Sears v. Social Security Administration, Commissioner

Filing 17

OPINION AND ORDER: The Court DENIES Plaintiff's 11 Motion to Reverse Decision of Commissioner and GRANTS Defendant's 16 Motion for Order Affirming Decision of Commissioner. Signed by Judge John M. Conroy on 5/15/2012. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Brian Sears,
Plaintiff,
v.

Civil Action No. 2:11-CV-138

Michael J. Astrue,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 11, 16)
Plaintiff Brian Sears brings this action pursuant to 42 U.S.C. § 405(g) of the Social
Security Act, requesting review and remand of the decision of the Commissioner of
Social Security (“Commissioner”) denying his application for disability insurance
benefits. Pending before the Court are Sears’s motion to reverse the Commissioner’s
decision (Doc. 11), and the Commissioner’s motion to affirm the same (Doc. 16). For the
reasons stated below, the Court DENIES Sears’s motion and GRANTS the
Commissioner’s motion.
Background
Sears was thirty-nine years old on his alleged disability onset date of
September 1, 2008. He completed high school, and worked for over fifteen years as an
automobile mechanic. During the alleged disability period, Sears lived with his mother
in a mobile home. He is single and has no children.

Sears is obese and suffers from neck pain, back pain, occasional numbness in his
right arm and fingers, sleep apnea, and depression. His neck and back pain are his most
severe impairments, and he claims they preclude him from bending down or lifting five
pounds or more, and require him to lay down or recline for approximately forty-five
minutes to an hour four to six times each day. (AR 49.) In October 2009, he underwent
neck surgery. Approximately six weeks later, Sears saw Dr. Ralph Beasley for
continuing neck and back pain. (AR 400.) Dr. Beasley assessed Sears as having
“chronic opioid dependence for chronic pain problems in his neck and back,” and
referred him back to his primary care provider, Nurse Practitioner (“NP”) Larry
Lancaster. (AR 401.) Soon thereafter, on January 5, 2010, NP Lancaster advised Sears
that he was no longer comfortable prescribing controlled substances to Sears, “given his
persistent over[-]usage of medication.” (AR 474.) Sears then met with Dr. Shagun
Saggar seeking pain medication, but Dr. Saggar also declined the request and instead
suggested that Sears attend an addiction clinic. (AR 472.) Despite admitting to Dr.
Saggar that he was addicted to pain medications, Sears opted against attending the clinic
and refused to accept a referral to an addiction specialist. (Id.)
On September 29, 2008, Sears filed an application for social security disability
benefits. Therein, he alleged that, starting on September 1, 2008, he has been unable to
work due to “severe neck and back aches along with headaches.” (AR 142.) Sears’s
application was denied initially and upon reconsideration, and he timely requested an
administrative hearing. The hearing was conducted on May 5, 2010 by Administrative
Law Judge (“ALJ”) Dory Sutker. (AR 27-67.) Sears appeared and testified, and was
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represented by non-attorney representative Michael Milne. A vocational expert (“VE”)
also testified at the hearing. (AR 57-66.) On July 6, 2010, the ALJ issued a decision
finding that Sears had not been disabled since September 29, 2008, the date his
application was filed. (AR 12-22.) A few months later, the Decision Review Board
(“DRB”) reviewed the ALJ’s decision and adopted the conclusion that Sears was not
disabled, but issued a corrective decision to consider the March 2009 opinion of NP
Lancaster. (AR 7-8 (citing AR 333).) Having exhausted his administrative remedies,
Sears filed the Complaint in this action on May 26, 2011. (Doc. 5.)
ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
The claimant is presumptively disabled if the impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (“RFC”), meaning “the most [the claimant] can
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still do despite [his or her mental and physical] limitations,” based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545,
416.920(e), 416.945. The fourth step requires the ALJ to consider whether the claimant’s
RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§
404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the
claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant
bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d at
383; and at step five, there is a “limited burden shift to the Commissioner” to “show that
there is work in the national economy that the claimant can do,” Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step
five is limited, and the Commissioner “need not provide additional evidence of the
claimant’s [RFC]”).
Employing this sequential analysis, ALJ Sutker first determined that Sears had not
engaged in substantial gainful activity since the filing of his application on
September 29, 2008. (AR 14.) At step two, the ALJ found that Sears had the severe
impairments of degenerative disc disease of the cervical spine, status post-fusion surgery;
degenerative disc disease of the lumbar spine; and obesity. (AR 14-15.) Conversely, the
ALJ found that Sears’s depression, anxiety, and sleep apnea were non-severe
impairments. (AR 15.) At step three, the ALJ found that none of Sears’s impairments,
alone or in combination, met or medically equaled a listed impairment. (Id.)
Next, the ALJ determined that Sears had the RFC to perform sedentary work,
except that he could only occasionally climb stairs and ramps, balance, stoop, kneel, and
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crouch; and could never crawl. (AR 16.) Given this RFC, the ALJ found that Sears was
unable to perform his past relevant work as an automobile mechanic. (AR 20.) Finally,
based on testimony from the VE, the ALJ determined that Sears could perform other jobs
existing in significant numbers in the national economy, including small products
assembler, car wash attendant, and parking lot attendant. (AR 21-22.) The ALJ
concluded that Sears had not been under a disability since September 29, 2008, the date
his application was filed. (AR 22.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). A person will be found disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In reviewing a Commissioner’s disability decision, the court limits its inquiry to a
“review [of] the administrative record de novo to determine whether there is substantial
evidence supporting the . . . decision and whether the Commissioner applied the correct
legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). A court’s factual
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review of the Commissioner’s decision is limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the fact[-]finder.”). “Substantial evidence” is more
than a mere scintilla; it means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Poupore, 566 F.3d at 305. In its deliberations, the court should consider that the Social
Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
I.

