Holstein, Jr. v. Commissioner of Social Security
OPINION AND ORDER Denying 12 Plaintiff's Motion for an Order Reversing the Commissioner's Decision and Granting 17 the Commissioner's Motion to Affirm. Signed by Chief Judge Christina Reiss on 1/26/2017. (pac)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
GEORGE K. HOLSTEIN, JR.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
2011 JAN 26 PH 1: SO
Case No.2: 15-cv-255
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER
REVERSING THE COMMISSIONER'S DECISION AND GRANTING THE
COMMISSIONER'S MOTION TO AFFIRM
(Docs. 12 & 17)
Plaintiff George K. Holstein, Jr. is a claimant for Social Security Disability
Insurance Benefits ("DIB") under the Social Security Act ("SSA"). He brings this action
pursuant to 42 U.S.C. § 405(g) to reverse the decision of the Social Security
Commissioner that he is not disabled. Plaintiff filed his motion to reverse on April 25,
2016. (Doc. 12.) The Commissioner filed her motion to affirm on August 4, 2016.
(Doc. 17). The court took the matter under advisement on August 22, 2016.
Plaintiff is represented by John C. Mabie, Esq. The Commissioner is represented
by Special Assistant United States Attorney Sandra M. Grossfeld.
Plaintiff raises the following issues: (1) whether Administrative Law Judge
("ALJ") Matthew Levin erred in determining that Plaintiffs severe impairments do not
meet the requirements of the Listings; (2) whether ALJ Levin erred in his residual
functional capacity ("RFC") analysis; (3) whether ALJ Levin demonstrated bias; and
(4) whether evidence which became available in March of 2016 requires a remand.
On August 28, 2012, Plaintiff filed for DIB benefits alleging that he was disabled
as of July 30, 2011. The Commissioner initially denied his claims on November 21,
2012, and again on reconsideration. On January 29, 2013, Plaintiff filed a timely request
for a hearing before an ALJ.
At a May 13, 20 14 hearing before ALJ Levin, Plaintiff appeared with John Pyatak,
Esq. and testified. Vocational expert ("VE") Louis Laplante also testified. On June 12,
2014, ALJ Levin issued a written decision finding that Plaintiff was not disabled. The
Appeals Council denied Plaintiff's request for review on October 1, 2015. As a result,
ALJ Levin's decision stands as the Commissioner's final decision.
Plaintiff is a forty-seven year old, left-handed male with a 1Oth grade education.
He served in the Navy from 1988 to 1991 when he received a general discharge. Since
his discharge, he has held jobs at restaurants, in sales, as an automotive technician, and in
retail establishments. Plaintiff stopped working in July of 2011, citing problems with his
knees, back, and anger issues. Plaintiff is separated from his wife, has three children, and
lives with his girlfriend and one of his sons.
In December of2008, Plaintiff began treatment at Department ofVeterans Affairs
("VA") medical facilities in Vermont. At a December 8, 2008 primary care session,
Plaintiff raised concerns regarding his sleep, pain in his lower back and right knee, and
hearing loss. Plaintiff was referred to sleep and audiology specialists for evaluation.
Plaintiff was also screened for depression and post-traumatic stress disorder ("PTSD"),
but each was initially assessed as negative.
Knee and Back Pain Treatment History.
During the December 8, 2008 primary care session, Plaintiff reported experiencing
pain in his back and right knee since his fall from a ladder while in the Navy. He asserted
that the pain causes him to walk "funny" which then causes other joints to hurt. (AR
523.) He stated that Motrin eased the pain. An x-ray of his knees was unremarkable.
During a February 2010 primary care session, Plaintiff complained of joint pain
stemming from his "crooked" walk to accommodate pain in his left knee. (AR 518.)
Plaintiff stated that he was never pain free and that Ibuprofen 800mg six times per day
was ineffective to control his pain. Plaintiff was advised to try other over-the-counter
medications with the option of a knee injection if his pain persisted. The following
month, however, Plaintiff reported that the pain in his right knee had increased
significantly. Plaintiff walked with a limp, and his right knee was observed as tender but
stable. Plaintiff was prescribed a small dose ofPercocet, provided with a brace and cane,
and scheduled for an MRI the following month, which revealed the presence of fluid in
his knee but no damage.
In September of 2010, after complaining of continued pain in his right knee,
Plaintiff was prescribed Salsalate and referred to Philip Hershberger, M.D. for an
orthopedic consultation. Plaintiff reported to Dr. Hershberger that his knee pain
increased with prolonged walking and use of stairs, that he hears popping noises in his
knee, and has occasional swelling. Plaintiff also indicated that the pain medication was
helping. Dr. Hershberger observed that Plaintiffs gait was satisfactory, that he was able
to heel and toe walk, and that he exhibited mild loss of sensation in some of his toes. Dr.
Hershberger assessed Plaintiff as having some degenerative changes and recommended
Plaintiff continue with pain medication and avoid aggravating factors.
Two months later, in December of2010, Plaintiff told his primary care provider
that "everything hurts from his low back to his hips to his knees." (AR 466.) Plaintiff
requested medication because the pain was interfering with his work.
In March of2011, Plaintiff met with Dr. Hershberger and reported that his knee
pain was worse after a full day of work. He noted he was taking Ibuprofen for pain and
the use of a brace was helping. Dr. Hershberger assessed Plaintiffs gait as satisfactory,
but described it as slow and deliberate. Plaintiff was still able to perform a heel and toe
walk, his decreased sensation in his toes was still present, and his range of movement in
his hips was satisfactory. An MRI of his knees revealed no significant degenerative
changes. The next month, Plaintiff was referred to physical therapy after he complained
that he was unable to stand on his own power while at work. Plaintiff was assessed as
having a herniated lumbar disc and provided with a program of stretching. An MRI of
Plaintiffs back from April of 2011 showed "mild-broad based disc bulge, bilateral facet
arthropathy and ligament flavum hypertrophy, causing mild narrowing of the central
canal and bilateral neuroforamina" at the L5-S 1 level. (AR 1211.) It was noted that the
"L5 nerve root within the neural foramen is not well-seen and may be impinged by the
adjacent facet arthropathy." !d. Clinical correlation was requested.
On November 28, 2011, Plaintiff reported to Dr. Hershberger that he continued to
experience knee and back pain and that he had to quit his job because it involved
repetitive kneeling activities. Dr. Hershberger observed that Plaintiffs gait remained
satisfactory, that he was still able to heel and toe walk, and that other than decreased
sensitivity in some of his toes, his sensation to touch was satisfactory.
In October of2012, Plaintiff reported that his back pain would not stop and that he
could "no longer take it." (AR 1064.) He stated that he had tried several varieties of pain
medication to no avail and felt that he could no longer be active out of fear that
significant pain would follow. He reported that the stretching routines he learned at
physical therapy helped with flexibility but not pain. He was observed as having an
antalgic gait and prescribed Flexeril and Vicodin. The following month Plaintiff
described his pain as continuing but stated that the Vicodin helped ease the pain.
In 2013, Plaintiffs knee pain continued to worsen but his back pain appeared
stable. In April and June, Plaintiff reported experiencing pain and popping in his knee
while working on his motorcycle and described his knee pain as worse than his back pain.
