# Martin v. Commissioner of Social Security

> District Court, N.D. New York · September 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10312104

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10312104

## How later opinions describe it (automated extraction)

- concluding that an ALJ, in determining claimant’s RFC, could not rely on a consulting examiner’s “remarkably vague” opinion that the claimant “should be able to lift . . . objects of a mild degree of weight on an intermittent basis”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Suzanne M.,
Plaintiff,
-against- 6:18-CV-485 (LEK)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On April 19, 2018, Plaintiff Suzanne M. filed an action in this Court under the Social
Security Act. Dkt. No. 1 (“Complaint”). She seeks review of the determination of the
Commissioner of Social Security that she was not disabled during the period June 19, 2014

through the date of the Administrative Law Judge’s (“ALJ’s”) decision, March 7, 2017 (the
“relevant period”), and is therefore ineligible for disability insurance benefits and supplemental
security income. Compl.; see also Dkt. Nos. 9 (“Record”); 12 (“Plaintiff’s Brief”); 13
(“Defendant’s Brief”). For the reasons that follow, the Commissioner’s determination of no
disability is affirmed.
II. LEGAL STANDARD
A. Standard of Review
When a district court reviews an ALJ’s decision, it must determine whether the ALJ
applied the correct legal standards and whether his or her decision is supported by substantial

evidence in the record. 42 U.S.C. § 405(g). Substantial evidence amounts to “more than a mere
scintilla,” and it must reasonably support the decision-maker’s conclusion. Halloran v. Barnhart,
362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). A
court will defer to the ALJ’s decision if it is supported by substantial evidence, “even if [the
court] might justifiably have reached a different result upon a de novo review.” Sixberry v.
Colvin, No. 12-CV-1231, 2013 WL 5310209, at *3 (N.D.N.Y. Sept. 20, 2013) (quoting Valente

v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). However, a court
should not uphold the ALJ’s decision—even when there is substantial evidence to support it—if
it is based on legal error. Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998).
B. Standard for Benefits
According to Social Security Administration (“SSA”) regulations, a disability is defined
as “the inability to do 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.” 20 C.F.R.

§ 404.1505(a). An individual seeking disability benefits “need not be completely helpless or
unable to function.” De Leon v. Sec’y of Health and Human Servs., 734 F.2d 930, 935 (2d Cir.
1984). In order to receive disability benefits, a claimant must satisfy the requirements of a five-
step evaluation process. § 404.1520(a)(1). If the ALJ is able to determine that the claimant is
disabled or not disabled at any step, the evaluation ends. § 404.1520(a)(4). Otherwise, the ALJ
will proceed to the next step. Id.
At step one, the ALJ must determine whether the claimant is engaged in “substantial
gainful work activity.” § 404.1520(a)(4)(i). If so, the claimant is not disabled under SSA
regulations. Id. At step two, the ALJ must determine whether the claimant has an impairment, or

combination of impairments, that is “severe,” i.e., that “significantly limits” the claimant’s
2
“physical or mental ability to do basic work activities.” §§ 404.1520(a)(4)(ii), 416.920(c). If the
claimant does not have such an impairment, the claimant is not disabled under SSA standards.
Id. At step three, the ALJ asks whether the claimant’s medically determinable physical or mental
impairment(s) are as severe as an impairment of the requisite duration listed in Appendix 1 of

Subpart P of § 404. § 404.1520(a)(4)(iii); 20 C.F.R., Pt. 404, Subpt. P, App. 1. If the claimant’s
impairment(s) are as severe then the claimant is disabled. § 404.1520(a)(4)(iii). If not, the ALJ
moves on to step four and reviews the claimant’s residual functioning capacity (“RFC”) and past
work. § 404.1520(a)(4)(iv). A claimant is not disabled under SSA standards if she can perform
past work. Id. If the claimant cannot perform her past work, the ALJ decides at step five whether
adjustments can be made to allow the claimant to work somewhere in a different capacity.
§ 404.1520(a)(4)(v). If the claimant “cannot make an adjustment to other work,” then the
claimant is disabled. Id. In the first four steps, the claimant bears the burden of proof; at step
five, the burden shifts to the SSA. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting

Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)).
III. BACKGROUND
A. The Disability Allegations and Plaintiff’s Testimony
Plaintiff is a fifty-five-year-old woman who has at least a high-school education and has
a certification to practice as a licensed practical nurse (“LPN”). R. at 27, 39, 43. She has the past
work of a LPN. Id. at 26. Plaintiff seeks a finding of disability due to fibromyalgia, anxiety,
depression, panic attacks, herniated disks in the neck, back pain, PTSD, chronic fatigue
syndrome, arthritis, migraines, irritable bowel syndrome, carpal tunnel syndrome, bone spurs on

her heals, right knee pain, right eye vision problems, memory loss, and dizziness. Id. at 106–07.
3
Plaintiff testified she last worked in any capacity as a licensed practical nurse in 2010. Id.
at 40. In explaining why she is unable to work today, Plaintiff testified about the “pain of being
on my feet” or in “any upright position.” Id. at 41. She further testified, “As soon as I’m up, the
pain just gets worse.” Id. She added, “I have problems with remembering things now and, like, a

brain fog that just – sometimes I can’t even think clearly or get words to come out the way I need
to.” Id. Upon waking up in the morning, Plaintiff testified that she is “very stiff” in her neck,
shoulders, lower back, and feet, which makes it “hard to get around.” Id. at 50. Plaintiff reported
that there are “days when [she] can’t even [shower] because [she is] too tired and in too much
pain.” Id. at 51. Plaintiff further reported that her neck, shoulders, lower back, and feet give her
the most pain, with her neck and shoulders hurting “constantly.” Id. at 57–58. Plaintiff testified
she has a “burning, deep ache” in the “top parts of her arms” and that “things [Plaintiff does with
her] hands or [her] arms increases that pain,” which in turn gives Plaintiff headaches. Id. at 58.
Regarding her lower back, Plaintiff reported she feels a “sharp ache,” which “burns” and which

travels “down [her] tailbone into [her] buttock” if she remains on her feet for twenty-five
minutes or sits for too long. Id. at 59. Plaintiff reported that she can stand about “25 minutes”
and walk about “7 minutes” before she needs to sit. Id. at 60. She testified she can sit “about an
hour” before she needs to stand up and that she can “probably lift 10-15 pounds.” Id. at 61.
Plaintiff reported she had carpal tunnel surgery on her right hand in 2015, which relieved the
“tingling” sensation in her hand and prevented her hand from “going to sleep, but it didn’t take
care of the pain.” Id. at 62. She testified that “[t]here’s not even a day where I have light pain.
Every day is painful, and everything I do makes the pain go up.” Id.

4
B. The ALJ’s Decision
On March 7, 2017, ALJ David J. Begley issued a decision finding that Plaintiff had not
been disabled since June 19, 2014, the amended alleged onset date for Plaintiff’s disabilities. R.
at 28.

First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since
June 19, 2014. Id. at 17. Second, the ALJ found that Plaintiff had the following severe
impairments: fibromyalgia, macular degeneration, anxiety, depression, bilateral carpal tunnel
syndrome status-post releases, obesity, and mild degenerative disc disease. Id. at 18. Third, the
ALJ found that Plaintiff did not have impairment(s) that met or medically equaled the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1 (§§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, and 416.926). Id. at 19–21. Fourth, the ALJ found that, during
the relevant period, Plaintiff had the RFC to perform light work as defined in § 416.967(b)

except the claimant:
is prohibited from climbing ladders, ropes, or scaffolds, but can
occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl. The claimant can frequently handle and finger bilaterally.
The claimant needs to avoid concentrated exposure to extreme heat
and cold, and to humidity and wetness. The claimant needs to avoid
slippery and uneven surfaces, as well as hazardous machinery,
unprotected heights, and open flames. The claimant is limited to jobs
that should be performed with only monocular vision in the left eye.
The claimant is limited to low stress jobs, defined as having no
hazardous conditions, only occasional decision making required, or
only occasional changes in the work setting. The claimant is also
limited to semi-skilled jobs with a specific vocational preparation
(SVP) of three to four.
Id. at 21.
In making this determination, the ALJ considered opinion evidence in accordance with
5
the requirements of §§ 404.1527 and 416.927 and Social Security Rulings (“SSRs”) 96–2p,
96–5p, 96–6p, and 06–3p. Id. He also considered all symptoms and the extent to which these
symptoms could reasonably be accepted as consistent with the objective medical evidence and
other evidence (based on the requirements of §§ 404.1529 and 416.929 and SSR 96–4p). Id. The

