Sanborn v. Commissioner of Social Security
OPINION AND ORDER Denying 5 Plaintiff's Motion for an Order Reversing the Commissioner's Decision and Granting 6 the Commissioner's Motion to Affirm. Signed by Chief Judge Christina Reiss on 3/8/2017. (pac)
Us. Q!Sl EICT COURT
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
JEFFREY ROY SANBORN,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
20\lMAR -8 Pt1 1: 46
Case No. 2:16-cv-132
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER
REVERSING THE COMMISSIONER'S DECISION AND GRANTING THE
COMMISSIONER'S MOTION TO AFFIRM
(Docs. 5 & 6)
Plaintiff Jeffrey Roy Sanborn is a claimant for Social Security Disability Insurance
("SSDI") and Supplemental Security Income ("SSI") benefits under the Social Security
Act. 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. On October 4, 2016, Plaintiff
filed his motion to reverse (Doc. 5). On December 2, 2016, the Commissioner moved to
affirm (Doc. 6), whereupon the court took the pending motions under advisement.
Plaintiff identifies the following errors in the Commissioner's decision: ( 1) the
Administrative Law Judge ("ALJ") improperly evaluated the medical evidence by
disregarding Plaintiffs medical records created prior to November 28, 2012 and failing
to identify fibromyalgia as a severe impairment; (2) the ALJ misapplied the treating
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)(l)(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).
physician rule in evaluating the opinions of Karen Huyck, M.D.; (3) the ALJ improperly
accorded no weight to Plaintiffs Functional Capacity Evaluation ("FCE"); (4) the ALJ
erred in according significant weight to the opinions of Carl Runge, M.D.; and (5)
substantial evidence did not support the ALJ's finding that Plaintiffs objective clinical
presentation was "consistently quite mild."
James Torrisi, Esq. represents Plaintiff. Special Assistant United States Attorney
Benil Abraham represents the Commissioner.
Plaintiff applied for SSDI and SSI benefits on March 13 and March 21, 2014,
respectively, alleging a disability onset date ofNovember 27, 2013, which he later
amended to November 28, 2013. The Commissioner denied Plaintiffs claims initially,
and upon reconsideration. Plaintiff thereafter filed a timely request for a hearing before
At a September 16, 2015 video conference hearing before ALJ Thomas Merrill,
Plaintiff appeared with Attorney Torrisi, and testified. Vocational expert ("VE")
Christine Spaulding also testified. In a decision dated October 29, 2015, ALJ Merrill
found that Plaintiff did not establish that he was disabled within the meaning of the
Social Security Act. Plaintiff filed a timely appeal on December 21, 2015, which the
Appeals Council denied on March 25, 2016. As a result, ALJ Merrill's decision stands as
the Commissioner's final decision.
Plaintiff is a right-handed male with a high school education who was born in
1962. He lives alone and worked as a satellite dish installer from April 2002 to
December 2010, and as a real estate sales agent from March 2013 to November 2013.
During the latter time period, his annual gross income was approximately $21,000 but he
did not make a profit due to start-up costs and other expenses he incurred. Plaintiff last
worked on November 28, 2013.
Plaintifrs Medical History.
In January 2010, Plaintiff sustained injuries following a fall at work and
underwent surgery in July 2010 to repair a "massive" left rotator cuff tear. (AR 402.) He
thereafter complained of persistent neck pain, and began receiving treatment from several
medical providers at Dartmouth-Hitchcock Medical Center ("Dartmouth-Hitchcock"),
including cervical medial branch blocks. On October 28, 2010, Dr. Huyck, an
occupational medicine specialist, recorded that Plaintiffs neck pain "seems most
consistent with a whiplash-type injury with cervical and posterior shoulder muscle spasm
and likely cervical facet-mediated pain." (AR 400.) She noted that the medial branch
blocks had not proven effective. On November 15, 2010, Dr. Huyck prescribed Vicodin
and referred Plaintiff to the Dartmouth-Hitchcock Pain Clinic for a comprehensive pain
On November 17, 2010, Gilbert Fanciullo, M.D., a pain specialist at DartmouthHitchcock, treated Plaintiff. Dr. Fanciullo recorded a "[ c]ervical soft tissue injury" and
that there was "some evidence of a C6 radiculopathy, but his symptoms are really in a C7
or C8 distribution and not C6, so I am not sure [i]fthis has relevance." (AR 405.) Dr.
Fanciullo opined that Plaintiff was a candidate for cervical epidural steroid injection, and
should continue with physical therapy. Dr. Fanciullo noted that he would "treat
[Plaintiffs] depression first and [Plaintiff] should continue to try to be as active as
possible. He needs somehow to get motivated to do more around the house than sitting
around, and hopefully his physical therapist will be able to help him accomplish this." !d.
In June 2011, Plaintiffunderwent an MRI on his left shoulder, which revealed "a
recurrent full-thickness rotator cufftear." (AR 361.) Dr. Huyck recorded on January 24,
2012 that Plaintiff was deciding whether to undergo revision surgery, and had "no
changes in symptoms other than more neck pain with cold weather." (AR 366.) On June
20, 2012, Dr. Huyck documented that Plaintiff"has constant, non radiating neck pain, left
shoulder pain, left wrist and elbow pain, paresthesias in the ulnar digits bilaterally. He
has some right shoulder pain now as well. He is using Elavil and Vicodin. Sleep has not
been good lately because of pain." (AR 371.)
Beginning in February 2014, Plaintiff received medical treatment and therapy at
North Country Hospital. A lumbosacral spine MRI performed on March 6, 2014
indicated "mild broad-based disk protrusion at L5-S 1 level of no consequence as the
thecal sac is quite diminutive at this level" and was "[o]therwise unremarkable." (AR
454.) An x-ray of Plaintiffs right hip and pelvis revealed no acute bony abnormality but
Plaintiff visited Rizwan Haq, M.D. at North Country Hospital on June 10, 2014,
complaining of intermittent lower back and right hip pain that radiated to his lower
extremity. Dr. Haq opined that Plaintiff was awake and alert, answered his questions
appropriately, and that his sensation, coordination, gait and stance appeared normal.
Plaintiff exhibited full strength in his upper and lower extremities. Dr. Haq noted that
Plaintiff exhibited normal motor functions and that his cranial nerves were normal, but
that Plaintiff had "mild tenderness in the midline lumbar region but not on the sides."
(AR 479.) Dr. Haq reviewed the lumbar MRI scan and opined that it showed "mild broad
based disk bulging at L5-S 1 level which is not leading to significant foraminal and spinal
stenosis" and "[m]ild disk bulging ... at L4-L5 level which is also not leading to
foramina! and spinal stenosis." !d. An electrodiagnostic study showed severe
polyneuropathy. Dr. Haq raised the possibility of"diabetic polyneuropathy," but noted
that Plaintiff "denies numbness and tingling or pain in his feet other than notices some
swelling in the ball of the feet. It is possible that he might be perceiving the numbness as
swelling. His diabetes is not well controlled." (AR 480.) Dr. Haq advised Plaintiff to
"aggressively control" his diabetes. !d.
