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Dixon v. Berryhill

United States District Court, S.D. New York

July 26, 2017

BRIAN DIXON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          ANDREW J. PECK, United States Magistrate Judge:

         Plaintiff Brian Dixon, represented by counsel, 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 denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). (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. 12: Dixon Notice of Mot.; Dkt. No. 14: Comm'r Notice of Mot.) 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. 18.) For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. No. 14) is GRANTED and Dixon's motion (Dkt. No. 12) is DENIED.


         Procedural Background

         Dixon filed for DIB on November 6, 2013, and SSI on March 18, 2014, alleging a disability onset date of October 1, 2013. (Dkt. No. 11: Administrative Record ("R") 147-54.) On May 21, 2015, represented by counsel, Dixon had a hearing before ALJ Michael J. Stacchini. (R. 50-92.) On June 26, 2015, ALJ Stacchini issued a written decision finding Dixon not disabled within the meaning of the Social Security Act. (R. 17-30.) ALJ Stacchini's decision became the Commissioner's final decision when the Appeals Council denied review on December 7, 2016. (R. 1-5.)

         Non-Medical Evidence and Testimony

          Born on November 29, 1966, Dixon was forty-seven years old at the alleged October 1, 2013 onset of his disability. (R. 147.) Dixon completed high school and "dry cleaning school, " working in the dry cleaning business from 1988 to February 2011. (R. 182-83.) He worked as a car salesman from March 2012 to June 2012 and again from January 2013 to September 2013. (R. 183.) Dixon stopped working on September 2, 2013 when he was terminated from his job. (R. 181-82.) Dixon testified that he attempted to work as a car salesman for three to four weeks in January 2015, but was unable to continue this job due to his alleged disability. (R. 73-74.)

         On December 29, 2013, in a Function Report (R. 189-201), Dixon declared that he cannot dress because he "cannot bend over, " cannot bathe because he is "not steady on [his] feet, " and cannot care for his hair or shave because of his neck brace (R. 190-91). Dixon stated that he "never" prepares food because his "hands are numb, and [he] cannot lift anything heavier than ½ [a] gallon of milk, " so his girlfriend prepares his meals. (R. 191-92.) Dixon declared that he has "no hobbies now" and "just watch[es] T.V., " whereas before his alleged disability, he used to ride a motorcycle and drive a car. (R. 193.) Dixon stated that he spends time with others when they come to his house. (R. 194.) Dixon stated that he cannot lift objects because of his spinal stenosis, is unsteady standing, and can walk about thirty feet before he has to stop and rest for "a moment or 2." (R. 194-95.) Dixon stated that he is "ok" sitting, seeing, hearing and talking, can "somewhat" use his hands, but cannot climb stairs, kneel, squat or reach. (R. 196.) Dixon testified that he does "not have any" anxiety symptoms and no stress related issues. (R. 197, 199.)

         At the May 21, 2015 hearing before ALJ Stacchini, Dixon testified that he drives "to the store if [he needs] to go" or to "see [his] mother and [his] sons, " and takes his daughter to her sporting events. (R. 57-58.) Dixon stated that he sometimes goes to the movies and restaurants with family and friends, and that he flew to Florida to vacation with his son. (R. 58-59.) Dixon claimed that he is unable to play catch with his daughter any more, but can vacuum "for a little bit, " is "capable of doing" laundry, and mows the lawn on his tractor. (R. 59-60.)

         Dixon testified that he went back to work as a car salesman in January 2015 at a friend's car lot for about a month, but had to "call it quits" since he was "just not able to perform the tasks" and felt "like [he was] putting [himself] at risk." (R. 66-67.) Dixon stated that "[p]retty much everything" was difficult in that job; for instance, he had difficulties sitting for a long time because he needs to elevate his leg throughout the day to prevent swelling. (R. 66-67, 76.)

