Keeler v. Saul

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

VICKY K.,

Plaintiff,

vs. 6:19-CV-519

(MAD)

ANDREW SAUL, Commissioner of

Social Security,1

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

OFFICE OF PETER M. HOBAICA, LLC B. BROOKS BENSON, ESQ.

2045 Genesee Street

Utica, New York 13501

Attorneys for Plaintiff

SOCIAL SECURITY ADMINISTRATION ANDREEA L. LECHLEITNER, ESQ.

OFFICE OF REGIONAL GENERAL

COUNSEL REGION II

26 Federal Plaza - Room 3904

New York, New York 10278

Attorneys for Defendant

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff, Vicky K., commenced this action on April 30, 2019, pursuant to 42 U.S.C. §§

405(g) and 1383(c), seeking review of a decision by the Commissioner of Social Security denying

Plaintiff's application for Social Security Disability Insurance ("SSDI"). See Dkt. No. 1. On

1 Andrew Saul was sworn in as Commissioner of the Social Security Administration on

June 17, 2019. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew Saul is

substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this action.

February 9, 2016, Plaintiff filed an application for disability insurance benefits, alleging an onset

date of February 7, 2016. See Administrative Transcript ("Tr.") at 180. Plaintiff's application was

denied and she filed a timely request for a hearing before an Administrative Law Judge ("ALJ").

See id. at 93, 101. A hearing was held before ALJ Charles Woode on April 17, 2018. See id. at

35-80. On June 6, 2018, the ALJ issued a decision denying Plaintiff's application. See id. at 10-

22. Plaintiff subsequently requested review by the Appeals Council and was denied such review.

See id. at 1, 178. Presently before the Court are the parties' cross-motions for judgment on the

pleadings. See Dkt. Nos. 12, 13.

II. BACKGROUND

At the time of her application, Plaintiff was forty-six years old. See Tr. at 180. Plaintiff

has a high school diploma and previously worked as a cook and waitress at various restaurants.

See id. at 210. The record indicates that Plaintiff suffers from a variety of conditions including

cervical degenerative joint disease status-post fusion, lumbar degenerative disc disease, urinary

frequency, obesity, depression, and anxiety. See id. at 12. The record evidence in this case is

undisputed and the Court adopts the parties' factual recitations. See Dkt. No. 12 at 5-17; Dkt. No.

13 at 3 ("The Commissioner adopts the summary of the procedural history and statement of facts,

set forth in plaintiff's brief. . . except for any inferences and conclusions asserted therein. The

Commissioner also adopts the summary of facts as outlined by [the ALJ]").

III. DISCUSSION

A. Standard of Review

A person is disabled when he is unable "to engage in 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

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months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). There is a five-step analysis for evaluating

disability claims:

"In essence, if the Commissioner determines (1) that the claimant is

not working, (2) that he has a 'severe impairment,' (3) that the

impairment is not one [listed in Appendix 1 of the regulations] that

conclusively requires a determination of disability, and (4) that the

claimant is not capable of continuing in his prior type of work, the

Commissioner must find him disabled if (5) there is not another

type of work the claimant can do."

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311

F.3d 468, 472 (2d Cir. 2002)) (other citation omitted). "The claimant bears the burden of proof on

the first four steps, while the Social Security Administration bears the burden on the last step." Id.

(citation omitted).

In reviewing a final decision by the Commissioner under Title 42, United States Code

Section 405, the Court does not determine de novo whether a plaintiff is disabled. See 42 U.S.C.

§§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.

1990). Rather, the Court must examine the Administrative Transcript to ascertain whether the

correct legal standards were applied, and whether the decision is supported by substantial

evidence. See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496,

501 (2d Cir. 1998). "Substantial evidence" is evidence that amounts to "more than a mere

scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971).

If supported by substantial evidence, the Commissioner's finding must be sustained "even

where substantial evidence may support the plaintiff's position and despite that the court's

independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan,

805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.

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1982)) (other citations omitted). In other words, this Court must afford the Commissioner's

determination considerable deference, and may not substitute "its own judgment for that of the

[Commissioner], even if it might justifiably have reached a different result upon a de novo

review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)

(citation omitted).

