The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHRISTOPHER OSMAN,
Plaintiff,
MEMORANDUM & ORDER
-against- 19-CV-2210 (JS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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APPEARANCES
For Plaintiff: Christopher J. Bowes, Esq.
Law Office of Christopher James Bowes
54 Cobblestone Drive
Shoreham, New York 11786
For Defendant: Mary M. Dickman, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza, 5th Floor
Central Islip, New York 11722
SEYBERT, District Judge:
Plaintiff Christopher Osman (“Plaintiff”) brings this
action pursuant to Section 205(g) of the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), challenging the Commissioner of Social
Security’s (the “Commissioner”) denial of his application for
Social Security Disability Insurance Benefits. (Compl., D.E. 1,
¶¶ 1, 8.) Presently pending before the Court are the parties’
cross-motions for judgment on the pleadings. (Pl. Mot., D.E. 9;
Comm’r Mot., D.E. 13.) For the following reasons, Plaintiff’s
motion is DENIED and the Commissioner’s motion is GRANTED.
BACKGROUND1
I. Procedural History
On December 8, 2014, Plaintiff applied for disability
insurance benefits alleging that, since November 29, 2014, cancer
of the appendix/colon, chronic fatigue, weakness, and a broken leg
rendered him disabled. (R. 160, 169.) After Plaintiff’s claim
was denied on April 13, 2015 (R. 85-88), he requested a hearing
before an Administrative Law Judge (“ALJ”) (R. 89, 93-94). On
July 13, 2017, Plaintiff, accompanied by counsel, appeared for a
hearing before the ALJ. (R. 42-56.)
In a decision dated August 22, 2017, the ALJ found that
Plaintiff was not disabled within the meaning of the Social
Security Act. (R. 13-19.) The ALJ found that although Plaintiff
suffered from severe impairments, such impairments, whether
considered individually or in combination, allowed Plaintiff to
retain the residual functional capacity (“RFC”) to perform “light
work” and that because he retained the ability to return to his
past work as a water quality tester, he was not disabled. (R. 16-
19.) The Social Security Administration’s Appeals Council granted
Plaintiff’s request for review and, on February 12, 2019, affirmed
1 The background is derived from the administrative record.
(“R.”, D.E. 8.) For purposes of this Memorandum and Order,
familiarity with the administrative record is presumed. The
Court’s discussion of the evidence is limited to the challenges
and responses raised in the parties’ briefs.
the ALJ’s finding that Plaintiff was not disabled. (R. 1-9.) The
Appeals Council adopted the ALJ’s findings regarding the
evidentiary facts and his overall conclusions regarding whether
Plaintiff was disabled. However, the Appeals Council determined
that Plaintiff’s ability to perform work requiring approximately
six hours of sitting and two hours of standing/walking corresponded
not to light work but instead to sedentary work. (R. 5.) The
Appeals Council thus determined that although Plaintiff’s
impairments prevented him from performing his past relevant work,
it found that an individual having Plaintiff’s vocational factors
and a RFC to perform a reduced range of sedentary work could
perform a significant number of jobs that exist in the national
economy. (R. 5-7.)
Where, as here, the Appeals Council reviews the decision
of the ALJ, the Appeals Council’s decision constitutes the final
decision of the Commissioner. See 20 C.F.R. § 404.981; see also
Smith v. Berryhill, --- U.S. ----, 139 S. Ct. 1765, 204 L. Ed. 2d
62 (2019). Thus, having exhausted his administrative remedies, on
April 15, 2019 Plaintiff initiated this action (see Compl.), and
moved for judgment on the pleadings on November 4, 2019 (Pl. Mot.;
Pl. Br., D.E. 10; Pl. Reply, D.E. 14). On March 5, 2020, the
Commissioner filed a cross-motion for judgment on the pleadings.
(Comm’r Mot.; Comm’r Br., D.E. 13-1.) Because the Court’s review
is limited to determining whether there is substantial evidence in
the record to support the ALJ’s decision, Cage v. Comm’r of Soc.
Sec., 692 F.3d 118, 122 (2d Cir. 2012) (citing Lamay v. Comm’r of
Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)), the Court first
reviews the administrative record. The Court’s review of the
record proceeds as follows: first, the Court summarizes the
relevant evidence presented to the ALJ; second, the Court reviews
the ALJ’s findings and conclusions; and third, the Court reviews
the Appeals Council’s decision.
