatment notes from nurse practitioner (“NP”) Angela F.
Karnes, who treated Plaintiff for his hypertension. See T. 283-84.
Given the similarity in the spelling of the three names, and the
lack of any records from a Dr. Kranes or Dr. Karent in more than
300 pages of records provided by RGH, it was reasonable for the ALJ
to conclude that NP Karnes, who treated Plaintiff at RGH on
11
Portland Avenue, was the treatment provider Plaintiff was referring
to in his application and at the hearing. Accordingly, the Court
finds no reason to expect the ALJ to further attempt to obtain
medical records that in all likelihood, do not exist, especially
given the incomplete and unreliable information Plaintiff supplied.
Plaintiff
also
contends
that
two
minor
references
to
Dr. Beatrice Deshommes in the record as Plaintiff’s primary care
physician should have prompted the ALJ to further develop the
record.
See
T.
268,
627.
However,
Plaintiff
did
not
name
Dr. Deshommes as a treating source on his application, nor did he
mention
Dr.
Deshommes
as
a
treating
source
at
the
hearing.
Furthermore, the record Plaintiff refers to gives Dr. Deshommes’
contact information as 1425 Portland Ave., TWIG Medical Associates.
T. 627. 1425 Portland Avenue is the address for RGH and TWIG
Medical Associates falls under Rochester Regional Health, where the
ALJ sent the request for “[a]ll medical records on Frederick Tyrone
Edwards” for dates ranging from January 2000, through August 2016.
T. 233, 249. Accordingly, it was reasonable for the ALJ to conclude
that any and all treatment records from treating sources associated
with Rochester Regional Health and RGH were contained in the
record.
Further fulfilling her duty to develop the record, the ALJ
shared all of the evidence received by the SSA with Plaintiff and
advised him that she would assist him further with development of
the record if he identified witnesses or documents, along with
12
their names and addresses. Plaintiff made no such requests. At the
appeals level, Plaintiff requested the Appeals Council to hold the
record open for Plaintiff’s attorney to submit arguments and
additional evidence, which the Appeals Council granted. However,
Plaintiff
did
not
submit
additional
evidence.
See
T.
4.
If
Plaintiff believed additional evidence was in fact available, it
was his duty to provide it or at the very least, take advantage of
the ALJ’s offers to assist him in doing so. See Jordan v. Comm’r of
Soc. Sec., 142 F. App’x 542, 543 (2d Cir. 2005) (ALJ adequately
fulfilled his obligation to develop the record where the claimant’s
counsel volunteered to obtain records, the ALJ kept the record open
to allow supplementation of the record, and counsel did not request
the ALJ’s assistance in securing the additional evidence.); Voyton
v.
Berryhill,
No.
6:17-CV-06858-MAT,
2019
WL
1283819,
at
*3
(W.D.N.Y. Mar. 20, 2019) (ALJ was not faulted for the absence of
treatment records where plaintiff failed to utilize numerous offers
of assistance in obtaining records made by the SSA and the ALJ
throughout the appeals process); see also Ferland v. Commissioner
of Social Security, No. 17-10368, 2018 WL 4102852, at *10 (E.D.
Mich. July 31, 2018) (“Although an ALJ has the affirmative duty to
develop the factual record, the ALJ need not seek out a physician’s
medical opinion . . . where, as here, it appears none exists . . .
And if additional medical evidence actually existed, presumably
plaintiff’s counsel would have located [it] before plaintiff filed
13
his motion for summary judgment . . .”) (internal quotation marks
and citations omitted).
Although Plaintiff alleged he received treatment for back
pain, the records RGH provided to the SSA in response to the ALJ’s
request for “[a]ll medical records” for Plaintiff dating from
January 2000, through July 2016, contain no treatment records for
back pain or a back impairment, and no imaging or testing relating
to
a
back
impairment.
See
T.
249,
268-89,
338-643.
Plaintiff
provided
any
additional
information
received
treatment
for
his
pain
back
Nor
suggesting
elsewhere.
has
he
Moreover,
Plaintiff’s treatment notes from RGH indicate physical examinations
which
consistently
showed
a
normal
range
of
motion
and
no
tenderness to palpation. See, e.g., T. 268, 273-74, 275, 277-78,
283-84.
