United States District Court, W.D. New York
DECISION AND ORDER
G. LARIMER UNITED STATES DISTRICT JUDGE.
appeals from a denial of disability benefits by the
Commissioner of Social Security (“the
Commissioner”). The action is one brought pursuant to
42 U.S.C. §405(g) to review the Commissioner's final
March 21, 2013, plaintiff, then 29 years old, filed an
application for supplemental security income, alleging an
inability to work since September 1, 2007. (Dkt. #8 at 16,
139). His application was initially denied.
Plaintiff requested a hearing, which was held February 27,
2015 before Administrative Law Judge (“ALJ”)
Brian Kane. The ALJ issued an unfavorable decision on March
26, 2015, concluding that plaintiff was not disabled under
the Social Security Act. That decision became the final
decision of the Commissioner when the Appeals Council denied
review on October 13, 2016 (Dkt. #8 at 1-3). Plaintiff now
plaintiff has moved, and the Commissioner has cross moved,
for judgment on the pleadings pursuant to Fed. R. Civ. Proc.
12(c). For the reasons set forth below, the
Commissioner's cross motion (Dkt. #12) is granted,
plaintiff's motion (Dkt. #10) is denied, and the
complaint is dismissed.
proceeds though a well-established five-step evaluation in
determining whether a claimant is disabled within the meaning
of the Social Security Act, familiarity with which is
presumed. See Bowen v. City of New York, 476 U.S.
467, 470-71 (1986). The Commissioner's decision that
plaintiff is not disabled must be affirmed if it is supported
by substantial evidence, and if the ALJ has applied the
correct legal standards. See 42 U.S.C. §
405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d
the ALJ determined that the plaintiff was capable of
performing light work, with the following limitations: the
plaintiff has the ability to lift and/or carry up to ten
pounds, and can sit for up to six hours, stand for up to four
hours, and walk for up to four hours in an eight-hour
workday. Plaintiff has no use of his upper right extremity
for reaching in any direction, and can only occasionally
finger and handle with his right upper extremity. (Dkt. #8 at
20). When presented with this RFC, vocational expert Julie A.
Andrews testified that plaintiff could perform the positions
of housekeeper/cleaner and counter clerk. (Dkt. #8 at 23).
treatment records reflect a history of complaints of pain in
the right shoulder, arm and hand, following a gunshot wound
and a motor vehicle accident, with sporadic references to
complaints of depression, back pain, and asthma. The
ALJ's finding concerning plaintiff's RFC is
consistent with the medical evidence of record.
plaintiff contends that the ALJ failed to sufficiently
support his decision not to give controlling weight to the
opinion of treating physician Dr. Erin Imler. (Dkt. #8 at
214). Dr. Imler's opinion, rendered September 17, 2012,
noted that plaintiff had requested an examination of his
right shoulder to support his pending disability case. After
examining plaintiff, Dr. Imler opined that plaintiff was
unable to work at “the present time” due to right
shoulder pain and weakness and tremor of the right arm, and
that he would remain so for six months. Dr. Imler stated that
plaintiff could walk, stand and sit for up to four hours, and
push, pull, bend, lift and carry for up to two hours, in an
eight-hour workday. (Dkt. #8 at 217).
treating physician's opinion is entitled to controlling
weight if it is well-supported by medical findings, and is
not inconsistent with other substantial evidence. See
Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.
1999). If an ALJ opts not to afford controlling
weight to the opinion of a treating physician, the ALJ must
consider: (1) the examining relationship; (2) the extent of
the treatment relationship; (3) medical support for the
opinion: (4) consistency; and (5) the physician's
specialization, along with any other relevant factors. 29
C.F.R. §404.1527(d)(2). An ALJ's failure to apply
these factors and provide reasons for the weight given to the
treating physician's report is reversible error. See
Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999).
that the ALJ appropriately considered the relevant factors in
assessing Dr. Imler's opinion, and that his decision to
give it only “some” weight was proper. Initially,
the opinion refers to no more than temporary limitations,
expected to last for six months, which are insufficient to
meet the twelve-month durational prerequisite for a
disability claim. (Dkt. #8 at 215). See generally
Barnhart v. Walton, 535 U.S. 212, 219 (2002) (a
claimant's functional limitations - and not merely his
diagnosis - must meet the 12-month durational requirement in
order to establish disability). Although Dr. Imler assessed
sitting, standing and walking limitations, those limitations
are entirely unsupported: they have no obvious relationship
to plaintiff's diagnoses (right arm and shoulder pain and
weakness, asthma and depression), and are contradicted by Dr.
Imler's contemporaneous objective findings that
plaintiff's gait and ability to walk and squat were
completely “normal.” (Dkt. #8 at 216).
although the ALJ appears to have given Dr. Imler the benefit
of the doubt in determining her relationship to plaintiff,
there is no evidence of any extensive treating relationship
between them. To the contrary, the record indicates that Dr.
Imler examined plaintiff only one time, and she describes
that examination as an “incomplete [workup]”
(Dkt. #8 at 146, 215). See also Dkt. #8 at 214
(declining to identify date plaintiff became a patient, when
plaintiff was examined, or how many times). Finally, to the
extent that Dr. Imler opined that plaintiff's shoulder
pain would render him temporarily unable to work, the ALJ
appropriately rejected that opinion because the question of
ultimate disability is reserved solely for the Commissioner.
See Halloran v. Barnhart, 362 F.3d 29, 32 (2d Cir.
determined by the ALJ is also consistent with plaintiff's
longitudinal medical history, which does not testify to any
severe limitations except with respect to plaintiff's
right arm and shoulder. Objective testing results, such as
X-rays of plaintiff's chest and lumbar spine performed on
or around February 13, 2014, were normal. (Dkt. #8 at 259-63,
265). Plaintiff's self-report that as of March 21, 2013,
he was working full-time as a cleaner (Dkt. #8 at 143-44,
149-50), as well as his self-reported daily activities,
including cooking, cleaning and laundry (Dkt. #8 at 59, 219),
were also inconsistent with the extent of the limitations
identified by Dr. Imler. I therefore find that the ALJ's
decision not to grant controlling weight to the opinion of
Dr. Imler was adequately explained and properly supported.
also argues that the ALJ failed to give sufficient weight to
the opinions of consulting physician Dr. Harbinder Toor, who
examined plaintiff on July 17, 2013 and December 29, 2014.
Dr. Toor found, among other things, that plaintiff's
ability to push, pull, bend, lift and carry was ...