Cochran v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

TRACIE L. COCHRAN, §

§

Plaintiff, §

§

v. § Case # 1:18-cv-1324-DB

§

COMMISSIONER OF SOCIAL SECURITY, § MEMORANDUM DECISION

§ AND ORDER

Defendant. §

INTRODUCTION

Plaintiff Tracie L. Cochran (“Plaintiff”) brings this action pursuant to the Social Security

Act (the “Act”), seeking review of the final decision of the Commissioner of Social Security (the

“Commissioner”) that denied her application for disability insurance benefits (“DIB”) under Title

II of the Act, and her application for supplemental security income (“SSI”) under Title XVI of the

Act. See ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c),

and the parties consented to proceed before the undersigned in accordance with a standing order

(see ECF No. 16).

Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). See ECF Nos. 13, 15. No further briefing is before the Court. For the reasons set

forth below, Plaintiff’s motion for judgment on the pleadings (ECF No. 13) is DENIED, and the

Commissioner’s motion for judgment on the pleadings (ECF No. 15) is GRANTED.

BACKGROUND

Plaintiff protectively filed her applications for DIB and SSI on February 22, 2013.

Transcript (“Tr.”) Tr. 333-340. Plaintiff alleged disability beginning December 26, 2011 (the

disability onset date), due to: “T6-7 disc herniation, awaiting surgery; depression; anxiety; and

heart condition.” Tr. 404. Plaintiff’s claims were denied initially on May 14, 2013 (Tr. 177-91),

after which she filed a written request for a hearing on May 16, 2013 (Tr. 193-94). A hearing was

held on September 3, 2014, resulting in a partially favorable decision issued on June 19, 2015. Tr.

141-54. On August 18, 2015, the Appeals Council reopened that decision (Tr. 229-35) and

remanded the case for rehearing (Tr. 159-68). Administrative Law Judge William M. Weir (the

“ALJ”) presided over a second hearing in Buffalo, New York, on October 27, 2017. Tr. 10.

Plaintiff appeared and testified at the hearing and was represented by Richard G. Abbott, an

attorney. Id. Also appearing and testifying were medical expert Frank L. Barnes, M.D., and

vocational expert (“VE”) Millie Droste, R.N., each via telephone. Id. The ALJ issued an

unfavorable decision on February 14, 2018, finding that Plaintiff was not disabled. Tr. 10-20. On

October 3, 2018, the Appeals Council denied Plaintiff’s request for further review. Tr. 1-6. The

ALJ’s decision thus became the “final decision” of the Commissioner subject to judicial review

under 42 U.S.C. § 405(g).

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the SSA, this Court is limited to determining whether the

SSA’s conclusions were supported by substantial evidence in the record and were based on a

correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing 42 U.S.C. §

405(g)) (other citation omitted). The Act holds that the Commissioner’s decision is “conclusive”

if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence means more

than a mere 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) (citations

omitted). It is not the Court’s function to “determine de novo whether [the claimant] is disabled.”

Schaal v. Apfel, 134 F. 3d 496, 501 (2d Cir. 1990).

II. The Sequential Evaluation Process

An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71

(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful

work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ

proceeds to step two and determines whether the claimant has an impairment, or combination of

impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant

restrictions on the claimant’s ability to perform basic work activities. Id. § 404.1520(c). If the

claimant does not have a severe impairment or combination of impairments meeting the durational

requirements, the analysis concludes with a finding of “not disabled.” If the claimant does, the

ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or medically

equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the

“Listings”). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing

and meets the durational requirement, the claimant is disabled. Id. § 404.1509. If not, the ALJ

determines the claimant’s residual functional capacity, which is the ability to perform physical or

mental work activities on a sustained basis notwithstanding limitations for the collective

impairments. See id. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the claimant’s RFC permits

him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).