         Dixon stated that before his October 2013 diskectomy, he felt a burning sensation down his right arm, but after he saw his chiropractor, "[i]t actually jumped from one to both arms." (R. 60.) Dixon told ALJ Stacchini that he saw his chiropractor another three or four times, and he "noticed each time [he was] progressively getting worse." (Id.) Dixon stated that, while walking out of his chiropractor's office, he almost fell down the stairs, and the next morning he "couldn't get dressed and [he] couldn't really walk[], " so he saw his primary care physician, Dr. Mark Steenbergen, [1]and a week later had surgery. (R. 60-61.) Dixon testified that his symptoms are "definitely better than" before, but he feels numbness in his arms, particularly in his right hand and left leg and foot. (R. 61.) Dixon stated that his last surgery follow-up was in January 2014, after which he had physical therapy, but that further consultation was not recommended. (R. 61-62.) Dixon testified that his legs "don't operate like they used to, " so sometimes when he sits for too long and then stands up, he has to "stand there for awhile for [his] legs to function correctly." (R. 63.) Dixon emphasized that because of the numbness in his feet, he began using a cane two months before his ALJ hearing. (R. 64-65.) Dixon does not use the cane at home since he can hold onto things and guide himself through his house. (R. 65.) Dixon can "absolutely" ambulate with his cane for 100 feet. (R. 66.) Dixon testified that "some days [his symptoms] are worse than others, " so "sometimes [he] get[s] up and [he] kind of walk[s] okay, and then there are other times where [he] just ha[s] great difficulty walking." (R. 78-79.)

         Despite the numbness he feels throughout his body, Dixon testified that Dr. Steenbergen did not think it necessary to refer him to a specialist because the numbness was caused by compression on the spinal cord. (R. 66.) Similarly, Dixon stated that although his hands improved after his surgery, he "noticed that they have gotten worse" to the point that he cannot form a complete fist, his index and middle fingers cannot compress against his hand, he has difficulty picking up objects like paper clips and "[s]ometimes" has difficulty writing. (R. 68-69.) Nevertheless, Dixon testified that Dr. Steenbergen has not sent him for treatment or discussed getting an EMG for his hands. (R. 68.) Dixon admitted that he was present when Dr. Steenbergen filled out the medical source statement of Dixon's alleged capabilities, and that they "went through all the paperwork together." (R. 67.)

         Dixon, who is 5' 11" and weighs 275-280 pounds, stated that he lost about forty pounds since he stopped working "[j]ust by watching what [he] eat[s]." (R. 69.) Dixon has diabetes and testified that he gets the "shakes" if his blood sugar gets too low, but that for the past three months, he has "really tried to watch [his] sugars." (Id.) There was a point where he stopped taking his insulin since he "just gave up" on himself. (R. 69, 76-77.) Dixon testifed that he has never received treatment for depression or anxiety, and he just "tr[ies] to be a pretty positive person." (R. 70.) Dixon testified that he does not have difficulty getting along with people, his high blood pressure does not affect him, and his asthma "seems to be in check, " although he uses an inhaler twice a day. (Id.) Dixon continues to smoke and being around smoke does not affect him "at all." (R. 70-71.) Dixon stated that he is not on medication for pain, his nerves or numbness. (Id.)

         Vocational expert Amy Leopold testified at the hearing that a hypothetical individual who was able to perform "the full range of light work with push, pull" and carrying; could "occassional[ly] climb[] ramps or stairs, " but not "climb[] ladders, ropes, or scaffolds"; occassional[ly] balanc[e], stoop[], kneel[], crouch[], and crawl[]"; "frequent[ly] reach[], handl[e], and finger[]" but would need a cane for uneven terrain or distances greater than 100 feet; and "should avoid extreme cold, concentrated exposure to atmospheric conditions, and exposure to unprotected heights and hazardous machinery" could not perform Dixon's previous work as a car salesman or dry cleaner. (R. 82-83.) Leopold testified that an individual with these limitations could work as a cashier, ticket taker or an assembler, all of which exist in significant numbers in the national economy. (R. 84.) Leopold testified in response to the second hypothetical that an individual who could perform the full range of sedentary work with "push, pull [as] the same as lift, carrying, " requires the ability "to shift from a sitting or standing position at 30 minute intervals" and "be off task for 5 percent of the work period, in addition to regularly scheduled breaks, " but otherwise had the same limitations as the previous hypothetical, could work as an order clerk, telephone solicitor, document preparer and table worker, and that these jobs exist in significant numbers in the national economy. (R. 85-86.)[2]Leopold noted that an individual with limitations such as being unable to lift or carry any weight, being off task twenty percent of the work period[3]or who was limited to three hours of sitting and three hours of standing in an eight-hour workday, could not do any work. (R. 86.)