B. The ALJ's Decision

At the first step of the sequential analysis, the ALJ found that Plaintiff had not engaged in

substantial gainful activity since February 7, 2016, the alleged onset date. See Tr. at 12. At step

two, the ALJ concluded that Plaintiff had the following severe impairments: cervical degenerative

joint disease status-post fusion, lumbar degenerative disc disease, urinary frequency, obesity,

depression, and anxiety. See id. At step three, the ALJ determined that Plaintiff did not have an

impairment or combination of impairments that functionally equals the severity of any impairment

listed in C.F.R. Part 404, Subpart P, Appendix 1. See id. at 13. The ALJ then found that Plaintiff

has the residual functional capacity to perform light work as defined

in 20 CFR 404.1567(b) except the individual can occasionally

balance, stoop, kneel, crouch, crawl, and climb ramps or stairs. She

cannot climb ladders, ropes or scaffolds. She can frequently handle

and finger bilaterally. She may require the opportunity to sit for a

minute or two after standing between 45-60 minutes. The claimant

should work close to restroom facilities. She should avoid

concentrated exposure to hazards such as commercial driving,

unprotected heights, and dangerous machinery. Mentally, she is

capable of performing simple routine tasks. She can have

occasional or superficial interactions with co-workers, supervisors,

and the public.

Id. at 16. At step four, the ALJ found that Plaintiff had no past relevant work. See id. at 20. At

the fifth and final step of the analysis, the ALJ solicited the testimony of a vocational expert. See

id. at 20-21. The vocational expert testified that a hypothetical individual of Plaintiff's age, with

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her education, past relevant work experience, and RFC could perform the representative

occupations of office worker helper, housekeeper, and router/marker. See id. at 21. The ALJ

relied on this testimony to determine that Plaintiff is not disabled as defined by the Social Security

Act. See id. at 21-22.

C. Analysis

1. Weighing the Opinion Evidence

The treating physician rule states that "the opinion of a claimant's treating physician as to

the nature and severity of the impairment is given 'controlling weight' so long as it 'is

well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] case record.'" Burgess v. Astrue, 537 F.3d

117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)). Medical opinions given by

providers who are not acceptable medical sources are not subject to the treating physician rule. 20

C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). "'Acceptable medical sources' are further defined (by

regulation) as licensed physicians, psychologists, optometrists, podiatrists, and qualified speech-

language pathologists." Genier v. Asrtue, 298 Fed. Appx. 105, 108 (2d Cir. 2008) (citing 20

C.F.R. § 416.913(a)). An occupational therapist is not considered an "acceptable medical source"

pursuant to the regulatory definition. See Mockler v. Berryhill, No. 2:15-CV-227, 2017 WL

1735132, *9 (D. Vt. May 3, 2017) (citing 20 C.F.R. § 416.902(a)).

When an ALJ is considering how best to weigh the opinion of a non-acceptable medical

source and other non-treating medical opinions, the ALJ must consider a number of factors,

including: (i) the frequency of the examination and the length, nature and extent of the treatment

relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of

the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other

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factors brought to the Social Security Administration's attention that tend to support or contradict

the opinion. See SSR 06-03P, 2006 WL 2329939, at *4; see also 20 C.F.R. § 404.1527(c). After

accounting for these factors, the ALJ should generally explain the weight given to opinions from

non-acceptable medical sources or at least "ensure that the discussion of the evidence in the

determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's

reasoning, when such opinions may have an effect on the outcome of the case." See SSR 06-03P,

2006 WL 2329939, at *6.

Plaintiff argues that the ALJ erroneously rejected Mr. Alessandrini's opinion that Plaintiff

could not walk or stoop, and argues that this conclusion was entirely consistent with the medical

evidence. See Dkt. No. 12 at 24. Plaintiff claims that remand is required to allow for proper

consideration of Mr. Alessandrini's opinion as to Plaintiff's limitations. See id. at 25. Essentially,

Plaintiff argues that the ALJ's finding that Plaintiff could perform light work is not supported by

substantial evidence because it is not consistent with Mr. Alessandrini's opinion that Plaintiff had

significant limitations in walking, lifting, and carrying. See id. at 25.