Dr. Hershberger assessed Plaintiffs gait as "fairly good" in August. (AR 1403.) In
September, Plaintiff reported falling twice after his knee unexpectedly popped, that he
had difficulty getting up without the use of his arms, and that when he kneels it "feels like
kneeling [on] a rock or gravel." (AR 1393.) Plaintiff reported redness and swelling in his
knees after long bike rides or raking the lawn. Dr. Hershberger described Plaintiffs gait
as "satisfactory" in December. (AR 1375.) MRis taken throughout 2013 showed that
Plaintiffs left knee had mild degenerative changes, but were otherwise unremarkable and
revealed normal joint spaces with no effusion.
Mental Impairment Treatment History.
Plaintiff first sought treatment for mental health issues in January of 20 11 at a VA
medical facility in Vermont after an argument with his girlfriend. At that time, Benjamin
Wood, M.D. preliminarily assessed Plaintiff as having anxiety disorder with agoraphobia,
PTSD, panic disorder, obsessive compulsive disorder ("OCD") or obsessive compulsive
personality disorder ("OCPD"), and depression. Dr. Wood noted that further evaluation
would be required before a conclusive diagnosis could be made. Since that time, Plaintiff
has remained in continuous treatment and has been diagnosed with general anxiety
disorder ("GAD"), OCD, depressive disorder, personality disorder, and PTSD. He has
participated in both individual and group counseling sessions and is on prescription
medication, including Vicodin, Naproxen, Flexeril, and Tylenol with Codeine.
From 2011 through March of 2014, Plaintiff had regular appointments with
various treating physicians, psychologists, nurses, and social workers, including Dr.
Wood, William Tobey Horn, M.D., Ann Kraybill, LICSW, psychologists Sarah Kohl and
Fred Elliott, and advanced practice registered nurse Deborah Collins. Treatment records
from these sources indicate that Plaintiffs counseling sessions focused mainly on his
GAD, OCD/OCPD, and PTSD diagnoses, and reveal that Plaintiff has anger issues,
obsessive compulsions, and panic attacks. Plaintiff also experiences flashbacks, intrusive
thoughts, and hypervigilance related to a helicopter crash involving his friends during his
military service. Additionally, Plaintiff suffers from a number of phobias, including fear
of drowning and of heights, xenophobia, agoraphobia, claustrophobia, and social phobia.
VA Assessments of Plaintifrs Physical and Psychological Impairments.
In 2010, Plaintiff sought an increase in his 20% VA disability rating ( 10% for
back strain; 10% for limited flexion of knee) stemming from his physical impairments.
On October 26, 2010, the VA requested that Brian Carney, M.D. review Plaintiffs
medical records and meet with Plaintiff for a physical examination. In mid-November of
2010, Dr. Carney reviewed Plaintiffs medical records and performed a physical
evaluation to assess Plaintiffs claims of pain in both knees, and pain in his right ankle
and hip. Following this assessment, Plaintiffs VA disability rating for his back
(vertebral fracture or dislocation) was adjusted to 20%; Plaintiffs knee remained at 10%.
Plaintiff reported no trauma to any of his other joints. He was observed as walking with
an antalgic gait and it was recorded that his right shoe showed increased wear on the
outside edge of the heel.
Dr. Carney's review of Plaintiffs medical history revealed that Plaintiff had a
limitation on standing to thirty minutes, a functional limitation on walking to eighty
yards, and that Plaintiff always used a cane and a brace for assistance. In his physical
examination, Dr. Carney noted that Plaintiff exhibited tenderness, instability, and
guarding of movement in his right knee. Dr. Carney described the instability as
"moderate," but observed no grinding or other noises. (AR 316.) Dr. Carney concluded
that Plaintiffs right knee injury had a significant impact on Plaintiffs "usual occupation"
as a mechanic, including: decreased mobility, problems with lifting and carrying,
difficulty reaching, a lack of stamina, weakness or fatigue, decreased strength, and pain
in his lower extremities. (AR 319.)
With regard to Plaintiffs left knee, Dr. Carney observed tenderness without
instability. No grinding noises were noted. He recorded that there was "objective
evidence of pain [in Plaintiffs left knee] with active motion on the right side." (AR 317)
(capitalization omitted). Dr. Carney concluded that Plaintiffs left knee pain would have
the same impact on Plaintiffs work as a mechanic as his right knee pain. Dr. Carney
noted that although there was no objective evidence of pain with active motion on the left
side of Plaintiffs hip, there was after repetitive motion on his right side. He assessed a
decreased range of motion in both of Plaintiffs hips.
Dr. Carney opined that Plaintiffs left knee, right ankle, and right hip pain were all
either caused by or more likely than not caused by the strain stemming from Plaintiffs
altered gait due to his right knee pain. Dr. Carney explained that Plaintiffs altered gait
was a "plausible biological mechanism" by which Plaintiffs other joint pain would occur
and would increase the likelihood of strain and degenerative changes in Plaintiffs other
joints. (AR 327.) 1
On March 13, 2012, Plaintiff was evaluated by psychologist Gail Isenberg, Ph.D.
at the request of the VA after Plaintiff applied for an increase in his disability rating
following his PTSD diagnosis. Dr. Isenberg's evaluation resulted in an increase in
Plaintiffs VA disability rating for PTSD to 70%. In addition to PTSD, Dr. Isenberg
noted that Plaintiff had also been diagnosed with a personality disorder and alcohol
abuse. Plaintiff was found to have "[ o]ccupational and social impairment with
deficiencies in most areas, such as work, school, family relations, judgment, thinking
and/or mood," but she recorded that it was not possible to differentiate which portion of
these impairments was caused by Plaintiffs mental health diagnosis as opposed to his
personality disorder. (AR 740.)
During Dr. Isenberg's evaluation, Plaintiff described his childhood as happy and
reported that he had several close friends and enjoyed social activities, including boy
scouts, hunting and fishing, working on cars, and team sports. Dr. Isenberg noted that
this description varied from therapy records from 20 11 which revealed that Plaintiff had a
history of being bullied as a child. In the Navy, Plaintiff had many friends "that he felt
were like family," but noted that he preferred to be alone on occasion. (AR 742.)
Following his discharge from the Navy, Plaintiff was married twice. At the time
of the evaluation, Plaintiff had been in a relationship with his then-girlfriend for three
Dr. Carney also noted "other significant physical findings":
1. [Plaintiff] entered/exited exam room without assist device.
2. [Plaintiff] doffed/donned shoes, socks, pants, and shirt on own.
3. [Plaintiff] got on/off exam table on own.
4. [Plaintiff] stood with BILATERAL knee flexion of 10 degrees.
5. RIGHT knee supine passive extension 20 degrees short of neutral.
6. LEFT knee supine passive extension 5 degrees short of neutral.
7. Foot circumference- RIGHT= LEFT at 26cm.
8. Ankle circumference- RIGHT= LEFT at 28cm.
9. Calf circumference- RIGHT/42cm, LEFT/41cm.
10. Knee circumference- RIGHT= LEFT at 39cm.
11. Thigh circumference- RIGHT/47cm, LEFT/48cm.
years and had custody of one of his children. Dr. Isenberg observed that a psychotherapy
note from 20 11 stated that Plaintiff had reported being "in the process of contesting
paternity" with regard to one of his children. !d. Plaintiff reported having approximately
four friends in the community whom he met through work. He enjoyed activities with his
friends, including "riding motorcycles, watching movies, going to the gun range, and
getting together for fun." !d. Plaintiff was not involved in any service, spiritual, or civic
Plaintiff reported that in 1990, while still in the Navy, he was stationed aboard a
ship with helicopters and there was an accident in which a helicopter crashed into the
ocean. Plaintiff reported that for "[t]he next several days they retrieved parts of machine
and sailors" and that Plaintiff felt that the men had "died for nothing." (AR 744) (internal
quotation marks omitted). Plaintiff described that "[t]he brains looked like sushi." !d.