relevant portions of the ALJ’s analysis of the available opinion evidence and Plaintiff’s
symptoms are discussed below.
Finally, while the ALJ found Plaintiff unable to perform any past relevant work, id. at
26, he found that Plaintiff could perform work as a “mail room clerk,” “price marker,” or “office
helper.” Id. at 28.
Plaintiff appealed the ALJ’s decision, but the SSA’s Appeals Council denied review. Id.
at 1–3.
IV. DISCUSSION

Plaintiff argues that the ALJ erred by (1) failing to find that Plaintiff has a presumed
disability pursuant to listings at 20 C.F.R. Part 404, Subpt. A, App. 1 § 1.04; (2) subordinating
the opinions of Dr. Hom Neupane, a rheumatologist and Plaintiff’s treating physician, and Nurse
Practitioner Linda O’Connor to that of Dr. Kautilya Puri, a consultative examiner; (3)
improperly considering Plaintiff’s subjective complaints of pain in determining Plaintiff’s RFC;
(4) improperly concluding that Plaintiff can perform jobs that are “low stress” and that are
“semi-skilled . . . with a specific vocational preparation (SVP) of three to four,” R. at 21; and (5)
failing to consider a later onset date for Plaintiff’s disability.
A. Listing 1.04

Plaintiff claims that her impairments satisfy the requirements of Listing 1.04 (disorders of
6
the spine). Pl.’s Br. 12–13. To show that an impairment meets or is medically equal to a listing, a
claimant must show that her impairments “meet all of the specified criteria.” Sullivan v. Zebley,
493 U.S. 521, 530 (1990); accord Solis v. Berryhill, 692 F. App’x 46, 48 (2d Cir. 2017); King v.
Astrue, 32 F. Supp. 3d 210, 218 (N.D.N.Y. 2012). If a claimant’s impairment “manifests only

some of those criteria, no matter how severely,” the impairment does not qualify. Barber v.
Comm’r of Soc. Sec., No. 15-CV-338, 2016 WL 4411337, at *3 (N.D.N.Y. July 22, 2016),
report and recommendation adopted sub nom. Barber v. Colvin, No. 15-CV-338, 2016 WL
4402033 (N.D.N.Y. Aug. 18, 2016) (quoting Sullivan, 493 U.S. at 530) (internal quotation marks
omitted). To satisfy this burden, a claimant must show abnormal physical findings that “must be
determined on the basis of objective observation during the examination and not simply a report
of the individual’s allegation.” 20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.00(D).
Section 1.04 addresses disorders of the spine and requires a showing of a “compromise of
a nerve root . . . or the spinal cord” with:

(A) Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness) accompanied
by sensory or reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and supine); or
(B) Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medical imaging,
manifested by severe burning or painful dysesthesia, resulting in the
need for changes in position or posture more than once every 2 hours;
or
(C) Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable imaging,
manifested by chronic nonradicular pain and weakness, and resulting
in inability to ambulate effectively.
§ 1.04(A)–(C).
7
The ALJ found that while “[t]he medical evidence establishes degenerative disc disease
of the cervical and lumbar spine,” Plaintiff did not meet any of the additional listing criteria as
outlined in § 1.04(A)–(C) above. R. at 19. The ALJ did not err in finding that Plaintiff’s
impairments do not satisfy the requirements of § 1.04. Plaintiff points to 2016 MRIs of her spine