The ALJ assigned very little weight to Mr. Alessandrini's opinion that Plaintiff could not

walk at all, stand up for more than ten minutes, balance, stoop, kneel, crouch, or crawl.2 See Tr. at

19. In doing so, the ALJ noted that, although Mr. Alessandrini's opinion was consistent with his

observations during the examination, it was not consistent with the bulk of the record evidence.

See id. The ALJ found that records from examinations from around the same time period noted

that Plaintiff had a normal gait and station with intact strength, sensation, and coordination. See

id. The record evidence supports this finding.

2 The Court notes that Mr. Alessandrini, an occupational therapist, is not considered an

acceptable medical source pursuant to the applicable guidelines. See Mockler, 2017 WL 1735132,

at *9 (citing 20 C.F.R. § 416.902(a)).

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On many occasions, Plaintiff presented with normal gate and was able to walk without

difficulty. See id. at 306, 370, 541, 552, 556, 560. Despite Mr. Alessandrini's opinion that

Plaintiff could not lift more than eight pounds frequently or fifteen pounds occasionally, Plaintiff

regularly demonstrated normal motor strength and sensation. See id. at 541, 552, 556, 562.

Further, Plaintiff reported being able to engage in a number of routine tasks which contradicts Mr.

Alessandrini's opinion, such as cooking, cleaning, and shopping. See id. Accordingly, the Court

finds that the ALJ properly weighed Mr. Alessandrini's opinion, as a non-acceptable medical

source, and the consistency of his opinion with the record as a whole. Further, the Court finds

that the ALJ's conclusion regarding Mr. Alessandrini's opinion is supported by substantial

evidence.

Plaintiff also takes issue with the ALJ's weighing of the opinions of Dr. Tzetzo and Dr.

Cole. See Dkt. No. 12 at 26-27. The ALJ assigned "great weight" to Dr. Tzetzo's opinion that

Plaintiff was capable of handling work involving brief and superficial contact with supervisors,

coworkers, and the public. See Tr. at 19. Plaintiff claims that this assessment is in error because

Dr. Tzetzo did not review records of Plaintiff's psychiatric symptoms following her neck surgery

in 2016. See id. In weighing Dr. Tzetzo's opinion, the ALJ noted that Dr. Tzetzo was a non-

treating, non-examining medical source, but found that his opinion was consistent and supported

by the record evidence. See id.

In forming his opinion, Dr. Tzetzo relied upon the examination of Dr. Katie Lewis. See id.

at 86-87. Dr. Lewis found that Plaintiff had moderate limitations in relating with others and

dealing with stress, and mild limitations in maintaining attention and concentration, making

appropriate decisions, and learning and carrying out complex tasks. See id. at 313-14. Dr. Lewis

noted that Plaintiff's limitations are primarily the result of her depression and anxiety. See id. at

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314. Plaintiff faults Dr. Tzetzo's opinion, arguing that it inadequately considers the symptoms she

experienced after Dr. Tzeto's evaluation. See Dkt. No. 12 at 26-27. However, the symptoms

which Plaintiff lists – her depression, nervousness, and anxiety – were all considered by both Dr.

Lewis and Dr. Tzetzo. See Tr. at 86-87, 313-14. Plaintiff does not suggest, nor does the record

indicate, that she suffered from other symptoms or that her symptoms worsened substantially.

Thus, the ALJ's reliance upon Dr. Tzetzo's opinion was not improper simply because other

treatment notes became available since those notes did not materially alter the evidence reviewed

by Dr. Tzetzo. See Camille v. Colvin, 652 Fed. Appx. 25, 28 n.4 (2d Cir. 2016). Accordingly, the

Court finds that the ALJ properly considered the weight given to Dr. Tzetzo's opinion and that his

conclusion is supported by substantial evidence.

Finally, Plaintiff argues that the ALJ erroneously assigned "great weight" to the opinion of

consultative examiner Dr. Cole. See Dkt. No. 12 at 27. The ALJ assigned great weight to Dr.