In the fall of2014, Plaintiffvisited Sreenija Suryadevara, M.D., an endocrinologist
at Dartmouth-Hitchcock, for treatment of his type 2 diabetes mellitus. Dr. Suryadevara
recorded Plaintiff suffered from "significant neuropathic and non neuropathic pain" (AR
556) and "since [Plaintiffs] pain is significantly limiting his day to day activities," she
referred him to Janice Gellis, M.D. of the Dartmouth-Hitchcock Pain Clinic. Dr. Gellis
noted on December 8, 2014 that Plaintiff had "5/5'' muscle strength in his back, ankles
and hips and could both toe walk and heel walk. (AR 568-69.) Dr. Gellis assessed that
Plaintiff had "[l]umbar disc displacement without myelopathy" and "right lumbar
radiculitis." (AR 570.) On December 11, 2014, Plaintiff received an epidural steroid
injection. According to Dr. Suryadevara's January 5, 2015 treatment notes, the injection
did "not [a]ffect the pain much." (AR 572.) Plaintiffs daily dose ofCymbalta was
increased and he was prescribed Lyrica.
On January 14, 2015, Dr. Gellis treated Plaintiff for neck pain and increased
Plaintiffs daily dosage ofLyrica, and recommended a rheumatologic evaluation, but
"defer[ red]" on this point to Plaintiffs new primary care physician, Emily Henderson,
M.D. (AR 579.) Plaintiff received an MRI on January 28, 2015, which according to Dr.
Gellis showed "[m]ild cervical spondylosis" and "[m]oderate to severe left C6-C7 and
moderate left C5-C6 neural foramina! stenosis." (AR 584.) Dr. Gellis considered the
MRI findings to be "consistent with [Plaintiffs] symptomology." (AR 583.)
On February 2, 2015, Plaintiff visited Dr. Henderson complaining of chronic neck
pain and lower back pain. Dr. Henderson recorded that Plaintiff was unable to walk heel
to toe and had reduced knee vibration but otherwise had normal sensation and intact
reflexes. Plaintiff reported spending over sixteen hours per day in bed due to back pain
which was only improved with Vicodin and rest. He rated his neck pain at 4-5/10 with
Vicodin and 9/10 without Vicodin. Plaintiff also reported having headaches for the
previous six months, which occurred two times per week for hours each time. Finally,
Plaintiff reported low mood, which had "worsened since he stopped working and pain has
become intolerable.... He no longer feels enjoyment in any hobbies and feels he is
getting little joy out of life." (AR 585.) Dr. Henderson prescribed Citalopram, which
was later discontinued. Later in February 2015, Plaintiff received a transforaminal
epidural steroid injection, but it did not provide relief.
On March 12,2015, Dr. Huyck treated Plaintiff, who she had not seen since
March 24, 2011. She characterized Plaintiffs left rotator cuff as "irreparable" and
recorded that Plaintiff "reports pain in the right neck to the shoulder, into the elbows and
hands, primarily over the third knuckle ... identical to pain he is having on the left side
in the left neck, into the shoulder, elbows and hands" and which he rated "from 7 to
1011 0." (AR 61 0-11.) Plaintiff stated that "he can do his own self care and errands but
has difficulty with household chores" and "modifies how he does things to compensate
for his condition[.]" (AR 611.) Plaintiff appeared "alert and pleasant in no acute distress,
although he does appear tired." (AR 612.) Following a physical exam and a review of
Plaintiffs recent diagnostic studies, Dr. Huyck assessed that Plaintiffs MRI "show[ed]
moderate to severe C5-6 and C6-7 neuroforamina1 stenosis" and that "[ c]urrent neck and
arm symptoms into the third finger follow at C7 distribution consistent with his imaging."
!d. Plaintiff also reported "generalized fatigue, weakness, achiness, and headaches." !d.
Dr. Huyck referred him to a spine specialist and also stated she was "referring him for
R[esidual] F[unctional] C[apacity] testing for his SSDI application." Id.
Plaintiff returned to Dr. Henderson, who noted on March 12, 2015 that Plaintiff
had "applied for disability, but was rejected and is still waiting for a hearing" and that he
visited Dr. Huyck, who evaluated his shoulder and "has organized a functional capacity
evaluation to aid in his disability application." (AR 596.) Dr. Henderson recorded that
Plaintiff had normal motor functions, normal muscle bulk and tone, and full strength in
the upper and lower extremities, but decreased sensation in his right lower extremity. Dr.
Henderson documented that Plaintiff complained of increasing memory loss, and of
having difficulty over the past three months distinguishing dreams from reality. He also
complained of constant pain with some relief from Vicodin. A spinal x-ray performed on
the same day indicated "no evidence of spondylolisthesis or compression fracture" but
evidenced "mild degenerative disc disease at several levels including L1-L2, L2-L3, and
L3-L4." (AR 598.) Dr. Henderson opined that Plaintiffs pain was "likely secondary to
peripheral neuropathy in the setting of diabetes, as well as secondary to compression of
nerve roots in the setting of multiple neural foramina! stenosis[.] There is likely also a
psychological component. Unfortunately the only approach that has provided some relief
is the introduction of [L]yrica and [V]icodin." Id.
On March 23, 2015, Justin Mowchun, M.D., a neurologist at DartmouthHitchcock, evaluated Plaintiffs balance complaints. Plaintiff "appear[ ed] in no distress"
(AR 602) and there was no evidence of ataxia, although he had an antalgic gait. Dr.
Mowchun's physical examination revealed multiple trigger points in Plaintiffs upper and
lower extremities, most notably in his cervical paraspinal muscles. Dr. Mowchun noted
that Plaintiffs pain "may be related in part to osteoarthritis; however, it is possible he
could also have fibromyalgia variant." (AR 603.)
Two days later, Plaintiff sought treatment from Carey Field, M.D., a
rheumatologist at Dartmouth-Hitchcock. Dr. Field recorded that Plaintiffs cranial nerves
and reflexes were intact and that Plaintiff had normal strength and sensation and did not
have spinal tenderness or sacroiliac joint tenderness. Dr. Field found that Plaintiff had
"mild paraspinallumbar and cervical tenderness" (AR 608) but that Plaintiff maintained
close to full range of motion in his shoulders, elbows, and wrists. Dr. Field further noted
that Plaintiff "has a [history] of fibromyalgia, and today his exam is consistent with this
diagnosis. However, he also has some findings of what appears to be diabetic neuropathy
and possibly diabetic MSK disease[.]" (AR 609.) As Dr. Henderson noted, Plaintiffs
prior diagnosis of fibromyalgia was made when Plaintiff was eighteen years old. Dr.
Henderson stated that she did not think it "beneficial" for Plaintiff to continue taking
Vicodin and proposed physical therapy, which caused Plaintiff to become "quite upset
and defensive stating that his pain was being underestimated and that by not properly
treating his pain he was being forced to resort to alternative options, including purchasing
on the street." (AR 630.) Dr. Henderson discouraged Plaintiff from purchasing illicit
drugs to treat his pain.