The Court finds the ALJ adequately developed the record and
permissibly determined that the evidence produced by Plaintiff’s
treatment providers, consultative examiners, and state medical
reviewers was sufficient to determine whether or not Plaintiff was
disabled. See Perez, 77 F.3d at 48; Tatelman, 296 F. Supp.3d at
612. Accordingly, the Court finds remand is not warranted on this
basis.
II.
The RFC Assessment Is Supported by Substantial Evidence
Plaintiff
further
contends
that
the
RFC
assessment
is
unsupported by substantial evidence because the ALJ improperly
relied on the stale opinion of the non-examining state agency
14
review psychologist Dr. T. Harding over the opinion of the state
agency psychiatric consultative examiner Dr. Yu-Ying Lin, and
improperly rejected the opinion of state agency internal medicine
consultative examiner Dr. Harbinder Toor. For the reasons discussed
below, the Court finds Plaintiff’s argument lacks merit.
A.
On
The Opinion of Dr. Yu-Ying Lin
October
16,
2014,
Plaintiff
underwent
a
psychiatric
evaluation by consultative examiner, Dr. Lin. T. 291-94. Dr. Lin
noted that Plaintiff reported two past psychiatric hospitalizations
at RGH and past treatment at RHMC, from 2010 to 2011. Plaintiff
reported he was not currently in treatment. T. 291. Plaintiff
reported he had depressive symptoms for the past eight years, and
he
endorsed
a
dysphoric
mood,
fatigue,
diminished
sense
of
pleasure, social withdrawal, and loss of usual interests. He
reported that he had excessive worry, difficulty concentrating, and
hyperstartle
responses.
Plaintiff
reported
two
episodes
of
hallucinations where he saw people who were not actually there in
2010 and
2011,
but
he
denied
current hallucinations.
Id.
He
reported he often forgot conversations or where he put things, and
that his major stressors were finances, his health condition, and
martial problems. T. 292. Plaintiff denied alcohol abuse but
reported heavy drinking from 2005 to 2007. He reported he currently
drank once or twice a week, ranging from three to six beers at a
time. Plaintiff reported marijuana use from 2008 to 2013 and denied
attending any treatment programs. Id. Plaintiff took the bus to the
15
examination and reported that he could dress, bathe and groom
himself. T. 291, 293. He reported that he manages his own money;
knows how to cook, clean, do laundry and shop; but he currently
does not shop or do laundry because of his medical condition. Id.
Upon examination, Plaintiff was well groomed and casually
dressed. His eye contact was appropriate, and his demeanor was
cooperative. Plaintiff’s speech was slightly mumbled, but fluent.
His expressive and receptive languages were adequate. Dr. Lin noted
that
Plaintiff
processes
with
displayed
no
coherent
evidence
of
and
goal
directed
hallucinations,
thought
delusions,
or
paranoia. Plaintiff’s attention and concentration appeared mildly
impaired due to anxiety in the evaluation. T. 292. He performed his
serial threes somewhat slowly. His recent and remote memory skills
appeared moderately impaired due to anxiety in the evaluation.
T. 293.
Dr. Lin diagnosed Plaintiff with major depressive disorder,
moderate;
unspecified
anxiety
disorder;
alcohol
use,
partial
remission; and cannabis use, full remission. T. 294. Dr. Lin opined
that Plaintiff is able to follow and understand simple directions
and instructions. He can perform simple tasks independently, learn
new tasks, make appropriate decisions, and relate adequately with
others. T. 293. Dr. Lin opined that Plaintiff is mildly limited in
maintaining attention and concentration and maintaining a regular
schedule. He is moderately limited in performing complex tasks
independently,
and
he
is
moderately
16
to
markedly
limited
in
appropriately dealing with stress. Dr. Lin opined that Plaintiff’s
difficulties are caused by stress-related problems. Id. Finally,
Dr. Lin opined that the results of the evaluation appeared to be
consistent with psychiatric problems, but in itself, “this does not
appear to be significant enough to interfere with [Plaintiff’s]
functioning on a daily basis.” T. 293-94.
