United States District Court, E.D. New York
the Plaintiff CHRISTOPHER J. BOWES
the Defendant ROBERT L. CAPERS United States Attorney By:
RACHEL G. BALABAN Assistant United States Attorney
MEMORANDUM AND ORDER
FREDERIC BLOCK Senior United States District Judge.
Gilmartin (“Gilmartin, ” “plaintiff,
” or “claimant”) seeks review of the final
decision of the Commissioner of Social Security
(“Commissioner”) denying his application for
disability and disability insurance benefits under the Social
Security Act (“SSA”). Both parties move for
judgment on the pleadings. For the reasons stated below,
plaintiff's motion is DENIED, and the Commissioner's
motion is GRANTED.
resident of Centerport, New York, Gilmartin is a 38-year-old
high school graduate who previously managed a musical
band's tour and a supermarket's delicatessen. He
labored until June 13, 2012, when he allegedly became unable
to work due to constant lower back pain radiating to his left
lower extremity. He filed an application for disability and
disability insurance benefits on April 9, 2013.
Gilmartin's claim was initially denied on May 31, 2013.
At Gilmartin's request, a hearing was held before an
Administrative Law Judge (“ALJ”) on May 27, 2014.
4, 2014, the ALJ held that Gilmartin was not disabled within
the meaning of the SSA. Applying the SSA's five-step
sequential evaluation process,  the ALJ determined that (1)
Gilmartin had not engaged in substantial gainful activity
since June 13, 2012, the alleged onset date, and (2) he
suffered from one severe impairment: lumbar degenrative disc
disease with radiculopathy. Nonetheless, the ALJ concluded
that this impairment did not meet or medically equal the
SSA's requisite level of severity, as set forth in 20
C.F.R. § 404, Subpart P, Appendix 1, so as to trigger
his automatic classification as disabled.
then determined that Gilmartin had the residual functional
capacity (“RFC”) to perform less than the full
range of sedentary work, as defined in 20 C.F.R. §
404.1567(a). Namely, the ALJ found that Gilmartin could
“occasionally lift ten pounds, sit approximately six
hours, stand or walk for approximately two hours in an eight
hour day with normal breaks, ” “occasionally
climb ramps or stairs, ” and “occasionally
balance and stoop.” AR 14-15. While Gilmartin was
determined to have an “unlimited” ability to
“push/pull with . . . [his] upper extremities, ”
the ALJ concluded that he was “limited to [only]
occasional push/pull with [his] lower extremities.”
Id. at 15. He could, however, “never climb
ladders, ropes or scaffolds” and “never kneel,
crouch or crawl.” Id.In reaching this
conclusion, the ALJ relied on both “objective medical
evidence, ” consistent with the requirements of 20
C.F.R. § 404.1529, and “opinion evidence, ”
in accordance with 20 C.F.R. § 404.1527.
thereupon applied this RFC to the remaining steps. As to step
four, the ALJ decided that the transferability of
Gilmartin's job skills was “not an issue in this
case because the claimant's past relevant work is
unskilled, ” AR 18, as authorized by 20 C.F.R. §
404.1568(a). Moving to step five, the ALJ concluded that
Gilmartin could perform work pursuant to the Medical
Vocational Guidelines, 20 C.F.R. § 404, Subpart P,
Appendix 2, relying in part on the testimony of one
vocational expert. In particular, in light of Gilmartin's
age, education, past relevant work experience, and RFC, the
ALJ pointed out that he could perform a number of jobs
existing in significant numbers in the national economy. The
ALJ gave three examples: order clerk, document prep worker,
and scale operator.
Appeals Council denied Gilmartin's request for review on
August 18, 2015. The ALJ's decision thereby became the
Commissioner's final one. Gilmartin has sought timely
review, expressly arguing that the ALJ violated the treating
physician rule and implicitly contending that the ALJ did not
properly weigh his own testimony.
reviewing a final decision of the Commissioner, a district
court must determine whether the correct legal standards were
applied and whether substantial evidence supports the
decision.” Butts v. Barnhart, 388 F.3d 377,
384 (2d Cir. 2004); see also 42 U.S.C. §
405(g). Substantial evidence . . . means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971), cited in, e.g., Selian
v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). If
contradictions appear in the record and an ALJ fails to
reasonably explain why he or she opted for one interpretation
over another, the Commissioner's findings cannot stand.
See, e.g., Balsamo v. Chater, 142 F.3d 75,
81 (2d Cir. 1998) (“‘[T]he ALJ cannot arbitrarily
substitute his [or her] own judgment for competent medical
opinion . . . .'”); cf. Selian, 708 F.3d
at 420 (“To the extent that record is unclear, the
Commissioner has an affirmative duty to ‘fill any clear
gaps in the administrative record' before rejecting a
treating physician's diagnosis.”). “[T]he
reviewing court is required to examine the entire record,
including contradictory evidence and evidence from which
conflicting inferences can be drawn.” Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983).
Treating Physician Rule
first argues that the ALJ failed to correctly apply the
treating physician rule when he did not give controlling
weight to the opinion of Doctor Thomas Dowling
(“Dowling”), his treating physician, that
Gilmartin could only “sit less than 4 hours during an
8-hour workday.” Pl.'s MSJ at 19; see also
AR at 17-18. The treating physician rule dictates that
“the opinion of a claimant's treating physician as
to the nature and severity of the impairment is given
‘controlling weight' so long as it ‘is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case
record.'” Burgess v. Astrue, 537 F.3d 117,
128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(c)(2)).
For purposes of this rule, “medical opinions”
include “statements from physicians and psychologists
and other acceptable medical sources, ” 20 C.F.R.
§ 404.1527(a)(2), and can take a variety of forms,
cf. Philpot v. Colvin, No. 12-CV-291 (MAD/VEB), 2014
WL 1312147, at *19 (N.D.N.Y. Mar. 31, 2014) (noting that the
relevant treating physician's opinion had been embodied
in a checklist); Gray v. Astrue, No. 09-CV-00584,
2011 WL 2516496, at *5 (W.D.N.Y. June 23, 2011) (same);
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008) (same). If the ALJ does not give a treating
physician's opinion controlling weight, ...