I. Evidence Presented to the ALJ
A. Testimonial Evidence and Employment History
At the July 13, 2017 hearing, Plaintiff testified that
he was 44 years old, 5’10” tall and weighed 230 pounds. (R. 45,
57.) He graduated high school and attended college, is unmarried
and lives alone. (R. 45.) Plaintiff testified that he lives in
an apartment, does not “have any problems with stairs”, and does
housework. (R. 46.) According to Plaintiff, he does not drive
because he “lost [his] license, DWI.” (R. 46.) Plaintiff
testified that he is not working at all and “the main reason” is
because he has “to go to the bathroom a lot” and gets nauseous and
vomits. (R. 46-48.) Plaintiff explained that he had a part of
his colon removed after being diagnosed with appendix and colon
cancer and “it never went back to normal after that.” (R. 46-49.)
Plaintiff testified that he broke his leg in 2014 while
working as a collector of soil and groundwater samples with a geo
probe. (R. 47.) While in the hospital for treatment of his leg,
Plaintiff was diagnosed with appendix cancer and his appendix was
removed. (R. 48.) Subsequently, he was treated for colon cancer
and had a part of his ascending colon removed. (R. 47-49.)
Plaintiff testified that he also has high blood pressure, diabetes,
acid reflux, and anxiety, all of which are controlled by
medications. (R. 49.) With regard to his diarrhea, Plaintiff
testified that he takes Pepto Bismol and multi-vitamins. (R. 50.)
Plaintiff testified that although he suffers bouts of diarrhea on
average of fifteen to twenty times per day, he does not wear any
type of protective undergarment. (R. 51.) During the course of
an eight-hour work day, Plaintiff estimated he would need about
ten to fifteen unscheduled breaks each lasting about five to
fifteen minutes so he could use the bathroom. (R. 53.) He also
testified that he gets “really bad abdominal cramps” if he tries
to hold it in too long. (R. 51.) Plaintiff also described having
difficulty sleeping because he frequently gets up to use the
bathroom at night and has difficulty falling back to sleep. (R.
52-53.)
Plaintiff also testified that although he does not have
any problems sitting down, standing up, walking, using his arms,
or bending over, he stated that he becomes dizzy, sweaty, and
nauseous “if I’m standing too long.” (R. 51-52.)
B. Vocational Expert’s Testimony
A Vocational Expert (“VE”) testified that Plaintiff’s
past work was as a “water quality tester”, DOT No. 539.367-014.
(R. 54.) The VE defined such work as “light” and testified that
a hypothetical person with “the same age, educational background,
work history and transferable skills who can do light work, [with]
no dangerous heights or dangerous machinery” could do Plaintiff’s
past work. (R. 55.) The VE also opined that if such a person is
on task only eighty percent of the day or would need three
unscheduled, ten-minute breaks, they could not do Plaintiff’s past
work. (R. 55.)
C. Medical Evidence2
In addition to the testimony from Plaintiff and the VE,
the ALJ also reviewed Plaintiff’s medical records. Plaintiff
received his medical treatment and diagnoses from: (1) Sal Inserra,
M.D., orthopedic specialist; (2) Nicholas Livrieri, M.D., family
practitioner; (3) Andrea Pollack, D.O., internist; (4) Daniel
Feingold, M.D., colorectal surgeon; (5) Alfred Neugut, M.D.,
2 The record also includes medical evidence from after June 30,
2015 and the Court has reviewed it. However, as all parties
agree and the ALJ found, Plaintiff must establish that he was
disabled during the period November 29, 2014 through June 30,
2015 in order to be entitled to disability insurance benefits.
Accordingly, these records are of limited probative value as
discussed below.
oncologist; (6) Steven Lee-Kong, M.D.; and (7) Richard Feldstein,
M.D., gastroenterologist.
Dr. Inserra is an orthopedic surgeon who performed
Plaintiff’s November 7, 2014 surgery to repair his right ankle
fracture. Dr. Inserra also examined Plaintiff eleven times between
October 29, 2014 and March 5, 2015. (R. 286-311.) Dr. Inserra’s
January 2015 reports as well as his March 2015 report reflect that
Plaintiff “states he feels well [and] [ ] denies any pain in the
ankle, he complains of weakness or fatigue of the calf muscles.”
(R. 286, 288, 308.) Plaintiff reported on March 5, 2015 that his
right ankle “feels fine” but “his right leg feels somewhat weak
and gets fatigued easily with overexertion” and “denie[d] any other
specific complaints.” (R. 308.) He also noted that Plaintiff’s
right ankle x-ray shows “complete bone healing.” (R. 287, 309.)