ALJ/DRB’s Consideration of Nurse Practitioner Lancaster’s Opinion
Sears contends that the ALJ erred in failing to consider the opinion of NP

Lancaster, who treated Sears frequently for over one year. But the DRB issued a
corrective decision for the specific purpose of “evaluat[ing] the weight afforded to [NP
Lancaster’s] opinion.” (AR 7.) After performing this evaluation and noting that
Lancaster was not an “acceptable medical source,” the DRB concluded that Lancaster’s
opinion was entitled to “only limited weight” because (a) it was not supported by citation
to relevant evidence; and (b) it was not consistent with the medical evidence of record,
including medical treatment information and other objective evidence discussed in the
ALJ’s decision. (AR 7-8.) This analysis was proper, and substantial evidence supports
the DRB and ALJ’s factual findings regarding the medical evidence.
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As a nurse practitioner and not a licensed physician or psychologist, Lancaster is
not an “acceptable medical source,” 20 C.F.R. § 404.1513(a), but rather, an “other
source,” defined in the regulations to include medical sources such as nurse practitioners,
physician assistants, and chiropractors, and non-medical sources such as school teachers,
daycare center workers, and rehabilitation counselors, 20 C.F.R. § 404.1513(d). See SSR
06-03p, 2006 WL 2329939, at *1-2 (2006). Therefore, the DRB’s statement that
Lancaster was “not an acceptable medical source” was correct. (AR 7.) Nonetheless,
Social Security Ruling (“SSR”) 06-03p directs that opinions from “other sources” are
“important” and “should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file.” SSR 06-03p, 2006
WL 2329939, at *3. While the Commissioner is thus free to decide that the opinions of
“other sources,” including nurse practitioners like Lancaster, are entitled to no weight or
little weight, those decisions should be explained. See Marziliano v. Sullivan, 771 F.
Supp. 69, 75 (S.D.N.Y. 1991) (holding that opinion of “other source” is entitled to “some
consideration”). Moreover, SSR 06-03p directs the Commissioner to use the same
factors in evaluating the opinions of “other sources” as are used to evaluate the opinions
of “acceptable medical sources,” including treating physicians. SSR 06-03p, 2006 WL
2329939, at *4 (citing 20 C.F.R. §§ 404.1527(d), 416.927(d)). These factors include but
are not limited to the length of the treatment relationship, the frequency of evaluation,
and the degree to which the opinion is supported and consistent with the record. Id.; see
20 C.F.R. § 404.1527(c)(2).

