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Case 6:12-cv-06343-MAT Document 14 Filed 07/10/13 Page 1 of 23

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DERIL DOWDY

Plaintiff,

12-CV-6343

v.

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY

DECISION
and ORDER

Defendant.

INTRODUCTION

Represented by counsel, Deril Dowdy (“Plaintiff” or “Dowdy”),
brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
his application for Disability Insurance (“DIB”) and Supplemental
Security Income (“SSI”) Benefits. The Court has jurisdiction over
this action pursuant to 42 U.S.C. 405(g).

Presently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. For the reasons set forth below, this
Court finds that the decision of the Commissioner is supported by
substantial evidence in the record and is in accordance with the
applicable legal standards. Therefore, this Court hereby grants
the Commissioner’s motion for judgment on the pleadings and denies
Plaintiff’s motion.

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PROCEDURAL HISTORY

On January 29, 2007, Dowdy filed an application for DIB and
SSI benefits, claiming that he was disabled beginning on
December 1, 2005, due to arthritis and gout. Administrative
Transcript (“Tr.”) at 220, 225. Dowdy’s claim was denied on May 2,
2007. Tr. at 101-103. At his request, an administrative hearing
was scheduled for February 4, 2009. Tr. at 134. Plaintiff
appeared without representation before Administrative Law Judge
(“ALJ”) Theresa C. Timlin. Tr. at 37-67. On July 2, 2009, ALJ
Timlin issued a decision, finding that Dowdy was not disabled
during the alleged period of disability. Tr. at 112. On
October 30, 2009, the Appeals Council reviewed the decision and
remanded the case to an ALJ with instructions to further evaluate
the severity and effects of Plaintiff’s obesity and to obtain
evidence from a vocational expert. Tr. at 114-118.

On May 18, 2010, Dowdy, represented by attorney Michael
Ranieri, testified at an administrative hearing in Rochester,
New York, before ALJ John P. Costello. Tr. at 68-100. Dowdy
testified at the hearing, as did vocational expert Peter A. Manzi,
Ed. D. (“Manzi” or “the VE”).

On July 26, 2010, the ALJ issued a decision finding that Dowdy
was not disabled during the period alleged. Tr. at 31. On
April 25, 2012, the Appeals Council denied Plaintiff’s request for

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review, making ALJ Costello’s decision the Commissioner’s final
decision. Tr. at 1-4. This action was filed on June 25, 2012.


FACTUAL BACKGROUND

th

At the time of the hearing, Dowdy was a 45-year-old individual
with an 11 grade education. His past relevant work was in
shipping, receiving, factory production, and cleaning. Tr. at 226.
Dowdy claims he became disabled on December 1, 2005, due to gouty
arthritis, diabetes, and obesity, resulting in joint pain and
stiffness that render him unable to work. Tr. at 57, 123-125.
Dowdy was last insured on December 31, 2008. Tr. at 221.

Since October 2006, Plaintiff has been treated at Rochester
General Hospital’s Outpatient Clinic (the “outpatient clinic”).
Additionally, according to Rochester General Hospital’s records, he
went to its Emergency Department five times in 2006 and four times
in 2007 due to gout flare-ups. Tr. at 273.

On September 14, 2006, Plaintiff was seen at the Rochester
General Hospital’s Emergency Department (the “emergency room”)
complaining of pain and swelling due to a gout flare-up. Tr. at
287-290. He reported that he had been prescribed Indocin in the
past for pain relief. Tr. at 290.

A month later, on October 16, 2006, Adviteeya Dixit, M.D.
began treating Plaintiff Dowdy at the outpatient clinic. Tr. at
310. Dowdy reported that his pain had subsided since his last gout
flare-up, and Dr. Dixit noted that the swelling had resolved.

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Plaintiff reported that he had not been taking his prescribed
medication Allopurinol since November 2005. Dr. Dixit noted that
Plaintiff drank two beers per day and had used cocaine in December
2005.

That same month, Dowdy went to the emergency room reporting
foot pain. Tr. at 288. The report of that visit indicates that
Plaintiff had not been taking his daily medication. The attending
physician opined that it was likely that gout was causing the
tenderness, mild swelling, and unusual warmth in his right foot. In
November 2006, Dowdy returned to the emergency room due to a gout
flare-up that he claimed had moved from his left wrist to the
elbow. Tr. at 286. Plaintiff stated that Indocin “always
help[ed]” but complained that he ran “out” because “[the
physicians] never [gave] [him] enough.” He also reported increased
alcohol intake and was advised to limit this behavior.