Thereafter, Plaintiff reported that he was in shock and wanted to be left alone and felt
"pissed off' and sad. (AR 745) (internal quotation marks omitted). Plaintiff further
reported experiencing nightmares of helicopter and airplane crashes and reported that his
then-girlfriend would sleep in another room because he would re-enact these events in his
sleep. Since that time, he has avoided helicopters and airplanes.
Dr. Isenberg concluded that the helicopter-crash experience was sufficient to
support a diagnosis ofPTSD, with symptoms of anxiety, chronic sleep impairment,
difficulty in adapting to stressful circumstances (including work or a work-like setting),
and "[t]eariness." (AR 747.) She cautioned that this diagnosis was based on Plaintiffs
self-report of the helicopter crash and his subsequent symptoms. In a subsequent
Dr. Isenberg also noted that "[o]f concern, however are the several discrepancies between the
information provided by [Plaintiff] in this exam and the mental health notes from providers at the
WRJ VA as well as a psychological report/evaluation completed May 1991 when [Plaintiff] was
on active duty." (AR 747.) Dr. Isenberg noted that a June 1990 mental health evaluation
revealed: Plaintiff had been dropped from "A-school due to his inability to maintain an
appropriate grade point average," (AR 742); Plaintiff "was suspended from school multiple times
for fighting and eventually dropped out of school in the lOth grade," (AR 743); and although
Plaintiff stated that boot camp "gave [him] a work ethic" and that he "succeeded," Plaintiffhad a
"number of disciplinary actions ... brought against him while in boot camp," (AR 744) (internal
quotation marks omitted). Plaintiff also stated that he had been sober since 2010, but a mental
consultation one month later, Dr. Isenberg wrote that "[w]hile [Plaintiff's] PTSD impacts
his ability to work with others, he has the skills and ability to work in environments that
allow for autonomy." (AR 694-95.) Dr. Isenberg also noted that Plaintiff's "long history
of conflicts with authority existed prior to the military and are, in part, consistent with his
[personality disorder]." (AR 695.)
November 2012 Non-Examining State Consultants' Assessments.
On November 16, 2012, State Agency Medical Consultant Elizabeth White, M.D.
conducted a physical RFC assessment. Dr. White noted that: (1) Plaintiff's medical
records from November of2010 through July of2011 showed that Plaintiff's gait was
described as normal or satisfactory; (2) x-rays of Plaintiff's knees showed early
degenerative joint disease; (3) Plaintiff had mild crepitation but no instability in his
knees; and ( 4) Plaintiff was able to toe and heel walk.
Dr. White opined that Plaintiff could lift ten pounds occasionally and less than ten
pounds frequently; could stand and/or walk about four hours during an eight hour work
day; could sit a total of six hours during an eight hour work day; had limited ability to
push and/or pull in his lower right extremities; could occasionally climb ramps/stairs,
stoop, kneel, crouch, and crawl; could never climb ladders, ropes, or scaffolds; and had
no limitations as to balance. Dr. White noted that, due to Plaintiff's "severe pulmonary
insufficiency," he must avoid all exposure to fumes, odors, dusts, gases, and poorly
ventilated areas. (AR 90.) She also stated that Plaintiff must avoid even moderate
exposure to hazards such as machinery and heights and that, due to his right knee
impairments, walking on uneven surfaces should be limited.
On November 22, 2012, State Agency Medical Consultant Ellen Atkins, M.D.
conducted a psychiatric review technique ("PRT") assessment and a mental RFC
assessment, based on her review of Plaintiff's medical records. In conducting the PRT
assessment, Dr. Atkins found that the totality of the evidence supported Plaintiff's
health note from January 18, 2011 stated that Plaintiff "drinks now from time to time 'with the
boys' when they come over, 112 gallon of jack, GF drinks beer. x1 DUI in VT. Seems to be
pattern of binge drinking as he sometimes goes for long periods of time without drinking." I d.
allegations of anxiety, depression, OCD, and PTSD, but that he nonetheless retained
significant residual capacities. Dr. Atkins indicated Plaintiff had "severe" mental
impairments of anxiety disorder, affective disorder, and personality disorder. (AR 86.)
Dr. Atkins concluded that Plaintiffs anxiety and affective disorders imposed "mild"
restrictions on his activities of daily living, and that he suffered from "moderate"
difficulties in maintaining social functioning and concentration, persistence, and pace.
(AR 87.) No repeated episodes of decompensation of extended duration were noted.
Dr. Atkins found that Plaintiff was "moderately limited" in his ability to maintain
attention and concentration for extended periods, work in coordination with or in
proximity to others without being distracted, complete a normal workday and workweek
without interruption from psychologically based symptoms, and perform at a consistent
pace without an unreasonable number and length of rest periods. (AR 91.) She opined
that "[e]pisodic exacerbations in anxiety/depressive symptoms can temporarily
undermine [Plaintiffs] cognitive efficiency," but that "[o]therwise, with social
limitations, [Plaintiff] can sustain [concentration and persistence] over two hour periods
over typical work day/week." !d. Dr. Atkins concluded that Plaintiff was "markedly
limited" in interacting appropriately with the general public, and "moderately limited" in
his abilities to accept instructions and respond appropriately to criticism from supervisors
and his ability to get along with coworkers or peers. !d. In support, Dr. Atkins explained
that although Plaintiff has reported difficulty with authority figures, he had been
appropriate with VA treatment providers. She also noted that although Plaintiff would do
best in a setting requiring little to no social interactions and should not engage with the
general public, he could manage brief, routine contact with supervisors and coworkers.
January 2013 Non-Examining State Consultants' Assessments.
After Plaintiff filed for reconsideration of the denial of his claim for benefits, on
January 17, 2013 State Agency Medical Consultants Geoffrey Knisely, M.D. and Roy
Shapiro, M.D. conducted a physical and mental RFC assessment. Plaintiff stated that
since August of 2012 he had been experiencing increased pain in his knee and lower
back; that his PTSD was worse; that he had been having more frequent panic attacks; and
that he had started missing therapy appointments because he could not leave his house.
Dr. Knisely conducted a physical RFC assessment based on a review of Plaintiffs
updated medical records. Records from October of2012 to January of2013 revealed
Plaintiff requested medication for pain relief; that Plaintiff walked with an antalgic gait;
that Plaintiff had decreased sensation to touch in his right toes; that Plaintiff had mild
crepitation; and that x-rays showed no degenerative joint disease and an MRI was normal
"other than minimal anterior edema." (AR 100.) Assessing the same criteria as Dr.
White, Dr. Knisely found the same exertional and postural limitations, except that he
found Plaintiff could stand and/or walk for five hours during an eight hour work day.
