# Pitts v. Commissioner of Social Security

> District Court, W.D. New York · September 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10365453

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10365453

## How later opinions describe it (automated extraction)

- stating that “where there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information in advance of rejecting a claim for benefits”
- holding that the ALJ properly relied on plaintiff's own testimony and a letter from a doctor stating that he had severe functional limitations, even though he made improvement following surgery
- stating that “[t]he claimant bears the ultimate burden of proving [disability] throughout the period for which benefits are sought”

## Opinion text

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

CHRIS P.,

Plaintiff,
v.
20-CV-1660
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the
undersigned conduct any and all proceedings in this case, including entry of final
judgment. Dkt. No. 12. Chris P. (“Plaintiff”), who is represented by counsel, 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”) denying his application for
benefits. This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ competing motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. Nos. 9, 10.
For the following reasons, Plaintiff’s motion (Dkt. No. 9) is denied, and the Commissioner’s
motion (Dkt. No. 10) is granted.

BACKGROUND
On August 2, 2017, Plaintiff applied for supplemental security income (“SSI”)
alleging that she became disabled on April 15, 2016, by lower disc issues, diabetes,
arthritis, “black outs,” and stroke. Tr. at 28, 193.1 Plaintiff’s claim was denied at the initial
level, and he requested review. Administrative Law Judge B. Hannan (“the ALJ”)
conducted a hearing on July 25, 2019. Tr. at 44-75. Plaintiff, who was represented by
counsel, testified as did a vocational expert. Tr. at 44-75. On October 15, 2019, the ALJ

issued a decision in which she found that Plaintiff was not under a disability as defined by
the Act since August 2, 2017. Tr. at 25-39. The Appeals Council denied Plaintiff’s request
for review making the ALJ’s decision final. Tr. at 10-15. This action followed. Dkt. No. 1.

LEGAL STANDARD
Disability Determination
A person making a claim for Social Security benefits bears the ultimate
burden of proving disability throughout the period for which benefits are sought. See 20
C.F.R. § 416.912(a); Schauer v. Schweiker, 675 F.2d 55, 59 (2d Cir. 1982). The claimant
is disabled only if he shows that he is unable to engage in any substantial gainful activity

due to any medically determinable physical or mental impairment which has lasted, or can
be expected to last, for a continuous period of at least 12 months. 42 U.S.C. §
1382c(a)(3)(A); 20 C.F.R. § 416.909; see Barnhart v. Walton, 535 U.S. 212, 216-22
(2002).

A disabling physical or mental impairment is an impairment that results
from “anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.

1 Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket
No. 8.
§ 1382c(a)(3)(D). Congress places the burden upon the claimant to establish disability by
“furnish[ing] such medical and other evidence of the existence [of a disability] as the
Commissioner . . . may require.” 42 U.S.C. § 1382c(a)(3)(H)(i). The function of deciding
whether a person is under a disability within the meaning of the Act belongs to the

Commissioner. 20 C.F.R. § 416.927(e)(1); Pena v. Chater, 968 F. Supp. 930, 937
(S.D.N.Y. 1997).

In keeping with this function, the Commissioner has established a five-
step sequential evaluation for adjudicating disability claims, which is set forth at 20 C.F.R.
§ 416.920. The claimant has the burden at the first four steps. The Commissioner has the
burden at the fifth step of demonstrating that the claimant can perform other work existing
in significant numbers in the national economy; but the burden of proving disability is
always on the claimant. See 20 C.F.R. § 416.920; Lesterhuis v. Colvin, 805 F.3d 83, 87
(2d Cir. 2015) (stating that “[t]he claimant bears the ultimate burden of proving [disability]

throughout the period for which benefits are sought”) (citation omitted).

District Court Review
42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g). Section 405(g) limits the scope of the Court’s review to two inquiries:
whether the Commissioner’s conclusions were based upon an erroneous legal standard,
and whether the Commissioner’s findings were supported by substantial evidence in the
record as a whole. See Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).