On November 3, 2006, Dowdy had x-rays taken due to complaints
of pain in his left wrist, forearm, and elbow. Tr. at 291-292.
X-rays of Plaintiff’s left wrist revealed “no evidence of a
fracture or dislocation.” Tr. at 286, 291. X-rays of his left
elbow showed “joint effusion...as well as infection [and]
inflammation.” Tr. at 292.

In December 2006, Plaintiff returned to Dr. Dixit for a
follow-up at the outpatient clinic. Tr. at 312. Dowdy complained
of pain in his left wrist and right knee due to gout. The pain in

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his left knee was resolved, but he had run out of medication. He
had no erythema or deformity in his joints, and he had full range
of motion. Tr. at 313-314. Dr. Dixit recommended diet and
exercise to control Plaintiff’s glucose intolerance. Dowdy was
prescribed Colchicine and Allopurinol and was advised to stop
taking Indocin due to an absence of acute symptoms. Tr. at 315.
He was also advised to quit smoking.

On February 19, 2007, Plaintiff went to the emergency room
reporting pain in his right ankle as the result of a gout flare-up.
Tr. at 392-417. The attending physician prescribed Vicodin for
the pain and recommended he continue taking his prescribed gout
medications.

On March 8, 2007, consultative physician Harbinder Toor, M.D.,
conducted an internal medicine examination. Tr. at 296-300.
Dr. Toor noted Plaintiff’s history of chronic pain in multiple
joints due to a history of gouty arthritis. At the time, Dowdy was
taking Hydrocodone, Allopurinol, Colchicine, and Indomethacin for
treatment.

At the time of Dr. Toor’s examination, Dowdy was 5'10" tall
and weighed 222 pounds. Tr. at 296-297. Dr. Toor also noted that
Dowdy occasionally smoked two packs of cigarettes a day, drank
beer, enjoyed doing puzzles, and occasionally used marijuana and
cocaine.

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Dr. Toor found that, despite Plaintiff’s reports of pain in
his shoulders, elbows, ankles, he had normal and full movement in
these joints. Tr. at 298. His joints were stable, and there was
“no redness, heat, swelling, or effusion.” Id. Dowdy told Dr. Toor
that he could cook, clean, do laundry, shower and dress himself.
Tr. at 296-297.

In a medical source statement, Dr. Toor opined that the gout
and resulting pain caused “mild limitation for pushing, pulling,
lifting, standing, walking, bending, or twisting of the [spine]” as
well as “mild limitation for doing fine motor activities like tying
shoelaces, zipping a zipper, buttoning a button, picking up coins,
grasping, or gripping with both hands because of gouty arthritis.”
Tr. at 299. Dr. Toor also found that Plaintiff’s prognosis was
fair.

Plaintiff returned to the outpatient clinic on April 23, 2007.
Tr. at 316. He had not stopped taking Indocin even though
Dr. Dixit had recommended he discontinue it in December 2006. Tr.
at 317. He therefore was advised to start taking Allopurinol and
to stop taking Indocen after one week. In May 2007, Dowdy went to
the outpatient clinic for a physical and reported that he was not
following the recommended diet. Tr. at 322-323. He consumed red
meat and red wine, drank two beers per day, and smoked
3-4 cigarettes per day. Marina Ostroukhova, M.D., opined that
Plaintiff’s gout was not controlled, and she increased his

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Allopurinol dosage and advised that he follow a healthier diet.
Tr. at 325.

On May 2, 2007, non-examining Disability Analyst A. Lasky
(“Lasky”) evaluated the examining sources’ reports in the record to
assess Plaintiff’s physical Residual Functional Capacity. Lasky
opined that Dowdy’s “allegations of functional limitations [were]
determined to be partially credible,” and he is capable of
performing work. Tr. at 301-306.

On July 2, 2007, Plaintiff went to the emergency room
reporting pain in his left wrist as the result of a gout flare-up.
Tr. at 418-437. The attending physician applied a splint and
prescribed Indocin and Vicodin for the pain and swelling.