Dr. Feingold, a colorectal surgeon, performed
Plaintiff’s laparoscopic right colectomy on December 11, 2014.
(R. 249-51.) Notes dated December 16, 2014 from Plaintiff’s
follow-up appointment with Dr. Lee-Kong reflect that Plaintiff was
“doing well”, had “no residual cancer in the colectomy specimen,
he feels well, no abd[ominal] pain, eating well, b[owel]
m[ovement]s are normal, ambulating with a hard cast given his foot
fracture.” (R. 251.)
Concurrent with Plaintiff’s visits with Dr. Inserra,
Plaintiff also saw Dr. Nicholas Livrieri, a family practitioner,
on November 13, 2014, February 17, 2015, March 10, 2015, as well
as on June 30, 2015, August 27, 2015, and on several other
occasions well after the date last insured. (R. 312-20.) Although
Plaintiff reported on February 17, 2015 that he has “frequent bowel
movements” but is “feeling generally well, some fatigue, . . .
insomnia, abdominal cramps; frequent BMs no diarrhea”, upon
examination, Dr. Livrieri noted only that Plaintiff’s abdomen is
“slight[ly] tender.” (R. 318.) On March 10, 2015, Plaintiff
reported “feeling generally well, some fatigue . . . some anxiety,
insomnia, abdominal cramps, frequent BMs no diarrhea.” (R. 316.)
Upon examination, Dr. Livrieri reported that “Plaintiff is obese,
well nourished and well developed in no acute distress . . . .
Gait is WNL.” (R. 316.) Again, on June 30, 2015, Plaintiff
reported having “the same things going on” as well as intermittent
vomiting. (R. 314.) Upon examination, Dr. Livrieri noted
Plaintiff is “well nourished and well developed in no acute
distress. Affect is normal and appropriate. . . . Gait is WNL.”
(R. 314.) Finally, on August 27, 2015, Plaintiff reported he was
there because he was having sciata pain and made no mention of his
bowel movements, diarrhea or vomiting. (R. 312.)
Consistent with Plaintiff’s report, upon examination,
Dr. Livrieri noted Plaintiff is “well nourished and well developed
in no acute distress. Affect is normal and appropriate . . . Gait
is WNL, abdomen benign.” (R. 312.) In addition, approximately
two years later, on June 22, 2017, Dr. Livrieri completed a
“Crohn’s & Colitis Residual Functional Capacity Questionnaire” on
Plaintiff’s behalf. (R. 410-14.) There, Dr. Livrieri noted
Plaintiff reported symptoms of “chronic diarrhea”, “bloody
diarrhea”, “abdominal pain and cramping”, “malaise”, “fatigue”,
“mucus in stool” and “vomiting” (R. 410), for which Plaintiff was
taking Pepto Bismol (R. 411). Dr. Livrieri checked the box on the
form to indicate that Plaintiff is “incapable of even ‘low stress’
jobs” because Plaintiff experiences pain and diarrhea. (R. 412.)
Although Dr. Livrieri indicated that Plaintiff could walk one to
two city blocks without rest, he opined that Plaintiff could only
sit and/or stand for thirty minutes at a time before needing to
get up. (R. 412.) In addition, during an eight-hour working day
with normal breaks, Dr. Livrieri opined that Plaintiff could sit,
stand, and/or walk for less than two hours. (R. 412.) He further
noted that Plaintiff would need fifteen to twenty unscheduled
restroom breaks during an eight-hour work day each lasting an
average of ten minutes. (R. 413.) Dr. Livrieri also indicated
that Plaintiff would need to lie down or rest two to three times
per eight hour working day for an average of fifteen minutes each
time. (R. 413.) In addition, Dr. Livrieri noted that Plaintiff
could frequently lift or carry one to twenty pounds and could
rarely lift or carry up to fifty pounds. Finally, he noted that
Plaintiff could frequently twist, stoop (bend), crouch, and climb
ladders and stairs. (R. 413.) He also concluded that Plaintiff
would likely be absent from work due to his medical conditions for
more than four days per month. (R. 414.)
Dr. Pollack, an internist, examined Plaintiff once on
January 12, 2015 having been referred by the Division of Disability
Determination for a consultative internal medical examination.