Cole's opinion that Plaintiff had a moderate restriction in squatting, kneeling, heavy lifting, and

carrying. See Tr. at 19. However, Plaintiff notes that Dr. Cole's examination was conducted two

years before the ALJ issued his decision. See Dkt. No. 12 at 27. Plaintiff argues that the ALJ

should have not have assigned great weight to Dr. Cole's opinion without reaching out to

Plaintiff's other doctors to request more information about Plaintiff's symptoms in the two years

after Dr. Cole's examination. See id.

If, after examining the evidence, the ALJ is unable to reach a conclusion, the ALJ "will

determine the best way to resolve the inconsistency or insufficiency. The action(s) [ ] take[n] will

depend on the nature of the inconsistency or insufficiency." 20 C.F.R. § 404.1520b(b)(2). The

record is insufficient "when it does not contain all of the information [ ] need[ed] to make [a]

determination or decision." 20 C.F.R. § 404.1520b(b). However, "if all of the evidence [the ALJ]

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receive[s], including all medical opinion(s), is consistent and there is sufficient evidence for [the

ALJ] to determine whether [the claimant is] disabled, [the ALJ] will make [a] determination or

decision based on that evidence." 20 C.F.R. § 404.1520b(a).

In assigning Dr. Cole's opinion "great weight," the ALJ noted its consistency with the

examination conducted and the other record evidence. See Tr. at 19. Plaintiff does not contend

that Dr. Cole's opinion is incorrect, rather she argues that because the examination was conducted

more than two years before the ALJ's decision, the ALJ should have sought more recent

information about her symptoms. See Dkt. No. 12 at 27. Specifically, Plaintiff argues that during

those two years, she experienced worsening fibromyalgia symptoms including problems walking,

increased numbness and tingling in her extremities, and problems with balance. See id. However,

the ALJ was able to reach a conclusion as to disability based on the evidence provided, which

included information about Plaintiff's fibromyalgia symptoms. See Tr. at 29.

In Dr. Cole's opinion, he noted Plaintiff's pain associated with her fibromyalgia. See id. at

305. Additionally, his opinion, which was limited to Plaintiff's limitations for squatting, kneeling,

heavy lifting, and carrying, was consistent with the record evidence. These same limitations were

noted in other medical opinions. See id. at 565-56 (noting Plaintiff's limitations for lifting,

carrying, crouching, stooping and kneeling). The record also contained sufficient information for

the ALJ to reach a conclusion regarding Plaintiff's fibromyaglia symptoms after Dr. Cole's

examination. For example, during an examination in February 2018, Plaintiff reported

nonspecific paresthesia, but denied weakness and balance issues. See id. at 539. Additionally, the

ALJ considered Plaintiff's testimony about the numbness and tingling in her extremities and her

ability to walk and sit for extended periods of time. See id. at 16.

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Because the ALJ was able to make a determination as to disability based on the extensive

record before him, there was no need to contact Plaintiff's doctors to obtain additional

information. See 20 C.F.R. § 404.1520b(a). Further, it is clear that the ALJ appropriately

considered the level of support for Dr. Cole's opinion, the consultative nature of the examination,

and the consistency of that opinion with the record as a whole. See id. at 641-42; 20 C.F.R. §§

404.1527(c)(3)-(4). Accordingly, the Court finds that the ALJ properly considered the weight of

the medical opinions in relation to the record evidence and sufficiently explained the basis for his

conclusions as to Dr. Cole's opinion.

2. The ALJ's Impairment Finding

A plaintiff will be found disabled if the individual has an impairment, or combination of

impairments, that meets or equals one of the Listings and meets the duration requirement. 20

C.F.R. § 416.920(d). The burden is on the plaintiff to present medical findings that his or her

impairment meets or equals a Listing. See Davis v. Astrue, No. 09-CV-0186, 2010 WL 2545961,

*3 (N.D.N.Y. June 3, 2010). A plaintiff must show that his or her impairment meets or equals all

of the specified medical criteria of a Listing. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990),

superceded by statute on other grounds. If a plaintiff's impairment "manifests only some of those

criteria, no matter how severely," the impairment does not qualify. Id.