as evidence that she meets the § 1.04 listing criteria, Pl.’s Br. 3–5, 12–13, but the 2016 cervical
spine MRI did not reveal nerve root compression or spinal arachnoiditis and the 2016 lumbar
spine MRI did not reveal nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis,
R. at 641, 831–32. Plaintiff also argues that the record contains findings of a positive straight-leg
raising test and muscle weakness, which demonstrate that Plaintiff meets the § 1.04 listing
criteria. Pl.’s Br. at 13. Plaintiff does not cite to a specific part of the record demonstrating a
positive straight-leg raising test, and Plaintiff fails to account for clinical findings in the record
indicating full strength, a negative straight-leg raising test, normal muscle tone, and normal
coordination. For instance, Dr. Michelle M. Johnston and Dr. Kautilya Puri, a consultative

examiner, observed clinical findings of full (5/5) strength in her extremities and a negative
straight-leg raising test, R. at 492, 600, 734, while Dr. Alan M. Smiley listed a “normal exam” of
the low back, hips, knees, feet and ankles, id. at 520, 522, 524. Dr. Hom Neupane, a
rheumatologist and Plaintiff’s treating physician, found Plaintiff to have normal muscle tone and
coordination. Id. at 500. In sum, the Court finds that the ALJ correctly determined that Plaintiff
does not satisfy the criteria of Listing 1.04.
B. Plaintiff’s RFC
In determining Plaintiff’s RFC, the ALJ must consider all of the relevant medical and

other evidence in the record to assess her ability to meet the physical, mental, sensory, and other
8
requirements of work. § 404.1545(a)(3)–(4); see also SSR 96–8p. Here, the ALJ determined that
Plaintiff had the RFC to perform light work as defined in §§ 404.1567(b) and 416.967(b) (with
certain exceptions as described above). Plaintiff has not met her burden of proving she cannot
perform her RFC. See §§ 404.1545(a)(3), 416.945(a)(3).

1. The ALJ’s Treatment of Medical Opinions
Plaintiff argues that the ALJ should have afforded greater weight to the opinion of her
treating physician, Dr. Neupane, and that of Nurse Practitioner (“NP”) Linda O’Connor. Pl.’s Br.
at 15–16. The SSA regulations provide that “opinions from [a claimant’s] treating sources” are
“give[n] more weight” than other sources, and are even given “controlling weight” when the
treating source’s opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence” in the record.
§ 404.1527(c)(2). “[G]ood reasons” must be given for declining to afford a treating physician’s
opinion controlling weight. §§ 404.1527(c)(2), 416.927(c)(2); Schisler v. Sullivan, 3 F.3d 563,

568 (2d Cir. 1993). Factors that indicate the weight to be accorded to the treating physician’s
opinion include: “(i) the frequency of examination and the length, nature, and extent of the
treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion’s consistency
with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other relevant
factors.” Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998); see also § 404.1527(c)(2). The law
does not require “slavish recitation of each and every factor” listed in § 404.1527(c) so long as
“the ALJ’s reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 F. App’x
67, 70 (2d Cir. 2013).

The ALJ only gave “little weight” to Dr. Neupane’s June 2016 medical source statement,
9
which appears to be the only opinion evidence Dr. Neupane provided. In this statement, Dr.
Neupane opined that Plaintiff has 18/18 tender points, “tender muscles,” “tender joints,” and
“inflammatory arthritis” Id. at 25, 644–45. The ALJ afforded Dr. Neupane’s opinion the
appropriate weight. He observed that “[a]lthough Dr. Neupane is a treating source, there is no

evidence of a longitudinal treatment history as he reported that he had been treating the claimant
for less than a year with no comment regarding the frequency of treatment.” R. at 25. A review
of the record indicates that Dr. Neupane only examined Plaintiff on three occasions before he
rendered his opinion in this case. Id. at 500, 509–10, 612. The ALJ also discounted Dr.
Neupane’s assessment based on its structure as a form report. Id. at 25. “Form reports, in which a
source’s only obligation is to fill in a blank or check off a box, are entitled to little weight in the
adjudicative process.” Burnette v. Astrue, No. 12-CV-6270, 2013 WL 3422447, at *10
(W.D.N.Y. July 8, 2013) (citing cases). And the less consistent a treating physician’s opinion is
“with the record as a whole, the less weight it will be given.” Snell v. Apfel, 177 F.3d 128, 133