If the claimant can perform such requirements, then he or she is not disabled. Id. If he or she

cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the

Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the

Commissioner must present evidence to demonstrate that the claimant “retains a residual

functional capacity to perform alternative substantial gainful work which exists in the national

economy” in light of his or her age, education, and work experience. See Rosa v. Callahan, 168

F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

ADMINISTRATIVE LAW JUDGE’S FINDINGS

The ALJ analyzed Plaintiff’s claim for benefits under the process described above and

made the following findings in his February 14, 2018 decision:

1. The claimant meets the insured status requirements of the Social Security Act through

December 31, 2016;

2. The claimant has not engaged in substantial gainful activity since December 26, 2011, the

alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.);

3. The claimant has degenerative disk [sic] disease, vertigo, and headaches, each of which

constitutes a severe impairment (20 CFR 404.1520(c) and 416.920(c));

4. The claimant does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart

P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and

416.926);

5. The claimant has the residual functional capacity to perform sedentary work as defined in

20 CFR 404.1567(a) and 416.967(a)1 except is limited to unskilled work, no work around

unprotected heights, use of tools, instrumentalities or chemicals;

6. The claimant is unable to perform any past relevant work (20CFR 404.1565 and

416.965);

7. The claimant was born on February 20,1973 and was 38 years old, which is defined as a

younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and

416.963);

8. The claimant has at least a high school education and is able to communicate in English

(20 CFR 404.1564 and 416.964);

1 “Sedentary work” involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain

amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

standing are required occasionally and other sedentary criteria are met.

9. Transferability of job skills is not material to the determination of disability because using

the Medical-Vocational Rules as a framework supports a finding that the claimant is “not

disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20

CFR Part 404, Subpart P, Appendix 2);

10. Considering the claimant’s age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in the national economy that the

claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a));

11. The claimant has not been under a disability, as defined in the Social Security Act, from

December 26, 2011, through the date of this decision (20 CFR 404.1520(g) and

416.920(g)).

Tr. 10-20.

Accordingly, the ALJ determined that, based on the application for a period of disability

and disability insurance benefits protectively filed on February 22, 2013, the claimant is not

disabled under sections 216(i) and 223(d) of the Social Security Act. Tr. 20. The ALJ also

determined that based on the application for supplemental security benefits protectively filed on

February 22, 2013, the claimant is not disabled under section 1614(a)(3)(A) of the Act. Id.

ANALYSIS

Plaintiff asserts three points of error. First, Plaintiff argues that the ALJ erred in his

evaluation of the medical opinion evidence. See ECF No. 13-1 at 19. Specifically, Plaintiff takes

issue with the ALJ’s assessment of the opinions of Frank L. Barnes, M.D. (“Dr. Barnes”), and

Edward Simmons, M.D. (“Dr. Simmons”). Id. As noted above, Dr. Barnes is the medical expert

who testified at Plaintiff’s February 14, 2018 hearing. Tr. 10, 53-61. The record reflects that Dr.

Simmons treated Plaintiff for her back pain. See Tr. 990-1007. Second, Plaintiff argues that the

ALJ failed to identify the evidence that was inconsistent with her subjective complaints. See ECF

No. 13-1 at 21. Finally, Plaintiff alleges that because the ALJ discounted unspecified treating

physician opinions, it created an evidentiary gap in the record. Id. The Commissioner responds

that the ALJ thoroughly considered the evidence of record and properly determined that Plaintiff’s

functional limitations would not prevent her from performing a range of simple, sedentary work.

See ECF No. 15-1 at 3.

A Commissioner’s determination that a claimant is not disabled will be set aside when the

factual findings are not supported by “substantial evidence.” 42 U.S.C. § 405(g); see also Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir.2000). Substantial evidence has been interpreted to mean “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The

Court may also set aside the Commissioner’s decision when it is based upon legal error. Rosa, 168

F.3d at 77.

Upon review of the entire record in this case, the Court finds that the ALJ appropriately

considered Plaintiff’s history of disc surgery; assessed degenerative disc disease as a severe

impairment; and assessed significant RFC limitations accordingly, including the restriction to

sedentary work. Tr. 13-18.

I. The ALJ Properly Considered The Medical Opinion Evidence of Record.

A. Dr. Barnes

As noted above, Dr. Barnes testified as a medical expert at Plaintiff’s second hearing. Tr.