On April27, 2015, Perry Ball, M.D., a neurosurgeon at Dartmouth-Hitchcock,
evaluated Plaintiff and concluded that "there is limitation of range of motion of the
cervical spine in flexion and extension. Motor strength in the upper and lower
extremities is full with hypoactive deep tendon reflexes. Hoffmann's sign is negative ....
He is able to stand on his heels and toes." (AR 625.) Dr. Ball told Plaintiff that he "did
not see any indications for surgery here" as Plaintiff "has no spondylolisthesis and no
instability" and that his "problems [we ]re overwhelmingly axial neck and low back pain"
that lacked a "clear surgical target." !d.
Between May 6 and August 11, 2015, Janette L. Seville, Ph.D. engaged in
cognitive behavioral therapy with Plaintiff on eight occasions, and diagnosed him with
"[a]djustment disorder with depressed mood in the context of coping with chronic pain."
(AR 693.) On May 6, 2015, Dr. Seville stated that Plaintiff"reports no previous
treatment for his mood. The patient reports no psychiatric or rehab hospitalizations. The
patient reports no history of suicide attempts or self injurious behavior (e.g. cutting). The
patient states that he does not have a current counselor or psychiatrist." (AR 637-38.)
Dr. Seville noted that Plaintiff had been taken offVicodin the week before. Plaintiff
reported to Dr. Seville "that his function is very low, spending 22 hours lying down each
day because of pain." (AR 638.) Dr. Seville, in tum, opined that Plaintiff"would likely
benefit from cognitive-behavioral therapy (CBT) focused on self management skills for
pain and mood." !d.
On June 11, 2015, the same day as Plaintiffs FCE, Dr. Seville noted that Plaintiff
"report[ ed] ongoing severe pain and frustration" and that he received only two hours of
sleep per night due to pain, which he rated as a "12/10." (AR 645.) On June 19, 2015,
Plaintiff stated to Dr. Seville that he "felt the [FCE] went well and was satisfied with the
answers he got at the meeting" and that his pain was "10/10." (AR 673.) Dr. Seville
recorded on August 3, 2015 that Plaintiff "has not been practicing the relaxation or the
cognitive therapy" and that Plaintiff "reports that his mood has not changed since the start
of therapy." (AR 690.)
Dr. Seville completed a questionnaire for Plaintiff on August 20, 2015, noting that
it was "[ d]ifficult to determine if mood or pain is the limiting factor" and cited
"insufficient info" in response to a series of questions regarding whether Plaintiff had a
"medically documented history of a chronic affective disorder of at least 2 years'
duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psychosocial
support[.]" (AR 694-95.) Dr. Seville declined to complete an Assessment of Ability to
Do Work-Related Activities (Mental) for Plaintiff.
Plaintifrs Function Report.
On or about April 5, 2014, Plaintiff completed a Function Report wherein he
stated that his pain limited him to approximately four hours of sleep per night,
"depending on pain level[.]" (AR 272.) He also reported that he had "no problem" with
personal care, did not require special reminders to take care of his personal needs or to
take medicine, and that he went shopping for food each week and prepared his own meals
three times per day. (AR 272-73.) Plaintiff reported that he could no longer perform
yard work or other outdoor activities due to his pain. His hobbies and interests included
watching television, which he "mostly" did "all day if not sleeping." (AR 275.)
Plaintiff stated he could walk about 200 to 300 feet before needing to stop and
rest, but had no difficulty paying attention or following written instructions and could
follow spoken instructions "fairly well[.]" (AR 276.) He stated that he used a cane to
assist in walking, and currently was taking Vicodin and Amitriptyline.
State Consultants' Assessments.
May 2014 Consultative Examination.
On May 29, 2014, State Agency Medical Consultant Fred Rossman, M.D.
physically examined Plaintiff and submitted a six-page report. Dr. Rossman observed
that Plaintiff appeared to be "[w ]ell-developed, well-nourished" and "in no acute
distress." (AR 499.) Plaintiff was able to enter Dr. Rossman's office "without antalgic
or ataxic gait using no assistance such as a walker, cane, or crutches." Id. Plaintiff
navigated the steps to enter and exit the office and did not need to shift positions during
Dr. Rossman determined that Plaintiff suffered from "[b]ilateral shoulder pain[,]"
"[ n]eck pain[,]" "[l]ower back pain[,]" "[ n]umbness and tingling to his hands" and
"[ d]iabetes." (AR 501.) Plaintiff attributed his right shoulder pain to overuse, and stated
that he was diagnosed with another rotator cuff tear in 2012 but did not want to undergo
further surgery. Dr. Rossman noted "mild tenderness in the mid lower back" (AR 500)
and stated that Plaintiffs "greatest limitation appears to be somewhat decreased lateral
and forward flexion at the waist" while he also had a "decreased ability to elevate his
arms laterally for abduction [and was] unable to lift his arms greater than 90 degrees[.]"
(AR 501.) Dr. Rossman recorded that his neurological examination indicated Plaintiff
had "[s]ensation intact to the lower and upper extremities. Diabetic foot test intact to
sensation. Motor strength 5/5 to lower and upper extremities and foot." Id. Plaintiff was
able to walk heel to toe, on his toes, and on his heels.
June 2014 State Consultant's Assessment.
On June 11, 2014, State Agency Medical Consultant Francis Cook, M.D.
conducted a Medically Determinable Impairments ("MDI") analysis and physical
residual functional capacity ("RFC") assessment based on his review of Plaintiffs
medical records, Plaintiffs Function Report, and Dr. Rossman's consultative
examination. Dr. Cook noted Plaintiffs history of diabetes, left rotator-cuff tear, reports
of lower back pain, chronic neck pain, shoulder pain, and difficulty using his hands. He
acknowledged that Plaintiffs Function Report reported memory difficulties, but that "no
problems with memory" were noted by Dr. Rossman. (AR 93.) Dr. Cook identified the
following three severe impairments: "[o]steoarthrosis and [a]llied [d]isorders[,]"
"[d]iabetes [m]ellitus," and "[d]ysfunction- [m]ajor [j]oints." (AR 94.) He concluded
that "[t]he evidence does not warrant further development for a possible mental
impairment at this time." (AR 93-94.)
Dr. Cook found Plaintiffs Function Report to be only "partially credible" because
"[t]he degree of functional limitations, e.g. being able to walk only 200 to 300 feet, is not
supported by the objective evidence in the file." (AR 95.) Dr. Cook opined that Plaintiff
could lift and/or carry 25 pounds "frequently" and 50 pounds "occasionally," stand
and/or walk (with normal breaks) for "[a]bout 6 hours in an 8-hour workday" and sit
(with normal breaks) for "[a]bout 6 hours in an 8-hour workday." (AR 95.) Dr. Cook
further opined that Plaintiff could climb stairs and balance "frequently" and climb
ladders, stoop, kneel, crouch and crawl "[o]ccasionally." (AR 96.) He identified no
manipulative, visual, communicative, or environmental limitations but noted that
"[ s]houlder pain and rotator cuff tear limits push/pull wit[h] upper ext[ ens ion]." !d.