(2d Cir. 1999). The record, including Dr. Neupane’s own treatment notes, conflicts with his
opinion that Plaintiff would need to “be off-task for least 25% of the time in an 8-hour block of
time,” that she would be absent from work “[m]ore than four days per month,” and that she
needed to “lay down intermittently throughout the day.” R. at 645–47. Indeed, Plaintiff reported
to Dr. Neupane in September 2015 that she “gets episodes of weakness and shakiness of all 4
extremities lasting” for just “1-2 day[s] once a month,” that she has morning stiffness in her hip
and various joints for just “10 minutes,” and that she has “no gait difficulties.” Id. at 506.
Moreover, Dr. Neupane’s opinion was inconsistent with other medical findings in the

record. Dr. Smiley, who observed Plaintiff in March, June, and September 2014, reported a
10
“normal exam” of the low back, hips, knees, feet, and ankles, “normal gait,” and no “synovitis”
or inflammation in the “small joints of the hands, wrists, elbows, shoulders.” Id. at 520, 522,
524. And while Dr. Johnston found “mild tenderness” in Plaintiff’s lumbar spine, she found that
Plaintiff “[w]alks with a normal gait,” that Plaintiff had a negative straight-leg test, and that

Plaintiff had normal reflexes. Id. at 600, 734. NP O’Connor consistently observed that Plaintiff
had a “steady” or “normal” gait upon examining Plaintiff in 2015 and 2016. Id. at 675, 695, 715,
748. She found Plaintiff’s lower extremities to be “[n]ormal to inspection and palpation,” to have
full strength bilaterally, and to have full range of motion bilaterally. Id. at 695, 715. Finally, Dr.
Puri found that Plaintiff’s “gait with and without” a cane to be the same, that Plaintiff was able
to sit down in and rise from a chair without difficulty, and that Plaintiff had full range of motion
and full strength (5/5) bilaterally in her upper and lower extremities. Id. at 491–92. This
extensive medical evidence shows that the ALJ did not improperly discount Dr. Neupane’s
opinion when determining Plaintiff’s RFC.

The ALJ also correctly afforded NP O’Connor’s opinion “little weight.” Id. at 25. NP
O’Connor opined that the Plaintiff could barely even perform sedentary work with no postural
activities and severe limitations on reaching and manipulative activities. R. at 672. She further
opined that Plaintiff’s pain, fatigue, and concentrating deficits would prohibit her from working
at least 50 percent of an eight-hour workday. Id. According to SSR 06–3p, “only ‘acceptable
medical sources’ can be considered treating sources . . . whose medical opinions may be entitled
to controlling weight.” SSR 06–3p. “Acceptable medical sources” are further defined by
regulation as licensed physicians, psychologists, optometrists, podiatrists, and qualified

speech-language pathologists. § 416.913(a). In contrast, nurse practitioners are defined as “other
11
sources” whose opinions may be considered when evaluating the severity of the claimant’s
impairment and ability to work, but need not be assigned controlling weight. § 416. 913(d)(1).
The ALJ “has the discretion to determine the appropriate weight to accord the [other source]’s
opinion based on the all evidence before” him or her. Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir.

1995); see also Genier v. Astrue, 298 F. App’x 105, 108–09 (2d Cir. 2008) (“[M]any of the key
medical opinions cited during the benefits period at issue were those of a physician’s assistant
and a nurse practitioner—and not a physician. As such, the ALJ was free to discount the
assessments accordingly in favor of the objective findings of other medical doctors. There was
no treating physician error.”).
NP O’Connor was an “other source[]” rather than an “acceptable medical source” under
the SSA regulations and, hence, she could not be a “treating source” for purposes of the treating
physician rule. “There was no treating physician error” in assigning her little weight. See Genier,
298 F. App’x at 108–09. Additionally, the ALJ correctly determined NP O’Connor’s opinion did

not accord with the medical evidence contained in the record. R. at 25. For instance, while NP
O’Connor concluded Plaintiff possessed significant limitations in her ability to lift, carry, sit,
stand, and walk, id. at 671, Dr. Puri observed Plaintiff’s “gait with and without” a cane to be the
same, that Plaintiff was able to sit down in and rise from a chair without difficulty, and that
Plaintiff had full range of motion and strength bilaterally in her upper and lower extremities. Id.
at 491–92. Given these inconsistences, this Court concludes that the ALJ did not err in declining
to afford NP O’Connor’s opinion greater weight.
Plaintiff further argues that the ALJ should have afforded lesser weight to the opinion of

