Rivera v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

AIXA RIVERA, :

:

Plaintiff, : ORDER

:

: 17-CV-2856 (KAM)

-against- :

:

COMMISSIONER OF SOCIAL SECURITY, :

:

Defendant. :

:

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), plaintiff Aixa Rivera

(“plaintiff”) appeals the final decision of the Commissioner of

Social Security (the “Commissioner”) denying her Disability

Insurance Benefits (“DIB”) under Title II of the Social Security

Act (the “Act”). Before the court are the parties’ respective

cross-motions for judgment on the pleadings. For the following

reasons, the court GRANTS in part and DENIES in part plaintiff’s

motion for judgment and DENIES defendant’s motion. The action

is remanded for further proceedings consistent with this Order.

BACKGROUND

I. Procedural History

Plaintiff applied for DIB on May 14, 2014, alleging

disability since January 18, 2013. (Tr. 10.) Plaintiff alleged

disability due to diabetes and injuries to her left shoulder and

back. (Tr. 72.) The Social Security Administration (“SSA”)

denied plaintiff’s claim on August 5, 2014. (Tr. 71, 84.) In

September 2014, plaintiff requested a hearing before an

Administrative Law Judge, (Tr. 91-92), and on June 14, 2016, a

hearing was held before Administrative Law Judge Ifeoma N.

Iwuamadi (the “ALJ”), (see Tr. 36-70 (hearing transcript)). In

a decision (the “ALJ Decision,” Tr. 7-25) dated July 28, 2016,

the ALJ found plaintiff not disabled within the meaning of the

Act. (Tr. 22.) On August 25, 2016, plaintiff requested that

the Appeals Council review the ALJ Decision. (Tr. 33-34.) The

Appeals Council denied review on April 11, 2017, making the

Commissioner’s decision final. (Tr. 1-6.)

Plaintiff commenced the instant action on May 10,

2017. (See Complaint, ECF No. 1.) Pursuant to the briefing

schedule initially set in a scheduling order entered on May 15,

2017, (ECF No. 5), and extended on August 7, 2017, (see August

7, 2017 Docket Order), the parties filed cross-motions for

judgment on the pleadings on April 9, 2018. (Plaintiff’s Notice

of Motion for Judgment on the Pleadings, ECF No. 12; Defendant’s

Notice of Motion for Judgment on the Pleadings, ECF No. 14.)

Plaintiff and defendant have each submitted a memorandum of law,

but neither party has responded or replied. (See Plaintiff’s

Memorandum of Law (“Pl. Mem.”), ECF No. 13; Defendant’s

Memorandum of Law (“Def. Mem.”), ECF No. 15.) Additionally, the

parties have filed a joint stipulation of facts applicable to

each party’s motion. (“Stip.” or the “stipulation,” ECF No. 15-

1.) Plaintiff requests that the court reverse the ALJ Decision

and remand this action “solely for calculation of benefits,” or

alternatively that the court vacate the ALJ Decision and remand

this action. (Pl. Mem. 16.) Defendant contends that the ALJ

did not commit error and the ALJ Decision should be affirmed.

(Def. Mem. 27.)

II. The ALJ Decision

A. General Background

The ALJ found the following: (1) plaintiff met the

insured status requirements of the Act through June 30, 2018;

(2) plaintiff had not engaged in substantial gainful activity

since January 18, 2013, the alleged onset date; (3) plaintiff

had the following severe impairments: left shoulder tendinosis,

status post left shoulder arthroscopy, a cervical spine disc

bulge, a lumbar spine disc herniation, left sided cervical

radiculopathy, a partial tear of the left wrist, a left knee

meniscus tear, diabetes, and fibromyalgia; (4) plaintiff did not

have an impairment or combination of impairments that met or

medically equaled the severity of an impairment listed in 20

C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”; (5)

plaintiff had the residual functional capacity (“RFC”) to

perform sedentary work as defined in 20 C.F.R. § 404.1567(a)

subject to certain additional physical and exertional

limitations specified in the ALJ Decision;1 and (6) plaintiff was

capable of performing her past relevant work as a daycare

supervisor. (Tr. 12-21.)

B. RFC Analysis

In analyzing plaintiff’s RFC, the ALJ relied on

diagnostic imaging and other medical tests, and on records of

medical examinations.

1. Diagnostic Imaging and Other Medical Testing

The ALJ noted that plaintiff injured her back and

shoulder in a motor vehicle accident on January 18, 2013. (Tr.

14.) Plaintiff subsequently underwent MRIs of her neck and back

in late March of 2013. (Id.; Stip. ¶ 5 (citing Tr. 263-64).)

The MRI of her back revealed a small central disc herniation

between the L5 and S1 vertebrae.2 (Tr. 14; accord Stip. ¶ 5

1 Specifically, the ALJ concluded that plaintiff:

has the residual functional capacity to perform sedentary

work as defined in 20 CFR § 404.1567(a) except that she can

sit for up to 6 hours in an 8-hour workday, stand and/or

walk for up to 6 hours in an 8-hour workday, as well as

lift and/or carry and push and/or pull no more than 10

pounds occasionally. [Plaintiff] cannot operate foot

controls using the left foot. [Plaintiff] can use hand

controls frequently. [Plaintiff] can reach overhead

occasionally, and frequently handle and finger objects.

She can occasionally climb ramps and stairs, but never

climb ladders, ropes or scaffolds. She can occasionally

stoop, but never kneel or crawl. She must avoid

concentrated exposure to dust, odors, fumes and pulmonary

irritants.

(Tr. 13.)

2 "A herniated disk refers to a problem with one of the rubbery cushions

(disks) between the individual bones (vertebrae) that stack up to make [the

human] spine.” Mayo Clinic, Herniated Disk, available at

https://www.mayoclinic.org/diseases-conditions/herniated-disk/symptoms-

(citing Tr. 264).) The MRI of plaintiff’s neck revealed three

disc bulges, specifically at C4-5, C5-6, and C6-7, but did not

reveal any disc herniations or spinal stenosis.3 (Tr. 14; accord

Stip. ¶ 5 (citing Tr. 263).)

Additionally, a June 2013 MRI of plaintiff’s left

wrist “produced findings consistent with a partial tear and

‘normal intrinsic carpal ligaments with normal carpal alignment

and carpal tunnel.’” (Tr. 14 (citing Tr. 265-66); see also

Stip. ¶ 8 (“The MRI conducted on June 11, 201[3]4 showed that

[plaintiff] may have a partial tear of the cartilage in her

wrist, but otherwise normal imaging.” (citing Tr. 265-66)).)

Further, testing performed in connection with Dr. Aric

Hausknecht’s examination of plaintiff in June 2013 “produced

results consistent with left-sided C5-6 radiculopathy.”5 (Tr.

causes/syc-20354095 (last accessed Aug. 6, 2019). The L-5 and S-1 vertebrae

are located in the lumbar and sacral spine, respectively, or lower back area.

Johns Hopkins Medicine, Lumbar Disk Disease (Herniated Disk), available at

https://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disor

ders/lumbar_disk_disease_herniated_disk_85,P00783 (last accessed Aug. 6,

2019).

3 A bulging disc occurs when the outer lining of an intervertebral disk

breaks down, thereby allowing the nucleus of the ring to bulge out. Johns

Hopkins Medicine, Lumbar Disk Disease (Herniated Disk), available at

https://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disor

ders/lumbar_disk_disease_herniated_disk_85,P00783 (last accessed Aug. 6,

2019). The C4-5, C5-6, and C6-7 vertebrae are located in the cervical spine,

or neck area. Id. “Spinal stenosis is a narrowing of the spaces within

[the] spine, which can put pressure on the nerves that travel through the

spine. Spinal stenosis occurs most often in the lower back and the neck.”