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Given this law and NP Lancaster’s treating relationship with Sears, the ALJ erred
in failing to discuss Lancaster’s March 2009 opinion. But the DRB corrected the error by
analyzing Lancaster’s opinion in a separate decision, in accordance with SSR 06-03p.
Specifically, as noted above, the DRB found that Lancaster’s opinion was unsupported
and inconsistent with the record, which are proper factors to consider under 20 C.F.R. §
404.1527(c)(2)(iii) and (iv). Further, the record supports these findings. Lancaster’s
opinion consists of a one-page “Physician’s Statement” to the “New Hampshire
Employment Security” office, wherein Lancaster checked boxes indicating that Sears was
“permanent[ly]” “disab[led]” starting in September 2008 as a result of “chronic neck
pain,” and could work for no more than two hours each day and three days each week.
(AR 333.) Lancaster further opined that Sears could lift/carry no more than ten pounds
and only five pounds on a frequent basis. (Id.)
Preliminarily, although not stated in either the ALJ’s or DRB’s decision,
Lancaster’s opinion that Sears was permanently disabled is entitled to little weight for the
reason that, “the ultimate determination of whether a claimant is disabled under the
Social Security Act is ‘reserved to the Commissioner.’” Giunta v. Comm’r of Soc. Sec.,
No. 10-4869-cv, 2011 WL 5868419, at *1 (2d Cir. Nov. 23, 2011) (quoting 20 C.F.R. §
404.1527(e)(1)). More importantly, and as noted by the DRB, the opinion lacks any
explanation or citation to supporting evidence. Furthermore, as also noted by the DRB,
Lancaster’s opinion is not consistent with the objective medical evidence, which
generally portrays Sears as an individual who suffered from debilitating pain during the
alleged disability period, but who, at times, effectively treated that pain with medication;
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opted against complying with several recommended treatment plans; and most
importantly, engaged in drug-seeking behavior including overusing his pain medication
and lying to treating providers to obtain more pain medication. (See AR 19-20 (citing
AR 253 (“getting [narcotics] sold on the street”), 414 (had arguments with mother about
over-use of medications), 446 (Dr. Victoria Martin “not willing” to prescribe narcotics
due to “overusing his pain medications”), 459 (Dr. Sarah Johansen declining to prescribe
narcotics and stating, “this is a patient with a chronic narcotic dependence”), 472 (lying
to Dr. Saggar about last time used pain medications, admitting addicted to pain
medications, and declining offer to attend addiction clinic), 474 (declining Neurontin
prescription, discontinued from primary care practice by NP Lancaster due to “persistent
over[-]usage of medication”), 476 (Dr. Sheilla Bachelder questioning reports of pain and
noting failure to advise of narcotics contract), 482 (declining to restart Neurontin), 486
(“overusing his pain meds”), 521 and 526 (indicating that OxyContin and Aleve helped
relieve pain without causing side effects).)
It was proper for the ALJ to consider Sears’s conspicuous drug-seeking behavior
in assessing the true severity of his back and neck pain because, if Sears’s goal was to
obtain prescription pain medication, he was more likely to overstate the pain he was
actually experiencing. See Berger v. Astrue, 516 F.3d 539, 545-46 (7th Cir. 2008)
(finding claimant’s credibility undermined where he received a regimen of pain
medication, including hydrocodone, from two different doctors); Marrotte v. Barnhart,
107 F. App’x 14, 16 (8th Cir. 2004) (upholding ALJ’s findings discounting plaintiff’s
credibility because of record of drug-seeking behavior); Edlund v. Massanari, 253 F.3d
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1152, 1157 (9th Cir. 2001) (holding that likelihood that claimant was exaggerating
complaints of physical pain to “feed his Valium addiction” supported ALJ’s decision to
reject his testimony); Morgan v. Astrue, No. 11-cv-730-bbc, 2012 WL 1516755, at *12
(W.D. Wis. May 1, 2012) (finding that ALJ properly relied on the claimant’s “drug
seeking behavior” in assessing the true severity of her back, neck, and shoulder
problems); Metz v. Astrue, No. 1:06-CV-1509 (FJS/DRH), 2010 WL 2243343, at *14
(N.D.N.Y. Apr. 21, 2010) (“A claimant’s misuse of medications is a valid factor in an
ALJ’s credibility determinations.”); Booker v. Astrue, No. 08-5346 (PAM/SRN), 2009
WL 1886134, at *38 (D. Minn., June 30, 2009) (“A claimant’s misuse of medications is a
valid consideration in an ALJ’s credibility determination and drug[-]seeking behaviors
can discredit a plaintiff’s allegations of disabling pain.”). Courts have found that, even