her consultative examiner, Dr. Puri. Pl.’s Br. at 15–16. It is true that normally “a consulting
12
physician’s opinions . . . should be given limited weight” because “consultative exams are often
brief, are generally performed without the benefit or review of the claimant’s medical history
and, at best, only give a glimpse of the claimant on a single day,” Cruz v. Sullivan, 912 F.2d 8,
13 (2d Cir. 1990). And it is true that such an opinion is problematic when vague, like that of Dr.

Puri.1 R. at 25; see also Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (concluding that an
ALJ, in determining claimant’s RFC, could not rely on a consulting examiner’s “remarkably
vague” opinion that the claimant “should be able to lift . . . objects of a mild degree of weight on
an intermittent basis”) (citing Curry, 209 F.3d at 123–24). But an ALJ may give great weight to a
consultative examiner’s opinion if it is consistent with record evidence. Suttles v. Colvin, 654 F.
App’x 44, 46 (2d Cir. 2016). Dr. Puri’s opinion, as discussed above, is consistent with other
opinion evidence and is supported by medical evidence, see, e.g., R. at 641 (indicating Plaintiff
has degenerative disc disease of the spine), 644 (indicting Plaintiff has “tender muscles” and
“tender joints”). Thus, the Court concludes that the ALJ afforded Dr. Puri’s opinion the

appropriate amount of weight.

2. The ALJ’s Treatment of Plaintiff’s Credibility

1 Dr. Puri opined that the Plaintiff has “mild” limitations to her gait or to activities of
daily living. R. at 492. He also opinion that Plaintiff has “mild” limitations of squatting, bending,
stopping, keneling, overhead reading, and lifiting weights.
13
Plaintiff argues that the ALJ did not properly consider Plaintiff’s subjective complaints of
pain in determining Plaintiff’s RFC. See Pl.’s Br. at 15. When considering Plaintiff’s symptoms,
the ALJ must ascertain whether there are medical impairment(s) shown by “medically acceptable
clinical or laboratory diagnostic techniques” that “could reasonably be expected to produce the

pain or other symptoms alleged.” §§ 404.1529(b), 416.929(b). If the objective medical evidence
shows a medically determinable impairment that could reasonably be expected to produce the
claimant’s pain or other symptoms, the ALJ must evaluate the intensity and persistence of those
symptoms by looking at “all of the evidence from [the claimant’s] medical sources and
nonmedical sources.” See §§ 404.1529(c)(1)-(2), 416.929(c)(1)-(2). And if a claimant’s
symptoms suggest a greater restriction than demonstrated by objective evidence, the ALJ
considers various factors, such as the claimant’s daily activities and the type and dosage of any
medication the claimant has taken to alleviate her pain. See §§ 404.1529(c)(3), 416.929(c)(3). “It
is the Secretary’s function[,] not the district court’s[,] to appraise the credibility of witnesses,

including the plaintiff.” Serra v. Sullivan, 762 F. Supp. 1030, 1034–35 (W.D.N.Y. 1991).
The ALJ did not err in finding the Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms are not entirely credible. Id. at 22–25. Not only
are Plaintiff’s allegations of “totally disabling physical and mental symptoms and limitations”
inconsistent with the medical evidence available in the record, they are also undermined by
Plaintiff’s admitted ability to shop, cook, clean, do laundry, read, and “go[] out.” Id. at 23–25,
490; see also id. at 52–54; §§ 404.1529(c)(3), 416.929(c)(3). And while Plaintiff argues her
“efforts to address [her] pain have been exhaustive,” Pl.’s Br. at 15, she ceased taking

medication for her pain because of her “fear of side effects,” R. at 411; see also §§
14
404.1529(c)(3), 416.929(c)(3). Finally, Plaintiff asserts that “[n]o treating source suggested that
she was exaggerating symptoms of pain, weakness, and fatigue,” Pl.’s Br. at 15, but the ALJ “is
not required to accept the claimant’s subjective complaints without question; he may exercise
discretion in weighing the credibility of the claimant’s testimony in light of the other evidence in

