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Gilmartin v. Colvin

United States District Court, E.D. New York

February 7, 2017


          For the Plaintiff CHRISTOPHER J. BOWES

          For the Defendant ROBERT L. CAPERS United States Attorney By: RACHEL G. BALABAN Assistant United States Attorney


          FREDERIC BLOCK Senior United States District Judge.

         Andrew 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”).[1] 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.


         A 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.

         On June 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, [2] 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.

         The ALJ 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.

         The ALJ 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.

         The 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.[3]


         “In 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).

         A. Treating Physician Rule

         Plaintiff 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, ...

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