ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Joseph Suarez, represented by counsel (Sullivan & Kehoe), brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying him Social Security disability insurance benefits ("DIB"). (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 15: Suarez Motion for Judgment on the Pleadings; Dkt. No. 18: Gov't Motion for Judgment on the Pleadings.) The parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 14: Consent Form.)
For the reasons set forth below, the Commissioner's motion (Dkt. No. 18) is GRANTED and Suarez's motion (Dkt. No. 15) is DENIED.
Suarez applied for DIB on April 9, 2010, alleging disability since March 1, 2010. (Dkt. No. 6: Administrative Record ("R.") 308-12.) After the Commissioner denied Suarez's application on initial review (R. 139-40, 160-64), Suarez requested a hearing (R. 168-70). On January 26, 2011, Suarez appeared before ALJ Lucian Vecchio. (R. 91-107.) On February 25, 2011, ALJ Vecchio denied Suarez's DIB application, finding that Suarez could perform light work. (R. 140-51.) Suarez appealed ALJ Vecchio's decision, and on May 3, 2012, the Appeals Council ordered reconsideration of the nature of Suarez's mental impairments, his maximum residual functional capacity ("RFC") and testimony from a vocational expert. (R. 155-58.)
On October 25, 2012, ALJ Jack Russak held a hearing, but adjourned it to further develop the record and obtain consultative examination reports. (R. 82-90.) On March 21, 2013, ALJ Russak held another hearing at which Suarez appeared with counsel. (R. 108-38.) On April 12, 2013, ALJ Russak denied Suarez's application for DIB benefits. (R. 59-81.) Suarez appealed ALJ Russak's decision, and on June 23, 2014, the Appeals Council denied review. (R. 1-6.)
The period at issue is from March 1, 2010, when Suarez alleged he first became disabled, through April 12, 2013, the date of ALJ Russak's opinion. (R. 76.)
Joseph Suarez, born on November 8, 1961 in Puerto Rico, was 51 at the time of ALJ Russak's decision. (R. 95, 308, 335.)
Prior to the onset of his alleged disability, Suarez worked as a pump mechanic from October 2009 through March 2010 and as an electrician from July 2008 through October 2009. (R. 355-57.) Suarez initially claimed that he left his work as a pump mechanic after being laid off for excessive absences due to injuries (R. 95), but subsequently testified that he quit because his back could not take the work any more (R. 118).
In support of his DIB claim, Suarez reported having difficult with lifting, sitting, standing, walking, squatting, kneeling, climbing stairs, reaching and using his hands. (R. 343.) He also reported problems with self-care activities like dressing, putting on his shoes and doing household chores. (R. 339-41.) Suarez is able to use public transportation. (R. 341.)
At his initial January 26, 2011 hearing, Suarez testified that he could not work due to his back pain causing problems with sitting, standing and walking. (R. 96, 98-99.) Suarez also testified that because of difficulty with reading and spelling, he could not do less physically demanding jobs. (R. 97.) He also alleged that he was disabled due to fatigue from his hepatitis C and stated that since 2006, depression had affected his ability to concentrate or remember. (R. 99-100.) Suarez admitted to past drug and alcohol problems, although he stated that he stopped abusing these substances in 2006 or 2008. (R. 101.) Suarez was able to go to medical appointments and church. (R. 98.)
At his March 21, 2013 hearing, Suarez again complained of back pain and depression. (R. 120-22, 125.) He testified that his back pain meant that he had difficulty taking care of personal grooming needs, like putting on his socks or stepping into and out of the shower. (R. 113-14.) Suarez testified that he was supposed to use a cane, but he did not have the cane and was able to come to the hearing alone by subway. (R. 113-14.) Although Suarez has a "bad liver," it does not cause him physical pain. (R. 121-22.) Suarez testified that he can only walk three or four steps before needing to take a five or ten minute break. (R. 123.) His girlfriend does the cooking and the shopping for both of them. (R. 123.) Suarez occasionally cleans the dishes, but his girlfriend does the other chores. (R. 124.) Suarez testified that that he ceased drug and alcohol use in 2008. (R. 126.)
An October 1, 2004 x-ray of Suarez's lumbar spine showed minimal degenerative changes and minimal wedging of some upper bodies. (R. 411, 413.) On October 4, 2004, Dr. Meena Tamhankar of Castle Hill Medical diagnosed Suarez with acute lumbosacral
On November 8, 2009, Suarez was admitted to Lincoln Medical and Mental Health Center in an unresponsive state after using cocaine, heroin and alcohol. (R. 476-77, 499.) He was diagnosed with hepatitis C, unspecified renal failure, heroin poisoning, and episodic cocaine abuse. (R. 476-77.) Suarez also was diagnosed with acute myocardial infarction.
On June 7, 2010, Dr. Sharon Revan performed a consultative internal medicine exam on Suarez. (R. 523-26.) Suarez complained of overall joint pain due to arthritis. (R. 523.) He reported that standing caused back pain but that he did not have difficulty with sitting. (Id.) Suarez related that he could handle his own hygiene and cook but did not clean, do laundry or shop. (R. 524.) Dr. Revan observed that Suarez had a normal gait except for a limp on the left. (Id.) Suarez could walk on his heels and toes, and squat while holding onto something. (Id.) He did not need help getting on and off the examination table. (Id.) In his lumbar spine, Suarez had forty-five degrees of forward flexion as a result of back pain but full lateral flexion and rotation. (R. 525.) He had a full range of motion in his extremities, as well as full motor strength, no sensory deficits and normal reflexes. (Id.) Dr. Revan opined the Suarez had mild limitations walking distances and climbing stairs due to shortness of breath and unspecified limitations with standing due to his back pain. (R. 526.) Suarez had no limitations with his upper extremities for fine and gross motor activity. (Id.) Dr. Revan also found that Suarez had moderate limitations in activities of daily living secondary to his shortness of breath. (Id.) Suarez's overall prognosis was fair. (Id.)
On June 7, 2010, Suarez also underwent a consultative psychiatric examination with Dr. Dmitri Bougakov. (R. 527-30.) Suarez reported difficulty falling asleep, occasional dysphoric moods, concentration difficulties, diminished sense of pleasure, loss of interest and social withdrawal. (R. 527.) Suarez stated that he was able to cook and use public transportation. (R. 529.) Suarez reported that he was not currently receiving psychiatric treatment, but had seen a psychiatrist when he was undergoing an alcohol abuse program in 2009. (R. 527.) Suarez admitted ongoing alcohol use, although he claimed to have stopped using cocaine and heroin in 2008. (Id.)