45. The ALJ assigned great weight to Dr. Barnes’ opinions that Plaintiff’s impairments were not

of listing-level severity and that Plaintiff was capable of the exertional requirements of sedentary

work. Tr. 17, 45-55. The ALJ noted that Dr. Barnes was the last medical professional to review

the entire record, and his opinion was consistent with the overall record. Tr. 17. The ALJ also

noted that Plaintiff’s April 2017 examination revealed negative straight leg raising (“SLR”) with

no significant functional deficits; and deep tendon reflexes (“DTR”) of the bilateral upper

extremities symmetric at 1+ throughout and 2+ in the bilateral lower extremities. Tr. 17, 1393.

Plaintiff argues that the ALJ failed to properly evaluate Dr. Barnes’ medical testimony and

appears to challenge Dr. Barnes’ qualifications to testify as a medical expert. See ECF No. 13-1

at 19-20. Specifically, Plaintiff complains that Dr. Barnes has never done a fusion surgery for a

herniated thoracic disc. Id. at 17. The Court finds Plaintiff’s argument unpersuasive. Dr. Barnes is

a board-certified orthopedic surgeon and is, therefore, a specialist in the area on which he was

giving an opinion, namely Plaintiff’s herniated disc condition. Tr. 45-55. While Dr. Barnes may

have not performed surgeries specifically for a herniated disc, he has performed thoracic surgery

and other lumbar spine surgeries. Tr. 46-47. Plaintiff presents no argument or authority for her

challenge to Dr. Barnes’ credentials on this basis.

Plaintiff’s counsel stipulated to Dr. Barnes’ qualifications at the hearing. Tr. 47. Plaintiff

now claims she “stipulated to [Dr. Barnes’] qualifications with respect to her back problems, but

not her neurologic problems” (ECF No. 13-1 at 11) and that “headaches, vertigo, and depression

were outside his expertise” (id. at 17). However, the record reflects that Dr. Barnes only opined on

Plaintiff’s spine condition and Listing 1.04. Tr. 45-55. Thus, Plaintiff’s argument in this regard is

meritless. Moreover, the ALJ did not rely on any of Dr. Barnes’ testimony in considering these

conditions at any step of the sequential evaluation process. Tr. 13-18. Furthermore, Plaintiff fails

to explain the relevance of her assertion that thoracic disc fusions are done by few spinal surgeons,

have a low success rate, and that Dr. Simmons would not have performed the surgery unless

Plaintiff had serious problems. See ECF No. 13-1 at 17.

Plaintiff also asserts that the MRI of her thoracic spine taken in April 2017, after her

surgery, showed a worsening of her condition. See ECF No. 13-1 at 17. The ALJ considered the

imaging to which Plaintiff refers, which showed progressive spondylosis at T6-7 compared to three

years prior with a modest interval increase in the size of the disc herniation/protrusion that mildly

effaced the thecal sac. Tr. 16-17, 1412. However, at T3-4, the hypertrophied ligamentum flava was

stable and there was no cord compression or abnormalities at any other level. Tr. 1412. Moreover,

Dr. Barnes reviewed this imaging, but he noted that it does not correlate very well with Plaintiff’s

alleged symptoms, and his opinion and the ALJ’s conclusion that Plaintiff could perform sedentary

work was based on other evidence of record, including exams showing that Plaintiff had normal

gait, no evidence of weakness, normal sensorium, and no evidence of nervous system damage from

the herniated disc. Tr. 51, 54-55.

Based on the foregoing, the ALJ properly evaluated the expert medical opinion of the Dr.

Barnes, and substantial evidence supports the ALJ’s decision to give great weight to Dr. Barnes’

opinions.

B. Dr. Simmons

Plaintiff also alleges that the ALJ did not properly assess the opinions of Dr. Simmons. As

noted above, Dr. Simmons treated Plaintiff for her back pain (see Tr. 990-1007), and was therefore,

a treating physician. The opinions of Plaintiff’s treating physicians should be given “controlling

weight” if they are “well-supported by medically acceptable clinical and laboratory diagnostic

techniques and [are] not inconsistent with the other substantial evidence in [the] case record,” 20

C.F.R. §§ 404.1527(c)(2). In this case, however, Plaintiff fails to identify any actual medical

opinion rendered by Dr. Simmons. Medical opinions are statements from physicians and

psychologists or other acceptable medical sources that reflect judgments about the nature and

severity of a claimant’s impairment(s), including her symptoms, diagnosis and prognosis, what

she can still do despite impairment(s), and her physical or mental restrictions. 20 C.F.R. §§

404.1527(a)(2), 416.927(a)(2).