(R. 282.) She noted that Plaintiff “is able to cook one to two
days a week, do laundry once a week, shower and dress. He watches
TV, listens to the radio, goes out to family and socializes with
friends.” (R. 282.) Dr. Pollack further noted that, although
Plaintiff was wearing a boot on his right foot and is on crutches
as a result of his recent leg fracture, he appeared to be in no
acute distress, used no other “assistive devices, [n]eeded no help
changing for exam or getting on or off the exam table. Able to
rise from chair without difficulty.” (R. 283.) She noted that
his “bowel sounds normal.” (R. 284.) However, she concluded: “he
has a marked restriction in walking, standing, climbing stairs,
kneeling, and squatting. He has a moderate restriction in lifting
and carrying. He should avoid heights, operating heavy machinery,
activities which would require heavy exertion, and activities
which may put him at risk for fall.” (R. 284.)
Dr. Neugut, an oncologist, saw Plaintiff on March 31,
2015 and September 22, 2015. (R. 352.) During the March visit,
Plaintiff reported that he was feeling well that day but was
experiencing insomnia and some fatigue. (R. 352-55.) He also
reported that before his surgery he would normally have three bowel
movements per day but now he was having many more, and they were
mostly soft. He also described some “occasional abdominal pain”
and “occasional blood in his stool.” (R. 352.) Upon examination,
Dr. Neugut found Plaintiff to have “a soft non-tender/non-
distended abdomen,” with normal bowel sounds and no masses.” (R.
354.) At Plaintiff’s September 2015 visit to Dr. Neugut, Plaintiff
reported he has “some fatigue, insomnia. Feels flushed if out on
the street for a while” and has “many more, mostly soft” bowel
movements per day than he had “[b]efore the surgery.” (R. 347.)
Upon examination, Dr. Neugut noted that Plaintiff’s abdomen was
“soft, non-tender/non-distended. Bowel sounds norm. . . .” (R.
349.)
On referral from Dr. Livrieri, Dr. Feldstein, a
gastroenterologist, examined Plaintiff on February 12, 2016,
March 23, 2016, and April 29, 2016. (R. 397-402.) Plaintiff
reported changes in his bowel movements at the February visit and,
upon examination, Dr. Feldstein noted that Plaintiff’s abdomen is
“soft” and “non distended” and explained that the “likelihood of
recurrent BM’s secondary to shortened colon/transit time.” (R.
397.) At the March 23, 2016 follow-up appointment with Dr.
Feldstein, Plaintiff complained of heartburn, and occasional
nausea with vomiting. (R. 399.) Upon examination, Dr. Feldstein
described Plaintiff’s abdomen as “soft” and “non distended” and
“no tenderness” and referred Plaintiff for a colonoscopy. (R.
399-400.) On April 29, 2016, Dr. Feldstein reviewed the
colonoscopy results with Plaintiff and advised Plaintiff to follow
a “high fiber diet” with “fiber supplementation” and recommended
a follow up colonoscopy be done in three years. (R. 401-02.)
II. The ALJ’s Decision
The ALJ found that Plaintiff met the insured-status
requirements of his claim through June 30, 2015. (R. 15.) The
ALJ then applied the familiar five-step disability analysis and
concluded that Plaintiff was not disabled from November 29, 2014,
the alleged disability-onset date, through June 30, 2015. (R. 16-
19); see 20 C.F.R. § 404.1520. At steps one through three, the
ALJ found that: (1) Plaintiff had not engaged in substantial
gainful activity since the alleged onset date (R. 15);
(2) Plaintiff had severe impairments consisting of “post
laproscopic partial colectomy for colon cancer on December 11,
2014, post ORIF [Open Reduction Internal Fixation] for a right leg
fracture on November 7, 2014 and diabetes mellitus (R.15); and
(3) Plaintiff’s impairments, individually or in combination, did
not meet or medically equal the severity of any of the impairments
listed in Appendix 1 of the Social Security regulations (R. 16).
The ALJ then determined that Plaintiff had the RFC “to
perform light work . . ., as requiring approximately 6 hours of
sitting and approximately 2 hours of standing and/or walking
allowing for normal breaks, except that he can never be exposed to
dangerous machinery or heights.” (R. 16.) After comparing
Plaintiff’s RFC with the physical and mental demands of a water
quality tester, the ALJ found that Plaintiff was able to perform
his past relevant work as a water quality tester as it is generally
performed throughout the national economy as light work. (R. 19.)
As a result, the ALJ determined that Plaintiff was not disabled.
(R. 19.)
A. The ALJ’s RFC Determination
The ALJ found that Plaintiff has the RFC to “perform
light work, . . . as requiring approximately 6 hours of sitting
and approximately 2 hours of standing and/or walking allowing for
normal breaks, except that he can never be exposed to dangerous
machinery or heights.” (R. 16.) In reaching this conclusion, the
ALJ reviewed--and credited--Plaintiff’s testimony that he “has no
problems sitting, standing, walking or using his arms and no
problems bending but he does get dizzy, sweaty and nauseous.”