Based in part on Dr. Cook's physical RFC assessment, the SSA examiner concluded that
Plaintiff demonstrated a maximum work capability for medium exertional work.
July 2014 State Consultant's Assessment.
After Plaintiff filed for reconsideration, on July 10, 2014, State Agency Medical
Consultants Thomas Reilly, Ph.D. and Carl Runge, M.D. completed an MDI analysis and
physical RFC assessment, respectively, based upon medical records furnished by
Dr. Reilly identified the following severe impairments: "[ o]steoarthrosis and allied
disorders," "[d]iabetes [m]ellitus," "[d]ysfunction- [m]ajor [j]oints," "DDD ([d]isorders
of [b ]ack-[ d]iscogenic and [d]egenerative," as well as a non-severe peripheral neuropathy
impairment. (AR 116-17.) Dr. Reilly acknowledged that Plaintiff had "potential
psychological conditions" but assessed that "[m]edical and subjective evidence was
reviewed [which] indicates no further development of a discrete M[ ental] H[ ealth]
impairment is needed." (AR 117.)
Dr. Runge opined that Plaintiffs statements regarding his symptoms were
"partially credible," although he questioned the accuracy of Plaintiffs statement that he
could only walk 200 to 300 feet. (AR 118.) Dr. Runge further opined that Plaintiff could
lift and/or carry ten pounds "frequently" and twenty pounds "occasionally," stand and/or
walk (with normal breaks) for "[a]bout 6 hours in an 8-hour workday," and sit (with
normal breaks) for "[a]bout 6 hours in an 8-hour workday." (AR 118.) Dr. Runge found
that Plaintiff could climb stairs and balance "frequently" and climb ladders, stoop, kneel,
crouch, and crawl "occasionally." (AR 118-19.) He noted that Plaintiff had limited
overhead reaching and handling ability, but found no visual, communicative, or
environmental limitations. Dr. Runge opined that Plaintiffs "[s]houlder pain and rotator
cuff tear limits push/pull with upper ext to frequent" and that Plaintiff would require five
minutes of positional change for each hour spent walking, standing, or sitting. (AR 118.)
Based in part on Dr. Runge's physical RFC assessment, the SSA examiner concluded that
Plaintiff demonstrated a maximum work capability for light exertional work.
June 2015 FCE.
After resuming treatment of Plaintiff in the spring of2015, Dr. Huyck referred
Plaintiff to Gregory Morneau, an occupational therapist at Dartmouth-Hitchcock, who
performed Plaintifrs FCE on June 11, 2015. Mr. Morneau recorded that Plaintiff could
sit for thirty-two minutes in a leaned-back position, stand for twelve minutes before
needing to sit down, walk 820 feet in six minutes, and climb twenty-four stairs holding
one rail. Plaintiff could lift between eight and twenty-three pounds at various positions.
Mr. Morneau recorded that the "[ o]verall test findings, in combination with
clinical observations, suggest the presence of inconsistent levels of physical effort on
[Plaintifr s] behalf. He reported pain to be the barrier to doing more. His grip strength
testing was inconsistent with rapid grip testing being much higher than serial grip
testing." (AR 647.) Mr. Morneau nonetheless opined that the cessation of some tests due
to an "increased heart rate beyond safe level" suggested that Plaintiff had made a full
effort. Id. The FCE lasted sixty-two minutes.
On June 18, 2015, Ko K. Maung, M.D., an occupational and environmental
medicine resident at Dartmouth-Hitchcock, reviewed the results of the FCE with
Plaintiff. Dr. Maung stated that the results of the FCE "showed that [Plaintiff] had
impairment of sitting and standing tolerance, squatting, shoulder and back range of
motion, walking and lifting objects .... Frequent lifting capacity is likely much lower
than the occasional weight level listed above." (AR 652.) Dr. Maung acknowledged
"inconsistencies in effort testing" but stated that "heart rate response to exercise indicates
that results are a reasonable estimate of [Plaintifrs] current abilities for the areas tested."
Dr. Huyck reviewed Dr. Maung's report, and concluded that Plaintifrs "[l]ifting
capacity just meets sedentary capacity level" and that "[g]iven the level of pain and
decreased function for three days after testing, ... it is very unlikely that [Plaintiff] would
be able to tolerate a full time (8 hour day) sedentary work position." (AR 653.) Dr.
Huyck deemed the FCE results "usable" because Plaintiff "reached a cardiovascular limit
with increased heart rate multiple times needing to be stopped from further activity[,]
indicating full effort." !d.
Plaintifrs Testimony at the September 16, 2015 Hearing.
Plaintiff testified that he slipped and fell on ice in 2010, tearing his left rotator
cuff, which he re-tore during post-surgery rehabilitation. He stated that his right shoulder
pain developed due to "[t]rying to compensate due to the injury on the left-hand side."
(AR 68.) Plaintiff testified that "[d]ue to pain in my neck, shoulders, my back, ... my
knees on my right side, both my feet I have trouble walking, very little lifting, it hurts to
lift. Any time I do I'm in bed. Also the all over body pain that if I do too much during
the day that next day I'm in bed sleeping." (AR 63-64.) He explained that his reaching is
"very limited, due to pain in my shoulders, neck" and that his shoulders have become
equally painful. (AR 70.)
On a typical day, Plaintiff testified that he makes his own breakfast and sits in a
reclined position until the pain forces him to return to bed. He explained that he retrieves
his mail, which entails a fifty- or sixty-foot walk, and tries to move around as much as he
can. On a good day, he testified that he could accomplish two or three chores. Plaintiff
does his own laundry and washes his own dishes but due to his pain, he "end[ s] up having
to sit down in a reclining position and then eventually back in bed." (AR 64.) Laundry
"will take ... usually pretty much all day for one load." (AR 67.) Plaintiff does his own
grocery shopping and is able to drive, but it bothers him to sit up in the car and use the
Plaintiff stated that he sleeps three to five hours per night and spends the majority
of the day awake. He noted that he was diagnosed with "severe obstructive sleep apnea"
and that he had been using a BiP AP, but that it had not ameliorated his fatigue level. (AR
72.) Plaintiff testified that he no longer takes Vicodin, but takes Lyrica, which causes
Plaintiff further testified that his hands shake, and that he drops things "a couple of
times a week" due to swelling in his hands. (AR 74.) Following his FCE, Plaintiff stated
that for "[a]pproximately three days ... I had the feeling that I was almost coming down
with a grip, totally exhausted. My hands hurt severely so it was very hard for me to grip
anything because they hurt." (AR 75.) Plaintiff also stated that:
[m]y neck hurt to the point where I was having a hard time picking it up off
the bed. I was in bed pretty much for a day and a half due to the pain in my
back, lower legs, my feet hurt to the point where I had a hard time walking.
The only time I got out of bed was to go to the bathroom or get something
to eat which consisted of basically a raw hot dog, nothing that I would
spend any time out of bed for.