Mayo Clinic, Spinal Stenosis: Symptoms and Causes, available at

https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/symptoms-

causes/syc-20352961 (last accessed Aug. 6, 2019).

4 The stipulated facts mistakenly dated the MRI test as June 11, 2017.

(Compare Stip. ¶ 8 with Tr. 265.)

5 “Electromyography (EMG) measures muscle response or electrical activity

in response to a nerve’s stimulation of the muscle. The test is used to help

14; see also Stip. ¶ 8 (noting plaintiff’s visit to Dr.

Hausknecht).)

Plaintiff also underwent a left knee MRI in November

2014 and a right shoulder MRI in 2016. (Tr. 17.) The left knee

MRI showed joint effusion and a complete tear of cartilage in

plaintiff’s knee. (Stip. ¶ 8 (citing Tr. 456-57); accord Tr.

17.) The right shoulder MRI revealed various problems with

plaintiff’s right shoulder, including joint effusion,

acromioclavicular arthrosis, rotator cuff tendinosis with a

surface tear of the supraspinatus tendon, and biceps

tenosynovitis with synovitis of the rotator cuff interval.6 (Tr.

17 (citing Tr. 474, 546).) Finally, plaintiff underwent an

electrocardiogram, with normal results. (Tr. 16.)

2. Medical Examinations, Diagnoses, and Opinions

i. Dr. Hausknecht

With respect to records of medical examinations,

including the diagnoses and opinions set forth in those records,

the ALJ noted that Dr. Hausknecht examined plaintiff on June 3,

detect neuromuscular abnormalities.” Johns Hopkins Medicine,

Electromyography (EMG), available at

https://www.hopkinsmedicine.org/healthlibrary/test_procedures/neurological/el

ectromyography_92,p07656 (last accessed Aug. 6, 2019). “Radiculopathy

describes a range of symptoms produced by the pinching of a nerve root in the

spinal column.” Johns Hopkins Medicine, Radiculopathy, available at

https://www.hopkinsmedicine.org/healthlibrary/conditions/nervous_system_disor

ders/acute_radiculopathies_134,11 (last accessed Aug. 6, 2019).

6 Although not noted by the ALJ, plaintiff also underwent an MRI of her

left shoulder in April 2013, which revealed tendinosis, but no muscle tears.

(Stip. ¶ 7 (citing Tr. 259-60, 261-62).)

2013. (Tr. 14.) Dr. Hausknecht diagnosed “cervical derangement

with C3-4 through C6-7 disc bulges, lumbosacral derangement with

L5-S1 disc herniation, left shoulder and wrist arthropathy and

aggravation of underlying degenerative joint disease. (Stip. ¶

8 (citing Tr. 268); accord Tr. 14.) Dr. Hausknecht also noted

that plaintiff “exhibited muscle weakness and hypoesthesia,” or

numbness, “to light touch in a left C5-C6-C7 distribution.”

(Stip. ¶ 8 (citing Tr. 267); accord Tr. 14.) “He recommended

that [p]laintiff continue physical therapy and prescribed

Tramadol for pain as needed.” (Stip. ¶ 8.) Dr. Hausknecht

opined that plaintiff was totally disabled. (Tr. 14.)

ii. Dr. Wilson

The ALJ also noted that Dr. Stephen Wilson examined

plaintiff. (Tr. 14.) The parties note that Dr. Wilson is a

physiatrist and that he examined plaintiff on March 7, 2013.

(Stip. ¶ 3.) Dr. Wilson diagnosed derangement, myofascial pain

syndrome, and muscle and ligament strains and sprains affecting

plaintiff’s cervical, thoracic, and lumbar spine. (Tr. 14

(citing Tr. 248-53).) Dr. Wilson also diagnosed left shoulder

and wrist derangement and opined that plaintiff had a “moderate

partial disability.” (Id.)

iii. Dr. Han

Next, the ALJ noted that Dr. Ji Han, who the parties

note is an anesthesiologist, examined plaintiff in September

2013. (Tr. 15; Stip. ¶ 12.) Dr. Han noted, in relevant part,

limited flexion in plaintiff’s cervical and lumbar spine, as

well as muscle tenderness in plaintiff’s trapezius and lumbar

region and muscle spasms in plaintiff’s trapezius. (Tr. 15

(citing Tr. 277-81); see also Stip. ¶ 12 (discussing Dr. Han’s

findings).) Dr. Han also noted positive straight leg raise

tests and diminished sensation at plaintiff’s L5 and S1

vertebrae. (Tr. 15 (citing Tr. 279); accord Stip. ¶ 12.) Dr.

Han administered an epidural steroid injection, (Tr. 15

(citation omitted); accord Stip. ¶ 12 (citing Tr. 281-84)),

which the parties agree plaintiff tolerated and provided

significant pain relief. (Stip. ¶ 12.) The ALJ noted that

plaintiff had also received “chiropractic manipulation and

trigger point injections into the cervical region,” and that her

neck pain “was described as improved.” (Tr. 15 (citing Tr. 247-

357).)

The ALJ also noted that Dr. Han completed a residual

functional capacity assessment of plaintiff in July of 2014.

(Tr. 18 (citing Tr. 445-55).) He opined that plaintiff could

sit for up to 6 hours, and stand and/or walk for up to 2 hours,

in each case in an 8-hour day. (Id. (citing Tr. 448).)

Additionally, Dr. Han opined that plaintiff could lift and/or

carry up to 10 pounds occasionally and push and/or pull no more

than 20 pounds. (Id. (citing Tr. 448-49).)

iv. Dr. Seldes

Additionally, the ALJ noted that plaintiff had

undergone left shoulder surgery in June of 2013. (Tr. 15

(citing Tr. 382-440).) The record indicates that Dr. Richard

Seldes performed the surgery. (Tr. 377-79.) In discussing the

procedure, the ALJ observed that records from a June 2013 pre-

surgical examination resulted in normal findings including, in

relevant part, that plaintiff had “no spinal tenderness or

spasm, negative straight leg raising, . . . [and] a normal

gait.” (Tr. 15 (citing Tr. 400-03).) The surgery was an

“arthroscopic acromioplasty debridement of a SLAP tear,

debridement of a cuff tear, distal clavicle excision, and a left

shoulder injection.”7 (Id.; see also Stip. ¶ 9 (discussing

surgery and citing surgical records at Tr. 377-79).)

After plaintiff’s surgery, she underwent a regime of

physical therapy and Celebrex for pain relief and received

follow-up evaluations by Dr. Seldes. (Tr. 15 (citations

omitted).) The ALJ specifically noted a December 2013

examination by Dr. Seldes, in which he found some tenderness and

stiffness, and recommended ongoing physical therapy. (Id.

7 “A SLAP tear is an injury to the labrum of the shoulder, which is the

ring of cartilage that surrounds the socket of the shoulder joint.” American

Academy of Orthopaedic Surgeons, SLAP Tear, available at

https://orthoinfo.aaos.org/en/diseases--conditions/slap-tears/ (last accessed

Aug. 6, 2019).

