Opinion
1:20-CV-00720 EAW
2021-07-06
JAMES D., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Justin M. Goldstein, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff. Vernon Norwood, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Justin M. Goldstein, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.
Vernon Norwood, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge INTRODUCTION
Represented by counsel, Plaintiff James D. ("Plaintiff") brings this action pursuant to Title II of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his application for disability insurance benefits ("DIB"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 5; Dkt. 6), and Plaintiff's reply (Dkt. 7). For the reasons discussed below, the Commissioner's motion (Dkt. 6) is granted and Plaintiff's motion (Dkt. 5) is denied.
BACKGROUND
Plaintiff protectively filed his application for DIB on February 17, 2017. (Dkt. 4 at 19, 73). In his application, Plaintiff alleged disability beginning June 20, 2016, due to multiple sclerosis and ataxic gait. (Id. at 19, 63). Plaintiff's application was initially denied on April 20, 2017. (Id. at 19, 75-85). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Paul Georger in Buffalo, New York, on February 26, 2019. (Id. at 19, 40-61). On April 29, 2019, the ALJ issued an unfavorable decision. (Id. at 19, 16-35). Plaintiff requested Appeals Council review; his request was denied on April 15, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 5-7). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 404.1520(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 404.1520(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 404.1520. Initially, the ALJ determined that Plaintiff meets the insured status requirements of the Act through December 31, 2021. (Dkt. 4 at 22). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since June 20, 2016, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of multiple sclerosis ("MS") and degenerative disc disease of the cervical spine. (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of history of major depressive disorder, anxiety disorder, obesity, and alcohol abuse were non-severe. (Id. at 22-25).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 25). The ALJ particularly considered the criteria of Listings 1.04 and 11.09 in reaching his conclusion. (Id. at 25-27).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except:
he can climb ramps, stairs, ladders, ropes, or scaffolds occasionally. [Plaintiff] can occasionally balance, stoop, kneel, crouch, and crawl. He can occasionally work at unprotected heights or around moving mechanical parts. He can occasionally operate a motor vehicle. [Plaintiff] can occasionally work [in] humidity, wetness, and extreme heat.
(Id. at 27). At step four, the ALJ relied on the testimony of a vocational expert and found that Plaintiff could perform his past relevant work as an Estimator. (Id. at 34-35). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 35).
II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner, arguing that (1) the ALJ did not properly weigh treating physician opinions and failed to identify good reasons for rejecting those opinions, and (2) the consistency finding is not supported by substantial evidence. (Dkt. 5-1 at 1, 13-30). The Court has considered each of these arguments and, for the reasons discussed below, finds them without merit.
A. Weighing of Treating Physician Opinions
Plaintiff's first argument is that the ALJ erred in evaluating the opinions offered by two of his treating physicians. (Dkt. 5-1 at 13). Plaintiff focuses specifically on the ALJ's failure to credit the absence-related limitations opined by Plaintiff's primary care physician, Ashok Singh, M.D., and Plaintiff's neurologist, Peter Kinkel, M.D. (id. at 16), as well as the ALJ's failure to credit their opinions that Plaintiff had limitations in maintaining attention and concentration (id. at 19). Plaintiff further argues that the ALJ should not have relied on the opinions of Nikita Dave, M.D., Janine Ippolito, Psy.D., and G. Kleinerman, M.D., who were consulting sources or non-examining physicians, and did not have a treating relationship with Plaintiff. (Id. at 21).
Because Plaintiff's claim was filed before March 27, 2017, the ALJ was required to apply the treating physician rule, under which a treating physician's opinion is entitled to "controlling weight" when 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[.]" 20 C.F.R. § 404.1527(c)(2). Under the treating physician rule, if the ALJ declines to afford controlling weight to a treating physician's medical opinion, he or she "must consider various factors to determine how much weight to give to the opinion." Halloran v. Barnhart , 362 F.3d 28, 32 (2d Cir. 2004) (internal quotation marks omitted). These factors include:
(i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or contradict the opinion.