On July 23, 2007, Dr. Dixit noted that Dowdy’s pain was
“totally resolved” and he was taking Allopurinol and Colchicine.
Tr. at 326. Plaintiff returned to the outpatient clinic in October
2007, and requested that a statement for his Social Security
disability claim be completed. Tr. at 329. Dowdy was not taking
the Allopurinol and Colchicine he had been advised to take to
prevent gout flare-ups. Id.

On August 16, 2007, Plaintiff went to the emergency room
reporting pain in his hand due to chronic gouty arthritis. Tr. at
438-459. Dr. Talwar prescribed Colchicine and Vicodin. Dowdy
returned to the emergency room on November 4, 2007, complaining of

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pain his right knee, and the attending physician prescribed
Indocin.

On March 24, 2008, Plaintiff returned to the outpatient clinic
complaining of a flare-up that had occurred two weeks prior. Tr.
at 332-337. Devina Talwar, M.D. opined that his recurrent gout was
“likely due to non-compliance and ethanol” consumption.

On May 15, 2008, Dowdy again returned to the outpatient clinic
complaining that his hands and right foot were a little sore and
swollen. Tr. at 334-335. His gout had improved with his current
medications. Against Dr. Ostroukhova’s recommendation, Dowdy
continued his habit of drinking alcohol. Dr. Ostroukhova also
refused to prescribe the Indocin he requested because, although the
Indocin worked well in the event of an acute flare-up, Dowdy should
not need it if he took his prescribed medications regularly.
Despite this counseling, on May 28, 2008, Dowdy returned to the
emergency room complaining of knee pain and claiming that he had
run out of Indocin. Tr. at 381-380. Upon discharge, the attending
physician dispensed Indocin and crutches for Plaintiff’s knee
effusion. In June 2008, Dowdy’s attending physician at the
outpatient clinic again counseled him about the negative effects of
his alcohol consumption and medication non-compliance.

At the outpatient clinic on June 5, 2008, Dowdy reported four
to five episodes of gout in the prior two months. Tr. at 336. He
claimed he was taking his medications but admitted to occasionally

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drinking alcohol. His knee, ankle, elbow, and hand joints appeared
normal. On August 28, 2008, the outpatient clinic physician’s
notes revealed he was being treated for acute gouty arthritis with
Indomethacin, Allopurinol, and Colchicine. Dr. Dixit again
counseled him to stop smoking. Tr. at 341.

At a follow-up visit to the outpatient clinic on January 15,
2009, Plaintiff complained that his gout was beginning to act up
again. Tr. at 344. Dr. Dixit observed mild tenderness in the left
foot but no warmth or redness. Plaintiff had not been complying
with the recommended medication because he was unsure of the status
of his insurance. Two weeks later, Dowdy went to the emergency
room complaining of pain in his left leg. Plaintiff claimed that
he had a gout episode two days before and it was unlike any episode
he had in the past. The attending physician noted that Dowdy used
tobacco products and alcohol daily but had abstained for a week.
He had also snorted cocaine two months earlier. Tr. at 366. He was
prescribed Vicodin and discharged. Tr. at 364.

On January 4, 2010 Plaintiff returned to the emergency room
reporting pain in his hand. The attending physician applied an arm
sling and prescribed Norco to manage the pain. Tr. at 460. Dowdy
returned to the emergency room on January 14, 2010 complaining of
pain in his right knee. The attending physician prescribed
Plaintiff additional Norco to manage the pain. Tr. at 448. In a
Medical Source Statement dated November 24, 2010, Shurta Singhal,

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M.D., opined that Plaintiff’s prognosis was fair if Dowdy was
compliant with his doctors’ recommendations. Dr. Singhal opined
that Dowdy’s joint pain would cause him to be absent from work for
about four days per month. Tr. at 485-487.

Dowdy was treated by Ya Li Chen, M.D., a rheumatologist, from
April 1, 2010, through February 9, 2012. Tr. at 493-521. On
April 1, 2010, Plaintiff presented to Dr. Chen with complaints of
chronic joint pain. The record reveals that he weighed
198.3 pounds, 24 pounds less than what he weighed at Dr. Toor’s
examination in March 2007. Dr. Chen opined that Plaintiff had
chronic gout with persistent joint symptoms in the knees, ankles,
and feet. Dr. Chen prescribed Colchicine and increased his dosage
of Allopurinol. He also counseled Plaintiff on “stop[ping] his
regular beer consumption and [consumption of] other purine rich
food.” Tr. at 520-521.