Plaintiff argues that the ALJ erroneously found that Plaintiff's fibromyaglia did not qualify

as a "severe impairment." See Dkt. No. 12 at 18. Specifically, Plaintiff argues that the ALJ

should have requested a "clarifying statement" from Plaintiff's providers to determine whether the

symptoms she exhibited were due to her fibromyalgia or her other conditions. See id. Plaintiff

again argues that the ALJ had a duty to develop the record in this respect. See id. at 21. Second,

Plaintiff claims that the ALJ failed to analyze her symptoms under Section II (B) of Social

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Security Ruling ("SSR") 12-2(p) and that a proper analysis would reveal that Plaintiff clearly

exhibited at least six signs, symptoms, or co-occurring conditions associated with fibromyalgia.

See id. at 18. Plaintiff claims the ALJ erred in concluding that Plaintiff did not establish that

evidence of other disorders were excluded, as is required by Section II(B). See id. at 19.

SSR 12-2(p) states, in relevant part, that a claimant may be found to have a medically

determinable impairment of fibromyalgia if she has all of the following:

1. A history of widespread pain . . . that has persisted (or that

persisted) for at least [three] months.

. . .

2. At least [eleven] positive tender points on physical

examination[.]

. . .

3. Evidence that other disorders that could cause the symptoms or

signs were excluded. Other physical and mental disorders may have

symptoms or signs that are the same or similar to those resulting

from [fibromyalgia]. Therefore, it is common in cases involving

[fibromalygia] to find evidence of examinations and testing that rule

out other disorders that could account for the person's symptoms

and signs.

SSR 12-2(p), 2012 WL 3104869, *2-3.

The ALJ, in finding that Plaintiff's fibromyalgia did not qualify as a medically

determinable impairment, first noted that for fibromyalgia to qualify under SSR 12-2p, Plaintiff

needed to provide "evidence from an acceptable medical source whose fibromyalgia diagnosis is

based on both the claimant's medical history and a physical exam of the claimant." See id. at 12;

see also SSR 12-2p, 2012 WL 3104869, at *2. As the ALJ correctly noted, there is no such

evidence. In fact, Plaintiff's medical records indicate that she never received a formal

examination for fibromyalgia. See id. at 378. Accordingly, the Court finds that the ALJ correctly

found that Plaintiff failed to provide the evidence necessary to establish that her fibromyalgia

constituted a medically determinable impairment.

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Alternatively, the ALJ also correctly noted that there was insufficient evidence that

Plaintiff's other conditions were excluded as the source of her symptoms, as is required by SRR

12-2p. See id. at 11. Plaintiff does not point to, nor does the Court find, any such evidence.

Plaintiff's response to this lack of evidence is to argue that the ALJ, as part of his duty to develop

the record, should have reached out to her providers to determine which symptoms were

associated with her fibromyaglia and which were associated with her other conditions. See Dkt.

No. 12 at 19-21. However, it is Plaintiff's burden to establish the criteria under SSR 12-2p.

Woodmancy v. Colvin, 577 Fed. Appx. 72, 74 (2d Cir. 2014). Plaintiff's failure to provide the

evidence necessary to meet the criteria for fibromyalgia does not implicate the ALJ's duty to

develop the record because the record contained ample information to determine disability. Perez

v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (holding that the duty fo develop the record is not

implicated where the record contains sufficient evidence to determine disability). Because

Plaintiff did not provide evidence that her other conditions were excluded as sources of her

symptoms, she cannot meet the requirements of SSR 12-2p, regardless of her compliance with the

other requirements.

3. Combined Impact of Plaintiff's Impairments

Plaintiff alleges that the ALJ failed to consider Plaintiff's fibromyalgia symptoms in

conjunction with her other impairments. See Dkt. No. 12 at 23. This argument is without merit.

The Court is not entitled to reject the ALJ's determination where there is evidence to support

either position. See Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 448 (2d Cir. 2012). The

findings of the ALJ are "conclusive unless they are not supported by substantial evidence." Diaz

v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). "Substantial evidence means more than a mere

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scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).