Id. "An ALJ's failure to explicitly apply the[se] ... factors when assigning weight at step two is a procedural error." Estrella v. Berryhill , 925 F.3d 90, 96 (2d Cir. 2019) (quotation omitted). However, such error is harmless if "a searching review of the record" confirms "that the substance of the treating physician rule was not traversed." Id. (quotations omitted).
Whatever weight the ALJ assigns to the treating physician's opinion, he must "give good reasons in [his] notice of determination or decision for the weight [he gives to the] treating source's medical opinion." 20 C.F.R. § 404.1527 (c)(2) ; see also Harris v. Colvin , 149 F. Supp. 3d 435, 441 (W.D.N.Y. 2016) ("A corollary to the treating physician rule is the so-called ‘good reasons rule,’ which is based on the regulations specifying that ‘the Commissioner "will always give good reasons’ " for the weight given to a treating source opinion." (quoting Halloran , 362 F.3d at 32 )). "Those good reasons must be supported by the evidence in the case record, and must be sufficiently specific...." Harris , 149 F. Supp. 3d at 441 (internal quotation marks omitted).
The Court turns first to the ALJ's evaluation of Dr. Singh's and Dr. Kinkel's opinions relating to Plaintiff's absences and his ability to maintain attention and concentration. Dr. Singh completed a Medical Source Statement on January 8, 2019. (Dkt. 4 at 528-30). Dr. Singh opined that Plaintiff had several physical limitations relative to his ability to sit, stand, walk, and lift. (Id. at 528-30). Dr. Singh also opined that Plaintiff was incapable of even low-stress jobs due his MS diagnosis (id. at 528), that during a typical workday, Plaintiff's experience of pain or other symptoms was "constantly" severe enough to interfere with the attention and concentration needed to perform even simple work tasks (id. at 530), and that he would be absent more than four days per month (id. ). The ALJ discussed Dr. Singh's opinion in the written determination and found that it was entitled to "partial weight." (Id. at 32). The ALJ explained that Dr. Singh's findings and diagnoses were consistent with the record, but that the evidence did not support that Plaintiff would be absent more than four days per month, or that his symptoms constantly interfered with the attention and concentration needed to perform simple work tasks. (Id. ). The ALJ further noted that these limitations were not consistent with the claimant's own reported activities or with the limitations assessed by Dr. Kinkel. (Id. ).
The written determination contains a discussion of Plaintiff's daily activities, which he reported included cooking, cleaning (dusting, wiping counters, etc.) for 16 to 30 minutes at a time, washing laundry, washing dishes, taking care of and walking his dogs daily, working in his garden, handling finances, driving, showering, bathing, and dressing daily (although he sat down to dress). (See Dkt. 4 at 24; see also id. at 53-55 (at administrative hearing, Plaintiff testifying that he was able to take care of his own hygiene, cook, do laundry, and shop regularly, and that he also attends church and meets a friend socially once per week or once every two weeks)).
Dr. Kinkel completed a Medical Source Statement on February 12, 2019. (Id. at 575-77). Like Dr. Singh, Dr. Kinkel identified several physical limitations concerning Plaintiff's ability to sit, walk, stand, and lift. (Id. at 575-76). Dr. Kinkel indicated that Plaintiff could tolerate "moderate" work stress. (Id. at 575). During a typical workday, Plaintiff would "frequently" experience pain or other symptoms severe enough to interfere with his attention and concentration to perform simple work tasks (id. at 576), and he would be absent more than four days per month (id. at 577). Dr. Kinkel also found that Plaintiff had an "unlimited or very good" ability to perform the following tasks: maintain regular attendance and be punctual within customary, usually strict tolerances; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; and be aware of normal hazards and take appropriate precautions. (Id. ). Plaintiff had a "limited but satisfactory" ability in the following categories: remember work-like procedures; understand and remember very short and simple instructions; carry out very short and simple instructions; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; respond appropriately to changes in a routine work setting; and deal with normal work stress. (Id. ). Dr. Kinkel did not identify any tasks for which Plaintiff was rated as "seriously limited," "unable to meet competitive standards," or "no useful ability to function," which were also delineated on the form. (Id. ). In other words, for mental abilities and aptitudes, Dr. Kinkel did not identify Plaintiff as seriously limited in any area.