On May 6, 2010, Plaintiff returned to Dr. Chen for a follow-up
visit. Tr. at 517-518. Plaintiff had reduced his beer consumption
from three cans per day to three cans per week. Tr. at 517.
Dr. Chen noted that there was “some improvement” of the gout and
recommended that Dowdy “continue to cut down beer [consumption]”
and to comply with the prescribed medication. Tr. at 518.

At the hearing before ALJ Costello on May 18, 2010, Dowdy
testified that he was supposed to avoid red meats and spicy foods
to prevent flare-ups. Tr. at 81-84. He also stated that he had

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been diagnosed with diabetes approximately a year before the
hearing. He testified that his doctor wanted him to maintain his
weight around 200 pounds. With regard to his activities, he stated
he “trie[d] to play pool” once in a while, watched television, and
performed light exercise. Tr. at 86. He was also able to use
public transportation. Tr. at 87.

After the hearing, despite “reduction in the swellings in the
joints” (Tr. at 516), Dowdy consistently complained to Dr. Chen of
joint pain and worsening gout at follow-up visits on June 4, 2010
(Tr. at 515-516); August 5, 2010 (Tr. at 513-514); October 19, 2010
(Tr. at 511-512); and December 10, 2010. (Tr. at 509-510). Dowdy
continued to smoke cigarettes and drink wine, but after the
December 2010 holiday season, he gave up drinking beer. Tr. at
492-507. During the same time period, he increased his consumption
of soda pop, which his physicians advised him to decrease.

His follow-up visits with Dr. Chen in 2011 were consistently
marked by diet and medication non-compliance. Tr. at 495-508. At
an appointment on April 8, 2011, Dowdy’s weight was up to 232
pounds, 10 pounds heavier than his weight at Dr. Toor’s examination
in March 2007. 503-504. On February 9, 2012, Plaintiff complained
about increased bouts of flare-ups. Tr. at 493-494. He still
smoked but had quit drinking beer. Tr. at 493. Dr. Chen noted
Dowdy’s history of noncompliance by failing to take Allopurinol.
Tr. at 494.

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Plaintiff submitted a treatment document dated January 5, 2012
from Rochester General’s Behavioral Health Network, an outpatient
clinic for adults with mental and behavioral health issues. Tr. at
523-525. In the document, Randy Smart, M.S., diagnosed Plaintiff
with depressive disorder. Plaintiff’s Global Assessment of
Functioning (“GAF”) score was 48.

I. Scope of Review

DISCUSSION

When reviewing an appeal of the Social Security
Administration’s denial of a claimant’s application for benefits,
Title 42 U.S.C., Section 405(g) directs the Court to accept the
Commissioner’s factual findings, provided that such findings are
supported by substantial evidence in the record. Substantial
evidence is defined as, “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938). The
Court’s scope of review is limited to determining whether the
Commissioner’s findings were supported by substantial evidence in
the record, and whether the Commissioner employed the proper legal
standards in evaluating the plaintiff’s claim. Mongeur v. Heckler,
722 F.2d 1033, 1038 (2d Cir. 1983).

Judgment on the pleadings pursuant to Rule 12(c) may be
granted where the material facts are undisputed and where judgment
on the merits is possible merely by considering the content of the

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pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639
(2d Cir. 1988). If, after reviewing the record, the Court is
convinced that Plaintiff has not set forth a plausible claim for
relief, judgment on the pleadings may be appropriate. See
generally Bell Atlantic Corp. V. Twombly, 550 U.S. 544, 555
(2007)(“Factual allegations must be enough to raise a right to
relief above the speculative level.”).
I I. The Commissioner’s Decision to Deny the Plaintiff

benefits is Supported by Substantial Evidence in the
Record

An individual’s physical or mental impairment is not disabling
under the Act unless it is “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.” 42
U.S.C. §§ 423(d)(2)(A), 1383(a)(3)(B). Berry v. Schweiker, 675 F.2d
464, 467 (2d Cir. 1982). In his decision denying benefits, the ALJ
adhered to the five-step analysis required to evaluate disability
claims. Tr. at 24-31.

