Opinion
1:21-cv-00801-JMF-GRJ
06-27-2022
JOSEPH ALEX T., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, United States Magistrate Judge.
In November of 2018, Plaintiff Joseph Alex T. applied for Supplemental Security Income Benefits and Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the applications. Plaintiff, represented by Alegria & Associates, PLLC, Anselmo A. Alegria, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a report and recommendation on May 2, 2022. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 16, 20). For the following reasons, it is recommended that Plaintiff's motion should be denied, the Commissioner's motion should be granted, and this case should be dismissed.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on November 30, 2018, alleging disability beginning May 15, 2017. (T at 33, 224). The applications were denied initially and on reconsideration. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on December 5, 2019, before ALJ Robert Gonzalez. (T at 64). Plaintiff appeared with an attorney and testified. (T at 68-89, 99-100). The ALJ also received testimony from Amy Vercillo, a vocational expert. (T at 89-99, 100-102).
Citations to “T” refer to the administrative record transcript at Docket No. 14.
B. ALJ's Decision
On February 26, 2020, the ALJ issued a decision denying the applications for benefits. (T at 30-50). The ALJ found that Plaintiff had not engaged in substantial gainful activity since May 15, 2017 (the alleged onset date) and met the insured status requirements of the Social Security Act through December 31, 2022 (the date last insured). (T at 35). The ALJ concluded that Plaintiff's status post thoracic spine fracture and degenerative disc disease; lumbar and cervical spine degenerative disc disease; carpal tunnel syndrome; sleep apnea; polyneuropathy; right knee osteoarthritis status post-surgery in 2009; migraines; cerebral infarction; and obesity were severe impairments as defined under the Act. (T at 35). However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 37).
At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work, as defined in 20 CFR 404.1567 (a) and 416.967 (a), with the following limitations: he is limited to frequent reaching, handling, and fingering bilaterally; occasional stooping, pushing, pulling, and climbing stairs and ramps; never climbing ladders, ropes, or scaffolds; no work at unprotected heights or operating motor vehicles; no concentrated exposure to dust, fumes, and noxious gases; and he needs a cane to ambulate. (T at 38).
The ALJ concluded that Plaintiff could perform his past relevant work as a scheduler. (T at 43). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between May 15, 2017 (the alleged onset date) and February 26, 2020 (the date of the ALJ's decision). (T at 43-44).
On December 9, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 7-12).
C. Procedural History
Plaintiff commenced this action, by and through his counsel, by filing a Complaint on January 29, 2021. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on October 4, 2021. (Docket No. 16, 17). The Commissioner interposed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on December 17, 2021. (Docket No. 20, 21). The matter was assigned to the undersigned for a report and recommendation on May 2, 2022.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “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).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises three main arguments in support of his challenge to the ALJ's decision. First, he contends that the ALJ failed to adequately address the medical opinion evidence. Second, Plaintiff asserts that the ALJ's RFC determination is not supported by substantial evidence. Third, he challenges the ALJ's credibility determination. This Court will address each argument in turn.
A. Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
In January of 2017, the Social Security Administration promulgated new regulations regarding the consideration of medical opinion evidence. The revised regulations apply to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. Because Plaintiff's application for benefits was filed after that date, the new regulations apply here.
The ALJ no longer gives “specific evidentiary weight to medical opinions,” but rather considers all medical opinions and “evaluate[s] their persuasiveness” based on supportability, consistency, relationship with the claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a), (b)(2). The ALJ is required to “articulate how [he or she] considered the medical opinions” and state “how persuasive” he or she finds each opinion, with a specific explanation provided as to the consistency and supportability factors. See 20 C.F.R. § 404.1520c (b)(2).
Consistency is “the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources.” Dany Z. v. Saul, 531 F.Supp.3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. § 416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence from other medical sources and nonmedical sources,” the “more persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).
Supportability is “the extent to which an opinion or finding is supported by relevant objective medical evidence and the medical source's supporting explanations.” Dany Z, 531 F.Supp.3d at 881. “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520 (c)(1), 416.920c(c)(1).
In the present case, Dr. David Tang, Plaintiff's treating physician, completed a report in January of 2018, in which he opined that Plaintiff could occasionally lift 10 pounds; stand/walk for up to 6 hours per day; sit for 6 hours per day; but was unable to use hand controls due to neck pain radiating down his arms. (T at 502).