(citing Tr. 369).) Although not noted by the ALJ, Dr. Seldes’s

examination report also states that he recommended that

plaintiff continue to take Celebrex for pain, and administered a

cortisone injection to plaintiff’s left shoulder. (Tr. 369.)

v. Drs. Mikelis and Lattuga

The ALJ further noted evaluations by two physicians

associated with New York Spine Specialists, Drs. Demetrios

Mikelis and Sebastian Lattuga. (Tr. 15-16; see also Stip. ¶¶

21, 23.) Dr. Mikelis examined plaintiff in April 2014. (Tr.

15; see also Stip. ¶ 21 (citing Tr. 362-64).) Plaintiff

complained of lower back and left shoulder pain, and reported

that epidural injections had not alleviated her back pain. (Tr.

15; accord Tr. 362.) Dr. Mikelis found restricted ranges of

motion, tenderness and spasms, and altered sensation in

plaintiff’s lumbar and cervical spine. (Tr. 15-16; accord Tr.

363.) Dr. Mikelis also found abnormal reflexes in plaintiff’s

upper and lower extremities. (Id.) He diagnosed cervical spine

pain with a nerve root impingement, a lumbar disc herniation,

and left lumbar radiculopathy. (Tr. 16; accord Tr. 363.)

Plaintiff opted to treat these conditions conservatively. (Tr.

16; accord Tr. 363-64.)

Dr. Lattuga examined plaintiff in May 2014, and

obtained similar results to those obtained by Dr. Mikelis. (Tr.

16; see also Tr. 360.) Like Dr. Mikelis, Dr. Lattuga diagnosed

cervical spine pain with nerve root impingement, a lumbar disc

herniation, and left lumbar radiculopathy. (Tr. 16; accord Tr.

360.) Additionally, Dr. Lattuga directed plaintiff to “refrain

from any activity that exacerbates symptoms such as heavy

lifting, carrying or bending and follow-up as instructed for a

repeat evaluation.” (Tr. 16 (quoting Tr. 361).)

vi. Dr. Fkiaras

Plaintiff underwent an examination by Dr. John

Fkiaras, a state agency consultant, on June 24, 2014. (Id.; see

also Stip. ¶ 24 (citing Tr. 365-68).) The ALJ wrote that Dr.

Fkiaras noted that plaintiff had a slow and mildly antalgic

gait, and that her cervical spine had full and pain-free motion

in all directions. (Tr. 16; accord Tr. 366-67.) Dr. Fkiaras

also noted limited flexion in plaintiff’s lumbar spine, left

shoulder, and hips, as well as full motion in plaintiff’s right

shoulder. (Tr. 16; accord Tr. 367.) Dr. Fkiaras also found

some decreased sensation to light touch of the left upper

extremity and over the left lateral thigh, but no other sensory

deficits. (Tr. 16-17; accord Tr. 367.)

Dr. Fkiaras diagnosed low back pain, left shoulder

pain, and diabetes. (Tr. 17; accord Tr. 368.) Additionally,

Dr. Fkiaras opined that plaintiff “has a moderate limitation

walking, climbing stairs, and standing,” “is restricted from any

lifting, carrying[,] pushing, pulling, squatting, kneeling,

crouching, and bending,” “has a moderate limitation sitting

extended periods,” and “has a moderate to severe limitation

reaching with her upper left extremity.” (Tr. 17 (quoting Tr.

368).)

vi. Dr. Sure

The ALJ considered treatment records from Dr. Hertzel

Sure, who saw plaintiff several times from 2013 through 2016.

(Tr. 16; see also Stip. ¶¶ 16, 20, 22, 25, 28-30 (citations

omitted); Tr. 475 (exam notes from 2016).) One of these

records, generated following a January 2014 examination, noted

plaintiff’s history of diabetes and described it as

“uncomplicated.” (Tr. 16; accord Tr. 482.) Additionally, Dr.

Sure’s records indicate that plaintiff was obese, but that Dr.

Sure found “no adverse manifestations” arising from plaintiff’s

obesity. (Tr. 16.) The ALJ observed that in April 2014,

plaintiff reported “no active complaints” to Dr. Sure, and that

in July 2014, plaintiff’s primary complaint was tooth pain and

her examination results were unremarkable. (Id.; accord Tr.

489, 493.)

Additionally, the ALJ noted that plaintiff’s December

2014 visit to Dr. Sure resulted in a finding that she was fit to

undergo knee surgery to repair her torn meniscus. (Tr. 17; see

also Stip. ¶ 28 (citing Tr. 499-501).) Plaintiff also visited

Dr. Sure in April 2015 and complained of body aches, itchiness,

headaches, finger stiffness, insomnia, and inability to

concentrate. (Tr. 17.) The April 2015 examination results

were, in part, positive for joint pain, but negative for back

pain and limitation of motion. (Id.; accord Tr. 502.) In

connection with plaintiff’s April 2015 visit, Dr. Sure diagnosed

dermatitis, obesity, a meniscal injury, insomnia, diabetes, and

migraine headaches. (Tr. 17; accord Tr. 503.)

As the ALJ noted, plaintiff returned to Dr. Sure in

May 2015 with complaints of “whole body pain,” headaches, and

finger numbness and tingling and July 2015 with complaints of

swelling in her hands and feet. (Tr. 17; see also Tr. 508-09

(May 18, 2015 examination notes), Tr. 512-14 (July 19, 2015

examination notes).) The July 2015 examination notes indicate

that plaintiff suffered from fibromyalgia, but indicate no

neurological deficits, muscle tenderness, or muscle spasm. (Tr.

17; accord Tr. 512-13.)

Dr. Sure again examined plaintiff in August 2015, and

the examination again produced “negative results.” (Tr. 17; see

also Tr. 515-16.) In September 2015, plaintiff visited Dr. Sure

complaining of hand pain, and examination results were unchanged

as compared to August 2015. (Tr. 17; see also Tr. 517-19.)

Plaintiff returned to Dr. Sure in November 2015, reporting

dizziness and blurred vision, and was referred to the emergency

room to rule out a stroke. (Tr. 17, 528-30; accord Stip. ¶ 30.)

Plaintiff was subsequently admitted to Long Island Jewish

Medical Center, where she was diagnosed with palpitations with

near syncope. (Tr. 17 (citing Tr. 458-73).) Dr. Sure’s

November 2015 examination notes were unremarkable except for a

gait abnormality. (Id.; see also Tr. 528-30 (November 17, 2015

examination report).)

Additionally, in March 2016, Dr. Sure examined

plaintiff in the context of a follow-up for fibromyalgia with

body pain. (Tr. 17.) Dr. Sure’s treatment notes indicate that

a review of systems was positive for back pain, joint pain,

limitation of motion, and stiffness, but that Dr. Sure’s

examination revealed a normal spinal range of motion and no

muscle tenderness or spasms. (Id.; see also Tr. 523-25 (March

23, 2016 examination notes).) The following month, April 2016,

plaintiff returned to Dr. Sure complaining of lower back and

right shoulder pain related to a motor vehicle accident.8 (Tr.

17; see also Tr. 534-37 (April 3, 2016 examination notes).) Dr.

Sure diagnosed polyneuropathy, back pain, fibromyalgia, and

right shoulder pain. (Tr. 17; accord Tr. 536.) Dr. Sure again

examined plaintiff in May 2016 and found, in relevant part, a

normal range of motion in plaintiff’s spine, and right shoulder

8 The ALJ wrote that the motor vehicle accident occurred “a year earlier”

relative to the April 2016 examination, (Tr. 17), but the examination notes

indicate that the motor vehicle accident occurred “>1 yr,” or more than one

year, prior to the examination, (Tr. 534).

tenderness with restricted range of motion. (Tr. 17-18; see

also Tr. 475-78 (May 1, 2016 examination report).)