On examination, Suarez was cooperative and related adequately. (R. 528.) He had a neutral mood, coherent thought processes, intact concentration, and average intellectual functioning but mildly impaired memory. (R. 528.) Dr. Bougakov found that Suarez was able to repeat three out of three objects immediately but only one out of three after five minutes. (Id.) Suarez was able to repeat five digits forward and two digits backward. (Id.) Dr. Bougakov
On September 7, 2010, Dr. Nelson Cabagnot of Wakefield Medical Professionals completed a medical assessment form for Suarez. (R. 549-51, 553.) Dr. Cabagnot reported that Suarez had severe lower back pain and osteoarthritis in several joints. (R. 549.) Dr. Cabagnot opined that Suarez only could lift less that five pounds and could walk or stand for less than two hours in an eight hour workday and for less than thirty minutes without interruption. (Id.) Dr. Cabagnot also opined that Suarez could sit for less than two hours in an eight hour workday and for less than thirty minutes without interruption, and could never climb, stoop, kneel, balance or crawl. (R. 550-51.) Dr. Cabagnot did not state when or how often he examined Suarez. (See R. 549-51.) A September 29, 2010 referral from Wakefield to Montefiore Medical Center lists a history of hepatitis C and elevated liver function as Suarez's conditions. (R. 553.)
On November 16, 2010, treating physician Dr. Andrew Gitkind examined Suarez. (R. 569-73.) Suarez's chief complaint was of lower back pain that radiated diffusely into his right leg. (R. 570.) At that time, Suarez's only medication was Celexa. (Id.) Suarez reported being independent in all activities of daily living and able to walk without a cane. (R. 571.) On examination, Suarez walked normally, his sensation was intact and motor testing of his upper and lower extremities revealed full motor strength. (Id.) Suarez complained of some back tenderness on palpation and straight leg raising was negative bilaterally. (Id.) On examination, Dr. Gitkind observed a few areas of tenderness. (Id.) Dr. Gitkind opined that Suarez's symptoms were likely secondary to lumbar spondylosis
A November 26, 2010 x-ray of Suarez's lumbar spine showed that vetebral body heights and vertebral body alignment were maintained. (R. 558, 587.) The x-ray revealed disc space narrowing with end plate changes at L2-3 and osteophytes
On January 12, 2011, clinical psychologist Louis Martinez wrote a letter stating that Suarez had initiated treatment for his
On January 27, 2011, Suarez also was examined by Morrisania psychiatrist Dr. Raquel Choua. (R. 716, 809-11, 813-15.) The examination was required before Suarez could start Interferon treatment for his hepatitis C. (R. 716.) Dr. Choua observed that Suarez's gait was normal. (R. 809.) Suarez related having a history of depression but denied any overt psychiatric symptoms and complained of insomnia without fatigue. (R. 716, 810.) Suarez denied homicidal or suicidal thoughts as well as hallucinations or delusions. (Id.) Dr. Choua found Suarez cooperative, with a coherent, logical thought process. (Id.) Suarez had fair to good insight, judgment and impulse control. (Id.) He had a GAF score of fifty-eight. (R. 810.) Suarez's mood was euthymic. (R. 809.) Dr. Choua diagnosed Suarez with combinations of drug dependence, excluding opioid type, and an unspecified episodic mood disorder. (R. 809-10.) Dr. Choua cleared Suarez for Interferon treatment. (R. 716.)
On February 14, 2011, Dr. Gitkind administered a coricosteroid medial bundle branch block injection at the right L3, L4 and L5 portion of Suarez's lumbar spine. (R. 623-28.) Following the procedure, Suarez described his pain as "`much better.'" (R. 626.) At a follow-up examination on April 6, 2011, Suarez told Dr. Gitkind that despite improvement after the injection, he continued to have "some lower pain on the right," and Dr. Gitkind administered another injection. (R. 666, 668, 674-80.) During a follow-up phone call on April 7, 2011, Suarez reported no pain or complications. (R. 671.)
On March 3, 2011, Suarez saw Dr. Zolalem Menglisiu at the Montefiore Medical Center. (R. 718.) Suarez reported no new complaints. (Id.) Following some additional blood work, Suarez began hepatitis C treatment on March 17, 2011. (R. 718, 722-23.) At an April 14, 2011 follow-up examination, Suarez denied fatigue, rashes or mood swings, and did not report being
Fifteen months later, on July 17, 2012, Suarez was seen by Dr. Hosneara Jinnat at Montefiore for follow-up care for his hepatitis C and back pain. (R. 735-58.) Suarez stated that due to insurance problems, he had not followed up previously with his care or taken any prescribed medication. (R. 735.) Suarez complained of non-radiating back pain that affected his ability to sit, stand or walk for long periods, which he relieved with over-the-counter pain medication. (Id.) Suarez reported past cocaine use but said he had been clean since 2005. (R. 736-37.) Suarez complained of right knee swelling from the previous year and noted that he had received two steroid spinal injections which helped relieve his back pain. (R. 738.) On examination, Suarez had a full range of motion, and his bilateral straight leg raising was positive, although Dr. Jinnat noted some "mild fullness" of Suarez's right knee. (R. 739.) Suarez complained of lumbosracral tenderness, but there was no muscle spasm. (Id.) Dr. Jinnat observed that Suarez walked with a slight limp but had normal motor power for his upper and lower extremities. (Id.) A psychological examination found Suarez alert and cooperative, with normal mood, affect, attention span and concentration. (Id.) Suarez had no suicidal/homicidal ideation, delusions or hallucinations. (Id.) Dr. Jinnat referred Suarez for additional testing and for psychiatric treatment for his complaints of depression. (R. 739-41.)
A July 29, 2012 MRI scan of Suarez's lumbar spine revealed diffuse disc bulges at L5-S1, L4-L5 and L2-L3 that flattened the thecal sac at two disc levels. (R. 687, 759-60.) The L5-S1 bulge was asymmetric. (R. 759.) At an August 14, 2012 follow-up visit, Dr. Jinnat noted the MRI results and otherwise essentially repeated his previous examination findings. (R. 761-65.) Suarez did not have any new complaints since his last visit. (R. 761.) Dr. Jinnat prescribed physical therapy and Tramadol for Suarez's back pain. (R. 764.)
On August 20, 2012, Suarez received a lidocaine injection at the right sacroiliac joint from Dr. Gitkind. (R. 702.) Suarez tolerated the procedure well, with no complications. (Id.)