the record.” Rock v. Colvin, 628 F. App’x 1, 3 (2d Cir. 2015) (citing Genier v. Astrue, 606 F.3d
46, 49 (2d Cir. 2010)) (internal quotation marks omitted). The ALJ’s adverse credibility findings
comply with the SSA regulations and is supported by substantial evidence. Hence, the Court
concludes these findings must stand.
3. The ALJ’s Treatment of Plaintiff’s Alleged Mental Impairments
Plaintiff takes issue with the ALJ’s conclusion that Plaintiff is limited to jobs that are
“low stress” and that are “semi-skilled . . . with a specific vocational preparation (SVP) of three
to four.” R. at 21. She argues that Dr. Toby K. Davis’s “neuropsychological report . . .
documents that this plaintiff suffers from a combination of exertional and non-exertional

impairments that dramatically reduce the occupational base for the types of simple, low stress[,]
light occupations that the ALJ found appropriate.” Pl.’s Br. at 16. Yet much of Dr. Davis’s report
is speculative and includes “no more than” Dr. Davis’s “recording of [Plaintiff’s] own reports of
pain,” which means Dr. Davis’s opinion is not entitled to deference. See Polynice v. Colvin, 576
F. App’x 28, 31 (2d Cir. 2014). For example, Dr. Davis opined that Plaintiff “has likely
experienced a disturbing traumatic event in the past, an event that continues to distress her and
produce recurrent episodes of anxiety,” R. at 368, but that report contains no documentation of
such an event. And, as another example, Dr. Davis concludes Plaintiff “is likely to be plagued by

thoughts of worthlessness, hopelessness, and personal failure . . .[,] is likely to show a
15
disturbance in sleep pattern, a decrease in level of energy and sexual interest, and a loss of
appetite and/or weight” because of Plaintiff’s self-reports of “a number of difficulties consistent
with a significant depressive experience.” Id. Furthermore, Plaintiff has failed to demonstrate
how Dr. Davis’s report shows how Plaintiff has impairments that “dramatically reduce the

occupational base for the types of simple, low stress[,] light occupations that the ALJ found
appropriate.” Pl.’s Br. at 16. Consequently, the ALJ’s determination of Plaintiff’s RFC
adequately accounts for Plaintiff’s mental limitations.
C. Plaintiff’s Disability Onset Date
Plaintiff contends that the ALJ failed to consider a later onset date of August 21, 2014 for
Plaintiff’s disability, which is the date on which Plaintiff turned 50, instead of March 28, 2012,
which is the original alleged onset date. Pl.’s Br. at 16–17. The crux of Plaintiff’s argument is
that ALJ should have found Plaintiff to be limited to sedentary work as described in

§ 416.967(a), not light work as outlined in § 416.967(b), because, had the ALJ done so, Plaintiff
would have been found to be disabled because she has already attained the age of 50. Id. While
Plaintiff might find it a “miscarriage of justice” that Plaintiff may “now have to wait until
retirement age in order to collect on [] Social Security benefits,” id. at 17, “[t]he Court’s scope of
review is thus limited to determining whether the Commissioner’s findings were supported by
substantial evidence in the record . . . .” Burnette, 2013 WL 3422447, at *10 (citing Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). As discussed above, the ALJ’s determination that
Plaintiff has an RFC to perform light work is supported by substantial evidence and the Court
therefore affirms his decision to deny Plaintiff’s claim.

16
D. Remand for Calculation of Benefits
Finally, Plaintiff argues that this Court should remand the case for a calculation of
benefits. Pl.’s Br. at 17-18. A remand for calculation of benefits is warranted “when the record
provides persuasive proof of disability ... .” Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980);
see also Butts v. Barnhart, 388 F.3d 377, 385-86 (2d Cir. 2004). As Plaintiff has failed to prove
she is disabled, then remand on this issue is not warranted. See Parker, 626 F.2d at 235.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Commissioner’s determination of no disability is AFFIRMED; and
it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED: September 26, 2019
Albany, New York

U.S. District Judge

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312104. Public record. Not legal advice.