The ALJ discussed Dr. Kinkel's opinion in the written determination and found that it was entitled to "great weight," because his findings, diagnoses, and limitations were consistent with the record, except for the limitation that Plaintiff would be absent from work for more than four days per month, as that particular limitation was not consistent with the record. (Id. at 33). The ALJ also noted Dr. Kinkel's long-term treating relationship with Plaintiff in his area of specialty as supporting his opinion. (Id. ).
After carefully reviewing the relevant evidence in the record, including the opinions offered by Dr. Singh and Dr. Kinkel and their treatment notes, as well as the written determination, the Court finds that the ALJ's assessment of these opinions is supported by the record. First, a searching review of the record confirms that the ALJ properly applied the appropriate factors when assessing the opinions of Dr. Singh and Dr. Kinkel, including their treating relationship with Plaintiff, their specialty, the consistency of their opinions with the record as a whole, and the evidence supporting their opinions. See Estrella , 925 F.3d at 96. The ALJ discussed at length in the written determination Plaintiff's treatment following his 2016 MS relapse, including treatment records from Dr. Singh and Dr. Kinkel. (See, e.g., id. at 29-31). Of particular relevance here is the ALJ's discussion of Plaintiff's treatment with Dr. Singh and Dr. Kinkel in 2018, shortly before they completed the medical source statements:
Since September 2017, the claimant was seen once by his primary care physician in May 2018 and since by his treating neurologist in September 2018. The claimant acknowledged that his symptoms were stable and his activity level was somewhat limited, but he was able to do some housework in short bursts. He noted that he got too tired with long bursts of activity. His primary care physician reported no abnormalities on examination of the claimant. In September 2018, his treating neurologist noted that the claimant had [n]o symptoms to suggest a multiple sclerosis relapse or progression of the disease. There were no other changes in his symptoms. Physical examination revealed mild sensory dyslexia to his gait, difficulty tandem walking, trace, but symmetrical reflexes, diminished light touch and pinprick sensation in his lower extremities below
the knees and in his hands. His September 2018 MRI continued to show several small multiple sclerosis plaques that have remained unchanged since he was first diagnosed despite the lack of treatment.
(Id. at 31 (citations omitted); see also id. at 503, 506 (on May 3, 2018, at annual examination with Dr. Singh, noting that Plaintiff is followed by neurology about once per year, has not had any recent flare-ups, has some chronic but stable symptoms, and had a largely normal examination, including that Plaintiff was alert and oriented, with normal reflexes, no incoordination, no focal deficits, and no apparent anxiety, depression, or agitation); id. at 559-60 (on September 5, 2018, in first visit with Dr. Kinkel's office in about one year, Plaintiff had decreased sensation in his legs and back and neck pain, but had "not noticed any decline in his cognition," had no symptoms to suggest MS exacerbation or progression, and had largely normal examination revealing normal affect, fluent speech, and intact mentation)). Although the ALJ did not discuss all this evidence specifically when weighing Dr. Singh's and Dr. Kinkel's opinions—rather, he discussed it in the paragraphs preceding his weighing of the opinion evidence—the ALJ's careful analysis of this evidence makes plain to the Court that he considered the treating physician rule, and particularly the consistency of the opinions and evidence in support of the opinions, when weighing the opinions offered by Dr. Singh and Dr. Kinkel. Accordingly, Plaintiff's assertion that the ALJ failed to apply the treating physician rule and failed to properly weigh the opinions offered by Dr. Singh and Dr. Kinkel is not supported by the record.