On September 11, 2012, Suarez again saw Dr. Choua. (R. 817-19.) Dr. Choua observed that Suarez had a normal gait but complained that his knee arthritis and herniated lumbar disc prevented him from climbing steps, bending or lifting. (R. 817-18.) At the time, Suarez attended church twice a week and assisted his wife with chores. (R. 818.) Suarez reported stable liver function since he stopped drinking alcohol. (Id.) He stated that he was "`sleeping well,'" and fell asleep "`right away.'" (Id.) On examination, Dr. Choua found Suarez's mood euthymic, his affect full and his thought content rational. (R. 817.) His GAF score was fifty-seven. (R. 818.) Dr. Choua diagnosed Suarez with an unspecified episodic mood disorder and prescribed therapy and medication. (R. 818-19.)
On September 13, 2012, Suarez was treated by gastroenterologist Dr. Hillary Hertan at Montefiore for a follow-up on his hepatitis C. (R. 771-74.) Suarez's physical examination results were essentially normal. (R. 772.) Dr. Hertan restarted Suarez on Interferon treatment. (R. 773.)
On September 20, 2012, Suarez again saw Dr. Gitkind at Montefiore. (R. 775-76.) Suarez reported that a previous spinal injection had provided good relief of his lower back pain. (R. 775.) Dr. Gitkind noted Suarez's "excellent pain relief which lasted about 14 months" following his 2011 injections. (Id.) On examination, Suarez
On September 27, 2012, Suarez had a follow-up appointment with Dr. Hertan for his hepatitis C. (R. 777-79.) Examination findings were unremarkable, and Suarez had a full range of motion in his extremities. (Id.) Dr. Hertan refilled several of Suarez's prescriptions and performed further testing. (R. 707-09, 779-85.) That same day, Suarez saw Dr. Jinnat for a back pain follow-up. (R. 786-89.) Suarez complained that his back and knee pain affected his ability to climb stairs or walk more than two blocks. (R. 786.) Dr. Jinnat noted that Suarez had a full range of extremity motion. (R. 788.) A physical examination of Suarez revealed no abnormalities. (Id.)
On October 11, 2012, Suarez again saw Dr. Hertan for hepatitis C treatment, and Suarez reported no pain. (R. 792-96.) Abdominal sonograms for Suarez on October 9 and October 12, 2012 were normal. (R. 777-79.)
On November 19, 2012, Dr. Marilee Mescon performed a consultative internal medical examination of Suarez. (R. 820-24.) Suarez reported that despite his physical impairments, he could shop, shower, bathe, dress and do laundry. (R. 821.) He reported spending his time attending appointments, listening to the radio and watching television. (Id.) Dr. Mescon reviewed Suarez's MRI results. (R. 820.) On examination, Suarez had a normal gait and a full range of motion through his spine and extremities. (R. 822-23.) Suarez had equal reflexes, unimpaired sensation and full motor strength. (R. 823.) Dr. Mescon opined that Suarez had no limitations in his ability sit, stand, climb, push, pull or carry heavy objects and a fair prognosis. (R. 823.)
On November 19, 2012, Suarez also received a consultative psychiatric examination from Dr. Howard Tedoff. (R. 825-28.) Suarez stated that he helped "`a little'" with household maintenance and that despite being socially "inactive," he attended a church group and AA meetings twice a week. (R. 825-26.) Suarez told Dr. Tedoff that he lost his job because he was fired due to drug and alcohol abuse. (R. 826.)
On examination, Suarez related well and was cooperative and responsive. (Id.) Suarez's mood was depressed, but Dr. Tedoff found his thought processes coherent and goal directed. (R. 827.) Suarez had intact attention and concentration. (Id.) He could do basic calculations. (Id.) Suarez had good insight, but based on his reported history of substance abuse, somewhat impaired judgment. (Id.) Dr. Tedoff found that Suarez could follow and understand simple directions and perform simple tasks. (R. 828.) Suarez's attention and concentration skills were intact. (Id.) Suarez believed he was unable to maintain a full time regular work schedule. (Id.) Dr. Tedoff noted that in the past Suarez had learned and performed complex tasks. (Id.) Dr. Tedoff found that Suarez's decision-making skills were suspect but seemed to be improving. (Id.) Dr. Tedoff opined that Suarez had the capacity to relate adequately with others, although he did not let himself do so, and that Suarez was hiding from stress by staying home at all times except for appointments, therapy
On November 26, 2012, consultative examiner Dr. Lumesan completed a functional assessment of Suarez. (R. 833-38.) Dr. Lumesan opined that Suarez could lift and carry up to twenty pounds occasionally; could sit for four hours in an eight-hour workday; stand for two hours and walk for two hours in an eight-hour workday; could perform manual activities such as reaching and handling frequently; but could never climb, balance, stoop, kneel, crouch or crawl. (Id.)
On December 27, 2012, Dr. Choua and Dr. Martinez completed a medical source statement form for Suarez. (R. 845-47.) They opined that Suarez had moderate limitations in his ability to: maintain concentration, pace and attention for extended periods of time of at least two hours; understand, carry out and remember instructions; respond appropriately to supervision and changes in the work setting; use good judgment on the job; perform simple one and two step tasks; and behave in an emotionally stable manner. (R. 845-46.) They opined that Suarez had marked limitations in his activities of daily living as well as his ability to: sustain a routine without special supervision; perform activities within a schedule, maintain regular attendance and be punctual; respond to customary work pressures; and perform complex, repetitive or varied tasks. (Id.) In their opinion, Suarez's symptoms had been present at the same level of severity since before 2010, and he was likely to be absent from work four or more days per month as a result of his impairments and/or treatment. (R. 846.) They identified drugs and alcohol abuse as material factors in Suarez's mental condition but opined that even if Suarez were to cease drug and alcohol use, there would be no change in his mental condition because he had suffered permanent damage from it. (R. 846-47.)
On December 31, 2012, Suarez was treated by Dr. Jinnat at Montefiore for follow-up relating to his back pain. (R. 854-57.) Suarez complained of chronic back pain and chronic right knee pain. (R. 854.) He reported that because of the pain, he found it difficult to climb stairs and could only walk two blocks. (R. 854.)
On January 22, 2013, Dr. Florez completed a medical assessment form for Suarez. (R. 841-43.) Dr. Florez had begun treating Suarez that month. (R. 111.) Dr. Florez opined that Suarez could occasionally lift and/or carry ten pounds, could stand or walk for one hour in an eight hour work day but only for fifteen minutes without interruption, and could sit for four hours in an eight hour work day but only for thirty minutes without interruption due to the limited range of motion in his spine and right knee. (R. 841-42.) Suarez could occasionally climb but could not kneel, crawl or crouch. (R. 842.) Suarez had environmental limitations with respect to heights, moving machinery, and vibration. (R. 843.)