when a claimant may validly require pain medication, an ALJ may still consider a
plaintiff’s overuse of prescribed medications when assessing the plaintiff’s credibility.
See Anderson v. Barhart, 344 F.3d 809, 815 (8th Cir. 2003) (“While we appreciate
[plaintiff’s] need for prescribed medications to treat the severe pain caused by his
shoulder impairment, we do not think that undercuts the ALJ’s finding on [plaintiff’s]
overuse of medications. A claimant’s misuse of medications is a valid factor in an ALJ’s
credibility determinations .”) (citation omitted); Anderson v. Shalala, 51 F.3d 777, 780
(8th Cir. 1995) (observing that claimant’s “drug-seeking behavior further discredits her
allegations of disabling pain”). Here, the ALJ’s credibility assessment was integral to her
RFC determination and ultimately to her and the DRB’s determination of non-disability,
given that the objective medical evidence does not reflect the severe degree of pain
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alleged by Sears. For example, as stated in the ALJ’s decision, although Sears testified at
the administrative hearing that he must frequently lie down throughout the day for up to
an hour at a time to relieve his pain, “there is no indication in the medical evidence that
[his] physicians [we]re aware of this difficulty. Rather, some . . . recommended that he
participate in a functional restoration program in an effort to get [him] back to work.”
(AR 19 (citing AR 407).)
Moreover, there are very few treating provider opinions in the record. In fact,
despite Sears’s treatment with multiple physicians for his neck and back pain, the opinion
of agency consultant Dr. Geoffrey Knisely appears to be the only medical opinion in the
record which was prepared by a physician. Although Dr. Knisely did not examine or
treat Sears (as NP Lancaster did), he is a physician whereas Lancaster is not. The
Commissioner accurately points out that Lancaster’s opinion is contrary to that of Dr.
Knisely, who affirmed the earlier opinion of “Single Decisionmaker” (i.e., non-medical
agency consultant) Donald MacArthur that Sears was able to perform light work with
restrictions on his ability to climb, stoop, crouch, and crawl. (AR 334 (referencing AR
315-22).) As Sears points out, a “single decisionmaker” (“SDM”) is not a medical
professional; thus, courts have found that an RFC assessment from such an individual is
entitled to no weight as a medical opinion. See, e.g., Johnson v. Barnhart, No. 03-166-BW, 2004 WL 1529296, at *4 (D. Me. June 24, 2004) (Report and Recommendation of
Magistrate Judge) (opinion of SDM, as “a layperson,” “entitled to no weight”), adopted
by Johnson v. Barnhart, No. Civ. 03-166-B-W, 2004 WL 1572705 (July 13, 2004);
Velasquez v. Astrue, No. 06-cv-02538-REB, 2008 WL 791950, at *3 (D. Colo. Mar. 20,
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2008) (“An SDM is not a medical professional of any stripe, and the ALJ candidly
recognized that [the SDM’s] opinion was entitled to no weight as a medical opinion, nor
to consideration as evidence from ‘other non-medical sources.’”) But any error the ALJ
may have made in weighing the opinion of SDM MacArthur as if he was a medical
consultant is harmless, given that the ALJ did not heavily rely on this opinion in denying
benefits. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (applying harmless
error standard in social security context).
In fact, the ALJ found that Sears was more functionally limited than the agency
consultants opined, determining that Sears’s RFC was for sedentary work instead of light
work, as opined by consultants MacArthur and Dr. Knisely. (See AR 20 (“While th[e
agency] opinions were reasonable based upon the evidence contained in the record at that
time, additional evidence received into the record at the hearing level convinces the
undersigned that [Sears] was more limited than originally thought.”).) Moreover, in
mentioning the agency consultants’ opinions, the ALJ considered them as being on par
with the other evidence that detracted from a finding of disability. As discussed above,
this other evidence included proof that: Sears’s pain was reduced with medication; Sears
failed to follow several prescribed treatment plans; and Sears was not credible due in
large part to his drug-seeking behavior and dependence on pain medication. The Court
thus finds that the ALJ would have reached the same result even if she had explicitly
recognized that the author of one of the agency opinions was not a physician. Further,
the ALJ properly relied on Dr. Knisely’s opinion, along with all the other record
evidence, in finding that Sears was not disabled. (AR 20.)
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II.