Plaintiff cites a few examination findings and diagnostic imaging findings from the medical

records, but none of these findings represents a medical opinion from Dr. Simmons to which the

ALJ could, or was required to, assign weight. Plaintiff notes that the ALJ relied on the exam from

April 2017, including the normal results but argues that the ALJ “ignored” the abnormal findings

that she stood with a guarded cervical posture and had some exaggeration of normal thoracic

kyphosis. See ECF No. 13-1 at 21. As noted above, these were objective findings, not opinions;

but in any case, the ALJ expressly noted those findings. The ALJ also noted that the record

demonstrated some limited range of motion and tenderness. but he determined that these findings,

in conjunction with Plaintiff’s normal gait, balance, reflexes, and strength, as well as the other

evidence of record, the exam and the record as a whole supported the conclusion that Plaintiff

could perform work with the limitations the ALJ assessed. Tr. 16, 17, 18. Similarly, Plaintiff

repeats the findings from the April 2017 MRI (see ECF No. 13-1 at 22); but this is also objective

evidence, not a statement or medical opinion from Dr. Simmons. Moreover, as discussed above,

the ALJ properly considered the results of this MRI, as well as the clinical findings and the opinion

of Dr. Barnes.

Plaintiff also notes that she had a cervical facet joint injection in July 2017. See ECF No.

13-1 at 22. Again, this was not a statement from Dr. Simmons that reflected a judgment about the

severity of her impairments, but in any case, the ALJ considered that Plaintiff still experienced

pain from her spine impairment and required an injection, and he accounted for this in the RFC.

Tr. 18. As to what Plaintiff describes as Dr. Simmons’ opinion regarding her allegedly worsening

pain following surgery (id. at 21-22), this was not an opinion that reflected Dr. Simmons’ judgment

about the nature and severity of Plaintiff’s condition. In fact, it was not even a statement from Dr.

Simmons himself. Rather, it was a report from a physician assistant summarizing Plaintiff’s

subjective complaints. Tr. 1392-94.

In any case, as discussed above, the ALJ considered the evidence as a whole, assessed

degenerative disc disease as a severe impairment, and imposed related limitations; and Plaintiff

has failed to identify any medical opinion that demonstrated limitations beyond those the ALJ

assessed. Plaintiff notes that she also had the conditions of vertigo, migraines, and depression, but

she fails to present any argument or logical link between the existence of these impairments and

the ALJ’s evaluation of Dr. Simmons’s records. See ECF No. 13-1 at 22. Nevertheless, the ALJ

found these to be medically determinable impairments, and, in fact, found that vertigo and

migraines were severe impairments; discussed them in the RFC assessment; and imposed related

RFC limitations. Tr. 13-18.

II. The ALJ’s Properly Assessed Plaintiff’s Subjective Complaints.

Contrary to Plaintiff’s arguments, the ALJ properly considered her subjective statements

in assessing her RFC. When a claimant attempts to prove disability based on her subjective

complaints, she must provide evidence of an underlying medical condition and either objective

medical evidence confirming the severity of her alleged symptoms or evidence establishing that

her medical condition could be reasonably expected to give rise to her alleged symptoms. See 20

C.F.R. §§ 404.1529(a), (b), 416.929(a), (b); SSR 16-3p, 81 Fed. Reg. 14,166 (Mar. 16, 2016).2 If

the objective medical evidence does not confirm the severity of the claimant’s alleged symptoms

but the claimant establishes that she has an impairment that could reasonably be expected to

produce her alleged symptoms, the ALJ must evaluate the intensity and persistence of the

claimant’s alleged symptoms and their effect on the claimant’s ability to work. See 20 C.F.R. §§

404.1529(c), (d), 416.929(c), (d); SSR 16-3p.

Plaintiff alleges that Dr. Barnes’ testimony supports her allegations she was in constant

pain and had to lie down half the day; and that the surgery did not lessen her pain. See ECF No.