On March 28, 2013, Dr. Choua wrote a letter stating that Suarez suffered from
ALJ Russak heard testimony from vocational expert Esperanze DiStefano. (R. 12834, 302-07.) DiStefano testified that a hypothetical individual of Suarez's age, education and work history could not perform Suarez's past relevant work if limited to light work with an option to sit or stand at will, with additional restrictions of never climbing ramps or stairs or crawling and only occasionally climbing ladders, ropes, or scaffolds and stooping, crouching, or kneeling, and that involved performing simple and routine tasks with only occasional decision-making, no interaction with the public and only occasional interaction with coworkers. (R. 130.) Such an individual, however, could work as an assembler, office helper or mail clerk, and these jobs exist in significant numbers in the national and local economies. (R. 130-31.) DiStefano testified that if the hypothetical individual were to have three or more absences from work per month, "that would be more than what is normally tolerated by most employers." (R. 132.) Finally, in answer to questions by Suarez's counsel, DiStefano testified that if such an individual's ability to maintain concentration, pace and attention was restricted to two-thirds of the day, leaving the individual off-task for a third of the day, the individual would not be able to maintain employment. (R. 133-34.)
At the first step of the five-step sequential analysis, ALJ Russak found the Suarez "has not engaged in substantial gainful activity since March 1, 2010, the alleged onset date." (R. 65.) At the second step, ALJ Russak found that Suarez had the following severe impairments: "[d]egenerative disc disease of the lumbar spine with right-sided lumbar spondylosis and facet arthropathy; arthritis of the right knee; hepatitis C infection; obesity; depressive disorder; and alcohol and polysubstance use, in remission ...." (R. 65.) ALJ Russak found that Suarez did not have a severe cardiac impairment because he has exhibited no cardiac symptoms since being hospitalized for drug and alcohol abuse complications that included a myocardial infarction in November 2009, before the March 2010 alleged onset date. (R. 65.)
At the third step, ALJ Russak found that Suarez "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526)." (R. 65.) ALJ Russak found that Suarez's knee disorder did "not satisfy Listing 1.02A (Major dysfunction of a joint)" because "he has not exhibited an inability to ambulate effectively" and "[m]ultiple treating and examining sources have noticed that [Suarez] had normal gait and stance and did not require an assistive device to ambulate." (Id.) ALJ Russak determined that Suarez's spinal impairment "does not satisfy the requirements of Listing 1.04A (Disorders of the spine), as he has not exhibited each of the necessary neurological deficits." (Id.) Specifically, ALJ Russak noted that "[t]he same treating and examining sources have noted normal motor strength and sensation on neurological examinations throughout the record." (Id.) ALJ Russak also found that Suarez's hepatitis C "does not satisfy the requirements of Listing 5.05 (Chronic liver disease), as he has not exhibited any of the required clinical findings or abnormal laboratory or diagnostic test results." (Id.) ALJ Russak considered Suarez's obesity in conjunction with each these conditions and found that "[i]n this case, the obesity does,
ALJ Russak also found that "[t]he severity of [Suarez's] mental impairments, considered singly and in combination, do not meet or medically equal the criteria of Listings 12.04 (Affective disorders) and 12.09 (Substance addiction disorders)." (R. 66.) In doing so, he specifically "considered whether the `paragraph B' criteria are satisfied." (Id.) As ALJ Russak noted, those criteria require that:
(Id.) ALJ Russak found that Suarez had moderate restriction in his activities of daily living based on his statements to Dr. Tedoff and his hearing testimony. (Id.) These restrictions did not rise to the level of marked, however, because "the extent of the assistance that [Suarez] described appears to be routine in nature and can be provided by his household partner, without the need for assistance from a home health aide." (Id.)
ALJ Russak determined that Suarez had moderate limitations with respect to social functioning and concentration, persistence and pace. (Id.) Although Suarez's isolative behavior represented a significant restriction in his social functioning, ALJ Russak noted that it was not a marked limitation because Suarez remained able to travel independently and attend religious services and chemical recovery programs by himself. (Id.) Suarez did not demonstrate any marked limits in his concentration, persistence or pace because "neither consultative psychological examiner noted more than a mild impairment in attention, concentration or recent or remote memory," and Suarez himself "stated that he spends his time watching TV and listening to the radio, without any admitted limitation imposed by his psychiatric impairment." (Id.)
ALJ Russak observed that Suarez experienced no episodes of decompensation of extended duration. (Id.) Suarez also had not required inpatient hospitalization or emergency room treatment for his psychiatric disorders since his alleged onset date and instead "receive[d] only routine outpatient therapy once every three weeks and [saw] a psychiatrist only once every two months ..." (R. 66-67.)
Finally, ALJ Russak found that "the evidence fails to establish the presence of the `paragraph C' criteria" for affective disorders because "there is no medical evidence or testimony" that Suarez ever experienced repeated episodes of decompensation, a residual disease process resulting in such marginal adjustment that even minimal increases in mental demands or changes in the environment would be predicted to cause him to decompensate, or a current history of one or more years' inability to function outside a highly supportive living environment. (R. 67.)
ALJ Russak next found that Suarez had the RFC to
(R. 67.) ALJ Russak "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." (Id.) He also "considered opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p." (R. 67.)
ALJ Russak provided a detailed analysis of Suarez's testimony and of the medical evidence of record. (R. 67-74.) In particular, ALJ Russak thoroughly considered Dr. Gitkind's November 2010 examination results, in which Dr. Gitkind opined that Suarez had lower back pain, secondary to lumbar spondylosis and facet mediated pain, recommended that Suarez undergo physical therapy, and observed that Suarez was independent in activities of daily living and had generally normal examination results, with only a few areas of tenderness. (R. 68-69.) ALJ Russak also reviewed Dr. Gitkind's subsequent treatment notes for Suarez, including his notes from his administration of sacroiliac injection and medial branch blocks to the right side of Suarez's lumbar spine in early 2011. (R 69.) ALJ Russak noted that "[f]ollowing the injections in early 2011, [Suarez] underwent no further treatment for his back until later in 2012." (Id.) ALJ Russak also discussed Suarez's lumbar spine MRI in July 2012, which revealed that Suarez had an asymmetric diffuse disk bulge and several other diffuse disk bulges, leading Dr. Gitkind to administer a further sacroiliac injection. (Id.) Finally, ALJ Russak considered Dr. Gitkind's September 2012 progress note stating that Suarez had experienced good pain relief following that August 2012 procedure. (Id.) ALJ Russak determined that:
(R. 71.)
