The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
WARREN B.,
Plaintiff,
Case No. 1:20-cv-01260-TPK
v.
COMMISSIONER OF SOCIAL OPINION AND ORDER
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff filed this action under 42 U.S.C. §405(g) asking this Court to review a final
decision of the Commissioner of Social Security. That final decision, issued by the Appeals
Council on July 17, 2020, denied Plaintiff’s applications for disability insurance benefits and
supplemental security income. Plaintiff has now moved for judgment on the pleadings (Doc. 14),
and the Commissioner has filed a similar motion (Doc. 15). For the following reasons, the Court
will DENY Plaintiff’s motion for judgment on the pleadings, GRANT the Commissioner’s
motion, and DIRECT the Clerk to enter judgment in favor of the Defendant.
I. BACKGROUND
This case has a somewhat lengthy procedural history. On May 31, 2013 and June 19,
2013, Plaintiff protectively filed his applications for benefits, alleging that he became disabled on
June 1, 2010. His case proceeded through the normal adjudicative process, including a hearing
before an Administrative Law Judge, and ultimately ended up before this Court. The Court
remanded the case on November 16, 2018, see Warren B. v. Berryhill, Case No. 1:17-cv-0021,
after which the Appeals Council remanded it to an ALJ for additional proceedings. Plaintiff
appeared at a second administrative hearing held on October 23, 2019. Both Plaintiff and a
vocational expert, Coleman K. Cosgrove, testified at that hearing.
The Administrative Law Judge issued an unfavorable decision on November 25, 2019. In
that decision, the ALJ first concluded that Plaintiff met the insured status requirements of the
Social Security Act through March 31, 2014, and that he had not engaged in substantial gainful
activity since his alleged onset date. He then found that Plaintiff suffered from severe
impairments including left knee problems (specifically, a grade III tear of the anterior cruciate
ligament with anterior translation of the tibia and a bucket-handle tear involving the body and
posterior horn of the medial meniscus with an anterior flipped fragment as well as partial
extrusion of the meniscal root into the intercondylar notch), status-post arthroscopic partial
medial meniscectormy of the left knee performed in August 2012, sprain of the medial collateral
ligament, internal derangement and old disruption ACL, and psoriatic arthritis. He further
determined that these impairments, viewed singly or in combination, were not of the severity
necessary to qualify for disability under the Listing of Impairments.
Moving on to the next step of the inquiry, the ALJ found that Plaintiff had the residual
functional capacity to perform light work with the need for a sit/stand option at will. Also,
Plaintiff could not climb ladders, ropes, or scaffolds, and could not kneel, crouch, or squat, but he
could occasionally climb stairs. Finally, Plaintiff could do only simple, unskilled work in an
environment which only occasionally subjected him to extremes of temperature and wetness.
The ALJ next determined that Plaintiff could not do his past relevant work as a hand
packager, a job performed at the medium exertional level. He found, however, that even with his
limitations, Plaintiff could perform jobs like garment sorter, office helper, and mail clerk, and the
ALJ determined that these jobs existed in significant numbers in the national economy. The ALJ
therefore concluded that Plaintiff was not under a disability as defined in the Social Security Act.
Plaintiff, in his motion for judgment, raises two issues. He contends (1) that the ALJ
failed to follow the Appeals Council’s remand order and remedy the issued addressed in this
Court’s prior order; and (2) that the ALJ’s finding that Plaintiff’s statements regarding his
symptoms were inconsistent with the evidence was improperly supported by mischacterizations
of the evidence.
II. THE KEY EVIDENCE
The Court begins its summary of the evidence by quoting from the prior Opinion and
Order filed in this case, omitting the citations to the transcript filed in that matter:
In May 2013 plaintiff, who was 37 years old, filed applications for DIB
and SSI, alleging a disability onset date of June 1, 2010, due to a fractured T12
vertebrae and pain in both knees. Plaintiff sustained a compression fracture of a
thoracic vertebra in 2010, which was treated with a brace. According to James
Budny, M.D., he was “doing well”, and although he was involved in an altercation
in September 2011 which caused some soft tissue injuries, he was determined to
be “neurologically intact and ... almost pain free.”