In her decision, the ALJ gave “partial” weight to Dr. Lin’s
opinion. T. 20. The ALJ noted that although Dr. Lin noted moderate
limitations
in
memory
and
mild
limitations
in
attention
and
concentration, Plaintiff was able to take public transportation to
the evaluation and admitted he performs self-care independently and
manages his own funds. T. 20 referring to T. 291-94. Further, the
ALJ found that the overall evidence of record did not support
Plaintiff’s allegations of mental impairments.
B.
The Opinion of Dr. T. Harding
On October 22, 2014, state agency psychological consultant
Dr. Harding provided a functional assessment based on the review of
Plaintiff’s available record, including Dr. Lin’s evaluation and
the initial set of records received from RGH and RMHC. T. 57-64.
Dr. Harding opined that Plaintiff was moderately limited in his
ability to understand and remember detailed instructions, carry out
detailed
instructions,
appropriately
to
accept
criticism
from
instructions
supervisors,
and
and
respond
respond
appropriately to changes in the work setting. T. 57-59. Dr. Harding
17
opined that Plaintiff retained the capacity to perform unskilled to
semi-skilled tasks. T. 59.
In her decision, the ALJ gave “great” weight to the portion of
Dr. Harding’s opinion regarding Plaintiff’s moderate limitations.
However,
the
ALJ
gave
“less”
weight
to
that
portion
of
Dr. Harding’s opinion that Plaintiff could perform semi-skilled
tasks because it was inconsistent with Dr. Harding’s acknowledgment
that Plaintiff
demonstrated
moderate
memory
impairment,
below
average intelligence, and lethargic motor behavior. T. 20.
C.
The ALJ’s Evaluations of the Opinions of Dr. Lin and
Dr. Harding Are Supported by Substantial Evidence
Plaintiff argues the ALJ improperly relied on the “stale”
opinion of non-examining state agency psychologist Dr. Harding over
the opinion of examining consultative psychologist Dr. Lin. For the
reasons set for below, the Court finds Plaintiff’s argument is
without merit.
As a threshold matter, the Court notes that the mere passage
of time does not necessarily render a medical opinion outdated or
stale, but subsequent treatment notes indicating a claimant’s
condition has deteriorated may. See, e.g., Jones v. Colvin, No. 13CV-06443, 2014 WL 256593, at *7 (W.D.N.Y. June 6, 2014) (ALJ should
not have relied on a medical opinion in part because it “was
1.5 years stale” as of the plaintiff’s hearing date and “did not
account for her deteriorating condition”). Here, Plaintiff has
given no indication as to why he classified Dr. Harding’s opinion
18
as “stale.” He has not argued an inordinate length of time passed
between Dr. Harding’s opinion and the ALJ’s decision, nor has he
provided
evidence
demonstrating
his
mental
conditions
have
deteriorated in any way. Furthermore, Dr. Harding’s opinion was
rendered after Dr. Lin’s, which Plaintiff did not suggest was
“stale.” Accordingly, the Court finds Dr. Harding’s opinion is not
“stale.”
The
Court
further
finds
that
the
ALJ
acted
within
her
discretion when assigning “partial” weight to Dr. Lin’s opinion and
“great” weight
to
the
portion
of
Dr.
Harding’s
opinion
that
assessed moderate limitations in the ability to understand and
maintain detailed instructions, carry out detailed instructions,
accept instructions and respond appropriately to criticism from
supervisors, and respond appropriately to changes in the work
setting, but “less” weight to Dr. Harding’s opinion that Plaintiff
was capable of semi-skilled work.
T. 20.
When assessing a disability claim, an ALJ is required to
“weigh all of the evidence available to make an RFC finding that
[is] consistent with the record as a whole.” Matta v. Astrue, 508
F. App’x 53, 56 (2d Cir. 2013). The ALJ’s RFC finding need “not
perfectly correspond with any of the opinions of medical sources.”
Id.; see also Rosa v. Callahan, 168 F.3d 72, 29 (2d Cir. 1999)
(“the ALJ’s RFC finding need not track any one medical opinion”).