ALJ Russak also considered Suarez's symptoms in relation to all seven factors set forth in SSR 96-7p, "because symptoms may sometimes suggest a greater degree of impairment than can be shown by the medical evidence alone." (R. 71-72.) ALJ Russak noted that although Suarez denied performing productive activity during the day in his hearing testimony, Suarez admitted in other parts of the record to "much greater abilities to handle his own personal care and other household chores." (R. 72.) ALJ Russak observed that Suarez's "symptoms appear to be relatively mild and intermittent, as he reported to Dr. Gitkind a 14-month period of relief in his back pain, and as the objective reports in the record from his psychiatric treatment providers and from the consultative examiners do not describe particularly frequent or intense mental health symptoms." (Id.) ALJ Russak discussed the conflict between Suarez's report
ALJ Russak gave some weight to the opinions of consultative examiners Dr. Bougakov and Dr. Revan. (R. 72.) Although "[e]ach source was duly qualified and had the opportunity to perform a detailed clinical interview with and comprehensive physical or mental status examination of Suarez, "subsequent objective evidence has come in to suggest that [Suarez] has additional functional limitations that the examiners would not have been aware of [at] that time." (R. 72.)
ALJ Russak gave little weight to Dr. Cabagnot's September 2010 opinion that due to back pain, Suarez could lift and carry less that five pounds, stand and walk less than two hours and sit less than two hours in an eight hour workday. (R. 73.) The ALJ also gave little weight to Dr. Florez's January 2012 opinion that due to Suarez's limited range of motion in his spine and right knee, he could only lift and carry ten pounds, stand and walk for one hour and sit for four hours in an eight hour workday. (Id.) ALJ Russak characterized both as treating source statements. (Id.) According to ALJ Russak:
(R. 73, record citations omitted.)
ALJ Russak gave some weight to Dr. Lumesan's November 2012 opinion that Suarez could lift and carry up to twenty pounds, sit for four hours and stand and walk for a total of four hours in an eight hour workday because "[t]hese conclusions are more in line with the objective findings, which show tenderness and limited range of motion in the low back but without any neurological deficits affecting the lower extremities, and with the X-ray and
ALJ Russak next found that Suarez "is unable to perform any past relevant work." (R. 74.) ALJ Russak first identified Suarez's past work as a maintenance electrician, electronics installer and pump mechanic, and determined that only the maintenance electrician position qualified as past relevant work because it was the only one that Suarez "performed ... at the substantial gainful activity level, and for long enough to satisfy the specific vocational preparation requirements." (Id.) Based on the vocational expert's testimony, ALJ Russak found that an individual of Suarez's age, education and work experience with Suarez's RFC would be unable to work as a maintenance electrician. (R. 74.)
Finally, ALJ Russak discussed the applicability of the medical-vocational guidelines. (R. 74-75.) He determined that "if [Suarez] had the residual functional capacity to perform the full range of light work, a finding of `not disabled' would be directed by Medical-Vocational Rule 202.18 and Rule 202.11." (R. 75) However, ALJ Russak determined that because Suarez's ability to perform all or substantially all of the requirements of light work "has been impeded by additional limitations," vocational expert testimony was required to determine "the extent to which these limitations erode the unskilled light occupational base." (Id.)
Based on the vocational expert's testimony, ALJ Russak found that an individual with Suarez's age, education, work experience and RFC could find jobs in such occupations as an assembler, mail clerk or office helper. (R. 75-76.) ALJ Russak found Suarez not disabled. (R. 76.)
On April 23, 2013, Suarez's counsel sought Appeals Council review of ALJ Russak's decision, alleging that the ALJ committed reversible error in mischaracterizing the vocational expert's testimony, failed to give adequate weight to the opinions of Suarez's treating physicians, erroneously relied on the opinion of consultative examiner Dr. Tedoff to determine the severity of Suarez's impairments, and that "[s]ince the evidence from examining physicians documents that, at the most, [Suarez] can perform sedentary work, he is disabled under Rule 210.10 of the Grids." (R. 54-56.) In support of his appeal, Suarez submitted an SSA adult function report by prepared by Oneida Rodriguez from Februray 2014 and records from All Med and Rehabilitation Center from March 2013. (R. 395-403, 864-67.) Suarez also submitted the results of a February 2014 evaluation by the Federation Employment and Guidance Service ("FEGS"). (R. 8-52.)
On June 23, 2014, the Appeals Council denied Suarez's request for review. (R. 1-4.) In reaching its decision, the Appeals Council considered the reasons Suarez disagreed
A person is considered disabled for Social Security benefits purposes when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S.Ct. 376, 379, 157 L.Ed.2d 333 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268, 152 L.Ed.2d 330 (2002); Impala v. Astrue, 477 Fed.Appx. 856, 857 (2d Cir.2012).
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S.Ct. at 1270; Salmini v. Comm'r of Soc. Sec., 371 Fed.Appx. at 111; Betances v. Comm'r of Soc. Sec., 206 Fed.Appx. at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311 F.3d at 472.
In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational
A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record as a whole to support such determination. E.g., 42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 Fed.Appx. 53, 53 (2d Cir.2011).
The Supreme Court has defined "substantial evidence" as "`more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); accord, e.g., Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 773-74.
The Court, however, will not defer to the Commissioner's determination if it is "`the product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 Fed. Appx. 154, 156 (2d Cir.2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004), amended on other grounds, 416 F.3d 101 (2d Cir.2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S.Ct. at 379-80 (fns. & citations omitted); accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.2012); Rosa v. Callahan, 168 F.3d at 77; Tejada v. Apfel, 167 F.3d at 774.
The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S.Ct. at 379-80.
The "treating physician's rule" is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion. Specifically, the Commissioner's regulations provide that:
20 C.F.R. § 404.1527(c)(2); see, e.g., Rugless v. Comm'r of Soc. Sec., 548 Fed.Appx. 698, 699-700 (2d Cir.2013); Meadors v. Astrue, 370 Fed.Appx. 179, 182 (2d Cir. 2010); Colling v. Barnhart, 254 Fed.Appx. 87, 89 (2d Cir.2007); Lamorey v. Barnhart, 158 Fed.Appx. 361, 362 (2d Cir.2006).
Further, the regulations specify that when controlling weight is not given a treating physician's opinion (because it is not "well-supported" by other medical evidence), the ALJ must consider the following factors in determining the weight to be given such an opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other factors which may be significant. 20 C.F.R. § 404.1527(c)(2)-(6); see, e.g., Cichocki v. Astrue, 534 Fed.Appx. 71, 74 (2d Cir.2013); Gunter v. Comm'r of Soc. Sec., 361 Fed. Appx. 197, 197 (2d Cir.2010); Foxman v. Barnhart, 157 Fed.Appx. 344, 346-47 (2d Cir.2005); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998).