Dr. Shapiro conducted a PRT assessment and mental RFC assessment based on
Plaintiffs updated medical records. Records from August of 20 12 to January of 20 13
revealed that Plaintiff reported that his sleep and consequently his mood had improved
with better pain medication; he had quit anger management because it "[didn't] work for
him"; and he had walked out of a therapy session because he felt that his therapist had
kicked him out and he now wanted a new therapist. (AR 99.) Plaintiff reported being
irritable and angry and attending twice monthly support groups for veterans which he felt
took the place of a therapist. Dr. Shapiro recorded that Plaintiffs mental status and affect
were consistent with improving symptoms. Dr. Shapiro noted that although Plaintiff
exhibited anger in terminating his therapy sessions, "he did not lose his temper, and then
argued with mild rancor to be referred to a new therapist at this next session  showing
some anger control which seems to be his primary symptom." (AR 100.) Dr. Shapiro
assessed the same "severe" impairments and recorded identical PRT and mental RFC
assessments as Dr. Atkins.
Plaintiff's Testimony at the May 13,2014 Hearing.
Plaintiff testified that his last job was working the night shift at Wal-Mart stocking
shelves, which he took in order to avoid contact with people. Lifting pallets caused stress
on his back, and he would often require the assistance of his co-workers. Plaintiffs OCD
also caused him to work slowly, because he had to "make sure that everything was
straight, fronted, a straight line, everything is where it is." (AR 49.) Plaintiff stated that
he had memory issues which resulted in impaired ability to finish his work in a timely
manner because he would forget his supervisor's instructions. These memory issues
caused tension between him and his supervisors because he would repeatedly ask for
assistance. After one incident in which Plaintiff "kind of lost [his] cool," Plaintiff
terminated his employment at Wal-Mart. (AR 50.)
Plaintiff testified that he has problems concentrating: "I'll go into a room for
something and my girlfriend or my son will say something to me and I'll forget what I'm
looking for or what I came in there to do." (AR 51.) Plaintiff explained this happens on
a regular basis, and noted that he often would start a project but forget about it after an
interruption. Plaintiff denied any recent alcohol or illicit drug use.
Since 1991, Plaintiff has had intrusive thoughts related to the helicopter crash he
witnessed in which his best friend died. He explained that he has thoughts about this
event every night and that he is on medication for his PTSD. Sometimes, when driving at
night, Plaintiff sees his friend-" I don't know if it's my mind, I see like something flash
on the side of me down the road, something crosses the road in front of me." (AR 59.)
With regard to his OCD, Plaintiff explained that when he goes grocery shopping,
everything must be the same, whether canned goods or vegetables. He cannot tolerate
dented cans, peeled labels, or damaged products. He alphabetizes his cans and his
medicines and routinely maintains a particular order in how he puts on his shoes and
dresses himself. When Plaintiff goes out in public, he plans his exit strategy. He needs
to have a wall behind him. He experiences panic attacks about five to six times per week,
where his hands will sweat and his heart will pound and he will "just want to get away."
(AR 56.) These panic attacks last several hours, and can last all night.
Plaintiff has sleep apnea and only sleeps several hours per night. Plaintiff noted
that "the sleep is starting to take [its] toll" and that he is "losing energy [every day]."
(AR 71.) Plaintiff does not sleep in the same room as his girlfriend because he will "get
angry like [he's] fighting with somebody." (AR 59.) Sometimes he will reenact the
helicopter crash, and kick in his sleep.
Plaintiff testified that his back pain radiates down his left leg and causes his toes to
go numb. He often wears a back brace and takes prescription medication for his pain,
which does not completely alleviate it. Plaintiff can stand for twenty minutes before
having to sit because his knees will give out, and can sit for about one to two hours at a
time before his back starts to hurt. Plaintiff explained that leaning forward helps take
tension off his back. Plaintiff uses a cane and wears knee braces every day.
ALJ Levin's June 12, 2014 Decision.
In order to receive disability benefits under the SSA, a claimant must be
"disabled" 3 on or before the claimant's "date last insured." See 42 U.S.C. § 423(a)(l)(A).
A five-step, sequential-evaluation process determines whether a claimant is disabled:
( 1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a
"residual functional capacity" assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy
that the claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.
Mcintyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citations omitted). "The claimant
has the general burden of proving that he or she has a disability within the meaning of the
Act, and bears the burden of proving his or her case at steps one through four of the
sequential five-step framework established in the SSA regulations." Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks and citation omitted).
Disability is defined 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), 1382c(a)(3)(A). A claimant's "physical or mental
impairment or impairments" must be "of such severity" that the claimant is not only unable to do
any previous work but cannot, considering the claimant's 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), 1382c(a)(3)(B).
ALJ Levin determined Plaintiffs date last insured to be December 31, 2016. At
step one, ALJ Levin found that Plaintiff has not been engaged in substantial gainful
activity since July 30, 2011, Plaintiffs alleged disability onset date.
At step two, ALJ Levin found that Plaintiff suffers from the following severe
medical impairments: degenerative disc disease, osteoarthritis of the knees, obesity,
chronic obstructive pulmonary disease, anxiety, depression, and a personality disorder.
Although Plaintiff also alleged that he suffers from diabetes mellitus, hypertension, and
hearing loss, ALJ Levin determined these impairments were not severe because there was
insufficient evidence in the record to show any functional limitations over any continuous
twelve month period. At step three, ALJ Levin found that none of Plaintiffs
impairments, either singularly or combined, met or exceeded the Listings.
At step four, ALJ Levin determined Plaintiff to have the RFC to:
[P]erform light work as defined in [20 C.P.R. § 404.1567(b)] except he
requires a sit/stand option; cannot climb ladders, ropes, or scaffolds; can
occasionally climb ramps or stairs; can occasionally balance, stoop, kneel,
crouch or crawl; must avoid concentrated exposure to dust, gas, odors, and
fumes; must avoid all hazards; is able to maintain attention and
concentration for two hour increments throughout an eight hour work day;
must avoid high production rates; and must avoid social interaction with the
general public, but can sustain limited social interaction with coworkers
(AR 32.) In reaching this RFC, ALJ Levin considered Plaintiffs testimony, opinions
from the State Agency Medical Consultants, and Plaintiffs treatment records. Although
Plaintiffs medically determinable physical and mental impairments could reasonably be
expected to cause his alleged symptoms, ALJ Levin found Plaintiffs statements
concerning the intensity, persistence, and limiting effects of his symptoms were not
credible. ALJ Levin concluded that, in light of his RFC, Plaintiff was unable to return to
any past relevant work because Plaintiffs prior work experience required extended
contact with the general public.
At step five, considering Plaintiffs age, education, work experience, and RFC,
ALJ Levin found that there were jobs in significant numbers in the national economy that
Plaintiff could perform, including "marker" and "photocopy machine operator." (AR
36.) Accordingly, ALJ Levin concluded that Plaintiff was not disabled from July 30,
2011 through June 12, 2014, the date of his decision.
Conclusions of Law and Analysis.
Standard of Review.
In reviewing the Commissioner's decision, the court '"conduct[s] a plenary review
of the administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner's decision and if the correct legal
standards have been applied.'" Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013)
(quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). "It is the function of the
Secretary, not [the reviewing courts], to resolve evidentiary conflicts and to appraise the
credibility of witnesses, including the claimant." Aponte v. Sec y, Dep 't of Health &
Human Servs. of US., 728 F.2d 588, 591 (2d Cir. 1984) (quotation omitted) (alteration in
original); see also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) ("Where an
administrative decision rests on adequate findings sustained by evidence having rational
probative force, the court should not substitute its judgment for that of the
Commissioner.") (citation omitted).