As noted above, it is well-settled that a treating physician's opinion is not entitled to controlling weight when it is not supported by evidence in the record. See Halloran , 362 F.3d at 32 ("the opinion of the treating physician is not afforded controlling weight where ... the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts"). This includes when the opinions of treating physicians are "not particularly informative." Id. Dr. Singh's and Dr. Kinkel's opinions relating to Plaintiff's ability to maintain attention and concentration lack explanation and are not supported by the record, which documents normal mental status examinations. Additionally, Dr. Kinkel's opinion that Plaintiff's pain would "frequently" interfere with his attention and concentration appears to conflict with his assessment of Plaintiff's mental functional limitations, insofar as he found that Plaintiff had a "satisfactory" ability to carry out instructions, sustain an ordinary routine, and perform at a consistent pace without an unreasonable number and length of rest periods. Finally, neither Dr. Singh nor Dr. Kinkel explained why they found that Plaintiff would be unable to maintain attention and concentration during the workday due to pain or other symptoms from MS, and this is particularly problematic given their treatment notes, which indicate that Plaintiff's condition was stable and do not otherwise support that Plaintiff's pain or other symptoms from MS was so severe.
The Court likewise finds no error in the ALJ's decision not to adopt the absence-related limitations (i.e. , that Plaintiff would be absent from work more than four days per month) opined by Dr. Singh and Dr. Kinkel. Both these opinions were provided on a check-the-box form, with no supporting explanation as to why they believed Plaintiff would be absent from work so frequently. (See id. at 530, 577). The lack of any supporting explanation is particularly problematic in Dr. Kinkel's case, given that he also opined that Plaintiff could maintain regular attendance and be punctual within customary, usually strict tolerances (id. at 577), as this appears to conflict with his assessment regarding Plaintiff's absences.
Finally, the ALJ did not err in relying on the opinions of Drs. Dave, Ippolito, and Kleinerman simply because they were consulting sources and did not have a treating relationship with Plaintiff. "In the Second Circuit, an ALJ is entitled to rely on the opinions of consultative examining physicians, as they may constitute substantial evidence, if the administrative record supports them." Watson v. Berryhill , No. 2:18-cv-1636 (ADS), 2019 WL 5592854, at *4 (E.D.N.Y. Oct. 30, 2019) ; see also Mongeur v. Heckler , 722 F.2d 1033, 1039 (2d Cir. 1983) ("It is an accepted principle that the opinion of a treating physician is not binding if it is contradicted by substantial evidence ... and the report of a consultative physician may constitute such evidence." (internal citation omitted)); Brogdon v. Berryhill , No. 17-CV-7078 (BCM), 2019 WL 1510459, at *10 (S.D.N.Y. Mar. 22, 2019) ("If the opinion of a treating physician is either absent or deemed not controlling, the opinions of consultative examiners and state agency reviewers may provide substantial evidence to support an ALJ's RFC determination."). Here, the ALJ explained why he found the opinions offered by these doctors to be well-supported by the record. (See Dkt. 4 at 33 (explaining that Dr. Dave's April 2017 opinion was entitled to "substantial weight" because "the limitations given are consistent with the medical record and the opinion of the claimant's treating neurologist," and because it was "based upon a detailed examination and Dr. Dave's knowledge of the Social Security disability program.") ; id. at 33-34 (explaining that Dr. Ippolito's April 2017 opinion was entitled to "partial weight" because her "findings and diagnoses are consistent with the psychiatric record," but her opinion that Plaintiff had moderate-to-marked restriction in controlling emotions and maintaining well-being was not, as it was contradicted by other evidence in the record, including the lack of treatment or prescription medication for any mental health condition, and was based on Plaintiff's self-report at the beginning of the examination); id. at 34 (explaining that the April 2017 assessment by G. Kleinerman, M.D., the DHHS review psychiatrist, was given "substantial weight," because although he did not examine Plaintiff, his opinion was supported by the normal mental examinations in the record, as well as the lack of any mental health treatment and medication for a mental impairment )). Accordingly, the ALJ's reliance on the opinions offered by Drs. Dave, Ippolito, and Kleinerman does not require remand.