Plaintiff stated that he had undergone an evaluation in Boston for his re-torn
rotator cuff in 20 11, but there was nothing that could be repaired. Plaintiff noted he
continues to see Dr. Huyck, but was no longer seeing his counselor because he no longer
had access to transportation. Plaintiff testified that his doctors "basically have told me to
try to do anything more that I can do periodically through the day which I do try to do. If
I'm feeling well enough I will try to do a little walk around the house, you know, I try to
move around, bend." (AR 77.)
ALJ Merrill's Application of the Five-Step, Sequential Evaluation Process.
In order to receive SSDI or SSI benefits, a claimant must be disabled on or before
his or her date last insured. Social Security Administration ("SSA") regulations set forth
the following five-step, sequential evaluation process to determine whether a claimant is
( 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) (citing 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). "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 [S]teps [O]ne through [F]our 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). At Step Five, "the burden
shift[s] to the Commissioner to show there is other work that [the claimant] can perform."
Mcintyre, 758 F.3d at 150 (alterations in original) (internal quotation marks omitted).
In this case, ALJ Merrill determined that Plaintiff's last date insured was
December 3 1, 20 15, and that Plaintiff had not engaged in substantial gainful activity
since November 27, 2013. At Step Two, ALJ Merrill found that Plaintiffhad the
following severe impairments: "degenerative disc disease of the lumbar spine, diabetes
mellitus, and osteoarthritis of the shoulders[.]" (AR 20.) While noting that Plaintiff's
medical records evidenced a diagnosis of"severe obstructive sleep apnea," ALJ Merrill
concluded that "the record fails to support any specific work-related functional
limitations attributable to this diagnosis" and thus determined that this condition was nonsevere. !d. ALJ Merrill also found that while Plaintiff alleged symptoms of depression,
"any mental health limitation [was] not medically determinable or alternatively nonsevere[.]" !d. Finally, ALJ Merrill found that due to the "complete lack of treatment
history" with respect to Plaintiff's complaints of anhedonia, sleep disturbance, decreased
energy, and feelings of guilt or worthlessness, these conditions were non-severe or not
medically determinable. (AR 20-21.)
At Step Three, ALJ Merrill determined that Plaintiff did not have an impairment
or combination of impairments that met or equaled the severity of any listed impairment.
At Step Four, he concluded that Plaintiff had the residual functional capacity to "perform
light work as defined as in [20 C.P.R.§ 404.1567(b)] and [20 C.P.R.§ 416.967(b)]
he could lift and carry twenty pounds occasionally and ten pounds
frequently; stand or walk for six hours and sit for six hours in an eight-hour
day; frequently push or pull with his upper extremities; frequently climb
ramps or stairs and balance, but occasionally stoop, kneel, crouch, and
crawl; occasionally reach overhead with the bilateral upper extremities.
(AR 21-22.) ALJ Merrill considered all of Plaintiffs alleged symptoms and found that
Plaintiffs medically determinable impairments could reasonably be expected to cause his
symptoms; however, Plaintiffs statements concerning the intensity, persistence and
limiting effects of these symptoms were not entirely credible. Based on Plaintiffs RFC
for light work with the identified limitations, ALJ Merrill determined that Plaintiff was
capable of performing his past relevant work as a real estate sales agent.
At Step Five, ALJ Merrill determined, based in part on VE Spaulding's
testimony, 2 that Plaintiff was "capable of making a successful adjustment to other work
that exists in significant numbers in the national economy" (AR 29), which provided
additional grounds for his conclusion that Plaintiff was not disabled.
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 ifthere 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. As true, 729 F.3d 172, 175-76 (2d Cir. 2013)
(quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). 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)).
Even if the court could draw different conclusions after an independent review of
the record, the court must uphold the Commissioner's decision when it is supported by
substantial evidence and when the proper legal principles have been applied. See 42
U.S.C. § 405(g). It is the Commissioner that resolves evidentiary conflicts and
determines credibility issues, and the court may not substitute its own judgment for that
of the Commissioner. See Aponte v. Sec y, Dep 't ofHealth & Human Servs. of US., 728
VE Spaulding testified that in light of Plaintiff's age, education, work experience, and RFC, he
could perform his prior employment as a real estate sales agent as well as occupations such as
"cashier," "sales attendant," or "ticket seller." (AR 80-81.)
F.2d 588, 591 (2d Cir. 1984) ("It is the function ofthe [Commissioner], not the reviewing
courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses.").
Whether ALJ Merrill Erred in Evaluating Plaintiff's Medical
Plaintiff argues that ALJ Merrill made several legal errors in his evaluation of the
medical evidence in the record, including incorrectly determining the "relevant time
period applicable to the materiality of evidence" and not finding Plaintiffs fibromyalgia
to be a "severe impairment." (Doc. 5-1 at 8.)
Whether ALJ Merrill Erred in Determining That Certain
Medical Evidence Was Immaterial.
Plaintiff contends that ALJ Merrill's conclusion that Plaintiffs medical records
dated prior to November 28, 2012 were immaterial constituted legal error. In his
decision, ALJ Merrill stated that "the only material evidence is 'evidence dated within 12
months of the alleged onset date'" and therefore determined that Plaintiffs medical
records dated prior to November 28, 2012 are "immaterial in their entirety." (AR 17
(citing HALLEX 1-2-6-58, 1993 WL 643036 (last updated Aug. 2, 2016)).)
The Hearings, Appeals and Litigation Law Manual ("HALLEX") 1-2-6-58, relied
upon by ALJ Merrill, provides that the ALJ "will generally admit into the record any
information he or she determines is material to the issues in the case" and that
"[i]nformation is material if it is relevant[.]" 1993 WL 643036. It further provides that
examples of information that "may be material to a claim for disability" include:
"(e]vidence dated within 12 months ofthe alleged onset date under a title II application
for disability insurance benefits." !d. Plaintiff argues that "[i]t is not true that under the
cited HALLEX provision 'only' evidence within 12 months of the alleged onset date are
material. The manual is clear that that is just an example of evidence that is material."
(Doc. 5-1 at 8.)
While the Second Circuit has not addressed the issue, district courts within this
circuit, as well as other circuit courts, have held that "HALLEX is a purely internal
manual and as such has no legal force and is not binding." Moore v. Apfel, 216 F.3d 864,
868 (9th Cir. 2000). See, e.g., Edwards v. Astrue, 2011 WL 3490024, at *6 (D. Conn.
Aug. 10, 2011) (concluding that "although the Second Circuit Court of Appeals has not
reached the issue, other circuits and Second Circuit district courts have found that
HALLEX policies are not regulations and therefore not deserving of controlling
weight"); see also Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (holding that the
SSA's Claims Manual "is not a regulation. It has no legal force, and it does not bind the
SSA. Rather, it is a 13-volume handbook for internal use by thousands of SSA
employees[.]"). However, some courts have concluded that the SSA "is required to
follow its own internal policies when they accord with or are more demanding than the
statute or its regulations." Edwards, 2011 WL 3490024, at *6; see also McCoy v.
Barnhart, 309 F. Supp. 2d 1281, 1284 (D. Kan. 2004) (noting that when "the HALLEX
simply restates an administrative regulation, it is enforceable"). Plaintiff does not
identify any SSA regulation that accords with or is less stringent than HALLEX 1-2-6-58.