The ALJ's decision must set forth findings with "sufficient specificity" to allow a
court to determine whether it is supported by substantial evidence. See Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (explaining that although an ALJ need not
reconcile "every conflict in a record," the "crucial factors" must be "set forth with
sufficient specificity to enable [the court] to decide whether the determination is
supported by substantial evidence").
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."'
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). "The court may not substitute its own judgment for that of
the Secretary, even if it might justifiably have reached a different result upon a de novo
review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984 ). "Even where the administrative record may also adequately support contrary
findings on particular issues, the ALJ's factual findings 'must be given conclusive effect'
so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).
ALJ Levin's Consideration, of Whether Plaintiff's Severe Impairments
Meet or Medically Equal the Severity of the Listings.
Plaintiff argues that ALJ Levin erred in determining that Plaintiffs mental health
impairments do not meet or equal the severity of the Listings 12.04 (Affective Disorders),
12.06 (Anxiety Related Disorders), or 12.08 (Personality Disorders) because the
Paragraph B requirements were not met. Plaintiff contends that the ALJ' s findings in
support of this conclusion are not supported by substantial evidence in the record.
Plaintiff further contends that his medical records provide substantial evidence for
finding that his PTSD is disabling under the Paragraph B requirements. In addition to
these alleged errors, Plaintiff argues that ALJ Levin "completely failed" to consider his
OCD diagnosis and that this failure requires a remand.
The Commissioner contends that the ALJ properly assessed the evidence in
concluding that the requirements of the Listings were not satisfied and that Plaintiff did
not meet his burden of proof. The Commissioner further contends that although ALJ
Levin did not expressly cite to specific evidence regarding Plaintiffs OCD diagnosis, the
record is sufficient to permit this court to glean the ALJ' s rationale.
At step three, an ALJ is required to determine whether a claimant has an
impairment or combination of impairments that meet or equal the criteria for an
impairment listed in the regulations. "These are impairments acknowledged by the
[Commissioner] to be of sufficient severity to preclude gainful employment. If a
claimant's condition meets or equals the 'listed' impairments, he or she is conclusively
presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022
(2d Cir. 1995).
To meet the requirements of Listing 12.04, a claimant must demonstrate the
"[m]edically documented persistence, either continuous or intermittent," of one of the
symptoms listed in Paragraph A and at least two of the following from Paragraph B:
(1) marked restriction in activities of daily living; (2) marked difficulties in social
functioning; (3) marked difficulties in maintaining concentration, persistence, and pace;
or (4) repeated episodes of decompensation, each of extended duration. See 20 C.F.R.
§Pt. 404, Subpt. P, App. 1, § 12.04(A)-(B). "Marked" means "more than moderate but
less than extreme." !d. § 12.00(C) ("Assessment of severity."). "A moderate limitation
may arise when several activities or functions are impaired, or even when only one is
impaired, as long as the degree of limitation is such as to interfere seriously with [a
claimant's] ability to function independently, appropriately, effectively, and on a
sustained basis." !d.
Alternatively, under Paragraph C of Listing 12.04, a claimant must show a
"[ m]edically documented history of a chronic affective disorder of at least two years'
duration that has caused more than a minimal limitation of ability to do basic work
activities," with at least one of the following: (1) repeated episodes of decompensation,
each of extended duration; 4 or (2) a residual disease process that resulted in such a
marginal adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate; or (3) a current
history of one or more years' inability to function outside a highly supportive living
environment. !d. § 12.04(C).
The regulations explain that:
Episodes of decompensation are exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning, as manifested
by difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace.
The term repeated episodes of decompensation, each of extended duration in these
listings means three episodes within 1 year, or an average of once every 4 months,
each lasting for at least 2 weeks.
20 C.F.R. §Pt. 404, Subpt. P, App. 1, § 12.00(C)(4).
To satisfy the requirements of Listing 12.06, a claimant must show "[m]edically
documented findings" evidencing at least one of the specific symptoms set forth in
Paragraph A, and at least two of the requirements from Paragraph B, which are the same
as in Listing 12.04. 20 C.F.R. §Pt. 404, Subpt. P, App. 1, § 12.06(A)-(B). IfParagraph
B' s criteria are not satisfied, a claimant must show the specific symptoms listed in
Paragraph A together with Paragraph C's requirement of demonstrating a "complete
inability to function independently outside the area of [the claimant's] home." !d. at
To meet Listing 12.08's requirements, a claimant must show "[d]eeply ingrained,
maladaptive patterns of behavior" associated with one of the symptoms listed in
Paragraph A, and at least two of the requirements of Paragraph B, which are the same as
in Listings 12.04 and 12.06.
ALJ Levin's analysis of whether Plaintiffs mental impairments, considered singly
or in combination, met or medically equaled Listings 12.04, 12.06, or 12.08 focused
primarily on whether the Paragraph B factors had been met: ( 1) marked restriction in
activities of daily living; (2) marked difficulties in social functioning; (3) marked
difficulties in maintaining concentration, persistence, and pace; or (4) repeated episodes
of decompensation, each of extended duration. 5 ALJ Levin concluded that Plaintiffs
"mental impairments do not cause at least two 'marked' limitations or one 'marked'
limited and 'repeated' episodes of decompensation, each of extended duration." (AR 31.)
In support of this conclusion, ALJ Levin found that that Plaintiff"has ... reported
that he maintains a tropical fish tank, watches television, and uses a computer to engage
with his medical providers." (AR 31.) Plaintiff contends these findings are without
ALJ Levin appears to have concluded that Plaintiff satisfied the Paragraph A criteria for all
three Listings because he did not address that issue and because, had Plaintiff failed to satisfy the
Paragraph A criteria, there would be no need to address Paragraph B.
evidentiary support and, in any event, are insufficient to support a conclusion that he can
perform any job in the national economy. 6
ALJ Levin further determined that Plaintiffs mental impairments impose a "mild"
limitation on his activities of daily living. 7 ALJ Levin found that Plaintiff is able to care
for his own needs, maintain adequate hygiene, and manage his daily activities. (AR 21618) (Plaintiff reported that his "daily activities" consist of taking care of his son (cooking,
laundry, and taking him places), caring for his cats, cooking meals for himself twice a
day, cleaning, doing laundry, doing yard work, shopping for food and clothes, and paying
bills). The ALJ further found that Plaintiff works on cars, plays acoustic guitar, works on
and rides his motorcycle, hunts, and practices with firearms at a shooting range. (AR
219) (watches TV); (AR 565) (plays acoustic guitar); (AR 571) (Plaintiff attended
"shooting range"). The ALJ's findings are thus supported by sufficient evidence in the
Plaintiffs argument that the ALJ' s findings have no bearing on whether he could
perform a reasonable number of jobs in the national economy is misplaced. At step three,
the issue is whether a claimant's impairments require a conclusion that he or she is
disabled. See Dixon, 54 F .3d at 1022 (explaining that "[i]f a claimant's condition meets
or equals the 'listed' impairments, he or she is conclusively presumed to be disabled and
entitled to benefits"). ALJ Levin was not required at step three to consider whether there
are sufficient jobs in the national economy for which the identified activities are relevant.
Plaintiffs challenge to ALJ Levin's finding that Plaintiffs "medical records
document that he has difficulty with anger management, but that he has been able to
Substantial evidence in the record supports ALJ Levin's findings that Plaintiff engages in these
activities. See AR 1244 (Plaintiff reported to Fred Elliott that his "leisure activities" consist of
tropical fish, watching television, riding his motorcycle, and hunting); AR 1050 (e-mail from
Plaintiffto his primary care provider thanking the hospital staff for assisting him at a walk-in
visit and confirming an upcoming appointment).