3. The ALJ’s Determination

The ALJ concluded that plaintiff’s medically

determinable impairments could reasonably be expected to cause

plaintiff’s alleged symptoms, although the ALJ did not identify

the symptoms and limitations that plaintiff alleged. (Tr. 18.)

The ALJ further concluded that plaintiff’s “statements

concerning the intensity, persistence and limiting effects of

[her] symptoms are not entirely consistent with the medical

evidence and other evidence in the record,” but did not identify

or summarize the relevant statements by plaintiff. (Id.)

The ALJ identified medical records relevant to

plaintiff’s various impairments, including her neck and lower

back impairments, right and left shoulder impairments, left knee

and wrist impairments, diabetes, obesity, asthma, and

fibromyalgia. (See Tr. 18-20 (citations omitted).) The ALJ

also noted plaintiff’s treatment, including her arthroscopic

surgery, trigger point and steroid injection therapy, physical

therapy, and chiropractic manipulation. (Tr. 20.)

Additionally, the ALJ noted plaintiff’s activities of daily

living, including her ability to perform “at least some ordinary

chores, such as cooking and shopping, once or twice a week,” as

well as plaintiff’s independence in hygiene and self-care, and

ability to engage in sedentary recreational activities. (Id.)

The ALJ also weighed medical opinion evidence and set

forth her reasons for the weight accorded to the relevant

opinions. Dr. Hausknecht’s opinion was given “very limited

weight” because it was “based more on [plaintiff]’s self-

description of her symptoms rather than the objective findings

reached on a single physical examination or results of

diagnostic testing.” (Id.) Additionally, Dr. Hausknecht’s

opinion was reached prior to plaintiff’s June 2013 shoulder

surgery and her receipt of other forms of treatment, including

chiropractic manipulation, physical therapy, and injections, all

of which improved plaintiff’s functioning. (Id.)

Dr. Wilson’s opinion that plaintiff had a moderate

partial disability was given “some weight,” because it was

“somewhat vague,” used terms “that are not employed by the

Commissioner,” and was “based on only two physical examinations

performed in 2013,” but was “generally consistent with the

evidence of record.” (Id.) Additionally, Dr. Fkiaras’s opinion

was given no weight because it was “too restrictive given the

overall evidentiary record.” (Id.) The ALJ specifically noted

that Dr. Fkiaras opined that plaintiff could not lift, carry,

push, pull, or squat, but Dr. Han concluded otherwise a month

later. (Id.) The ALJ also noted an internal inconsistency, as

Dr. Fkiaras wrote that plaintiff could perform most ordinary

household chores other than cleaning and laundry, and that she

could independently clean herself and complete self-care. (Id.)

Dr. Han’s opinion was given “significant weight . . .

with the exception that the [ALJ] f[ound] that it [wa]s not

restrictive enough, particularly in light of [plaintiff’s]

shoulder impairment and radiculopathy impairment.” (Tr. 21.)

Additionally, Dr. Lattuga’s opinion that plaintiff was to

refrain from heavy physical exertion was given “significant

weight” because of its consistency with the evidence. (Id.)

Based on the foregoing evidence and weighing of expert

opinions, the ALJ concluded that plaintiff had the RFC to

perform “sedentary work as defined in 20 CFR § 404.1567(a)

except that she can sit for up to 6 hours in an 8-hour workday,

stand and/or walk for up to 6 hours in an 8-hour workday, as

well as lift and/or carry and push and/or pull no more than 10

pounds occasionally. [Plaintiff] cannot operate foot controls

using the left foot. [Plaintiff] can use hand controls

frequently. [Plaintiff] can reach overhead occasionally, and

frequently handle and finger objects. She can occasionally

climb ramps and stairs, but never climb ladders, ropes or

scaffolds. She can occasionally stoop, but never kneel or

crawl. She must avoid concentrated exposure to dust, odors,

fumes and pulmonary irritants.”9 (Tr. 13.)

C. Past Relevant Work Analysis

The ALJ also noted plaintiff’s past relevant work with

reference to the U.S. Department of Labor’s Dictionary of

Occupational Titles (“DOT”). (Tr. 21.) As relevant to the

instant appeal, the ALJ wrote that plaintiff “ha[d] . . . worked

as a daycare supervisor which is sedentary work under DOT

092.167-010, but was actually performed at a medium level of

exertion by [plaintiff],” and that the work “is a skilled

occupation” with a specific vocational preparation of 7. (Id.)

Plaintiff, however, testified that she worked as a

“family worker,” not as a “daycare supervisor.” (Tr. 43-47, 49-

50.) The conclusion that plaintiff’s “family worker” employment

was employment as a “daycare supervisor” is based on the

testimony of vocational expert Bruce Martin (“VE Martin”), who

testified that he was “able to classify the [past work]

positions that [plaintiff] testified to,” and that those jobs

were “psychiatric aide,” “retail manager,” “daycare supervisor,”

9 Although the ALJ gave “significant weight” to Dr. Han’s opinion,

including his opinion that plaintiff could stand and/or walk for up to two

hours in an eight-hour day (Tr. 18 (citing Tr. 448)), the ALJ concluded that

plaintiff could stand and/or walk for up to six hours in an 8-hour day.

(Id.) It appears to the court that this in fact was a typographical error

rather than a departure from Dr. Han’s opinion requiring an explanation of

good reasons.

and “teacher’s aide,” in each case as defined in the DOT. (Tr.

62.)

In addition to providing testimony regarding

plaintiff’s past employment, VE Martin testified that a

hypothetical individual of plaintiff’s age and education and

with additional limitations as set forth by the ALJ could work

as a daycare supervisor. (Tr. 62-63.) VE Martin also testified

that the hypothetical individual with which he was presented

could work as a “document preparer,” “telephone quotation

clerk,” and “inspector,” in each case as defined in the DOT.

(Tr. 63-64.) Based on VE Martin’s testimony, the ALJ concluded

that plaintiff could return to past relevant work as a daycare

supervisor.

III. Plaintiff’s Contentions

On appeal, plaintiff asserts that substantial evidence

does not support the ALJ’s RFC determination. (Pl. Mem. 13-16.)

Additionally, plaintiff asserts that the ALJ erred in evaluating

plaintiff’s past relevant work. (Id. at 11-13.)

A. Lack of Substantial Evidence for the RFC Determination

Plaintiff asserts that although “[t]he ALJ concluded

that . . . plaintiff can do essentially a full range of

sedentary activities[,] [t]he evidence suggests otherwise,” (id.

at 13), specifically, that “plaintiff is not able to engage in

regular sedentary work,” (id. at 16 (emphasis in quoted

material)).

First, plaintiff refers to, but does not cite,

“objective tests – MRIs, EMG – [which] show extensive disc

disease in the cervical and lumbar spine; substantial damage to

the left knee, the wrists, and the left shoulder; and

significant neurological deficits.” (Id. at 13.) Plaintiff

also refers to, but does not cite, clinical examinations showing

“spasm; limited motion of the neck and back; diminished strength

and sensation of the extremities; abnormal reflexes of the

extremities.” (Id.) Plaintiff asserts, in a conclusory manner

and without explanation, that the foregoing objective tests and

examination findings, which plaintiff does not expressly

identify with record citations, are “highly supportive of the

assessment of Dr. Fkiaras, the Commissioner’s consulting

examiner.” (Id. at 14.) Plaintiff also asserts that the

foregoing objective findings support Dr. Hausknecht’s opinion

that plaintiff is “totally disabled.” (Id.)