Substantial evidence is “more than a mere scintilla.” Moran v. Astrue, 569

F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (emphasis added and citation
omitted). The substantial evidence standard of review is a very deferential standard, even
more so than the “clearly erroneous” standard. Brault v. Comm’r of Soc. Sec., 683 F.3d
443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by
substantial evidence, the Court’s task is “‘to examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be drawn.’”
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d

1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s
determination, the decision must be upheld, even if there is also substantial evidence for
the plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin ex
rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where the
evidence is susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
DISCUSSION AND ANALYSIS
The ALJ’s Decision
The ALJ analyzed Plaintiff’s claims using the familiar five-step process.
Lynch v. Astrue, No. 07-CV-249-JTC, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008)

(detailing the five steps). At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since August 2, 2017. Tr. at 30. The ALJ concluded at step two
that Plaintiff suffered from the severe impairment of degenerative disc disease. Tr. at 30.
At step three, he concluded that Plaintiff did not have an impairment or combination of
impairments which met or equaled the Listings. Tr. at 30.

The ALJ found that Plaintiff retained the RFC to perform light work as defined
in 20 C.F.R. § 416.967 (b), with the following limitations: he can occasionally climb ramps
and stairs, balance, stoop, kneel, crouch, and crawl; but he should never climb ladders,
ropes, or scaffolds; and he can never work at unprotected heights or with moving

mechanical parts. Tr. at 32. She noted that Plaintiff had no past relevant work. Tr. at 37.
Relying on the VE’s testimony, the ALJ found that Plaintiff could perform jobs that exist in
significant numbers in the national economy, including the light unskilled jobs of counter
clerk, school bus monitor, and fruit distributor; and the unskilled sedentary jobs of call out
operator, and surveillance system monitor. Tr. at 38. Accordingly, the ALJ determined
that Plaintiff had not been under a disability since August 2, 2017, the application date. Tr.
at 38.
Judgment on the Pleadings
As noted above, the parties have cross-moved for judgment on the
pleadings. Dkt. Nos. 9, 10. Plaintiff argues that the ALJ erred by not incorporating into the
RFC a limitation that he requires a cane to ambulate, and by not developing the record.

Dkt. No. 9-1, pp. 7-11. For the following reasons, this Court disagrees and finds that
remand is not warranted.

RFC Determination
A claimant’s [RFC] is the most he or she can still do despite his or her limitations.
20 C.F.R. § 404.1545(a). RFC “is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms, such
as pain, may cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling 96-8p,
1996 WL 374184, at *2. “This assessment of RFC is used at step 4 of the sequential

evaluation process to determine whether an individual is able to do past relevant work, and
at step 5 to determine whether an individual is able to do other work, considering his or her
age, education, and work experience.” Id.

Plaintiff argues that the ALJ did not properly consider Plaintiff’s need to use a
cane when formulating the RFC. Dkt. No. 9-1, p. 7. This Court does not agree. As an
initial matter, “an RFC finding ‘is administrative in nature, not medical, and its
determination is within the province of the ALJ, as the Commissioner’s regulations make
clear.’” Tiffany L. v. Comm’r of Soc. Sec., 2021 WL 3145694, at *3-4 (W.D.N.Y. July 26,
2021) (quoting Curry v. Comm’r Soc. Sec., 2021 WL 1942331, at *2 n.3 (2d Cir. May 14,
2021)); see 20 C.F.R. § 416.927(d)(2). In this respect, an ALJ can make highly specific
RFC determinations even without a supporting medical opinion. Tiffany
L., 2021 WL 3145694, at *3 (affirming the RFC for sedentary work with specific restrictions

absent a medical opinion with those particular restrictions given that the RFC was
otherwise supported by the record); see also Cook v. Comm'r of Soc. Sec., 818 F. App’x
108, 109-110 (2d Cir. 2020) (stating that “although there was no medical opinion providing
the specific restrictions reflected in the ALJ’s RFC determination, such evidence [was] not
required” given that “the treatment notes were in line with the ALJ’s RFC
determinations”); Corbiere v. Berryhill, 760 F. App’x 54, 56 (2d Cir. 2019) (affirming the
RFC, notwithstanding that there was no corresponding medical opinion, where plaintiff’s
treatment notes supported the specific physical limitations); Trepanier v. Comm’r of Soc.
Sec., 752 F. App’x 75, 79 (2d Cir. 2018) (holding that the ALJ’s RFC determination, which
included a lifting limitation, was supported by substantial evidence, notwithstanding the

lack of a supporting medical opinion); Johnson v. Colvin, 669 F. App’x 44, 46 (2d Cir.
2016) (holding that the ALJ properly relied on plaintiff's own testimony and a letter from a
doctor stating that he had severe functional limitations, even though he made improvement
following surgery).