(R. 17.) The ALJ also relied on Plaintiff’s testimony that he
“lives alone in an apartment and has no issues with stairs,” and
“does do housework” (R. 16-17).
The ALJ also referenced the consultative internal
medical examination records from Dr. Andera Pollack, who opined
that Plaintiff “has a marked restriction in walking, standing,
climbing stairs, kneeling and squatting.” (R. 17.) However, the
ALJ afforded “very little weight” to Dr. Pollack’s opinion in this
regard because it was contrary to a March 5, 2015 report from
Plaintiff’s treating physician, Dr. Inserra, who indicated that
Plaintiff stated “his right ankle feels fine and he denie[d] any
pain, swelling or buckling; he is alert and comfortable and
ambulating independently with normal gait and range of motion is
normal . . . .” (R. 17.) The ALJ gave “some weight” to Dr.
Pollack’s opinion that Plaintiff has a moderate restriction in
lifting and carrying and should avoid heights, operating heavy
machinery and activities requiring heavy exertion or which my put
him at risk for a fall.” (R. 17.)
The ALJ then explained that “[f]ar greater weight is
given by the undersigned to the opinion of Dr. Inserra, an
orthopedic specialist who has been treating the [Plaintiff] and
has had the opportunity to examine him on many occasions. (R.
17.) Indeed, the ALJ reviewed the medical reports from Dr. Inserra
from November 21, 2014, December 4 and 22, 2014, January 5, 2015
and January 15, 2015 and noted that in each of these reports that
Plaintiff indicated that he was “doing well” and “denied pain or
other specific complaints.” (R. 18.)
Next, the ALJ addressed the opinion of Dr. Livieri who
completed the Crohn’s & Colitis Residual Functional Capacity
Questionnaire on June 22, 2017 and opined that Plaintiff, “in an
8 hour workday--can sit less than 2 hours and stand/walk less than
2 hours; lift/carry up [to] 20 pounds frequently; frequently twist,
stoop (bend), crouch and climb ladders and stairs.” (R. 18.) Dr.
Livieri also indicated that Plaintiff “experiences pain o[r] other
symptoms severe enough to frequently interfere with attention and
concentration” and that Plaintiff “requires a job which permits
shifting of positions at will from sitting, standing or walking
and that he requires unscheduled restroom breaks lasting 10
minutes, 15-20 times a day and needs to lie down or rest at
unpredictable intervals 2-3 times per day.” (R. 18.) Dr. Livieri
also indicated that, on average, Plaintiff would likely be absent
from work more than four days per month as a result of his
impairments or treatment. (R. 18.) The ALJ assigned “very little
weight” to the opinion of Dr. Livieri concerning Plaintiff’s
gastrointestinal-related limitations because: (1) Dr. Livieri is
a family practitioner and not a gastroenterologist; and (2) there
is “no objective medical support for limiting sitting and
standing/walking to less than 2 hours each during an 8-hour
workday, requiring frequent shifting of positions; requiring
unscheduled breaks, 15-20 times a day, and missing work more than
four days per month as those limitations had to have been based
solely on [Plaintiff]’s subjective complaints.” (R. 18.) The ALJ
discounted Dr. Livieri’s opinions particularly given Plaintiff’s
hearing testimony that “he has no limitations in sitting, standing,
walking or using his arms. . . .” (R. 18.)
Finally, the ALJ concluded that the RFC assessment is
supported by: (1) the opinion of Dr. Pollack that Plaintiff “has
a moderate restriction in lifting and carrying; should avoid
heights and should avoid activities requiring heavy exertion or
which may put him at risk of fall”; (2) the opinion of Dr. Inserra
that Plaintiff “was doing well” and was “ambulating independently
with normal gait” (R. 18-19); (3) the opinion of Dr. Livieri that
Plaintiff “can lift/carry up to 20 pounds frequently and frequently
twist, stoop(bend), crouch and climb ladders and stairs;” and (4)
Plaintiff’s own description of a fairly broad range of daily
activities including household chores and that he “has no problems
sitting, standing, walking, or reaching.” (R. 19.)
III. Appeals Council’s Decision
On February 12, 2019, the Appeals Council issued the
final decision of the Commissioner. (R. 1-9.) On December 27,
2018, the Appeals Council notified Plaintiff and his attorney that
it would consider a statement about the facts and the law in the
case or additional evidence. (R. 4.) A statement was submitted
and the Appeals Council considered it. (R. 4.)