When a treating physician provides a favorable report, the claimant "is entitled to an express recognition from the [ALJ or] Appeals Council of the existence of [the treating physician's] favorable ... report and, if the [ALJ or] Council does not credit the findings of that report, to an explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999); see, e.g., Cichocki v. Astrue, 534 Fed.Appx. at 75; Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.2010) (ALJ's failure to consider favorable treating physician evidence ordinarily requires remand pursuant to Snell but does not require remand where the report was "essentially duplicative of evidence considered by the ALJ"); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984) ("We of course do not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable [reviewing courts] to decide whether the determination is supported by substantial evidence." (citations omitted)); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012 at *7, *9 (S.D.N.Y. May 6, 2003) (The ALJ's "`failure to mention such [treating physician report] evidence and set forth the reasons for his conclusions with sufficient specificity hinders [this Court's] ability ... to decide whether his determination is supported by substantial evidence.'").
The Commissioner's "treating physician" regulations were approved by the Second Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993).
The first inquiry is whether Suarez was engaged in substantial gainful activity after his application for DIB benefits. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510. ALJ Russak's conclusion
The second step of the analysis is to determine whether Suarez proved that he had a severe impairment or combination of impairments that "significantly limit[ed his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:
20 C.F.R. § 404.1521(b)(1)-(6).
ALJ Russak found that Suarez's degenerative disc disease of the lumbar spine with right-sided lumbar spondylosis and facet arthropathy, arthritis of the right knee, hepatitis C, depressive disorder and drug and polysubstance use, currently in remission, all constituted severe impairments. (See pages 563-64 above.)
The third step of the five-step test requires a determination of whether Suarez had an impairment listed in Appendix 1 of the Regulations. 20 C.F.R., Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).
ALJ Russak found that notwithstanding Suarez's multiple severe impairments, he "does not have an impairment of combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526)." (See page 563 above.) ALJ Russak specifically discussed why Suarez's spinal impairments, arthritis, hepatitis C, obesity, mental impairments and substance abuse each do not rise to Listings-level. (See pages 563-64 above.)
Suarez is represented by counsel and does not argue that any of his impairments meet or equal a Listed condition. (See generally Dkt. No. 15: Suarez Br.) The
ALJ Russak found that Suarez had the RFC to
(See pages 564-65 above.)
First, Suarez argues that ALJ Russak erred making his RFC determination by not giving controlling weight to the December 2012 opinion of treating psychiatrist Dr. Choua that Suarez had multiple marked and moderate limitations and was likely to be absent from work more than four days per month. (Dkt. No. 15: Suarez Br. at 15-16.) Specifically, Suarez claims that Dr. Choua's December 2012 opinion "is consistent with the record, as it aligns with both Dr. Martinez and Dr. Tedoff's opinions." (Suarez Br. at 16.)
Even though "the treating physician rule generally requires deference to the medical opinion of a claimant's treating physician, the opinion of the treating physician is not afforded controlling weight where ... the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004) (citation omitted).
ALJ Russak expressly gave little weight to the December 2012 joint opinion from Dr. Choua and Dr. Martinez because it was not well-supported by the underlying medical evidence contained in their other reports, its statements about the duration of Suarez's allegedly disabling symptoms were contradicted by Suarez's employment history, and it conflicted with the reports from consultative examiners. (See page 566 above.)
ALJ Russak accurately characterized the medical evidence contained in the other records from Dr. Choua and Dr. Martinez. Although both doctors diagnosed Suarez with depression and/or a mood disorder, both consistently reported largely normal mental status findings. (See pages 558-61 above.) Specifically, in January 2011, Dr. Martinez found that although Suarez had a depressed mood, his affect was full and stable and he had a coherent thought process with unimpaired insight, impulse control and judgment, no deficits in attention, recall or language and "ok" interpersonal relations. (See pages 558-59 above.) In January 2011, Dr. Choua found Suarez to have a euthymic mood, no overt psychiatric symptoms other than insomnia, and fair to good insight, judgment and impulse control. (See pages 559-60 above.) In September 2012, Dr. Choua again found Suarez to be euthymic, with a full affect and rational though content. (See pages 560-61 above.) Suarez had repeated GAF scores in the no more than moderately limited range of fifty-five to fifty-eight in January 2011 and September 2012. (See pages 559-60, 560-61 above.) Finally Dr. Choua's March 2013 letter noted that Suarez's depressive disorder, chronic insomnia and substance abuse were in remission. (See page 563 above.)
Furthermore, the report from Dr. Choua and Dr. Martinez stated that Suarez's psychiatric limitations existed at the same level of severity prior to 2010, when Suarez allegedly became disabled. (See page 562 above.) Suarez, however, did not cease working until March 2010, as a result either of his back pain or because he was fired for drug and alcohol abuse, not because of his depression. (See pages 555-56, 561 above.) Thus, ALJ Russak's observation that Suarez "was still engaging in substantial gainful activity at that time, and he did not stop working because of his depression" (see page 566 above) was accurate.
ALJ Russak also was correct to observe that the mental consultative examination reports for Suarez contain largely normal
Suarez also argues that ALJ Russak erred because Dr. Gitkind's November 16, 2010 examination results are "consistent with the record as [they are] supported by an MRI of the lumbar spine dated July 29, 2012." (Suarez Br. at 16.) Dr. Gitkind, however, provided only a description of Suarez's symptoms and their causes, not a medical opinion regarding Suarez's level of functioning and limitations, if any. (See page 558 above.) Moreover, ALJ Russak thoroughly considered Dr. Gitkind's November 2010 examination results in determining Suarez's RFC. (See pages 564-65 above.) In particular, ALJ Russak noted Dr. Gitkind's opinion that Suarez had lower back pain, secondary to lumbar spondylosis and facet mediated pain, his recommendation that Suarez undergo physical therapy, and his observation that Suarez was independent in activities of daily living and had generally normal examination results, with only a few areas of tenderness. (See pages 558, 564-65 above.) ALJ Russak also reviewed Dr. Gitkind's subsequent treatment notes for Suarez, which included the administration of a sacroiliac injection and medial branch blocks to the right side of Suarez's lumbar spine in early 2011. (See pages 559-61, 565 above.) As ALJ Russak noted, "[f]ollowing the injections in early 2011, [Suarez] underwent no further treatment for his back until later in 2012." (See pages 559-60, 565 above.) Suarez's lumbar spine MRI in July 2012 revealed that he had an asymmetric diffuse disk bulge and several other diffuse disk bulges, leading Dr. Gitkind to administer a further sacroiliac injection. (See page 560 above.) ALJ Russak discussed the MRI results in his RFC determination. (See page 565 above.) Finally, ALJ Russak considered Dr. Gitkind's September 2012 progress note stating that Suarez had experienced good pain relief following his August 2012 injection. (See pages 560-61, 565 above.) Thus, while Suarez is correct that Dr. Gitkind's November 2010 examination results are consistent with the results of Suarez's July 2012 lumbar spine MRI (Suarez Br. at 16), that fact does not undermine ALJ Russak's RFC determination.