Dr. Tang also completed an RFC questionnaire in March of 2019, in which he stated that Plaintiff was not a malingerer and characterized Plaintiff's prognosis as “fair.” (T at 443). Dr. Tang opined that Plaintiff's pain or other symptoms would frequently interfere with his attention and concentration and that Plaintiff could sit, stand, or walk for about 2 hours in an 8-hour workday. (T at 445). Dr. Tang believed Plaintiff would need to shift positions at will and take unscheduled breaks every 15-30 minutes. (T at 445). He further opined that Plaintiff could occasionally lift less than 10 pounds, but never more than that, and could perform no reaching. (T at 446). Dr. Tang believed Plaintiff would be absent from work because of his impairments or treatment more than 4 days per month. (T at 446).
The ALJ found Dr. Tang's January 2018 opinion persuasive, except for the limitation on the use of hand controls, and found the March 2019 assessment unpersuasive. (T at 41-42). For the following reasons, the Court concludes that the ALJ's decision is supported by substantial evidence and is consistent with applicable law.
Dr. Tang's January 2018 assessment is largely consistent with the ALJ's RFC determination. To the extent he decided not to accept the prohibition on the use of hand controls, the ALJ reasonably relied on the inconsistency of this aspect of the physician's assessment with other evidence of record. In a January 2019 consultative examination, Dr. David Mackinnon observed intact hand and finger dexterity, full grip strength bilaterally, and full range of motion in the wrists bilaterally. (T at 357). Dr. Mackinnon opined that Plaintiff had “moderate to marked limitation on any bending, lifting, pushing, pulling, or carrying,” but assessed no limitation with respect to fine motor skills, including the use of hand controls. (T at 358).
Plaintiff argues that the ALJ cannot rely on Dr. Mackinnon's opinion when assessing his ability to operate hand controls because the consultative examiner did not express a specific view on that subject. The ALJ, however, “is entitled to rely not only on what the record says, but also on what it does not say.” Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983); accord Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995) (“[I]t was proper for the ALJ to rely on the absence of findings by any physician concerning plaintiff's alleged inability to sit for prolonged periods in deciding that she could resume her work.”). In other words, the fact that Dr. Mackinnon assessed limitation in bending, lifting, pushing, pulling, or carrying, but not with respect to fine motor activities, can be relied upon as evidence that Dr. Mackinnon assessed no limitation as to such activities.
The ALJ reasonably reconciled the various medical opinions and evidence to reach the conclusion that Plaintiff retained the RFC to perform no more than frequent handling and fingering bilaterally. (T at 38). Dr. Mackinnon observed intact hand and finger dexterity, full grip strength bilaterally, and full range of motion in the wrists bilaterally. (T at 357). A February 2018 treatment note from Dr. Brijesh Malkani noted slightly decreased sensation and grip strength in the left hand, with normal muscle tone. (T at 429). A January 2019 examination by Dr. Ronald L. Mann, performed in connection with Plaintiff's workers' compensation claim, described Plaintiff as “intact” neurologically “to both upper extremities with motor strength, deep tendon reflexes, and sensation intact.” (T at 1121). Dr. Emad F. Soliman reported in November of 2019 that an electrodiagnostic study of Plaintiff's arms “showed evidence of moderate chronic C6-C7 radiculopathy bilaterally.” (T at 1114).
Regarding Dr. Tang's very restrictive March 2019 opinion, the Court concludes that substantial evidence supports the ALJ's decision to consider that opinion unpersuasive. The ALJ reasonably found the restrictions contained in this opinion unsupported by, and inconsistent with, the record, including Dr. Tang's January 2018 assessment and the treatment notes, which documented persistent pain, but generally unremarkable clinical findings. (T at 39-43, 303-04, 317-18, 321, 326, 411, 414-15, 419, 424-25, 436-37, 440-41, 443-47, 678-79, 684). Plaintiff emphasizes Dr. Tang's prohibition against reaching. (T at 446). However, this assessment was inconsistent with the physician's previous opinion, which contained no such restriction (T at 502) and was inconsistent with the opinion of Dr. Mackinnon, who did not assess any limitation as to reaching. (T at 358). Dr. Soliman opined that Plaintiff should avoid heavy lifting and seek out hand therapy and physical therapy but did not recommend any restriction on reaching. (T at 1111).
The ALJ accepted some restriction in this domain, finding Plaintiff limited to frequent reaching. (T at 38). Plaintiff contends that the ALJ should have found Dr. Tang's highly restrictive reaching assessment more persuasive. When the record contains competing medical opinions, as here, it is the role of the Commissioner, and not this Court, to resolve such conflicts. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”); McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.”) (citation omitted).