In affirming the ALJ’s finding that Plaintiff was not
disabled, the Appeals Council concluded that although it “does not
fully agree with the [ALJ]’s findings regarding the claimant’s
residual functional capacity or whether the claimant was capable
of performing his past relevant work at any time through the date
last insured” (R. 4-5), Plaintiff “had the residual functional
capacity to perform sedentary work as defined in 20 CFR
404.1567(a).” (R. 5.) Having made such finding, the Appeals
Council then considered whether the Agency met its burden to show
that “a significant number of jobs exist in the national economy
which [claimant] could perform” and determined that “there were a
significant number of jobs in the national economy that the
claimant could have performed through the date last insured.”
(R. 5-6.)
DISCUSSION
I. Standard of Review
In reviewing the ruling of an ALJ, the Court does not
determine de novo whether Plaintiff is entitled to disability
benefits. Thus, even if the Court may have reached a different
decision, it must not substitute its own judgment for that of the
ALJ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). If
the Court finds that substantial evidence exists to support the
Commissioner’s decision, the decision will be upheld, even if
evidence to the contrary exists. See Johnson v. Barnhart, 269 F.
Supp. 2d 82, 84 (E.D.N.Y. 2003).
To determine if substantial evidence exists to support
the ALJ’s findings, this Court must “examine the entire record,
including contradictory evidence and evidence from which
conflicting inferences may be drawn.” See Brown v. Apfel, 174
F.3d 59, 62 (2d Cir. 1999) (internal quotation marks and citation
omitted). “The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be
conclusive. . . .” 42 U.S.C. § 405(g).
II. Analysis
Plaintiff argues that the ALJ erred in finding that
Plaintiff is not disabled because: (1) he failed to consider all
of the medical evidence regarding Plaintiff’s impairment, most
notably the opinions of Dr. Richard Feldstein; (2) the adverse
credibility determination is not supported by the record; and (3)
his assignment of “very little weight” to the opinion of the
treating family practitioner, Dr. Livieri, was incorrect. (See,
Pl. Br. and Pl. Reply.) The Commissioner responds that the ALJ
applied the correct legal standards and the decision is supported
by substantial evidence. (See, Comm’r Br.) The Court addresses
each of these arguments separately.
A. The ALJ Considered all of the Medical Evidence
Plaintiff contends that the ALJ failed to consider all
of the medical evidence of Plaintiff’s impairment, specifically
the medical records supplied by Dr. Richard Feldstein, a
gastroenterologist who examined Plaintiff on February 15, 2015.
(Pl.’s Br. at 15-17.) The Court disagrees.
As the opinion makes clear, the ALJ gave “careful
consideration to all of the evidence” in concluding that that
Plaintiff was not disabled within the meaning of the Act from
November 29, 2014 through June 30, 205. (R. 13.) Thus,
Plaintiff’s assertion that the ALJ failed to consider all of the
medical evidence is incorrect. Although the medical records
provided by Dr. Feldstein are not expressly referenced in the ALJ’s
opinion, the ALJ makes clear that “all of the evidence” was given
careful consideration. (R. 13.) Moreover, because Dr. Feldstein
first examined Plaintiff in February 2016, some eight months after
Plaintiff’s date last insured, it is of little probative value as
to whether Plaintiff was entitled to disability insurance benefits
as of June 30, 2015. Although an ALJ must consider medical
opinions given after a claimant’s date last insured if “such
opinions are relevant to h[is] condition prior to that date” Dailey
v. Barnhart, 277 F. Supp. 2d 226, 233 n.14 (W.D.N.Y. 2003), Dr.
Feldstein’s opinions in February, March and April 2016 are not
relevant to Plaintiff’s condition on June 30, 2015, particularly
given that Dr. Feldstein makes clear that Plaintiff’s condition,
as reported by Plaintiff at each visit, reflects that date.3 (R.
397-405.) Importantly, Dr. Feldstein’s notes reflect that when
3 Notably, Dr. Feldstein also indicated that, at each of these
visits upon examination, Plaintiff’s abdomen was soft and
nondistended with no tenderness. (R. 397-405.)
Plaintiff first visited him in February 2016, he complained of
“changes” in his “bowel habits” (R. 397), suggesting that the
gastric distress of which Plaintiff complained had worsened.
Thus, because Dr. Feldstein’s opinions of Plaintiff’s condition
were limited to his observations on February 12, 2016, March 23,
2016 and April 29, 2016, together with the fact that Dr. Feldstein
did not opine on Plaintiff’s condition prior to June 30, 2015, the
ALJ’s decision was appropriate, whether or not he referenced Dr.