Despite the fact that Plaintiff had failed to establish that her fibromyalgia was a medically

determinable impairment, the ALJ explicitly considered the symptoms she attributed to her

fibromyalgia: her limitations in balance, lifting, kneeling, and standing. See Tr. at 16. Further,

the ALJ considered her subjective complaints of tingling and numbness in her extremities and

diffuse pain. See id. Additionally, the ALJ explicitly noted Plaintiff's other limitations and

explained that the interaction between her medically determinable disabilities and her

fibromyalgia symptoms was taken into account when considering the question of impairment. See

id. at 13. Ultimately, after considering all of the relevant physical and mental impairment listings,

the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments. See id. at 13.

Accordingly, the Court finds that substantial evidence supports the ALJ's conclusion that Plaintiff

did not have an impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments.

4. Assessment of Plaintiff's Credibility

"While the ALJ is required to take into account a claimant's reports of pain, symptoms,

and other indicia of impairment, she is not required to accept those reports 'without question.'"

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); 20 C.F.R. § 416.929(a). Instead, the ALJ "may

exercise discretion in weighing the credibility of the claimant's testimony in light of the other

evidence in the record." Id. (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)). The

ALJ's credibility findings receive "special deference" because of his ability to observe the

claimant's testimony. See Yellow Freight Sys., Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994). Like

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other findings of the ALJ, the credibility finding is reviewed for whether it is supported by

substantial evidence. See Hopkins v. Colvin, No. 13–CV–4803, 2014 WL 4392209, *5 (S.D.N.Y.

Sept. 5, 2014); Torres v. Colvin, No. 12–CV–6527, 2014 WL 241061, *12 (S.D.N.Y. Jan. 22,

2014).

The ALJ has discretion to assess the credibility of a claimant's testimony regarding

disabling pain and other limitations, and to arrive at an independent judgment, in light of medical

findings and other evidence, regarding the true extent of the pain alleged by the claimant. See

Marcus, 615 F.2d at 27. The regulations set out a two-step process for assessing a claimant's

statements about pain and other limitations:

At the first step, the ALJ must decide whether the claimant suffers

from a medically determinable impairment that could reasonably be

expected to produce the symptoms alleged. . . . If the claimant does

suffer from such an impairment, at the second step, the ALJ must

consider the extent to which the claimant's symptoms can

reasonably be accepted as consistent with the objective medical

evidence and other evidence of record. The ALJ must consider

statements the claimant or others make about his impairments, his

restrictions, his daily activities, his efforts to work, or any other

relevant statements he makes to medical sources during the course

of examination or treatment, or to the agency during interviews, on

applications, in letters, and in testimony in its administrative

proceedings.

Genier, 606 F.3d at 49 (quotations and citations omitted).

If a plaintiff's testimony concerning the intensity, persistence or functional limitations

associated with his impairments is not fully supported by clinical evidence, the ALJ must consider

additional factors in order to assess that testimony, including: (1) daily activities; (2) location,

duration, frequency, and intensity of any symptoms; (3) precipitating and aggravating factors; (4)

type, dosage, effectiveness and side effects of any medications taken; (5) other treatment received;

and (6) other measures taken to relieve symptoms. 20 C.F.R. § 416.929(c)(3)(i)-(vi). The issue is

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not whether the clinical and objective findings are consistent with an inability to perform all

substantial activity, but whether the plaintiff's statements about the intensity, persistence, or

functionally limiting effects of his symptoms are consistent with the objective medical and other

evidence. See Social Security Ruling ("SSR") 96-7p, Policy Interpretation Ruling Titles II and

XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's

Statements, 1996 WL 374186, *2 (Soc. Sec. Admin. July 2, 1996). One strong indication of

credibility of an individual's statements is their consistency, both internally and with other

information in the record. Id. at *5.

"After considering plaintiff's subjective testimony, the objective medical evidence, and any

other factors deemed relevant, the ALJ may accept or reject claimant's subjective testimony."

Saxon v. Astrue, 781 F. Supp. 2d 92, 105 (N.D.N.Y. 2011) (citing, inter alia, 20 C.F.R. §§

404.1529(c)(4), 416.929(c)(4)). An ALJ rejecting subjective testimony "'must do so explicitly and

with sufficient specificity to enable the Court to decide whether there are legitimate reasons for

the ALJ's disbelief and whether his decision is supported by substantial evidence.'" Melchior v.