While it is doubtful that an ALJ' s misinterpretation of HALL EX constitutes legal
error, assuming it does, Plaintiff has not explained why it warrants a remand in this case.
HALLEX 1-2-6-58 governs the admission of evidence into the record before the ALJ.
ALJ Merrill did not refuse to admit Plaintiffs medical records dated prior to November
28, 2012. Rather, those records, most of which consist of treatment notes created in the
20 10-11 time period, are part of the record. ALJ Merrill examined these records, referred
to them in his decision, and ultimately concluded that they were irrelevant to Plaintiffs
benefits determination because Plaintiff alleged a November 28, 2013 onset date of
disability, which was well over a year later. After Plaintiff received the treatment
documented in these records, he performed past relevant work as a real estate sales agent
for several months in 2013. ALJ Merrill was therefore not required to consider or accord
any degree of weight to treatment notes created well before the relevant time period. See
Davis v. Colvin, 2016 WL 368009, at *1 (W.D.N.Y. Feb. 1, 2016) (determining that the
"relevant time period" with respect to Plaintiffs application "began on the alleged onset
date ... and ended on the date she was last insured"). As a result, to the extent ALJ
Merrill misinterpreted HALLEX 1-2-6-58, any error was harmless.
Whether ALJ Merrill Erred by Not Finding That Fibromyalgia
Was a Severe, Medically Determinable Impairment.
Plaintiff argues that ALJ Merrill erred in omitting fibromyalgia as a medically
determinable impairment to be included in Plaintiffs RFC determination, correctly
noting that ALJ Merrill did not discuss fibromyalgia in his decision. Plaintiff asserts that
Dr. Field "diagnosed fibromyalgia on March 25, 2015 after another Dartmouth physician,
Neurologist Justin Mowchun, M.D. thought this diagnosis was possible." (Doc. 5-1 at 910.) Dr. Field's treatment notes, however, merely record that Plaintiff had a history of
fibromyalgia, and that Plaintiffs examination was "consistent with [that] diagnosis."
(AR 609.) Fibromyalgia does not appear in the "Problem list" in Dr. Field's notes. (AR
608.) Other references in the record do not clearly support Plaintiffs contention that he
was diagnosed with fibromyalgia during the relevant time period. 3 Fibromyalgia was
nonetheless listed in Mr. Morneau's FCE as one of Plaintiffs five diagnoses and Dr.
Huyck referred to Plaintiffs fibromyalgia as "severe" on June 18, 2015. (AR 653.)
As the Commissioner points out, SSA regulations provide that either of two sets of
criteria must be satisfied in order to establish a fibromyalgia diagnosis. The 1990 ACR
Criteria for the Classification ofFibromyalgia (the "1990 Criteria") require "[a] history of
widespread pain" in "all quadrants of the body ... and axial skeletal pain ... that has
persisted (or that persisted) for at least 3 months"; at least eleven positive tender points;
and evidence that "other disorders that could cause the symptoms or signs were
excluded." See SSR 12-2p, 2012 WL 3104869, at *2 (July 25, 2012). The 2010 ACR
Preliminary Diagnostic Criteria (the "2010 Criteria") require a history of widespread
pain, the exclusion of other disorders as the cause of the claimant's symptoms or signs,
and "[r]epeated manifestations of six or more [fibromyalgia] symptoms, signs, or cooccurring conditions[.]" !d.
Dr. Mowchun' s speculation that Plaintiff "could also have fibromyalgia variant" does not
constitute a diagnosis. (AR 603.) Similarly, Dr. Henderson noted a prior fibromyalgia diagnosis
Plaintiff received when he was eighteen years old, but did not render such a diagnosis herself.
While Dr. Field noted the presence of"tender points" on March 25, 2015, her
treatment notes identify fewer than the eleven tender points required under the 1990
Criteria to establish a fibromyalgia diagnosis. (AR 609 (noting "cervical, lower lumbar,
trapezius, bilateral epicondyles, bilateral trochanter" tender points).) Dr. Field also
stated that Plaintiffs symptoms were consistent with diabetic neuropathy, and thus did
not rule out that other disorders may have caused his fibromyalgia symptoms. Dr. Huyck
stated that Plaintiffs "extreme fatigue and pain" were "consistent with SSA fibromyalgia
guidelines" (AR 653), but this statement, without more, does not meet the level of
specificity required by the 1990 Criteria and the 2010 Criteria. Because Plaintiff has not
satisfied his burden to establish that he was diagnosed with fibromyalgia during the
relevant period, ALJ Merrill did not err by omitting fibromyalgia as a severe, medically
Assuming arguendo that Plaintiff was diagnosed with fibromyalgia, such a
diagnosis, standing alone, is insufficient to establish a severe impairment under
applicable regulations. See Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988)
(holding that a diagnosis of a listed impairment is "not sufficient" to establish a
claimant's entitlement to SSDI benefits); Cobbins v. Comm 'r of Soc. Sec., 32 F. Supp. 3d
126, 133 (N.D.N.Y. 2012) ("[T]he mere diagnosis of an impairment is not sufficient to
establish 'severity' under step two. Plaintiff does not point to any assessment by a
medical provider of limitations arising from fibromyalgia. "). Plaintiff did not identify
fibromyalgia as a medical condition that limited his ability to work in his Function Report
or in his application for SSA benefits. 4 ALJ Merrill was therefore not required to include
fibromyalgia among Plaintiffs impairments, "particularly where, as here, the Plaintiff
failed to provide an assessment by a medical provider of limitations caused by
See AR 248 (listing "left ro[tat]or cuff repair and retear[,]" "left elbow nerve pinc[h]ed[,]"
"c[h]ronic neck pain[,]" "lower back disc r[ u]pture[,]" "diabetic with insulin" and "same
symptoms on right side of shoulder").
Any error in ALJ Merrill's analysis of Plaintiff's fibromyalgia is moreover
harmless because he proceeded with the remaining steps of the sequential process. See
Cobbins, 32 F. Supp. 3d at 133 ("[B]ecause the ALJ concluded that Plaintiff had a severe
impairment ... and continued with the sequential analysis, any arguable inadequacy in
connection with the fibromyalgia was harmless."); see also Stanton v. Astrue, 370 F.
App'x 231, 233 n.l (2d Cir. 2010) (holding that because the ALJ identified severe
impairments at Step Two and proceeded through the sequential evaluation process, any
error would not warrant remand). ALJ Merrill analyzed Plaintiff's severe and non-severe
impairments and found that due to Plaintiff's pain and other impairments, Plaintiff was
restricted to light work and had limited abilities to stand, walk, and perform other
manipulative functions during an eight-hour day. He therefore included Plaintiff's pain,
regardless of its source, in his RFC determination. See Diakogiannis v. Astrue, 975 F.
Supp. 2d 299, 311-12 (W.D.N.Y. 2013) ("As a general matter, an error in an ALJ's
severity assessment with regard to a given impairment is harmless ... when it is clear
that the ALJ considered the claimant's [impairments] and their effect on his or her ability
to work during the balance of the sequential evaluation process.") (internal quotation
Whether ALJ Merrill Properly Applied the Treating Physician Rule.