In addition, Suarez challenges ALJ Russak's determination that the treating source statements from Dr. Cabagnot and Dr. Florez were entitled to little weight. (Suarez Br. at 16-17.)
ALJ Russak did not reject either opinion based on any conflict with Dr. Revan's consultative examination results. (See pages 565-67 above.)
Finally, Suarez argues that ALJ Russak "should not have granted controlling weight to [the opinion of] Dr. Tedoff" because Dr. Tedoff was a consultative examining psychiatrist. (Suarez Br. at 18.) According to Suarez, a consulting physician's opinion should be given less weight than those of a treating source if all else is
It is well-settled that a consulting physician's opinion can constitute substantial evidence supporting an ALJ's conclusions. See, e.g., Rosier v. Colvin, 586 Fed. Appx. 756, 758 (2d Cir.2014) (substantial evidence supporting ALJ's conclusion that a treating physician's opinion should not be given controlling weight included evaluations by a consultative examiner); Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir.1995) ("The opinions of three examining physicians, plaintiff's own testimony, and the medical tests together constitute substantial evidence adequately supporting the [Commissioner's] conclusion that the plaintiff's injuries did not prevent her from resuming her job as a sewing machine operator."); Fuentes v. Colvin, No. 13-CV-6201, 2015 WL 631969 at *8 (W.D.N.Y. Feb. 13, 2015) ("`The opinion of a consultative examiner can constitute substantial evidence supporting an ALJ's decision.'"); Frawley v. Colvin, No. 5:13-CV-1567, 2014 WL 6810661 at *9 (N.D.N.Y. Dec. 2, 2014) ("The opinions of consultative examiners... may constitute substantial evidence where, as here, [they are] supported by the medical evidence in the record."); Leisten v. Colvin, No. 12-CV-6698, 2014 WL 4275720 at *14 (W.D.N.Y. Aug. 28, 2014). Here, ALJ Russak gave "great weight" to Dr. Tedoff's opinion because "[h]is conclusions as to [Suarez's] social functioning provide the most reasonable explanation in the record for the disconnect between the generally benign mental status findings (indeed, Dr. Tedoff noted no mental status abnormalities at all), and the fact that [Suarez] has isolated himself socially to some extent." (See page 567 above.) This is consistent with Dr. Bougakov's conclusion that Suarez's only significant vocational limitations were mild difficulties learning new tasks and performing complex ones (see pages 557-58 above), and with the findings of Dr. Martinez and Dr. Choua, who both consistently found Suarez to have largely normal mental status examination results and a GAF score indicative of only moderate social limitations (see pages 559-60, 560-61 above).
Moreover, an ALJ may give greater weight to a consultative examiner's opinion than a treating physician's opinion if the consultative examiner's conclusions are more consistent with the underlying medical evidence. See, e.g., Rosier v. Colvin, 586 Fed.Appx. at 758 (ALJ properly relied on evaluations by a consultative examiner to reject treating physician's opinion where other substantial evidence in the record was inconsistent with treating physician's opinion); Rivera v. Colvin, 13 Civ. 7150, 2015 WL 1027163 at *16 (S.D.N.Y. Mar. 9, 2015) ("It is not per se legal error for an ALJ to give greater weight to a consulting opinion than a treating opinion."); Frawley v. Colvin, 2014 WL 6810661 at *5-7, *9-10 (ALJ's decision to give great weight to the opinion of a consultative psychological examiner was supported by substantial evidence because the opinion was consistent with the same medical medical evidence relied on by the ALJ to reject the treating psychologist's opinion); Manning v. Colvin, No. 13-CV-497, 2014 WL 5308189 at *8-9 (W.D.N.Y. Oct. 16, 2014) (ALJ properly gave little weight to the treating physician's opinion and "`great weight'" to the consultative examiner's prognosis because the consultative examiner's opinion was more consistent with the medical evidence of record); Leisten v. Colvin, 2014 WL 4275710 at *12-15 (ALJ did not err by affording treating doctor's opinions little weight and giving consultative examiners' opinions substantial weight because the treating doctor's opinion was inconsistent and unsupported while consultative examiners' opinions were supported by their examination results).
Accordingly, the Court finds that ALJ Russak's RFC determination for Suarez is supported by substantial evidence in the record.
Because subjective symptoms only lessen a claimant's RFC where the symptoms "`can reasonably be accepted as consistent with the objective medical evidence and other evidence,' the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL 3241397 at *7 (S.D.N.Y. Oct. 8, 2009) (citation & emphasis omitted); see, e.g., Campbell v. Astrue, 465 Fed. Appx. 4, 7 (2d Cir.2012) ("As for the ALJ's credibility determination, while an ALJ `is required to take the claimant's reports of pain and other limitations into account,' he or she is `not require[d] to accept the claimant's subjective complaints without question.' Rather, the ALJ `may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.'" (citations omitted)); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.2010) ("When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." (citations omitted)); Brown v. Comm'r of Soc. Sec., 310 Fed.Appx. 450, 451 (2d Cir.2009) ("`Where there is conflicting evidence about a claimant's pain, the ALJ must make credibility findings.'").
When ruling that a claimant is not entirely credible, the ALJ must provide "specific reasons for the finding on credibility, supported by the evidence in the case record." SSR 96-7p, 1996 WL 374186 at *4 (July 2, 1996). The regulations set out a two-step process for assessing a claimant's statements about pain and other limitations:
Genier v. Astrue, 606 F.3d at 49 (quotations, citation & brackets omitted).
ALJ Russak found that Suarez's "statements concerning the intensity, persistence and limiting effects of [his] symptoms [were] not entirely credible" because "the objective physical and mental status examination results ... do not reveal significant deficits in functioning." (See page 565 above.) Moreover, "objective tests such as diagnostic imaging of the lumbar spine and [Suarez's] abdomen have not revealed acute abnormalities of the type that would be expected to eliminate [Suarez's] ability to function over the course of a 40-hour workweek." (See page 565 above.) ALJ Russak also considered Suarez's testimony in light of the factors set forth in SSR 96-7p "because symptoms may sometimes suggest a greater degree of impairment than can be shown by the medical evidence alone." (See page 565 above.) ALJ Russak found that although Suarez denied performing productive activity during the day when he testified at the hearing, he had admitted in other parts of the record to "much greater abilities to handle his own personal care and household chores." (See pages 565-66 above.) ALJ Russak observed that Suarez's "symptoms appear to be relatively mild and intermittent, as he reported to Dr. Gitkind a 14-month period of relief in his back pain, and as the objective reports
Because Suarez's briefs, written by counsel, do not challenge ALJ Russak's credibility determination (see generally Dkt. No. 15: Suarez Br.), the Court need not further address the ALJ's credibility determination.