Apfel, 15 F. Supp. 2d 215, 219 (N.D.N.Y. 1998) (quoting Brandon v. Bowen, 666 F. Supp. 604,

608 (S.D.N.Y. 1987)). The Commissioner may discount a plaintiff's testimony to the extent that it

is inconsistent with medical evidence, the lack of medical treatment, and her own activities during

the relevant period. See Howe-Andrews v. Astrue, No. CV-05-4539, 2007 WL 1839891, *10

(E.D.N.Y. June 27, 2007). With regard to the sufficiency of credibility determinations, the

Commissioner has stated that

it is not sufficient for the adjudicator to make a single, conclusory

statement that "the individual's allegations have been considered" or

that "the allegations are (or are not) credible." It is also not enough

for the adjudicator simply to recite the factors that are described in

the regulations for evaluating symptoms. The determination or

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decision must contain specific reasons for the finding on credibility,

supported by the evidence in the case record, and must be

sufficiently specific to make clear to the individual and to any

subsequent reviewers the weight the adjudicator gave to the

individual's statements and the reasons for that weight.

SSR 96-7p, 1996 WL 374186, at *2.

Plaintiff argues that the ALJ improperly discounted her testimony and failed to sufficiently

detail his justification for his credibility determination. See Dkt. No. 12 at 27-28. Plaintiff claims

that the ALJ disregarded significant portions of her testimony and did not describe why her

testimony was inconsistent with the medical evidence. See id. at 28.

Here, the ALJ found that Plaintiff's medically determinable impairments could reasonably

be expected to cause the alleged symptoms. See Tr. at 16. However, the ALJ found that

Plaintiff's statements regarding the intensity, persistence, and limiting effects of these symptoms

were not entirely consistent with the medical and record evidence. See id. The ALJ noted that

while Plaintiff testified that she could only sit for fifteen minutes, she was able to sit through an

hour-long proceeding without needing to change positions. See id. Plaintiff testified to weakness

and numbing in her extremities. See id. at 40-41, 50-51. However, on many occasions, Plaintiff

presented with normal gate and was able to walk without difficulty. See id. at 306, 370, 541, 552,

556, 560. Plaintiff often demonstrated normal motor strength and sensation, despite her claims of

weakness in her extremities. See id. at 541, 552, 556, 562. Although Plaintiff claimed to have

vertigo and balance issues, Plaintiff denied balance issues to health care providers. See id. at 539.

Finally, Plaintiff testified that she has trouble with memory, concentration, and sustaining focus.

See id. at 51. However, an examination found that her memory was only mildly impaired, and

that she had no limitations in maintaining attention and concentration. See id. at 313-14.

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Accordingly, the Court finds that the ALJ properly evaluated Plaintiff's credibility and that his

determination is supported by substantial evidence.

5. Residual Functional Capacity

A claimant's RFC represents a finding of the range of tasks he or she is capable of

performing notwithstanding the impairments at issue. See 20 C.F.R. §§ 404.1545(a), 416.945(a).

An RFC determination is informed by consideration of a claimant's physical and mental abilities,

symptomology, including pain, and other limitations that could interfere with work activities on a

regular and continuing basis. See id.; see also Martone v. Apfel, 70 F. Supp. 2d 145, 150

(N.D.N.Y. 1999).

When addressing a plaintiff's RFC, an ALJ is required to note how "the evidence supports

each conclusion, citing specific medical facts (e.g., laboratory findings) and non-medical evidence

(e.g., daily activities, observations)." SSR 96–8p, 1996 WL 374184, *7 (July 2, 1996); see also

Balsamo v. Chater, 142 F.3d 75, 80-81 (2d Cir. 1998). Additionally,

[t]he RFC assessment must first identify the individual's functional

limitations or restrictions and assess his or her work-related abilities

on a function-by-function basis, including the functions in

paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545, 416.945.

Only after that may RFC be expressed in terms of the exertional

levels of work, sedentary, light, medium, heavy, and very heavy.