Second, plaintiff takes issue with the ALJ’s treatment

of Dr. Han’s opinion that plaintiff can sit for six hours and

stand and/or walk for two hours, in each case in an eight-hour

day, and can lift and/or carry ten pounds. (See id.) Plaintiff

contends that the foregoing limitations are “not consistent with

[Dr. Han’s] treatment records.” (Id.) In support of her

contention, plaintiff notes that Dr. Han reported that plaintiff

“complain[ed] of low-back and left-leg pain – sharp, shooting,

and throbbing, accompanied by intermittent numbness and

tingling.” (Id.) Plaintiff also quotes Dr. Han’s notations

that plaintiff’s “[p]ain is worse with prolonged sitting,

standing, and walking,” that plaintiff “achieved ‘minimal relief

with rest and medication,’” and that plaintiff “has ‘difficulty

with everyday activities.’” (Id. (quoting Tr. 452).)

Plaintiff also asserts that Dr. Han’s opinion fails to

address “postural restrictions that may interfere with regular

sedentary employment, e.g., the need periodically to change

positions from sitting to standing because of pain or

discomfort.” (Id.) Nor, according to plaintiff, does Dr. Han’s

opinion address plaintiff’s ability to “do sedentary work each

and every day, on a sustained basis.” (Id.)

Third, plaintiff takes issue with the ALJ’s analysis

of plaintiff’s activities of daily living. According to

plaintiff, in “[s]eeking to find support for h[er] position,”

i.e., her RFC determination, “the ALJ cite[d] plaintiff’s

ability to perform ‘at least some ordinary chores’ such as

cooking, shopping, attending to personal hygiene, watching

television, listening to [the] radio, and reading.” (Id. at

15.) Plaintiff notes that she testified that her husband and

daughter generally do chores and assist plaintiff with other

activities of daily living. (Id.) Moreover, plaintiff contends

that “a person’s ability to do sporadic household chores–at her

own pace, and in the manner and at the times of her choosing–is

hardly the measure of a capacity for regular, sustained

employment.” (Id. (citations omitted).)

B. Lack of Substantial Evidence for Past Relevant Work

Determination

Plaintiff asserts that the ALJ erred in concluding

that plaintiff’s past relevant work included time as a “daycare

supervisor” and that plaintiff could return to this work. (Id.

at 11-13.) According to plaintiff, she testified that she was a

“family worker,” but VE Martin “insisted that the job was in

fact ‘daycare supervisor.’” (Id. at 11.) Plaintiff contends

that the conclusion that she was a daycare supervisor is

incorrect.

In support of the foregoing contention, plaintiff

observes the DOT entry to which the VE cited “relates to a

supervisor who manages and directs the full gamut of daycare

operations” and “is a skilled position, with a[] . . . specific

vocational preparation . . . of 7, requiring 2-4 years of

training.” (Id.) Plaintiff notes that she, however, “had no

such training and no such duties,” as she merely “visited home-

based daycare centers to ascertain compliance with . . . rules

and regulations, to check menus, to assist with various chores,”

but “was not involved in matters of curriculum and teaching.”

(Id. (emphasis in quoted material).) Thus, plaintiff asserts,

she was “an inspector and a worker, not a manager or director.”

(Id. at 11-12.)

Plaintiff also asserts that, if her “family work” was

performed at the medium or light level, then she would be

precluded performing her past jobs in light of her RFC to

perform sedentary work only. (Id. at 12-13.) Therefore,

plaintiff contends, she met her burden at step four of the five-

step sequential evaluation to show that she is incapable of

performing past relevant work, and should be found disabled

absent evidence of the existence of other jobs that plaintiff

could perform and which exist in substantial numbers in the

economy. (Id. at 13.)

Finally, plaintiff notes that she reached age 50 on

June 30, 2016, prior to the date on which the ALJ Decision was

issued. (Id.) Plaintiff thus became a “person ‘closely

approaching advanced age’” within the meaning of 20 C.F.R.

404.1563(d) as of that date. (Id.) Plaintiff contends that her

“medical-vocational” profile would place her squarely within the

ambit of 20 C.F.R., Part 404, Subpart P, Appendix 2, Rule 201.14

(Table 1) as of her 50th birthday, and that a finding that

plaintiff is disabled is therefore mandatory even if plaintiff

is capable of sedentary work.10 (Id.)

IV. Defendant’s Contentions

A. Substantial Evidence Supports the ALJ’s RFC

Determination

Defendant counters that substantial evidence supports

the ALJ’s RFC determination. (Def. Mem. 16-23.) With respect

to the ALJ’s conclusion that plaintiff can sit, stand and walk

up to six hours per eight-hour workday, defendant notes that

“Dr. Han and Dr. Sure repeatedly found that [p]laintiff had a

normal gait and showed no difficulties walking.” (Id. at 16

(citing Tr. 278, 286, 453, 476, 479, 480, 485, 487, 494, 496,

497, 500, 503).) Defendant also notes that Dr. Sure “counseled

plaintiff about the importance of taking a brisk thirty-minute

walk every day.” (Id. at 16-17 (citing Tr. 530).)

Additionally, the record “contains repeated findings of . . .

either slightly reduced and/or full motor strength in

[p]laintiff’s upper and lower extremities.”11 (Id. at 17 (citing

Tr. 249, 278-79, 287, 360, 367-68, 454, 476, 482, 485, 487).)

10 The rule to which plaintiff cites provides that a finding of disability

is mandatory where a claimant is “closely approaching advanced age,” his or

her education is that of a “[h]igh school graduate or more” and “does not

provide for direct entry into skilled work,” and his or her previous work

experience is “skilled or semiskilled” but his or her “skills [are] not

transferable.”

11 Defendant also notes plaintiff’s “negative straight leg raises,” (Def.

Mem. 17 (citation omitted)), but the straight leg raise test is used to test

for nerve impingement in the lower back, not to test a patient’s ability to

walk. See, e.g., Bradley J. Sandella, How Is the Straight Leg Raise Test

Defendant further asserts that the consulting

examiner, Dr. Fkiaras, wrote that plaintiff “needed no help

getting on and off the examination table, used no assistive

devices, and could rise from her chair without any difficulty.”

(Id. (citing Tr. 366).) Additionally, although no medical

opinion specifically states that plaintiff can walk for six

hours per day, “the ALJ’s determination need not perfectly

correspond with any medical source opinion cited in her

decision; instead, the ALJ makes her RFC determination based on

the record as a whole.” (Id. (citing Matta v. Astrue, 508 F.

App’x 53, 56 (2d Cir. 2013)).)

Defendant also cites evidence in the record that

defendant contends supports the ALJ’s conclusion that plaintiff

could lift, carry, push and pull up to ten pounds occasionally,

could reach occasionally, and could frequently handle and finger

objects. (See id. at 17-18.) Specifically, defendant cites

“repeated findings that [p]laintiff had full strength or near

full[] strength in her upper extremities,” (id. at 17 (citing

Tr. 279, 287, 360, 367-68, 454, 476, 482, 485, 487)), “including

[Dr. Fkiaras’s] specific[] observation that [p]laintiff’s hand

Performed in the Evaluation of Low Back Pain (LBP)?, Medscape, available at

https://www.medscape.com/answers/2092651-119397/how-is-the-straight-leg-

raise-test-performed-in-the-evaluation-of-low-back-pain-lbp (last accessed

Aug. 6, 2019).

and finger dexterity were intact and that she had full bilateral

grip strength,” (id. (citing Tr. 368)).