Plaintiff first sought treatment for knee pain in May 2012, and a July 2012
MRI revealed a grade III tear of the anterior cruciate ligament of his left knee, but
because of a lack of periligamentous edema or hemorrhage, it was believed that it
was a “subacute to chronic injury.” Peter Shields, M.D., opined that the injury
dated back to 2001 and that it had not caused “any significant disability’ for the
prior eleven years. Plaintiff was also diagnosed with a bucket handle tear of his
medial meniscus, for which he underwent arthroscopic surgery in August 2012.
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In May 2013, plaintiff reinjured his knee and was seen several times
thereafter for complaints of pain, tingling and weakness in his knee, but his range
of motion and strength were normal. For treatment he was given a cortisone
injection and attended physical therapy.
At his September 4, 2013 consultative examination with Hongbiao Liu,
M.D., plaintiff complained only of low back pain radiating into his legs. Plaintiff
informed Dr. Liu that it required him to change positions after five minutes while
sitting or standing. Dr. Liu diagnosed plaintiff with chronic low back pain and
found that he had mild limitations for prolonged walking, bending and kneeling.
In May 2014 plaintiff complained of knee pain and was given a cortisone
injection for a “flare up of his patellofemoral pain.” In July 2014 he returned to
his orthopedist after injuring his left knee in a fall. He was diagnosed with “[l]eft
knee arthritis with aggravation and knee sprain” and given a knee immobilizer and
crutches. Two days later he returned to his orthopedist, at which time he denied
any pain and stated that his knee was “doing very well.”
Plaintiff also had a left shoulder issue, which arose in February 2014,
when he reported pain in that shoulder. His strength in the shoulder in all
directions was rated as a 5/5. He was diagnosed with subacromial bursitis, which
was treated with exercise, physical therapy and Naproxen. He returned in March
2014, and reported that he had “some tightness on occasion in his left shoulder but
it has greatly improved.”
Baltes v. Berryhill, 2018 WL 5993365, at *1–2 (W.D.N.Y. Nov. 15, 2018). This Court also
noted that at the administrative hearing, “plaintiff testified that he can stand for 15 minutes at one
time and sit for 15 to 20 minutes at one time, and that he would be able to alternate between
those positions for up one hour, but would be immobile for the balance of the day.” Id.
At the second administrative hearing, Plaintiff first testified that he had been living with
family members and had no independent source of income. He went to school through the tenth
grade and had been trying to obtain his GED but had not yet succeeded. Since the prior hearing,
he had been looking for work but did not get any job offers. He believed he could not do a job
which would require constant standing or any amount of kneeling or crouching due to his back
and knee issues. He had flare-ups in his back on rare occasions but pain in his knees almost
constantly. Reaching overhead was also an issue due to bursitis in his shoulder. Additionally, he
had been diagnosed with psoriatic arthritis but it was well-controlled with medication.
When asked how long he could stand and sit, Plaintiff said that he could stand for an hour
a day and up to half an hour at a time. He could walk a little less than half a mile with rest stops
and could sit for an hour at a time. That would cause stiffness in his back, however, for which he
would either take medication or lie down. He avoided lifting and basically did no household
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chores. During a typical day, he watched television, read, or used a computer.
The vocational expert testified next. Based on Plaintiff’s description of his past work, the
expert classified it as hand packaging, done at the medium exertional level. He was then asked
questions about a hypothetical person with Plaintiff’s vocational background who was limited to
light work with many restrictions, including being able to sit or stand for only four hours in a
workday. He agreed that such a person could do neither Plaintiff’s past job or any other full-time
job. Next, he was asked questions about a person who could do light work with a sit/stand
option at will and who had various postural and environmental restrictions. That person, he
testified, could do jobs like garment sorter, officer helper, and mail clerk or sorter. Such jobs did
not require any overhead reaching. They could not be done by someone who needed additional
five to ten minute breaks in the morning and afternoon in addition to regular work breaks, and
the same was true of someone who missed a day and a half of work per month on a regular basis.
In addition to the medical evidence summarized in this Court’s prior Opinion, the record
shows that in April, 2015, Plaintiff sought treatment for his knee pain following a fall. He also
reported some back pain. On examination, it was difficult for the doctor to determine the extent
of Plaintiff’s knee stability due to guarding. He was diagnosed with lumbar radiculopathy,
bilateral knee contusions, and a right ankle sprain, and rest, compression, and elevation were
recommended. Several months later, he received cortisone injections which alleviated his pain to
some extent, and he received another injection in 2016. An MRI of his back done in 2015
showed minimal degenerative changes but some facet arthropathy and either chiropractic
treatment or deep tissue massage were recommended.