1

1
The five-step analysis requires the ALJ to consider the following: (1)
whether the claimant is performing substantial gainful activity; (2) if not,
whether the claimant has a severe impairment which significantly limits his or her
physical or mental ability to do basic work activities; (3) if the claimant
suffers severe impairment(s), the ALJ considers whether the claimant has
impairment(s) that lasted or expected to last for a continuous period of at least
twelve months, and impairment(s) meets or medically equals a listed impairment in
Appendix 1, Subpart P, Regulation No. 4; if so, the claimant is presumed disabled;
(4) if not, the ALJ considers whether impairment(s) prevents the claimant from
doing past relevant work; (5) if the claimant’s impairment(s) prevents him or her
from doing past relevant work, if other work exists in significant numbers in the
national economy that accommodates the claimant’s residual functional capacity and
vocational factors, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-
(v) and 416.920(a)(4)(i)-(v).

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Under step 1 of the process, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since his alleged onset
date of disability. Tr. at 26. At steps 2 and 3, the ALJ
concluded that Plaintiff had the following severe impairments:
gouty arthritis; diabetes mellitus; and obesity. Id. The ALJ
found, however, that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled any of the
listed impairments in Appendix 1, Subpart P of the Social Security
Administration’s regulations. Tr. at 28.

At steps 4 and 5, the ALJ concluded that although Plaintiff
was unable to perform his past relevant work, he retained the
residual functional capacity (“RFC”) to perform light work with
certain restrictions. Tr. at 28-29. Considering his age,
education, work experience, and RFC, the ALJ found that there were
jobs that existed in significant numbers in the national economy
that Plaintiff could perform. Tr. at 30. The VE testified that if
Dowdy could perform light work with the additional limitations, he
could perform a light, unskilled job, such as a collator operator;
however, if he were further limited and could only occasionally
finger and handle items, there are sedentary positions he could
perform. Tr. at 96.

Dowdy argues that the ALJ’s decision finding that he is not
disabled was against the weight of substantial evidence and
erroneous as a matter of law. Specifically, Plaintiff maintains

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that the ALJ failed to properly develop the record by not re-
contacting Dr. Chen regarding Plaintiff’s functional limitations;
the ALJ’s residual functional capacity finding was not supported by
substantial evidence; the ALJ’s assessment of Plaintiff’s
credibility was not supported by substantial evidence; and the
Commissioner erred in basing his opinion on insufficient testimony
from the Vocational Expert. See Plaintiff’s Memorandum of Law
(“Pl’s Mem.”), Points 1-4 (Dkt. No. 7).
A . Alleged Errors in the ALJ’s Residual Functional Capacity
Finding (Plaintiff’s Points 1 and 2)
In order to make a proper disability finding, the ALJ must
consider all of the relevant medical and other evidence in the case
record to assess the claimant’s ability to meet the physical,
mental, sensory, and other requirements of work. 20 C.F.R.
§ 404.4545(a)(3)-(4); see also SSR 96-8p, SSR LEXIS 5, 1996 WL
374184 (S.S.A. July 2, 1996). Here, the ALJ found that Plaintiff
retained the RFC to perform light work “with the following
additional limitations: standing or walking a total of only four
hours in an eight hour workday. He can sit up to six hours in an
eight hour workday. He can occasionally lift and carry up to

2

2
The regulations define light work as a job “which involves lifting no
more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). A job is
also categorized as “light work” if it “requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.” Id.

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20 pounds. He can occasionally stoop, crouch, or kneel.” Tr. at
28. The ALJ further noted that Dowdy “can frequently handle or
finger items.” Id.

The ALJ relied on evaluations from examining consultative
physician Dr. Toor, attending physicians at Rochester General
Hospital’s emergency room, and treating physicians at Rochester
General Hospital’s outpatient clinics (Drs. Dixit, Marchl,
Ostroukhova, Singhal, Talwar, and Chen), all of whom addressed the
Plaintiff’s symptoms and functional limitations. Tr. at 26-29.
The medical evidence in the complete record consistently
supported Dr. Singhal’s opinion that Plaintiff’s prognosis was fair
if he was compliant with the recommended diet and medication. Tr.
at 485. In March 2008, Dr. Talwar, one of the treating physicians
at the outpatient clinic, opined that Plaintiff’s recurrent gout
was “likely due to non-compliance and ethanol” consumption. Tr. at
333. Documentation from Dowdy’s visits to the emergency room
supports this opinion. Tr. at 282-295, 363-456.