In his reply papers, Plaintiff argues that Dr. Dave's opinion is vague because it does not contain a function-by-function assessment and cannot support the limitations included in the RFC. (Dkt. 7 at 8). The Court disagrees. Dr. Dave's opinion was based on an in-person examination and is supported by other evidence in the record. See Annette M. v. Comm'r of Soc. Sec. , No. 19-CV-6845S, 2021 WL 248012, at *4 (W.D.N.Y. Jan. 26, 2021) (opinion that the plaintiff has "mild to moderate" limitations is not vague, particularly where conclusions are "well supported by an extensive examination" or "rendered ‘more concrete’ by other facts and evidence in the record").
In sum, the ALJ carefully weighed the opinion evidence in the record in accordance with the treating physician rule, and he adequately explained his reasons for not adopting some of the limitations opined by Drs. Singh and Kinkel. Accordingly, remand is not required on this basis.
B. Evaluation of Plaintiff's Credibility
Plaintiff's second and final argument is that the ALJ's "consistency finding" is unsupported by substantial evidence, and the ALJ erred in assessing the credibility of his subjective complaints. (Dkt. 5-1 at 27). Plaintiff raises several issues relating to the ALJ's evaluation of his subjective complaints, including that the ALJ did not adequately explain which allegations were unsupported by the record, he did not adequately explain his reference to Plaintiff's non-compliance with medications, and he failed to credit Plaintiff's good work history. (Id. at 27-30). For the reasons set forth below, the Court finds no error in the ALJ's credibility assessment.
The ALJ, who has the "opportunity to observe witnesses’ demeanor, candor, fairness, intelligence and manner of testifying," is "best-positioned to make accurate credibility determinations." Whiting v. Astrue , No. CIV.A. 1:12-274, 2013 WL 427171, at *6 (N.D.N.Y. Jan. 15, 2013), adopted , 2013 WL 427166 (N.D.N.Y. Feb. 4, 2013). As such, "credibility findings of an ALJ are entitled to great deference and therefore can be reversed only if they are patently unreasonable." Perez v. Barnhart , 440 F. Supp. 2d 229, 235 (W.D.N.Y. 2006) (quotation omitted).
In assessing the credibility of a claimant's subjective complaints, the Commissioner's regulations require ALJs to employ a two-step inquiry. Meadors v. Astrue , 370 F. App'x 179, 183 (2d Cir. 2010). "First, the ALJ must determine whether the claimant suffers from a ‘medically determinable impairment[ ] that could reasonably be expected to produce’ " his symptoms. Id. (quoting 20 C.F.R. § 404.1529(c)(1) ). "Second, the ALJ must evaluate the intensity and persistence of those symptoms considering all of the available evidence; and, to the extent that the claimant's [subjective] contentions are not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry." Id.
In this case, the ALJ applied the two-step inquiry. At the first step, he found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms" but that his "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record[.]" (Dkt. 4 at 28). Accordingly, the ALJ assessed Plaintiff's credibility, and then discussed several reasons why Plaintiff's allegations were not fully credible. First, the ALJ noted that despite Plaintiff's complaints of ongoing pain and deterioration, his MRI had remained unchanged since 2006, when he was first diagnosed with MS. (Id. ; see also id. at 562-74). Second, Plaintiff's treatment regimen was not what would be expected from someone with a debilitating impairment. Rather, Plaintiff "generally followed with his primary care physician and neurologist once a year or as needed," did not treat with an orthopedic surgeon or pain management specialist, and did not take any prescription pain medication. (Id. ). Rather, he treated with an acupuncturist and chiropractor as needed. (Id. ). The ALJ also noted that Plaintiff "was advised to take medication for his [MS] to prevent relapses or progression of the disease, but he was ‘non-compliant’ with this," and no reason was provided for his non-compliance. (Id. ). Plaintiff had only one relapse in 2016 since his diagnosis, and he told the consultative physician that his "flare-ups" occurred every four to five years. (Id. ).