Feldstein’s opinions.
B. The ALJ’s Adverse Credibility Determination is
Supported by the Record
Plaintiff next contends that the ALJ’s adverse
credibility determination is not supported by the record.
Plaintiff’s argument that:
Mr. Osman’s unchallenged testimony regarding
the nature, frequency, and duration of his
bowel movements is supported by this colectomy
but it is further explained by treating
gastroenterologist Dr. Richard Feldstein, who
explains that his diarrhea and frequent bowel
movements are explainable by his shortened
digestive tract following surgery in 2014
(Pl. Br. at 13) misses the mark. Plaintiff’s testimony regarding
the nature, frequency and duration of his bowel movements was not
unchallenged. Rather, the medical evidence and Plaintiff’s
testimony make clear that his gastric problems were not so severe
as to render him disabled as of June 30, 2015. Indeed, following
the 2014 colectomy through June 2015, Plaintiff did not complain
of frequent bowel movements or diarrhea. Rather, the first time
Plaintiff complains of frequent bowel movements is to Dr. Neugut
in September 2015. (R. 347.)
Thus, the ALJ correctly questioned Plaintiff’s
credibility given that his report of symptoms was not consistent
with the observations of the medical professionals. Although Dr.
Feldstein opined in February 2016 that Plaintiff’s shortened colon
as a result of his 2014 colectomy could cause the gastric problems
Plaintiff described, there is nothing in the record that suggests
that Plaintiff complained of such problems to any of his medical
providers during the relevant time period. This is a sufficient
reason to question Plaintiff’s credibility. “Thus, the ALJ’s
credibility determination is entitled to ‘great deference’ as it
was not ‘patently unreasonable.’” Thompson v. Comm’r of Soc. Sec.,
No. 16-CV-6968, 2018 WL 1558270, at *1 (E.D.N.Y. Mar. 28, 2018)
(quoting Pietrunti v. Dir., Office of Workers’ Comp. Programs, 119
F.3d 1035, 1042 (2d Cir. 1997)). Here, the ALJ properly evaluated
Plaintiff’s testimony in considering whether his statements
relating to the intensity, persistence, and limiting effect of his
symptoms was consistent with the medical records. Indeed, the ALJ
credited Plaintiff’s own statements that he was capable of
performing daily tasks in finding him capable of performing “light
work” (R. 18-19), but which the Appeals Council reassessed as
“sedentary work” (R. 5).
C. The ALJ Properly Weighed the Opinion of Dr. Livieri
Plaintiff contends that the ALJ was “simply incorrect”
to exclude the opinion of treating family physician Dr. Livieri
because he was not a gastroenterologist. (Pl. Br. 17.) However,
Plaintiff mischaracterizes the ALJ’s opinion. The ALJ’s opinion
is clear that he did not exclude the opinion of Dr. Livieri.
(R. 18-19.) Rather, the ALJ gave “very little weight” to Dr.
Livieri’s June 22, 2017 report because there was “no objective
medical support” for his findings that Plaintiff was: (1) limited
to sitting and standing or walking to less than two hours each
during an eight-hour work day; (2) requiring frequent shifting of
positions; (3) requiring fifteen to twenty unscheduled breaks per
day; and (4) missing more than four work days per month. (R. 18.)
Moreover, given that the report at issue was prepared on June 22,
2017, over two years after the date Plaintiff was last insured,
the ALJ’s weighting was reasonable. Finally, the ALJ credited Dr.
Livrieri’s opinion that Plaintiff “can lift/carry up to 20 pounds
frequently and frequently twist, stoop (bend), crouch and climb
ladders and stairs” in assessing Plaintiff’s RFC. (R. 18-19.)
Thus, as is readily apparent, the ALJ did not exclude Dr.
Livrieri’s opinion.
The ALJ also did not violate the “treating physician’s
rule” because he articulated his reasons for declining to afford
controlling weight to certain portions of Dr. Livrieri’s reports.