13-1 at 17. However, Dr. Barnes actually stated that it was reasonable to assume that Plaintiff had

some pain and limitations in functioning. Tr. 53. As noted above, he also stated that imaging does

not correlate very well with symptoms, and his opinion that Plaintiff could perform sedentary work

was based on other evidence of record, including exams showing that Plaintiff had a normal gait,

no evidence of weakness, normal sensorium, and no evidence of nervous system damage from the

herniated disc. Tr. 51, 54-55. Thus, his testimony did not support that Plaintiff had disabling pain

or limitations beyond those the ALJ assessed (Tr. 45-55). Moreover, the ALJ accepted that Plaintiff

had some pain and limitations: he determined that while Plaintiff’s medically determinable

impairments could reasonably be expected to produce the alleged symptoms, her statements

regarding the intensity, persistence, and functionally limiting effects of her alleged symptoms were

not entirely consistent with the medical evidence and other evidence in the record. Tr. 16.

Plaintiff next argues that the ALJ did not identify the evidence that was inconsistent with

her subjective complaints. See ECF No. 13-1 at 21. Plaintiff is incorrect. The ALJ discussed the

medical records and other evidence that supported his evaluation of Plaintiff’s subjective

statements and his assessment of Plaintiff’s RFC. Tr. 13-18. See 20 C.F.R. §§ 404.1529(c)(2)-(4),

404.1545(a)(3), 4016.929(c)(2)-(4), 416.945(a)(3); SSR 16-3p; SSR 96-8p. This included the

objective clinical findings, discussed extensively by the ALJ, which did not support Plaintiff’s

allegations of disabling limitations. For example, physical examination revealed a 75% squat but

normal gait and the ability to rise from the chair without difficulty. Tr. 16, 753. In January of 2012,

Plaintiff had full but painful range of motion of her cervical spine in all directions. Tr. 16, 538.

May 2012 examination showed 5/5 strength at the bilateral lower extremities including

dorsiflexors, inverters, everters of the feet. Tr. 16, 511. However, a July 2012 back examination

revealed 50% of normal rotation and lateral flexion; continued with some midthoracic tenderness

and moderate spasms; lumbar flexion was 70-80 degrees and extension 15 degrees. Tr. 16, 553.

In January 2013, Plaintiff reported that she continued to experience intractable pain from

her T6-7 disc herniation with decreased range of motion. Tr. 16, 593.In September 2014, Plaintiff

had normal to guarded posture and ambulated with a stable gait pattern. Tr. 16, 660. Imaging in

April 2014 revealed at the T4-5 level, interval development of small central posterior disc

herniation/protrusion; at the T6-7 level, a stable small central posterior disc protrusion; and at the

T3-4 level, there had been an interval increase in hypertrophied ligamentum flava on the left side.

Tr. 16-17, 617. During a May 2013 examination, Plaintiff had 4/5 strength in upper and lower

extremities; however, she was not putting forth full effort. Tr. 17, 600. She underwent anterior

discectomy and fusion at T6-7 on July 15, 2014. Tr. 17, 651-655, 656. May 2015 treatment notes

revealed full range of motion in the bilateral upper and lower extremities. Tr. 17, 791. She

complained of imbalance and dizziness. Tr. 17, 900. Plaintiff had a diagnosis of chronic migraine

headaches without aura, treated with Botox therapy. Tr. 17, 1405.

She continued to experience pain post-surgery and attended physical therapy. Tr. 17, 891-

900. In June 2016, she was participating in some yoga. Tr. 17, 1086. In August 2016, she slipped

and fell while trying to control a dog and again in February 2017 while hanging curtains. Tr. 17,

1365, 1385. She complained of continued pain through April 2017, despite her increased activity.

Tr. 17, 1079, 1412. Recent examinations revealed she had guarded cervical posture with some

exaggeration of her normal thoracic kyphosis. Tr. 17, 1393. She continued with facet joint

interjection through 2017. Tr. 17, 1406. In sum, the objective clinical findings demonstrated the

existence of severe impairments that resulted in some work-related limitations; however, they

simply did not show that Plaintiff could not perform work with the significant limitations that the

ALJ assessed; and the ALJ accounted for the limitations demonstrated by the record by reducing

the RFC to sedentary with restrictions on exposure to hazards to accommodate limitations due to

vertigo. Tr. 13-18.