In 2018, Plaintiff was diagnosed with psoriasis with arthropathy. He was started on
Humira. An ultrasound revealed evidence of synovial hypertrophy consistent with arthritis. The
following year, an x-ray of his left knee showed mild degenerative changes of the medial joint
compartment and corticated ossification along the distal lateral femoral condyle. A note dated
October 7, 2019, showed he was doing well on the Humira and had no prolonged stiffness, joint
pain, or swelling.
As noted in the Court’s prior decision, there are medical opinions in the record, all dating
from before the order of remand issued. Dr. Liu, who examined Plaintiff in 2013, concluded that
Plaintiff had mild limitations for prolonged walking, bending, and kneeling. Dr. Polina, who
completed a form for the Erie County Department of Social Services in 2014, stated that Plaintiff
was not disabled from working and was cleared to return to work with no restrictions, and Dr.
Slough reached the same conclusion. (Tr. 803-12). It does not appeal that these latter two
opinions were part of the record when the first administrative decision was rendered.
III. STANDARD OF REVIEW
The Court of Appeals for the Second Circuit has stated that, in reviewing a final decision
of the Commissioner of Social Security on a disability issue,
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“[i]t is not our function to determine de novo whether [a plaintiff] is disabled.”
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996). Instead, “we conduct a plenary
review of the administrative record to determine if there is substantial evidence,
considering the record as a whole, to support the Commissioner's decision and if
the correct legal standards have been applied.” Moran v. Astrue, 569 F.3d 108,
112 (2d Cir.2009); see also 42 U.S.C. § 405(a) (on judicial review, “[t]he findings
of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.”).
Substantial evidence is “more than a mere scintilla.” Moran, 569 F.3d at 112
(quotation marks omitted). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quotation marks omitted
and emphasis added). But it is still a very deferential standard of review—even
more so than the “clearly erroneous” standard. See Dickinson v. Zurko, 527 U.S.
150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999). The substantial evidence
standard means once an ALJ finds facts, we can reject those facts “only if a
reasonable factfinder would have to conclude otherwise.” Warren v. Shalala, 29
F.3d 1287, 1290 (8th Cir.1994) (emphasis added and quotation marks omitted);
see also Osorio v. INS, 18 F.3d 1017, 1022 (2d Cir.1994) (using the same
standard in the analogous immigration context).
Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 447–48 (2d Cir. 2012)
IV. DISCUSSION
A. Compliance with the Remand Order
Plaintiff argues, first, that the ALJ did not comply with the order issued by the Appeals
Council on remand. In accordance with this Court’s Opinion and Order, the Appeals Council
directed the ALJ to articulate how he came to the conclusion - as he did in his prior decision -
that Plaintiff could meet the standing requirements of light work by alternating positions on an
hourly basis. Plaintiff asserts that the ALJ did not have a proper basis for making that
determination and his decision therefore does not meet the “substantial evidence” standard. The
Commissioner responds that Plaintiff is really arguing only about whether that standard has been
met, and contends that there was ample evidence to support the ALJ’s finding.
Plaintiff’s argument does have two separate components, the first of which is whether the
ALJ complied with the directives issued by this Court and by the Appeals Council. It is therefore
necessary to review the language of each of those determinations.
In its Opinion, this Court concluded that the ALJ had “failed to identify the evidence he,
as a layman, relied upon in assessing plaintiff with that very specific functional limitation
[alternating sitting and standing on an hourly basis], or how he determined that plaintiff would
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otherwise be able to meet the standing and sitting required for light work.” See 2018 WL
5993365, at *3. This Court rejected the Commissioner’s argument that the opinion of Dr. Ratleff
supported the ALJ’s finding, commenting that a finding concerning sitting and standing was “not
an inference [the] ALJ ... could make on his own without clarification from Dr. Ratliff or some
other medical source.” Id. This Court therefore concluded that “whatever the basis for [the]
ALJ's ... determination that plaintiff could meet the standing requirement for light work by
alternating between sitting and standing every hour, he failed to sufficiently articulate that in his
opinion, thereby precluding meaningful review.” Id. at *4. A remand was ordered for further
proceedings consistent with these findings. The Appeals Council, implementing this Court’s
order, remanded the case to the ALJ “for further proceedings consistent with the order of the
court,” directing the ALJ to “offer the claimant the opportunity for a hearing, take any further
action needed to complete the administrative record and issue a new decision.” (Tr. 522).