Third, while the medical records reflected that Plaintiff experienced significant pain and appeared uncomfortable at the time of his relapse in 2016 and in the immediate months following, by August 2016 he began reporting some improvement and at his next appointment in November 2016, he was progressively improving, although he did not feel ready to return to work. (Id. at 29). In January 2017, a physical examination revealed only mild weakness in his spine, muscle spasticity in his right lower extremity, and diminished reflexes in his lower extremities. (Id. at 30). During this time, Plaintiff continued to refuse any long-term treatment for his MS, and in September 2017, he was advised to follow-up once a year or sooner if needed. (Id. ). Plaintiff was seen by Dr. Singh in May 2018 and by Dr. Kinkel in September 2018; Dr. Singh reported no abnormalities on examination, and Dr. Kinkel noted that Plaintiff had no symptoms to suggest an MS relapse or progression of the disease. (Id. at 31). Accordingly, contrary to Plaintiff's implication, the ALJ adequately explained why he found that Plaintiff's subjective complaints were not entirely supported by the record.
Plaintiff also takes issue with the ALJ's reference to his non-compliance with treatment, arguing that the ALJ "failed to identify evidence within the record that would support improvement with additional limitations." (Dkt. 5-1 at 28). As referenced above, the ALJ noted Plaintiff's noncompliance with or refusal to engage in long-term treatment for MS in connection with his discussion relating to Plaintiff's medical treatment, which was not extensive and therefore undermined Plaintiff's subjective reports of pain. It was proper for the ALJ to consider both Plaintiff's noncompliance with medication and his conservative treatment in assessing the credibility of his subjective complaints. See Rivera v. Comm'r of Soc. Sec. , 368 F. Supp. 3d 626, 646 (S.D.N.Y. 2019) ("While conservative treatment alone is not grounds for an adverse credibility finding ... the ALJ may take it into account along with other factors.") (internal citation omitted); see also Kenneth W. v. Comm'r of Soc. Sec. , No 1:19-CV-0825, 2020 WL 7385251, at *7 (W.D.N.Y. Dec. 16, 2020) (ALJ properly considered plaintiff's noncompliance with treatment as relevant to the evaluation of his subjective allegations).
Finally, the ALJ's failure to credit Plaintiff's good work history does not require remand. While "good work history may be deemed probative of credibility," it is "just one of many factors appropriately considered in assessing credibility." Wavercak v. Astrue , 420 F. App'x 91, 94 (2d Cir. 2011) (quotations and citations omitted); see also Schaal v. Apfel , 134 F.3d 496, 502 (2d Cir. 1998) ("a good work history may be deemed probative of credibility"). However, that Plaintiff's good work history "was not specifically referenced in the ALJ's decision does not undermine the credibility assessment" given substantial evidence supporting the ALJ's determination. Wavercak , 420 F. App'x at 94. Further, the ALJ plainly was cognizant of Plaintiff's work history, given that he concluded that Plaintiff could continue his prior work as a cost engineer, which was classified as an "estimator," as that job is generally performed. See e.g. , Motyka v. Colvin , No. 15-CV-54S, 2016 WL 6067846, at *5 (W.D.N.Y. Oct. 17, 2016) (quotations and citations omitted) ("[A]lthough the ALJ did not discuss Plaintiff's work history in the credibility analysis, he did not ignore it entirely. To the contrary, the ALJ considered Plaintiff's prior work history when he concluded that Plaintiff's RFC allowed him to continue his career as a police dispatcher, as he had previously performed that job.").
In sum, the Court finds no error in the ALJ's credibility assessment. The ALJ applied the two-step inquiry and set forth well-supported reasons for finding Plaintiff's subjective allegations less than fully credible. Plaintiff has not shown that remand on this basis is warranted. CONCLUSION
For the foregoing reasons, the Commissioner's motion for judgment on the pleadings (Dkt. 6) is granted and Plaintiff's motion for judgment on the pleadings (Dkt. 5) is denied.
SO ORDERED.