The fourth step of the five-step analysis asks whether Suarez had the RFC to perform his past relevant work. (See pages 569-70 above.) ALJ Russak found, based on the vocational expert's testimony, that Suarez could not perform his past relevant work. (See page 567 above.) Because neither Suarez nor the Commissioner challenge this determination (see generally Dkt. No. 15: Suarez Br.; Dkt. No. 19: Gov't Br.), the Court proceeds to the final step of the five-step sequential analysis.
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980).
In meeting his burden under the fifth step, the Commissioner:
Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y.1996) (fn. omitted); see, e.g., Heckler v. Campbell, 461 U.S. 458, 461-62, 465-68, 103 S.Ct. 1952, 1954-55, 1956-58, 76 L.Ed.2d 66 (1983) (upholding the promulgation of the Grid); Roma v. Astrue, 468 Fed.Appx. at 20-21; Martin v. Astrue, 337 Fed.Appx. 87, 90 (2d Cir.2009); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986).
Rather, where the claimant's nonexertional limitations "`significantly limit the range of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.2010) (quoting Bapp v. Bowen, 802 F.2d at 605); see also, e.g., Selian v. Astrue, 708 F.3d 409, 421 (2d Cir.2013) ("We have explained that the ALJ cannot rely on the Grids if a non-exertional impairment has any more than a `negligible' impact on a claimant's ability to perform the full range of work, and instead must obtain the testimony of a vocational expert."); Rosa v. Callahan, 168 F.3d at 82 ("Where significant nonexertional impairments are present at the fifth step in the disability analysis, however, `application of the grids is inappropriate.' Instead, the Commissioner `must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'" (quoting & citing Bapp v. Bowen, 802 F.2d at 603, 605-06)); Suarez v. Comm'r of Soc. Sec., No. 09-CV-338, 2010 WL 3322536 at *9 (E.D.N.Y. Aug. 20, 2010) ("If a claimant has nonexertional limitations that `significantly limit the range of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert." (quoting Zabala v. Astrue, 595 F.3d at 411)).
ALJ Russak properly relied on the testimony of vocational expert DiStefano to find that jobs exist in significant numbers that Suarez could perform. (See page 567 above.)
Suarez argues that ALJ Russak erred by not addressing the vocational expert's testimony (in response to Suarez's counsel's question) that a hypothetical individual whose ability to maintain concentration, pace and attention for periods of at least two hours was restricted to only two-thirds of the day would be unable to do the jobs DiStefano identified. (Dkt. No. 15: Suarez Br. at 19.) ALJ Russak, however, was not required to rely on that testimony. An ALJ has the authority to disregard a vocational expert's testimony where it is inconsistent with the underlying evidence. See, e.g., McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir.2014) ("An ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as `there is substantial record evidence to support the assumption[s] upon which the vocational expert based his opinion' and accurately reflect the limitations and capabilities of the claimant involved." (citations omitted)); Phoenix v. Colvin, 14 Civ. 4164, 2015 WL 451016 at *21 (S.D.N.Y. Feb. 4, 2015) (Peck, M.J.); McAllister v. Commissioner of Social Sec., No. 13-cv-940, 2015 WL 164783 at *10 (N.D.N.Y. Jan. 13, 2015) ("[A] hypothetical question need not include every limitation claimed or opined by a medical source deemed not credible. Rather, it must incorporate only limitations that the administrative law judge finds credible and which are supported by substantial evidence."); Krach v. Comm'r of Soc. Sec., No. 13-CV-1089, 2014 WL 5290368 at *11 (N.D.N.Y. Oct. 15, 2014) ("[T]here must be `substantial [record] evidence to support the assumption upon which the vocational expert based his opinion.'" (quoting Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir.1983))); Rivera v. Astrue, No. 11 Civ. 4132, 2012 WL 3307342 at *3, *5, *10 (E.D.N.Y. Aug. 11, 2012) (because the ALJ was entitled to disregard the opinions of the plaintiff's treating physicians, the ALJ's hypothetical to the vocational expert was not required to incorporate added limitations based those opinions and the ALJ did not err by disregarding the vocational expert's testimony that an individual with those limitations could not perform the jobs she identified in response to the ALJ's questioning); Armstrong v. Comm'r of Soc. Sec., No. 06-CV-1049, 2009 WL 2883046 at *6 (N.D.N.Y. Sept. 4, 2009) (substantial evidence supported ALJ's finding that work existed in the national economy that plaintiff could perform even though ALJ reached that conclusion notwithstanding vocational expert testimony that a need for abrupt breaks and excessive absenteeism would impair a hypothetical employee's ability to work because the hypothetical limitations posed to the vocational expert were not supported by objective medical evidence). ALJ Russak's hypothetical incorporated all of the limitations in his RFC determination for Suarez. (See pages 563, 564-65 above.) That RFC is supported by substantial evidence. (See pages 573-78 above.) The additional limitations Suarez claims ALJ Russak should have addressed were based on the December 2012 assessment by Dr. Choua and Dr. Martinez (Suarez Br. at 19), but ALJ Russak's decision to reject their opinion is supported by substantial evidence (see pages 574-75 above). Thus, ALJ Russak was permitted to disregard DiStefano's response to the hypothetical posed by Suarez's counsel in determining whether work exists that Suarez could perform.
Finally, Suarez argues that ALJ Russak should have applied Grid rule 201.10 to
(Suarez Br. at 20.) This argument is without merit. ALJ Russak's determination that Suarez had the RFC to perform light work, albeit with limitations, was supported by substantial evidence. (See pages 573-78 above.) Therefore, Grid rule 201.10 regarding sedentary work is inapplicable by its own terms. See 20 C.F.R., Pt. 404, Subpt. P, App. 2 (Rule 201 applicable to claimants limited to sedentary work; rule 202 applicable to claimants limited to light work).
For the reasons discussed above, the Commissioner's determination that Suarez was not disabled within the meaning of the Social Security Act is supported by substantial evidence. The Commissioner's motion for judgment on the pleadings (Dkt. No. 18) is GRANTED and Suarez's motion for judgment on the pleadings (Dkt. No. 15) is DENIED. The Clerk of Court shall close the case.
SO ORDERED.