         Medical Evidence Before the ALJ[4]

         On February 2, 2013, Dixon went to Saint Francis Hospital because for the past day, he had experienced extreme swelling and pain in his left lower extremity extending from the groin and upper thigh area to his toes. (R. 236.) Dixon was able to ambulate, but with a limp due to the pain. (Id.) Other than falling a month prior without sustaining any obvious injury, there was no recent history of trauma or injury. (Id.)[5], [6] Dr. Jacob Essam found that Dixon experienced Charley Horse-like muscle cramps down his bilateral lower extremities and had diffuse swelling that felt warm with pressure. (Id.) Overall, however, Dr. Essam found Dixon to be "comfortable." (Id.)[7]Dixon underwent a Duplex Doppler ultrasound of his left lower extremity revealing an occlusive deep venous thrombosis of his left external iliac, common femoral, femoral and popliteal veins. (R. 239.) The peroneal and posterior tibial veins were not visualized, but there was a flow in the anterior tibial vein and no identifiable popliteal fossa cyst. (Id.) Dixon had a deep venous thrombosis a few days later and began taking Lovenox in addition to Coumadin. (R. 243, 252.) On February 5, 2013, Dixon was able to ambulate steadily without assistance. (R. 255.) Dixon was discharged from the hospital on February 5, 2013, with directions to follow-up with Dr. Steenbergen. (R. 253-54.) At the follow-up on February 8, 2013, Dr. Steenbergen noted that Dixon experienced pain on movement and that there was swelling in his left leg, but he did not display any neurological issues and was in no acute distress. (R. 414.)

         On May 23, 2013, Dr. Steenbergen found that Dixon had no numbness/tingling, no trouble balancing, no pain on movement, and a normal gait. (R. 346-47.) On June 19, 2013, Dixon informed Dr. Steenbergen's nurse that the prior night he had a cramp in his left leg and when he tried to straighten the leg, he felt something "pop, " and afterwards, he had difficulty walking. (R. 349.) Dr. Steenbergen diagnosed it as a "sprain." (R. 350.)

         On September 23, 2013, Dr. Steenbergen reported that Dixon had no weakness, a normal gait with no disturbances, normal range of motion, and did not suffer from numbness/tingling. (R. 354-55.) On October 9, 2013, Dr. Steenbergen found that Dixon suffered from "severe" weakness, disturbance in his gait, and numbness/tingling. (R. 360.) Dr. Steenbergen noted that Dixon went to the chiropractor three weeks prior with a pinched nerve in his right neck and his condition progressively worsened to the point that Dixon said he could not sit up without assistance. (Id.)

         On October 10, 2013, Dr. McNulty noted that Dixon reported suffering from spontaneous neck and right arm pain. (R. 262.) Dixon informed Dr. McNulty that he recently underwent chiropractic manipulation, and then he began to feel pain and numbness in both arms and felt unsteady on his feet. (Id.) Upon physical examination, Dr. McNulty found that Dixon had 5/5 strength in his upper and lower extremities, but Dixon stated that "it is not equal to his usual ability." (Id.) Dr. McNulty noted that Dixon had hardened skin and hair loss in the lower extremities consistent with chronic vascular changes, decreased sensation in his lower extremities, poor hand dexterity, a slow gait, and that he was "surprisingly hyporeflexic." (Id.) Dr. McNulty diagnosed "[c]ervical spondylosis with myelopathy" with "a disc herniation with cord compression at ¶ 4-5, " and he recommended surgery. (Id.)

         On October 25, 2013, Dixon informed Dr. McNulty that his hands and balance were improved even though he still had some numbness in his hands. (R. 264.) Dr. McNulty found that there was improvement with cervical decompression, but that Dixon should continue to use the neck brace. (Id.)

         On October 16, 2013, Dixon presented at Vassar Brothers Medical Center with a three-week history of upper extremity burning and bilateral numbness. (R. 275.) Dr. Deepa Joseph noted Dixon's neurological complaints included "[n]umbness and tingling over all his extremities, mainly over the right upper extremity and left lower extremity." (R. 278.) Dr. Joseph, however, found that Dixon's motor strength was 5/5 in all of his extremities with no gross sensory deficit, although Dixon complained of numbness and tingling. (Id.) Dixon was admitted to the hospital and underwent a cervical 4-5 diskectomy with fusion and a 7-mm round drain was placed. (R. 275.)[8]The pathological report of the C4-C5 disc specimen indicated that there were degenerative changes in his spinal tissue. (R. 267.) The morning after surgery, Dixon reported that "his upper extremities were much stronger" and he had "considerably less numbness." (R. 275.) Although the doctors initially believed that Dixon would need post-discharge rehabilitation, after he was evaluated by physical and occupational therapists, the doctors decided that rehabilitation would not be necessary. (Id.) Dixon was discharged on October 17, 2013 with instructions to see Dr. McNulty in a week. (Id.) On October 25, 2013, Dixon informed Dr. McNulty that his hands and balance had improved, but he still felt "some" numbness in his hands. (R. 445.) Dr. McNulty found that Dixon had improved with cervical decompression. (Id.)