Taking the last portion of the Appeals Council’s order first, the ALJ held a new hearing,
admitted new documents into the record, and issued a new decision. Those actions are all
consistent with the Appeals Council’s directions. The remaining portion of the Appeals
Council’s order simply incorporates this Court’s remand order. As noted above, the primary
basis for that order was the ALJ’s failure to explain in sufficient detail what evidence he relied on
when he concluded that Plaintiff could satisfy the standing requirements of light work by
alternating between sitting and standing on an hourly basis. In his decision, the ALJ
acknowledged that directive and provided this explanation:
I relied heavily on the claimant’s own testimony, and the inclusion of a medical
source statement was included in the record at 21F. Due to the claimant’s knee
impairment and his reported symptomology (sic), the claimant would require a sit-
stand option at will. The claimant’s most recent knee X-ray revealed no acute
fracture, mild degenerative changes of the medial joint compartment, and
corticated ossification that may be due to a spur, although an intra-articular loose
body could not be ruled out, and a meniscal tear was not excluded.... The
claimant’s good joint alignment was noted.... His treatment has been conservative
over an abundance of time, noting that no surgical intervention has been
suggested. The claimant testified that any work that requires kneeling or squatting
would be precluded due to his knee pain, as such, a limitation to never perform
such maneuvers is included.
(Tr. 420). The medical source statement to which the ALJ referred includes the opinions of Dr.
Polina, who treated Plaintiff for headaches and shoulder pain, and of Dr. Slough, an orthopedic
specialist, who treated Plaintiff for his lower leg condition. The former opinion, noting no work-
related restrictions stemming from the neck and shoulder impairments, was given great weight,
and the latter opinion, also declining to find work-related limitations, was given only partial
weight due to the fact that after that opinion was rendered, “the claimant has continued to have
knee pain” and, giving him the benefit of the doubt, the ALJ found that he did have some
limitations based on that impairment. (Tr. 420-21).
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It is apparent from these portions of the ALJ’s decision that he relied on several items of
evidence in reaching his conclusion that Plaintiff could, with the accommodation of sit-stand
option, do a limited range of light work. Such evidence included Plaintiff’s testimony at the
second administrative hearing, the lack of more aggressive treatment for his back and knee
impairments, and the two 2014 opinions indicating a complete absence of work-related
restrictions attributable to Plaintiff’s headaches, neck and shoulder pain, and lower leg disorder.
It remains to be determined whether this evidence adequately supports the ALJ’s decision, but
the Court concludes that the ALJ adequately complied with the instructions accompanying the
remand by articulating, in greater detail, the basis for his determination.
Plaintiff contends that his testimony and the medical source statements upon which the
ALJ relied do not provide sufficient support for the ALJ’s decision. He argues that the statement
from Dr. Polina is not relevant to the ability to sit or stand because Dr. Polina treated Plaintiff
only for headaches and neck and shoulder pain. This latter argument, while correct as far as it
goes, ignores the fact that the ALJ relied on not one but two medical source statements contained
in Exhibit 21F. The second, as noted above, came from Dr. Slough, who did treat Plaintiff for
his lower leg complaints. His opinion, which was that Plaintiff had no functional limitations,
provides support for the ALJ’s decision that Plaintiff’s knee impairment did not prevent him
from alternating between sitting and standing at will.
As to Plaintiff’s testimony, at the first hearing, he said that sitting for prolonged periods
caused his knee to get “spasmy” and that standing seemed to help. He could, however, both sit
and stand for fifteen minutes at a time and walk a quarter of a mile, but he did not think he could
alternate sitting and standing for more than an hour. At the second hearing he said he could not
stand for a full day but could stand for half an hour at a time, such as when he showered. He also
said he could go grocery shopping if he had the means to do so and could walk for half a mile
with rest breaks. When asked if he could do a sit-down job, he said that if he sat for an hour he
would get stiff. The ALJ attempted to accommodate this limitation by permitting Plaintiff to sit
and stand at will.