Dr. Toor, whose consultative examination the ALJ referred to
in his decision, observed that Dowdy had “pain in [his] ankles,
knees, hips, left wrist, left elbow, right wrist, right shoulder,
right elbow, and sometimes in the neck and back” due to history of
pain in multiple joints and gouty arthritis. Tr. at 296. He
opined that Plaintiff “had a mild limitation for pushing, pulling,
lifting, standing, walking, bending or twisting of the

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thoracolumbar spine [and] mild limitation for fine motor activities
like tying shoelaces, zipping a zipper, buttoning a button, picking
up coins, grasping, or gripping with both hands.” Tr. at 299.

The ALJ gave some weight to these strength limitations.
Tr. at 28. See 20 C.F.R. §§ 404.1567(b), 416.967(b). He also
considered treating physicians’ findings that Dowdy had full range
of motion and normal joints as well as Dowdy’s testimony regarding
his activities of daily living. Tr. at 28-29.

Plaintiff argues that there was insufficient evidence in the
record for the ALJ to make a finding on Dowdy’s RFC because “an
important treating source,” Dr. Chen, should have been re-contacted
for an opinion on Dowdy’s functional limitations. Plaintiff’s
Reply Memorandum (“Pl’s Rep. Mem.”) at 1-2 (Dkt. No. 12).
Plaintiff argues that Dr. Chen noted significant crepitus (a
grating sound) and tenderness in the knees; mild swelling and
tenderness in the left ankle; and mild swelling, tenderness, and
degenerative joint disease in the right knee. Tr. at 516.
However, during the same visit, Dr. Chen also stated that Dowdy
“ha[d] seen reduction in the swellings in the joints.” Tr. at 515.
Furthermore, he opined that Plaintiff’s increased dose of
Allopurinol would help improve his gout if he were to “continue to
cut down beer [consumption], and [comply] with his medications.”
Tr. at 516. Dr. Chen’s assessment of Plaintiff’s physical
limitations is consistent with other medical opinions in the

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record, namely the mild impairment noted by the emergency room
attending physicians on X-rays, and Plaintiff’s failure to comply
with diet and medication recommendations noted above. Tr. at 282-
295, 363-456.

Where the record does not contain sufficient clinical
findings, laboratory tests, or a diagnosis or prognosis necessary
for a decision to be made, re-contacting a treating source for a
function-by-function assessment may be warranted at the discretion
of the ALJ. 20 C.F.R. §416.919a. See Hughes v. Apfel, 992 F.Supp.
243, 248 (W.D.N.Y.1997) (citing 20 C.F.R. §§ 404.1517 and 416.917).
However, where there are no obvious gaps in the administrative
record, and where the ALJ already possesses a “complete medical
history,” the ALJ is under no obligation to seek additional
information in advance of rejecting a benefits claim. see Rosa v.
Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999); see also 20 C.F.R.
§§ 404.1512(e), 404.1527(c), 416.912(e), 416.927(c).

I find that the record before the ALJ was sufficient to
support a decision on the issue of disability and therefore
re-contacting Plaintiff’s treating sources was not required here.
Moreover, after the hearing on May 18, 2010, the ALJ held the
record open for Plaintiff’s attorney to submit any outstanding
medical records, but none were submitted. Tr. at 98. The ALJ
issued his decision on July 26, 2010. Tr. at 31. Seven months
after the ALJ issued the decision, on February 9, 2012, Plaintiff

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submitted additional medical information to the Appeals Council.
Tr. at 277. Dr. Chen’s records relating to the alleged period of
disability before the ALJ’s decision was rendered do not suggest
that the decision was unsupported by substantial evidence. Tr. at
282-295, 363-456.

Additionally, there are no grounds to remand this case because
the regulations do not require the Appeals Council to contact a
physician for medical source statements, and the medical reports
that the ALJ evaluated were sufficiently complete. See 20 C.F.R.
§§ 404.1513, 416.913.

The arguments set forth at points 1 and 2 of Plaintiff’s
memorandum of law in support of his motion are therefore rejected.


The ALJ Properly Assessed Plaintiff’s Credibility
D.
(Plaintiff’s Point 3)
The ALJ found that Dowdy’s statements concerning the
intensity, persistence and limiting effects of his symptoms were
not credible insofar as they were inconsistent with the medical
evidence of the record, specifically regarding his attacks of gouty
arthritis. Tr. at 29. The ALJ “has discretion to evaluate the
credibility of a claimant and to arrive at an independent
judgment...[which he must do] in light of medical findings and
other evidence regarding the true extent of the pain alleged by the
claimant.” Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984)

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(citation omitted). The ALJ thus is not obligated to accept a
claimant’s testimony about his limitations without question. Id.