Plaintiff contends that ALJ Merrill erred in failing to accord Dr. Huyck controlling
weight as a treating physician. "[T]he [Social Security Administration] recognizes a
treating physician rule of deference to the views of the physician who has engaged in the
primary treatment of the claimant[.]" Burgess, 537 F.3d at 128 (internal quotation marks
omitted). Under the treating physician rule, the opinions of treating physicians are
"binding if ... supported by medical evidence and not contradicted by substantial
evidence in the record." Selian, 708 F.3d at 418.
To weigh the opinion of a treating physician, an ALJ must consider, among other
things, the length, frequency, nature, and extent of the treatment relationship; the
consistency of the opinion offered with the "record as a whole"; and whether it is "of a
specialist about medical issues related to his or her area of specialty[.]" 20 C.F .R.
§§ 404.1527(c)(2), (4), (5) & 416.927(c)(2), (4), (5). An ALJ is "required either to give
[the opinions of a claimant's treating physician] controlling weight or to provide good
reasons for discounting them." Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010).
Dr. Huyck treated Plaintiff in 2010, 2011, and 2015. It is therefore clear that her
opinions were subject to the treating physician rule. 5 Although ALJ Merrill did not
explicitly designate Dr. Huyck as a treating source, the issue is not her designation but
whether, guided by the factors set forth in§ 404.1527(c), he provided good reasons for
not according her opinions controlling weight.
In evaluating Dr. Huyck's adoption of Mr. Morneau's FCE, ALJ Merrill
accurately observed that Dr. Huyck did not have "a significant, lengthy treatment history
with the claimant during the period under review." (AR 27.) The record reveals that
while Dr. Huyck treated Plaintiff extensively during the 20 10-11 time frame, over two
years before Plaintiffs alleged onset date, she did not resume treatment of him until the
spring of2015. Although Dr. Huyck may have had access to Plaintiffs prior treatment
records, Dr. Huyck only met with Plaintiff for sixty minutes on March 12,2015 and for
twenty-five minutes on June 18, 2015, primarily in order to review the results of an FCE
she ordered but did not perform. See Donnelly v. Colvin, 2015 WL 1499227, at *12
(S .D .N.Y. Mar. 31, 20 15) (concluding that the claimant's "three visits with [physician]
do not constitute sufficient contact to warrant [that physician's] opinion being afforded
additional weight as [the claimant's] treating physician"). Thus, while Plaintiff had
established a treating relationship with Dr. Huyck during the period after November 28,
Plaintiff accurately asserts that ALJ Merrill also failed to note that Dr. Huyck is a specialist in
the field of occupational medicine and is familiar with the SSDI program criteria, factors which
he argues weigh in favor of according her opinions controlling weight. See 20 C.F.R.
§ 404.1527(c)(5) ("We generally give more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is not a
specialist."). However, while an ALJ must consider the§ 404.1527(c) factors, the ALJ need not
analyze each of the factors specifically. See Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir.
2004) (per curiam) (upholding decision where ALJ did not mention§ 404.1527(c) factors but
gave "good reasons" for his decision to afford little weight to a treating physician's opinion such
that "the substance of the treating physician rule was not traversed"). There is no basis for
concluding that had ALJ Merrill specifically recognized Dr. Huyck's specialization and
familiarity with SSDI regulations, the outcome would have been different.
2013, ALJ Merrill reasonably concluded that, for purposes of the relevant time period,
the duration and extent of this treating relationship were limited. See 20 C.P.R.
§ 404.1527(c)(2)(ii) (permitting ALJ to consider "the treatment the source has provided
and ... the kinds and extent of examinations and testing the source has performed or
As an additional reason for refusing to accord her opinions controlling weight,
ALJ Merrill faulted Dr. Huyck for not adequately explaining why she adopted the
findings of the PCE. In her treatment notes for June 18, 2015, she acknowledged that
Plaintiff "lacked consistent signs of full effort on testing" during the PCE, but
nevertheless deemed the results "usable." (AR 653.) Dr. Huyck noted that she
"discussed this with the OT [Mr. Morneau] and he agrees results are usable given
evidence of cardiovascular effort." Id. Dr. Huyck's adoption of the PCE results
therefore apparently depended in large measure upon the opinion of Mr. Morneau, who is
not an acceptable medical source. 6 Dr. Huyck provided no further explanation for
accepting the results of the PCE, other than Plaintiffs self-report that he experienced
"pain and decreased function for three days after testing[.]" Id. ALJ Merrill found that
Plaintiffs self-reports of "near bed-bound functioning" were inconsistent with Plaintiffs
"generally mild findings on objective examination." (AR 27.) This conclusion was
supported by substantial evidence in the record. ALJ Merrill thus adequately explained
the basis for his conclusion that Dr. Huyck's adoption of the PCE was not supported by
the record as a whole. See 20 C.P.R.§§ 404.1527(c)(3)-(4) (providing that "[t]he better
an explanation a source provides for an opinion, the more weight [the SSA] will give that
opinion" and that "the more consistent an opinion is with the record as a whole, the more
weight [the SSA] will give to that opinion").
As ALJ Merrill noted, an occupational therapist is not an acceptable medical source. See 20
C.P.R.§ 404.1513(a). Therapists are considered "other sources." See id. § 404.1513(d)(l).
Information from '"other sources' cannot establish the existence of a medically determinable
impairment. Instead, there must be evidence from an 'acceptable medical source' for this
purpose." SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).
Finally, ALJ Merrill also properly recognized that Dr. Huyck's limited treatment
of Plaintiff in 2015 was almost solely for advocacy-related purposes. Indeed, Dr. Huyck
provided no specific treatment to Plaintiff but instead merely supported his disability
application. ALJ Merrill did not err in concluding this affected the credibility of Dr.
Huyck's opinions. See Miller v. Comm 'r of Soc. Sec., 2015 WL 1383816, at *4
(N.D.N.Y. Mar. 25, 2015) (holding that a treating source opinion that "appears overly
sympathetic such that objective impartiality is doubtful and goal-oriented advocacy is
reasonably suspected, can be rejected").
Because ALJ Merrill provided "good reasons" for affording Dr. Huyck's opinions
no weight, including her limited treatment relationship with Plaintiff, her reliance on Mr.
Morneau's inconsistent findings, and the advocacy-related basis for the resumed
treatment relationship, remand is not warranted. While ALJ Merrill could have provided
a more detailed analysis under§ 404.1527(c), "the substance ofthe treating physician
rule was not traversed." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per
Whether ALJ Merrill Erred in According the FCE No Weight.
Plaintiff claims that in analyzing Mr. Morneau's FCE, as adopted by Dr. Huyck,
ALJ Merrill made an impermissible credibility determination by arbitrarily substituting
his judgment for the opinions of Plaintiffs medical providers. See Balsamo v. Chafer,
142 F.3d 75, 81 (2d Cir. 1998) (holding that "'the ALJ cannot arbitrarily substitute his
own judgment for competent medical opinion"'). In according the FCE no weight, ALJ
Merrill cited Mr. Morneau's statement "not[ing] inconsistent effort on the claimant's
behalf with regard to his functioning on grip strength vs rapid grip testing, which
somewhat colors the findings of the evaluation[.]" (AR 27.) He acknowledged that Mr.