The treating physician’s rule provides that the medical opinions
and reports of a claimant’s treating physicians are to be given
“special evidentiary weight.” Clark v. Comm’r of Soc. Sec., 143
F.3d 115, 118 (2d Cir. 1998). The regulations state:
Generally, we give more weight to opinions
from your treating sources . . . . If we find
that a treating source’s opinion on the
issue(s) of the nature and severity of your
impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the
other substantial evidence in your case
record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2) (emphasis supplied).4 Nevertheless,
the opinion of a treating physician “need not be given controlling
weight where [it is] contradicted by other substantial evidence in
the record.” Molina v. Colvin, No. 13-CV-4701, 2014 WL 3925303,
at *2 (S.D.N.Y. Aug. 7, 2014) (internal quotation marks and
citations omitted). When an ALJ does not afford controlling
weight to the opinion of a treating physician, the ALJ must
consider several factors: “(1) the length of the treatment
relationship and frequency of the examination; (2) the nature and
4 “While the Act was amended effective March 27, 2017 [to
eliminate the treating physician rule], the Court reviews the
ALJ’s decision under the earlier regulations because the
Plaintiff’s application was filed before the new regulations
went into effect.” Williams v. Colvin, No. 16-CV-2293, 2017 WL
3701480, at *1 (E.D.N.Y. Aug. 25, 2017); see also 20 C.F.R.
§ 404.1527 (“For claims filed (see § 404.614) before March 27,
2017, the rules in this section apply. For claims filed on or
after March 27, 2017, the rules in § 404.1520c apply.”).
extent of the treatment relationship; (3) the extent to which the
opinion is supported by medical and laboratory findings; (4) the
physician’s consistency with the record as a whole; and (5) whether
the physician is a specialist.” Schnetzler v. Astrue, 533 F.
Supp. 2d 272, 286 (E.D.N.Y. 2008). The ALJ must also set forth
“‘good reasons’ for not crediting the opinion of a [plaintiff’s]
treating physician.” Id. However,
[a]n application of the treating physician
rule is sufficient when the ALJ provides ‘good
reasons’ for discounting a treating
physician’s opinion that reflect in substance
the factors as set forth in [Section]
404.1527(d)(2), even though the ALJ declines
to examine the factors with explicit reference
to the regulation.
Crowell v. Comm’r of Soc. Sec., 705 F. App’x 34, 35 (2d Cir. 2017)
(summary order) (“While the ALJ did not explicitly discuss the
treating physician rule, he nonetheless stated that [the
physician’s] opinion . . . was contradictory to the rest of the
record evidence.”).
Here, although the ALJ did not necessarily recount the
factors (see 20 C.F.R. § 416.927) in assigning “very little weight”
to some of Dr. Livieri’s opinions, the Second Circuit has made
clear that the ALJ need not produce a “slavish recitation of each
and every factor [set forth in 20 C.F.R. § 404.1527(c)] where the
ALJ’s reasoning and adherence to the regulation are clear.” See
Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013); see also
Khan v. Astrue, No. 11-CV-5118, 2013 WL 3938242, at *15 (E.D.N.Y.
July 30, 2013). Rather, the ALJ need only apply “the substance of
the treating physician rule.” Halloran v. Barnhart, 362 F.3d 28,
32 (2d Cir. 2004).
Here, in reaching his conclusions, the ALJ discussed the
opinions of several sources. The ALJ assigned “some weight” to
Dr. Pollack’s opinion that Plaintiff has a moderate restriction in
lifting and carrying and should avoid height, and operating heavy
machinery and activities which require heavy exertion or which may
put him at risk for a fall. (R. 17.) The ALJ assigned “greater
weight” to the opinion of Dr. Inserra who treated Plaintiff eleven
times from October 29, 2014 through March 5, 2015. (R. 285-311.)
Interestingly, Plaintiff reported “feeling fine” and never
complained of any gastric distress during his visits with Dr.
Inserra. (R. 285-311.) The ALJ gave this opinion greater weight
because he examined Plaintiff “on many occasions”. (R. 17.) The
ALJ assigned “very little weight” to opinions of Dr. Livieri
concerning Plaintiff’s gastrointestinal-related limitations
finding that there is “no objective medical support” for the
physical restrictions recommended by Dr. Livieri together with the
fact that Dr. Livieri is a general family practitioner and not a
gastroenterologist. (R. 18.) Thus, the ALJ’s determination is
supported by substantial evidence.
CONCLUSION
For the foregoing reasons, Defendant’s cross-motion for
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) (D.E. 13) is GRANTED, and Plaintiff’s motion for
Judgment on the Pleadings pursuant to Federal Rule 12(c) (D.E. 9)
is DENIED.
The Clerk of the Court is directed to enter judgment in
accordance with this Memorandum and Order and to mark this matter
CLOSED.
SO ORDERED
_/s/ JOANNA SEYBERT _
Joanna Seybert, U.S.D.J.
Dated: June 8__, 2020
Central Islip, New York