ALJ’s Step-Five Determination that Sears Could Perform “Other Work”
Sears next argues that the ALJ erred in determining that Sears could perform the

jobs of small products assembler, car wash attendant, and parking lot attendant, given that
these are “light” jobs and the ALJ found that Sears was only able to do “sedentary” work.
Even assuming this error, however, the Court finds that the ALJ’s determination of nondisability may not be disturbed on this ground because the Medical-Vocational
Guidelines (“the Grids”) direct a finding of non-disability, as explained below. See, e.g.,
Stafford v. Astrue, 581 F. Supp. 2d 456, 460 (W.D.N.Y. 2008) (finding ALJ error at step
four harmless “[b]ecause plaintiff was a younger individual with a limited education, able
to perform a significant range of unskilled sedentary work, [and thus,] the Grids would
have directed a finding of ‘not disabled’ in any event”).
Because Sears established at step four that he could not perform his past work, the
ALJ had the burden of proving at step five that he retained “a residual functional capacity
to perform alternative substantial gainful work which exist[ed] in the national economy.”
Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). The ALJ ordinarily meets this burden
by utilizing the applicable Medical-Vocational Guideline, 20 C.F.R. pt. 404, subpt. P,
app. 2, although sole reliance on the Grids may be inappropriate where the claimant’s
exertional impairments are combined with nonexertional impairments. Roma v. Astrue,
No. 10-4351-cv, 2012 WL 147899, at *4 (2d Cir. 2012); Rosa v. Callahan, 168 F.3d 72,
78 (2d Cir. 1999). The Second Circuit has explained:
The grids “take[ ] into account the claimant’s residual functional capacity in
conjunction with the claimant’s age, education and work experience.”
Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996). Based on these
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considerations, the grids indicate whether the claimant can engage in any
substantial gainful work existing in the national economy. Although the
grid results are generally dispositive, exclusive reliance on the grids is
inappropriate where the guidelines fail to describe the full extent of a
claimant’s physical limitations. In particular, “sole reliance on the [g]rid[s]
may be precluded where the claimant’s exertional impairments are
compounded by significant nonexertional impairments that limit the range
of sedentary work that the claimant can perform.” Id. In these
circumstances, the Commissioner must “introduce the testimony of a
vocational expert (or other similar evidence) that jobs exist in the economy
which claimant can obtain and perform.” Bapp, 802 F.2d at 603.
Rosa, 168 F.3d at 78 (footnote omitted). Thus, the mere existence of a nonexertional
impairment “does not automatically . . . preclude reliance on the guidelines.” Bapp, 802
F.2d at 603. Rather, when a claimant’s nonexertional impairments significantly diminish
his ability to work – over and above any incapacity caused solely from exertional
limitations – so that he is unable to perform the full range of employment indicated by the
Grids, then the Commissioner may not rely exclusively on the Grids and must use a VE
or other similar evidence to determine whether jobs exist in the economy which claimant
can perform. Id.
Applying the Grids here, Rule 201.27 directs that a person of Sears’s age (fortyone in July 2010, when the ALJ issued her decision) and education (high school), who is
able to do unskilled, sedentary work, is not disabled. (AR 34-35, 128.) See 20 C.F.R. pt.
404, subpt. P, app. 2, r. 201.27. Although the ALJ found that Sears had additional
postural limitations beyond those accounted for in sedentary work, the Court finds that
these limitations do not significantly erode the sedentary occupational base.
Specifically, the ALJ included in her RFC determination the limitations that Sears
could only occasionally climb, balance, stoop, kneel, and crouch; and could never crawl.
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(AR 16.) With respect to the climbing and balancing limitations, the Commissioner’s
Program Operations Manual System (“POMS”) provides that, “[a]s a general rule, a
small degree of limitation (e.g., the person retains the capacity to ascend and descend
ramps and stairs but cannot maintain balance on a ladder) would not significantly impact
on any range(s) of work.” POMS DI 25020.005.A.1.a; see also SSR 85-15, 1983 WL
31245, at *6 (1983) (“Where a person has some limitation in climbing and balancing and
it is the only limitation, it would not ordinarily have a significant impact on the broad
world of work.”). Regarding the stooping and crouching limitations, SSR 83-14 states:
“To perform substantially all of the exertional requirements of most sedentary and light
jobs, a person would not need to crouch and would need to stoop only occasionally (from
very little up to one-third of the time, depending on the particular job).” SSR 83-14,
1983 WL 31254, at *2 (1983). And SSR 83-15 states: “If a person can stoop
occasionally (from very little up to one-third of the time) in order to lift objects, the
sedentary and light occupational base is virtually intact.” SSR 83-15, 1983 WL 31245, at
*7; see Frustaglia v. Sec’y of Health & Hum. Servs., 829 F.2d 192, 195 (1st Cir. 1987)
(“It is fairly obvious that . . . a restriction [of only occasional bending] would have very
little effect on the ability to perform the full range of work at either the light or sedentary
level.”). Finally, with respect to the kneeling and crawling limitations, the POMS
instructs that, in general, these limitations – in and of themselves – would have “very
little impact” on the sedentary occupational base. POMS DI 25020.005.A.4.b.
Applying these principles to Sears, the VE correctly testified that his additional
limitations, as determined by the ALJ, would have no effect on the range of sedentary
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work that he could perform. (AR 61-62.) The VE stated: “Occasional stairs and ramps,
occasional stooping, crouching[,] . . . kneeling, . . . and crawling[,] I don’t see those as
impediments for sedentary work.” (AR 62.) Accordingly, it is irrelevant whether (as
determined by the ALJ) Sears could perform the “light” jobs of small products assembler,
car wash attendant, and parking lot attendant, because application of the Grids establishes
that there was a significant number of sedentary, unskilled jobs that Sears could perform.
III.