The ALJ found that while Dr. Lin’s opinion was entitled to
“partial” weight, her opinion was based in part on Plaintiff’s
19
subjective statements while the overall evidence of the record did
not support his allegations. T. 20. It was not erroneous for the
ALJ to adopt various aspects of Dr. Lin’s opinion while rejecting
others, so long as she properly set forth her reasons for doing so.
See Walker v. Colvin, 3:15-CV-465 (CFH), 2016 WL 4768806, at *10
(N.D.N.Y. Sept. 13, 2016) (“[A]n ALJ may properly credit those
portions of a consultative examiner’s opinion which the ALJ finds
supported by substantial evidence of record and reject portions
which
are
not
so
supported.”)
(quotation
omitted).
Moreover,
Dr. Lin opined that Plaintiff’s problems did not appear to be
significant enough to interfere with his functioning on a daily
basis. T. 293-94.
To the extent Plaintiff argues it was improper for the ALJ to
give greater weight to the opinion of Dr. Harding than the opinion
of Dr. Lin, when Dr. Harding’s opinion was primarily based on the
opinion of Dr. Lin, the Court disagrees.
Where an ALJ makes an RFC assessment that is more restrictive
than the medical opinions of record, it is generally not a basis
for remand. See Castle v. Colvin, No. 1:15-CV-00113(MAT), 2017 WL
3939362, at *3 (W.D.N.Y. Sept. 8, 2017) (“the fact that the ALJ’s
RFC assessment did not perfectly match Dr. Balderman’s opinion, and
was in fact more restrictive than that opinion, is not grounds for
remand”); Savage v. Comm'r of Soc. Sec., No. 2:13-CV-85, 2014 WL
690250, at *7 (D. Vt. Feb. 24, 2014) (finding no harm to claimant
20
where ALJ adopted an RFC determination that was more restrictive
than medical source’s opinion).
Dr. Lin opined Plaintiff was capable of learning new tasks,
making appropriate decisions and relating adequately with others
(T.
293),
whereas
Dr.
Harding
opined
Plaintiff
had
moderate
limitations understanding, remembering, and carrying out detailed
instructions, accepting instructions and responding appropriately
to criticism from supervisors, and responding appropriately to
changes in
the
work
setting.
T.
57-58.
Furthermore,
the
ALJ
rejected the portion of Dr. Harding’s opinion that stated Plaintiff
was capable of more than unskilled work. T. 20. Accordingly, the
Court finds no error in the ALJ’s decision to credit the more
restrictive portion of Dr. Harding’s opinion and incorporate those
limitations into the RFC finding over the similar, but lessrestrictive limitations noted in Dr. Lin’s opinion.
For all the reasons set forth above, the Court finds the ALJ
properly evaluated the opinions of Dr. Lin and Dr. Harding and
accordingly, remand is not warranted on this basis.
D.
The ALJ Properly Evaluated the Opinion of Dr. Toor
Plaintiff also argues the ALJ improperly rejected the opinion
of Dr. Toor. The Court finds this argument without merit, for the
reasons discussed below.
On October 16, 2014, Plaintiff underwent an internal medicine
examination by consultative examiner Dr. Toor. T. 296-99. Plaintiff
reported a history of chronic pain in his lower back since 2006. He
21
reported he had injured his back and that his pain was constant,
sharp, radiated to both legs, and was an eight out of ten on a
scale from one to ten. T. 296. Plaintiff reported he had difficulty
standing, walking, sitting, bending, and lifting. Dr. Toor noted
Plaintiff also had keloids in multiple sites on his body, including
his
face,
back,
and
extremities.
Plaintiff
reported
he
had
hypertension since 2010 and depression for a few years. Plaintiff
further reported he had been hospitalized at RGH in 2010 for back
pain and depression. Plaintiff reported he cooked, cleaned and
shopped once per week, and did no laundry. Id.
Upon examination, Plaintiff appeared to be in moderate pain,
with a slightly abnormal gait. Plaintiff declined to squat or walk
on his heels and toes. He had a normal stance and did not need an
assistive device. However, he had difficulty getting on and off the
exam table and getting out of his chair. T. 297. Dr. Toor reported
that Plaintiff’s cervical spine showed full flexion, extension,
lateral flexion bilaterally, and full rotary movement bilaterally.