Defendant also notes that plaintiff’s neck MRI showed

only mild disc bulging but no herniations, stenosis, or cord

lesions, (id. at 17-18 (citing Tr. 263)), and plaintiff’s back

MRI showed only a small central disc herniation, no lateral disc

herniation, no spinal stenosis, and no bony lesions, (id. at 18

(citing Tr. 264)). Defendant further notes that after

undergoing left shoulder surgery in June 2013, plaintiff had

only mild-to-moderate pain in her left shoulder and that

plaintiff herself stated that she could lift up to 10-15 pounds.

(Id. (citing Tr. 371 (record of post-surgery follow-up visit to

Dr. Seldes regarding left shoulder surgery) and Tr. 204

(plaintiff’s function report)).)

Defendant further contends that the ALJ properly

weighed opinion evidence regarding plaintiff’s RFC. (Id. at 18-

22.) According to defendant, Dr. Han’s opinion regarding

plaintiff’s functional limitations, which the ALJ gave

“significant weight,” is consistent with the foregoing evidence

regarding plaintiff’s gait, straight leg test results, and motor

strength. (Id. at 19 (citations omitted).) Additionally, to

the extent Dr. Han’s opinion was not consistent with evidence

regarding plaintiff’s shoulder impairment and resulting

limitations, the ALJ “adjusted the RFC accordingly.” (Id.

(citing Tr. 21).) Defendant further contends that the ALJ

properly weighed Dr. Lattuga’s opinion that plaintiff should

refrain from heavy lifting, carrying, or bending because this

opinion was consistent with the overall evidence, and despite

evidence indicating strength in plaintiff’s extremities and

reports that plaintiff’s back pain was alleviated through an

epidural, the record contains significant evidence that

plaintiff’s condition was exacerbated by heavy exertion. (Id.

at 19-20 (citations omitted).) Defendant also notes that Dr.

Lattuga’s opinion is consistent with the limitations set forth

in Dr. Han’s opinion. (Id. at 20 (citations omitted).)

Defendant further contends that the ALJ properly

weighed Dr. Wilson’s opinion that plaintiff has a “moderate

partial disability.” (Id. (citing Tr. 20); see also Tr. 248-52

(Dr. Wilson’s opinion).) According to defendant, Dr. Wilson’s

conclusion that plaintiff has a moderate partial disability is

“vague,” employs the concept of “partial disability,” which is

not recognized under the Act, and consequently “provides little

helpful information about the functional limitations, if any”

resulting from plaintiff’s impairments. (Def. Mem. 20.)

Additionally, as the ALJ noted, the treatment relationship

between Dr. Wilson and plaintiff was limited, as Dr. Wilson

examined plaintiff on only two occasions. (Id.) Further, the

ALJ noted that Dr. Wilson’s examination findings were consistent

with other evidence, including later treatment records. (Id.)

In particular, Dr. Wilson noted reduced to full muscle strength

in plaintiff’s upper and lower extremities, as well as limited

range of motion in her neck (cervical spine) and left

extremities. (Id. at 20-21 (citing Tr. 250-51).)

Additionally, defendant argues that the ALJ did not

err in affording “very little weight” to Dr. Hausknecht’s

opinion and “no weight” to Dr. Fkiaras’s opinion. (Id. at 21-

22.) With respect to Dr. Hausknecht, defendant notes that his

statement that plaintiff is “totally disabled” is an opinion on

an issue reserved to the Commissioner and is not entitled to any

special deference. (Id. at 21 (citing 20 C.F.R. § 404.1527 and

Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)).) Defendant

also asserts that the ALJ “properly noted that Dr. Hausknecht

based his opinion on a single examination on June 3, 2013, prior

to [p]laintiff’s corrective shoulder surgery later tha[t]

month,” and prior to plaintiff’s subsequent steroid injections,

physical therapy, and chiropractic treatment. (Id. (citing Tr.

20, 267, 286-87, 336-42).) Additionally, defendant notes that

Dr. Seldes’s treatment records indicate that plaintiff’s left

shoulder range of motion increased and she reported

“significant” lower back relief and improved activities of daily

living and function after receiving injections. (Id. (citing

Tr. 373-74 (range of motion), Tr. 285 (lower back relief and

improved daily living).)

With respect to Dr. Fkiaras, defendant asserts that

the “extreme limitations set forth in Dr. Fkiaras’s opinion,

such as no lifting, pulling, pushing, or carrying were not

consistent with the overall evidence” in the record, and is

inconsistent with Dr. Han’s opinion, which was rendered only one

month later. (Id. at 21-22 (citing Tr. 365-68, 448-49 (Dr.

Fkiaras and Dr. Han opinions)).) Further, although Dr. Fkiaras

opined that plaintiff could do no lifting or carrying, plaintiff

herself reported that she could carry up to 10-15 pounds, and

clinical evidence supports this report. (Id. at 21 (citing Tr.

204).) Defendant also asserts that Dr. Han was “a treating

physician who examined [p]laintiff multiple times,” and that

consequently Dr. Han’s opinion is “properly given great

consideration,” including relative to Dr. Fkiaras’s opinion.

(Id. at 22 (citing Pl. Mem. 14 and 20 C.F.R § 404.1527(c)).)

B. Substantial Evidence Supports the ALJ’s Past Relevant

Work Determination

Defendant also asserts that the ALJ’s inquiry

regarding plaintiff’s past relevant work at step four was

proper. Defendant notes that an ALJ may consult with a

vocational expert at step four so long as the ALJ does so in

accordance with 20 C.F.R. § 404.1560(b)(2) and the assumptions

upon which the expert bases his or her opinion are supported by

substantial evidence. (Id. at 24 (citing, in relevant part,

McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014)).)

According to defendant, “[h]ere, the ALJ asked . . .

VE [Martin] to classify [p]laintiff’s prior work in accordance

with the [DOT],” and VE Martin “testified that [p]laintiff’s

past work as a family worker would be classified as a daycare

supervisor, which is DOT number 092.167-010.” (Id.) The ALJ

further testified that plaintiff actually performed that work at

the medium exertional level, although the job is generally

performed as sedentary work. (Id. (citing Tr. 62).)

Additionally, the ALJ presented a hypothetical person

to VE Martin and asked VE Martin to opine as to whether the

hypothetical person could work as a daycare supervisor as that

work is generally performed in the national economy. (Id.

(citing Tr. 64).) Defendant contends that the hypothetical that

the ALJ presented the VE is more restrictive than the RFC set

forth in the ALJ’s decision, because the hypothetical “did not

include the finding that [p]laintiff could stand/walk for six

hours out of an eight-hour day, and it included a finding that

plaintiff could never reach overhead, as opposed to the ultimate

RFC finding that [p]laintiff could occasionally reach overhead.”

(Id. at 24-25 (citing Tr. 13, 62-64).).

Defendant also points to statements and testimony by

plaintiff that defendant contends support the ALJ’s conclusion

that plaintiff worked as a daycare supervisor. (Id. at 25-26.)

Specifically, defendant contends that “[p]laintiff stated on

three occasions that [her past work] was a supervisory position,

specifically stating that she supervised 12 family daycares.”