Secondly, the ALJ addressed Plaintiff’s cane use in reaching the RFC. That
is, she explicitly acknowledged that Plaintiff “presented with a self-prescribed cane” at his
consultative examination with John Schwab, D.O. on October 27, 2017, and that “Dr.
Schwab opined that the cane was medically necessary.” Tr. at 34. The ALJ found Dr.
Schwab’s opinion unpersuasive, however, because it did not specify functional limitation
and the doctor himself opined that Plaintiff’s subjective complaints were worse than the
exam revealed. Tr. at 36; 282. For example, although Plaintiff could not walk on his heels
and toes, he could change for the examination, get on and off the table, and rise from the

chair without difficulty, and was neurologically intact without sensory deficits and with 5/5
strength in the upper and lower extremities. Tr. at 34, 36.

Dr. Schwab’s opinion that Plaintiff needed a cane to ambulate was further
undermined by R. Pradhan, M.D., the state agency medical consultant. Dr. Pradhan
opined on December 13, 2017, that Plaintiff could perform a full range of light work with
occasional postural activity, could stand/walk about six hours in an 8-hour workday, could
occasionally climb ramps, and stairs, stoop, kneel, crouch, and crawl, and had no
limitations with balancing. Tr. at 36. The ALJ found Dr. Pradhan’s opinion persuasive
given that Plaintiff had required only conservative treatment. This was entirely appropriate.

It is well within an ALJ’s discretion to resolve genuine conflicts in the evidence, Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002), and, “in doing so, to ‘choose between properly
submitted medical opinions[.]’” Reithel v. Comm’r of Soc. Sec., 330 F. Supp. 3d 904, 912
(W.D.N.Y. 2018) (quoting Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998)).

Like Dr. Pradhan, Plaintiff’s treating physician, Dr. Jewell Henley, did not
make any findings to suggest that he required a cane. To the contrary, Dr. Henley
consistently observed that Plaintiff’s knees exhibited full range of motion, his left hip x-rays
were unremarkable, and his gait was normal. Tr. at 33, 293, 294, 299, 306, 340.
Objective imaging also did not support a finding that Plaintiff needed a cane to walk or
stand. An x-ray of Plaintiff’s lumbar spine showed only mild dextroscoliosis, and subtle L2
compression; and a November 19, 2016 MRI of the lumbar spine showed only slight
retrolisthesis of 12-3, minimal disc bulge at L2-3 and L3-4, and no significant foraminal

stenosis. Tr. at 290-91, 298-99.

Finally, Plaintiff’s own statements belie the suggestion that he was unable to
ambulate without a cane. Plaintiff reported to Dr. Schwab that he was able to shower,
dress, and “go[ ] out downtown, [and] socializ[e] with friends.” Tr. at 280. He also testified
that he walked one hour and forty-five minutes to attend the hearing. Tr. at 49. Thus,
Plaintiff fails to show that his RFC was more limited than the ALJ found. See Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (plaintiff bears the burden of proving that his RFC
is more restricted than that found by the ALJ, whereas the Commissioner need only show
that substantial evidence supports the ALJ’s decision).