The Court finds that the ALJ relied on substantial evidence when he found that Plaintiff
could alternate sitting and standing throughout the day. This was a more generous assessment of
Plaintiff’s limitations than required by Dr. Slough’s opinion. It represents a reasonable
interpretation of the various statements made by Plaintiff during the two hearings. As this Court
has said, it is not error for an ALJ to rely on a claimant’s testimony when imposing a sit-stand
option. See, e.g., Baker o/b/o Baker v. Berryhill, 2018 WL 1173782 (W.D.N.Y. March 6, 2018);
see also Christine S. v. Comm’r of Social Security, 2021 WL 3721135 (Aug. 23, 2021). Because
a reasonable person could have reached the same conclusion on this issue as did the ALJ,
Plaintiff’s first claim of error does not support an order of remand.
B. Credibility
Plaintiff’s other claim of error relates to the ALJ’s finding that Plaintiff’s statements
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about the extent to which he was limited by his symptoms were not fully consistent with the
record. He argues that the ALJ improperly based this conclusion on the fact that Plaintiff had
made an effort to obtain employment while his application was pending, pointing out that this
Court has held that such unsuccessful attempts support, rather than undermine, a claimant’s
testimony that his or her impairments make it difficult to obtain gainful employment. Plaintiff’s
bolsters his argument by noting that many of the jobs he applied for were part-time, and that the
ability to work on a part-time basis also does not preclude a finding that a claimant cannot do
substantial gainful employment. The Commissioner counters that the ALJ properly followed the
dictates of SSR 16-3p and that he was entitled to consider Plaintiff’s efforts to find a job, along
with other factors, in determining that Plaintiff’s testimony was not entirely consistent with the
record.
As this Court stated in Wynn v. Comm’r of Social Security, 342 F. Supp. 3d 340, 350
(W.D.N.Y. 2018):
The ALJ, who has the “opportunity to observe witnesses' demeanor, candor,
fairness, intelligence and manner of testifying,” is “best-positioned to make
accurate credibility determinations.” Whiting v. Astrue, No. CIV.A. 1:12-274,
2013 WL 427171, at *6, 2013 U.S. Dist. LEXIS 15109, at *22 (N.D.N.Y. Jan. 15,
2013), adopted, 2013 WL 427166, 2013 U.S. Dist. LEXIS 14944 (N.D.N.Y. Feb.
4, 2013). As such, “credibility findings of an ALJ are entitled to great deference
and therefore can be reversed only if they are patently unreasonable.” Perez v.
Barnhart, 440 F.Supp.2d 229, 235 (W.D.N.Y. 2006) (quotation omitted).
Further, SSR 16-3p lists a number of factors which an ALJ is to take into account in
determining how to assess the consistency of a claimant’s testimony, including (1) daily
activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3)
factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side
effects of any medication an individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, an individual receives or has received for relief of pain or
other symptoms; (6) any measures other than treatment an individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every
hour, or sleeping on a board); and (7) any other factors concerning an individual's functional
limitations and restrictions due to pain or other symptoms.
Here, the ALJ considered a number of these factors, and not just the fact that Plaintiff
applied for work. He noted that with the exception of an arthroscopic surgery in 2012, Plaintiff
was treated conservatively over the course of his impairment. (Tr. 419). After commenting on
the fact that Plaintiff had applied for work, the ALJ highlighted a conflict between Plaintiff’s
complaints of knee pain and the results of the 2013 consultative examination, as well as
objective evidence indicating only minimal findings. (Tr. 419-20). Contrary to Plaintiff’s
argument, the ALJ did not focus exclusively on the fact that Plaintiff had been trying to find
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work, and it is worth noting that Plaintiff testified that at least part of the reason he had not been
offered employment was that he had not worked in so long. Taking all of these factors into
account, and being mindful of the deference due to the ALJ’s findings on this issue, the Court
finds no basis for remanding the case for further consideration of this matter.
V. CONCLUSION AND ORDER
For the reasons set forth in this Opinion and Order, the Court DENIES Plaintiff’s
motion for judgment on the pleadings (Doc. 14), GRANTS the Commissioner’s motion (Doc.
15), and DIRECTS the Clerk to enter judgment in favor of the Defendant Commissioner of
Social Security.
/s/ Terence P. Kemp
United States Magistrate Judge
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