Morneau also noted that Plaintiffs "heart rate was high[,] suggestive of good effort" but
nevertheless concluded that Plaintiffs inconsistent grip effort "does call into question the
credibility of the findings." !d. In this manner, ALJ Merrill properly resolved an
evidentiary conflict regarding Plaintiffs effort level during the FCE. See Cole v. Colvin,
2015 WL 1393160, at* 16 (W.D.N.Y. Mar. 25, 2015) (holding that the ALJ provided
"specific reasons ... for his finding of credibility" and thus "ably resolved the
evidentiary conflicts and reasonably appraised the credibility of the witnesses"); see also
Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) (concluding that the ALJ "was
entitled to weigh all of the evidence available to make an RFC finding that was consistent
with the record as a whole").
Although this court might reach a different conclusion, ALJ Merrill's
determination that the FCE was not reliable was within his discretion, and was supported
by substantial evidence in the record. See Veino v. Barnhart, 312 F .3d 578, 588 (2d Cir.
2002) ("Genuine conflicts in the medical evidence are for the Commissioner to
resolve."); Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) ("It is for the SSA, and not
this court, to weigh the conflicting evidence in the record.").
Whether ALJ Merrill Erred in According Significant Weight to Dr.
Plaintiff asserts that ALJ Merrill erred in according significant weight to the
opinions of non-examining medical consultant Dr. Runge. The Commissioner responds
that Dr. Runge's opinions were supported by evidence in the record and, indeed, were
more consistent with the totality of the record than Dr. Huyck's opinions.
"In appropriate circumstances, opinions from State agency medical and
psychological consultants and other program physicians and psychologists may be
entitled to greater weight than the opinions of treating or examining sources." SSR 966p, 1996 WL 374180, at *3 (July 2, 1996). Provided that the non-examining sources'
opinions "are supported by evidence in the record[,]" the ALJ may "permit the opinions
of non[-]examining sources to override treating sources' opinions[.]" Diaz v. Shalala, 59
F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v. Sullivan, 3 F.3d 563, 567-68 (2d Cir.
1993)); see also Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) ("[T]he opinion
of a treating physician is not binding if it is contradicted by substantial evidence, and the
report of a consultative physician may constitute such evidence.") (citation omitted).
While acknowledging that Dr. Runge never personally examined Plaintiff, ALJ
Merrill recognized that Dr. Runge was an agency consultant familiar with federal
disability standards, 7 that Dr. Runge reviewed a substantial portion of Plaintiffs medical
records, and that Dr. Runge's opinion that Plaintiff has the physical ability to perform
light work was consistent with other evidence in the record, including Plaintiffs
testimony that he has the ability to care for his personal needs, perform a range of
household tasks, drive, and perform errands, all of which ALJ Merrill noted in his
decision. Although Dr. Runge did not consider evidence submitted after his July 2014
assessment, ALJ Merrill accurately observed that subsequent medical evidence in the
record did not "support substantial erosion in [Plaintiffs] function or a finding of
disability." (AR 26.) As a result, ALJ Merrill's conclusion that Dr. Runge's assessment
is "supported by the record, when considered as a whole, and especially in light of the
lack of objective testing or scans that support the claimant's debilitating pain as
described" (AR 27) was not in error. See Charbonneau v. Astrue, 2012 WL 287561, at
*7 (D. Vt. Jan. 31, 2012) (affirming ALI's decision to accord great weight to nonexamining medical consultant where there was no subsequent "evidence of a new
diagnosis or worsening of [plaintiffs] condition").
Whether ALJ Merrill Erred in Finding Plaintiff's Clinical Presentation
Was Consistently Mild and Further Limitations in His RFC Were Not
Plaintiff disputes ALJ Merrill's finding that "[t]hroughout the period under
review, the claimant's objective clinical presentation is consistently quite mild and fails
to support any limitations beyond those cited in the residual functional capacity[.]" (AR
25.) In support of this conclusion, ALJ Merrill cited Dr. Rossman's May 2014
consultative examination, which noted that Plaintiff presented in no acute distress,
possessed a normal gait, and was able to perform a wide range of ambulatory movements.
Dr. Haq, who treated Plaintiff in June 2014, similarly noted that Plaintiff did not appear
to be in acute distress and had a normal gait and normal motor functions. ALJ Merrill
Applicable regulations authorize an ALJ' s reliance on state agency medical consultants in
appropriate circumstances. See 20 C.F .R. § 404.1527(e)(2) ("When an [ALJ] considers findings
of a State agency medical or psychological consultant ... , the [ALJ] will evaluate the findings
using the relevant factors ... such as the consultant's medical specialty and expertise in our rules
[and] the supporting evidence in the case record[.]").
also cited Dr. Gellis's December 2014 treatment notes recording that Plaintiff had normal
muscle strength, normal sensation, lumbar tenderness, and normal heel and toe walk and
that Plaintiff exhibited a similar state in visits to treating physicians in February, March,
and July of 2015. ALJ Merrill concluded that "[w ]hile this objective clinical presentation
does show some objective deficits, it fails to support the claimant's allegations of
debilitating pain necessitating that he be nearly bed-bound." (AR 26.) As ALJ Merrill
adequately explained the factors he considered and specific treatment notes he relied on,
his conclusions are supported by more than "a mere scintilla" of evidence. See Selian,
708 F.3d at 417.
Similarly, although Plaintiff challenges ALJ Merrill's failure to carefully analyze
his back and neck pain andre-torn rotator cuff, ALJ Merrill noted that Dr. Ball, a
neurosurgeon, did not "see any clear surgical target" and "did not see any indications for
surgery" in light of Plaintiffs lack of spondylolisthesis and instability (AR 24; AR 625),
and that Plaintiffs March 2014 MRI revealed only "[i]nconsequential disc protrusion"
and which was "otherwise unremarkable." (AR 662.) Conflicting evidence in the record
such as Plaintiffs January 28, 2015 MRI which revealed "[m]oderate to severe left C6C7 and moderate left C5-C6 neural foramina! stenosis" (AR 584) exists but does not
negate ALJ Merrill's finding that Plaintiffs clinical presentation was "consistently quite
mild." (AR 25.) Other than his FCE, none of Plaintiffs treatment records reveal
significant limitations upon clinical examination. See Genier v. Astrue, 606 F .3d 46, 49
(2d Cir. 201 0) ("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.") (internal
quotation marks omitted). Where, as here, there is substantial evidence in the record to
support ALJ Merrill's findings, the court cannot substitute its judgment for the ALJ' s,
even if it might have reasonably reached a different conclusion. See 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.").
For the foregoing reasons, the court DENIES Plaintiffs motion for an Order
reversing the Commissioner's decision (Doc. 5) and GRANTS the Commissioner's
motion to affirm (Doc. 6).
Dated at Burlington, in the District ofVermont, this _f_ day of March, 2017.
United States District Court
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