The regulations define activities of daily living to include "adaptive activities such as cleaning,
shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring
appropriately for your grooming and hygiene, using telephones and directories, and using a post
office." See 20 C.F.R. §Pt. 404, Subpt. P, App. 1, § 12.00(C)(l).
engage in warrior retreat training for combat veterans, sustain romantic relationships, and
socialize with friends" fares no better. (AR 31.) Plaintiff contends that the evidence
cited by ALJ Levin in support ofthese findings "state[s] nothing of the kind." (Doc 12-1
at 9.) Plaintiff also argues that the evidence relied upon by ALJ raises questions about
the fairness of the ALJ' s decision.
Under the second Paragraph B criteria, ALJ Levin analyzed Plaintiff's "social
functioning," which is defined as a claimant's "capacity to interact independently,
appropriately, effectively, and on a sustained basis with other individuals" and "includes
the ability to get along with others, such as family members, friends, neighbors, grocery
clerks, landlords, or bus drivers." 20 C.P.R.§ Pt. 404, Subpt. P, App. 1, § 12.00(C)(2).
ALJ Levin determined that the "evidence as a whole establishes [a] moderate degree of
limitation in [Plaintiff's] social functioning." (AR 31.) In addition to the cited activities
that Plaintiff now challenges, 8 ALJ Levin found that Plaintiff was able to respond
appropriately, carry on a conversation, and did not demonstrate disruptive behavior. The
ALJ also found that although Plaintiff testified that his activities involve little interaction
with other individuals and that he preferred to stay home, Plaintiff was able to respond
appropriately and maintain a conversation at the hearing, he "does not exhibit any great
The ALJ cited evidence to support his findings that Plaintiff engaged in warrior retreat training,
see AR 590 (reporting that Plaintiff attended a five-day retreat at "The Warrior Connection"
where he discussed, in part, his desire not to be angry) and that Plaintiff socializes with friends,
see AR 580 (stating that Plaintiff discussed spending time with a female friend over the
weekend); AR 742 (Plaintiff informed Dr. Isenberg that he enjoyed activities with his friends,
including "riding motorcycles, watching movies, going to the gun range, and getting together for
fun"). Plaintiff correctly points out that AR 1242 discusses Plaintiffs "struggles with OCD" and
his obsession with counting and aligning items in alphabetical order. It, however, also provides
"substantial evidence" for ALJ Levin's finding that Plaintiff suffers from anger issues. See
AR 1242 (Plaintiff reported his "main problem" as "coping with stuff' and that he "gets angry
with 'stupid people"' and that he "gets angry when people do something he has asked them not
to"); see also AR 891 (at his first meeting with Dr. Wood, Plaintiff stated: "I have issues with
anger" and that he "wants help specifically for his anger issues"). There is also evidence in the
record that Plaintiff has engaged in several long-term romantic relationships. See AR 588 (in
July of2012 Plaintiff discussed break-up with his girlfriend of two years with therapist); AR
13 81 (in November of 2013 Plaintiff discussed celebrating his one year anniversary with his
girlfriend and noted that the relationship was "going well").
limitation in one-to-one interaction and does not have anti-social behavior patterns, as
evidenced by his ability to go out when required," and he has advocated for his son by
meeting with his son's teachers. !d. Because ALJ Levin's findings are supported by
substantial evidence in the record, there is no factual basis to challenge the fairness of
ALJ Levin's determination. This remains true even if the court could analyze the same
evidence and reach a different conclusion. 9
Finally, there is no merit to Plaintiffs argument that ALJ Levin "completely
failed" to consider Plaintiffs OCD diagnosis. At the administrative hearing, ALJ Levin
questioned Plaintiff and his attorney regarding whether degenerative disc disease,
osteoarthritis, obesity, COPD, anxiety, depression, personality disorder, diabetes, hearing
loss, and hypertension were the major impairments in Plaintiffs medical records.
Plaintiff responded that he also suffers from OCD, to which ALJ Levin responded,
"Okay. That would kind of fall under the anxiety heading." (AR 48.) ALJ Levin
proceeded to consider Listing 12.06 which covers anxiety related disorders. Accordingly,
although ALJ Levin did not expressly address Plaintiffs OCD, the record reflects that he
considered it in his analysis. 10 See Brault, 683 F .3d at (explaining that an "ALJ's failure
to cite specific evidence does not indicate that such evidence was not considered"); see
also Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) ("When ... the evidence of
record permits us to glean the rationale of an ALJ's decision, we do not require that he
See Genter, 606 F.3d at 49 ("Even where the administrative record may also adequately support
contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive
effect' so long as they are supported by substantial evidence.") (quoting Schauer, 675 F.2d at
57); see also Brault v. Soc. Sec. Admin., Comm 'r, 683 F.3d 443, 448 (2d Cir. 2012) (explaining
that "[a]lthough required to develop the record fully and fairly, an ALJ is not required to discuss
every piece of evidence submitted" and "[a]n ALJ's failure to cite specific evidence does not
indicate that such evidence was not considered") (internal citations and quotation marks
omitted); Valente, 733 F.2d at 1041 (explaining that the Commissioner's judgment on the basis
of her factual determinations "is entitled to considerable deference" and the court may not
substitute its own judgment "even if it might justifiably have reached a different result upon a de
In determining Plaintiffs RFC, ALJ Levin relied upon exhibits 2F, 13F, 14F, 18F, and 19F.
Exhibits 18F and 19F contain, in large part, the treatment records of Dr. Elliott, who, from May
of2013 to March of2014, was Plaintiffs treating psychologist for Plaintiffs OCD and PTSD.
have mentioned every item of testimony presented to him or have explained why he
considered particular evidence unpersuasive or insufficient to lead him to a conclusion of
ALJ Levin's Assessment of Plaintiff's RFC.
Plaintiff raises several challenges to ALJ Levin's determination of Plaintiffs RFC,
stating that ALJ Levin should have credited Plaintiffs allegations of disabling back and
knee pain because they are supported by the objective medical evidence. He also points
out that ALJ Levin failed to discuss the VA' s disability determination. 11
Alternatively, Plaintiff argues that ALJ Levin erred in applying the factors set
forth in Social Security Ruling 96-7p in concluding that Plaintiffs allegations of
disabling back and knee were not credible. Plaintiff further contends there is no support
for ALJ Levin's RFC determination that Plaintiff is able to maintain concentration for
two hour increments in an eight hour work day.