ALJ’s Development of the Record
Sears’s final argument is that the ALJ erred in failing to fully develop the record.

Specifically, Sears contends that the ALJ should have obtained the treatment records of
Dr. Mark Bucksbaum, who treated and prescribed medication for Sears in February and
March of 2010. The argument easily fails, as these records are in fact part of the record
that was before the ALJ. (AR 517-32.) The ALJ even cited to these records in her
decision, stating that, “although [Sears] alleges that his pain significantly impacts his
ability to perform most daily activities, [Sears] also acknowledges that Oxycontin and
Aleve relieve his pain without causing any side effects.” (AR 19 (citing AR 521, 529).)
Moreover, Sears fails to explain how Dr. Bucksbaum’s treatment records would have
affected the outcome of the proceedings, and thus he has failed to show that the ALJ did
not fulfill her duty to develop the record. See Velasquez v. Barnhart, No. 04 Civ.
9017(DLC), 2006 WL 3431190, at *4 (S.D.N.Y. Nov. 29, 2006) (rejecting plaintiff’s
argument that ALJ failed to develop the record where plaintiff “[had] not even indicated
what relevance she believe[d] the supplemental records would have [had] to the disability
determination”); Batista v. Astrue, No. 08-CV-2136, 2010 WL 3924684, at *11
16

(E.D.N.Y. Sept. 29, 2010) (finding that plaintiff’s reference to documents not contained
in the record, and her conclusory statement that these documents revealed the ALJ’s
failure to properly develop the record, were “insufficient to show that the ALJ did not
fulfill his duty to develop the record”).
Conclusion
For these reasons, the Court DENIES Sears’s motion (Doc. 11), GRANTS the
Commissioner’s motion (Doc. 16), and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 15th day of May, 2012.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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