He had no scoliosis, kyphosis, or abnormality in the thoracic
spine. Plaintiff’s lumbar flexion was ten degrees, extension was
zero degrees, lateral flexion and lateral rotation bilaterally was
twenty degrees. Plaintiff had positive straight leg raising tests
in both the sitting and supine position, bilaterally. He exhibited
a full range of motion of his shoulder, elbows, forearms, and
wrists bilaterally. He had a full range of motion in his hips,
knees, and ankles bilaterally. Plaintiff’s joints were stable and
22
nontender. Dr. Toor noted there was no muscle atrophy evident.
T. 298.
Dr. Toor diagnosed Plaintiff with history of injury/chronic
lower back pain; history of keloids at multiple sites; history of
depression; and history of hypertension. T. 298. Dr. Toor opined
that
Plaintiff
walking,
has
bending,
moderate
and
to
lifting.
severe
Dr.
Toor
limitations
further
standing,
opined
that
Plaintiff has moderate limitation sitting for a long time. Finally,
Dr. Toor noted that Plaintiff’s pain interferes with his physical
being and sometimes with his balance. T. 299.
In her decision, the ALJ gave Dr. Toor’s opinion “little”
weight. The ALJ noted that there were no objective findings or
corroborating examination notes in the record from any providers to
support Dr. Toor’s opinion. T. 20. Specifically, the ALJ noted that
nowhere else in the medical record did Plaintiff walk with a limp
or complain of back pain. The ALJ found that Dr. Toor’s opinion was
neither supported by nor consistent with the overall evidence of
record and that the record provided insufficient evidence to find
a medically determinable back impairment or assess any physical
functional limitations. Id. The Court finds that the ALJ’s weighing
of Dr. Toor’s opinion was supported by substantial evidence. An ALJ
is permitted to discount portions of a consultative examiner’s
opinion where they are not supported by the medical evidence of
record. See Christina v. Colvin, 594 F. App’x 32, 33 (2d Cir. 2015)
23
(summary order) (ALJ did not commit reversible error “by dismissing
a portion of the opinion of [the] consultative examiner”).
In addition, Dr. Toor’s assessment of moderate to severe
exertional limitations is inconsistent with substantial evidence in
the record. Plaintiff testified at the hearing that he could lift
15 pounds, which is consistent with an ability to perform greaterthan-sedentary work. T. 42-43. He also reported having performed
various temporary “heavy” exertional level jobs, including roofing,
during the alleged disability period. T. 37, 220, 223. Plaintiff’s
physicians routinely observed that he walked normally and had no
significant musculoskeletal deficits. Plaintiff argues the lack of
medical evidence supporting his allegations of back pain is due to
the ALJ’s failure to properly develop the record, but the Court has
already addressed that contention above and found it has no merit.
Because the Court finds no error in the ALJ’s evaluation of Dr.
Toor’s opinion, remand is not warranted on this basis.
III. The ALJ Properly Evaluated Plaintiff’s Credibility
Finally, Plaintiff contends the ALJ failed to evaluate his
subjective statements pursuant to the procedures and factors set
forth in 20 C.F.R. §§ 404.1529 and 416.929 and SSR 16-3p (S.S.A.),
2017 WL 5180304 (Oct. 25, 2017). In particular, Plaintiff argues
that (1) the ALJ impermissibly relied on an incomplete record to
find his allegations were unsupported, and (2) the ALJ failed to
identify
any
objective
evidence
24
that
was
inconsistent
with
Plaintiff’s allegations when determining his credibility. For the
reasons set forth below, Plaintiff’s argument lacks merit.