SSR 96–8p, 1996 WL 374184, at *1; see also Pronti v. Barnhart, 339 F. Supp. 2d 480, 490

(W.D.N.Y. 2004). An ALJ's failure to explain the evidence he or she relied upon in assessing

RFC constitutes a ground for a remand. See Compo v. Commissioner of Soc. Sec., No.

6:05–CV–973, 2009 WL 2226496, *9 (N.D.N.Y. July 23, 2009) (citation omitted); see also

Hodge v. Astrue, No. 07–CV–0162, 2009 WL 1940051, *10 (N.D.N.Y. July 7, 2009) (citation

omitted).

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To properly ascertain a claimant's RFC, an ALJ must assess the claimant's exertional

capabilities, addressing his or her ability to sit, stand, walk, lift, carry, push, and pull. See 20

C.F.R. §§ 404.1545(b), 404.1569a, 416.945(b), 416.969a. Nonexertional limitations or

impairments, including impairments resulting in postural and manipulative limitations, must also

be considered. See 20 C.F.R. §§ 404.1545(b), 404.1569(a); see also 20 C.F.R. Part 404, Subpt. P,

App. 2 § 200.00(e). When making an RFC determination, an ALJ must specify those functions

the claimant is capable of performing; conclusory statements concerning his or her capabilities,

however, will not suffice. See Martone, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler, 728

F.2d 582, 588 (2d Cir. 1998)). An administrative RFC finding can withstand judicial scrutiny

only if there is substantial evidence in the record to support each requirement listed in the

corresponding regulations. See Martone, 70 F. Supp. 2d at 150 (citing LaPorta v. Bowen, 737 F.

Supp. 180, 183 (N.D.N.Y. 1990)); see also Sobolewski v. Apfel, 985 F. Supp. 300, 309-10

(E.D.N.Y. 1997).

Plaintiff essentially argues that, because of all of the reasons addressed above, the ALJ's

RFC hypothetical to the vocational expert was flawed. See Dkt. No. 12 at 29. Specifically,

Plaintiff claims that the ALJ's hypothetical did not incorporate Mr. Alessandrini's opinions

regarding Plaintiff's limitations and Plaintiff's severe impairment, i.e., fibromyalgia. See id.

However, for the reasons the Court has already explained, the conclusions upon which the ALJ

based his hypothetical RFC question to the vocational expert were supported by substantial

evidence.

Additionally, a review of the ALJ's decision makes clear that his RFC determination

included consideration of all of Plaintiff's limitations. The ALJ concluded that Plaintiff

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has the residual functional capacity to perform light work as defined

in 20 CFR 404.1567(b) except the individual can occasionally

balance, stoop, kneel, crouch, crawl, and climb ramps or stairs. She

cannot climb ladders, ropes or scaffolds. She can frequently handle

and finger bilaterally. She may require the opportunity to sit for a

minute or two after standing between 45-60 minutes. The claimant

should work close to restroom facilities. She should avoid

concentrated exposure to hazards such as commercial driving,

unprotected heights, and dangerous machinery. Mentally, she is

capable of performing simple routine tasks. She can have

occasional or superficial interactions with co-workers, supervisors,

and the public.

Id. at 16.

This RFC demonstrates the ALJ's contemplation of Plaintiff's physical and mental

abilities. The ALJ considered the record evidence and the available medical opinions in

determining Plaintiff's ability to perform the physical and mental demands of work activity, and

sufficiently described his findings. See id. at 13-20; 20 C.F.R. § 404.1545(c). Accordingly, the

Court finds that the ALJ's decision is supported by substantial evidence.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that the decision denying benefits is AFFIRMED; and the Court further

ORDERS that Plaintiff's motion for judgment on the pleadings is DENIED; and the Court

further

ORDERS that Defendant's motion for judgment on the pleadings is GRANTED; and the

Court further

ORDERS that Plaintiff's complaint is DISMISSED; and the Court further

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ORDERS that the Clerk of Court shall enter judgment in Defendant's favor and close this

case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: April 24, 2020 J), ie uv Uf, Se:

Albany, New York mC eT Lp 4

Mae A. D‘ Agostino~/

U.S. District Judge

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