         On December 2, 2013, Dixon told Dr. McNulty that he was "having some improvement in his hands." (R. 447.) Dr. McNulty reported that Dixon was "doing well" following the anterior cervical diskectomy and fusion. (Id.) On January 27, 2014, Dixon once again reported improvements in his hands and Dr. McNulty noted that if Dixon's pending cervical X-rays looked good, he would start physical therapy. (R. 449.)

         On December 10, 2013, Dixon underwent a psychological evaluation with consultive psychologist Alex Gindes, Ph.D. (R. 391-94.) Dr. Gindes stated that Dixon "vehemently denied any symptoms of depression, anxiety, bipolar disorder, and psychosis" or any cognitive problems. (R. 391.) Dr. Gindes found that Dixon's "[m]ood seemed euthymic, " "[s]ensorium was clear, " and "[h]e did not seem to have any emotional difficulties that would interfere with his functioning." (R. 392-93.) Overall, Dr. Gindes' prognosis was "[g]ood given an absence of clearly debilitating psychiatric symptoms." (R. 394.)

         On January 16, 2014, consulting internal medicine physician Dr. Gilbert Jenouri examined Dixon regarding his disability claim. (R. 396-99.) Dixon informed Dr. Jenouri that there had been "significant improvement" after his spinal surgery and he only felt numbness and tingling "occasionally." (R. 396.) Dixon denied any complications from his diabetes, which Dr. Jenouri found was medically managed. (Id.) Additionally, Dixon was diagnosed with asthma in 2010, and he reported suffering from shortness of breath at least once a month with no dyspnea on exertion or breathing attacks. (Id.) Upon examination, Dr. Jenouri found that Dixon's gait was normal, he was able to rise from the chair without difficulty and he needed no assistance getting on and off the examination table, but he was unable to walk on heels and toes without difficulty, and his squat was only 50%. (R. 397.) Dr. Jenouri did not observe any sensory deficiencies and found that Dixon's strength was 5/5 in the upper and lower extremities. (R. 398.) Dr. Jenouri reported that Dixon's hand and finger dexterity were intact with a grip strength of 5/5 bilaterally. (Id.) Overall, Dr. Jenouri diagnosed Dixon with cervical spinal stenosis, neck pain with increased range of motion, bilateral hand paresthesia, diabetes and asthma. (Id.) Dr. Jenouri opined that Dixon had "[m]inimal to mild" restrictions in lifting, carrying, squatting and reaching, but should avoid smoke, dust, and other respiratory irritants. (R. 399.)

         On January 22, 2014, consulting physician Dr. T. Hepp reviewed Dixon's medical records and opined that Dixon could "occasionally"[9]lift/carry twenty pounds, "frequently"[10]lift/carry ten pounds, stand/walk for about six hours in an eight-hour workday, sit for a total of approximately six hours in an eight-hour workday, and was "unlimited" in his ability to push/pull. (R. 98.) Dr. Hepp opined that Dixon could "occasionally" climb ramps, stairs, ladders, ropes and scaffolds in addition to "occasionally" balancing, stooping, kneeling and crouching. (Id.) Dr. Hepp stated that Dixon did not have manipulative, visual or communicative limitations, but had environmental limitations due to his asthma and should avoid concentrated exposures to fumes, odors, dusts, gases and poor ventilation. (R. 99.)

         On February 24, 2015, Dixon was evaluated by Dr. Steenbergen (R. 468-70), who found that Dixon had a bilateral lower extremity dysesthesia with an antalgic gait unsteadiness (R. 468). Dixon "has trouble with balance . . . [and] uses a cane due to difficulty ambulating." (Id.) Furthermore, Dr. Steenbergen opined that Dixon's neurological condition would not improve and that his diabetes would continue to make his peripheral neuropathy worse unless he had "excellent control" over his diabetes. (Id.) Dr. Steenbergen also noted that Dixon suffered from arthralgia, joint pain and arthritis, and had lost a "significant" amount of weight since his last visit. (R. 468-69.)[11]Although Dr. Steenbergen reported under his subjective findings that Dixon had a gait disturbance (R. 468), upon objective physical examination he found Dixon's gait was "normal" (R. 469). Dixon also complained that he had anxiety, depression and sleep disturbances. (R. 468.)