B. RFC
A claimant's “residual functional capacity” (“RFC”) is his or her “maximum remaining ability to do sustained work activities in an ordinary work setting on a continuing basis.” Melville, 198 F.3d at 52 (quoting SSR 96-8p). When assessing a claimant's RFC, an ALJ must consider medical opinions regarding the claimant's functioning and make a determination based on an assessment of the record as a whole. See 20 C.F.R. §§ 404.1527(d)(2), 416.9527(d)(2) (“Although we consider opinions from medical sources on issues such as ...your residual functional capacity...the final responsibility for deciding these issues is reserved to the Commissioner.”).
Here, as discussed above, the ALJ determined that Plaintiff retained the RFC to perform sedentary work, as defined in 20 CFR 404.1567 (a) and 416.967 (a), with the following limitations: he is limited to frequent reaching, handling, and fingering bilaterally; occasional stooping, pushing, pulling, and climbing stairs and ramps; never climbing ladders, ropes, or scaffolds; no work at unprotected heights or operating motor vehicles; no concentrated exposure to dust, fumes, and noxious gases; and he needs a cane to ambulate. (T at 38).
Plaintiff notes, correctly, that the RFC determination does not correspond precisely with any of the medical opinions of record. However, an ALJ may reach a determination that “does not perfectly correspond with any of the opinions of medical sources,” provided the ALJ's overall assessment is supported by substantial evidence and consistent with applicable law. See Trepanier v. Comm'r of SSA, 752 Fed.Appx. 75, 79 (2d Cir. 2018).
As discussed above, the ALJ's RFC determination is generally supported by the January 2018 assessment of Dr. Tang and January 2019 consultative examination of Dr. Mackinnon. To the extent the ALJ departed somewhat from those assessments, the limitations assessed in the RFC determination are supported by a reasonable reading of the treatment record, clinical examinations, imaging studies, and notes from other treating or examining physicians. Plaintiff's complaints of persistent pain are well-documented, but examination notes generally described full range of motion, mild or no decrease in sensation and strength, no muscle atrophy, and normal or slow gait. (T at 325-26, 429, 641, 644, 658-59, 758, 764, 795-96, 826, 846, 1110-12). To the extent the record showed some deficits and impairment, the ALJ reasonably accounted for those findings by determining that Plaintiff was limited to a reduced range of sedentary work. (T at 38).
The ALJ also noted that Plaintiff's activities of daily living, which included light cleaning, personal care, and shopping, were consistent with the limited sedentary work capacity reflected in the RFC determination. (T at 42-43). See Niven v. Barnhart, 03 Civ. 9359 (DLC), 2004 U.S. Dist. LEXIS 17337, at *19 (S.D.N.Y. Sept. 1, 2004)(“Evidence that a plaintiff is capable of participating in various activities of daily living despite allegations of severe pain can support a determination that a plaintiff can perform sedentary work.”)(citing Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980)).
C. Credibility
A claimant's subjective complaints of pain and limitation are “an important element in the adjudication of [social security] claims, and must be thoroughly considered in calculating the [RFC] of a claimant.” Meadors v. Astrue, 370 Fed.Appx. 179, 183 (2d Cir. 2010) (citation omitted); see also 20 C.F.R. § 416.929. However, “the ALJ is ... not required to accept the claimant's subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citations omitted). Rather, the ALJ “may exercise discretion in weighing the credibility of the claimant's testimony in light of other evidence in the record.” Id. (citation omitted); see also Henningsen v. Comm'r of Soc. Sec., 111 F.Supp.3d 250, 267 (E.D.N.Y. 2015) (“The ALJ retains discretion to assess the credibility of a claimant's testimony regarding disabling pain and ‘to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.'” (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979))).
The ALJ follows a two-step process in evaluating a claimant's credibility.
First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Genier, 606 F.3d at 49 (citation omitted).
Second, “the ALJ must consider the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (citation, alterations, and quotation marks omitted). The ALJ must “consider all of the available medical evidence, including a claimant's statements, treating physician's reports, and other medical professional reports.” Fontanarosa v. Colvin, No. 13-CV-3285, 2014 U.S. Dist. LEXIS 121156, at *36 (E.D.N.Y. Aug. 28, 2014) (citing Whipple v. Astrue, 479 Fed.Appx. 367, 370-71 (2d Cir. 2012)).