(Id. at 25 (citing Tr. 48, 68, 236).) Additionally, defendant

contends that plaintiff’s description of her job duties as a

“family worker” is consistent with the DOT’s description of the

“daycare supervisor” position. (Id. at 25-26 (citations

omitted).) Defendant points to the following excerpt from

plaintiff’s testimony before the ALJ, in which plaintiff

describes her work as a family worker:

I had to go [to the daycare facilities] and

visit, make sure . . . they had everything to

code, and then we allowed them to open. I made

sure they had their sections for the children

that were properly done, and had the proper

things in place . . . Then I used to go maybe two

or three times a week to their family daycares

just to check. I used to sit and make sure their

menus were good, and that the children were okay,

and that they were following protocol.

(Id. (quoting Tr. 46).)

Additionally, plaintiff “clarified at the hearing”

that on her visits, she provided daycare facilities with

suggestions about their work, including regarding menu planning,

and that although she did not actually hire or fire employees,

she prepared the necessary paperwork. (Id. at 26 (citing Tr.

42, 68).)

Finally, defendant asserts that even if plaintiff’s

position was not classified properly, the VE identified three

other positions that the hypothetical person could perform.

(Id. (citing Tr. 63-64).) Thus, according to defendant,

plaintiff is capable of performing jobs that exist in the

national economy and is not disabled. (Id.)

DISCUSSION

I. Applicable Law and Legal Standards

A. Judicial Review Generally

A court’s review of the Commissioner’s final decision

as to a plaintiff’s disability is not de novo, and the court can

enter a judgment affirming, modifying or reversing the

Commissioner’s final decision with or without remanding the

case. Filicomo v. Chater, 944 F. Supp. 165, 168 (E.D.N.Y.

1996); see also 42 U.S.C. § 405(g).

B. The Substantial Evidence Standard

A district court’s review of the Commissioner’s final

decision is limited to determining whether the Commissioner’s

conclusions were based on the correct legal standard and were

supported by substantial evidence in the record. Talavera v.

Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (citing Lamay v. Comm’r

of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)). 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. Talavera, 697 F.3d at 151 (citing

Richardson v. Perales, 402 U.S. 389, 401 (1971)). In

determining whether the Commissioner’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, 697 F.3d 145, 151; see also Mongeur v. Heckler, 722

F.3d 1033, 1038 (2d Cir. 1983).

If the court finds that there is substantial evidence

supporting the Commissioner’s decision, the decision must be

upheld even if there is also substantial evidence for the

plaintiff’s position. See Alston v. Sullivan, 904 F.2d 122, 126

(2d Cir. 1990); see also DeChirico v. Callahan, 134 F.3d 1177,

1182 (2d Cir. 1998) (affirming Commissioner’s decision where

substantial evidence supported both sides). The rule that the

Commissioner’s findings of fact, as well as the inferences and

conclusions to be drawn from those findings, are conclusive

applies even in those instances where a reviewing court’s

independent analysis of the evidence may differ from the

Commissioner’s analysis. See Rutherford v. Schweiker, 685 F.2d

60, 62 (2d Cir. 1982)

C. Five-Step Sequential Evaluation Process

To be eligible for disability benefits under 42 U.S.C.

§ 423, the claimant must establish his “inability to engage in

any substantial gainful activity by reason of any medically

determinable physical or mental impairment which . . . has

lasted or can be expected to last for a continuous period of not

less than twelve months” and the impairment must be 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 kind of substantial gainful work which exists in

the national economy.” 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A);

see also Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).

Additionally, to qualify for disability benefits, “an applicant

must be insured for disability insurance benefits” at the time

of onset. Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989)

(quoting 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1)).

The Commissioner’s regulations prescribe the following

five-step framework for evaluating disability claims:

First, the Commissioner considers whether the

claimant is currently engaged in substantial

gainful activity. If he is not, the Commissioner

next considers whether the claimant has a “severe

impairment” which significantly limits his

physical or mental ability to do basic work

activities. If the claimant suffers such an

impairment, the third inquiry is whether, based

solely on medical evidence, the claimant has an

impairment which is listed in Appendix 1 of the

regulations. If the claimant has such an

impairment, the Commissioner will consider him

[per se] disabled . . . . Assuming the claimant

does not have a listed impairment, the fourth

inquiry is whether, despite the claimant’s severe

impairment, he has residual functional capacity

to perform his past work. Finally, if the

claimant is unable to perform his past work, the

burden of proof shifts to the Commissioner to

determine whether there is other work which the

claimant could perform.

Talavera, 697 F.3d at 151; see also 20 C.F.R. §§ 404.1520(a),

416.920(a).

II. Application

A. The ALJ’s RFC Determination

Between step three and step four of the five-step

disability evaluation process, the ALJ must determine a

claimant’s residual functional capacity, or RFC. A claimant’s

RFC is based on all the relevant evidence of record, which

includes the claimant’s credible testimony regarding the

limiting effects of his impairments, both those deemed severe

and non-severe at step two, objective medical evidence

documenting signs and symptoms of impairments and functional

limitations, and medical opinion from treating and consulting

sources regarding the claimant’s ability to function. 20 C.F.R.

§ 404.1545. The RFC assessment also considers exertional and

non-exertional work functions. By definition, sitting,

standing, walking, lifting, carrying, pushing and pulling, are

all deemed “exertional” functions. 20 C.F.R. § 404.1569a(b).

All other functions are deemed “non-exertional” functions.

Pain, and other subjective symptoms related to a medically

determinable impairment (e.g., fatigue), may affect both the

exertional and non-exertional functions of work, and are

factored into the residual functional capacity assessment. 20

C.F.R. § 404.1529.

The ALJ determined that plaintiff had the RFC to

perform sedentary work as defined in 20 C.F.R. § 404.1567(a)

subject to certain additional physical and exertional

limitations. (Tr. 13.) As set forth in the Code of Federal

Regulations (“CFR”), sedentary work

involves lifting no more than 10 pounds at a time

and occasionally lifting or carrying articles

like docket files, ledgers, and small tools.

Although a sedentary job is defined as one which

involves sitting, a certain amount of walking and

standing is often necessary in carrying out job

duties. Jobs are sedentary if walking and

standing are required occasionally and other

sedentary criteria are met.

20 C.F.R. § 404.1567(a).

With respect to plaintiff’s additional limitations,

the ALJ determined that plaintiff can sit for up to six hours in

an eight-hour workday; can stand and/or walk for up to six hours

in an eight-hour workday; can lift and/or carry and push and/or

pull no more than 10 pounds occasionally; cannot operate foot

controls using the left foot; can handle and finger objects and

use hand controls frequently; can occasionally reach overhead,

stoop, and climb ramps and stairs; can never kneel, crawl, or

climb ladders, ropes or scaffolds; and must avoid concentrated

exposure to dust, odors, fumes and pulmonary irritants. (Tr.

13.)

Here, there is substantial evidence to support the

ALJ’s RFC determination. Though it appears the ALJ departed

from Dr. Han’s opinion by concluding plaintiff could stand or

walk for six hours in a given workday, and that such departure

was error in the absence of good reasons, this court finds the

departure is likely a typographical error and, in any event,

harmless. The ALJ correctly articulated Dr. Han’s opinion that

plaintiff could stand and/or walk for up to two hours later in

her decision. (Tr. 18.) Moreover, even if the ALJ departed

without good reason, the ALJ nonetheless determined plaintiff’s

RFC was sedentary, consistent with Dr. Han’s opinion that

plaintiff was limited to two hours of standing or walking in an

eight-hour workday. See SSR 96-9p, 1996 WL 374185 (July 2,

1996) (“Jobs are sedentary if walking and standing are required

occasionally . . . no more than about 2 hours of an 8-hour

workday.”). Thus, the ALJ’s error, whether typographical or

otherwise, was harmless and the ALJ’s RFC determination must

stand.