In evaluating whether a claimant is disabled, an ALJ must determine whether a
claimant who has severe impairments nonetheless has the RFC to perform available
work. See 20 C.F .R. § 404.1520. "RFC is not the least an individual can do despite his
Plaintiff notes that the VA has determined Plaintiffs overall service-connected disability
rating to be 90%-70% for PTSD, 20% for physical ailments. In the Second Circuit, the VA's
determination of disability, while not binding on the Commissioner, is entitled to "some weight"
and should be considered. See Cutler v. Weinberger, 516 F.2d 1282, 1285-86 (2d Cir. 1975); see
also McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002) ("No circuit has held that an
ALJ is free to disregard a VA disability rating."). ALJ Levin did not expressly address the VA's
service-connected disability ratings in his decision although it is clear from the transcript of the
hearing that he was aware of them. See AR 4 7 ("So the impairments that I see in the record
for--oh, I also one other thing. I also see that you have a VA disability rating of 90% for PTSD,
is that correct?"). ALJ Levin also considered the evidence underlying the VA's disability
determinations. See AR 35 (discussing Dr. Isenberg's PTSD evaluation of Plaintiff as part of the
VA's disability evaluation). Any error in ALJ Levin's failure to specifically address the VA's
disability determination was therefore harmless. See Pelkey v. Barnhart, 433 F.3d 575, 579 (8th
Cir. 2006) ("Although he did not specifically mention the 60 percent figure, the ALJ did not err
because he fully considered the evidence underlying the V A's final conclusion that Pelkey was
60 percent disabled."); Blessing v. Colvin, 2015 WL 7313401, at* 10 (N.D.N.Y. Nov. 19, 2015)
("However, having carefully considered the circumstances ofthis case (in which the ALJ fully
considered the underlying evidence for the VA's determination), and having found that the
ALJ's decision is supported by substantial evidence, the Court finds any error to independently
assign the V A's determination a specific weight to be harmless.").
or her limitations or restrictions, but the most." SSR 96-8p, 1996 WL 374184, at *1 (July
2, 1996). In making this determination, an ALJ is required to consider the claimant's
reports of pain and other limitations, but is not required to accept the claimant's
subjective complaints without question. Instead, an ALJ may exercise discretion in
weighing the credibility of the claimant's testimony in light of other evidence in the
record. See Genier, 606 F.3d at 49.
SSA regulations provide that when an ALJ determines that a claimant suffers from
a medically determinable impairment that could reasonably be expected to produce the
symptoms alleged, the ALJ must next consider the extent to which the claimant's alleged
symptoms can reasonably be accepted as consistent with the evidence of record. See
20 C.P.R.§ 404.1529; see also SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996).
Where a claimant's symptoms are not substantiated by objective medical evidence, the
ALJ "must make a finding on the credibility of the individual's statements based on a
consideration of the entire case record." !d. at *2. 12 "[T]he ALJ's reasons for
discounting a claimant's subjective complaints must be set forth with 'sufficient
specificity to enable [the district court] to decide whether the determination is supported
by substantial evidence."' Castellano v. Astrue, 2008 WL 2951925, at *7 (S.D.N.Y. July
30, 2008) (quoting McClain v. Barnhart, 299 F. Supp. 2d 309, 323-24 (S.D.N.Y. 2001)).
In this case, although Plaintiff was diagnosed with degenerative disc disease and
osteoarthritis of the knees, which are complicated by his mild obesity, ALJ Levin
determined that Plaintiffs allegation of severe physical restrictions from these
impairments was not supported by the objective evidence in the record and that Plaintiffs
The regulations provide several factors which the ALJ must consider including: the claimant's
daily activities; the location, duration, frequency, and intensity of the pain or other symptoms;
factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side
effects of any medication taken to alleviate the pain or other symptoms; treatment, other than
medication, to relieve the pain or other symptoms; any measures other than treatment used to
relieve pain or other symptoms; and any other factors concerning the individual's functional
limitations due to pain or other symptoms. See 20 C.P.R.§ 404.1529(c)(3)(i)-(vii); see also SSR
96-7p, at *3.
statements concerning the intensity, persistence and limiting effects of these alleged
symptoms were not entirely credible.
In determining that the objective medical evidence did not support Plaintiffs
allegations of pain, ALJ Levin found that radiographic evidence of Plaintiffs back and
knees revealed only mild degenerative changes. The ALJ further noted that although
Plaintiff testified that he requires a cane due to knee pain, the medical records do not
establish that a cane was prescribed. 13 Additionally, ALJ Levin found that Plaintiff was
consistently noted to have a satisfactory gait, was able to heel and toe walk, and retained
Plaintiff testified that he can only sit for short periods of time; however, he
reported no difficulties in traveling to Florida. Similarly, although he complained of
increased symptoms after long bike rides and raking the lawn, he did not forego those
activities. Plaintiffs treatment records further revealed that he was able to work on cars,
play acoustic guitar, ride and work on his motorcycle, go hunting, and practice with
firearms at a shooting range, which ALJ Levin found "evidences an ability to perform at
least light level exertional work activities." (AR 34.) Plaintiff reported that his pain was
well managed with Vicodin and other medications. ALJ Levin also relied on Plaintiffs
statement that he would look for work if he was denied disability benefits. The ALJ's
findings are supported by substantial evidence in the record and, in tum, support his
determination that the objective medical evidence in the record does not substantiate
Plaintiffs allegations of disabling back and knee pain. Indeed, Plaintiff does not contend
otherwise. Rather, he asserts that the record establishes only the continued worsening of
his symptoms. This is not a basis for reversal. See Genier, 606 F .3d at 49 ("Even where
the administrative record may also adequately support contrary findings on particular
During a primary care visit on March 8, 2010 in which it was noted that Plaintiff was
"[w]alking stiff legged with limp" and that his knee was "very tender diffusely to even light
touch," treatment notes state: "Brace and cane ... provided." (AR 512.) Although perhaps a
matter of semantics, ALJ Levin's finding that Plaintiff was never "prescribed" a cane appears to
issues, the ALJ's factual findings 'must be given conclusive effect' so long as they are
supported by substantial evidence.").
Because ALJ Levin found Plaintiffs allegations about his symptoms were not
supported by objective medical evidence, the ALJ was required to make a finding
regarding Plaintiffs credibility and give specific reasons therefor. See SSR 96-7p, at *3
("Because symptoms, such as pain, sometimes suggest a greater severity of impairment
than can be shown by objective medical evidence alone, any statements of the individual
concerning his or her symptoms must be carefully considered if a fully favorable
determination or decision cannot be made solely on the basis of objective medical
evidence."). ALJ Levin satisfied this standard by explaining that "[t]he discrepancies
between [Plaintiffs] allegations and the objective medical record, supported by the
treatment records of [Plaintiffs] physicians and the diagnostic evidence, cannot be
resolved in [Plaintiffs] favor based on this record." (AR 34.) He discussed Plaintiffs
activities and concluded that "the nature, duration and frequency of [Plaintiffs] pain
resulted in only minimal actual functional limitation based on his own description of his
daily activities and the treatment notes of his examining physicians." ld. ALJ Levin's
decision reveals that he considered all of the evidence in the record and evaluated
appropriate factors. To the extent Plaintiff argues that ALJ Levin should have considered
each factor under SSR 96-7p separately, he was not required to do so. See Blasco v.
Comm 'r ofSoc. Sec., 2014 WL 3778997, at *3 (N.D.N.Y. July 31, 2014) ("Although the
ALJ did not undertake a step-by-step exposition of the factors articulated in 20 C.F .R.
§ 404.1529(c), '[f]ailure to expressly consider every factor set forth in the regulations is
not grounds for remand where the reasons for the ALJ' s determination of credibility are
sufficiently specific to conclude that he considered the entire evidentiary record.'")
(quoting Judelsohn v. Astrue, 2012 WL 2401587, at *6 (W.D.N.Y. June 25, 2012)).
As part of Plaintiffs RFC, ALJ Levin determined that based on Plaintiffs daily
activities he "is able to maintain attention and concentration for two hour increments
throughout an eight hour work day." (AR 32.) Plaintiff alleges this determination is
"created out ofwhole cloth" and has no basis in the evidence. (Doc. 12-1 at 14.)