If the claimant's allegations of pain and limitation are “not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry.” Meadors, 370 Fed.Appx. at 184. This inquiry involves seven (7) factors: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the pain; (5) any treatment, other than medication, that the claimant has received; (6) any other measures that the claimant employs to relieve the pain; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the pain. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii)).
In the present case, Plaintiff testified as follows: He was 38 years old at the time of the hearing. (T at 68). He completed high school. (T at 68). He had not worked since May of 2017. (T at 69). His medications make him dizzy and drowsy. (T at 81). He has difficulty sleeping. (T at 82). He injured his back and neck in a February 2017 fall. (T at 82). He experiences severe pain radiating from his neck to his hands bilaterally, along with numbness and tingling. (T at 82-83). He wears a back brace upon the recommendation of his orthopedic surgeon. (T at 83). Hand motions are limited by pain and tingling. (T at 84-85). He uses a cane prescribed by his physician. (T at 86). Knee pain is also an issue. (T at 8687).
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but concluded that Plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. (T at 39).
The ALJ's credibility determination is supported by substantial evidence and is consistent with applicable law. As discussed above, the ALJ's conclusion that Plaintiff could perform a reduced range of sedentary work is supported by a reasonable reading of the record, including the medical opinions, course of treatment, and clinical examination findings. See McLaughlin v. Sec'y of Health, Educ. & Welfare, 612 F.2d 701, 705 (2d Cir. 1980) (The “ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.”); DeJesus v. Colvin, 12 Civ. 7354, 2014 U.S. Dist. LEXIS 22238, at *63 (S.D.N.Y. Jan. 23, 2014) (“[T]he ALJ properly chose to give little weight to [claimant's] unsupported complaints and claims given that he analyzed them in light of the objective medical evidence in the record.”); see also Penfield v. Colvin, 563 Fed.Appx. 839, 840 (2d Cir. 2014).
Likewise, the ALJ acted within his discretion in finding Plaintiff's activities of daily living, including light cleaning, shopping, and self-care, as inconsistent with his subjective claims of disabling pain and limitation. (T at 42-43). While ALJs must not overinterpret a claimant's ability to perform limited activities of daily living, the regulations permit consideration of the claimant's “daily activities” when assessing credibility. See 20 C.F.R. § 404.1529(c)(3)(i). A claimant's “normal range of activities” may be cited as evidence that the claimant “retains a greater functional capacity than alleged.” Smoker v. Saul, No. 19-CV-1539 (AT) (JLC), 2020 U.S. Dist. LEXIS 80836, at *53 (S.D.N.Y. May 7, 2020)(citation omitted); see also Rutkowski v. Astrue, 368 Fed.Appx. 226, 230 (2d Cir. 2010)(affirming ALJ's credibility determination based upon “evidence ... that [claimant] was relatively ‘mobile and functional,' and that ... allegations of disability contradicted the broader evidence”); Ashby v. Astrue, No. 11 Civ. 02010, 2012 U.S. Dist. LEXIS 89135, at *43-44 (S.D.N.Y. Mar. 27, 2012)(“As it appears that, in making his credibility assessment, the ALJ appropriately considered Plaintiff's ability to engage in certain daily activities as one factor, among others suggested by the regulations, this Court finds no legal error in this aspect of the ALJ's analysis.”).
There is no question that Plaintiff suffers from pain and limitation. The ALJ did not dismiss Plaintiff's subjective complaints and, in fact, found him limited to a reduced range of sedentary work. (T at 38). However, “disability requires more than mere inability to work without pain.” Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983). “Otherwise, eligibility for disability benefits would take on new meaning.” Id.
Here, the ALJ offered specific support for the decision to discount Plaintiff's subjective complaints, including a reasonable reading of the treatment notes and clinical assessments, an appropriate reconciliation of the medical opinion evidence, and proper consideration of the activities of daily living. This is sufficient to sustain the disability determination under the deferential standard of review applicable here. See Stanton v. Astrue, 370 Fed App'x 231, 234 (2d Cir. 2010)(stating that courts will not “second-guess the credibility finding . . . where the ALJ identified specific recordbased reasons for his ruling”); Hilliard v. Colvin, No. 13 Civ. 1942, 2013 U.S. Dist. LEXIS 156653, at *48 (S.D.N.Y. Oct. 31, 2013)(finding that ALJ “met his burden in finding [subjective] claims not entirely credible because [claimant] remains functional in terms of activities of daily living and the objective medical evidence fails to support her claims of total disability based on pain”).
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 16) should be DENIED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 20) should be GRANTED; and this case should be dismissed.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).