The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Adam Stytzer, brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny his application for disability benefits ("DIB").
On November 17, 2004, plaintiff filed an application for DIB. (T. 20).*fn1 Plaintiff was 34 years old at the time of the application with past work experience as a laborer/grounds worker, club manager, ski patroller and truck driver. (T. 20). Plaintiff claimed that he became disabled on October 29, 2003 due to a back injury while working as a ground manager at a gun club. (T. 63).
On January 31, 2005, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on March 2, 2006. (T. 21, 257). On July 26, 2006, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 19). The Appeals Council denied plaintiff's request for review on June 4, 2007 making the ALJ's decision the final determination of the Commissioner.
(T. 4). This action followed.
The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment... 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). There is a five-step analysis for evaluating disability claims:
"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
On July 26, 2006, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since the alleged onset date. (T. 14). At step two, the ALJ concluded that plaintiff suffered from a spinal impairment which qualified as a "severe impairment" within the meaning of the Social Security Regulations (the "Regulations"). (T. 15). At the third step of the analysis, the ALJ determined that plaintiff's impairment did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 17). The ALJ found that plaintiff had the residual functional capacity ("RFC") to, "sit for a total of up to 8 hours, stand/walk for a total of 4 hours and has the ability to frequently and occasionally lift and carry items weighing up to and including 10 pounds. The claimant would not, however, be able to perform bending for more than 50% of the time during a typical work day". (T. 17). At step four, the ALJ concluded that plaintiff did not have the residual functional capacity to perform any of his past relevant work.
(T. 18). Relying on the medical-vocational guidelines ("the grids") set forth in the Social Security regulations, 20 C.F.R. Pt. 404, Subpt. P, App.2, the ALJ found that plaintiff had the exertional capacity to perform the demands of the full range of sedentary work. (T. 19). Therefore, the ALJ concluded plaintiff was not under a disability as defined by the Social Security Act. (T. 19).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) the ALJ failed to properly apply the treating physician rule; and (2) the ALJ failed to properly assess plaintiff's credibility. (Dkt. No. 11).
A. Treating Physician Rule
Plaintiff argues that the ALJ erred in failing to give weight to the opinions of plaintiff's treating physician, John Handago, M.D. Plaintiff also claims that the ALJ should have afforded weight to the opinion of John M. King, M.D., the consultative examiner who conducted an orthopedic evaluation of plaintiff at the request of the agency. (Dkt. No. 11, p. 16).
Under the Regulations, a treating physician's opinion is entitled to "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Rosa, 168 F.3d at 78-79; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). An ALJ may refuse to consider the treating physician's opinion controlling only if he is able to set forth good reason for doing so. Barnett v. Apfel, 13 F.Supp.2d 312, 316 (N.D.N.Y. 1998). "Failure to provide 'good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Peralta v. Barnhart, 2005 WL 1527669, at *10 (E.D.N.Y. 2005) (remanding case where the ALJ failed to explain the weight, if any, assigned to the treating physician's opinions) (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)). The opinion of a treating physician is not afforded controlling weight where the treating physician's opinion contradicts other substantial evidence in the record, such as the opinions of other medical experts. Williams v. Comm'r of Soc. Sec., 236 F.App'x 641, 643-44 (2d Cir. 2007); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing 20 C.F.R. § 404.1527(d)(2)). The less consistent an opinion is with the record as a whole, the less weight it is to be given. Stevens v. Barnhart, 473 F.Supp.2d 357, 362 (N.D.N.Y. 2007); see also Otts v. Comm'r of Soc. Sec., 249 F.App'x 887, 889 (2d Cir. 2007) (an ALJ may reject such an opinion of a treating physician "upon the identification of good reasons, such as substantial contradictory evidence in the record").
When an ALJ refuses to assign a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including:
(I) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social ...