         On April 30, 2015, Dr. Steenbergen completed a medical source statement regarding Dixon's ability to do work-related activities. (R. 455-60.) Dr. Steenbergen opined that Dixon was "[n]ever" able to lift/carry objects "up to 10 lbs" or heavier. (R. 455.) Dr. Steenbergen estimated that at one time without interruption Dixon could sit for thirty minutes and stand/walk for ten to fifteen minutes. (R. 456.) Overall, in an eight-hour workday Dr. Steenbergen opined that Dixon could sit/stand for three hours and walk for two hours. (Id.) Dr. Steenbergen noted that Dixon's cane was "medically necessary" for him to ambulate. (Id.) Dr. Steenbergen reported that Dixon could "[o]ccasionally" reach, push/pull, operate foot controls and crawl, but "[n]ever" handle, finger, feel, climb stairs/ramps/ladders/scaffolds, balance, stoop, kneel or crouch. (R. 457-58.) Dr. Steenbergen opined that Dixon could "[n]ever" tolerate unprotected heights, moving mechanical parts or operating a motor vehicle, "[o]ccasionally" tolerate dust/odors/fumes/pulmonary irritants and extreme cold, and "[c]ontinuously" tolerate humidity/wetness, extreme heat and vibrations. (R. 459.) Finally, Dr. Steenbergen believed that Dixon could perform activities like shopping using a scooter, travel without a companion for assistance, use public transportation, climb some steps at a reasonable pace with the use of a single hand rail, prepare meals and feed himself, and maintain personal hygiene, but he could not walk a block at a reasonable pace on rough or uneven surfaces. (R. 460.) Dr. Steenbergen opined that Dixon "was nearly a quadriplegic, " but he is now "stable but severely impaired." (Id.) The doctor also believed that these limitations have or will last for 12 consecutive months. (Id.) As noted above, Dixon was present when Dr. Steenbergen filled out the form and they "went through all the paperwork together." (R. 67; see page 4 above.)

         ALJ Stacchini's Decision

         On June 26, 2015, ALJ Stacchini denied Dixon's application for benefits. (R. 17-30.) ALJ Stacchini applied the appropriate five step legal analysis. (R. 21-22.) First, he found that Dixon had "not engaged in substantial gainful activity since October 1, 2013, the alleged onset date." (R. 22.)[12] Second, ALJ Stacchini found that Dixon had the "following severe impairments: status-post cervical diskectomy and fusion with instrumentation due to cervical stenosis with myelopathy; chronic obstructive pulmonary disease (COPD); history of deep venous thrombosis (DVT), status-post placement of Greenfield filter; juvenile onset insulin-dependent diabetes mellitus, and morbid obesity." (Id.) ALJ Stacchini found Dixon's benign hypertension to be "nonsevere" because it "appears to be controlled with medication with no limitations thereof, " and Dixon's alleged depressive disorder and anxiety to be "nonsevere"[13] because they "do[] not cause more than minimal limitation in [Dixon's] ability to perform basic mental work activities." (R. 23-24.)[14]

         Third, ALJ Stacchini found that Dixon did not "have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (R. 24.) ALJ Stacchini specifically addressed Dixon's musculoskeletal impairment, concluding that it was not severe since he could "ambulate independently" with the use of one cane. (Id.) Similarly, ALJ Stacchini concluded that despite Dixon's hand numbness which had improved post-October 2013 surgery, Dixon's neurological impairment was nonsevere because it was "intact" with good muscle and grip strength and his reflexes were intact in the lower and upper extremities. (Id.) ALJ Stacchini considered Dixon's diabetes mellitus noting that it was "uncontrolled per hgA1C level, "[15] but that it was without complications and had not caused listing-level end organ damage. (Id.) Finally, ALJ Stacchini emphasized that although there is no listing for obesity, Dixon's Level II obesity had been "fully considered in the same manner as all other medically determinable impairments in arriving at the residual functional capacity limitations" in accordance with SSR 02-1p. (R. 25.)