Aside from the objective evidence, the opinion evidence also did not support Plaintiff’s

allegations of disabling limitations (including that she could only stand and/or walk for about 15

minutes). On January 20, 2017, Plaintiff was examined at the request of the agency by Nikita Dave,

M.D. (“Dr. Dave”). Tr. 751-60. Dr. Dave opined that Plaintiff had to avoid ladders, heights, and

sharp, dangerous, or heavy equipment and machinery; and had mild to moderate limitations for

prolonged sitting and standing with more moderate limitations for lifting, carrying, pushing and

pulling. Tr. 17, 751-760. The ALJ assigned partial weight to this opinion because it was based on

an objective examination and generally consistent with the findings resulting from the

examination. For example, Plaintiff had observable limitations in the cervical, thoracic, and lumbar

spine, but continued to have 5/5 strength in the lower extremities. Despite the 5/5 strength, Dr.

Dave opined that Plaintiff could stand and walk a total of 3 hours in an 8-hour workday. Given the

continued pain, migraines, and dizziness Plaintiff experienced, the ALJ found that Plaintiff would

be limited to standing or walking no more than 2 hours total in an 8-hour workday, but Dr. Dave’s

opinion did not support Plaintiff’s allegations of more restrictive standing and walking than the

ALJ found, i.e., the amount consistent with sedentary work.

Orthopedic surgeon Cameron Huckell, M.D. (“Dr. Huckell”), opined that Plaintiff could

work full-time/full duty as a cashier. Tr. 17, 129. The ALJ assigned this opinion partial weight

because Dr. Huckell did not define the requirements of those job duties and did not cite to specific

medical findings to support his opinion. Nevertheless, the doctor’s opinion that Plaintiff could

work full-time at a light job does not support Plaintiff’s claim of disability. Dr. Abrar assessed

mild limitations in Plaintiff’s ability to sit, stand, climb, push, pull, or carry heavy objects;

however, Plaintiff did not put forth full effort and was unwilling to perform some parts of the

exam. Tr. 18, 600. While the ALJ assigned little weight to this opinion because Plaintiff did not

sufficiently cooperate with the examination, Dr. Abrar’s opinion similarly does not support

Plaintiff’s allegations.

The ALJ gave partial weight to the June 2012 opinion of Plaintiff’s primary care physician

Thomas Bogner, M.D. (“Dr. Bogner”), that Plaintiff could work a sedentary job with no repetitive

bending or twisting, no lifting greater than 10 pounds regularly, and lifting 15 pounds occasionally.

Tr. 18, 552, 1156. As the ALJ noted, that there had been substantial evidence of record submitted

after Dr. Bogner’s opinion regarding Plaintiff’s functioning that showed Plaintiff was limited to

sedentary work, standing no more than 2 hours in an 8-hour day, and limited by pain to lifting no

more than 10 lbs. Tr. 18. However, like the other opinions, it did not support Plaintiff’s claims of

disability. Furthermore, as discussed above, Dr. Barnes’ opinion also did not support Plaintiff’s

allegations of disability, and the ALJ properly gave great weight to his opinion that Plaintiff could

perform the exertional requirements of sedentary work. Tr. 17, 45-55. Additionally, as noted by

the ALJ, the consultative exams showed that Plaintiff was a possible malingerer who did not

cooperate fully with exams or give her best effort, which also detracted from the credibility of her

subjective complaints. Tr. 14, 15, 17, 18, 600, 746.

In sum, the ALJ’s RFC assessment was supported by the overall evidence of record.

Multiple examinations revealed Plaintiff was able to walk with a normal gait and able to stand on

heels and toes showing good balance and coordination. Tr. 18, 510, 527, 623, 769, 1393. The April

2017 examination revealed that Plaintiff’s straight leg raising was negative with no significant

functional deficits and DTRs of the bilateral upper extremities were symmetric at 1+ throughout;

2+ in bilateral lower extremities. Tr. 18, 1393. Despite undergoing discectomy and fusion, Plaintiff

continued to need injections to alleviate symptoms. However, the examination with Dr. Dave in

January 2017 showed Plaintiff had 5/5 strength in proximal and distal muscles bilaterally. Tr. 18,

753. Plaintiff maintained good strength, but had limitations secondary to pain, vertigo, and

migraines. Tr. 18. The ALJ accounted for the limitations due to these conditions in the RFC, and

Plaintiff failed to show that additional limitations were warranted. In short, Plaintiff was limited

to perform work on a sustained basis consistent with the ALJ’s RFC assessment. Tr. 18.