However, ALJ Levin's finding is not clearly erroneous and is supported by the opinion of
Dr. Atkins that, although Plaintiff was "moderately limited" in his ability to maintain
attention and concentration for extended periods, Plaintiff could sustain concentration
and persistence over two hour periods during a typical work day. (AR 91.) Because
substantial evidence in the record supports ALJ Levin's RFC determination that Plaintiff
is limited to maintaining attention and concentration for two hour increments throughout
an eight hour work day, that determination is not grounds for reversal.
Whether ALJ Levin Demonstrated Bias Toward Plaintiff.
Plaintiff contends that the number and extent of ALJ Levin's alleged errors
supports a conclusion that he was biased against him, 14 necessitating a remand to a
different ALJ. The Commissioner responds that Plaintiff has not met his burden of
establishing that ALJ Levin "engaged in conduct so extreme that it deprived the hearing
of the fundamental fairness mandated by due process." (Doc. 17 at 19.)
A claimant seeking administrative review of an application for DIB benefits is
entitled to a hearing before an impartial and unbiased ALJ. See Schweiker v. McClure,
456 U.S. 188, 195 (1982) ("[D]ue process demands impartiality on the part ofthose who
function in judicial or quasi-judicial capacities."). There is a presumption that
administrative adjudicators, such as ALJs, are unbiased, id. at 195-96, and that they
exercise their decision-making authority with honesty and integrity. See Withrow v.
Larkin, 421 U.S. 35, 47 (1975). To rebut this presumption, a plaintiff must demonstrate a
conflict of interest or some other specific reason for disqualification. See Schweiker,
456 U.S. at 195. A plaintiff may also show that the ALJ engaged in conduct so extreme
that it deprived the hearing of the fundamental fairness mandated by due process. See
Liteky v. United States, 510 U.S. 540, 555-56 (1994). "Such impermissible conduct must
be clear from the record and 'cannot be based on speculation or inference."' Pabon v.
Plaintiff cites to an array of alleged legal errors, including those discussed supra, as well as
claims, without adequate explanation, that ALJ Levin failed to comply with the treating
physician's rule and failed to comply with his obligation to fully develop the record. Plaintiff
also alleges that "the tone of the hearing was adversarial," and that ALJ Levin "cherry picked"
and "falsified" portions of the record. (Doc. 12-1 at 21.)
Comm 'r ofSoc. Sec., 2015 WL 4620047, at *5 (S.D.N.Y. Aug. 3, 2015), report and
recommendation adopted sub nom. Pabon v. Colvin, 2015 WL 5319265 (S.D.N.Y. Sept.
11, 2015) (quoting Card v. Astrue, 752 F. Supp. 2d 190, 191 (D. Conn. 2010)). Alleged
legal errors are insufficient to establish bias. See Lebron v. Colvin, 2015 WL 1223868, at
*24 (S.D.N.Y. Mar. 16, 2015) ("Legal error alone is insufficient to support a finding of
bias."). "For this reason, a claimant bringing a due process claim faces a difficult
burden." Pabon, 2015 WL 4620047, at *5.
Plaintiff has failed to meet this "difficult burden." There is no indication that
Plaintiff or his counsel previously voiced any concern that the May 13, 2014 hearing was
"adversarial." Plaintiffs arguments rely to the contrary only on conclusory contentions
of bias without citation to the record. Although Plaintiff correctly observes that an ALJ
has an obligation to develop the record, he provides no evidence that the ALJ failed to
fulfill this obligation or that he "cherry-picked" or "falsified" facts.
Whether Evidence From March of 2016 Requires a Remand.
Finally, Plaintiff argues that a one-page letter dated March 16,2016 from one of
Plaintiffs medical service providers who began treating Plaintiff for PTSD on December
3, 2015 is grounds for a remand. The letter provides:
We began individual treatment on December 3, 2015 for PTSD.
Specifically, you report rumination, a high level ofhypervigilance, arousal,
and re-experiencing, meeting criteria for PTSD. You report challenges
with interpersonal situations, including when talking with individuals in
authority who may address you gruffly, very likely increasing the level of
the above criteria. We have talked about the effort you apply to manage
your own irritability and reactivity in day to day situations. Given the
nature of your profession as a master mechanic, the sounds, interactions
and other environmental situations, you report that you re-experience
traumatic situations from your military service. Physical pain also
reportedly adds to the challenges in managing consistent, reliable keeping
to a schedule for work, as well as personal activities. You report that you
use alcohol with some increase during particularly stressful situations, but
also attend AA given your awareness of the co-morbidity of alcohol use
and PTSD. You also state that you carefully choose where you go, given
the limited settings that you feel safe in and can continue self-managing
outbursts, abrupt changes in mood and perception and reactivity while
Given the information you have shared in our meetings twice a month, and
the likelihood that you cannot consistently manage symptoms of active
PTSD, it is my belief that you meet criteria for unemployability, but also
that it is not unreasonable to ask that VBA consider an increase to 100%
Title 42, Section 405(g) provides that "[t]he court ... may at any time order
additional evidence to be taken ... , but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding." Because the letter is dated two years after ALJ
Levin's decision, the evidence is "new" and Plaintiff had "good cause" for not submitting
it to the ALJ. See Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) ("Because the new
evidence submitted ... did not exist at the time of the ALJ's hearing, there is no question
that the evidence is 'new' and that 'good cause' existed for [plaintiffs] failure to submit
this evidence to the ALJ.").
New evidence is "material" if it is both (1) "relevant to the claimant's condition
during the time period for which benefits were denied" and (2) "probative." Tirado v.
Bowen, 842 F.2d 595, 597 (2d Cir.1988) (internal quotation marks omitted). "The
concept of materiality requires, in addition, a reasonable possibility that the new evidence
would have influenced the [Commissioner] to decide claimant's application differently."
In the instant case, the March 2016 letter is not material because it is not relevant
as to Plaintiffs condition during the time period for which benefits were denied, July of
2011 through June 12, 2014, and it is not probative of Plaintiffs PTSD condition as it
existed then. The letter does not suggest that its subject matter relates to a time period
earlier than that for which service was provided (December of 2015 through March of
2016) and it does not indicate that Plaintiffs condition was more serious than previously
thought, nor does it reveal any previously unknown impairments. It does not contain any
new diagnostic or evaluative evidence but merely summarizes information Plaintiff
provided to his treatment provider in December of 20 15 regarding his symptoms at that
time. There is thus no "reasonable probability" that the letter would influence the
Commissioner to reevaluate Plaintiffs DIB claim for the period extending from July of
2011 through June of2014. Remand on this basis is therefore not warranted. Cf
Pollard, 377 F.3d at 193-94 (remanding for consideration of"new evidence" where the
evidence revealed that the claimant's "condition was far more serious than previously
thought and that additional impairments existed when [the claimant] was younger" and
that consideration of this new evidence created "at minimum a reasonable possibility"
that the ALJ would find the claimant more limited under the regulations than without the
For the foregoing reasons, the court DENIES Plaintiffs motion to reverse (Doc.
12) and GRANTS the Commissioner's motion to affirm (Doc. 17).
Dated at Burlington, in the District of Vermont, this
26 day of January, 2017.
Christina Reiss, Chief Judge
United States District Court
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