         ALJ Stacchini determined that Dixon had the residual functional capacity ("RFC")

to perform sedentary work, as defined in 20 CFR 404.1567(a) and 416.967(a), except that he must be allowed to alternate from sitting/standing positions at 30 minute intervals, allowing [Dixon] to be "off task" for 5% of the workday, in addition to regularly scheduled breaks of 15 minutes in the morning and afternoon and ½ hour to an hour midday. [Dixon] can lift/carry/push/pull 5 pounds frequently and 10 pounds occasionally; he can climb ramps and stairs occasionally, but not ladders, ropes or scaffolds; he can occasionally balance, stoop, kneel, crouch and crawl and he can reach, handle and perform tasks requiring fine fingering frequently. [Dixon] must use a cane for ambulating on uneven terrains and distances greater than 100 feet; he must avoid exposure to extreme cold, concentrated atomospheric conditions, unprotected heights and hazardous machinery.

(R. 25.) In making this determination, ALJ Stacchini "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.1529 and SSRs 96-4p and 96-7p" along with considering "opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p." (R. 25.)

         ALJ Stacchini considered Dr. Jenouri's January 2014 opinion regarding Dixon's respiratory limitations "less persuasive" than his other findings since Dixon "can tolerate the presence of some pulmonary irritants" as shown through smoking six to ten cigarettes per day for twenty years. (R. 26-27.) Additionally, ALJ Stacchini noted that Dixon's testimony regarding his symptoms was inconsistent with the medical evidence and his own testimony: Dixon complained of ongoing neck pain, but Dr. Jenouri found he had an "essentially normal musculoskeletal exam without neurological deficits." (R. 27.) Despite Dixon's testimony that he "cannot walk without assistance, or pick up small objects/small coins, " Dixon testified that he could "drive, shop, go out to eat and to the movies, vacuum, shop and mow the lawn." (Id.)

         ALJ Stacchini further noted that despite Dixon's complaints, he has not gone back to Dr. McNulty or another surgeon or neurologist for his alleged symptoms. (Id.) Additionally, the ALJ remarked that although Dixon alleges numbness, he has never been referred to any specialists for an evaluation of his lower extremities nor has he been sent for any updated imaging scans. (Id.) Furthermore, the ALJ observed that Dr. Steenbergen's diagnosis of peripheral neuropathy had not been documented by the appropriate electrodiagnostic studies, nor has Dixon had an MRI/CT scan study for his lower spinal pathology. (R. 27-28.) Moreover, ALJ Stacchini considered Dixon's "conservative treatment" after his October 2013 surgery. (R. 28.)

         ALJ Stacchini gave "little weight" to Dr. Steenbergen's opinions that Dixon is "unable to be employed" and has "extreme limitations, i.e. no lifting/carrying; sit and stand for only 3 hours; occasional reaching and no handling" because he found that these opinions were "based largely on [Dixon's] subjective statements, "[16] finding them inconsistent with the consulting physician's exam and treating neurosurgeon's reports, [17] and Dr. Steenbergen had only recommended "conservative care" without referring Dixon to a specialist or ordering further diagnostic testing. (R. 28.) After considering the "paragraph B" criteria, ALJ Stacchini gave Dr. Gindes' opinion that Dixon only had "mild" mental limitations "great weight." (Id.)

         At the fourth step, ALJ Stacchini determined that Dixon is unable to perform any past relevant work. (Id.) At the fifth step, ALJ Stacchini found that given Dixon's "age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy" that he could perform. (R. 28-29.) ALJ Stacchini relied on vocational expert Amy H. Leopold's testimony that a person with Dixon's characteristics and limitations could work as an order clerk, document preparer or table worker. (R. 30.)

         Accordingly, ALJ Stacchini concluded that Dixon has not been "under a disability" as defined in the Social Security Act from October 1, 2013 through June 26, 2015. (Id.)



         A. Definition Of Disability

         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 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S.Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F.App'x 856, 857 (2d Cir. 2012).[18]

An individual shall be determined to be under a disability only if [the combined effects of] his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

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.[19] 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 background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).[20]

         B. Standard Of Review

         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 F.App'x 53, 53 (2d Cir. 2011).[21] "'Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y. July 26, 2002) (Peck, M.J.).[22]

         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 (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.[23] "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S.Ct. 1207 (1983). The Court must be careful not to "'substitute its own judgment for that of the ...

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