III. The ALJ Adequately Developed The Record.

In her final cursory argument, Plaintiff alleges that because the ALJ discounted unspecified

treating physician opinions, it created an evidentiary gap in the record. See ECF No. 13-1 at 25.

Plaintiff provides no support for this contention. There was no evidentiary gap because the record

reflects that Plaintiff underwent several consultative exams; the record contained extensive

treatment notes; and the medical opinions, including Dr. Barnes’ opinion, supported the RFC

assessment. Plaintiff attempts to shift the burden to prove she was disabled onto the

Commissioner, but it is Plaintiff who bears the burden of proving she is disabled, and “[i]t is not

unreasonable to require the claimant, who is in a better position to provide information about his

own medical condition, to do so.” Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If Plaintiff

wanted a medical source statement from any of her treating doctors, she should have obtained one.

Moreover, it is speculation to suggest that an opinion from a treating doctor or anyone else

would help Plaintiff, and, as discussed above, the evidence did not demonstrate that she had

additional imitations beyond those the ALJ assessed. See Pellam v. Astrue, 508 F. App’x 87 (2d

Cir. 2013) (citing 20 C.F.R. § 404.1513(b)(6) (lack of a medical source statement does not render

the record incomplete), the court held that the ALJ did not have a further obligation to acquire a

medical source statement from one of claimant’s treating physicians); Reices-Colon v. Astrue, 523

F. App’x 796 (2d Cir. May 2, 2013) (court rejected claimant’s argument that the ALJ had no

substantive basis for finding her symptoms had improved with treatment and, therefore, should

have sought additional evidence from a treating source; court pointed to specific evidence in the

record supporting the ALJ’s finding and conversely noted that claimant identified no specific

record that was missing and there was no error in the ALJ’s development of the record); Tankisi

v. Comm’r of Soc. Sec., 521 F. App’x 29 (2d Cir. 2013) (Commissioner’s regulations at §§

404.1513(b)(6) and 416.913(b)(6) provide that an ALJ securing a medical source statement is

discretionary and that the lack of a statement does not render the source’s medical report

incomplete; ALJ did not need to order a consultative exam where Plaintiff’s allegations of

disabling limitations were unsupported by other record evidence and not alleged by claimant as a

potential disability; and ALJ need not request medical source statements particularly where the

record was “quite extensive” and contained sufficient evidence from which the ALJ could assess

claimant’s RFC).

Inasmuch as Plaintiff has cited contrary evidence that could possibly support a finding of

disability, she misconstrues the nature of the Court’s review, which is limited to substantial

evidence. To justify remand, Plaintiff must assert evidence that compels a finding of disability;

where, as here, there is more than a scintilla of evidence to support the ALJ’s findings of fact, the

decision must be upheld. See Stanton v. Astrue, 370 F.App’x 231, 234 (2d Cir. Mar. 24, 2010)

(courts “have no reason to second-guess the credibility finding . . . where the ALJ identified

specific record-based reasons for his ruling”).While Plaintiff may disagree with the ALJ’s

conclusion, the Court must “defer to the Commissioner’s resolution of conflicting evidence” and

reject the ALJ’s findings “only if a reasonable factfinder would have to conclude otherwise.”

Morris v. Berryhill, No. 16-02672, 2018 WL 459678, at *3 (2d Cir. Jan. 18, 2018) (internal

citations and quotations omitted). That is not the case here. Substantial evidence supported the

ALJ’s RFC, and despite Plaintiff's assertions to the contrary, the record simply does not support

her claims of more severe impairments.

Based on the foregoing, the Court finds no error in the ALJ’s assessment of the medical

opinion evidence and other evidence of record, or his RFC finding.

CONCLUSION

Plaintiff's Motion for Judgment on the Pleadings (ECF No. 13) is DENIED, and the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 15) is GRANTED. Plaintiff’s

Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court will enter

judgment and close this case.

IT IS SO ORDERED.

Mare A (uvvrt

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE

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