As a threshold matter, the Court has already found the ALJ
fulfilled her duty to develop the record and Plaintiff has not
supplied any additional evidence supporting the contention that the
record is incomplete. Furthermore, SSR 16-3p (which Plaintiff cites
in his argument) superseded SSR 96-7p (S.S.A.), 1996 WL 374186
(July
2,
1996)
in
2017,
eliminating
the
use
of
the
term
“credibility” from the sub-regulatory policy. However, SSR 96-7p
was in effect at the time the ALJ wrote her decision in 2015, thus
making its application in this case appropriate. Accordingly, the
Court will interpret Plaintiff’s argument to mean the ALJ failed to
evaluate Plaintiff’s subjective statements pursuant to SSR 96-7p
rather than SSR 16-3p.
For the purposes of judging credibility, “a longitudinal
medical
record
demonstrating
[a
claimant’s]
attempts
to
seek
medical treatment . . . and to follow that treatment once it is
prescribed lends support to [a claimant’s] allegations of intense
and persistent pain or other symptoms. . . .” SSR 96-7p. 1996 WL
374186, at *7. Conversely, a claimant’s “statements may be less
credible if the level or frequency of treatment is inconsistent
with the level of complaints, or if the medical reports or records
show
that
the
individual
is
not
following
the
treatment
as
proscribed.” Id. See also Diaz-Sanchez v. Berryhill, 295 F. Supp.
3d 302, 306 (W.D.N.Y. 2018) (“Where, as here, a claimant has sought
25
little-to-no treatment for an allegedly disabling condition, his
inaction may appropriately be construed as evidence that the
condition did not pose serious limitations.”) (citing Arnone v.
Bowen, 882 F.2d 34, 39 (2d Cir. 1989)). Additionally, an ALJ’s
credibility assessment is entitled to deference. “Because the ALJ
has the benefit of directly observing a claimant’s demeanor and
other indicia of credibility, his decision to discredit subjective
testimony is entitled to deference and may not be disturbed on
review if his disability determination is supported by substantial
evidence.” Hargrave v. Colvin, No. 12-CV-6308 (MAT), 2014 WL
3572427,
at
*5
(W.D.N.Y.
July
21,
2014)
(internal
quotation
omitted).
In her decision, the ALJ found that Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of his
symptoms were not entirely consistent with the medical evidence and
other evidence in the record. T. 19. In particular, the ALJ noted
Plaintiff’s inability to remember the names of his doctors or names
of the facilities where he received treatment, the lack of evidence
of any current mental health treatment, and the lack of evidence
that Plaintiff sought treatment for any back impairment. Id. These
reasons all provide substantial evidence supporting the ALJ’s
credibility finding. See Hargrave, 2014 WL 3572427, at *5.
Plaintiff argues that the lack of evidence showing treatment
is due to the ALJ’s failure to properly develop the record.
However, as the Court has already established, the ALJ properly
26
developed the record, and there is no reliable evidence supporting
Plaintiff’s suggestion that there is additional evidence to obtain,
nor has Plaintiff presented any such evidence to the Appeals
Council or to this Court. Plaintiff points to an August 15, 2016
reference in the RGH records indicating he had been prescribed
Flexeril for muscle spasms as evidence that the medical record is
incomplete.
But
the
Court
finds
this
unpersuasive.
Plaintiff
presented to the emergency department on August 15, 2016, for an
allergic reaction and swollen lip. T. 620-26. While there, he made
no
mention
of
any
back
issues
and
an
examination
showed
he
exhibited a normal range of motion. T. 623-24. Flexeril was noted
on his list of current medications, which also included several
medications treating Plaintiff’s hypertension. See T. 626, 636. In
her decision, the ALJ acknowledged the record contained inferences
to Plaintiff’s alleged back impairments, but ultimately found that
the
inconsistency
in
Plaintiff’s
statements
with
the
overall
evidence of record did not support the degree of restriction
Plaintiff alleged. T. 19. This judgment was within the ALJ’s
discretion and aligns with the Commissioner’s regulations. See SSR
96-7p.
For the reasons set forth above, the Court finds no error in
the ALJ’s finding that Plaintiff was less than fully credible. The
Court accordingly finds that remand is not warranted on this basis.
27
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 9) is denied and the Commissioner’s
motion for judgment on the pleadings (Docket No. 13) is granted.
Plaintiff’s complaint is dismissed in its entirety with prejudice.
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:
April 17, 2019
Rochester, New York
28
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