Development of the Record
An ALJ is required to develop the record by obtaining a “complete medical
history for at least the 12 months preceding the month in which [a claimant] file[s] [an]
application.” 20 C.F.R. § 404.1512(b); see Lamay v. Comm’r of Soc. Sec., 562 F.3d 503,
509 (2d Cir. 2009) (holding that the ALJ has a duty to affirmatively develop the record in
light of the essentially non-adversarial nature of a benefits proceeding). The claimant,
however, is responsible for providing the evidence used in the RFC assessment. 20
C.F.R. § 416.945(a)(3); see Social Security Ruling 86-8 (stating that the individual has the
burden of proving that she is disabled and of raising any issue bearing on that
determination or decision); Long v. Bowen, 1989 WL 83379, *4 (E.D.N.Y. July 17, 1989)
(“Even though the ALJ has an affirmative obligation to develop the record, it is the
plaintiff's burden to furnish such medical and other evidence of disability as the Secretary

may require.”).

The ALJ is not obligated to seek further medical records whenever the
evidence of record is sufficient for the ALJ to make an informed disability determination.
Lowry v. Astrue, 474 F. App’x 801, 804 (2d Cir. 2012) (stating that “where there are no
obvious gaps in the administrative record, and where the ALJ already possesses a
complete medical history, the ALJ is under no obligation to seek additional information in
advance of rejecting a claim for benefits”) (quoting Rosa v. Callahan, 168 F.3d 72, 79 n.5
(2d Cir. 1999)). Here, the evidence of record was sufficient for the ALJ to determine
whether Plaintiff was disabled. Specifically, the record included longitudinal treatment

records from Plaintiff’s medical sources, a consultative physician’s findings, a State agency
medical consultant’s assessment, MRIs and x-rays of Plaintiff’s lumbar spine, x-rays of his
left hip, and his testimony. Tr. at 48-64, 279-83, 289-307, 322-26, 337-41. This evidence
is sufficiently complete to reach an RFC. See Morris v. Berryhill, 721 F. App’x 25 (2d Cir.
2018) (the record before the ALJ contained sufficient information upon which the ALJ could
formulate an RFC and, thus, remand is not required); see also O’Connell v. Colvin, 558 F.
App’x 63 (2d Cir. 2014) (the ALJ was under no obligation to further develop the record in
the absence of any obvious gaps or inconsistencies in the record); Brogan-Dawley v.
Astrue, 484 F. App’x 632, 634 (2d Cir. 2012) (the ALJ was not required to further develop
the record when the available evidence was adequate to determine that the claimant was
not disabled).

Moreover, to successfully challenge the sufficiency of the evidence, a

claimant must show “how [the missing records] would have affected [the] case.” Reices-
Colon v. Astrue, 523 F. App’x 796, 799 (2d Cir. 2013); Santiago v. Astrue, No. 3:10-cv-
937(CFD), 2011 WL 4460206, at *2 (D. Conn. Sept. 27, 2011) (citing Pratts v. Chater, 94
F.3d 34, 37-38 (2d. Cir. 1996)). This is Plaintiff’s burden. Id. Where “plaintiff makes only
a general argument that any missing records possibly could be significant, if they even
exist[,] . . . [t]hat argument is insufficient to carry his burden.” Id. Here, Plaintiff failed to
show that there are in fact missing records, and how they could have changed the ALJ’s
decision. In fact, at the outset of the July 25, 2019 administrative hearing, the ALJ asked
Plaintiff’s attorney if there were any relevant outstanding medical records, and the attorney
responded that he was unaware of any. Tr. at 47-48. Accordingly, this Court finds that

Plaintiff has failed to meet his burden in challenging the record.

Plaintiff clearly disagrees with the ALJ’s evaluation of the evidence and RFC
determination. However, the substantial evidence standard is so deferential that “there
could be two contrary rulings on the same record and both may be affirmed as supported
by substantial evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 127 (2d Cir. 2012).
That is, “once an ALJ finds the facts, [a reviewing court] can reject those facts only if a
reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448
(emphasis added). This case does not present such a situation. For all of the foregoing
reasons, this Court finds that the ALJ’s decision is free from legal error and is supported by
substantial evidence.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for judgment on the
pleadings (Dkt. No. 9) is DENIED, and the Commissioner’s motion for judgment on the
pleadings (Dkt. No. 10) is GRANTED.

SO ORDERED.

DATED: Buffalo, New York
September 28, 2022

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365453. Public record. Not legal advice.