Plaintiff contends that the ALJ’s credibility finding was
improper because the ALJ did not consider the location, duration,
frequency, and intensity of Plaintiff’s pain or other symptoms, as
required by 20 C.F.R. § 404.1529(c) and § 416.929(c). Pl’s Rep.
Mem. at 3. However, this Court finds that the ALJ’s credibility
assessment was sufficient and proper.

Here, the ALJ explicitly stated that he reviewed all of
Plaintiff’s subjective complaints. Tr. at 28. He properly
considered Plaintiff’s activities of daily living, testimony, and
the evidence that Plaintiff consistently failed to comply with his
recommended prescription medication dosages, failed to maintain a
proper diet, and failed to abstain from tobacco, alcohol and
controlled substances. Tr. at 29.

In particular, hospital records from January 2010 show that
Dowdy had mild arthritis in his right knee. Tr. at 469-484. At a
follow-up appointment at the outpatient clinic on July 23, 2007,
Dowdy’s pain was “totally resolved,” as he was taking his
recommended medications, Allopurinol and Colchicine. Tr. at 326.
However, when he returned for his follow-up appointment at the
outpatient clinic in October 2007, Dowdy reported that he was not
taking the Allopurinol and Colchicine he had been advised to take
to prevent gout flare-ups. Tr. at 329.

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Plaintiff testified that he was supposed to avoid red meats
and spicy foods to prevent flare-ups. Tr. at 81. However, he
consumed red meat and red wine, drank beer, and smoked cigarettes
daily. Tr. at 322-323. He testified that his doctor wanted him
to maintain his weight around 200 pounds. Tr. at 82. However,
after the hearing, his follow-up visits with Dr. Chen in 2011 were
consistently marked by diet and medication non-compliance. Tr. at
495-508. At an appointment on April 8, 2011, Dowdy’s weight was up
to 232 pounds. Tr. at 503-504.

The medical providers in the record all agreed that Dowdy’s
gout could be controlled if he took the proper preventative
medications, such as Allopurinol and Colchicine, and if he quit
smoking tobacco, taking drugs, drinking alcohol, and followed a
certain diet. At almost every visit to the outpatient clinic or
the emergency room, Dowdy was non-compliant in his treatment plan.


The Court notes that the ALJ did not discount Plaintiff’s
subjective complaints entirely. The ALJ determined that Plaintiff
was only able to perform light work with certain limitations, such
as he can only stand or walk a total of only four hours in an eight
hour workday. Tr. at 28. This factored in some of Plaintiff’s
subjective complaints regarding his gouty arthritis symptoms. The
ALJ only discounted the Plaintiff’s complaints that are

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inconsistent with the substantial medical evidence in the record
and his treating physicians’ opinions.

Accordingly, Plaintiff’s argument that the ALJ failed to

properly assess his subjective complaints is rejected.

The Commissioner Did Not Err in Crediting on the
E.
Vocational Expert’s Testimony (Plaintiff’s Point 4)
Plaintiff argues that the hypothetical questions posed to the
VE at the hearing were based upon an RFC capacity finding that did
not accurately and completely describe Dowdy’s limitations. Pl’s
Rep. Mem. at 4. Therefore, he argues that the VE’s answers to
these questions cannot provide substantial evidence to support the
denial of benefits. Id. However, as discussed above, this Court
finds the ALJ’s RFC assessment to be proper. Therefore, there was
sufficiently “substantial record evidence to support the assumption
upon which the vocational expert based his opinion.” Dumas, 712
F.2d at 1554.

CONCLUSION

After review of the entire record, and for the reasons stated,
this Court finds that the Commissioner’s denial of SSI and DIB was
based on substantial evidence and was not erroneous as a matter of
law. Accordingly, the Commissioner’s decision is affirmed. For
the reasons stated above, the Court grants Commissioner’s motion
for judgment on the pleadings (Dkt. No. 11). Plaintiff’s motion for
judgment on the pleadings is denied (Dkt. No. 6), and Plaintiff’s

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Case 6:12-cv-06343-MAT Document 14 Filed 07/10/13 Page 23 of 23

complaint (Dkt. No. 1) is dismissed with prejudice. The Clerk of
the Court is requested to close the case.

IT IS SO ORDERED.

S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge

DATED:

July 10, 2013
Rochester, New York

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