B. The ALJ’s Past Relevant Work Analysis

To avoid a need for further appeals, the court also

notes error in the ALJ’s step four analysis. At step four, the

Commissioner must determine whether the claimant’s RFC permits

the claimant to perform his or her “past relevant work.” 20

C.F.R. § 404.1520(a)(4)(iv). Past relevant work is “work that

[the claimant] ha[s] done within the past 15 years, that was

substantial gainful activity, and that lasted long enough for

[the claimant] to learn to do it.” 20 C.F.R. § 404.1560(b)(1).

If the claimant can perform his or her past relevant work, the

claimant is not disabled. 20 C.F.R. § 404.1520(f).

Here, the ALJ concluded that plaintiff’s past relevant

work included work as a daycare supervisor, as defined in the

DOT 092.167-010. (Tr. 13.) Plaintiff testified that she had

previously worked as a “family worker,” but VE Martin testified

that this work had been daycare supervisor work as defined in

the DOT, and the ALJ relied on VE Martin’s testimony. There is

not, however, substantial evidence that plaintiff’s past

relevant work included work as a daycare supervisor as defined

in the DOT.

The DOT’s definition of daycare supervisor or director

at occupation code 092.167-010 requires that the person

performing the job “direct[] activities of [a] . . . child

development facility to provide instruction and care for

children” by

[p]reparing and submit[ting] [a] facility budget

to board of trustees, administrative agency, or

owner for approval[;] [a]uthoriz[ing] purchase[s]

of instructional materials and teaching aids,

such as books, toys, and games designed to

stimulate learning[;] [i]nterview[ing] and

recommend[ing] hiring of teaching and service

staff[;] [c]onfer[ing] with parents regarding

facility activities, policies, and enrollment

procedures[;] [c]onferring with teaching staff

regarding [a] child’s behavioral or learning

problems, and recommend[ing] methods of modifying

inappropriate behavior and encouraging learning

experiences[;] [r]eview[ing] and evaluat[ing]

facility activities to ensure conformance to

state and local regulations[; and] [r]eview[ing]

and approv[ing] menu plans and food purchases.

Dictionary of Occupational Titles (“DOT”) 092.167-010, 1991 WL

646894.

The only record evidence regarding plaintiff’s job

duties as a “family worker” is her own testimony, which does not

constitute substantial evidence that such work fell within the

DOT’s definition of “daycare supervisor.” Defendant points

specifically to plaintiff’s testimony that she visited daycare

centers and “ma[d]e[] sure . . . they had everything to code,”

and would “sit and make sure their menus were good, and that the

children were okay, and that they were following protocol.”

(Def. Mem. 25-26 (quoting Tr. 46).) Defendant also notes

plaintiff’s testimony that she would make “suggest[ions]”

regarding children’s food menus to staff at various daycares

that she visited in the course of her job. (Tr. 46; Def. Mem.

26 (citation omitted).) Additionally, defendant notes

plaintiff’s testimony that she “wouldn’t hire or fire” teachers

directly, but would instead “write the paperwork, and submit it

to [the] program director, wh[o] . . . was in charge of hiring

and firing.” (Tr. 68-69; Def. Mem. 26.)

Nothing in defendant’s cited testimony, however,

establishes that plaintiff had supervisory power to approve or

disapprove menu plans, as set forth in the DOT’s description of

the daycare supervisor job. Instead, plaintiff testified only

that she “suggested things” to daycare staff regarding menus and

that she provided staff members with menu suggestions that they

“c[ould]” opt to implement. (Tr. 46.) Thus, plaintiff’s

testimony suggests that daycare staff were free to discard her

suggestions, and consequently that plaintiff did not in any

material sense “approve[]” or reject any menus plans.

Similarly, plaintiff’s testimony that the “program director

. . . was in charge of hiring and firing,” (Tr. 69), establishes

that plaintiff herself did not actually hire or fire employees.

Further, nothing in plaintiff’s testimony indicates

that she performed any other functions of “daycare supervisors”

as set forth in the DOT. More specifically, plaintiff’s

testimony is silent as to her involvement, if any, in budgeting;

authorizing purchases of instructional materials; conferring

with parents regarding daycare a facility’s activities,

policies, and enrollment procedures; conferring with teachers

regarding children’s behavioral or learning problems; and

recommending methods of modifying inappropriate behavior and

encouraging learning experiences.

Plaintiff’s testimony only establishes that her job

duties as a “family worker” were similar to two duties of

daycare supervisors. Her testimony, however, is wholly silent

regarding the many other daycare supervisor job duties,

especially the more substantial duties, set forth in the DOT,

and thus does not suffice to establish that plaintiff was a

daycare supervisor. In reaching this conclusion, the court

notes that plaintiff’s testimony is no more consistent with the

DOT’s definition of “daycare supervisor” than it is with other

occupations described in the DOT, including “nutritional

consultant,” DOT 077.127-018, 1991 WL 646783, and “program

consultant” or “community service consultant,” DOT 195.167-010,

1991 WL 671582. Indeed, though plaintiff used the word

“supervise” several times to describe her responsibilities, her

work was more akin to that of an inspector ensuring facilities

complied with statutory requirements. And, even if plaintiff

had described herself expressly as a director, her stated duties

do not conform at all with the description of a daycare director

as listed in the DOT.

Consequently, the court concludes that the ALJ’s step

four conclusion is not supported by substantial evidence. On

remand, the ALJ shall reevaluate her determination regarding

plaintiff’s past relevant work, and shall elicit further

testimony from a vocational expert to determine the proper

classification of plaintiff’s past relevant work as a “family

worker,” and shall ensure that substantial evidence in the

record supports any determination regarding the nature of

plaintiff’s past relevant work.

Additionally, plaintiff reached age 50 on June 30,

2016, prior to the date on which the ALJ Decision was issued.

Consequently, plaintiff became a person “closely approaching

advanced age” within the meaning of 20 C.F.R. 404.1563(d) as of

July 30, 2016. The ALJ likely ignored 20 C.F.R., Part 404,

Subpart P, Appendix 2, Rule 201’s grids because she determined,

erroneously as discussed above, that plaintiff’s past relevant

work as a “family worker” complied with the DOT’s definition of

a daycare supervisor. The ALJ further determined that the work

of a daycare supervisor is performed at the sedentary level.

(Tr. 21.) Absent that erroneous determination, plaintiff’s past

relevant work does not include any work classified as sedentary.

Indeed, the ALJ noted plaintiff’s work as a “family worker” was

performed at a medium exertion level. (Id.) On remand, and to

the extent necessary in light of the ALJ’s other determinations,

the ALJ shall consider the impact of 20 C.F.R., Part 404,

Subpart P, Appendix 2, Rule 201.14, on plaintiff’s claim for

Title II Disability Insurance Benefits. Assuming plaintiff

falls within the ambit of Rules 201.14 or 201.15 given her

status as closely approaching advanced age, the ALJ should

determine if plaintiff’s skills are transferable or not.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for

judgment on the pleadings is GRANTED in part to the extent this

action is remanded, and DENIED in part. Defendant’s cross-

motion for judgment on the pleadings is DENIED. This action is

hereby remanded for further proceedings consistent with this

Order.

SO ORDERED.

Dated: August 6, 2019

Brooklyn, New York

_________/s/_________________

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York